R v Clarke HC Palmerston North CRI-2010-039-000152

[2011] NZHC 253

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CRI-2010-039-000152

THE QUEEN

v

DANIEL HAMIORA CLARKE

Counsel:         P L Murray for Crown

E Forster for Prisoner

Judgment:      25 March 2011

NOTES ON SENTENCING OF GENDALL J

[1]      Daniel Hamiora Clarke, you appear for sentence having been found guilty by a jury in the Palmerston North High Court on a count of manslaughter.  You are also to be sentenced on the second count in the indictment to which you pleaded guilty, namely injuring whilst driving with excess blood alcohol.

[2]      The facts upon which I sentence you are well known to me as I presided at your trial and heard all the evidence.  I am able to make my own assessment of those facts.

[3]      Your case is yet another tragic example of a young person losing her life, and another being grievously injured, whilst passengers in a motor vehicle being driven at high speed by a young man, who was under the influence of alcohol.  When will young people, and those who provide them with alcohol, lawfully or otherwise,

come to realise that that combined with motor vehicles and irresponsible behaviour

R V CLARKE HC PMN CRI-2010-039-000152 25 March 2011

which follows upon the consumption of alcohol, is a lethal mix which inevitably leads to tragedy.

[4]      On the evening of 5 December 2009 you were socialising with good friends in Dannevirke.   From at least about 9.30pm you were drinking vodka and tequila mixes and you and your friends had consumed some cannabis mid-evening, but probably not to any great extent. Around about 11.30pm you and two young women friends decided to travel to Palmerston North to meet others, and carry on what you hoped would be festivities.   The women had had too much to drink, and were intoxicated through the consumption of vodka and tequila.   You were not much better.  But you elected to drive, despite some concerns being expressed by another person in Dannevirke as to your capabilities.

[5]      You later were to tell the police that as you left Dannevirke a cask of vodka was opened in the car. You and the passengers continued to consume it as you drove. Unquestionably your judgement and decision-making capacity was clouded by the consumption of alcohol, perhaps mellowed by the cannabis.  You later were to tell the police you had drunk a fair amount and were initially driving at 120kph to

130kph, but were encouraged by one of your passengers to drive faster.  There was evidence that you overtook another vehicle between Dannevirke and Woodville at high  speed.    One  witness  estimated  it  between  130kph  and  140kph,  another at between 140kph and 150kph.  It is a fair assumption that you were travelling at least

140kph, in old times 85mph.

[6]      Your front seat passenger was a lovely young woman, then aged 21.  When not far from Woodville she sent a text message to a friend to the effect that you could not drive straight and within minutes of that text she was dead because the inevitable had happened.  You approached a bridge and a moderately gentle right hand turning bend, which had an advisory speed sign of 85kph.  You clearly approached it at high speed and you drifted off the road.  You hurtled into first, a concrete abutment at the bridge.   Such was the force of that collision that the abutment was moved significantly.  The car then hurtled across the bridge smashing into it on two further occasions, before coming to a halt about 80 metres further up the road well past the bridge.

[7]      Your backseat passenger, a young woman aged 17, was grievously injured. She has survived, but has been left with serious lifelong incapacities. As I have said, your front seat passenger was killed almost instantly, although there were clinical signs of life, which remained for a very short period.  She was in the front left hand side of the car which absorbed the initial impact as it struck the concrete abutment to the bridge. You received only minor injuries.

[8]      Blood  alcohol  analysis  later  taken  showed  that  you  had  a  level  of  130 milligrams per 100 millilitres of blood.  But I note that was taken at a time much later and the scientific evidence was that your level at the time of the collision would have been much higher than that.  I use the word “collision” not “accident”, because it was not an accident.  In interviews with the police you admitted driving at high speed whilst affected by alcohol consumption, and admitted that you had killed and harmed your passengers.

[9]      You  defended  the  charge  of  manslaughter  as  you  were  entitled  to  do, essentially  putting  the  Crown  to  the  proof.    But  given  the  evidence  that  was presented, conviction was virtually inevitable.  Because you clearly caused the death of the front seat  passenger by driving at  a dangerously high  speed  affected by alcohol, and your actions were a substantial and major departure from the standard of care expected of reasonable motorists.

[10]     Of course, you did not intend the outcome.  Yet the tragedy arose because your judgment and ability to manage the lethal combination of alcohol and a car being driven at high speed was hopelessly impaired.   And you, as other foolish young men have learnt to their sorrow, and to the sorrow of their victims’ families, believed yourself to be invincible.

[11]     I turn to deal briefly with some of your counsel’s submissions about the facts. He submitted that the jury had “determined that your back seat passenger was the principal cause” of the death of Ms Pramm.  I need to tell you that that is not correct. The jury foreman delivered a question which was whether, if it thought it possible that the passenger’s movements after the first impact was the principle cause of death, would that be a reasonable basis for doubt. To which the answer was “No”.  It

is not a question that points to what the jury was thinking or as a whole thought. Individuals think, corporate groups such as juries do not.  It may reflect a query by one or more jury members.   But the only issue that matters is that the jury is a composite body which found proven beyond reasonable doubt the elements of the offence.  Mr Forster also submitted that it was not possible to assess the matters or matters the juries placed on weight such as on cannabis intoxication, or to assess what excess speed played in its decision;  or it was difficult to assess the conduct of bad driving.

[12]     It is well known that it is the trial Judge who undertakes the sentencing process, is required to determine from the evidence that he/she hears what is the factual basis for sentencing.  And I do so.  Speculation as to individual or collective thought processes of juries is fraught with danger.   It is impossible to guess what individual members may have been thinking in the process of their reaching their unanimous decision as to guilt.  It is clear to me from all the evidence that the jury’s verdict was clearly open to them.   It was based upon the evidence that you were driving significantly under the influence of alcohol, made perhaps slightly worse by a small consumption of cannabis, at a dangerously high speed so as to not being able to control the car which drifted off the roadway, smashing at considerable force into the concrete bridge, and with such force that your front seat passenger had no chance of survival.

[13]     All of that was obvious to you as you acknowledged to the police you had been speeding, you had been drinking and actually drinking whilst driving, and your actions had killed your passenger and you offer no excuse.  Your counsel submitted that this was a case where passengers were killed and injured, so is distinguishable from harm to strangers in oncoming cars or pedestrians.  So that, he said, places it into a different category.  Also that your passengers were aware of your intoxication. I do not regard that as a mitigating feature.  Your culpability is not reduced because your victims chose to ride in the car.  Neither contributed to what you did and one expressed alarm about driving in a text message.

[14]     I need to add that Mr Forster has submitted that it was mitigating that your

passengers may have “flicked your face” so as to distract you, and he bases that

submission on what one witness at the scene said that you made that claim to him. But  that  was  never  proffered  as  an  excuse  by  you,  and  properly  so,  in  your interviews to the police.  Nor was it claimed in evidence, or to the probation officer.

The victim impact reports

[15]     I turn to mention the effect of this tragedy upon your victims.   You have heard the victim impact reports or some of them read.  The families of the victims are victims themselves and mercifully they forgive you.  But one family has lost a much loved daughter and sister.   Another has to manage and care for a disabled daughter and sister.   The victim impact reports are distressing and typical of the widespread  grief and loss that follow  upon such events.   No amount of regret, remorse and sorrow can bring back the dead woman or restore to health Shayla Lawson.  Nor can any sentence make any difference to the victims and the families. You want, and would like, to turn the clock back and so would they, and there are countless people in the same situations.

[16]     But a prison sentence has to be imposed in the hope that it may make a difference to deter other young (and not so young) people from behaving in similar ways.   It seems that graphic television advertising showing events similar to what occurred here and “If you drink and drive you’re a bloody idiot” has not been enough.  You have learnt your lesson but you did not learn it on a previous occasion when you left the road whilst driving under the influence of alcohol.

[17]     Your personal circumstances are that you just turned 23 two days ago and you were 21 at the time.  You have five previous convictions, including one for driving with  excess  breath  alcohol,  one for  careless  driving and  one for driving whilst disqualified.   But you have a supportive family, held down a good job, have the support of the community and your whanau and there is much to be said for your future.  You have expressed remorse and I have read your letter to me.  I accept that your remorse is genuine.  It might have been better displayed by a plea of guilty to the primary count at an early stage, but you were entitled to defend and put the Crown to the proof.

[18]     General sentencing principles for this type of manslaughter are well known.  I am required to hold you accountable for the harm you have caused to the families of your victims and the surviving victim, to denounce your behaviour and to deter other drivers who speed at night whilst drunk, so as to try to deter behaviour which leads to such catastrophic consequences, which is reaching alarming proportions.   The

starting point is the somewhat historic case of the Court of Appeal in R v Skerrett,[1]

but sentences for motor manslaughter have increased considerably in intervening years.  Skerrrett lists a number of aggravating features which are relevant in fixing sentences for this type of crime.  The Crown says there are five in your case.  There may in fact be six.   But they certainly are first, the consumption of alcohol and drugs;   secondly, high excessive speed;   thirdly, drinking whilst you are driving; fourthly, persistent in deliberate bad driving, as you were seen to leave a residential street in Dannevirke, that is in a 50kph zone at 100kph;   fifthly, disregarding the warnings of another that you should not drive.  That is another other than the two victims;   sixthly, you were on a restricted licence and had previous  convictions relating to driving;  and lastly, apart from the one death grievous injuries occurred to a passenger.

[1] R v Skerrett CA236/86, 9 December 1986.

[19]     Regrettably, there are a large number of cases involving sentences imposed for manslaughter through driving whilst intoxicated at excessive speed and in serious dereliction of a driver’s duty, and all are different and dependent on their own facts. Some are more serious than yours, some are less.  Simply by way of example, in R v

Whiu,[2]  the Court upheld a starting point of nine years’ imprisonment, where an

[2] R v Whiu [2007] NZCA 591.

offender caused the death of a 16 year old driver of another car and seriously injured the passenger.  In R v Douglas,[3] a starting point of nine years’ imprisonment was also adopted but it was reduced by three years because of a guilty plea.  In R v Aiomanu[4] there was a starting point of eight years’ imprisonment adopted reduced to six years, again to take into account guilty plea and mitigating factors.  In R v Tu[5]  a starting point of seven  years would have been adopted but two persons were killed, so

eight years was taken but a discount for a guilty plea given.  And similarly in cases

such as R v Rutene, R v Prescott  and  R v Singh; R v Guest starting points of seven years’ imprisonment were adopted and also in R v MacSwain and R v Jagger, the latter being a case in which I was involved.[6]

[3] R v Douglas HC Hamilton CRI 2004-079-946, 13 July 2004.

[4] R v Aiomanu HC Christchurch CRI 2004-009-6616, 7 October 2004.

[5] R v Tu HC Gisborne S3/2001, 21 February 2001.

[6] R v Rutene HC Rotorua CRI 2006-069-1183, 26 September 2006, R v Prescott HC Auckland CRI 2004-004-19706, 15 July 2005 and R v Singh HC Auckland CRI 2005-092-163, 23 June 2006; R v Guest CA111/94, 20 July 2004; R v MacSwain CA37/05, 26 May 2005; R v Jagger HC Palmerston North CRI 2009-054-3889, 2 December 2009.

[20]     There are many other examples that can be given, but in your case your driving was extremely bad, although of shorter duration than in some other cases, and you were not a disqualified driver.  But in the end, comparison with other cases is invidious.  Just by way of illustration, Mr Forster has submitted as he is entitled to

do, that the case of R v Emerson[7] is more in line with your case and there a starting

point of three to four years was referred to.  That was a Solicitor-General’s appeal which had very unusual features of which I am familiar.   It was not driving on a highway, but for some reason showing off and testing a car’s speed along an airport runway, which endangered no one but the occupants of the car.  The accused had in fact used a “Dial-A-Driver” to transport him home after a drinking session, his home being adjacent to the airport runway.  And it was a case not really of motor manslaughter on the highway, but of the seriously negligent use of a dangerous object on an airport runway.

[7] R v Emerson CA203/02, 9 September 2002.

[21]     I have to say a starting point of three to four years as proposed by Mr Foster is out of the question.  The Crown say seven to seven and a half years, but in my view a starting point of six years’ imprisonment is justified to reflect the totality of this offending.  It could well be higher.  That, however, needs to be increased by six months by virtue of the fact that you have previous convictions for driving with excess blood alcohol and driving whilst disqualified.   They are serious personal aggravating features.  So from the six and a half years you cannot expect a discount for blameless record or personal features.

[22]     Mr Forster submits it is a mitigating feature that you pleaded guilty to the alcohol impaired driving causing injury charge and that is so for that charge.  But it

did not prevent there being a trial on the manslaughter count on which I sentence

you.  Your counsel’s letter to the police in May 2010 simply states that a guilty plea to a Land Transport Act charge would be entered provided that the manslaughter charge was withdrawn.  But the fact is the manslaughter charge was a proper charge and any offer to plead guilty to some lesser charge in return for the serious offence being withdrawn does not count as mitigation entitling to a discount.  Likewise, I do not regard the conduct of your passengers in getting into the car being driven by someone affected by alcohol as mitigating.  Obviously, it contributed to the causes of their death and injury because if they had not been in the car that would not have happened.   But it is not a mitigating feature when viewed against your criminal actions.

[23]     You would have been entitled to a significant discount for pleading guilty to the count of manslaughter and the law is you do not get such a discount by reason of going to trial.   But, as I will come to, I am prepared to incorporate an overall discount to reflect your remorse, your personal factors, good prognosis for the future and on the theoretical basis that you might have pleaded guilty on the day of trial. So the level of discount will incorporate all of those features, giving you additional credit  for  something  that  really  arises  out  of  mercy  than  application  of  fixed principle.  But I will incorporate the possibility of a guilty plea into the extent of the remorse that you show, because I accept that you are very remorseful and guilt ridden.

[24]     The  probation  officer  describes  your  demeanour  to  her  as  being  one  of drowning in grief and shame.  Having observed you during the trial, although you did not give evidence, I gained a distinct impression that you were remorseful and grief stricken, not just for your own predicament but for the outcome of what you did.  But remorse is sometimes said to be a “useless emotion” because it cannot undo the wrong and harm and change what has happened.  It cannot turn back the clock. But, it is something that can help rehabilitation and bring about healing, through the forgiveness of others.   I am encouraged to see that that has occurred with great courage and compassion on the part of your victims’ families.

[25]     Without remorse, repentance, or contrition, forgiveness is rarely possible. But you can be forgiven if you say you are sorry and are genuinely so.  And here,

with great courage and dignity, both families forgive you.   I accept you must live with the agony and grief knowing you have killed a young woman and badly injured another, and I accept also that you greatly regret your actions. The forgiveness of the families can heal  you but my duty to the community is to ensure that you are sentenced to a term that will deter others from acting in similar ways.

[26]     So from a starting point of six years with an uplift of six months for your previous convictions, I am prepared to allow you a concession or discount of 15 per cent.   That is slightly less than 12 months.   I will fix it at 12 months.   It reflects remorse, the hope for the future and is the discount that you would have received in any event for a guilty plea on the day of trial, but no more.   So I formally enter convictions in respect of you on each of the two charges.

[27]     On the count of manslaughter you are sentenced to a term of five years six months’ imprisonment.  On the count of injuring whilst driving with excess blood alcohol I take a starting point of three years’ imprisonment.  Because of your guilty plea  a  one-third  deduction  is  given  and   you  are  sentenced  to  two  years’ imprisonment on that count to be served concurrently.   You are to be disqualified from holding or obtaining a driver’s licence for a period of five years from the time of   your   release   from   prison.      Because   there   must   also   be   a   mandatory disqualification for the offence of injuring whilst driving with excess blood alcohol, on that charge you are disqualified for a period of one year from the date of your release from prison.  But that of course is concurrent with and absorbed within the five year disqualification on the lead charge.

[28]     I  do  not  propose  to  order  a  minimum  non-parole  period.    When  your eligibility for parole arises the Parole Board will be well able to determine whether continued incarceration in custody is necessary for the protection of the community. If the good things said about you remain, and your rehabilitation becomes complete, then there is hope for the future.  But that will be entirely in your hands.

[29]     Members  of  your  family,  that  is  the  Clarke  family  and  the  families  of

Ms Pramm and Ms Lawson, present in Court, I simply acknowledge the pain, agony,

grief that you all share.  It is something that we as High Court Judges see often and

have to deal with, with silent tears.  But I want to acknowledge your courage.

J W Gendall J

Solicitors:

Crown Solicitor, Palmerston North

E Forster, Hastings for Prisoner