McMillan v Police
[2014] NZHC 150
•13 February 2014
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2013-404-361 [2014] NZHC 150
BETWEEN BLAIR ALICK MCMILLAN Appellant
ANDPOLICE Respondent
Hearing: 5 February 2014
P Winter for Appellant
R Thomson for Respondent
Judgment: 13 February 2014
JUDGMENT OF COOPER J
This judgment was delivered by Justice Cooper on
13 February 2014 at 1.00 p.m., pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Date:
Solicitors:
P Winter, Auckland
Meredith Connell, Crown Solicitors, Auckland
MCMILLAN v POLICE [2014] NZHC 150 [13 February 2014]
[1] The appellant, Blair McMillan, appeals against his sentence in the District
Court at Auckland on 29 November 2013 on charges of:
(a) driving with excess blood alcohol causing the death of Rebecca Lee
Todd;
(b) driving with excess blood alcohol causing injury to Caitlin Frances
Todd; and
(c) driving with excess blood alcohol causing injury to Brooke Todd.
[2] The charges were all brought under s 61(1)(b) of the Land Transport Act
1998. The appellant pleaded guilty. He was sentenced to an effective term of four years’ imprisonment and disqualified from holding or obtaining a driver’s licence for a period of three years.
[3] The Judge also made the following note on the record of hearing, reflecting an offer made by the appellant at sentencing:
Reparation of $20,000 to be paid within 28 days together with a further $600 per month (back dated to March 2013) by agreement, to be paid to the “Brooke and Caitlin Todd Trust” for their future use, with trustees Vicki Newlove, Roxanne McKerras and John Lowe. (It is noted that David Rice solicitor is holding $5,400 towards the reparation.)
[4] In assessing the appropriate term of imprisonment the District Court Judge adopted a starting point of six years’ imprisonment, based on the totality of the offending, and allowed a discount for “exceptional remorse” and the offer of reparation of eight months’ imprisonment. She added a further discount of 25 per cent for the appellant’s guilty plea, which was made at the first available opportunity.
[5] The appellant contends on appeal that the starting point of six years was well in excess of what was appropriate. The appellant also argues that the discounts given on the starting point were too low. In particular, the appellant complains that the Judge did not adequately take into account the successful restorative justice conference that had taken place. Mr Winter submitted that, coupled with the
appellant’s offer of reparation and exceptional remorse, should have resulted in a greater discount than that allowed by the Judge.
[6] The respondent conceded that the starting point was too high. However, Ms Thomson submitted that while a larger discount would have been permissible for personal mitigating factors, the combined discount of one third was within the Judge’s discretion.
Facts relevant to the sentence
[7] The sentencing took place on the basis of an agreed summary of facts.
[8] The summary recorded that at about 7.45 p.m. on Friday 21 December 2012 the appellant was driving his Volkswagen station wagon in a southerly direction on Muriwai Road, Waimauku. At the same time, Ms Rebecca Todd was driving a Toyota hatchback vehicle in a northerly direction along Muriwai Road. With her in the car were her two daughters, Caitlin and Brooke. Muriwai Road in this location was described as “undulating and winding”, although it has a speed limit of 100 kilometres per hour. The appellant travelled up a winding hill before entering what was described as a “severe blind left-hand bend”. On exiting from the bend, his vehicle crossed the centre line and moved onto the opposite side of the road. There was no reference to the speed at which Mr McMillan was travelling.
[9] At the same time Ms Todd was approaching the bend from the opposite direction, driving at approximately 70 kilometres per hour. The two vehicles impacted with each other, the point of impact being on the right-hand front corner on each. The impact forced the Toyota off the road and down a slight incline, into a row of trees and scrub.
[10] As a result of the injuries that she sustained in the crash Mrs Todd tragically died at the scene. Her daughters Caitlin and Brooke were transported to hospital in a critical condition due to the injuries that they had sustained.
[11] The appellant was also transported to the hospital, in a serious condition due to his injuries. A blood sample was taken for the purpose of analysis. Analysed by
ESR, the blood specimen was found to contain 163 milligrams of alcohol per 100 millilitres of blood. This is to be compared with the legal limit of 80 milligrams per
100 millilitres.
[12] Brooke was seven years old. The injuries that she sustained were severe, and included injuries to her abdomen, a fracture to her left humerus and head injuries, including some bleeding of the brain. Caitlin was five. She sustained even more severe injuries, including a traumatic brain injury, a fractured femur, a fracture to the left humerus, a laceration to her right calf (through to the bone), a laceration in the area of her eyebrow, pulmonary contusion, a right adrenal haematoma and two fractured ribs.
[13] As well as recording these facts, the sentencing Judge referred to the background to the offending. She said:1
[5] Apparently you had had some beers earlier on this Friday night at an impromptu Christmas work do at your panel beating business in South Auckland. Afterwards, on your way home, you went to a bar in Sylvia Park for what has been described as an appointment. You drank more alcohol and you accept that you failed to monitor your consumption in that regard.
[6] This is not an unusual situation since as we all know, and as the experts confirm, once a person has had a couple of drinks, judgement becomes affected and poor decisions can be made. It is unfortunate then that despite having a couple of beers at the informal “work do” followed by the meeting at the bar, where clearly considerably more alcohol was consumed by you, no other arrangements were made for you to get home other than by driving.
[7] You acknowledge that you have made a grave error of judgement. It is unfortunate that in this day and age with all of the heightened attention that concerns drink driving, an irresponsible decision made by you has led to all of this.
The appellant’s record
[14] The appellant was born on 2 October 1957. He had only two previous convictions. Both were driving-related, but they were old and comparatively unimportant. The first was for operating a motor vehicle recklessly. This offending occurred on 30 December 1979 and the appellant was convicted on 25 February
1980, when he was fined $300 and disqualified from driving for nine months. Then,
1 R v McMillan DC Waitakere CRI-2013-090-002614, 29 November 2013.
on 30 July 1986 he operated a vehicle carelessly. He was convicted on 14 October
1986 and fined $150.
[15] The Judge also referred to six speeding offences, which are not recorded on the criminal and traffic history which forms part of this Court’s file. Mr Winter, however, did not submit that the Judge’s reference was incorrect. In relation to those speeding offences she observed that they were serious enough to warrant the appellant receiving demerit points. However, as with the other offences, they were “somewhat historic matters, decades old”.
[16] The Judge said that these previous offences did not warrant any uplift in the sentence that would otherwise be imposed. Equally, however, she took the view that they did not entitle the appellant to assert that he came before the Court as a person with an unblemished record. That attitude was reflected in the sentence imposed, which was constructed on a basis which made no allowance for previous good character.
Victim impact statements
[17] The Judge had victim impact reports from Mr Richard Todd, Ms Vicki Newlove, Mr John McKerras and Ms Roxanne McKerras. Mr Todd was the father of Brooke and Caitlin. Ms McKerras and Ms Newlove were the sisters of Ms Todd. Mr McKerras was their father. Those three all attended the restorative justice conference held on 16 August 2013.
[18] In their statements, after referring to their profound sense of loss, both Ms
McKerras and Ms Newlove asked the Judge not to send the appellant to prison.
[19] Mr Todd did not attend the restorative justice conference. He was separated from Ms Todd at the time of the accident and now has care of the two children. In his victim impact statement he too referred to the impact of Ms Todd’s death, the effect on the children and the focus that he had had to give to their well-being. He described it as “heartbreaking to see my daughters going through this immense grief and physical struggle”.
[20] The Judge also had before her a report from the Waitakere Restorative Justice Community Group Trust, summarising the restorative justice process that had been undertaken. The report’s summary was in the following terms:
This conference was very emotional and gave the participants the opportunity to express the hurt, loss and sorrow they all felt at Rebecca’s death and the injuries to her daughters Brooke and Caitlin. It was obvious that the loss of Rebecca has had a significant impact on her family. Prior to the accident the family had a lot of contact with the girls (Brooke and Caitlin), but due to the strained relationship with the girls’ father, the family have had limited knowledge of, and access to the girls since the accident.
The conference was also very emotional for the offender, his wife and their support people. The offender’s letter of apology to the family is attached. He offers his deepest and most sincere apologies, remorse and regret, for the immeasurable grief he has caused to the family. He has accepted responsibility for his offending and has offered financial reparation to assist Rebecca’s two girls financially in the future.
[21] As can be seen from that summary, the appellant wrote a letter of apology which was given to members of Mrs Todd’s family who were present at the conference.
I am writing to offer my deepest and most sincere apologies. No words will ever fully explain the intense remorse I feel every waking moment of every day. My heart breaks when I think about the enormity of your loss and I am filled with deep regret, sadness and shame for my actions.
It was my decision to drive that day, and as a consequence I cost Rebecca her life.
I took from you a daughter, a sister, a mother, a niece, a sister-in-law and a friend. I have injured Caitlin and Brooke, and caused immeasurable grief to your family.
I go to sleep every night reflecting on what I have done and my first thoughts in the morning are ones of remorse, shame and sadness.
I have my life sentence and I will carry this burden as long as I live. If I could take Rebecca’s place, or turn back time, I would.
I will never, ever forget what I have done. I am truly sorry.
The sentence
[22] The Judge treated the charge of driving with excess blood alcohol causing the death of Ms Todd as the most serious charge and noted that the available maximum penalty for the offence had been doubled by Parliament in 2011.2 It now stands at ten years’ imprisonment or a fine not exceeding $20,000. The two other charges carried a maximum penalty of five years’ imprisonment. The Judge said that she would not deal with the charges separately, but would impose an overall sentence which accounted for the lead charge, with the two additional charges being seen as severely aggravating features of the offending in its totality. After referring to the
level of alcohol in Mr McMillan’s blood, and the injuries sustained by Brooke and
Caitlin the Judge said:
[20] The fact that there were three victims of your offending and that the two girls were not only severely injured but also lost their mother, are matters which the Court must obviously take into account in dealing with you. It is stating the obvious to say that although the girls have come a long way, in terms of their recovery, in a number of regards since the crash, they did not have the loving care of their mother during this time and never will. These are the cold, hard facts.
[21] I have read the various reports about the effect that all of this has had on the girls. In my view, the position can be summarised by saying that the impact has been severe and ongoing and the girls will have to live with the physical and emotional consequences of what has happened for the rest of their lives. Caitlin has only just had her first full day back at school after almost a year, and her daily life remains affected by her head injury. In terms of Brooke, on top of everything else, she apparently saw her mother die. She also sees the changes in her sister as a result of her sister’s injuries, particularly the head injury.
[23] The Judge then noted that the appellant was 56 years of age and a married man. He was self-employed, working as a panel beater, running a business employing 11 other persons. The Judge referred to “many references” that she had been provided on the appellant’s behalf and dealt with his previous conviction history in the manner that I have already noted above.
[24] She acknowledged that the appellant was “exceptionally remorseful”. She
noted that the restorative justice meeting with six members of Ms Todd’s family,
although very difficult for all concerned, had clearly been very beneficial. She
2 This was the result of the Land Transport (Road Safety and other Matters) Amendment Act 2011.
acknowledged the observation of counsel for the Crown at sentencing, that there had been “an emotional connection among those who attended the restorative justice conference meeting” and said that the process could only be commended.
[25] The Judge observed that although Mrs Todd’s family had generally expressed the view that they did not wish the appellant to be imprisoned, Mr Todd had said that “justice should be seen to be done”.
[26] She then noted the offer that had been made for reparation and steps that the appellant had taken to obtain counselling concerning the use of alcohol.
[27] After referring to relevant purposes of sentencing in s 7 of the Sentencing Act, the Judge referred to the need to denounce the offending, and to deter not only the appellant, but others from committing the same or a similar offence. Although the appellant had been assessed as being at a “low risk of further offending” in the pre-sentence report, it was necessary to take into account the need for general deterrence.
[28] Without identifying particular cases, the Judge discussed in general terms, authorities that had been referred to her by counsel. In the course of doing so she made the following observations about the facts of the present case:
(a) There could be no suggestion of fault by anyone other than the appellant. Although he clearly felt “utter remorse” for what had happened, it was not a case where he had himself lost a close relation or friend which would add to his suffering.
(b)This was not a case where there was evidence of prolonged driving error, although the appellant was familiar with the road on which he was driving and it was a road which called for particular care.
(c) The appellant had driven some distance, from Sylvia Park in the
“south-east Auckland area” to Muriwai in the north-west, a
considerable distance, under the influence of alcohol consumed earlier in the evening.
(d) The appellant was appropriately licensed at the time.
(e) It was not a case where the appellant had not intended to drive, but did so after a change of circumstances. Rather, he had intended to drive and made no other arrangements even after he had started to drink.
[29] Against the background of that discussion, the Judge turned to consider the starting point. As to that, she simply said that the appropriate starting point was one of six years’ imprisonment, taking into account the need to deal with the totality of the offending and treating the two injury charges as severely aggravating features, as she had earlier foreshadowed. She noted that there were three victims, two of whom were “vulnerable children”. She referred in addition to the fact that the appellant McMillan had a “moderate to moderate to high blood alcohol reading”.
[30] She held that there were no mitigating features relating to the facts. She concluded:
[48] I will then allow a general credit for your attendance at a restorative justice meeting, the expression of exceptional remorse and offer of reparation. The credit I allow is eight months, which is a 10 percent credit slightly rounded up in your favour. This reduces the starting point from 72 months to 64 months’ imprisonment.
[49] Now I will deduct a further 25 percent credit for the guilty plea as allowed by law. Although there may have been a strong case against you and a guilty plea may have been inevitably forthcoming, it is still right that the Court gives you full credit for taking responsibility at the outset, once the charges had been laid and the Crown accepts that that is an appropriate credit. This reduces your sentence by a further 16 months to a sentence of
48 months or four years’ imprisonment and that is the sentence that I now
impose.
[31] In addition, the Judge disqualified the appellant from holding or obtaining a
driver’s licence for a period of three years starting from the sentencing date.
The appeal
Starting point
[32] The principal point advanced by Mr Winter in support of the appeal was that the starting point was too high. He emphasised that until the accident, the appellant’s driving had been unremarkable, and there was no suggestion that he was speeding when his vehicle crossed the centre line on rounding the bend in Muriwai Road. Nor was there any evidence that he was exceeding the speed limit, and no physical evidence left on the road indicating a loss of control. Mr Winter submitted that there had been simply a light touching of the vehicles which had had tragic consequences.
[33] In the course of his submissions Mr Winter referred to the decisions of the Court of Appeal in R v Skerrett,3 R v Fallowfield4 and R v Gacitua,5 as well as a number of High Court authorities.
[34] Gacitua was a case involving reckless driving causing death and a further charge of reckless driving causing injury contrary to ss 36AA and 36 of the Land Transport Act 1998. Nevertheless, the judgment includes a discussion of principles generally applicable in the case of death resulting from motor vehicle accidents caused by dangerous or reckless driving, or driving when under the influence of alcohol or drugs. The Court noted that, as had been said on numerous occasions,
sentencing in this area is inevitably fact-specific:6
[35] It continued:
…Prior to the increase in the maximum sentence for dangerous or reckless driving causing death, a starting point range of between two and five years prevailed with a general sentencing range of 18 months to three years for cases without significant aggravating or mitigating factors. However, higher starting points and end sentences could be and were imposed in more serious cases when a charge of manslaughter was brought. Indeed, this Court has said that the only purpose for charging manslaughter in driving cases is because the appropriate penalty should exceed the maximum provided for Land Transport Act offences. A consequence of the increase in the maximum
3 R v Skerrett CA236/86, 9 December 1986
4 R v Fallowfield [1996] 3 NZLR 657 (CA).
5 R v Gacitua [2013] NZCA 234.
6 At [22].
sentence for serious charges under the Land Transport Act is to permit the court to impose sentences in cases which would not previously have been possible without a charge of manslaughter.
(Footnotes omitted.)
[36] The Court then observed that whether sentencing under the Land Transport Act or on a charge of manslaughter, the practice in New Zealand has been to measure culpability by reference to factors listed in Skerrett. That case adopted the aggravating and mitigating factors for sentencing for reckless or dangerous driving causing injury or death identified by the English Court of Appeal in R v Boswell7 as
updated in R v Cooksley8 to reflect the increase in maximum penalty for the offence
of dangerous driving causing death from five years’ imprisonment to ten years. The Court of Appeal described the Cooksley guidelines as useful in identifying the aggravating and mitigating factors relevant to sentences in cases of this kind.
[37] In Cooksley, relevant aggravating features were collected in four separate categories. These were characterised as “highly culpable standards of driving at the time of the offence”, “driving habitually below an acceptable standard”, the “outcome of the offence” and “irresponsible behaviour at the time of the offence”. One of the factors in the first category, is the consumption of drugs or alcohol said to range from “a couple of drinks” to a “motorised pub crawl”. That aggravating factor is certainly present here, but it is the only one. There was here no suggestion of greatly excessive speed or racing, nor was it a case where warnings from fellow passengers were disregarded; there was no prolonged or persistent and deliberate course of very bad driving; aggressive driving; driving whilst the driver’s attention was avoidably distracted; driving when knowingly suffering from a medical condition which would significantly impair driving skills; or driving when knowingly deprived of adequate sleep or rest or driving in a poorly maintained or dangerously loaded vehicle.
[38] The second category, headed “driving habitually below acceptable standard”,
is directed to other offences committed at the same time, such as driving without ever having had a licence, driving while disqualified and driving a stolen vehicle.
7 R v Boswell [1984] 3 All ER 353 (CA) at 357.
8 R v Cooksley [2003] 3 All ER 40 (CA) at [5].
While there were previous convictions relating to the appellant’s driving, they did not involve alcohol and they were historic. The Judge in my view rightly did not consider that those factors should be treated as aggravating in the present case.
[39] As to the “outcome of the offence”, one person was tragically killed, and her two daughters were seriously injured. Consequently, that is another aggravating feature of the offending. There was no “irresponsible behaviour at the time of the offence” within the fourth category of aggravating factors, which is directed to behaviour such as failure to stop, blaming a victim for the accident, or dangerous driving linked to an attempt to avoid detection or apprehension or offending while on bail.
[40] The Court of Appeal reviewed sentences imposed for both manslaughter, and charges laid under the Land Transport Act 1998, following the amendment of the relevant Land Transport Act provisions to double the maximum penalty. In respect of manslaughter cases in which alcohol is an aggravating factor, the Court said that generally they indicated a starting point of between six years and six years six
months, with a higher starting point where there was more than one death.9 The
Court observed:10
Our analysis of the motor manslaughter cases suggests that sentencing has generally reflected appropriately the aggravating features involved. It will be a matter for the prosecutor’s discretion as to whether charges under the Land Transport Act will be sufficient to reflect the seriousness of the offending in the particular case or whether a charge of manslaughter may be required in especially serious cases.
[41] The Court also noted that sentencing in manslaughter cases had generally involved more aggravating features, which invariably included the consumption of alcohol: R v Prince11 was one such case. Mr Prince was charged with manslaughter and four counts of dangerous driving causing injury. He had drunk five or six pre- mixed alcoholic beverages during the evening and accepted that alcohol was a factor in his driving although a specimen of blood obtained two and three quarter hours
after the crash showed an alcohol level of only five milligrams per 100 millilitres of
9 At [38].
10 At [39].
11 R v Prince HC Wanganui CRI-2011-083-1775, 5 December 2011.
blood. Mr Prince was on a restricted licence, he ignored pleas from his passengers to slow down and lost control of his vehicle which overturned into a ditch. One of the passengers was knocked unconscious and drowned, and the other passengers suffered a range of injuries. On the charge of manslaughter, the Court adopted a starting point of five years’ imprisonment. Mitigating factors reduced the sentence to two years’ imprisonment. The sentence imposed was of 12 months’ home detention and 250 hours community work was imposed.
[42] Clearly, there were a number of aggravating features in that case as here. On the other hand, the level of alcohol in the appellant’s blood is over twice the legal limit.
[43] Another case discussed in Gacitua was McCullough v Police.12 That was an appeal against a sentence of two years’ imprisonment imposed in the District Court on one charge of causing death while driving under the influence of drink and another of causing bodily injury. As in this case, the charges were brought pursuant to s 61(2) of the Land Transport Act. After drinking at a party, the offender who had a restricted licence left with three passengers driving an unregistered and unwarranted vehicle. She crashed into a power pole while travelling at 100 kilometres per hour in a 100 kilometre per hour zone. One passenger was killed and another received head injuries. The offender’s blood alcohol reading was twice the legal limit. A starting point of three and a half years’ imprisonment was adopted in the District Court, and a final sentence of two years’ imprisonment imposed after discounts for mitigating factors. Brewer J found that the starting point had not been manifestly excessive and the sentencing Judge did not err in declining to sentence the offender to home detention.
[44] The blood alcohol reading in that case was effectively the same as in the present case. Once again, however, it seems that there were a number of aggravating features present in that case, not present here: the vehicle was unregistered and did not have a current warrant of fitness, and in driving a vehicle with a manual transmission, the offender breached the conditions of her restricted licence.
[45] Discussing these cases in Gacitua, the Court of Appeal made no adverse comment on the starting points adopted.
[46] One other case that can usefully be referred to is R v McCluthie.13 The offender pleaded guilty to one charge of driving with an excess blood alcohol concentration causing death, two charges of driving with an excess blood alcohol concentration causing injury and one of unlawfully taking a motor vehicle. The offender was an unlicensed driver, driving a stolen motor vehicle and had consumed alcohol. A blood sample was analysed as having 116 milligrams of alcohol per 100 millilitres of blood. The offender and his passengers were consuming alcohol when the accident occurred. He was driving along a shingle road with limited visibility restricted by light rain and the absence of street lighting in a rural area. There was some evidence that he had been travelling between 130 and 140 kilometres per hour although Heath J indicated that he was not sure how reliable the estimate of the speed was. He nevertheless concluded that the offender had been driving fast. A passenger yelled at him to slow down as they approached an intersection, but he drove straight through onto a grass shoulder where the vehicle hit a raised mound and was launched into the air. A passenger was ejected through the front window, the vehicle flipped over and landed on top of her.
[47] The Judge specifically referred to the following aggravating features in his sentencing notes:
[23] You were driving at excessive speed. You disregarded Ms Hunt’s warning to stop. Had you stopped she would have lived. You were drinking while driving. You were not using a seatbelt. You were driving too fast in the rain and doing “skids”. You endeavoured to depart the scene without alerting people who lived nearby to the fate of your passengers. Having said that, I acknowledge the confused state you would have been in at the time and I do not place much weight on that.
[48] Heath J considered that having regard to all of those factors, a starting point of five years’ imprisonment was appropriate. That case had many more aggravating features than the present.
[49] Having reviewed these authorities, I consider that the starting point adopted in the present case was too high by a considerable margin. Plainly, the aggravating feature is the consumption of alcohol, which it can be inferred must have been a significant factor in the appellant’s loss of control as he rounded the bend on Muriwai Road. But there was no evidence of exceeding the speed limit or suggestion that, over what had been a lengthy journey, the appellant’s driving was dangerous or reckless. The fact that Ms Todd tragically died as a result of the accident is, of course, inherent in the charge.
[50] Establishing an appropriate starting point in a case such as this should involve a consideration of the presence or absence of the kinds of aggravating features summarised in Gacitua v R as well as a consideration of the starting points adopted in other cases, including those which have been prosecuted as manslaughter and those that have been advanced under the Land Transport Act 1998. Such an exercise is necessary in order to ensure that the sentence imposed conforms with the requirements of s 8(a), (b) and (e) of the Sentencing Act 2002, which respectively require the Court to take into account the gravity of the offending in the particular case, the seriousness of the type of offence in comparison with other types of offences, and the general desirability of consistency with appropriate sentencing levels in respect of similar offenders committing similar offences in similar circumstances.
[51] While the Judge must take into account the purposes of sentencing under s 7 (including the need to hold the offender accountable, to denounce his conduct and to deter him and other persons from committing the offence) those purposes must be served by application of the principles of sentencing set out in s 8. In this case, I consider there is force in Mr Winter’s submission that the Judge did not properly take into account the comparative absence of aggravating features in the present facts or the desirability of consistency with sentences imposed in other similar cases. The appellant was not charged with manslaughter. In addition, this was not a case where the deterrence of the offender needed to be emphasised: the appellant’s remorse was genuine and obvious.
[52] I note that at sentencing, the respondent had submitted that an appropriate starting point would be in the vicinity of three to three and a half years’ imprisonment, and at the hearing of this appeal Ms Thomson properly acknowledged that the starting point of six years’ imprisonment adopted was above the properly available range.
[53] Having regard to the cases discussed above, I consider that an appropriate starting point for the charge of driving with excess blood alcohol causing death (considered on its own) was three years’ imprisonment. Treating that offence as the lead offence, I consider an increment of a further six months would have been sufficient to ensure that the starting point was appropriate for the totality of the offending.
Insufficient discount
[54] Mr Winter advanced the further submission that the Judge did not allow a sufficient discount for the starting point to take into account the restorative justice process and the remorse shown by the defendant.
[55] As has been seen, the Judge allowed eight months on the starting point of six years’ imprisonment in respect of these considerations. Counsel in their written submissions described this as an eight per cent discount, and the Judge herself referred to it as a 10 per cent credit, slightly rounded up in the appellant’s favour. By my calculation it is in fact over 11 per cent. The Judge intended that deduction to reflect both the outcome of the restorative justice meeting, the appellant’s expression of exceptional remorse and his offer of reparation. She did not elaborate on how she had arrived at the chosen level of deduction.
[56] Mr Winter referred to Haskell v Police14 in which the High Court allowed an appeal from a District Court sentence of an offender who had pleaded guilty to offences described as two charges of “aggravated careless driving causing injury”, and one charge of “aggravated careless driving causing death”. The offender had driven his truck on the wrong side of the road, and collided with an oncoming
vehicle on a bend in the road. The Judge took a starting point of 18 months’ imprisonment, but took into account the offender’s extreme remorse, willingness to take part in a restorative justice process and willingness to pay reparation. There was also an express desire by the surviving victims and their families that the offender should not receive a sentence of imprisonment. I infer from the High Court judgment that the sentencing Judge allowed a deduction of 25 per cent for those considerations, and a further 25 per cent for the guilty plea.
[57] In the present case, not all of the victims expressed the view that the appellant should not be imprisoned. However, two of Ms Todd’s close relatives, her sisters, did so. Ms McKerras, in her victim impact statement said:
This has been an incredibly emotional and challenging time for all of us. Blair made a terrible mistake, one that he will have to live with for the rest of his life. That is punishment enough. He has offered to pay reparation which will give the girls some financial support and opportunities in years to come. There is no point in sending this man to jail. Please do not ruin two families’ lives.
[58] Ms Newlove said:
I know that Blair did not intentionally get up one morning and decide to kill Rebecca. It was an accident, wrong place at the wrong time. I don’t want to see Blair going to prison. He is extremely remorseful and now has to live with the consequences of this all his life. Rebecca was not a vengeful person and would not want Blair going to prison.
[59] Mr Todd, the girls’ father, did not comment on the appropriate outcome. He
said:
I hope for both Rebecca’s and my children’s sake the judgment reflects the
enormity of what has been taken from us all.
[60] Section 9(2)(f) of the Sentencing Act specifically requires sentencing Judges to take into account “to the extent that they are applicable in the case” any remorse shown by the offender, or anything described in s 10. Section 10 refers to a range of matters and would cover the offer of reparation made by the appellant. The Supreme Court confirmed in Hessell v R15 that remorse, where it is properly established, should be given credit, independently of any guilty plea. It seems clear that the same
reasoning must apply to factors covered by s 10. In addition, s 8(j) requires the sentencing Judge to take into account the outcomes of a restorative justice process. It is clear from her sentencing remarks that the Judge in this case was aware of these requirements. However, the allowance given for them does seem to be low in the context of the appellant’s very evident remorse, his offer of substantial reparation and the views of those victims who had commented directly on the issue of imprisonment.
[61] In all the circumstances, I consider a more generous discount would have been appropriate than the approximately 11 per cent allowed by the Judge. I consider an allowance of 20 per cent would have been appropriate
[62] Proceeding on that basis, from a starting point of three years six months, a reduction of 20 months would reduce the sentence to approximately 33 months. after making appropriate allowance for the guilty plea, the sentence reduces to one of two years’ imprisonment.
[63] That gives rise to the need to consider whether home detention should be imposed. That was not a matter that the Judge needed to consider because of the length of sentence that she imposed. In Haskell,16 this Court noted that in this kind of case issues of deterrence, accountability and denunciation are very important considerations. However, as was recognised by the Court of Appeal in R v Iosefa17 in appropriate cases they can be adequately met by a sentence of home detention. The Court said:
[41] The sentence of home detention introduced by the 2007 amendment indeed provides a real alternative to imprisonment. It carries with it in considerable measure, the principles of deterrence and denunciation. It is clear parliamentary policy that for short-term sentences, those of two years or less, the restriction on liberty through home detention can more appropriately be imposed by a sentence of home detention than by imprisonment. In cases of more serious offending which justify a sentence greater than two years, the sentence of home detention will not be available and in such cases in accordance with the hierarchy of sentencing in s 10(A) a sentence of imprisonment usually will be required to reflect the purposes of denunciation and deterrence.
16 Haskell, above n 14.
17 R v Iosefa [2008] NZCA 453.
[64] Although the victims’ views are important, as the sentencing Judge here recognised, the Court must in the end decide for itself what is appropriate in the particular circumstances of the case. Here, I consider that the fact that the appellant’s blood alcohol level at the time of the offending was over the twice the legal limit militates against home detention as an appropriate sentencing response. Alcohol was not a feature of the offending in Haskell. In the end I do not consider a sentence of home detention would be sufficient to denounce the appellant’s conduct and deter others.
Result
[65] In the result, the appeal is allowed.
[66] Counsel did not address the fact that the Judge seems to have imposed the same sentence of four years’ imprisonment on all three charges to which the appellant pleaded guilty. Although the charges of driving with excess blood alcohol causing injury were serious, they were plainly not as serious as the charge based on Ms Todd’s death. Where as here, one charge is treated as the lead offence and concurrent sentences are to be imposed, s 85(4) of the Sentencing Act requires that the most serious offence receives the penalty that is appropriate for the totality of the offending, and that each of the lesser offences receives the penalty appropriate for that offence.
[67] In the circumstances:
(a) The sentences of imprisonment imposed on all three charges in the
District Court are quashed.
(b) On the charge of careless driving causing death, a sentence of two
years’ imprisonment is substituted.
(c) On the charges of careless driving causing injury, sentences of 18 months are substituted in each case.
[68] The other aspects of the sentences imposed in the District Court, being the disqualification for three years and the requirement for the payment of reparation remain.
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