R v Brook HC Tim CRI 2008-076-000988

[2009] NZHC 2345

IN THE HIGH COURT OF NEW ZEALAND

TIMARU REGISTRY

CRI 2008-076-000988

REGINA

v

CHRISTOPHER JOHN BROOK

Hearing:         3 November 2009

Counsel:         A R McRae for Crown

W van Vuuren for Prisoner

Judgment:      3 November 2009

SENTENCING REMARKS OF FOGARTY J

[1]      Christopher John Brook, on 9 February 2008 you caused the death of Vianne

Shead, a young girl aged 18, and injured several persons who had also been in your car.   You  caused  the  death  when  driving  your  car  you  failed  to  take  a  bend  on  a country  road,  driving  far  too  fast,  and  against  the  pleas  of  at  least  some  of  the passengers  in  the  car  for  you  to  stop.   You  were  driving in  this  way because  you were  on  the  run  from  the  police.  You  were  driving  away  from  a  police  pursuit because you feared for the personal consequences if you were caught driving a car with passengers at that hour and you had also been drinking.

[2]      The whole affair started at quarter past three in the morning of the Saturday morning when you and five of your friends returned to your car in order to be driven

home. You  had  been  drinking,  although,  you  were  not significantly drunk. You

R V BROOK  HC TIM CRI 2008-076-000988  3 November 2009

ended up with a blood alcohol limit of up to 190.   It was initially assessed by the police  at  the  scene  at  150  and  you  were  told  at  the  time  that  you  would  not  be charged with drink driving.

[3]      I am not dwelling on the details of it but the significance of it though is that you had been drinking.  You are a young man.   You had been drinking.   You knew you  had  been  drinking.           You  had  a  previous  conviction  for  excess  blood  alcohol committed on 12 May 2007.

[4]      So in the first place you should not have been driving at all.   Secondly, you should  not  have  had  five  passengers  as  there  was  no  room  for  the  deceased, Miss Vianne Shead, to be seated with a seat belt on.   She lay across the laps of the three passengers seated in the rear of the vehicle.

[5]      You  were  driving  into  Church  Street  here  in  the  city  of  Timaru  when  a uniformed marked police vehicle activated its red and blue flashing lights and from that point on you accelerated and were pursued by the police.   It is quite significant that  the  police  followed  what  are  obviously  standard  procedures  of  not  putting pressure on you.   For example, the police pulled back at intersections and generally followed  you  but  in  a  manner  which  was  designed  not  to  put  pressure  on  your driving.

[6]      In fact, before the accident occurred the pursuit police vehicle had turned off the siren and the lights and you were out in the country. It is difficult, I would think, for  just  about  all  of  us  in  this  room  here,  to  understand  why  young  people  like yourself  behave  in  such a  reckless  and  dangerous  fashion  putting lives  at  risk  and leading  to  the  tragedy  that  we  face  today. On  any  view  of  it  this  was  serious offending.

[7]      Your counsel, Mr van Vuuren, did argue, however, with the police and the Crown as to what the charge should be. The Crown were always of the view that the appropriate charge should be one of manslaughter. Mr van Vuuren was arguing that

in the circumstances of this offending the more appropriate charge would be reckless driving causing death.

[8]      The Crown have a discretion and a responsibility for choosing from available charges what is the appropriate charge to lay.  It can have significance as it can lead

to a different term of imprisonment.

[9]      To your credit you were always prepared to acknowledge your responsibility and guilt for the death of Vianne Shead. Your lawyer was not arguing about your culpability in terms of causing death but was arguing as to whether it was appropriate for you to be charged with manslaughter rather than reckless driving causing death. I consider that that was a legitimate argument and he was entitled to pursue that through at least to the end of the hearing in front of French J in March of this year. You did not, however, enter a plea of guilty, after that decision confirmed that the trial would proceed on a manslaughter charge, until some time later.  It is slightly complicated by the arrival of an amended count where the alternative charge

of reckless driving causing death was going to be put to the jury.   So your lawyer was no doubt considering the chances of persuading the jury not to convict you on manslaughter but rather to convict you for reckless driving causing death.

[10]     I have gone into this issue in some detail, if I can explain to the family and public in the Court here, because it does affect to what extent you get a discount for the plea of guilty because the longer or the later the plea of guilty, the smaller the discount.

[11]     I am sentencing you today against a sentencing indication that was given to you by Panckhurst J in September which was prior to the decision of the Court of Appeal in R v Hessell [2009] NZCA 450 which came out on 2 October 2009, which introduces a new set of guidelines as to sentencing discounts and, among other things, I understand would not allow consideration to be taken of legitimate attempts

by  your  counsel  to  persuade  the  Crown  to  lay  a  lesser  count  of  reckless  driving causing death.

[12]     That sentencing indication proceeded on the basis that the starting point sentence for offending of this seriousness would be in the range of seven  to  eight years. In the submissions that I have received  from  both  the  Crown  and  your solicitor the highest starting point could be nine years and the lowest could be below

seven years. I  am  referring  particularly  to  the  decisions: R  v  Tairi  HC  HAM T033323 20 April 2004, Priestley J;  R v Douglas HC HAM CRI 2004-079-000946

13 July 2004, Laurenson J;  R v Silbery HC CHCH CRI 2005-009-012625 12 April

2006 John Hansen J;  and R v Norton HC CHCH CRI 2008-209-000233 6 June 2008

Panckhurst J.

[13]     In your particular case I can see why Panckhurst J took the period between seven to eight years.  Compared with these other cases your level of intoxication was not as bad as it has been in other cases and the level of recklessness in your driving was  not  as  significant  as  in  some  of  these  other  cases.  All  in  all  I  am  quite comfortable and independently confirm that the starting point should fall within the range of seven to eight years.

[14]     In this particular case I have tried to balance two factors.   First, against you, this car journey went for over 25 kilometres.  You had plenty of time to change your mind.  You had plenty of time to come to your senses, but you did not.

[15]     Against that, I have studied closely the police evidence as to the actual accident and have read the crash investigation report with its technical description of the crash. You were taking a corner. You were travelling below the speed limit but too fast for the corner. It was the kind of accident that can occur by speeding drivers

in circumstances where a charge  of  manslaughter  would  not  be  laid. I  think  the reason for the laying of the charge of manslaughter was more directed to the length

of the chase and your consumption of alcohol.

[16]     I should say to the members of the public who are here that manslaughter charges are very difficult to sentence. We  do  not  have  what  we  call  sentencing tariffs  or  guidelines  because  the  facts  of  each  case  differ  considerably. In  this instance I think the appropriate starting point for sentence is seven years and then I come  to  the  question  of  whether  there  should  be  any  aggravating  or  mitigating factors that I have not already taken into account.

[17]     I have mentioned already  that  you  have  one  previous  conviction  of  excess blood  alcohol  in  2007. They are all serious  with young  people. You  were  fined

$400, ordered to pay Court costs of $130 and disqualified from driving for a period

of  three  months,  which  indicates  that  it  was  not  a  serious  excess  blood  alcohol offence.  That, however, is an aggravating feature.

[18]     The mitigating features that are in your favour is that you were only 18 at the time of the crash, in a sense, not mitigating features, but it is part of the policy of Parliament not to expose young men for unnecessary long times in prison for fear of consequences  that  they  will  come  out  more  criminalised  than  when  they  went  in. The next question is your plea of guilty.

[19]     Taking all these factors into account I am of the view that you are entitled to

a  discount  of  more  than  10%  for  the  plea  of  guilty.   But  I am  not  going  to  put  a figure on it.   I am going to bundle that with your youth and then take into account also  the  aggravating  feature.  In  my  judgment  combining  both  the  positive  and negative effects of that you are entitled to a reduction of one year from the starting point.

[20]     Accordingly, you are sentenced to six years in prison.

[21]     Mr  Brook,  that  will  be  a  long  time,  depending  on  when  the  Parole  Board decides whether or not you are to be released.  It is to your credit that the Department of  Corrections  report  indicates  that  there  is  an  extremely  low  probability  of  you reoffending.    This  case  is  a  tragedy  for  everybody  here,  and  for  the  family  of Ms Shead, and for you.

[22]     You are disqualified from driving or holding a driver’s licence for five years.

Solicitors:
Gresson Dorman & Co, Timaru, for Crown
Petrie Mayman Clark, Timaru, for Prisoner