Paul v The Queen

[2019] NZCA 333

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

 CA681/2018
 [2019] NZCA 333

BETWEEN	MAXINE AVLON PAUL Appellant
AND	THE QUEEN Respondent

Hearing:	17 July 2019
Court:	Collins, Simon France and Lang JJ
Counsel:	W T Nabney for Appellant B D Tantrum and K B Guilford for Respondent
Judgment:	25 July 2019 at 11.00 am

JUDGMENT OF THE COURT

AThe application to adduce further evidence is granted.

BThe appeal against sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Collins J)

Introduction

1. On the afternoon of 7 January 2017, Ms Paul was in the front passenger seat of a car being driven by her then partner along State Highway 2 between Tauranga and Katikati.  It is a particularly busy highway.  Ms Paul and her partner had been drinking alcohol that day.  She was arguing with her partner and as the car came towards another vehicle, Ms Paul reached across to the driving wheel and wrenched it with sufficient force that the car she was in crossed onto the wrong side of the road.  Ms Paul’s partner managed to regain control of the car so as to avoid any collision.  A few seconds later, however, Ms Paul again grabbed the steering wheel with both hands and as a consequence, the car, for a second time, crossed onto the wrong side of the road.  This time it collided with a Toyota Hilux wagon causing a major crash.

2. Ms Paul’s partner suffered cracked ribs and abdominal bruising.  The driver of the Toyota suffered a laceration to his forehead and extensive injury to his left wrist.  A passenger in the Toyota suffered lacerations to her skull, whiplash and multiple contusions.  She also suffered damage to her hearing.  Ms Paul was injured in the collision.  She suffered a broken nose, cheek bone, sternum and ribs. 

3. Ms Paul was charged with the attempted murder of her partner and two charges of dangerous driving causing injury.  She was convicted following a trial by jury of the dangerous driving charges and sentenced by Edwards J to two years and three months’ imprisonment.[1]  Ms Paul was also ordered to pay $3,500 by way of reparation.  That payment was to be made by instalments at the rate of $10 per week.  Ms Paul now appeals her sentence.

Grounds of appeal

[1]R v Paul [2018] NZHC 2783.

1. Two grounds of appeal have been advanced:

   (a)The starting point of two years and eight months’ imprisonment was too high.

   (b)Further adjustment should be made in light of an offer made by Ms Paul in this Court to pay $5,000 reparation in a lump sum.

2. Counsel for Ms Paul submitted that the following factors warranted a starting point of close to two years’ imprisonment:

   (a)Ms Paul was not actually driving the car; and

   (b)her offending was spontaneous and occurred for just a few moments.

3. It was emphasised that Ms Paul was less culpable than defendants in other cases of dangerous driving causing injury where, for example, the defendants were convicted after driving at dangerous speeds for extensive periods of time.

4. To support the second ground of appeal, counsel for Ms Paul applied to adduce further evidence of an affidavit by Ms Paul explaining the $5,000 for reparation raised by her family since she was sentenced.  Given the cogency of the evidence, we grant the application.

5. Overall, a sentence of home detention is sought by Ms Paul. 

The starting point

1. In setting the starting point of two years and eight months’ imprisonment, the High Court Judge had regard to the starting points adopted in eight other cases.  She found the approaches taken in Pollard v R, McLennan v Police and Henderson v Police to be particularly apposite.[2]  Those cases involved starting points that ranged between 21 months’ and three years’ imprisonment.

   [2]At [36]; Pollard v R [2018] NZCA 244; McLennan v Police [2018] NZHC 320; and Henderson v Police [2017] NZHC 2219.

2. In assessing the starting point the High Court Judge had particular regard to:

   (a)Ms Paul’s high level of culpability when she grabbed the steering wheel forcing the car she was in onto the wrong side of a major highway and into the path of a vehicle that was travelling between 95 and 100 kmph.

   (b)Ms Paul’s motives, which appeared to have been the product of her anger at her partner and her consumption of alcohol.  The Judge described Ms Paul’s conduct as an “angry, alcohol and emotion-fuelled act carried out with no respect for the consequences”.[3]

   (c)The serious harm caused by Ms Paul’s conduct which included, not only the physical injuries to the victims, but also significant financial harm to the driver of the Toyota who can no longer work as a mechanic because of the injuries he suffered.

   [3]At [30].

3. The High Court Judge correctly noted that cases of dangerous driving causing injury, cover a broad spectrum of offending and that no two cases are ever likely to be the same.[4] We also agree with the analysis undertaken by the High Court Judge, which we have summarised at [10]. After examining the cases referred to by the Judge, we agree with the starting point that she adopted. This was particularly dangerous and irresponsible offending that could easily have resulted in the deaths of one or more innocent persons.

Adjustments for reparation

[4]At [24]; citing Pollard v R, above n 2, at [25].

1. The High Court Judge reduced the sentence that would otherwise have been imposed by three months to reflect the reparation order that was made.[5]  It is now submitted that a further reduction should be made if we accept Ms Paul’s offer to pay $5,000.  The additional sum has been raised by her family.

   [5]At [58].

2. It is significant Ms Paul has not demonstrated any genuine remorse for her offending.  Her offer to increase the reparation is motivated by her desire to decrease the length of her prison sentence in the hope that she will be eligible for consideration for home detention.

3. We are not satisfied that reducing Ms Paul’s sentence would be a principled response to the increased reparation offer, particularly, as the Crown observes, Ms Paul has not demonstrated any genuine remorse.

Result

1. The application to adduce further evidence is granted.

2. We see no basis to alter the sentence imposed by the High Court Judge.  The appeal against sentence is therefore dismissed.  This outcome renders it unnecessary to consider Ms Paul’s submission that she should be considered eligible for home detention.

Solicitors:
Crown Solicitor, Auckland for Respondent