Pollock v The Queen
[2014] NZHC 1994
•21 August 2014
IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY
CRI-2014-441-29 [2014] NZHC 1994
UNDER Part 6, Subparts 4 and 7 of the Criminal
Procedure Act 2011
BETWEEN
ROSS DAVID POLLOCK Appellant
AND
THE QUEEN Respondent
Hearing: 20 August 2014 Counsel:
A N Isac for Appellant
C R Walker for RespondentJudgment:
21 August 2014
JUDGMENT OF GODDARD J
This judgment was delivered by me on 21 August 2014 at 4.45 pm, pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Solicitors:
Fitzherbert Rowe, Palmerston North for Appellant
Crown Solicitor’s Office, Napier for Respondent
POLLOCK v R [2014] NZHC 1994 [21 August 2014]
Introduction
[1] On 8 October 2013 a four year old boy was killed by a mowing tractor operated by the appellant at a park in Hastings. The appellant pleaded guilty to one charge of dangerous driving causing death and was sentenced in the District Court to six months home detention, 100 hours of community work, and disqualified from driving for three years. He now appeals against the period of disqualification on the ground that the least restrictive outcome required in the circumstances was the
mandatory period of 12 months’ disqualification.1
Background and sentencing decision
[2] The relevant circumstances of the offending are outlined in the District Court judgment.2 The appellant had been operating the tractor and mower for about
11 minutes and had mown six lengths of the park before three children came over to the tractor and began chasing it. The children were aged ten, eight and four years. The eldest was riding a bicycle.
[3] The appellant stopped his tractor and told the children to go away. He tooted his horn, waved and attempted to shoo them off. The children, however, continued to follow the tractor.
[4] The four year old appears to have tired and sat down on an area of grass already mown. The other two children continued to follow the tractor at a distance of approximately 15 – 20 metres.
[5] On his ninth length, the appellant passed the four year old who was sitting to his left. The ten year old was riding to the right and ahead of the tractor but in the same direction. The eight year old continued to run behind the tractor.
[6] On the next length, the tractor approached the area where the four year old was sitting. The child stood up and ran at an angle towards the tractor. Counsel for
1 Sentencing Act 2002, s 8(g) provides that in sentencing an offender the Court must impose the least restrictive outcome that is appropriate in the circumstances.
2 R v Pollock DC Napier CRI-2014-020-0126, 11 July 2014 at [3] – [8].
the appellant said at sentencing that he had believed the child was intending to run behind the tractor towards a basketball area.
[7] One witness estimated that the tractor was 35 – 40 metres away from the child when he started running. Another witness said the child appeared to side-step towards the mower very late in the sequence, and then tried to step away, but by then it was too late.
[8] The appellant told police he believed he was slowing the tractor before the accident but CCTV footage shows that the tractor “did not appear to slow down” before the child was hit.3
[9] At sentencing, the Crown submitted that the appellant’s driving was dangerous in two respects: first, he should not have continued to operate the mower when he became aware of the children; second, he failed to stop when he saw the four year old running towards the tractor or when the child obviously came too close to the tractor.
[10] Traversing the unfortunate facts in a careful and thorough sentencing judgment, the sentencing Judge, Judge Down, noted that continuing to mow in the presence of children was unwise and the appellant should have slowed and stopped the tractor when the victim began to run towards it.
[11] The Judge accepted the Crown’s suggested starting point of two years’ imprisonment, noting that the offending did not contain any aggravating features and that the culpability of the offending fell “towards the lower end of the scale of examples of dangerous driving”.4 The Judge referred to the Police crash report, which concluded that both the appellant and the victim had contributed in varying degrees to the cause of the accident. The children were not supervised by an adult
and had continued to chase the mower despite being told to go away by the
appellant. The appellant continued to mow while children played near his tractor.
3 At [8].
During a prior sentencing indication the Judge had accepted that the appellant had not acted in a “bullish or bloody-minded way”.5
[12] The Judge took into account as mitigating factors the appellant’s positive character and his significant level of remorse, for which he discounted a total of six months. A full discount of 25 per cent was applied for the appellant’s guilty plea.
[13] In imposing an ultimate sentence of home detention, the Judge noted that there was no need to deter the appellant from further offending, nor was there a need for the sentence to send a message to the public.
[14] The sentencing was understandably very highly charged and the focus of both counsel was on the sentencing outcome and the issue of name suppression. Unfortunately, as a result, neither the Crown or defence counsel addressed, in either their written or oral submissions, an appropriate length of disqualification and consequently did not provide the Judge with any assistance on that issue.
[15] Therefore the Judge simply imposed a period of three years disqualification without the benefit of argument. That being so, the question of an appropriate period of disqualification must be considered de novo on appeal.
Submissions
[16] The submission now made by Mr Isac on behalf of the appellant is that the disqualification of three years was manifestly excessive having regard to the circumstances of the case and comparable authorities. In lieu he seeks a period of disqualification of 12 months.
[17] In support of his submission, Mr Isac emphasised the following factors as significant. First, the offence had not taken place on a road and the requirement for public safety has been alleviated because the appellant will not drive tractors again in a professional capacity. Second, the District Court Judge accepted that the driving fell towards the lower end of the scale and there were no aggravating factors relating to the offending or the appellant personally. Third, other than the specific lapse of
judgement, the appellant’s driving was normal. Fourth, the defendant is 73 years of age and any period of disqualification will impact on his independence and quality of life to a greater extent than it might on a younger defendant. Last, the appellant has a clean driving record.
[18] On behalf of the Crown, Mr Walker accepted that the offending did not involve the usual circumstances of bad driving of a car on a road. Having reviewed the matter, including the submissions on behalf of the appellant, he advised that the Crown accepted that the appeal should be allowed and a lesser period of disqualification imposed.
General principles
[19] There is no tariff case for dangerous driving causing death. As recorded, the offence carries a minimum period of disqualification of 12 months. There is no maximum period. The leading authority is Gacitua v R,6 in which the Court of Appeal referred to an English Court of Appeal decision, in which the following aggravating factors were identified as relevant:7
(a) consumption of drugs or alcohol;
(b) excessive speed or racing, competitive driving; (c) disregard of warnings from fellow passengers;
(d) a prolonged persistent deliberate course of very bad driving; (e) aggressive driving;
(f) driving whilst avoidably distracted by using a phone or reading;
(g)driving when knowingly deprived of adequate sleep or rest or suffering from a medical condition that impairs the offender’s driving skills; and
(h)driving a poorly maintained or dangerously loaded vehicle, especially where this has been motivated by commercial concerns.
[20] Included in the mitigating factors identified by the English Court of Appeal were:
(a) a good driving record;
(b) the absence of previous convictions; (c) a timely plea of guilty; and
(d) genuine shock or remorse.
[21] The Court of Appeal in Gacitua refrained from establishing a tariff in New Zealand but treated the Cooksley guidelines as useful in identifying some of the aggravating and mitigating factors relevant to sentencing in cases of this kind. The list is not exhaustive and the significance of the factors can differ.
Comparable cases
[22] There can be no doubt that periods of disqualification of three years or more are usually imposed for offending where one or more significant aggravating features, such as driving with excess breath alcohol, excessive speed and a persistent or deliberate course of very bad driving, are present. Mr Isac referred to three cases to support this proposition.
[23] In Police v King, the police appealed against a sentence of nine months’ imprisonment and 12 months’ disqualification following Mr King’s guilty plea to one charge of dangerous driving causing death, driving with excess breath alcohol
and assaulting a police officer.8 Mr King lost control on a corner at high speed. He crossed the centre line and hit a tree on the opposite side of the road before hitting a power pole. Mr King’s passenger was killed. Mr King was 18 years old and returned a reading of 876 micrograms of alcohol per litre of breath.
[24] On appeal, Chisholm J said that the sentence imposed was well out of step with the authorities traversed.9 The Judge considered that there were strong aggravating factors (grossly excessive speed and alcohol) and strong mitigating factors (guilty plea, absence of previous convictions, good character, remorse, and a loss of a close friend). The sentence was increased to 15 months imprisonment. The Judge commented that the period of disqualification should have been at least two or
three years but because it was a police appeal it was increased to 18 months.
[25] In R v Hodgson, Mr Hodgson and Mr Yousif pleaded guilty to dangerous driving causing death and were disqualified from driving for four years.10 On appeal it was argued that this disqualification was manifestly excessive having regard to the circumstances of the offending and their personal circumstances. It was also submitted that it was disproportionate when compared with the length of disqualification orders imposed for similar offending. The brief facts were that the appellants were at an intersection in separate cars. When the lights turned green they accelerated at high speed. At about the same time the deceased, who had a high
blood alcohol level and was talking on her cellphone, stepped onto the road approximately 40 metres away from the lights. She did not see the two vehicles until the last moment. She was hit by Mr Yousif. The appellants had earlier that evening been involved in similar races. Young J found that the facts of the case placed it at the lower end of this type of offending. On appeal, the Court of Appeal observed that:
[18] A distinguishing feature in this case was that neither alcohol impairment, very high speed nor disqualified driving were a factor. There
8 Police v King HC Christchurch CRI-2007-409-209, 6 December 2007.
9 His Honour considered R v Ellison CA390/07, 29 November 2007; R v Tuck HC Hamilton CRI-2004-070-1649, 12 November; R v Fenton HC Wellington T4779-01, 11 April 2003; R v Maumau HC Christchurch A108/02, 23 October 2002; R v Hitchens CA380/03, 25 March
2004. See [19] to [23] of Chisholm J’s decision.
10 R v Hodgson [2008] NZCA 132.
were serious lapses, but those other frequently present aggravating features did not exist.
…
[21] … This was a serious matter with tragic consequences. In assessing culpability however, there were not additional aggravating factors, but involvement in a hazardous and foolhardy activity.
…
[24] … There are no cases without serious aggravating factors which
have attracted disqualifications as long as this.
[26] While the appellants were racing in a public street and the nature of the offending created a need for public deterrence, the Court of Appeal nevertheless reduced the disqualification to three years because of the absence of serious aggravating factors.
[27] In R v Fairburn, Ms Fairburn was found guilty of one charge of motor manslaughter and sentenced to four years’ imprisonment and disqualified from driving for three years.11 Woolford J reasoned that a greater period of disqualification was not required because the offending involved a one-off piece of bad driving. This case is less helpful, however, as motor manslaughter requires a major departure from the standard of care expected of a reasonable person driving a motor vehicle. Dangerous driving is a less serious charge.
[28] Mr Isac also referred to four further cases in support of the proposition that a period of disqualification of twelve months is appropriate in the appellant’s case.12
[29] Of those, Blair v Police is of greatest assistance. In that case, Ms Blair crossed the centre line on a winding road and struck an oncoming motor cyclist, killing the passenger and seriously injuring the rider. Neither drivers were travelling at speed nor were they affected by alcohol. Ms Blair was disqualified for eighteen months. The offending involved a lapse of judgement and skill resulting in death.
Similarly, it might be said that the appellant’s offending in this case involved a lapse
11 R v Fairburn [2012] NZHC 28.
12 Blair v Police HC Auckland CRI-2008-404-377, 27 April 2009; R v McInnes [2001] DCR 1118;
R v Bell HC Dunedin T03/3182, 15 March 2004; Hirini v Police HC Napier AP27/03,
10 December 2003.
of judgement in not only continuing to drive the tractor in close proximity to the children, but failing to stop the tractor when he saw the victim running towards it.
[30] The case of R v Bell also involved a lapse of judgement and care in the operation of a vehicle and equipment. Mr Bell worked for a construction company. In the course of his employment he was asked to relocate a trailer which was in poor condition: it was unregistered and unwarranted, and lacked a safety chain and D-shackle. While travelling at approximately 70 kilometres per hour the trailer detached from Mr Bell’s vehicle and struck and killed a woman walking her dog. Mr Bell pleaded guilty to reckless driving causing death. As part of his sentence he was disqualified from driving for a period of 18 months.
[31] The case of R v McInnes also referred to by Mr Isac is not of particular assistance, although it too involved a professional driver and an uncharacteristic lapse of judgement.13 It is, however, distinguishable on its facts. Mr McInnes was an ambulance driver who struck and killed a pedestrian in the course of responding to an emergency. He was disqualified from driving an ambulance for 12 months. His situation was one of great pressure and urgency, unlike the situation in the appellant’s case.
Discussion
[32] As Mr Walker submitted, this tragic case is, fortunately, unique. Accordingly, although there are many cases dealing with dangerous driving causing death, there are none which have dealt with this particular type of factual scenario.
[33] As Mr Walker also responsibly conceded, while the appellant’s offending involved a serious lapse of judgement, it did not involve the usual circumstance of dangerously driving in a car on a road. It therefore does not have the same requirement for both general and specific deterrence, as do most cases of dangerous
driving. Further, the appellant is an elderly man with an otherwise good record.
13 R v McInnes [2001] DCR 1118.
[34] Having considered all the circumstances, I am satisfied that the appropriate period of disqualification is one of 18 months.
Conclusion
[35] The appeal is allowed in relation to the period of disqualification imposed. The period of three years’ disqualification is quashed and a period of 18 months’ disqualification imposed in lieu.
Goddard J
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