R v Bell
[2023] NZHC 416
•7 March 2023
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2022-404-004680
[2023] NZHC 416
THE KING v
CALEB BELL
Hearing: 7 March 2023 Appearances:
H Steele and A Mackenzie for Crown
P L Borich KC for Defendant (by VMR)
Sentenced:
7 March 2023
SENTENCING NOTES OF VENNING J
Solicitors: Meredith Connell, Auckland Counsel: P L Borich KC, Auckland
R v CALEB BELL [2023] NZHC 416 [7 March 2023]
[1] Caleb Bell, you are for sentence this morning having pleaded guilty to two charges of attempt to murder and one charge of driving with excess breath alcohol. The maximum penalty for the charges of attempted murder is 14 years’ imprisonment in each case.
[2] At about 2.00 pm on Wednesday, 25 January 2022 you were driving your Mitsubishi car north on Manukau Road in Epsom, Auckland. At the same time two young women, the victims of your offending, were standing waiting at a bus stop on Manukau Road near the intersection of Kimberley Road. The victims were unknown to you. As you approached the victims at approximately 50 km/h you suddenly swerved your car to the left, and, without braking, deliberately drove into the victims intending to kill them.
[3] The first victim was thrown onto the bonnet and hit her head on the car’s windscreen causing the windscreen to smash. Your car came to a stop against a brick wall pinning both victims until they were able to be freed by members of the public. Both were taken to Auckland Hospital for treatment.
[4] A short time later Police arrived and located you at the scene. You were clearly affected by alcohol. Breath test procedures were carried out and a result of 793 micrograms of alcohol per litre of breath was obtained.
[5] As a result of the incident the first victim sustained a broken right ankle, broken left tibia, fractured shins, and extensive bruising to both legs. She has no memory of her head hitting the windscreen. She has multiple scars on her legs and ankle. The other victim sustained serious bruising to her left leg and has been left with skin discolouration and dent. Apart from the physical injuries it is apparent from the victim impact reports that the victims have been suffering ongoing stress and mental anguish.
[6] When you were spoken to by Police at the scene you said, “I finished my drink at the bar and after that I was feeling suicidal and feeling like killing people. I was driving past and saw two females on the side of the road so I thought just hit them, why not?” Later that same afternoon you took part in a recorded video interview at the police station. In the course of that interview you stated that life, both yours and
generally, was meaningless. You thought you may as well end your life and take some people with you. You confirmed your intention was to kill the victims even though they were unknown to you. You also said you had previously fantasised about killing people.
[7] In sentencing you the Court is required to have regard to the purposes and principles of the Sentencing Act 2000 to the extent they are relevant. In your case most of the relevant purposes are actually engaged. The sentence the Court imposes must hold you accountable for the harm done to the victims and the community by offending of this nature. It must promote in you a sense of responsibility for and acknowledgement of that harm, and provide for the interests of the victims. The sentence must also denounce your conduct and deter you and others from committing the same or similar offending. A related purpose is to protect the community from you. Finally the Court must also impose a sentence which is directed at your rehabilitation and reintegration into society in due course.
[8] The particularly relevant principles in your case are the gravity of the offending, particularly or including your culpability in this case. The Court is also required to take into account the general desirability of consistency with other sentences for similar offending. Finally, the Court is to take into account your personal circumstances and impose the least restrictive outcome appropriate in all the circumstances.
[9] The Crown submits that a starting point of nine years could be taken by the Court. The Crown accept that a full discount of 25 per cent could be applied for your guilty plea and a further 25 per cent reduction could be applied for a combination of your personal circumstances so that an end sentence in the region of four and a half years could be imposed by the Court. The Crown suggests a minimum non-parole period should be applied.
[10] Mr Borich KC has argued that a start point in the region of six to seven years would be more appropriate. He has then referred to the number of personal mitigating factors which he seeks to rely on to reduce that sentence including your plea, mental
health issues, your immaturity, lack of previous convictions, and your remorse and willingness to undertake treatment.
[11] The first issue for the Court is to fix a starting point for the offending itself. In taking the starting point of nine years the Crown referred to the decisions of R v Bolt and R v Pukeroa.1 In Bolt the defendant and his associates drove a car towards a victim unknown to them. The attack was unprovoked. The defendant hit the victim with the vehicle. The defendant then got out of the car and continued to attack and assault the victim. Applying guidelines in a Court of Appeal decision of R v Taueki the Judge took a 10 year, six month starting point.2
[12] Mr Pukeroa faced a number of charges, including an attempted murder. The circumstances of his offending were quite different. He had been seriously assaulted himself by a number of rival gang members who also stole his car, set it on fire and pushed it over a cliff. A short time later Mr Pukeroa spotted a member of the rival gang when he was in a car, and he drove at speed towards him, and mounted the curb in an attempt to run him over. The victim narrowly escaped unharmed. On the charge of attempted murder the Judge indicated a starting point of nine years would have been appropriate, noting the gang war context and the use of the car as a weapon.
[13] As the Crown properly acknowledged and Mr Borich submits, there are differences between those cases and your case obviously. Your offending lacks the additional violence, persistence and level of injury in R v Bolt and the element of gang conflict in R v Pukeroa.3
[14] Mr Borich referred to a case of R v Pengelly.4 Mr Pengelly had slit a victim’s throat. The Court took a starting point of nine and a half years for the attempted murder. Mr Borich referred to that case as a much more serious case which confirmed the Crown’s starting point of nine years in this case was too high.
1 R v Bolt HC Rotorua CRI-2009-007-1497; and R v Pukeroa HC Rotorua CRI-2009-063-000697, 10 December 2010.
2 R v Taueki [2005] 3 NZLR 372 (CA).
3 R v Bolt; and R v Pukeroa, above n 1.
4 R v Pengelly [2013] NZHC 527.
[15] Mr Bell, I agree your case is quite different to the cases that have been referred to. However, you used a car as a weapon. Cars can be as dangerous as a firearm or knife and can inflict terrible injuries. You used the car to attack and attempt to kill two innocent victims. While I accept the attack was random, in the sense that you did not know the victims and it did not involve any particular planning on your part, it was obviously a deliberate act as that is one of the elements of the offence. Further, such an act had been in your mind for some time, if not these victims, perhaps others would have suffered. I do not consider the fact you also intended to kill yourself to mitigate your culpability in any way. You could have driven at a lamppost or a tree if that was your sole aim.
[16] In my assessment, your offending falls towards the more serious range of band 2 in R v Taueki. The use of the car as a weapon was exceedingly dangerous. The victims were severely injured. They continue to suffer ongoing issues as a result. They were to a degree vulnerable as they were completely unprepared for your unexpected and random attack on them. Further, and relevantly, there were two victims affected by your actions. You face two charges of attempted murder. In my judgment, assessing the matter overall, a starting point of eight years is required to address the purposes of the Act and the principles I have referred to.
[17] There are no personal aggravating factors. You are a young man without any previous convictions.
[18] You were brought up in a close family, and a supportive family. You had a large degree of involvement with your maternal grandmother. It seems you struggled to come to terms with her death and resorted to alcohol to cope, or help you cope. You became addicted to alcohol at a young age. You became withdrawn. To compound the issue it seems you did not get on well with your stepfather.
[19] I have had the opportunity to consider the medical reports from Dr Ruth Allan, the clinical psychologist who has seen you for the purposes of sentencing. She confirms that despite your previous issues, you have engaged with rehabilitative efforts and your mental health is now stabilised. Overall the reports can be said to be positive and they confirm you are responding well to treatment.
[20] While you entered guilty pleas at a relatively early stage of the proceedings your actions could not be disputed and given your admissions in the interview the Crown case against you was a strong one. The allowance of 25 per cent, which the Crown concede for your guilty pleas, is perhaps generous, but I am going to accept it.
[21] There are clearly some mental health issues in your background which go some way towards diminishing your culpability in this case. I allow a 10 per cent for that. At the age of 26 you have no previous convictions and you are entitled to a credit for that. Clearly at the time leading up to your offending you were at a low point in your life. You were not taking medication. You were disconnected from counselling support services and you faced the addiction to alcohol. For your personal circumstances, including your clear record, I allow a further 10 per cent reduction.
[22] I also accept, noting the pre-sentence report, and other material before the Court, that the remorse you have expressed for your actions is genuine. As noted, you are engaging with treatment and attending rehabilitation with Community Alcohol and Drug Services. You are to be commended for that. You have commenced and have continued that rehabilitation from relatively shortly after your arrest and admission to bail. For your genuine remorse and prospects of rehabilitation I allow a further 10 per cent.
[23] Overall, that amounts to reductions of 55 per cent, which is a large reduction. That reduces the end sentence to three years, seven months. While the Crown have suggested the Court could consider an increased minimum non-parole period I accept Mr Borich’s submission that the considerations in s 86 of the Sentencing Act 2002 are, in your case, adequately reflected in the starting point and the term of imprisonment imposed. The issue of your appropriate release date is best left to the Parole Board. That will provide further incentive to you to take advantage of the relevant rehabilitative programmes that may be available.
[24] Mr Bell please stand. On each of the charges of attempted murder you are sentenced to three years, seven months’ imprisonment. On the charge of driving with excess breath alcohol you are sentenced to three months’ imprisonment. The sentences are concurrent.
[25] You are also disqualified for one year from driving or holding a driver’s licence.
[26]Stand down.
Venning J
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