R v Bannan HC Christchurch CRI 2010-009-14017

[2010] NZHC 2263

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2010-009-014017

REGINA

v

PHILLIP BRUCE ROY BANNAN

Hearing:         15 December 2010

Counsel:         T J Mackenzie for Crown

E C Bulger for Prisoner

Sentence:       15 December 2010

SENTENCE OF PANCKHURST J

Phillip Bannan:

[1]      You are for sentence this morning upon two charges of manslaughter.  You caused the death of two completely innocent road users on the night of Thursday,

26 August, in circumstances to which I will refer in a moment.

[2]      To  your  credit  you  entered  very  early  guilty  pleas  to  those  charges  on

1 October, at the time of your second court appearance.  In consequence you were committed to this court for the sentencing today.

[3]      The facts of the case are, I think, undisputed.  Nonetheless it is essential that I

record them, both because they inform the sentencing decision which I must make

R V PHILLIP BRUCE ROY BANNAN HC CHCH CRI-2010-009-014017  15 December 2010

and also because they will be very relevant to subsequent decisions which will need to be made by others about you.

[4]      In mid-June of this year you appeared in the District Court upon a charge of driving with an excess breath alcohol concentration. Your reading was 682 when the legal breath limit is 400.  You were disqualified from driving for a period of nine months.  Yet, of course, a couple of months later on 26 August, you drove.

[5]      You had spent that day at Akaroa.  In the course of it you had consumed wine which you had apparently purchased on two occasions from a supermarket.  At about

5.00 pm you packed an overnight bag and set out for Christchurch, driving a Ford Mondeo car.  En route and on the outskirts of the city you stopped and purchased more alcohol.  And then, at about 8.00 pm, you were seen by police officers driving on Ferry Road at an excessive speed.  You were clocked at 89 kilometres per hour.

[6]      The police vehicle effected a U turn and followed you along Ferry Road. You were heading towards town.   The flashing lights and siren on the police car were activated.  You did not stop.  Instead you turned right into Fitzgerald Avenue, proceeding through an orange light as you did so.   You continued to travel north along Fitzgerald Avenue.

[7]      You stopped at the St Asaph Street intersection in response to a red light. This enabled the police car to assume a position behind you.  At that point the lights and siren were deactivated.  But even then, you elected to continue driving.  And so the police activated their flashing lights and siren again.   Still you did not stop. Instead you accelerated, overtook a car on its right hand side and then veered back left across two lanes and, in the course of this manoeuvre, you clipped the left front side of another car, a Mazda, and caused what is described in the summary of facts as “moderate damage” to that vehicle.   Still you did not stop.   You continued, approaching the Worcester Street intersection where the lights were red.   You responded to them by slowing, but then as they changed in your favour, you accelerated again with the police vehicle still in pursuit.

[8]      Next, you approached the intersection of Gloucester Street.  Again, the lights were red.   This time you elected to proceed through the intersection against the lights.  Norman Fitt and Deirdre Jordan were the driver and passenger, respectively, in a smaller car, a Daihatsu Terius which was travelling east out of the city and with the lights in their favour.  Your vehicle hit theirs, with what must have been major force.  The Daihatsu was propelled into the air, rolled and spun over a considerable distance.    Your  car,  the  Mondeo,  crossed  the  centre  island,  narrowly  missed oncoming traffic travelling in the opposite direction on Fitzgerald Avenue, and then hit a fence of a residential property on the eastern side of the avenue.  A subsequent crash investigation undertaken by the police reconstructed your speed at impact as approximately 82 kilometres per hour.

[9]      Mr Fitt was aged 73.   He was killed instantly as a result of high energy impact injuries.  Mrs Jordan was aged 67.  She died en route to the hospital from similar injuries to that of her companion.

[10]     You  were  taken  to  the  emergency  department  of  Christchurch  Hospital. There you were treated for a minor head injury and for an injury to your spleen.  A blood sample was also taken.  Subsequently, a reading of 194 micrograms of alcohol per 100 millilitres of blood was obtained.  That is to say, you were drunk, as you were over twice the legal limit for driving on New Zealand roads.

[11]     Such explanation as you did give to the police when they spoke to you was that you did not have a licence in your possession when they saw you on Ferry Road, and that you thought your car would be impounded - it was for these reasons that you endeavoured to escape.  With reference to Gloucester Street, you claimed that you were distracted on account of what was occurring behind you, and that you had not realised you were about to run a red light.

[12]     The impact of your choices can only be described as profound.  This is all too evident from the victim impact statements which have been read this morning by members of both families.   Those statements speak for themselves.   It would be futile for me to endeavour to capture the sentiments that have been expressed so graphically and eloquently by these various speakers.

[13]     As  Ms  Bulger  has  stressed  on  your  behalf,  you  are  relatively  young  at

22 years of age.  I have a pre-sentence report which reveals a good deal about your past history.   Regrettably, Mr Bannan, it contains little of a positive nature.   You were not in work at the time of these events.  You were, it seems to me, exhibiting an alarming  pattern  of  alcohol  use  and  abuse.    You  have  a  significant  number  of previous convictions.  I note there are 10 for the serious offence of burglary.  In 2008 you were convicted for an earlier excess breath alcohol matter when your reading was 818 and then, of course, there was a second such conviction which I have already mentioned in June of this year, where the reading was 682.

[14]     I note that you have already received sentences of imprisonment.   A short term sentence in late 2007, and then in November 2008 a nine month sentence.  You have also incurred convictions for the breach of release and supervision conditions to which you were subject following earlier court appearances.   More generally, the report writer concluded that you had not properly accepted responsibility for your actions in relation to the death of these two victims.  Any expression of empathy and remorse was judged to be “calculated and superficial”.

[15]     The  aggravating features  of  your  offending  are  really self  evident.    The starting point is your prior consumption of alcohol that day and your consequent intoxication  at  the  time  these  fatalities  occurred.    You  were  disqualified  from driving,  yet  you  drove,  and  in  a  vehicle  which  was  both  unregistered  and unwarranted.  Your driving was dangerous at the outset when you were clocked on Ferry Road at 89 kilometres per hour.  Regrettably, it then deteriorated further as you endeavoured  to  escape.     Your  driving  in  Fitzgerald  Avenue  involved  speed, dangerous  manoeuvres  and  ultimately,  and  fatally,  the  running  of  a  red  light. Thereby you took the lives of two completely innocent road users.

[16]     In summary, this was singularly selfish behaviour.   Instead of facing the consequences of your driving you sought to escape.  Thereby you put the safety and, ultimately, the lives of other members of the public at serious risk; simply because you did not want to accept responsibility for your own actions.

[17]     As  you  no  doubt  know,  Mr  Bannan,  the  only  sentence  that  can  be contemplated is one of imprisonment and the only questions which I must confront are what is the appropriate term of your sentence and whether you must also serve a minimum period of imprisonment before you will even be eligible to be considered for release.

[18]     Your counsel, Ms Bulger, and Mr Mackenzie for the Crown, have made available to me written submissions in advance of this hearing which I have considered.  They have tried to assist me by reference to past cases and I have read the various cases which they have referred to.  One is a case R v Time.1   He, like you, was involved in a police pursuit.  Three deaths resulted.  Others were also injured as a result of his driving.  He, too, was driving with an excess breath or blood alcohol concentration.  The starting point adopted in his case was 10 years’ imprisonment and the end sentence was eight years, with a four year minimum non-parole period.

But he was a  young man, 19  years of age, and a first offender.   Moreover, if anything, the approach of the courts to this type of offending has hardened since

2004.

[19]     The other case of particular relevance is the one to which Mr Mackenzie referred a moment ago, R v Popo.2   He was dealt with in Wellington in 2009 and his case also went for consideration to the Court of Appeal.  It involved a pursuit with the offender using a stolen vehicle.  Very high speeds were involved over a distance and by a driver who had an awful past record.  On the other hand there was no use of alcohol.  There was one victim, a police constable, who was in the process of laying

road spikes in an endeavour to stop the pursuit.  In that case a starting point of 10 years was adopted, but uplifted on account of the victim being a police officer and, in the end result, a sentence of eight years’ imprisonment with a five year minimum period of imprisonment was imposed.

[20]     These and other cases afford some guidance.  But in the end I must make my own way and assess this case because it exhibits its own unique cluster of features.  I accept Ms Bulger’s submission that perhaps your driving was not as bad as that

1      R v Time CRI-2004-004-44508 HC Auckland, 10 August 2004.

2      R v Popo [2009] NZCA 447, 30 September 2009.

involved in some of the other cases.  But the combination of alcohol, drunk driving, failing to stop and ultimately running a red light make this a very bad case of its kind.  It suffers, also, from the major aggravating feature that two lives have been lost as a direct result of the risks which you chose to run.

[21]     In my view the starting point which Mr Mackenzie advocated for, of 12 years’ imprisonment, is indeed appropriate.  Ms Bulger quite rightly has sought that the starting point be mitigated on account of your guilty plea.  I accept that your plea was entered at the first reasonable opportunity, albeit in the face of what was effectively an overwhelming case available to the police.   For all that, your pleas saved resources, brought some sense of finality, perhaps from the perspective of the victims’ families, and amounted to some acceptance of responsibility on your part. All in all I accept what Ms Bulger said, that it was of “significant value”.  I do not regard the case as marked by any other mitigating features.  The question of remorse is problematic for reasons to which I have already referred.

[22]     In my view the proper end sentence is one of nine years’ imprisonment.

[23]     I must also consider whether a minimum period should be prescribed.  That is necessary where deterrence, denunciation and protection of the community require that a case not even be eligible for consideration for parole until a defined period has passed.   In my view this is plainly a case where a minimum period should be prescribed.  All three factors – deterrence, denunciation and protection - demand as much; and I fix that minimum period at five and a half years’ imprisonment.  You are also disqualified from driving for a period of seven years.

[24]     Finally, Mr Bannan, these convictions are for serious violent offences.  That means you must receive a formal warning of the Court as to the consequences of further convictions of a like kind.  I am aware that Judge Erber in the District Court, in committing you to this Court for sentence, issued a warning.  For the avoidance of doubt I propose to repeat the warning at this stage.  If you are convicted of another serious violent offence and sentenced to imprisonment, you will serve that sentence without parole or without being eligible for early release.  Should you be convicted

of murder,  you will be sentenced to life imprisonment without parole, unless a direction to the contrary is made by the sentencing Judge.

[25]     Your record, Mr Bannan, will include reference to this warning and you will also be supplied with a written notice which sets out the consequences of further such offending.

You may stand down.