R v De Reeper
[2021] NZHC 1336
•3 June 2021
IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY
I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE
CRI-2019-025-001690
[2021] NZHC 1336
THE QUEEN v
JACQUES JOHN DE REEPER
Hearing: 3 June 2021 Appearances:
M B Brownlie for the Crown
S G Vidal and K L McHugh for the Defendant
Judgment:
3 June 2021
SENTENCING REMARKS OF NATION J
[1] I assume there are some from Mr Robinson’s family in Court and I just want to assure you that I have carefully read the victim impact statements that were provided. I understand the hugeness really of this loss and the way it has affected those in Mr Robinson’s family. It is particularly tough for his elderly parents who should never have had to experience the death of their son when they were still alive. So, I do acknowledge those who have been victims of this offending.
[2] Mr De Reeper, I must sentence you on the charges of manslaughter and dangerous driving to which you pleaded guilty on 13 April 2021. Much of what I must say now you heard at the time of your sentence indication but it is necessary that I repeat it, particularly so when there are people in Court who were not present at the time I spoke earlier.
R v DE REEPER [2021] NZHC 1336 [3 June 2021]
[3] The charges relate to the way you were riding your 1994 Suzuki RF 900 road bike on 13 April 2019 when returning from the Orepuki Café to Invercargill in the late afternoon. You were riding your motorcycle in conjunction with two friends. One was riding a 2008 Kawasaki ZX 1000 motorcycle. Garth Robinson was riding a 2005 Suzuki Hayabusa GSX road bike.
[4] Your bike had power restrictions intended to restrict it to a maximum speed of 180 kph. Mr Robinson’s bike had a top speed of 303 to 312 kph.
[5] Mr Robinson overtook you at considerable speed just before a 75 kph advisory corner. He applied his back brake but was unable to slow down in time for the corner. He careered off the road, through a fence and came to rest in a paddock and ultimately died.
[6] Mr Robinson’s motorcycle was fitted with front and rear cameras from which the Police obtained detail of the way Mr Robinson, you and your associate were all riding your motorcycles that day.
[7] Analysis of the footage from earlier in the day indicated there were several occasions when all three riders overtook either each other or other vehicles travelling in the same direction and, in doing so, passed on no-passing yellow lines. You were observed overtaking Mr Robinson at Pukemaori between Tuatapere and Otautau on a double yellow line at a bend in the road. The charge of dangerous driving was based on that driving.
[8] The charge of manslaughter was based on evidence as to your riding the motorcycle at grossly excessive speeds after you all left the Orepuki Café. The way you rode at a dangerous speed, speeding up and passing Mr Robinson at great speed on several occasions, encouraged Mr Robinson to ride in a similar way. He ultimately approached a corner at a speed of 240 kph, did not take the corner, crashed his motorcycle and was killed
[9] After leaving the Orepuki Café, you passed Mr Robinson at a speed of 180 kph. You did not slow down. Mr Robinson then accelerated to catch up, ultimately passing you and the third motorcyclist at 196 kph.
[10] The footage then showed you leaving an intersection first, followed by the other associate, with Mr Robinson a short distance behind.
[11] Mr Robinson accelerated to 180 kph. He slowed to 123 kph for a gentle left curve but sped up to pass you and the associate at a speed of 216 kph. He then increased his speed to 227 kph before slowing to 111 kph for a second left curve. Just after the second left curve, Mr Robinson was accelerating. You then overtook him. He was travelling at 149 kph.
[12] Immediately after this, Mr Robinson overtook you again as you were both passing the 75 kph cautionary road sign, approaching a left hand corner in the road.
[13] That was when Mr Robinson reached a speed of 240 kph as he passed you. He then applied his rear brake but was unable to negotiate the corner and crashed through a fence, coming to rest in a paddock. You and other passers-by went to him where he was lying unconscious in the paddock. Police and ambulance attended. Mr Robinson was placed in the ambulance and was being attended to by paramedics. However, his condition deteriorated and he died as a result of his injuries.
[14] After Mr Robinson had slowed down for the first gentle left curve to the point where you overtook him before he accelerated at the cautionary 75 kph sign, you were travelling at an average speed of 178 kph.
[15] Between the point when you overtook him and the point where Mr Robinson overtook you, the summary says you were travelling at an average speed of 192 kph.
[16] Two witnesses at a nearby milking shed heard the sound of screaming engines. They likened it to the sound of a formula one racing car travelling at high speed. Looking towards the Argyle Otahuti Road, they saw you and Mr Robinson travelling
at high speed in what they described as a race. They saw Mr Robinson overtaking you and, moments later, they witnessed him crash.
[17] For the sentencing indication hearing, your counsel, Ms Vidal, submitted that “racing is perhaps not the best term to describe the driving behaviour on the day”. She quite properly recognised the validity of the opinion obtained from Mr Holmes, an experienced motorcycle racer and mechanic. Ms Vidal summarised his report in a manner which I adopted for the sentence indication:
In essence, his opinion appears to be that the riders were not being responsible. They were each thrill seeking on their bikes. Whilst the defendant [that is you] is an extremely skilled rider, and the riding he was doing was within his capabilities, he should not have been riding in the manner he was, outside of a race track. He was breaking speed and other road rules in his riding that day.
[18] Your counsel submitted, based on Mr Holmes’ report, the level of thrill- seeking Mr Robinson engaged in unfortunately went beyond his riding capabilities. In saying that, she was relying on the opinion of Mr Holmes. For reasons he set out, Mr Holmes was of the opinion that, when Mr Robinson finally braked for the corner, he applied only the rear brake when the front brake, as Mr Holmes put it, is “a far more efficient brake on a sports/touring bike”. Mr Holmes said Mr Robinson did appear to operate the front brake just prior to leaving the tarmac, as indicated by the front wheel tucking under, but by that time the crash was already imminent and he was heading towards the water table.
[19] The Police interviewed you initially and again on 10 September 2019, after they had obtained eyewitness accounts and analysed the camera footage on Mr Robinson’s bike. You denied exceeding 100 kph at all during the day and maintained the sole cause of Mr Robinson’s death was that he did not apply his front brake moments prior to the crash.
[20] In pleading guilty to the charge of dangerous driving, you accepted that you and the other two riders overtook each other or other vehicles travelling in the same direction and, in doing so, passed on no-passing yellow lines.
[21] In pleading guilty to the manslaughter charge, you have accepted that there were times when you passed Mr Robinson’s motorcycle when both of you were riding at dangerous speeds.
[22] With my sentencing indication, I accepted that Mr Robinson contributed significantly to his death through the grossly excessive speed at which he was riding and ultimately the mistake he made in the way he braked before the corner, initially just using his rear brake. Unfortunately for him, you and his family, with a motorcycle as powerful as he was riding and the speed at which you were both riding, there was absolutely no margin for error.
[23] I took judicial notice of the fact that the 75 kph cautionary road sign was likely to have been positioned far enough away from the left-hand bend to advise drivers or motorcyclists, travelling at legal speeds or even a little above that, of the need to slow down to 75 kph for the corner. That cautionary road sign would not have been positioned far enough away from the corner to provide ample time for a motorcyclist travelling at 240 kph to slow down to an appropriate speed for the corner. Travelling at 240 kph, Mr Robinson may not have even seen it.
[24] However, the way you rode your motorcycle and participated in what you thought was this thrill-seeking experience was a significant contributor to Mr Robinson riding his bike at 240 kph as he approached the left-hand bend.
[25] In pleading guilty to the manslaughter charge, you have accepted your actions and riding on the day were a significant contributing cause to Mr Robinson crashing and thus his death. Through riding in the manner you did, you encouraged Mr Robinson to ride his motorcycle at grossly excessive speeds, on a road not designed to be used as a race track or as some sort of testing ground to see how fast you could both ride your bikes.
[26] At the time of the crash, you were 62 years old. You had ridden and raced motorbikes for a number of decades. You are mechanically minded and were familiar with the capabilities of all motorbikes being ridden that day.
[27] As I referred to in my sentencing indication, one reference was from the manager of a company who said he had known you since 1982 when you were involved with motorcycle racing in Southland and you would take a group of local motorcyclists to different events around the South Island, including this person, to race motorcycles. That person, who provided the particular reference, said he could recall a number of situations and instructions where you would instruct the small group of enthusiasts on why you were at the race track. He said you would replay these words to the young people standing around:
The road is for riding and the track is for racing, do not confuse the two pieces of pavement, on the road you have no control of the environment around you, on the track you have all the control of the environment – do not confuse the
two.
[28] In assessing the gravity of your offending, I considered the aggravating features were the grossly excessive speed at which you were riding, and the fact you rode your motorcycle at dangerous speeds and in a manner that encouraged Mr Robinson to ride as he did, over a sustained period.
[29] I also considered it an aggravating feature that you participated in this thrill- seeking bike riding on a public road in circumstances where you, through the speed at which you were travelling, inherently put others who might have been on the road at great risk. One of those people was Mr Robinson but it could have been anyone else you might have come across who might unexpectedly have been on the road or in the vicinity of it at the time.
[30] I also considered it an aggravating feature of your offending that you knew Mr Robinson had recently acquired his extremely powerful bike and that previously he had ridden only a 100 cc trail bike.
[31] The mitigating aspects of the offending are that, at the time, road conditions were dry. You were on a country road with a good road surface and long straights where there was likely to be little traffic, and you would have had a good view of other traffic on the road. I accepted you thought you could ride at the speed you did within your capabilities and that you would be safe in doing so. Your counsel told me at the time of the indication hearing that Mr Robinson had told you he had been riding his
bike every day for weeks although you knew Mr Robinson had only recently acquired his bike and that it was significantly higher powered than the one he had owned previously. Your counsel then said Mr Robinson had told you before you went on this bike ride that he had been using the bike regularly and he was confident with it. He was a mature and experienced motorbike rider.
[32] There was nothing in the summary of facts to indicate Mr Robinson was pressured to ride his bike as he did. There was also nothing in the summary to suggest that, at the time he chose to participate in this riding, he was, in some way, incapacitated from being able to make rational and responsible choices as to what he was doing and how he was riding his bike, as was the case with the driver in the case of Hayden v R.1
[33] I accepted you were not racing bikes in the sense of trying to show your bike could be faster than his or that you could handle your bike better than him. However, it was quite understandable that witnesses in the area thought, with the noise both bikes were making, you must have been racing.
[34] In mitigation, you also went to the aid of Mr Robinson and endeavoured to do what you could for him. You were with him when emergency services arrived.
[35] I considered the way the Court of Appeal categorised potential starting points for sentencings involving poor driving causing death in Gacitua v R and other cases referred to me by counsel.2
[36] The dangerous driving charge was for particularly bad driving over a period before the phase where there was riding at extreme high speeds before the crash. It was nevertheless dangerous and was riding in the same manner that later occurred and was part of the way your actions encouraged Mr Robinson to ride his motorcycle in the way he did, leading to the ultimate crash.
1 Hayden v R [2020] NZCA 369.
2 Gacitua v R [2013] NZCA 234; R v Cossey [2019] NZCA 104; R v Chad [2014] NZHC 214;
Hayden v R, above n 1.
[37] The Crown submitted the starting point for your offending was two years and nine months’ imprisonment.
[38] Your counsel submitted the starting point for the manslaughter charge would be in the vicinity of 22 months’ imprisonment with an uplift of two months for the dangerous driving change, a combined starting point of two years’ imprisonment.
[39] The starting point I adopted for the totality of your offending was two years and three months’ imprisonment.
[40] For reasons which I carefully discussed at the time of your indication hearing, I said there could be no reduction for good character. You have previous convictions, but the Crown was not seeking an uplift on account of those. I also recognised particular contributions you have made to others, which I was advised through numerous references which were provided in your support. I am not going to go through all those matters again today.
[41] Your counsel submitted there should be a 10 per cent discount for remorse, you being willing to attend a restorative justice conference should Mr Robinson’s family wish to attend. There can be a discount for tangible and significant remorse over and above the remorse inherent in a guilty plea but, at that point, I said on the information before me there would not be a credit simply on the basis you were willing to attend a restorative justice conference.
[42] The summary of facts states that, when spoken to by the Police, even after they put before you the information they obtained from the analysis and camera record, you said you considered Mr Robinson was solely to blame for the crash and his death because of the way he applied the brake to only his rear wheel. With all the information provided to me, including through the references, the sense I had at the stage I gave you a sentence indication was that you might well still have thought Mr Robinson was solely to blame because he chose to ride his bike at a speed and in a manner which was not within his capabilities. In the information before me, there did not appear to be any tangible demonstration that the way you participated in what he did and the speed at which you rode your bike had encouraged him and contributed to
him riding his bike as he did and, in that way, you were partly responsible for his death. However, you did recognise that when you pleaded guilty.
[43] You were first charged with the offending on 8 October 2019. You entered a plea of not guilty to charges set out in the Crown charge list, including the charge of manslaughter, on 2 June 2020. A trial date was then set for 3 May 2021. The fact you pleaded not guilty to the charges was a further indication that you did not, at that time, accept your responsibility and have real remorse for the way your actions contributed to Mr Robinson’s death.
[44] Your pleas avoided the need for a trial and also reduced the ordeal that a trial would have been for Mr Robinson’s family, particularly his parents for whom his death has been such a tragedy. And, I have also been told in a victim report from his mother how the length of these proceedings, the time they have taken, has been a real ordeal for them. So, the lateness of your pleas did have to be taken into account but, despite the lateness of your pleas, I agreed it would be appropriate for the starting point to be reduced by 25 per cent for your guilty pleas.
[45] I indicated that would result in an end sentence which, rounded off, would reduce the sentence to two years’ imprisonment. With a sentence of that length, you could be considered for home detention which would be for half the ultimate end prison sentence.
[46]On conviction, I would have been required to disqualify you from driving.
[47] At the time of the sentence indication, the Crown submitted, as they do again today, that the appropriate disqualification period would be three years. Ms Vidal, at that time, suggested a disqualification should be for no more than two years. She pointed out, as she has done again, that you hold multiple classes of licence which you would have to resit because the disqualification is in excess of one year. She said not having a licence may limit the work you do as a mechanic and will prevent you from engaging in motor sports. The summary of facts informs me that you are a sickness beneficiary so a disqualification would not affect you in your employment to a significant extent.
[48] I indicated then that you had to be sentenced for the dangerous riding of a motorcycle, and for the riding of your motorcycle in a manner which ultimately contributed to the death of another person. At that time, I considered the appropriate period of disqualification for this offending, on pleas of guilty, would be three years.
[49] The indication I gave was that, on pleas of guilty, the ultimate sentence would be two years’ imprisonment but, subject to reports as to the availability of that sentence, a sentence of one year’s home detention could be the ultimate sentence. That indication would also have to be reviewed in light of any further information that might be provided as to you personally which might require recognition.
[50] I now have the pre-sentence report. There is confirmation of an address where you could serve a sentence of home detention and you are considered suitable for such a sentence.
[51] The Crown also pointed out that, with a 25 per cent reduction for a guilty plea, rounded down in your favour, the sentence of imprisonment would be less than two years’ imprisonment. They suggested that, on that basis, the starting point could appropriately be considered to be 18 months’ imprisonment. Rounded down from the starting point I had adopted, it would be around 20 months’ imprisonment.
[52] With a sentence of home detention, the appropriate starting point sentence of imprisonment is normally reduced by half. The reason for that is that with a short prison sentence of two years or less, the law requires the prisoner to be released automatically after half that sentence. So, a person sentenced to imprisonment for two years is automatically only going to have to serve half that time in prison. The Courts have recognised that a sentence of home detention is a real custodial sentence. It is a difficult sentence for people to serve when they are not able to leave their home except for approved reasons. But, it is appropriate, where home detention is going to be the ultimate sentence, for that sentence to be half what would have been an appropriate prison sentence.
[53] The pre-sentence report said you presented as emotionally distressed over the death of your friend. It also again mentions that you are willing to take part in the
restorative justice process, but the Court has been informed the victim’s family were not willing to participate in that, and that is entirely their choice.
[54] I am not however persuaded that you have demonstrated remorse for what you did in the tangible way that would require a particular credit, especially so when the credit you are receiving for your guilty pleas is generous, given the lateness of those pleas.
[55] I also note you told the probation officer that, while all three of you were riding faster than you should have been, you and the other rider had warned Mr Robinson at the beginning of the ride to take it easy and not to follow you beyond his riding abilities due to him having less riding experience. This was not the explanation your counsel put before me at the indication hearing to explain why you were riding as you did. If true, it suggests that you knew before you started your travel that you would be riding your bikes at speeds well in excess of the speed limit. This latest explanation also causes me to be sceptical about the earlier explanation you gave for thinking that Mr Robinson would be able to ride as he did.
[56] I have however noted the information in the report as to your having struggled with mental health, depression and anxiety since 2015 and the way you generally keep to yourself. It is apparent to me, from the numerous references, that motorcycling has been a significant part of your life. Through that motorcycling, you have provided support to other motorcycling enthusiasts, much of which has been positive.
[57] The psychological matters that were referred to in the pre-sentence report also causes me to wonder whether those matters have perhaps made it difficult for you to express remorse for what you did and to accept responsibility for what happened in the way for which you might have been given a particular credit had you been able to demonstrate remorse in that way.
[58] You are now aged 64. In your particular circumstances, the period of disqualification will be particularly difficult for you. It is also going to mean that the sentence of home detention is a difficult sentence for you to serve. On reflection and given the further information in the report as to your personal circumstances, I had decided the appropriate period of disqualification should be two years. Ironically, this
coincides with a submission that was made most belatedly for you by your counsel when I received her written submissions which were forwarded to the Court last night.
[59] So, Mr De Reeper, I have got to the point where I must impose sentence. Can you please stand.
[60] On conviction of the two charges, you are sentenced to home detention for a period of nine months. That sentence is to be served at […]. The sentence is imposed with the special conditions set out in the pre-sentence report, and I will set those out:
(a) You are to travel directly to […], and are to await the arrival of the Field Officer.
(b) You are to reside at […] and are not to move to any new residential address without the prior written approval of a probation officer.
(c) You are disqualified from holding or obtaining a driver’s licence for two years from today.
[61] On a conviction for manslaughter, the three strike legislation requires me to give you a first strike warning. You received this I am told on 13 April 2021 so I do not need to read that out again. You have had that warning.
[62] The Crown have also asked for an order that you ensure that the recording that was taken from Mr Robinson’s bike recording the travel on the day which I understand the defence have had, that that be returned to the Police. Your counsel has said it will be. But I make a direction that that exhibit be returned to the Police and that it be destroyed when the period for an appeal has expired.
[63] The standard conditions will apply for six months after the sentence of home detention is completed.
Solicitors:
Preston Russell Law, Invercargill Southern Law, Invercargill.
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