McArthur v Police

[2017] NZHC 1100

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI-2017-412-19 [2017] NZHC 1100

BETWEEN

HARRY SIMON MCARTHUR

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	22 May 2017
Appearances:	J Ross for the Appellant R Smith for the Respondent
Judgment:	25 May 2017

JUDGMENT OF MANDER J

[1]      The appellant, Mr Harry McArthur, was sentenced to 200 hours community work on one charge of careless driving causing injury.   He was disqualified from driving for 10 months and ordered to make reparation of $30,000.  He has appealed against the amount of community work, contending the sentence was manifestly excessive.   No complaint is made regarding the period of disqualification or the amount of reparation.

Background

[2]      The charge arises from a collision between Mr McArthur’s vehicle and a cyclist.   Mr McArthur was turning right across a road and failed to see the approaching cyclist until moments before the impact.  The cyclist hit the front of his vehicle and was propelled through the air.  As a result, the cyclist suffered serious injuries, including fractures and a traumatic brain injury which has deeply impacted on his life and that of his family.

[3]      In explanation, Mr McArthur stated to police that the sun partially impaired his vision and that it was not until he had embarked on the turning manoeuvre, after

MCARTHUR v POLICE [2017] NZHC 1100 [25 May 2017]

some trees blocked the sun, that he saw the bike directly in front of his bonnet, at which point he attempted to brake.

District Court’s decision

[4]      The  sentencing  Judge  noted  Mr  McArthur’s  poor  driving  history.    This included three convictions for operating a vehicle carelessly, a conviction for driving a motor vehicle at a dangerous speed, and one for failing to stop to ascertain injury. This indicated what the Judge described as “somewhat of an irresponsible attitude towards road use” and a “cavalier approach” to driving.  The Judge concluded Mr McArthur had given little real thought to the safety of others on the road and had previously taken risks when driving.

[5]      The devastating and profound life-changing impact on the victim and his family were acknowledged.  The pre-sentence report recorded that Mr McArthur had expressed remorse for the victim, although it was noted he appeared to have put more thought into the consequences for himself than for his victim, which to some extent he had minimised.  However, the Judge acknowledged and took into account submissions made on Mr McArthur’s behalf that he was remorseful and upset at what had happened to his victim, and that he was willing to attend a restorative justice conference.

[6]      The  Judge  rejected  Mr  McArthur’s  level  of  carelessness  and  degree  of culpability as being at the lower end of the scale.  He described it as moderate.  The Judge considered it appropriate to impose a punitive element by way of an amount of community work in order to deter and denounce the offending, and ensure that Mr McArthur took responsibility for his actions.

[7]      In imposing a period of disqualification, the Judge considered that because of Mr McArthur’s history and the circumstances of the offending it was appropriate to keep  the  appellant  off  the  road  for  a  reasonable  period  of  time.    In  regard  to reparation it was noted Mr McArthur had $10,000 available to him immediately, and that he was able to pay a further $20,000 over time in instalments, as proposed by his counsel.

The appeal

[8]      Mr  McArthur  submitted  that  when  assessed   together  with  the  other components of the overall sentence the imposition of 200 hours community work was manifestly excessive. That submission was based on three grounds:

(a)      The Judge overstated Mr McArthur’s level of carelessness and erred by taking into account his driving history in coming to his conclusion that the degree of carelessness was moderate.

(b)The Judge failed to properly consider the least restrictive outcome appropriate in the circumstances when imposing the punitive sanction of 200 hours community work.   In that regard it was submitted the Judge overstated the impact of the appellant’s prior convictions and failed to properly account for the reparation.

(c)      When viewed against other sentencing authorities the overall sentence was manifestly excessive.

Approach to appeal

[9]      On an appeal against sentence this Court is only permitted to disturb the sentence if it is satisfied there has been an error in the imposition of the sentence and that a different sentence should be imposed.1    An error will arise if the sentence imposed is “manifestly excessive”.  However, where the sentence is within the range that can properly be justified by applying accepted sentencing principles it is not the place of this Court to intervene and substitute its own view for that of the sentencing Judge.2

[10]     Whether a sentence is manifestly excessive is to be assessed against the sentence ultimately imposed rather than the process by which that sentence has been

reached.3

1      Criminal Procdure Act 2011, s 250(2) and (3).

2      Larkin v Ministry of Social Development [2015] NZHC 680.

3      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].

Analysis

Level of carelessness

[11]     Before me, Mr McArthur repeated his explanation for how the collision had occurred as a result of the sun impairing his vision.  He believed he could see enough of the road to safely complete the turning manoeuvre.  Mr McArthur was critical of the sentencing Judge having taken into account his criminal and traffic history when assessing his level of culpability.  He submitted the Judge had incorrectly focussed on the consequences for the victim rather than his own driving conduct when assessing his level of carelessness which he put at the lower end of the scale.

[12]     In assessing the degree of carelessness involved in Mr McArthur’s driving, the Judge acknowledged that the identified carelessness amounted to not having a full view of the road ahead.   However, I, like the District Court Judge, do not consider that explanation mitigates the carelessness, or places it at the lower end of the range.  To the contrary, it amounts to an admission that in the face of possible oncoming traffic, Mr McArthur took the gamble while his vision was impaired to carry out a right-hand turn.  The Judge noted that a driver whose vision is impaired must take all necessary steps to avoid a collision.  That may include the need to stop altogether if the alternative is to proceed while blinded by the sun.

[13]     Mr McArthur’s carelessness did not involve momentary inattentiveness or distraction, but the deliberate act of turning across an oncoming lane while his visibility was partially impaired. Arguably, as submitted by the Crown, that amounts to deliberate risk taking which could have formed the basis of a more serious charge.

[14]     Notwithstanding the nature of the driving act which constituted the offence, the  sentencing  Judge  reminded  himself  that  careless  driving  causing  injury represents a lower level of culpability across the spectrum of driving offences.  In the Judge’s words, it is a charge often associated with an accident which “could occur with any one of us”.

[15]     Mr  McArthur  submitted  the  Judge  in  assessing  the  seriousness  of  his offending may have placed too much focus on the consequences of his carelessness

rather than the particular act which constituted the offence.  I do not consider that critique is borne out upon a reading of the sentencing notes.

[16]     While there is a need for a sentencing Court to discipline itself from allowing the consequences for the victim to dominate the sentencing exercise, the impact of the driver’s carelessness is a relevant factor to be weighed in the assessment of the seriousness of the offending, and is not simply to be put to one side.  The nature and extent of the injury suffered by a victim, while not a determining factor, is one the Court  is  entitled  to  take  into  account  when  imposing  sentence  for  this  type  of

offending.4   The Court must recognise the terrible consequences acts of carelessness,

albeit brief, can cause, including death.5

[17]     Mr McArthur was critical of the sentencing Judge taking into account his criminal traffic history in assessing his level of carelessness or degree of culpability. However, I do not consider the sentencing Judge’s approach led him into error in assessing the seriousness of Mr McArthur’s offending.

[18]     The Judge did not adopt the formal approach to sentencing as prescribed by R v Taueki.6     While the general approach to sentencing described by the Court of Appeal in Taueki should ordinarily be applied, in driving cases of this type it may not be necessary to carry out the exercise with the degree of rigor called for in more serious  cases.7      On  appeal  it  will  be  the  appropriateness  of  the  final  sentence measured against the purposes and principles of the Sentencing Act 2002 that counts, and not how it is arrived at.  If the sentence imposed is within the available range an appeal Court will not interfere.

[19]     The  continuing  pattern  of  Mr  McArthur’s  careless  operation  of  a  motor vehicle, which culminated in very serious injury being caused to another road user, is relevant to the assessment of the gravity of his present offending.  The situation is

akin to the approach sometimes taken to burglary and dishonesty offending, where

4      R v Fallowfield [1996] 3 NZLR 657 (CA) at 92; O’Sullivan v Police HC Auckland CRI-2009-

404-323, 1 December 2009 at [29]; Paintin v Ministry of Transport HC Rototua AP25/90, 10

October 1990, at 7; see also Sentencing Act 2000, ss 7 and 9.

5      Barr v Police HC Rotorua CRI-2011-463-42, 28 November 2011.

6      R v Taueki [2005] 3 NZLR 372.

7      Hughes v R [2012] NZCA 388 at [29].

an offender’s prior history is taken into account in fixing the actual “starting point”. Reconciling that approach with the orthodox Taueki sentencing exercise, whereby previous convictions will be taken into account as a personal aggravating factor, was discussed by the Court of Appeal in R v Colombus.8

[20]     In that case it was observed that for burglary,  as for other offences, the circumstances of the offending will predominate when  fixing the starting point. However, while prior offending is not of itself an element of the index offence before the Court, it can be directly relevant to assessing the degree of an offender’s culpability and the gravity of that particular offending.9   In taking such an approach there will be an associated need to guard against the risk of placing undue emphasis on past convictions lest the sentence be viewed as being primarily a punishment for previous offending.10

[21]     Whether a similar approach can be taken to careless driving causing injury is perhaps moot.  Clearly, in the present case the sentencing Judge was entitled to take into account Mr McArthur’s previous history, including his conviction in October

2015, only four months before the act of carelessness which gave rise to the present charge.  Additionally, Mr McArthur has a history of traffic offending which includes numerous infringement offences for speeding.   While I accept Mr McArthur’s offending history may not be relevant to the nature of the careless act, it must be a relevant consideration in assessing his overall culpability, with this event marking a continuation of a developed pattern of poor driving conduct.

[22]     As observed, the sentencing Judge did not adopt the formal Taueki approach to sentencing, but it is not apparent from his sentencing remarks that there was any double counting of the appellant’s driving history in arriving at the final sentence. Whether the examination of Mr McArthur’s actions is limited to focussing on the discrete act of carelessness which caused the collision, or is viewed against the wider context  of  his  apparent  propensity  to  drive  carelessly,  I  do  not  consider  the

sentencing Judge erred in his assessment of Mr McArthur’s overall culpability.  This

8      R v Colombus [2008] NZCA 192.

9      Sentencing Act 2002, ss 7(f) and (g), 8(a), and 9(1)(j).

10     R v Colombus, above n 8, at [15], referring to R v Ward [1976] 1 NZLR 588 (CA) and R v Power

[1973] 2 NZLR 617 (CA) at 618.

effectively placed the seriousness of his offending in the mid-range for careless driving causing injury.

The least restrictive outcome

[23]     Mr McArthur submitted that the imposition of 200 hours community work constituted a breach s 8(g) of the Sentencing Act by failing to impose the least restrictive outcome available to the sentencing Judge.  This was not a challenge to the appropriateness of the type of sentence, but was directed at the number of hours of community work imposed.   Mr McArthur was critical of the Judge’s focus on deterrence, denunciation and the need to hold him accountable, at the expense of imposing the least restrictive outcome.  He submitted the Judge failed to view the sentence in totality by failing to take into account the length of the disqualification and, in particular, the amount of reparation when setting the number of hours of community work.

[24]     Mr McArthur submitted that his past driving convictions had been met with fines and disqualification, and that his offer of reparation in the sum of $30,000 was significant.  While Mr McArthur could afford the initial lump sum payment and the subsequent instalments over time, he submitted the amount ordered to be paid should have significantly reduced the additional penalty of community work.  In the absence of him being sentenced previously to community work, Mr McArthur submitted the sentence of 200 hours community work was manifestly excessive, and a less “restrictive outcome” was appropriate in the circumstances.

[25]     I do not consider this part of Mr McArthur’s appeal to be persuasive.  Section

8(g) of the Sentencing Act 2002 provides as follows:

In sentencing or otherwise dealing with an offender the Court-

...

(g)       must impose the least restrictive outcome that is appropriate in the circumstances, in accordance with the hierarchy of sentences and orders set out in s 10A;

[26]     The  Crown  submitted  that  this  sentencing  principle  is  directed  at  the imposition of a certain type of sentence and its appropriateness rather than its length.

Section 8(g) refers to s 10A of the Act which sets out the hierarchy of sentences and orders from the least restrictive to the most restrictive.

[27]     The principle of imposing the least restrictive outcome clearly has application to the length of a term of imprisonment, and as community work infringes on the liberty of the individual, it remains a relevant consideration when assessing the amount of community work to be imposed.  The desirability of imposing the least restrictive outcome is all part of the balance sentencing Courts attempt to achieve in weighing the competing tensions of achieving the purposes of sentencing, including the need for deterrence and the holding of an offender to account, which have to be reconciled as part of the sentencing process.

[28]     In the present case, Mr McArthur has acknowledged that community work was an appropriate sentence to be imposed in combination with disqualification and reparation.   I do not consider the fact that his previous offences of operating a vehicle carelessly, which were met with fines in October 2015 and April 2012, prevent the Court from imposing the amount of 200 hours community work.  This is his third conviction within the last five years and demonstrates a continuation of his careless driving which, on this occasion, resulted in very serious consequences for his victim.  The number of hours imposed do not in the circumstances infringe s 8(g) of the Act, and I consider the quantum of hours when considered in isolation to be within the range available to the sentencing Court.

[29]     The more difficult question is the second aspect raised by Mr McArthur’s appeal, which is how the reparation order as part of the overall sentence should affect the punitive component of community work in terms of the hours imposed. Mr McArthur submitted the award of $30,000 should significantly reduce that additional penalty.   I consider that issue is best examined against the third issue raised on his appeal, namely whether the overall sentence was manifestly excessive.

Manifestly excessive sentence

[30]   Mr McArthur referred to a number of sentencing authorities which he maintained demonstrated that the imposition of 200 hours community work as a component part of the overall sentence was manifestly excessive.  The Crown in turn

relied on cases which it submitted supported the approach taken by the District Court.  The individual circumstances of the offence and the offender from one case to the next will invariably differ, and no two cases will be the same.  This Court has repeatedly recognised that drawing comparisons with other cases can be a difficult and fraught exercise which must be undertaken with care.  This is particularly so in a case of this type where there is no guideline judgment or broad sentencing tariff. That perhaps reflects the fact that cases of careless driving causing injury or death can cover such a wide spectrum of circumstances and consequences.

[31]     Mr McArthur referred to a decision of this Court, Kydd v Police, where on appeal a sentence of 200 hours community work, reparation of $2,000 and disqualification for 10 months was not disturbed.11    The offender, after trial, was found guilty of careless driving causing injury, which was described as being within the mid-range of carelessness.   The offender attempted to execute a U-turn which resulted in a collision causing serious injuries to the victim and had an extraordinary impact on his life.  The offender fled the scene.  He had an extensive criminal and traffic history, including 26 convictions for driving-related offences.

[32]     Mr McArthur also referred to two further decisions of this Court, Coombes v

Police and Wood v Police.12     In Combes the offender was sentenced to a fine of

$1,500, reparation of $500, and nine months disqualification for being responsible for a collision with a moped which resulted in minor injuries to the victim.  It was the appellant’s third conviction for careless use of a motor vehicle, two of which had resulted in injury to others.  In Wood v Police, the offender had been sentenced to

200  hours community work  and  12  months  disqualification,  having been  found guilty of causing a crash as a result of him driving on the wrong side of the road. The latter case is of limited assistance because the appeal against sentence related solely to the length of the period of disqualification.

[33]     The Crown referred to a judgment of Asher J, in Barr v Police, where a number of cases were considered in determining an appeal against a sentence of 220

hours community work, $8,000 reparation and a 13 month period of disqualification

11     Kydd v Police [2012] NZHC 1969.

12     Combes v Police [2012] NZHC 945; Wood v Police HC Hamilton CRI-2008-419-85, 1 May

2009.

on one charge of careless driving causing death.13   The appellant had pulled out from an  intersection  into  the  path  of  a  motorcyclist.   A starting  point  of  300  hours community work was held to be at the absolute top of the range, if not beyond.  The driver error was described as being towards the lower end of carelessness and the appellant made an early acknowledgement of her responsibility, pleading guilty at the first possible opportunity.  The sentence of 220 hours community work was not disturbed although the disqualification period was reduced to one of nine months.  In reaching that decision, Asher J referred to three other sentencing decisions.

[34]     In R v King, a sentence of 300 hours community work, reparation of $10,000 and disqualification from driving for one year was imposed by the District Court.14

The defendant had failed to negotiate a right-hand bend, resulting in her colliding with a group of cyclists, killing three.  The defendant’s culpability was described as being at the lower end of the scale, with no prior convictions.

[35]     In Ramsay v Police, the defendant momentarily turned her head to wave to an acquaintance and collided with a mobility scooter, resulting in the death of an elderly man.15    On appeal, this Court did not interfere with an end sentence of 200 hours community work, $3,000 reparation and 15 months disqualification for a situation accepted  as  involving  momentary  inattention,  having  catastrophic  consequences, with the degree of negligence described as being low.

[36]     Finally, in Tusa v Police, a bus driver failed to stop for a red light which, while a serious failure, was accepted as having arisen from a moment’s inattention. The victim suffered serious injuries.   This Court upheld a sentence of 200 hours community work, reparation of $4,000 and nine months disqualification.16

[37]     Barr v Police and a number of the other cases to which I have referred involved careless driving which resulted in death.  The present case does not involve a fatality, although the consequences for the victim have been and will continue to be

very severe.  It was only a matter of fortune that the victim did not die.  In my view,

13     Barr v Police, above n 5.

14     R v King DC Morrinsville CRI-2010-039-909, 14 February 2011.

15     Ramsay v Police HC Timaru CRI-2008-476-23, 10 September 2008.

16     Tusa v Police HC Auckland CRI-2010-404-276, 15 November 2010.

in cases of careless use of this type, which result in such grievous consequences for the victim, a sentence of 200 hours community work is well within the available range.  I am reinforced in that conclusion by Mr McArthur’s poor driving record and the absence of any significant credit being available to him as a result of the timing of  his  late  plea.    The  essential  question  that  remains  is  whether  the  $30,000 reparation order required an adjustment to the amount of community work Mr McArthur was ordered to serve.

[38]     Reparation  orders  and  the  imposition  of  community work  meet  different sentencing objectives.  The provision of reparation is to provide some compensation to the victim for the harm that has been done as a result of the offending.17    If the statutory criteria is met the Court must impose reparation unless satisfied such an order would result in undue hardship for the offender, or any other special circumstances would make it inappropriate.18   The imposition of community work is, as was acknowledged by the sentencing Judge, designed to meet the more punitive objective of holding the offender to account, to promote in that person a sense of responsibility for the harm caused, and to denounce and deter.   On appeal, modification of either component of the sentence may qualify what has been sought to be achieved by that combination of sentence.  Ultimately the task of the appeal Court is to stand back and look at the sentence as a whole to determine whether in

the circumstances of the individual case it is manifestly excessive.

[39]     In Te Amo v R, one of the grounds of appeal concerned whether the Judge ought to have made greater allowance to reflect a reparation order of $20,000.19

That case concerned an appellant who had been convicted of driving with excess breath  alcohol  causing  death,  and  failing  to  stop  and  ascertain  injury  after  an accident.   In addition to the reparation, she was sentenced to two years and four months imprisonment.   In reaching that end sentence three months was deducted

from a starting point of three years and 10 months to reflect the reparation payment.

17     Sentencing Act 2002, s 7(1)(d).

18     Section 12(1).

19     Te Amo v R [2010] NZCA 307.

[40]     The Court highlighted that the amount of sentence discount earned as a result of such a payment was a matter of discretion for the sentencing Judge.  Stevens J, delivering the judgment of the Court, observed:20

[14]     The   emotional   harm   payment   of   $20,000   was   undoubtedly significant. Particularly in this case, the appellant is of modest means and her family made financial sacrifices to provide funding for the payment. Counsel for the respondent correctly submitted that the amount of discount earned by such a payment was a matter for the discretion of the sentencing Judge. By way of an example of a payment being taken into account in this Court, he cited R v Johnson.

[15]     We consider that the amount of discount for an emotional harm payment will always depend on the facts of the case, the particular circumstances in which the payment is made, and the impact on the victim. Whilst the allowance in the present case might have been greater, we do not consider it was inappropriately low. We agree with the submission of counsel for the respondent that the allowance should be considered in the context of the sentence as a whole. Here, the final sentence was reached after allowing a significant discount of 15 months' imprisonment, even though the plea on the second charge was only entered on the eve of trial. Thus, the victim's family would have had no closure until some nine months after the accident. Yet a full discount in terms of R v Hessell was allowed.

(Citations omitted)

The approach taken by the sentencing Court in that case was not disturbed.

[41]     A sentencing Judge in reaching a final sentence is obliged to take appropriate account of any reparation ordered to be paid as part of the overall sentence imposed. As I have already observed, in cases such as the present, reparation, disqualification and community work, as with a fine or a term of imprisonment, serve different sentencing purposes and should be viewed as seeking to achieve different outcomes. However, the sentencing Judge in the exercise of his or her discretion may need to adjust a component of the total sentence to ensure its cumulative effect is not excessive.

[42]     Having closely considered the matter.   I consider that while the amount of community work to be served is at the high end of the range and can be viewed as stern, I have not been brought to the point where I can conclude that the sentence

should be disturbed.   Absent the reparation payment, 250 hours community work

20     Te Amo v R, above n 19.

coupled  with  disqualification  would  have  been  within  the  available  range  of sentence.  The figure of 200 hours would represent a 20 per cent reduction from that theoretical starting point and would adequately reflect the necessary adjustment to mark the substantial reparation order.  In the present case it is not possible to review how the Judge  made  his calculations,  however,  I am  satisfied  that  viewing the sentence as a whole, as I am required to do on appeal, the ultimate sentence is not manifestly excessive.

[43]     The appeal is dismissed.

Solicitors:

AWS Legal, Invercargill

RPB Law, Dunedin