Mundy v Police - [2020] NZHC 240

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2019-409-000188

[2020] NZHC 240

BETWEEN
MICHAEL RAY MUNDY

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 20 February 2020

Appearances:

L L Heah for Appellant

SRDD Bicknell Young for Respondent

Judgment:

21 February 2020

JUDGMENT OF GENDALL J

This judgment was delivered by me on 21 February 2020 at 2:30 p.m. pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

MUNDY v NEW ZEALAND POLICE [2020] NZHC 240 [21 February 2020]

Introduction

[1] The appellant, Mr Mundy, pleaded guilty to charges of driving a motor vehicle in a manner, which having regard to all the circumstances of the case, was dangerous to public and thereby caused the death of Hyunseo Lee; in the same driving manner caused injury to Corey Thomas, Heegyoung Kim and Youhwa Jo. In addition, the appellant pleaded guilty to charges that, not being the holder of a firearms licence, he was in possession of a firearm, namely a Ruger rifle, and possession in a public place of an offensive weapon, namely a knife. He was sentenced by Judge Callaghan in the District Court to two years and five months’ imprisonment and disqualified from driving for three years and six months. He appeals this sentence. The grounds for this appeal are that it is manifestly excessive in all the circumstances because it fails to sufficiently take into account the contribution of the driver of the other vehicle and it is inconsistent with comparable cases.

Facts

[2] On 31 October 2017 at around 6.25 p.m. the appellant drove a motor vehicle on Linwood Avenue in Christchurch, turning left into Worcester Street. Worcester Street is a residential street with one lane travelling east and one lane travelling west. Cars can park on both sides of the Street. It has a 50 kilometre per hour speed limit and multiple streets that intersect with it. As the appellant turned on to Worcester Street he started accelerating.

[3] A Nissan vehicle carrying three occupants travelled south on Tancred Street. At the intersection with Worcester Street the Nissan failed to stop and drove through the stop sign controlled intersection. The Nissan was driving somewhere between 39 and 50 kilometres an hour as it entered the intersection.

[4] The appellant had accelerated heavily as he drove down Worcester Street reaching a speed estimated between 82 and 99 kilometres per hour as he reached the intersection with Tancred Street. The appellant’s vehicle struck the Nissan in the area of the front passenger door. Witnesses state they observed the appellant’s vehicle accelerating and gaining speed prior to the crash. The front seat passenger of the Nissan, Ms Lee, died instantly. The other two occupants were injured. Ms Kim

sustained fractured ribs, a fractured toe and bruising to her body. Ms Jo sustained several injuries including a traumatic brain injury. She requires constant care and rehabilitation. A passenger in the appellant’s vehicle, Mr Thomas, sustained three cracks in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] NZHC 240
Decision Date: 21 February 2020

CaseChat Overview and Summary

In Mundy v Police, the High Court considered an appeal against sentence. The appellant, Mr Mundy, had been convicted of dangerous driving causing death and injury, as well as possession of a firearm and an offensive weapon. He was sentenced to two years and five months’ imprisonment and disqualified from driving for three years and six months. The appellant argued that the sentence was manifestly excessive as it did not sufficiently consider the contribution of the other driver to the collision, and was inconsistent with comparable cases.

The Court considered the legal principles applicable to appeals against sentence and the submissions made by both parties. The appellant argued that the starting point of three years and three months was too high, given the other driver's failure to stop at a stop sign and their relatively high speed. The Court considered that the other driver's contribution could be recognised by reducing the starting point by six months, to three years’ imprisonment. The Court also found that the uplifts for the severity of the injuries and the appellant's previous convictions were justified.

The Court concluded that the sentence imposed was not manifestly excessive and dismissed the appeal. The Court noted that the maximum sentence for dangerous or reckless driving causing death had been increased from five to ten years, reflecting the intention of Parliament to deter and penalise such conduct. The Court found that the end sentence of two years and five months’ imprisonment was not manifestly excessive and did not require intervention.

This case highlights the importance of considering all relevant factors when setting a starting point for a sentence, including the contribution of other drivers to a collision. It also demonstrates the Court's reluctance to intervene in a sentence unless it is manifestly excessive and not justified by the relevant sentencing principles.

Orders