McPike v Police HC Auckland CRI 2010-404-151

[2010] NZHC 1171

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2010-404-000151

BOONE STEVEN MCPIKE

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         28 June 2010

Counsel:         S Cowdell for the appellant

M Woolford for the respondent

Judgment:      28 June 2010

(ORAL) JUDGMENT OF STEVENS J

Solicitors/Counsel:

S Cowdell, PO Box 76 683, Manukau City, Manukau 2241

Crown Solicitor, PO Box 2213, Shortland Street, Auckland 1140

BOONE STEVEN MCPIKE V NEW ZEALAND POLICE HC AK CRI-2010-404-000151  28 June 2010

Introduction

[1]      This is an appeal against sentence by Boone Steven McPike, on one charge of driving with excess blood alcohol causing death, one charge of driving with excess blood alcohol causing injury, one charge of careless driving causing death and one charge of careless driving causing injury.   The appellant pleaded guilty to these charges and was sentenced in the District Court at Pukekohe on 27 April 2010 before Judge S E C McAuslan to two years’ imprisonment.

[2]      The appellant has appealed against the sentence imposed on the basis that the sentence was manifestly excessive.

Factual background

[3]      At 8.15pm on the evening of 19 May 2009 the appellant, then aged 19, was driving a Holden Commodore on Linwood Road in Karaka.  In the front seat was the appellant’s girlfriend, Ms Smith, then aged 16, and in the rear passenger seat was a friend Mr Powell, aged 19 years.  In the part of Linwood Road where the accident took place there is a 100 kilometre speed limit.   The road is one lane in each direction, and the lanes are divided by a combination of a broken white centre line and solid yellow “no passing” lines.  At the time of the accident it was dark and there was no street lighting.  Light rain was falling and the road was wet.  The appellant lost control of his vehicle while negotiating a lefthand bend.  The car went off the road into a farm fence and hit a power pole.  As confirmed in the crash report, the power pole was snapped off at its base and the motor vehicle was extensively damaged.

[4]      The rear passenger, Mr Powell, died at the scene of the crash after receiving extensive injuries.  Ms Smith, the front seat passenger, received serious head injuries and was hospitalised at Middlemore Hospital.  At sentence the Judge noted that she suffered a fractured skull and observed that the physical effects of the accident were still with her.   The appellant was also taken to Middlemore Hospital with serious injuries.    Blood  alcohol  procedures  were  carried  out  and  on  analysis  it  was

established that the appellant’s blood contained 108 milligrams of alcohol per 100 millilitres of blood.

[5]      The motor vehicle was inspected and several faults were identified.   The appellant admitted that he knew about some of these faults and knew that the vehicle should not have been on the road.  However, on this occasion he chose to use it.

[6]      The appellant had no recall of anything about the accident – no doubt because of the serious nature of his own injuries, and possibly also due to having consumed a combination of alcohol and drugs prior to driving.

[7]      The appellant has no previous criminal or traffic convictions.   There were some outstanding fines for infringement notices, but these can be safely put to one side.

District Court decision

[8]      The sentencing Judge identified at [20] and [21] that the aggravating factors in the offending were the appellant’s high blood alcohol level, which was nearly four times in excess of the applicable limit, bearing in mind the appellant’s age; that the appellant admitted consuming a cocktail of alcohol, cannabis  and kava prior to driving; that the appellant was in breach of the conditions of his restricted licence in that he was carrying passengers without the required supervision; that the appellant was aware of the car’s lack of registration and lack of warrant of fitness and that due to its faults it should not have been on the road; the appellant’s failure to ensure that the passengers were wearing seatbelts; and the harm and damage caused by the crash.

[9]      The Judge also considered the two pre-sentence reports.  One report, which dealt with the appellant’s background, had canvassed in positive terms his schooling, work history, strong family support and his relationship with his still current girlfriend, the victim who survived the crash.   But the Judge considered that the report had certain negative features.  The Probation Officer had taken the view that the appellant was not particularly remorseful and that he was more focused on the

effects of the accident on himself and his girlfriend, rather than recognising the enormity of what had occurred, including the fact that his actions had taken the life of another young person.  The Judge did, however, accept the view of the appellant’s mother that such comments ought to be seen in context, particularly bearing in mind the appellant’s youth, immaturity and the fact that he was undoubtedly having significant difficulties coping with the enormity of what had happened.

[10]     The sentencing Judge also identified a number of mitigating factors personal to  the  appellant.    Such  factors  included  the  appellant’s  age;  some remorse;  his immediate acceptance of responsibility which included his frankness with authorities including the fact that he made statements admitting consumption of alcohol, cannabis  and  kava.     Also  recognised  was  the  appellant’s  lack  of  previous convictions;  his  payment  of  $6,000  in  reparation;  his  offer  to  participate  in restorative justice, although ultimately not taken up; and his early guilty pleas.

[11]     The sentencing Judge took an initial starting point on the lead offence of causing death while driving with excess blood alcohol, of two years’ and six months’ imprisonment.   This was increased to three years’ six months’ on account of the aggravating features of the offending.   A global reduction of 18 months’ imprisonment was then applied in respect of the mitigating factors.  The Judge did not consider home detention to be appropriate.   Five years’ disqualification from driving was also imposed.  Neither of these latter aspects of the sentence are in issue.

Powers on appeal

[12]     The appellant has a general right of appeal against conviction or sentence pursuant to s 115 of the Summary Proceedings Act 1957.  An appeal is by way of rehearing: see s 119.   The High Court’s powers on appeal are outlined in s 121, which relevantly provides:

121     High Court to hear and determine appeal

…

(3)   In the case of an appeal against sentence, the [High Court] may—

(a)   Confirm the sentence; or

(b)If the sentence (either in whole or in part) is one which the Court imposing it had no jurisdiction to impose, or is one which is clearly excessive or inadequate or inappropriate, or if the [High Court] is satisfied that substantial facts relating to the offence or to the offender’s character or personal history were not before the Court imposing sentence, or that those facts were not substantially as placed before or found by that Court, either—

(i)Quash  the  sentence  and  either  pass  such  other  sentence warranted in law (whether more or less severe) in substitution therefore as the [High Court] thinks ought to have been passed or deal with the offender in any other way that the Court imposing   sentence   could   have   dealt   with   him   on   the conviction;

[13]     There is some debate as to whether the Supreme Court decision in Austin, Nichols & Co Inc v Stichting Lodestar,[1]  dealing with the proper approach for an appellate court to take in general appeals, is applicable to appeals against sentence. Giving the judgment of the Court, Elias CJ stated at [16] that:

Those exercising general rights of appeal are entitled to judgment in accordance with the opinion of the appellate court, even where that opinion is an assessment of fact and degree and entails a value judgment. If the appellate court’s opinion is different from the conclusion of the tribunal appealed from, then the decision under appeal is wrong in the only sense that matters, even if it was a conclusion on which minds might reasonably differ. In such circumstances it is an error for the High Court to defer to the lower Court’s assessment of the acceptability and weight to be accorded to the evidence, rather than forming its own opinion.

[1] Austin, Nichols & Co Inc v Stichting Lodestar [2008] 2 NZLR 141.

[14]     In D v Police,[2]  Heath J considered that there was nothing to indicate that Austin  Nichols  was  intended  to  apply  to  appeals  against  sentence.     I  agree. Therefore, I consider that Austin Nichols has not changed the appellate approach to sentencing.  Section 121(3) of the Summary Proceedings Act allows the High Court to intervene on appeal where a sentence is clearly excessive or inadequate or inappropriate.  The High Court should not, however, intervene where the sentence is within a range that can be justified by accepted sentencing principles.  I propose to adopt this approach.

[2] D v Police TC Tauranga CRI-2008-470-22, 9 September 2008.

[15]     Section 61(1)(b) of the Land Transport Act 1998 makes it an offence for a person in charge of a motor vehicle to cause injury or death to a person when the proportion of alcohol in that person’s blood exceeds 80 milligrams of alcohol per

100 millilitres of blood.

[16]    Section 61 provides:

61   Person in charge of motor vehicle causing injury or death

(1)   A person commits an indictable offence if the person is in charge of a motor vehicle … and causes bodily injury to or the death of a person while—

…

(b)The proportion of alcohol in the blood of the person in charge, as ascertained from an analysis of a blood specimen subsequently taken from that person under section 72 or section 73, exceeds 80 milligrams of alcohol per 100 millilitres of blood.

(2)   A person commits an indictable offence if the person is in charge of a motor vehicle and causes bodily injury to, or the death of, a person—

(a)while under the influence of drink or a drug, or both, to such an extent as to be incapable of having proper control of the vehicle; or

…

(2A)To avoid doubt, subsection (2)(b) does not limit subsection (2)(a).

(3)   If  a  person  is  convicted  of  an  offence  against  subsection  (1)  or subsection (2),—

(a)   The maximum penalty is imprisonment for a term not exceeding 5 years or a fine not exceeding $20,000; and

(b)the court must order the person to be disqualified from holding or obtaining a driver licence for 1 year or more in the case of a first or second  offence  against  this  section  or  section  56(1)  or  (2),  or section 58(1), or section 60(1).

[17]     Section 57(2) of the Land Transport Act makes it an offence if a person younger than 20 is in charge of a motor vehicle to cause injury or death to a person when the proportion of alcohol in that person’s blood exceeds 30 milligrams of alcohol per 100 millilitres of blood.

[18]     Counsel, in helpful written submissions, referred me to a number of cases, each of which I have considered.  Ms Cowdell, on behalf of the appellant, referred to two cases where the starting points were three years’ imprisonment: see Inch v Police[3] and R v Seyb.[4]

[3] Inch v Police HC Christchurch CRI-2008-409-92, 16 July 2008.

[4] R v Seyb HC Timaru CRI-2007-003-416, 11 September 2008.

[19]     Ms Cowdell also relied on two cases where four year starting points were adopted, namely, R v Tanirau[5] and Police v Caudwell.[6]

[5] R v Tanirau [2008] NZCA 9.

[6] Police v Caudwell HC Auckland CRI 2008-404-255 1 December 2008.

[20]    On behalf of the respondent, Mr Woolford referred me to R v Fallowfield[7] where the Court of Appeal confirmed that there was no guideline judgement for offending of this type due to the range of conduct and circumstances that can occur. In Fallowfield the Court stated that the primary focus must be on the culpability of the offender.   It was held that, while references to other cases may be helpful in placing the offending in its proper position in the scale of seriousness of the offending,  the  appropriate  starting  point  turns  very  much  on  the  facts  of  the individual case.

[7] R v Fallowfield [1996] 3 NZLR 657 at 663.

[21]     Mr Woolford also referred to Tevi v Police[8]  where Pankhurst J offered a useful appraisal of the approach to the setting of starting points in cases of this type. Pankhurst J stated at [18]:

[8] Tevi v Police HC Dunedin CRI-2009-412-12, 29 July 2009.

I have considered other cases and in my view it is clearly apparent that the longer terms of imprisonment were imposed I cases where there were one or more  of  a  range  of  aggravating  features.  These  included  a  bad  driving record, disqualified driving, a high alcohol reading and typically extreme and usually deliberate driving fault.

[22]     I have also considered a number of other cases, including the older but still relevant case of R v Skerrett[9], a motor manslaughter case.

[9] R v Skerrett CA236/86, 9 December 1986.

[23]     On  appeal,  the  Court  reviewed  cases  involving  death  by  reckless  or dangerous driving and commented that the sentences imposed in these cases may cover a wide range.   The Court stated at 12:

Because so many factors have to be taken into account the discretion of the sentencing Judge must be recognised.   Nevertheless the public interest requires that the penalties imposed by the Court for bad cases of driving, with the consequences of bodily injury or death, should reflect the concerns that the public have in the preservation of proper standards of driving on our roads.

[24]     The Court then at 12 adopted the aggravating and mitigating factors set out in the English case of R v Boswell.[10].  The aggravating factors included at 12-13:

[10] R v Boswell (1984) 79 Crim App R 277.

1.    Consumption of alcohol or drugs;

2.    Racing, competitive driving on the highway, grossly excessive speed, showing off;

3.    The disregard by the driver of warnings from his passengers;

4.    A persistent and deliberate course of very bad driving;

5.    Other offences committed at the same time and related offences such as driving while disqualified or without ever having had a licence.

6.    Previous convictions involving bad driving or offences involving the consumption of excessive liquor before driving;

7.    The incidence of death as a result of the reckless driving;

8.    Behaviour   at   the   time   of   the   offence,   e.g.   failure   to   stop   or endeavouring, at further risk to the victim, to escape;

9.    Causing death in the course of reckless driving carried out in attempting to avoid detention or apprehension.

[25]     The mitigating factors included:

10.  The fact that the driving is a ‘one off’ piece of driving; a momentary reckless error of judgment;

11.  The existence of a good driving record;

12.  A plea of guilty or genuine remorse;

13.  Where the victim was either a close relative or close friend of the defendant and the consequent emotional shock is likely to be great.

[26]     Ms Cowdell submitted that while serious, the appellant’s driving was not a prolonged  episode  of  bad  driving.    She  also  submitted  that  two  further  facts mitigated the seriousness of the offending, namely, the level of alcohol and the absence of speeding.

[27]     In  terms  of  any  adjustment  for  mitigating  factors  and  the  guilty  plea, Ms Cowdell submitted that the Judge did not give sufficient discount for the various mitigating factors.  In particular, she submitted that insufficient weight was given to the appellant’s youth, the significant reparation payment, his offer to participate in restorative justice processes and the absence of either previous criminal or traffic convictions.

[28]     Ms Cowdell submitted that the Judge did not precisely follow the procedure set out in R v Hessell.[11]   In other words, the Judge did not first give a discount for the relevant mitigating factors and then, as a separate exercise, apply the appropriate discrete  discount  for  the  appellant’s  early pleas  of  guilty as  a  final  step  in  the sentencing process.

[11] R v Hessell [2009] NZCA 450.

[29]     However, she submitted that the composite discount of 18 months, giving an end sentence of two years’ imprisonment from the starting point of three years’ and six months’ imprisonment was inappropriate in this case.

[30]     During the course of the oral argument the discussion focussed on the degree of discount that logically must have been given by the Judge for the mitigating factors.  It seems if one applies the 33 percent discount as the final step on a two year end sentence then the sentence prior to the application of that discount must have been three years’ imprisonment.  This means, of course, that the Judge logically must have given a discount of some six months for the mitigating factors.  Ms Cowdell submitted that at around 15 percent this was too light by way of downward adjustment.

[31]     Mr Woolford submitted that both the initial starting point and the ultimate starting point, bearing in mind the aggravating factors, was within range.  Further, even  when  one  applied  the  discounts  in  a  principled  way,  and  then  allowed  a discount of six months for mitigating factors, the starting point was entirely appropriate.  He submitted, therefore, that the effective end sentence imposed by the Judge was not manifestly excessive.

[32]   In detailed written submissions, Mr Woolford submitted that the Judge accurately summarised the aggravating features of the offending.  He acknowledged that while the appellant’s offending was not a “prolonged episode of bad driving”, this was simply the absence of a possible aggravating feature and did not detract from the cumulative effect of the other aggravating features that were present.  He submitted that these were indicative of relatively high level of culpability.

[33]     Further, Mr Woolford submitted that both the level of the appellant’s blood alcohol and the absence of excessive speed were facts that were appropriately addressed by the Judge.  Mr Woolford noted that the blood alcohol level was nearly four times greater than the legal limit of 30 milligrams of alcohol per 100 millilitres of  blood.    Hence,  it  was  rightly  regarded  as  a  significant  aggravating  factor warranting the uplift granted.  Moreover, alcohol was not the only substance under which the appellant was influenced when he drove.

[34]    As  to  the  absence  of  speeding,  Mr  Woolford  referred  to  the  Judge’s observation that the manner of driving was such that he could not control the vehicle on  a  moderate  bend,  and  that  the  offending  needed  to  be  seen  in  that  light. Therefore, Mr Woolford submitted that on the individual facts of this case, any absence of speeding was properly given little or no weight in mitigation of the seriousness of the offending.   In this regard, I have seen the photographs of the vehicle after the crash and it is plain that it was travelling at speed (even though not in excess of the speed limit) just prior to the crash.

[35]     In terms of discount for mitigating factors, Mr Woolford referred to the need in cases of this nature to apply the approach of the Court of Appeal in R v Taueki.[12]

[12] R v Taueki [2005] 3 NZLR 372.

This required, after the starting point was calculated, to have regard to mitigating factors both of the offending and the offender.   These discounts must be applied before any discount is dealt with regarding a guilty plea.

[36]     Mr Woolford therefore agreed that the Judge did not first give a discount for the relevant mitigating factors and then apply the discrete discount for the early pleas of guilty as required in R v Hessell.[13]    However, he submitted that the composite discount of 18 months, giving an end sentence of two years’ imprisonment, was appropriate in this case.  He submitted that in terms of the discount of six months for the mitigating factors, this was around 15 percent and to allow a higher figure was

[13] R v Hessell [2009] NZCA 450.

not appropriate in this case.

Discussion

[37]     The question for the Court on appeal is whether the sentence imposed by the Judge was manifestly excessive.   In approaching the sentence I have taken into account the purposes and principles of sentencing in the Sentencing Act.  I have also applied the approach in Taueki as urged by Mr Woolford.  I have also had regard to the various cases cited by counsel and the factors referred to in the Court of Appeal decision in Skerrett.

[38]     In terms of the aggravating features referred to in Skerrett, I have already listed those earlier in this judgment: see [8] above.

[39]     The fact is that the appellant drove his vehicle when he knew it had faults and should not have been on the road.  He, amongst other aggravating features, failed to ensure that the passengers were wearing seatbelts and the result of the driving was the death of one passenger and serious injury to the appellant’s girlfriend.

[40]     In  my view,  it  is particularly significant  in  terms  of  culpability that  the appellant had consumed a cocktail of alcohol, cannabis and kava prior to driving.  It is also significant that the appellant was aware of the mechanical problems and other lack of compliance with the vehicle prior to driving.  He knew the vehicle should not have been on the road and yet he persisted in driving it that evening.

[41] It is true that there are a number of mitigating factors. These too have been identified at [10] above.

[42]     I accept that this was a one-off piece of driving, rather than a prolonged period of bad driving.   I also have regard to a limited extent to the youth of the appellant.  I also acknowledge that he accepted responsibility, co-operated with the Police and has a previous good record.

[43]     On the facts of this case, I am satisfied that the initial starting point adopted by the Judge was entirely appropriate.  In terms of the final starting point of three years and six months, again I am satisfied that this is entirely appropriate bearing in mind the serious and significant aggravating features which are present.

[44]     The next step is to consider the discount for mitigating features.  A discount of six months must have been applied (logically) to represent all of the mitigating factors identified.  It represents a reduction of some 15 percent.  I am satisfied on balance that was an appropriate discount.

[45]     With regard to the question of youth, it is relevant that the appellant was a young man.   However, it is important to realise that the offending of this type is often committed by young men and so the Courts’ have to be careful about giving substantial discount merely to reflect the youth of a particular offender.   In this

regard, I have been referred to the case of Police v Evans.[14]  There William Young J

[14] Police v Evans HC Christchurch AP30/01, 19 October 2001.

(as he then was) stated at [35]:

…Sadly,  the  respondent's  age  is  not  a  special  circumstance.  Indeed, offending of this sort is customarily committed by young men. I have to have regard to the totality of these factors. Offending of this sort committed by young men of good character involving the offender endeavouring to

make as good, as fast as he can, the consequences of his offending, are probably the norm and certainly not unusual.

[46]     These events were undoubtedly a tragedy for the appellant and his family. As noted, he is a relatively young man.  However, people who choose to drive drunk and under the influence of controlled drugs need to get the message that they cannot expect sympathy from the Court.  Here, the appellant was prepared to play Russian roulette with a defective car while drunk and drugged putting his own life, and that of two of his passengers, at risk.  Indeed, one of those passengers paid the ultimate price.

[47]     The final step involves consideration of the discount off a period of three years’ imprisonment for the guilty pleas.  A full discount as agreed by counsel of 33 percent is appropriate.  This produces an end sentence of two years’ imprisonment.

[48]     Accordingly,  the  sentence  of  two  years’  imprisonment  imposed  by  the District Court Judge was not manifestly excessive.  The appellant has established no grounds upon which the appeal should be allowed.  To do otherwise would really be an exercise in tinkering, which is not permitted on appeal.

Result

[49]     For the above reasons, the appeal is dismissed.

Stevens J