Millar v R
[2019] NZCA 570
•19 November 2019 at 12 noon
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA226/2018 [2019] NZCA 570 |
| BETWEEN | SCOTT DAVID MILLAR |
| AND | THE QUEEN |
| Hearing: | 12 March 2019 |
Court: | Cooper, Gilbert and Williams JJ |
Counsel: | F E Guy Kidd QC for Appellant |
Judgment: | 19 November 2019 at 12 noon |
JUDGMENT OF THE COURT
A The appeal is allowed.
BThe sentence of three years and 10 months is quashed, and a sentence of three years and three months is substituted on the lead charge of manslaughter. The concurrent sentence of two years in relation to reckless driving causing injury remains.
____________________________________________________________________
REASONS OF THE COURT
(Given by Williams J)
This is an appeal against sentence for manslaughter and reckless driving causing injury.[1] The appellant, Mr Millar, pleaded guilty to both charges and was sentenced to three years and 10 months’ imprisonment.[2]
Factual background
[1]The appellant initially intended to appeal both conviction and sentence, but abandoned the conviction appeal before the hearing.
[2]R v Millar [2018] NZHC 625.
On 10 August 2017, Mr Millar, then aged 19, was at an after-work barbecue. There he consumed a large quantity of alcohol. Later, at about 11.45 pm, he offered two people a lift home: a Mr Crawley, whom he had met recently, and a Mr Sharma, who was his good friend. Both lived in the area. They were also 19 years old.
Mr Millar did not drive his passengers straight home; instead he went on what Nation J called an “unnecessary joy-ride”.[3] Earlier in the journey, Mr Millar approached a T-intersection at speed. He lost control of the back end of the vehicle, slid sideways through the intersection, hit the opposing curb, and ran onto the footpath. This damaged a wheel rim, but did not puncture the tyre. A witness estimated his entry speed to the intersection at between 80 and 120 kilometres per hour. It was a 50 kilometre per hour area.
[3]At [10].
Mr Millar then sped off again at over 100 kilometres per hour. Both Mr Crawley and Mr Sharma asked Mr Millar to slow down, but he did not. According to Mr Crawley, Mr Millar went on to reach a speed of at least 180 kilometres per hour down an open road. He then performed “drifts” and “doughnuts” at various places. His last manoeuvre was to attempt another drift on a winding section of road. This caused the vehicle to slide off the road and roll down a steep bank. It stopped when it collided with a large tree.
The collision killed Mr Sharma almost instantly. Mr Millar received severe head injuries. Mr Crawley was also injured, but was able to get out of the vehicle to get help.
Around four hours after the crash, Mr Millar was found to have 142 milligrams of alcohol per 100 millilitres of blood.
Mr Millar was charged with and later pleaded guilty to manslaughter and reckless driving causing injury.
The High Court decision
In the High Court, both the Crown and Mr Millar’s counsel submitted a starting point in the range of six to six and a half years was appropriate.[4]
[4]At [23].
The Judge considered the upper limit could have been higher, noting that in Gacitua v R,[5] this Court indicated a starting point of six to six and a half years for manslaughter was appropriate where alcohol was an aggravating factor, and one death occurred.[6] Where there were two deaths, a range of eight to eight and a half years was adopted.[7] In this case, only one death occurred but Mr Crawley was also injured. The Judge also considered there were additional aggravating features:[8]
(a)Mr Millar decided to go on the joyride unilaterally when Mr Crawley and Mr Sharma expected him to drive them home;
(b)Mr Millar drove at grossly excessive speed and made extremely dangerous and deliberate manoeuvres with the vehicle; and
(c)Mr Millar decided to continue driving dangerously after hitting the curb.
[5]Gacitua v R [2013] NZCA 234.
[6]R v Millar, above n 2, at [23].
[7]At [23], citing Gacitua v R, above n 5, at [44].
[8]At [22].
Nevertheless, the Judge did not depart from the submitted range.[9] He adopted a starting point of six and a half years.[10]
[9]At [23]–[24].
[10]At [26].
Turning to Mr Millar’s personal circumstances, the Judge was invited to treat a previous driving charge as aggravating. That charge concerned another incident where Mr Millar’s car left the road and rolled down a bank. His blood alcohol level taken around two hours after the crash was 22 milligrams per litre. Mr Millar was hospitalised with bruising to his brain. The Judge declined to treat this event as an aggravating factor because Mr Millar had received diversion on that occasion.[11] However, he also declined to give Mr Millar any credit for having no previous convictions because he considered Mr Millar could not be dealt with as if this was his first driving offence.[12]
[11]At [27].
[12]At [27] and [29].
The Judge then considered several mitigating factors which justified a 25 per cent discount overall.[13] These factors were that Mr Millar:
(a)was well-regarded by his family, friends, secondary school and employer;[14]
(b)was young at 19 years old;[15]
(c)suffered serious head injuries from the same crash;[16]
(d)was remorseful and willing to attend restorative justice with Mr Sharma’s family;[17] and
(e)together with his family had offered to pay Mr Sharma’s family $20,000 in reparation.[18]
[13]At [43].
[14]At [28].
[15]At [32].
[16]At [37].
[17]At [38]–[39].
[18]At [43].
This reduced the starting point of six years and six months to four years and 10 months.[19]
[19]At [43].
Finally, the Judge considered that Mr Millar’s guilty pleas entitled him to a further discount of 20 per cent.[20] This was because, although his pleas were entered early and he had no memory of the events leading up to the crash, the Judge considered it relevant that the evidence against Mr Millar was “overwhelming”.[21]
[20]At [44].
[21]At [44].
This led to an end sentence of three years and 10 months, comprising concurrent sentences of three years and 10 months for manslaughter and two years for reckless driving causing injury.[22] Mr Millar was also disqualified from driving for five years.[23]
Submissions
Appellant’s submissions
[22]At [47]–[48].
[23]At [49].
Counsel for Mr Millar submitted that the end sentence should have been no more than three years and three months.
First, counsel submitted that the Judge gave insufficient credit for the combination of mitigating factors.[24] These justified a 32 per cent discount. Counsel submitted the discount should have been made up of the following:
(a)previous good character: eight per cent (Mr Millar’s previous diversion should not have been treated as if it were a conviction);
(b)youth: 12 per cent;[25]
(c)injuries, including ongoing verbal memory deficits and fatigue: at least three per cent;
(d)remorse and reparation: at least eight per cent;[26] and
(e)death of a close friend (a factor which the Judge did not appear to consider) to make up the shortfall to 32 per cent.
[24]We note that the 25% discount that Nation J ultimately gave was as sought by counsel for Mr Millar at sentencing (not counsel on appeal). On appeal, however, the respondent did not take the point. We are therefore prepared to approach the matter unconstrained by what was submitted on behalf of Mr Millar at sentencing.
[25]Citing Richards v R [2017] NZCA 232.
[26]Citing Rowles v R [2016] NZCA 208 at [18].
Secondly, counsel submitted that the Judge gave insufficient credit for the guilty pleas, which should have led to a further 25 per cent discount. A strong prosecution case, which seemed to be the Judge’s reason for giving only 20 per cent, did not necessitate a lower discount.[27]
[27]Rowles v R, above n 26, at [23].
Finally, counsel submitted that imprisonment would be more onerous on Mr Millar because he would be serving his sentence in Invercargill. This was some 288 kilometres away from his parents, so there will be reduced opportunities for his friends and family to visit him. Counsel submitted that this justified a further discount of one month.
Crown’s submissions
The Crown submitted that the above approach is misguided because the focus should always be on the end sentence. Here, the starting point could have been higher. So, any further discounts in mitigation could have been offset by a higher starting point. It submitted that a starting point of seven years was available here.[28]
[28]Citing R v Mika [2013] NZHC 2357; and Whiu v R [2007] NZCA 591.
In any case, the Crown submitted that an overall discount of 25 per cent was appropriate for Mr Millar’s personal circumstances. The Judge was entitled to consider Mr Millar’s previous driving behaviour despite his diversion; there is no presumption in favour of discount for youth; the Judge did consider the fact that the deceased was a close friend; and Mr Millar’s alleged health problems were overstated.
The Crown accepted, however, that a discount of eight to 10 per cent was available for Mr Millar’s remorse and reparation.
The Crown also submitted that 20 per cent was an appropriate guilty plea discount, as consideration of the strength of the prosecution’s case is consistent with Hessell v R.[29]
[29]Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.
Finally, the Crown submitted that the reduction in opportunities for family visits due to his location is a post-sentence development and not a matter for the courts.
Analysis
Youth discount — general and specific deterrence
Discount for youth in driving cases (and especially drink driving cases) has raised difficult issues. Youth has always been a mitigating factor in sentencing both because of immaturity and a traditionally greater focus on rehabilitation in the case of younger offenders. The decision of this Court in Churchward v R cited significant scientific support for taking a relatively generous approach to youth discounts.[30] But as judges have said in many cases, some of them post‑Churchward, young men are disproportionately responsible for driving that causes serious injury and death.[31] Denunciation and deterrence are less easily set to one side in such cases despite the science. Indeed, even in Churchward, this Court accepted that for young offenders, impulsivity and propensity to risk-taking may well heighten the need for denunciation and deterrence in some cases.[32]
[30]Churchward v R [2011] NZCA 531.
[31]See, for example, Richards v R, above n 25, at [40]; and Ormsby v R [2013] NZCA 578 at [8].
[32]Churchward v R, above n 30, at [84].
As Churchward discussed at length, the neurological science in relation to the developing adolescent brain suggests that young people do not have a fully developed system for balancing risk and reward. They have diminished capacity to control impulsive behaviour, are less future orientated, focus on the here and now rather than consequence and so tend to discount risks and calculate rewards differently from adults.[33] As this Court noted, this is not because they do not understand the risks. Rather, it is that they attach different values to them.[34]
[33]At [53].
[34]At [53].
This means that the general deterrent effect of long jail sentences on young people is more limited than would be the case if the target audience was an adult population. General deterrence depends on the audience responding rationally — that is, in a mature fashion — to risk versus reward signals in sentencing law. While the prospect of a prison sentence will undoubtedly have a deterrent effect even on adolescents, the relative term of the prison sentence will logically have much less efficacy where the decision to offend is impulsive, peer-driven and based on an overvaluation of immediate reward.
As to specific deterrence, that too is problematic in the context of young offenders. Once again, this Court in Churchward made a number of relevant points. Young adults have a greater vulnerability to external coercion.[35] When in prison, they experience high levels of depression, anxiety, suicidal ideation, self‑injurious behaviour, and victimisation from other inmates.[36] There is therefore a good argument that the specific deterrent effect of imprisonment arises from the fact of imprisonment and not necessarily the relative length of sentence. Indeed, overly long sentences will have a counterproductive, even destructive effect on the offender.[37] In short, a year in prison for a young person is a significantly more serious punishment than a year in prison for a mature adult.
[35]At [50].
[36]At [85].
[37]At [77].
In this case, the Judge granted a 25 per cent discount for a group of factors including youth. Other factors were previous good character, the injuries Mr Millar suffered, remorse and reparations. It is difficult to know, therefore, what specific value was attributed to Mr Millar’s youth. Reference to other cases involving young offenders have provided limited assistance because most treat youth as a contributing rather than separate factor.[38]
[38]For example, in Gacitua v R, above n 5 a 20 per cent discount was given for youth, remorse and no previous convictions; in Ormsby v R, above n 31, 15 per cent was given for youth, remorse and injury (although the sentencing Judge appeared to have attributed no value to the youth element); and in R v Cossey [2019] NZCA 104, 33 per cent was given for youth, remorse, no previous convictions and prior good character.
In our view, a 15 per cent discount was justified in this case for youth alone. That is not to say the offending was not a very serious example of its kind. We agree with the Judge’s assessment that the offending was particularly serious. Rather, the point is that seriousness is provided for in the starting point. It should not then be double-counted when considering the value of youth as a mitigating factor. The two assessments are entirely separate. Nor do we ignore the strong general deterrence signal Parliament gave when it doubled the maximum sentence for dangerous driving causing death. The courts have responded by increasing sentences for this type of offending. But the signal was about the relative seriousness of the offence category, not the availability of youth discounts when sentencing young people for it.
Logically, to reduce youth discounts in any particular case would require a proper basis at one or other of two levels: either that general deterrence for the offence category requires a departure from the starting proposition that longer sentences do not necessarily affect the risk versus reward assessment made by young offenders; or that the circumstances of the offender mean specific deterrence can only be achieved by a longer sentence than would normally be expected to deter a young person. Neither of these factors is present in this case. The offending was impulsive and the offender, who is both young and suffering from brain trauma, will clearly find prison a more significant burden than an adult without these vulnerabilities.
Remorse and reparation
The Crown accepts that an eight to 10 per cent discount is appropriate for remorse and reparation.
Previous driving charge
We agree with the Crown and the Judge that it would not be appropriate to treat the lack of a conviction as a mitigating factor when, in truth, Mr Millar admitted the prior offending and was able to convince the sentencing Judge in that case to grant him diversion. While we agree that it would be wrong to treat earlier similar behaviour as aggravating given the lack of a conviction, it does not at all follow that a no previous conviction discount is in order.
Remaining factors
The additional factors in this case were previous good character, injury and the fact that Mr Millar caused the death of a close friend. The Crown accepts that the last‑mentioned factor is appropriately mitigatory. Having considered the medical report in relation to Mr Millar’s recovery, and his own evidence, it may be concluded that he has recovered well but there remain lingering effects. As to good character, the evidence is Mr Millar is well regarded generally and supported by his family and employer. Overall a discount of between 5 and 10 per cent would be appropriate for the remaining factors.
Guilty pleas
It seems that the primary reason for refusing to allow the full 25 per cent discount for Mr Millar’s guilty pleas was that the evidence against him was overwhelming.[39]
[39]See R v Millar, above n 2, at [44].
The Supreme Court in Hessell v R did consider that the strength of the prosecution case will be relevant to the discount for guilty plea. It would be potentially unfair, the Court considered, to reward those who had little choice but to plead guilty irrespective of any personal acceptance of responsibility.[40] But it would be wrong to treat those comments of the Court as standing for the proposition that the stronger the prosecution case, the lower the guilty plea discount. The focus of the Court in this aspect of Hessell was on the genuineness of the offender’s acceptance of responsibility. That is the inquiry the sentencing court must make before deciding, all other factors being equal, not to apply a maximum discount for early guilty plea where the prosecution case is overwhelming.
[40]Hessell v R, above n 29, at [60].
On reflection, we think it evident that Mr Millar in this case did accept responsibility. He had no recollection of the accident. This was not convenient amnesia. Brain trauma amnesia is very common in motor vehicle accidents. Here, in response to the recall of Mr Crawley (the surviving passenger), Mr Millar accepted that he drove recklessly in the manner described by the Judge in his sentencing notes. He chose not to fall back on his lack of any recall of the events leading to the accident as a way of disassociating himself from his actions.
There is a further factor. One of the traits of youth is reluctance to accept responsibility for wrongdoing. In the sentencing process young people should be encouraged to accept responsibility and be rewarded when they do.
We consider that in the circumstances of this case the appropriate discount for guilty plea was 25 per cent.
Conclusions
In light of the foregoing, we consider that the discounts ought to be as follows:
(a)youth discount: 15 per cent (12 months);
(b)remorse and reparation discount: 10 per cent (eight months);
(c)discount for other factors: eight per cent (six months).
The total discount before guilty plea is 26 months, leaving 52 months.
The discount for guilty plea is 25 per cent, which amounts to a further discount of 13 months. The final sentence is therefore 39 months, or three years and three months.
Result
The appeal is allowed.
The sentence of three years and 10 months is quashed, and a sentence of three years and three months is substituted on the lead charge of manslaughter. The concurrent sentence of two years in relation to reckless driving causing injury remains.
Solicitors:
Crown Law Office, Wellington for Respondent
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