R v Christy HC Napier CRI 2010-220-36

[2011] NZHC 42

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI 2010-220-36

THE QUEEN

v

TUOHO MARIRE TA MOKO TINI CHRISTY

Hearing:         7 February 2011

Counsel:         C R Walker for Crown

S Jefferson for Accused

Judgment:      16 February 2011

SENTENCE OF RONALD YOUNG J

[1]      Ms Christy you are now for sentence on two charges of manslaughter you having pleaded guilty shortly after your trial began.  Firstly I am going to recount the facts.

[2]      On the evening of the 30th/31st  of October 2009 you and a number of other young people went to a party.  You were 16 years of age at the time.  You went to a party in a van owned by one of the young men.   You were picked up late in the journey to the party.  No arrangements had been made by those who drove the van or owned the van for a sober driver that evening.  There were no clear arrangements about who would drive the van back or whether the young people would stay the night at the party address or whether someone else would pick them up.  Certainly there was no suggestion as you went to the party in the van that you would drive

home.

R V TUOHO MARIRE TA MOKO TINI CHRISTY HC NAP CRI 2010-220-36 16 February 2011

[3]      All of those who hoped to travel back in the van drank during the evening. Some drank large amounts of alcohol.  You drank a significant amount of alcohol for a young woman.

[4]      Sometime  after  1.00 a.m.  the  party  ended  and  a  discussion  took  place between those who wanted to travel home and how they would do so.  Several of those who wanted to go back in the van suggested you should drive because you were apparently the least drunk.  It was certainly not suggested you were sober.  You did not want to drive initially.   You resisted.   It is clear to me that your initial resistance was overcome by others who were insistent you should drive.  You then agreed to drive home.

[5]      There were seven in the van including yourself.  Two young men in the front with you and four others in the back.  In the back of the van was a domestic couch which was not bolted to the floor of the van at all.   There were no functioning seatbelts in the rear of the van.  There was another bench seat in the back of the van which was only lightly tethered.

[6]      The van had some serious mechanical problems.  It was difficult to get into third gear and so the young man beside you was there to help with the gear changes. The rear tyres of the vehicle were in very poor condition.   The steel belts had become delaminated.  There was a dangerous mix of tyres on the van.  Those who had driven the van, including the owner, knew that at speeds of 80 kilometres an hour and more the van began to sway disconcertingly.  It was possible for a sober, experienced and careful driver to have controlled the vehicle at that speed but it clearly took some skill.

[7]      And  so  you  proceeded  along  State  Highway 50.    You  were  unable  to satisfactorily control the van.   A truck driver travelling behind the van saw you weaving   across   the   road   on   several   occasions   as   you   approached   the Tutaekuri Bridge.  As you did so a Mazda Familia vehicle with a young man and a young woman were travelling in the opposite direction.  The young man saw your vehicle weaving across the road.  He pulled as far as he could across to the left side of the road but he was on the bridge and he had limited options.  As you came onto

the bridge you swung across the road and struck the Mazda.  The van rolled over the Mazda’s bonnet and onto its roof and flipped to land on the edge of the west side railing of the Bridge.   The rear part of the van was hanging over the edge of the railing.  Three of the four people in the back of the van were thrown onto the river below.  Others were thrown out onto the Bridge.  Two of the young men who were thrown onto the river died in the crash.  Others were seriously injured.

[8]      You were driving when you should not have been driving.  You had a learners licence only.  You were not entitled to drive other than with a person who held a licence for at least two years.  There was no such person in the van.  You had only had your learners licence for five weeks before the accident.

[9]      Secondly,  you  drove  with  an  excess  breath  alcohol.     Your  level  was

105 milligrams three times over the maximum allowed for someone your age.  And of course finally, you drove dangerously across the other side of the road.

Pre-sentence report

[10]     The pre-sentence report is extensive and helpful.   It records you have no previous convictions.  Regretfully since the accident you have not returned to school. You have no qualifications, nor any full time job.   I accept that you have been somewhat in limbo waiting for this case.

[11]     You have had, the report records, difficult immediate family circumstances but fortunately a very supportive wider family and friends.   I especially want to mention and acknowledge the support of the Lindsay family.   These events have been, as the report records, hugely traumatic for you.  I accept that you are deeply remorseful and you have had strong thoughts and some actions towards self harm. You have lost a considerable amount of weight as a result of the emotion of these events.  Regretfully it seems you have turned even more to alcohol and drugs.

[12]     There is no question that at 17 years of age you have a drug and alcohol problem.    If  you  doubt  that  you  consider  your  drunkenness  that  night  of  the

31st October and where that has brought you and the consequences for so many people here today.

[13]     Mr Lindsay has said that the guilt you carry has turned your life upside down. And so it should be.  You can either let this guilt ruin your life by more drugs and more alcohol trying to forget what has happened.  Or you can pay the memory of these young men you killed the greatest compliment by turning your life around.  By turning away from drugs and alcohol and by making something of your life in their memory.

Victim impact

[14]     I want to acknowledge the victim impact reports I have read.  They remind us that two wonderful young men have died and others have been seriously injured. The reports illustrate the terrible cost that these events have had on these two boys’ families and others.  They remind us of the stress of functioning day to day and the deep unrelenting pain of loss that these families suffer.

[15]     The mother of one of these young men asks that you remember that there are to be no summers, no beach, no birthdays and no family life now for this young man. She  especially  asks  that  you  remember  those  facts  when  you  are  serving  your sentence and asks that you have a positive and meaningful life.   I want to acknowledge the victims today, their grief, their courage to complete these reports and their courage to be here today.

Crown submissions

[16]     The Crown say that in this case the aggravating features relate to: (a) driving with a learners licence;

(b)      driving with an excess blood alcohol;

(c)       driving dangerously with unrestrained passengers; and

(d)      they stress the loss of lives and the very serious injuries.

[17]     They accept in mitigation to an extent the poor condition of the vehicle and the circumstances under which you came to drive.   They emphasise ordinarily a sentence of imprisonment would be imposed but they accept that in this case one is not required.

Defence submissions

[18]     I take into account the submissions that your lawyer has filed in writing and what he has said today.   He stresses the contribution of the defects of the motor vehicle to the crash, the circumstances leading to your driving and the fact that you consumed alcohol never intending to drive.

[19]     He also stresses your personal circumstances, your age, your co-operation and your acceptance of responsibility and remorse.

My comments

[20]     If you were an adult the features of your driving in this case driving with the learners licence in breach of the law, driving with an excess breath alcohol, driving across the road into an oncoming car and killing two people and seriously injuring others,  then  a start  sentence  of  up  to  five  years’ imprisonment  could  easily be imposed.

[21]     You were not entitled to drive.  You were too drunk to drive.  And when you drove so poorly you killed two people and seriously injured several others.

[22]     I accept from this start point I must deduct the mitigating features relating to your driving.  You were convinced by others, even drunker than you, that you should drive.   Initially you did not want to drive and you did resist initially.   You were overwhelmed by their view of what was safe.  But in the end the decision was yours and of course it was simply a stupid decision.

[23]     You drove an unsafe vehicle, one in which others in the van knew was unsafe but one which you had not driven before.   As it turned out you had neither the experience nor the soberness to control the vehicle.   These mitigating features substantially reduce the start sentence.  There are also personal mitigating features. You have no previous convictions.  You were 16 years of age at the time of these events and so your youth is relevant. You are, I accept, deeply remorseful.

[24]     You pleaded guilty.  The plea was late but the circumstances unusual.  It is clear you have always, including the night in question, accepted responsibility for the crash.  The reason you pleaded not guilty was an expert report obtained by your counsel which seemed to say the final events involving your driving of the van were not your fault.  Having heard the evidence it was clear there was no factual basis to support this conclusion.   When that became clear you pleaded guilty.   In these unusual circumstances, and I stress unusual, I consider you should have a substantial discount  for  your  guilty  plea.    No  doubt  your  acceptance  of  responsibility  by formally pleading guilty meant a lot to the families of the victims.

[25]     And so I am satisfied that although I have not specifically articulated the discount for the mitigation relating to the facts and you personally, a sentence of imprisonment within the range where I can impose home detention is appropriate. This would reduce the starting sentence of around five years’ imprisonment to near two years’ imprisonment.  And in the unusual circumstances of this case I consider that a sentence of home detention is appropriate together with community work. Such a sentence is never intended to reflect what a life is worth.  You will of course have a life sentence knowing that you have killed two young men.

[26]     Before I formally impose sentence I wish to pose some questions which you and others may wish to think about.   The questions arise from this case and from many other cases where young people have died in similar circumstances.  I want to stress  that  these  questions  involve  no  criticism  of  anyone.    There  are  simply questions which I think those in this courtroom and in the wider community need to think about.

[27]     How is it that 15, 16  and 17 year old boys and girls are drinking six or 12 or more bottles of ready mix spirits or a dozen or more bottles of beer?  What examples are they following?  Who is supplying them with this alcohol?  Why are they able to go to parties in vehicles when they are going to drink so much?   Why are they allowed to stay out all night drinking?   Who makes arrangements for them to get home safely and at a proper hour?   Why can’t our young people understand that choosing the least drunk driver might kill them?   Why do so many of our young people have this attitude to drinking and driving?  These may be some questions that the community wants to ask itself.

[28]     The probation report suggested that perhaps I should not impose a sentence of community work because you may come in contact with others who have committed crime.  Well that may be true but in my view it is more important to mark these events with a clear punishment in addition to the sentence of home detention which in itself is a severe punishment.

[29]     I therefore sentence you in this way.  You are sentenced to 10 months home detention.  You will also do 300 hours community work and you will be disqualified from holding or obtaining a drivers licence for seven years.

[30]     As to home detention sentence there will be the following special conditions:

(a)      you will proceed directly to 31 Hamoana Road and await the arrival of the probation officer and reside there during the duration of your sentence;

(b)secondly, you are not to be in possession of or consume alcohol or illicit drugs throughout the time of your home detention;

(c)      thirdly,  you  will  abide  by  the  requirements  of  the  electronically monitored sentence as directed by the probation officer;

(d)fourthly, you will attend an alcohol and drug assessment, and if found suitable, complete a programme to the satisfaction of the probation officer;

(e)      fifthly and finally, you will attend and complete any other counselling as directed by the probation officer.

[31]     I warn you now Ms Christy you breach these sentences and despite your age you can expect to go to prison.

Ronald Young J