R v Emery HC Tauranga CRI-2010-070-7808
[2011] NZHC 803
•1 July 2011
IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY
CRI-2010-070-7808
THE QUEEN
v
RICHARD EMERY
Appearances: R Ronayne for the Crown
A C Balme for the Prisoner
Judgment: 1 July 2011
SENTENCING NOTES OF PETERS J
Solicitors/Counsel:
Ronayne Hollister-Jones Lellman, Crown Solicitor, Tauranga (email: [email protected]) Mr A C Balme, Barrister, Tauranga (email: [email protected])
R v EMERY HC TAU CRI-2010-070-7808 1 July 2011
[1] Mr Emery, you appear for sentence having pleaded guilty to one count of manslaughter and three charges of dangerous driving causing injury. All of these charges arise from the same incident in which you drove and crashed your car.
Facts
[2] On the evening of Saturday 24 July 2010 you attended an afterball party at
Manoeka Road near Te Puke. You were drinking at the party.
[3] At about 8:00 am the next morning, that being Sunday, 25 July 2010, you drove towards Te Puke Township.
[4] You had six friends and members of your family in the car with you – Judas Witeri, Jonah Ahomiro, Paora Rota, Te Ahomiro Emery, Wiremu Himiona and Manuel Teio. That meant a total of seven in your two door Honda Integra, a four seater. You were driving on a restricted licence. That meant you were not entitled to carry passengers in your car unsupervised. None of the six should have been in the car with you.
[5] None of the passengers wore a seatbelt, although all the seatbelts were working. One of the passengers was sitting on the knee of someone else.
[6] The summary of facts records that you drove appropriately at the start of your journey but that you accelerated heavily and began passing other vehicles at high speed as you pulled onto the state highway leading into Te Puke.
[7] Your driving on the highway was appalling. In 50 and 70 kilometres per hour (“kph”) zones, your speed was estimated to be between 100 and 140 kph. You used the median strip to pass other vehicles.
[8] Things went from bad to worse.
[9] You lost control of the car as you approached the Ohineangaanga Bridge. You narrowly missed colliding with two oncoming cars. Your car slid across the
road and collided with the bridge railings. It left the bridge and fell about three and a half metres into an area below. The independent expert estimated that your car was travelling at about 96 kph at the time it hit the bridge.
[10] All of you were thrown from the car. Judas Witeri suffered a massive head injury. He fell under the car as it landed and died at the scene. Other passengers were seriously injured. Jonah Ahomiro suffered a fractured skull. Paora Rota was left with a paralysed arm. Te Ahomiro Emery required stitches to his head. The remaining occupants suffered minor injuries. To your credit, as your counsel has said, you rendered assistance to others at the scene of the accident.
[11] You were driving under the influence of alcohol. When you were tested, the level of blood alcohol in your body was found to be 74 milligrams of alcohol per 100 millilitres of blood. That is more than two and a half times the maximum limit for someone of your age at the time of the collision.[1] Mr Emery, these restrictions are placed on young drivers for a reason. It is because they are less experienced and their driving will be impaired if they have more alcohol in their system than the permitted level.
[1] 30 milligrams of alcohol per 100 millilitres of blood.
[12] Your car was not registered at the time of the collision and it seems not to have been roadworthy, although there is no evidence that you knew that. You told the police you were only travelling at speeds between 50 and 55 kph. That was plainly untrue. You told the police at the time that it felt to you as if the front wheels had no grip and that there was nothing you could do to control the car. That may well be correct. Your excessive speed, however, plainly was a major factor as was, as your counsel has said, the fact that there were just too many people in that car.
[13] You were 18 at the time of the collision and are now 19.
[14] There is a comment in the report of the restorative justice conference, which I will come back to, which indicates that one or two of your passengers may have encouraged you to overtake some of the cars in front of you. If that is correct, their
encouragement may have had an effect on the way you drove that morning.
[15] The consequences for some of your passengers are obvious. Paora Rota’s
arm is paralysed and who knows what ongoing effects that will have on him. [16] Judas Witeri lost his life. His family lost their precious boy.
[17] Judas Witeri’s death at his young age is a tragedy. The loss of life is all the more difficult to accept because it could so easily have been avoided. Nothing can bring Judas back.
[18] It will be no comfort to Judas’ family but I have to say that it is a mystery to
me how it was that only Judas was killed.
[19] I have not received any victim impact statements but the views of the victims’ and/or their families, and how this has affected them is apparent from the report of the restorative justice conference.
Personal circumstances
[20] I turn now to your personal circumstances and I have read a number of reports which are highly favourable to you.
[21] The pre-sentence report which has been prepared tells me that for the past three years you have worked as a plasterer. Your employer describes you as a good worker and employee and he is very proud of the way you have come on in the job.
[22] The person who wrote the pre-sentence report considers that you are a low risk of reoffending. He considers that you have learned from this experience, are disturbed by what occurred and that you are genuinely remorseful and sorry.
[23] I know that you and others affected by what occurred that day attended a restorative justice conference on 12 June 2011. It requires courage to sit down face to face in these circumstances and I commend you and everyone else who took part.
This includes you, Judas’ mother and her partner, several of those who were in the
car with you, your mother and father, and your girlfriend and uncle.
[24] Judas’ mother is devastated at the loss of her son. However, she said at the conference that she forgives you and that she hopes that you and everyone else in the vehicle have learnt from the events that day. Your own parents plainly are devastated by what has occurred.
[25] You have two previous convictions. I am going to ignore those for today because they are minor.
[26] I have also read two excellent personal references. One is from Anne Hohneck. You have a three year old daughter, Holly, and Mrs Hohneck is the grandmother of Tara, Holly’s mother and your former partner. The reference is a credit to you and, amongst many other matters, speaks highly of your close relationship with your daughter.
[27] There is another comprehensive reference from your iwi support organisation. That reference says that your whanau are supportive of the affairs and activities of the local marae, and are well known and respected. This reference indicates that you are a role model for your associates because of your commitment to your apprenticeship, which you have now completed, and because of your many personal qualities. This reference also indicates that your behaviour that Sunday morning was quite out of character.
Sentencing
[28] In deciding what sentence to impose on you, I have to bear in mind several matters.
[29] I have to bear in mind the purpose for which I am sentencing you. I must hold you accountable for the harm done to Judas Witeri, Paora Rota, Jonah Ahomiro and Te Ahomiro Emery and to the community and I have to impose a sentence to deter you, and others, from committing the same or a similar offence.
[30] I am also required to impose a sentence which reflects the gravity of your offending, and importantly, to sentence you as others have been sentenced for similar offences. I have to treat you as the court has treated others in your position. I must also take into account the outcome, and clearly it is a very positive outcome, of the restorative justice process in which you participated.
[31] Bearing all of these matters in mind, I must select a starting point which reflects the facts of this case, taking into consideration the aggravating and mitigating factors, that is the bad and the good.
[32] In R v Skerrett,[2] the Court of Appeal set out the relevant aggravating and mitigating factors in cases of this type. Many of the aggravating features which the Court of Appeal identified in that case are present in this one. They are that you were speeding and driving under the influence of alcohol. You killed someone and injured others. You should not have had one passenger in the car, let alone six, and the car was overloaded. Your car was not road worthy. Your driving was dangerous and took place on the open road. Your car was unregistered.
[2] R v Skerrett CA236/86, 9 December 1986.
[33] However, as your counsel said, it was short period of bad driving, being some
2.7 kilometres. Also alcohol seems not to have been a key factor. Speed and an overloaded vehicle seem to have been the main causes.
[34] In selecting the starting point I have reviewed the many cases to which Mr Ronayne and Mr Balme have referred me.[3] Unfortunately, there are many similar cases of young men who kill others while driving too fast and under the influence of alcohol.
[3] R v James HC Palmerston North CRI-2010-031-1812, 22 February 2011; R v White HC Rotorua CRI-2009-063-509, 4 June 2010; R v Herewini HC Hamilton CRI-2007-019-10174, 14 May 2009; R v Whiu [2007] NZCA 591; R v Prescott HC Auckland CRI-2004-004-19706, 15 July 2005; R v Smith HC Auckland CRI-2005-057-675, 4 November 2005; R v Skerrett CA236/86, 9 December 1986; R v Pretty CA277/00, 26 October 2000; R v Barclay HC Nelson CRI-2006-042-4085, 31 May 2007 and R v Matagi HC Christchurch CRI-2008-009-12096, 1 October 2009
[35] The Crown initially proposed a starting point of seven and a half to eight years. Mr Ronayne very responsibly tells me that, having reviewed the cases
referred to in your counsel’s submissions, he considers a starting point of six and a half to seven years’ imprisonment would be appropriate. Your counsel submits that I should adopt a starting point of five to six years’ imprisonment. In my view, the appropriate starting point is six and a half years’ imprisonment.
[36] I must then consider the matters which relate to you personally, again the aggravating and mitigating, which might make it appropriate to increase or reduce the starting point so as to arrive at your final sentence.
[37] There are no aggravating factors relating to you personally which would apply to increase the sentence. There are however, several mitigating factors. The first is your youth. You were 18 years old at the time of the offending and that factor does require some recognition. The Court of Appeal has emphasised that young offenders convicted of motor manslaughter cannot expect a large discount for their youth. That is because of the need to protect the public from avoidable death and
injury on our roads.[4]
[4] R v Pretty CA277/00, 26 October 2000.
[38] Secondly, you have killed someone who was a friend and, as I understand it, a member of your family. You will have to live with that for the rest of your life and that is an ongoing punishment. Also, Paora Rota’s injury may be permanent.
[39] Thirdly, this behaviour was out of character for you. You are clearly a good employee, a good father and a good son. You are considered to be at low risk of reoffending. All the indications are that you have learnt from this tragedy.
[40] For those factors, in my view, it is appropriate to reduce the sentence by 15 months, that is to five years, three months.
[41] I then also apply a further reduction for your guilty plea. The Crown accepts that your guilty plea should be taken as having been entered at the first opportunity, given the reasonable wish to take legal advice. The effect of your guilty plea was to
avoid the need for a trial at which many people would have had to give evidence.
This would have included your passengers, passers-by, other motorists and the expert road traffic accident investigator. So the trial process has been avoided entirely.
[42] In addition, I am also going to reduce the sentence for the genuine remorse which I consider you have shown. Just to give a brief indication of that, I have read the statement that you made at the restorative justice conference. The statement was lengthy and heartfelt. Your comments towards the end of the conference, namely that this is a lesson you have learnt, that it will never happen again, ever, and that you will never put anyone through this ever again registers with me.
[43] For your guilty plea and your remorse, I am going to reduce the sentence by
30 per cent.
[44] The result is that you are sentenced on the manslaughter charge to three years, nine months’ imprisonment.
[45] On the charge of dangerous driving causing injury to Paora Rota, I sentence you to one year’s imprisonment and on each of the other two charges in respect of Te Ahomiro Emery and Jonah Ahomiro I sentence you to nine months’ imprisonment. The sentences are to be served concurrently. This means that your final sentence of imprisonment is three years, nine months.
[46] I also disqualify you from holding or obtaining a driver’s licence for two
years from the date of your release from prison.
Sentence
[47] Mr Emery, please stand for the formal imposition of sentence.
[48] For the offence of manslaughter you are sentenced to imprisonment for three years, nine months. On the charge of dangerous driving causing injury to Paora Rota you are sentenced to imprisonment for one year. On each of the remaining two charges of dangerous driving causing injury you are sentenced to nine months’ imprisonment. Each of these sentences will be served concurrently with the
manslaughter sentence, so that your total term of imprisonment is three years, nine months.
[49] You are also disqualified from holding or obtaining a drivers licence for two years. That period of disqualification commencing upon your release from prison.
[50] Please stand down.
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PETERS J
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