R v A HC Invercargill CRI 2009-025-995
[2009] NZHC 2388
•27 November 2009
This case has been anonymized
IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY
CRI 2009-025-000995
REGINA
v
A
Hearing: 17 and 27 November 2009
Counsel: JNP Young for Crown
W N Dawkins for Prisoner
Judgment: 27 November 2009
SENTENCING REMARKS OF FOGARTY J
[1] A you have pleaded guilty to a charge that having under your control a motor vehicle which in the absence of precautional care may endanger human life and then under a legal duty to take reasonable care to avoid such danger did admit without lawful excuse to discharge that duty thereby causing the death of Mrs Lenore Carr and thereby committed manslaughter. That is the nature of the charge which I will have occasion, really for the benefit of the lawyers, to refer to in a moment.
[2] On Saturday evening, 13 September 2008, you had been socialising with your partner at your friend’s house in Crawford Street in this city. During the course of that evening you had drunk between three and six stubbies of beer and one or two
RTDs. At about 3.00 am in the morning you and your partner had returned home to
R V A HC INV CRI 2009-025-000995 27 November 2009
Lyon Street. Soon after arriving home an argument started in the bedroom. It resulted in you being struck in the face by your partner giving you a bleeding nose. You became angry and upset. You smashed three windows in the laundry area before leaving your home in your car and going back to your friend’s house at Crawford Street. A man at Crawford Street assisted you cleaning up your bloody nose and suggested you stay there. But then you left and went back to your home. There you spoke to some pedestrians, perhaps at the time when you were putting your partner’s dog in your car. You asked the pedestrians to ring the police and that presumably was in respect of the assault that you had suffered just prior. Then as you were reversing out of the drive onto Lyon Street, planning to leave, your partner appeared out of the house and spread-eagled himself on the bonnet of your car. You reversed at speed onto Lyon Street, your partner falling off the bonnet onto the road. You continued reversing at speed for approximately 70 metres down Lyon Street and then drove into Cree Street before returning to check your partner was okay. You could not find him.
[3] You then drove north on Lyon Street towards St Andrew Street and turned west into St Andrew Street. At the same time Mrs Carr, who had been called out by her son to pick him up, was driving down St Andrew Street. It is not entirely clear to me how the first ramming of her car took place but it is quite clear there were two rammings of the car. The second one seems to have taken place, judging from my inspection of the police evidence, some time later, and deliberately. Then, the most aggravating feature is that you tailgated Mrs Carr, who was obviously panicked by two rear end collisions to her car. She was speeding and you were speeding right behind her, right down St Andrew Street, both cars continuing at high speed at about
100 kilometres per hour until approaching a T intersection with Queens Drive. Due to the speed of both the vehicles neither was able to negotiate the intersection. Both vehicles crashed and Mrs Carr died.
[4] Now those are the principal facts upon which you fall to be sentenced.
[5] Everybody here in this room will recall that there has been an earlier hearing about ten days ago when I heard argument. Considerable cases were put before me, a very large number of cases, largely filling this file and another volume of cases in
this file. The reason for that is that it is extremely important, and I am required by Parliament in s 8 of the Sentencing Act 2002, to try to sentence you consistently with the way other people are sentenced.
[6] Mr Young this morning has offered, and correctly in my view, two explanations for the wide disparity of sentences. The wide disparity of sentences I should say in these sort of cases ranges from a low of around about two and a half years up to about eight years. These are all what we call motor/manslaughter cases. There are very merciful decisions. There are decisions where both the victim and the driver have been taking risks, such as boy racers. It is in my view, having heard the argument last week, having looked at the cases, in the interim between the hearing, and now, that they are virtually impossible to reconcile. I think it is appropriate, and I am really addressing Parliament here, that they should have a closer look at what is going on.
[7] The reason I read out the charge fully at the start is that you are not actually charged with reckless driving. (I am going to sentence you on the basis that you were driving recklessly.) You are actually charged with driving negligently. Parliament has an offence of reckless driving causing death in s 36 of the Land Transport Act 1998. That offence was enacted, as the Court of Appeal has explained in R v Skerrett CA236/86 9 December 1986, because juries in these sort of cases were reluctant to find drivers guilty of manslaughter, because of the stigma of manslaughter. So Parliament enacted the offence of reckless driving causing death. That was some time ago. The maximum penalty for reckless driving causing death under the Land Transport Act is five years, which effectively means that anyone prosecuted under that section, which you could have been in this case, would not be sentenced to more than five years and probably the maximum sentence would have been around four years.
[8] However, since then, the public’s attitude to the tragic deaths of innocent victims, because of your kind of conduct, has hardened. As other Court of Appeal decisions have pointed out the public are simply appalled and angry at the deaths of innocent people, like Mrs Carr, she being on the road for an entirely proper purpose,
as a mother to pick up her son, something that many of us here have done as parents in our lives.
[9] We are now, as Judges, regularly sentencing motor/manslaughter to well over five years. I will have occasion in a moment to refer to two of my sentences, one in this Court some years ago in R v Lynch HC INV CRI 2004-025-1691
11 August 2004; one three weeks or so ago in Timaru: R v Brook HC TIM CRI 2008-076-000988 3 November 2009; both six years. These are sentences in excess of the maximum contained in the Land Transport Act. We are doing it in very difficult circumstances. For good reasons, manslaughter as a crime, Parliament gives the Judges huge flexibility. But I do think that the law would be in a much better shape if Parliament reviewed its policy on reckless driving causing death as contained in the Land Transport Act, because essentially we Judges sentence according to the policy of Parliament, and Parliament is sending us mixed signals, which makes our job extremely difficult.
[10] One of the letters to me in this case observed that mine is a very difficult task and I can say truthfully, it is. Looking at this huge range of sentences, every case different, but on facts they sometimes look reasonably similar one to the other, yet the sentences are different.
[11] What I am guided to do by the Court of Appeal in the case of Skerrett is run through a check list of aggravating features. This has also been done for me by the Crown. As I have recorded, you did consume alcohol in that evening. This is not a case where you were racing but you were using grossly excessive speed. This is not a case where you were disregarding warnings from passengers, but it is a case of persistent and deliberate course of very bad driving. As I have said in the earlier hearing, well I think I said in earlier exchanges with counsel, to me, the most aggravating feature of this is that after the two rear end collisions, after that, then for about one and a half kilometres, you tailgated Mrs Carr, obviously terrifying her and leading to her tragic death at the T intersection.
[12] In your favour you have no previous convictions at all, let alone for bad driving or offences. Some of these cases involve recidivist drunk drivers. This is not one of those cases. The death was a result of reckless driving.
[13] Now the Court of Appeal also require me to consider whether or not the driving was a one off piece and in this regard this is a mitigating factor as the Crown have recognised.
[14] When one stands back and tries to understand your state of mind, it was clearly, at that time, affected by the assault on you by your partner, which I have discussed in the facts. That caused you to essentially “lose it”. I have read with some care the full report by the probation officer, and your letters, and studied the facts. It is clear from the probation officer’s report that she regarded you as discussing this case honestly with her, and as having genuine remorse, and as endeavouring to try to explain what happened and why it happened. I am going to read out passages from the report of the probation officer.
… After leaving the property for the second time that evening Miss
A reported feeling “scared, upset and just wanting to get away”.
… She had no intended destination.
… She recalled hitting the victim’s vehicle … stating she was aware she was
“going too fast”.
… She kept following the vehicle but only recalled hitting it on one occasion …
She says, however:
… “If they (witnesses) saw me hit her again, I guess I did”.
… When questioned as to why she was travelling at that speed she replied: “I was just keeping up with them (victim)”. [She] appeared unaware that the victim had increased their speed significantly in order to get away from her.
She described herself, you described yourself as being “like a monster”. You said:
… “my actions have caused someone else to die. I can’t take it back; I
really wished it was me and not her that died”.
You admitted that you were not in a good frame of mind at the time of the offending saying:
… “I can’t honestly say what I was thinking”. … “I’m not sure, like I said I
can’t remember what I was thinking. … I wasn’t in the best frame of mind”.
[15] Mr Dawkins relied on a number of decisions which resulted in sentences for manslaughter well below that contended by the Crown. I should say here, the Crown submissions by Mr Young, which were very thorough, suggested I take a starting point for calculation of six to seven years before introducing any mitigating features.
[16] Mr Dawkins argued that I should take a much lower starting point than that and he was relying on the case of R v Connon HC WN CRI 2008-035-001330 24
September 2009, Joseph Williams J, that you have just heard counsel talk about this morning, the case of the mother with the family children and the dog in the car, the mother mentally ill, where Joseph Williams J, a couple of months ago, gave a very merciful sentence. Mr Dawkins also relied on the cases of R v Jameson HC NEL CRI 2007-042-004326 13 March 2008 Wild J; others: R v Matagi HC CHCH CRI 2008-009-012096 1 October 2009, French J; R v Paikea HC TAU CRI 2009-019-5625 29 September 2009, Woodhouse J; and R v Copping HC TAU CRI 2007-270-104 26 September 2008, Heath J; all of which the sentences were much lower than sought here by the Crown.
[17] I have looked at those cases and I do not think they apply here. None of them have the aggravating features present in this case. As I mentioned the case of Connon was the case of a mother and her children, the mother speeding and failing to take a bend. She was deliberately speeding though. In Jameson that was a case of a young boy, also speeding, failing to take a bend and his girlfriend in the car died. The family of his girlfriend did not want him to go to jail and there was a restorative justice process.
[18] In Matagi there were two cars racing each other and, as I understand it, it was a boy racing exercise and someone standing on the road was killed. The Judge there took a starting point of five years imprisonment but gave a substantial discount because of his early guilty plea and remorse.
[19] In the case of Paikea he was a young man of 20 years old who killed his good friend who was a passenger in the car. (Some of these cases of young people are very similar on the facts: high speed, crash, and a very young man.) The Judge was impressed by his genuine remorse.
[20] The case of Luke was another one of car racers. That was a case where Luke killed a man he did not see standing in the road. In the case of Copping it was the same car race that Luke was involved in. Copping was the co-offender. He was the passenger in a car but he had been urging Luke to drive on. In the Copping case the starting point was only three years six months.
[21] As I have indicated, while I can distinguish these cases, it is not easy, and I can understand why Mr Dawkins has raised them. But, to my mind, I find more help from recent cases that I have done, particularly one called R v Brook HC TIM CRI
2008-076-000988 3 November 2009, which I decided in Timaru. This was a case of a young man who was driving in the early hours of the morning with his friends. He had not had much to drink. The reason he was driving away from the police who had put their lights and sirens on just to check him out is that he was on a learner’s licence and he was not sure whether or not it was legal. He knew he was breaking the law to some degree because he had four people in the back seat instead of three. He drove away very fast and drove for some time. The police actually backed off, turned off the sirens, turned off the lights. But he kept going. He kept going against the wishes of the passengers in his car. In that case I took a starting point of six to eight years.
[22] A case of R v Lynch HC INV CRI 2004-025-1691 11 August 2004 which I gave a sentence on in this Court back in August 2004 I sentenced both the driver of a car, and his girlfriend, who was urging him on. That was a case of young kids who had deliberately decided to go out drink/driving around the back roads of Invercargill. The car went through a fence, flipped up, landed in a paddock and killed one of the passengers. I imposed a sentence of six years in that case.
[23] The Crown relied on Lynch, the case I have just referred to, and another case
R v Whiu [2007] NZCA 591 20 December 2007. Now Whiu was the case of a
woman driving at extremely dangerous speeds at night. She hit one car but she kept going eventually hitting another car and killing the driver of that car. The Judge adopted an initial starting point of eight to nine years. Whiu is a case where the woman had also been assaulted by her partner. In Whiu’s case she had actually been assaulted by her partner while in the car, on the first part of the journey. But he left the car and she kept going. The whole journey took about nine kilometres. She kept going for several kilometres after her partner had left and as I have already mentioned the death occurred in the second collision. In that case the Court of Appeal would have sentenced her to seven years but in the end they did not disturb the Judge’s sentence of seven and a half years. An important distinguishing fact between Whiu and you is that the driver in Whiu had previous convictions, which you do not. No case is the same.
[24] But I am satisfied that Mr Young’s suggestion of a starting point of six to seven years in this case is correct, as correct as one can be in these situations. This is because Miss A , to my mind, the principal aggravating feature is your pursuit of this car after the two rear end collisions. You had plenty of time to calm down and reconsider your conduct. For this reason I do take as a starting point, for imprisonment for this offending, seven years.
[25] The Crown acknowledged that there were some mitigating features that should be taken into account. First, you do not have any previous driving convictions. Second, that it was a one-off piece of driving. Now the way I approach that is that I do think it is appropriate to take into account that you had been assaulted by your partner. As I explained before, you had gone back to your partner, there had been a further domestic incident. You had been backing away. He had been jumping on to the bonnet. You were obviously in a distressed and angry state of mind because of this domestic row and that is probably inasmuch, as there is any explanation as to how this dreadful event occurred, one of the main causes of that.
[26] You have also clearly shown remorse throughout, as I have explained, and as I have quoted from the Department of Corrections’ probation officer’s report. You have faced up to the fact that your behaviour has been like a monster. You have no previous convictions. You have had a rough upbringing. I am not, in the interests of
privacy, going to go into that. But you have in fact made considerable efforts, notwithstanding a very tough upbringing, to get qualifications, to get a job, and to live a productive life in the community. All that has come to an end by this crime that you have committed. I will come to your guilty plea in a moment. But taking those factors into account I am prepared to recognise them and from the starting point allow one year in deduction for those mitigating factors, taking it down to six years.
[27] You have entered a plea after depositions. Plainly, your counsel, Mr Dawkins, was endeavouring to persuade the Crown that the more appropriate charge here would be reckless driving causing death, in order to get a lower sentence. I have already explained the problems with the law in this regard, which is the responsibility of Parliament, not the Judges. I do not criticise Mr Dawkins at all in trying to sort the matter out in that way. As a result, however, you are not entitled to a full deduction of a one-third for your guilty plea. But you are entitled to a 20% reduction. That reduces your sentence to four years ten months. You are accordingly sentenced to four years ten months imprisonment.
[28] I will now turn to the question of a period of disqualification from driving. I
have not had an opportunity to discuss that with your counsel. [Discussion with counsel]
[29] After hearing from Mr Dawkins I stay with my indicative period, following particularly the decision of Brook, a decision of mine on 3 November which has the same two common characteristics of prolonged driving (which was inexcusable) causing death, but absence of any significant prior history of dangerous driving or drunk driving. You are disqualified accordingly Miss A from driving or holding a driver’s licence for five years.
[Judge to counsel] Any other matters outstanding? Mr Dawkins: No
Mr Young: No
Solicitors:
Preston Russell Law, Invercargill, for Crown
Bill Dawkins Law, Invercargill, for Prisoner
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