Paparoa v Police
[2023] NZHC 2978
•25 October 2023
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2023-404-444
[2023] NZHC 2978
BETWEEN EZEKIEL NIKORA PAPAROA
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 24 October 2023 Appearances:
P Pati for Appellant
A Al-Janabi and A Fry for Respondent
Judgment:
25 October 2023
JUDGMENT OF LANG J
[on appeal against sentence]
This judgment was delivered by Justice Lang On 25 October 2023 at 10.00 am
Registrar/Deputy Registrar Date:…………………………
Solicitors/counsel:
P Pati, Auckland
Kayes Fletcher Walker, Auckland
PAPAROA v NEW ZEALAND POLICE [2023] NZHC 2978 [25 October 2023]
[1] Mr Paparoa pleaded guilty in the District Court to one charge of causing death by being in charge of a motor vehicle whilst the proportion in his blood exceeded the statutory maximum. He also pleaded guilty to a charge of reckless driving and three charges of causing bodily injury by being in charge of a motor vehicle having that level of alcohol in his blood.
[2] On 26 July 2023, Judge J C Moses sentenced Mr Paparoa to two years four months imprisonment on the charge of causing death whilst driving with excess blood alcohol.1 He imposed concurrent sentences of imprisonment on the remaining charges.
[3] Mr Paparoa appeals against sentence on the basis that the Judge failed to give Mr Paparoa adequate discounts to reflect his remorse. He contends this resulted in an end sentence that was manifestly excessive.
The charges
[4] The charges were laid as a result of an incident that occurred in the early hours of 13 August 2022. On the afternoon and evening of the previous day Mr Paparoa had been drinking and socialising with the three victims. Two of them were sisters and the third was their cousin. One of the victims was his partner.
[5] Mr Paparoa and the three victims went to a beach in a rural area at about 10 pm and remained there for approximately two and a half hours drinking alcohol and listening to music. Mr Paparoa and two of the victims were also inhaling nitrous oxide during that period. Consumption of nitrous oxide can result in dizziness, disorientation, loss of balance, impaired memory and impaired cognition.
[6] At around 12.45 am, Mr Paparoa began driving the victims back to town. Neither of the passengers in the rear seat of the vehicle was wearing a seat belt. Mr Paparoa was driving his vehicle in a dangerous manner, cutting corners and travelling onto the wrong side of the road. Some of this activity was captured by one of the occupants of the vehicle on her cellphone. At one stage, Mr Paparoa’s vehicle
1 R v Paparoa [2023] NZDC 15509.
was travelling at more than 100 kilometres per hour whilst negotiating a blind corner on the wrong side of the road. He also drove for approximately 500 metres at just under 100 kilometres per hour in a zone that had a posted limit of 50 kilometres per hour.
[7] At around 12.54 am, the vehicle failed to negotiate a slight right-hand bend. At this point Mr Paparoa lost control of the vehicle, and it crossed the centre line and left the road. The vehicle slid and travelled along a roadside ditch before striking a concrete power pole. One of the occupants was trapped partially inside the vehicle and died at the scene. The other two occupants were able to extract themselves from the vehicle unassisted. Once he was out of the vehicle Mr Paparoa took cans of alcohol from the vehicle and threw them into a nearby paddock.
[8] Mr Paparoa and the surviving victims were taken to hospital for medical attention. A blood sample taken from him at the hospital contained a proportion of 93 milligrams of alcohol per 100 millilitres of blood. The sample was also found to contain THC, which is the active ingredient of the Class C controlled drug cannabis.
[9] Mr Paparoa was 20 years of age at the time of the offending and 21 years of age when he was sentenced.
The sentence
[10] The Judge noted that the offending had several aggravating features. These included the level of alcohol in Mr Paparoa’s blood at the time he was driving, coupled with the presence of THC. Mr Paparoa had told the writer of a cultural report tendered at sentencing that he had consumed cannabis before meeting up with the victims the previous day.
[11] The Judge also noted that Mr Paparoa did not hold a licence at the time of the offending. His licence had been suspended for speeding offences the previous year and had never been reinstated. He had also been driving in a reckless manner and at excessive speeds for a sustained period before he lost control of the vehicle and it left the road. The offending had had extremely serious consequences, resulting in the death of one victim and the injury of two others. It had also been devastating for the
members of the victims’ families, several of whom had read victim impact statements at sentencing. Finally, Mr Paparoa had taken steps to reduce his culpability by discarding the cans of alcohol that had been in the vehicle. These factors led the Judge to select a starting point of four years six months imprisonment.2
[12] The Judge did not increase the starting point to reflect the fact that Mr Paparoa had received infringement notices and demerit points for speeding offences and other instances of poor driving in the previous 18 months. Mr Paparoa also accepted that he had been using cannabis for many years. These factors meant that, although Mr Paparoa had no previous convictions, the Judge was not prepared to reduce the sentence to reflect previous good character.
[13] The Judge then applied a discount of 25 per cent to reflect guilty pleas and 20 per cent to reflect youth and other mitigating factors identified in a cultural report his counsel had tendered to the Court under s 27 of the Sentencing Act 2002. Finally, the Judge applied a discount of two months to reflect remorse. This produced the end sentence of two years four months imprisonment.
The appeal
[14] On Mr Paparoa’s behalf, Mr Pati does not take issue with the starting point the Judge selected or the discounts given for mitigating factors other than remorse. Mr Pati submits the Judge ought to have applied a discount of at least 10 per cent to reflect Mr Paparoa’s remorse. Had this been done, the end sentence would have been one of just over two years imprisonment.
[15] Mr Pati does not, however, suggest that a sentence of home detention would have been appropriate. He says Mr Paparoa accepts that imprisonment is the appropriate sentence given the overall gravity of his offending.
Analysis
[16] As the Supreme Court observed in Hessell v R, the extent to which any discount should be given to reflect remorse requires “a proper and robust evaluation of all the
2 At [28].
circumstances”.3 Expressions of remorse may take many forms, but they must be distinguished from expressions of concern or self-pity the offender may have about his or her predicament.
[17] In the present case, Mr Paparoa had failed to attend interviews with the writer of the pre-sentence report on two separate occasions, even though his bail conditions had been expressly varied to require him to attend an interview so that the report could be prepared. This meant the Judge did not have the benefit of a pre-sentence report at sentencing. That is commonly the source from which genuine expressions of remorse may be discerned. However, the Judge did have the benefit of an affidavit Mr Paparoa’s counsel had prepared even though Mr Paparoa had never signed that document. He also had the cultural report in which Mr Paparoa had expressed his remorse to the report writer.
[18] The Judge dealt with the issue of remorse in the following passage of his remarks:4
You have apologised here in court to the victim’s family. You have expressed remorse in the unsworn affidavit, and also in the course of the cultural report. However, any steps that you have sought to take to address any issues are late. You have not started any programme whatsoever to address any of the issues that you say were causative of this offending, despite it being 11 months from the time of the accident. Furthermore, in the cultural report which has been prepared, you say you had not taken drugs for four months. In that report you say you had stopped drinking, yet in the unsworn affidavit provided to me you said that you were sometimes drinking.
[19] The transcript of Mr Paparoa’s remarks at sentencing reveals that Mr Paparoa had found it extremely difficult to come to terms with his offending. His repeated failure to attend appointments with the writer of the pre-sentence report reflects this fact, as does his failure to sign the affidavit. Care needs to be taken in drawing inferences from these failures because inability to come to terms with serious offending may not be uncommon for youthful offenders. It may also be very difficult for a youthful offender to put feelings of remorse into words or written form.
3 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [64].
4 R v Paparoa, above n 1, at [39].
[20] An inability to properly express genuine feelings of remorse will obviously not disqualify an offender from receiving a discount to reflect remorse if it is genuinely held. On the other hand, the sentencing Judge is required to make an evaluative assessment as to the extent to which remorse is genuinely held, taking into account any limitations suffered by the offender.
[21] I consider another Judge may have given Mr Paparoa a slightly greater discount to reflect remorse given his apparent limitations and the fact that he had expressed it through several different means. However, this is not the test. In order for the appeal to succeed Mr Paparoa must establish that the end sentence of two years four months imprisonment was manifestly excessive.
[22] Mr Paparoa’s offending involved a sustained period of reckless driving followed by a very poor piece of judgement that resulted in the vehicle leaving the road and colliding with a power pole. It caused the death of one young person and the injury of three others. The culpability of the offending was aggravated by the fact that Mr Paparoa had been drinking alcohol for a considerable period before driving the vehicle and he had also consumed nitrous oxide and cannabis. The effect of the offending has been catastrophic for the victims and their families. The offending also occurred against a background of recent driving misconduct. When the gravity of the overall offending is taken into account I do not consider the end sentence of two years four months imprisonment can realistically be said to be manifestly excessive.
Result
[23]The appeal against sentence is dismissed.
Lang J