R v Atutahi
[2024] NZHC 3545
•25 November 2024
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
I TE KŌTI MATUA O AOTEAROA
TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE
CRI-2024-077-426
[2024] NZHC 3545
THE KING v
PATRICK ATUTAHI
Hearing: 25 November 2024 Appearances:
L McMaster for Crown
M Simpkins for Defendant
Sentence:
25 November 2024
SENTENCING NOTES OF MOORE J
Solicitors: Simpkins Legal
R v ATUTAHI [2024] NZHC 3545 [25 November 2024]
[1] Patrick Atutahi, at the age of 35, you appear for sentence on a charge of manslaughter and three charges of dangerous driving causing injury. It is my task to sentence you.
[2] However, before doing so, I wish to acknowledge the victims of your offending and their whānau, and to acknowledge the courage and dignity which with their statements were read in Court this morning. Nothing I can say today, let alone any sentence I impose, can take away the grief that Wharerangi McMillan-Sullivan’s whānau feel for his death, nor the pain and suffering that you caused Mr Beaufill or the Purvis family. I acknowledge Wharerangi’s loss, and I extend the Court’s deepest sympathies to you all.
The offending
[3] Mr Atutahi, it is first necessary for me to set out the facts of your offending. Obviously, these are well known to you. However, because sentencing is quintessentially a public function it is necessary for me, in this forum, to repeat them. These are the facts you have admitted to.
[4]On 26 September 2023, an associate purchased a Volvo on your behalf. It cost
$200. It was in poor condition. It didn’t have a warrant of fitness. It was unregistered. The front right tyre was worn and the speedometer was faulty. In fact, so bad was it that the previous owner was planning to sell it to a local wrecker. Put bluntly it should never have been on the road. It was a risk to all other road users and so it tragically proved to be.
[5] The next day, 27 September 2023, you joined Jimmy Beaufill and Wharerangi at Mr Beaufill’s address. There you all left in the Volvo, with Mr Beaufill’s dog. You drove to a family address in Tapapa, on the outskirts of Putaruru. There, you all drank. You got drunk.
[6] Eventually, you decided it was time to leave. The Volvo had to be jump-started. A family member tried to persuade you not to drive. He offered you alternatives, such as allowing you all to stay at his address or driving you all back himself.
[7] You refused to listen. You thought you knew better. Instead, you drove off aggressively with Wharerangi and Mr Beaufill. Wharerangi was seated in the front. Mr Beaufill and his dog were seated behind.
[8] As you drove, you had your seat reclined back. You drove at an excessive speed, above 100 kilometres per hour. Your driving scared your passengers. Fearing that they would crash, Mr Beaufill asked you several times to slow down. You paid no notice. You told him to “fuck up”.
[9] Another vehicle, a Land Rover, was travelling east down State Highway 5 towards you. The driver was Simon Purvis. He and his family were heading to Rotorua for a holiday. In the car with him was his wife Alexis and their three sons aged 14, 11 and 9 in the back seat.
[10] You drove around a sweeping right-hand bend at speed. As you did, you lost control. The Volvo crossed the centreline. Its front passenger side collided with the front of the Land Rover. The combined momentum of the collision sent the Volvo into a clockwise spin. The force of the impact tore out the Volvo’s engine and threw it into a paddock on the southern side of the road. The Volvo continued to spin. As it did it spewed out its three occupants, including you and the dog. The car left the road, went down a bank road and came to a stop at the bottom.
[11] In the meantime, the Purvis’ Land Rover spun through 180 degrees before rolling down the same bank, coming to a rest on its wheels in a farm paddock.
[12] The crash left victims scattered all over the place. Mr Beaufill was found lying conscious, but incoherent, on the southern side of the road. You were found unconscious draped face down over the farm fence near the Volvo. Wharerangi was found sometime later near a large tree a short distance from the Landrover. He was dead at the scene. Mr and Mrs Purvis suffered significant injuries. They were pulled from the wreckage of the Land Rover by members of the public. Remarkably, and happily, their three young children were uninjured, or at least physically uninjured.
[13] Wharerangi died as a result of significant abdominal, pelvic and lower limb injuries caused by the high energy impact.
[14] Mr Beaufill was transported by ambulance to Waikato Hospital. He suffered fractures to the back of his skull, ribs and left thigh; a collapsed lung; and bruising to both lungs.
[15] Mrs Purvis was airlifted to Waikato Hospital. She suffered a concussion, a traumatic subarachnoid haemorrhage, bruising and swelling to her right eye and scalp, and fractures to the upper and lower bones of her pelvis.
[16] Mr Purvis was transported to hospital by ambulance. He suffered a fracture to his right ankle, a concussion, and a bleed to the surface of his brain.
[17] At approximately 1:00am the next morning, a sample of your blood was taken. It was found to contain a proportion of 59 milligrams (plus or minus 3 milligrams) per 100 millilitres of blood. Given the approximately three hour and 50-minute period between the time of the crash and when that blood sample was taken, it was calculated that at the time of the crash your blood alcohol concentration was within 100 to 160 milligrams per 100 millilitres of blood, well exceeding the 80 milligrams limit. Analysis also revealed that your blood contained 4.8 plus or minus 1.3 nanograms of THC per millilitre, exceeding the high-risk limit of 3 nanograms per millilitre. In other words, at the time of the crash you were not only drunk but also affected by cannabis.
[18] What’s more is that you didn’t have a driver’s licence. In fact, you have never had a licence. You were a forbidden driver having been forbidden to drive due to being an unlicensed driver in 2005. And you had previous convictions for careless and drink driving in 2019 and 2022, respectively.
Victim impact statements
[19] The Court has received a number of victim impact statements. You have heard four of them. All have been made with great courage and dignity. It is not an easy thing to write, let alone speak aloud in a courtroom.
[20] Wharerangi’s mother, Ivana George, spoke to how your actions have left a huge hole in all their lives. She spoke about how her son was a man with so much life, and whose future has now been taken away.
[21] His sister, Tristina Sullivan, spoke to how everything and everyone has changed because her brother has now gone.
[22] Alexis Purvis spoke to the upheaval that your actions caused in her and her family’s lives, and how her sons are still haunted by the crash that occurred.
[23] And Simon Purvis spoke to how his life has changed as a result of what you did, and the emotional toll that your actions have wrought on all of their family.
[24] I also acknowledge victim impact statements made by Wharerangi’s partner, Ms Toetoe, and by Mr Beaufill. Ms Toetoe speaks to how unfair it has been for her and her children to have lost a husband and father. Their whole lives have been shattered and irreversibly changed because of your decision, against the protests of others, to get behind the wheel that evening. And Mr Beaufill has written about how he has been permanently affected by your actions, and how his journey to recovery is still continuing.
[25]I hope you have taken on board what they have all said.
Approach to sentence
[26] Sentencing involves a two-stage process.1 The first stage requires that I set a starting point that reflects the seriousness of the offending, taking into account any aggravating or mitigating features of the offence itself. The second stage then requires me to adjust that starting point – up or down – to take account of an offender’s personal circumstances. At both stages, I must have in mind the relevant purposes and principles set out in the Sentencing Act 2002.
1 Moses v R [2020] NZCA 296, [2020] 3 NZLR 583 at [46].
Starting point
[27] I start first with setting the appropriate starting point for your offending. As Mr Simpkins and the Crown agree, there are three aggravating features in your overall offending here.
[28] First, the standard of your driving at the time. The car you were driving was unroadworthy and dangerous. I have explained why. You would have known that. You drove while heavily under the influence of alcohol and cannabis. You ignored the plea of a family member not to drive. You blatantly and aggressively disregarded Mr Beaufill’s pleas to slow down.
[29] Secondly, your driving history. You did not have a driver’s licence. You have never had one. You were a forbidden driver as I have said, with a history of careless and drunk driving. As the Crown pointed out you simply should not have been on the road.
[30] Finally, the tragic consequences of your offending. Wharerangi died at the scene. His death has left a huge hole in the lives of his whānau. Another three victims, Mr Beaufill, and Mr and Mrs Purvis, sustained serious injuries as a result of what you did. And everyone has been deeply affected by what you did.
[31] Both your counsel and the Crown have referred me to cases which helpfully inform the starting point I should adopt. In all, the defendants caused death and (in some) serious injury to others as a result of dangerous driving while under the influence of drugs, alcohol or both.2 Some cases were more serious because they involved fleeing from the Police and failing to render assistance afterwards. Starting points of between six-and-a-half and eight years were adopted in these cases.
[32] In light of the cases it refers to, the Crown submits that I should adopt a starting point of seven years and three months’ imprisonment.
2 R v Tiddy [2023] NZHC 2288, Millar v R [2019] NZCA 570, R v Thomas [2018] NZHC 819, R v Mika [2013] NZHC 2357, R v Makoare [2020] NZHC 2289.
[33] Your counsel, Mr Simpkins, submits that your offending is most similar to R v Makoare. In that case, the defendant’s driving caused the death of his six-month-old son and left a two-year-old girl (in another vehicle) tetraplegic. The defendant drove after having stayed up all night smoking methamphetamine. The car crash occurred after he tried to overtake a truck on a blind corner, despite being warned not to do so. The defendant’s son died, and the passengers of both cars sustained serious injuries.
An overall starting point of seven years was adopted.3
[34] Given the similarities between Makoare and your case, Mr Simpkins submits that an overall starting point of seven years’ imprisonment should be adopted. I agree. While there are obvious differences between your offending and that in Makoare, I consider that your decision to drive, the vehicle in which you drove, the way in which you drove it and the consequences of your offending justify a starting point of seven years’ imprisonment.
Personal circumstances
[35] I now turn to your personal circumstances. I start first with your aggravating circumstances.
Aggravating circumstances
[36] The Crown says that you have relevant previous convictions for driving with excess breath alcohol and for careless driving. It submits that an uplift of three months’ imprisonment is warranted.
[37] I acknowledge that you have a previous conviction for careless driving and another for driving with excess breath alcohol. You were convicted and discharged on the former in 2019 and fined and disqualified from driving for six months on the latter in 2022. However, while I agree that these are aggravating personal circumstances, I do not consider an uplift to be called for here. I consider these factors to be appropriately recognised within the seven-year starting point I have set.
3 R v Makoare, above n 2, at [18]–[19].
Mitigating circumstances
[38] I now turn to your mitigating circumstances. Mr Simpkins submits that there are three which warrant reductions in your case: that you have pleaded guilty, that you are remorseful and that your overall background helps to explain why you came to offend as you did. I take each in turn.
[39] First, Mr Simpkins says that you entered guilty pleas at the earliest stage. As such, he says you should be entitled to the full 25 per cent reduction available. The Crown responsibly agrees. I also agree.
[40] Secondly, Mr Simpkins says you are remorseful. He emphasises that you have tried to engage with the restorative justice process, and that your remorse is evident in the sentencing reports before the Court. He also refers me to your letter of apology which I have read expressing remorse to your victims and the families of those victims.
[41] Your statements of remorse are to your credit. I acknowledge too that your pre-sentence report says that you showed a high level of remorse during your interview with the report writer, acknowledging the pain and suffering that you have caused.
[42] Ultimately, however, I do not consider any such remorse to justify a discrete reduction in your case. As the Crown submits, you also said to your pre-sentence report writer that you never usually drove while under the influence of alcohol. That claim flies in the face of your previous conviction for drink driving, and with the fact that you should have never been driving in the first place.
[43] Finally, Mr Simpkins refers me to your background. Your background is relevant because it may help to inform why you offended as you did.4
[44] Three sentencing reports have been filed for this purpose: a cultural report, an alcohol and other drug report and a pre-sentence report. I have read all three and found them instructive. To respect your privacy, I will not repeat much of the detail here.
4 Berkland v R [2022] NZSC 143; [2022] 1 NZLR 509 at [107]–[112].
[45] However, it is clear from these reports that you were introduced to alcohol and cannabis at a young age and that you grew up in an environment where heavy use was the norm. Your parents separated at a young age, and you had difficulties at school. Your cultural report says that because of these factors and others, you never learned the value of a tuakana-teina relationship, and the value of listening and learning from your elders. It says that was part of your downfall.
[46] You were also significantly impacted by the death of your father in 2020 and the subsequent breakup of your relationship, which included losing your stepsons. You struggled with these events and turned to alcohol and cannabis as a result.
[47] The reports also record however that you appreciate the need to change. And, importantly, you have the support of your daughter to do so.
[48] It is clear to me that your background does help to explain how you came to offend and that your end sentence should reflect that reality. In recognition of this, I consider a discount of five per cent to be warranted.
End sentence
[49] And so, Mr Atutahi, I come to constructing your end sentence in the following way. From a starting point of seven years’ imprisonment, discounted by 25 per cent for your guilty plea, and five per cent for your upbringing and background, I come to an end sentence of 58 months (rounded down), or four years and ten months’ imprisonment.
Disqualification from driving
[50] Finally, the Crown seeks an order disqualifying you from holding or obtaining a driver’s licence for four years to commence from when you are released from prison. I agree that this is appropriate.
Result
[51] Mr Atutahi, please stand. On the charge of manslaughter, I sentence you to four years and ten months’ imprisonment.
[52] On the three separate charges of dangerous driving causing injury, I sentence you on each charge to one year and six months’ imprisonment.
[53] All charges are to be served concurrently, meaning that your total sentence is one of four years and ten months’ imprisonment. I make an order disqualifying you from holding or obtaining a driver’s licence for four years, to commence on your release from prison, pursuant to s 124 of the Sentencing Act.
[54] And finally, I make an order that you pay $111.99 and $668.94 for the alcohol and drug testing administered on you, pursuant to s 67 of the Land Transport Act 1998.
[55]Stand down.
Moore J
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