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 his pelvis, a fractured leg, a shattered hip bone and crushed sciatic nerve.

[5]    A Ruger rifle was located by police in the boot of the appellant’s vehicle. The appellant does not hold a firearms licence.

[6]    Nearly 18 months later, on 31 March 2019, the appellant was involved in a verbal altercation at BP Moorehouse Service Station in Christchurch. Mr Mundy produced a knife at customer. He then left the scene. When located by police a short time later, a search revealed a large wooden-handled hunting knife in his driver’s door pocket.

District Court decision

[7]    In sentencing the appellant, Judge Callaghan considered the key aggravating factors of the driving offending to be that Ms Lee’s death resulted from the dangerous driving, the conscious acceleration of the vehicle prior to the intersection and the grossly excessive speed involved. Relevant mitigating factors were considered by the Judge to be the appellant’s remorse, his guilty plea and the contributing actions to the collision of the driver of the Nissan.

[8]    Judge Callaghan adopted a starting point of three years’ imprisonment which he uplifted by three months in recognition of the injuries sustained by the occupants of the vehicles; one month in recognition of the possession of an offensive weapon; and three months to recognise the appellant’s previous dangerous driving convictions. No uplift was applied in respect of the possession of a firearm charge. From that three years and seven months’ starting point, Judge Callaghan applied a 10 per cent discount in recognition of the appellant’s remorse, and a full discount for his guilty plea. This brought the end sentence to two years and five months’ imprisonment.

Principles on appeal

[9]    Appeals against sentence are allowed as of right by s 244 of the Criminal Procedure Act 2011, and must be determined in accordance with s 250 of that Act. An appeal against sentence may only be allowed by this Court if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.1 As the Court of Appeal mentioned in Tutakangahau v R quoting the lower court’s decision, a “court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles”.2 It is only appropriate for this Court to intervene and substitute its own views if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.3

Submissions

Appellant’s submissions

[10]   In bringing this appeal, the appellant submits that the overall sentence was manifestly excessive as was the final starting point adopted of three years, three months’ imprisonment. Counsel suggest two ways in which the Judge erred in reaching that sentence. First, the Judge failed to fairly and sufficiently consider the contribution of the other driver to the collision. This failure to stop at the stop sign controlled intersection, and the Nissan driver’s “relatively high speed” whilst proceeding through the intersection contributed to the unfortunate outcome. Secondly, counsel submits the sentence starting point was inconsistent with comparable cases.

[11]   Ms Heah notes there is no tariff case for a charge of dangerous driving causing death, referring to Gacitua v R. In that decision, the Court of Appeal stated that sentencing in such cases is highly fact-specific.4 The practice has been to measure culpability by reference to aggravating and mitigating factors.5

1      Criminal Procedure Act 2011, ss 250(2) and 250(3).

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

3      Ripia v R [2011] NZCA 101 at [15].

4      Gacitua v R [2013] NZCA 234 at [24]. Citing R v Cooksley [2003] 3 All ER 40.

5      See R v Skerrett CA236/86, 9 December 1986; and R v Boswell [1984] 3 All ER 353.

[12]   Counsel canvas comparable cases where the charges were dangerous driving causing death and dangerous driving causing injury. It is suggested these cases illustrate that in circumstances where there is a short period of bad driving, without additional poor driving conduct, the sentence starting point is within the three-year range. This can be contrasted to cases where there is sustained bad driving, in addition to excessive speed where the starting point is between four to five years.

[13]The following cases were specifically considered:

(a)In R v Teece the aggravating factors were excessive speed, overtaking dangerously, crossing the centre line and poor driving record. There was a “sustained piece of bad driving.” The starting sentence was five years imprisonment.6

(b)In Gacitua v R the aggravating factors were excessive speed, sustained high speed competitive driving, “aggressive driving” involving crossing double yellow lines, dangerous overtaking and failing to give way to the other vehicles.7 The starting sentence was five years imprisonment.

(c)In R v Bahadori-Esfahani the aggravating factors were driving at excessive speed in the city centre, attempting to avoid apprehension by police, failing to stop at red lights and “prolonged, persistent and deliberate… bad driving.”8 The starting sentence was four years and six months imprisonment.

(d)In Ko v Police a fatal collision occurred when the appellant attempted to pass a truck and crossed double yellow lines. The starting sentence was three years imprisonment.9

6      R v Teece [2012] DCR 450 at [13] and [21].

7      Gacitua v R, above n 4.

8      R v Bahadori-Esfahani [2019] NZHC 1532 at [19].

9      Ko v Police [2012] NZHC 3312.

[14]   Counsel note that none of these cases involved conduct by another driver that contributed to the collision and outcome.

[15]   Finally, reference was made to R v Baxter.10 In that case, both vehicles involved in the collision were being driven at excessive speeds. The Judge set an initial starting point of three years and six months imprisonment. While it was difficult in the circumstances to determine the extent of the other driver’s contribution to the collision the Judge considered it appropriate to “allow some recognition” and reduced the starting sentence by three months.

[16]   Section 9(2)(c) of the Sentencing Act 2002 identifies the conduct of the other driver as a mitigating factor. In the present case, the other driver failed to stop at the stop sign controlled intersection and entered the intersection at a “relatively high speed” of somewhere around 39 to 50 kilometres per hour. Counsel contend the appellant’s culpability here ought to be significantly reduced to reflect the other driver’s contribution to the collision and the severity of the outcome. The appellant had the right of way. If the other driver had stopped, there would have been no collision.

[17]   Ms Heah suggested that although the Judge purported to consider the other driver’s contribution to the collision and fatal outcome he did not specify the extent to which the starting sentence was being reduced to reflect that contribution. Furthermore, in uplifting the sentence by three months for the severity of the injuries caused by the collision the Judge did not acknowledge whether the other driver’s contribution to the injuries was considered.

[18]   Finally, Ms Heah maintained the three months’ imprisonment uplift for the appellant’s two previous convictions for dangerous driving was excessive, given that the maximum penalty for dangerous driving, she said, was only three months’ imprisonment. Counsel submitted the appropriate uplift should have been two months’ imprisonment.

10     R v Baxter [2017] NZDC 24723

[19]   Overall, Ms Heah’s submission was that an initial starting point of no more than two years and six months’ imprisonment should have been adopted. This would reflect the brief period of dangerous driving, excessive speed which she said was confined only to the intersection, the aggravating factor that the driving was in a residential area, the gravity of the outcome and the contribution of the other driver to the collision. The appellant’s position is that this is consistent with the cases discussed, in particular Ko v Police.11

[20]   Ms Heah went on to submit that in applying the 10 per cent discount for genuine remorse and 25 per cent discount for guilty pleas the sentence would fall within the home detention range. The appropriate sentence, she said, should have been less than two years’ imprisonment, and the end sentence should have been one of home detention.

Respondent’s submissions

[21]   The respondent submits the end sentence here was not manifestly excessive. Ms Bicknell suggests the Judge appropriately took the contributing conduct of the other driver into account when setting the sentence starting point. The Nissan driver’s conduct mitigated, to an extent, some of the aggravating factors of grossly excessive speed, the serious consequences of the crash and the appellant’s conscious acceleration. A starting sentence of three years was within range.

[22]   Counsel notes that while there is no guideline decision for dangerous driving causing death the maximum sentence had been increased from five to ten years. This, she said, created a starting point range of between two to five years.

[23]The respondent considers the following cases to be comparable:

(a)Xiao v New Zealand Police in which the driver misjudged a right-hand bend and veered out of the lane hitting a motorcyclist as she attempted to correct her error. The sentence starting point was three and a half years.12

11 Ko v Police, above n 9.

12 Xiao v Police [2016] NZHC 1947.

(b)Cao v New Zealand Police in which a driver travelled 450m on the wrong side of the road resulting in a collision that killed a five-year-old girl. The sentence starting point was three and a half years.13

(c)Scott v R in which the driver was recovering from major abdominal surgery and was advised not to drive. She crossed the centre line and collided with a courier van resulting in the other driver’s death. The sentence starting point was four years.14

(d)Ko v Police, as previously discussed at [13] above.15

[24]   Counsel suggest that it is implicit in the Judge’s decision that but for the other driver’s contribution to the accident a higher starting point would have been adopted. Counsel suggest the starting point may have been as high as four years.

[25]   It is acknowledged that s 9(2)(c) of the Sentencing Act may mitigate the overall culpability of the offender, in certain circumstances. However, this highly fact specific assessment takes into account the nature, duration and gravity of the contributing conduct. The respondent notes the appellant is someone with previous dangerous driving convictions, his behaviour was deliberate, his driving was not due to “gross incompetence”, and he intentionally endangered other road users. Limited weight, it is said, ought to be placed generally here on the conduct of the other driver.

[26]   Counsel submit the issue for the Court is how significant the dangerous actions of the appellant were in the fatal outcome. If he had been driving within the speed limit, the collision would have been less serious or not have occurred at all.

[27]   In the alternative, if the Court is satisfied a lower starting point is justified, Ms Bicknell submits home detention would be inappropriate, for the following reasons:

(a)The appellants propensity for dangerous driving,

13 Cao v Police [2015] NZHC 1793.

14 Scott v R [2014] NZHC 1598.

15 Ko v Police, above n 9.

(b)The consequences of this incident are serious and warrant imprisonment, and

(c)The appellant entered a verbal altercation and produced a knife a year after the collision. This demonstrates that he is still unable to control himself.

Analysis

[28]   A primary issue raised in this appeal by the appellant is whether the Judge placed sufficient weight on the conduct of the other driver as a mitigating factor when fixing the initial starting point of the sentence at three years’ imprisonment.

[29]   Aggravating factors of the offending are the dangerous driving, the grossly excessive speed, the conscious acceleration, the death of Ms Lee and the injuries to the other occupants. The mitigating factor is the contribution of the other driver. It is this factor that sets the offending apart from a number of the comparable cases reviewed.

[30]   The Judge did state that the conduct of the other driver was considered in fixing the starting point.16 In doing so, he acknowledged that had the other driver obeyed the road rules then the collision would not have occurred.17 He distinguishes, however, between the conduct of the other driver, being “below the standard required” when driving a motor vehicle, and the appellant’s driving in the circumstances as being “definitely dangerous”.18

[31]   There is no doubt that the appellant’s driving was highly culpable. I accept the appellant’s submission that it was a brief period of bad driving. There was no “aggression”. However, the acceleration was deliberate. The appellant chose to engage in the poor driving with full awareness of the speed limit and the residential setting.

16     Police v Mundy [2019] NZDC 24502 at [22].

17 At [19].

18 At [19].

[32]   There is an absence of comparable cases where the victim made a material contribution to the collision. However, in R v Baxter Judge Menzies reduced the starting sentence by three months to reflect the contribution of the victim in that case who was also engaged in dangerous driving.19

[33]   In Ko v Police which is referred to by both counsel, the aggravating factors included overtaking on double yellow lines, a “degree of impatience in relation to the truck” that the defendant was overtaking, and this caused a collision that resulted in one death and four serious injuries to occupants of the vehicles.20 The starting point adopted was three years’ imprisonment.

[34]   Given all the authorities outlined, I consider Judge Callaghan would have been justified in setting a starting sentence point in the range of three years and six months’ imprisonment, in the absence of contributing conduct by the other driver. This would adequately reflect the aggravating factors present here.

[35]   It is appropriate, in my view, to recognise the conduct of the other driver as a mitigating factor here by attributing a reduction of six months in the starting point, as part of that overall calculation. This would bring the starting point to three years’ imprisonment.

[36]   The appellant challenges the uplift of three months for the severity of the injuries sustained by the victims on the basis that the other driver also contributed. Ms Lee died. Ms Jo’s injuries require her to receive constant care. Ms Kim continues to suffer nightmares about the crash. Mr Thomas continues to suffer pain; his employment and relationships have been impacted. I consider the severity of the injuries here warrant a three-month uplift.

[37]   In my view, the other driver’s contribution to the injuries of the victims does not require a discrete reduction as a mitigating factor. I consider this can be adequately recognised within a setting of the starting sentence point at three years’ imprisonment.

19     R v Baxter [2017] NZDC 24723 at [23].

20     Ko v Police, above n 9.

[38]   The appellant also challenges the uplift of three months for his previous dangerous driving convictions, stating this uplift should be reduced to two months. The appellants conduct is such that I do not accept a reduced two-month uplift is warranted here.

[39]   A starting sentence of three years that is uplifted by seven months in recognition of the previous convictions, injuries to the victims, and possession of a weapon will result in a starting point of three years and seven months. This brings the end starting point to three years and seven months’ imprisonment.

[40]   Personal mitigating factors of remorse (10 per cent) and guilty plea (25 per cent) will reduce the end sentence to one of two years and five months’ imprisonment. This is the same sentence as the one reached by Judge Callaghan.

[41]   And I note that in 2011 the maximum sentence for dangerous or reckless driving causing death was increased from five to 10 years’ imprisonment.21 This reflects the intention of Parliament to deter and penalise dangerous or reckless driving.

[42]   At one level it might be said the Judge could have better clarified his sentencing methodology. However, as I see it, the end sentence he reached was not manifestly excessive.

[43]   The issue of home detention is not required to be addressed as the end sentence remains above two years’ imprisonment.

Conclusion

[44]No error in the sentence imposed occurred here.

[45]   The end sentence of two years and five months’ imprisonment was not manifestly excessive.

21     See Gacitua v R, above n 4, at [10].

[46]This appeal is dismissed.

...................................................

Gendall J

Solicitors:

Raymond Donnelly & Co, Christchurch

Copy to:
Lee Lee Heah, Barrister, Christchurch