R v Eruera

[2005] NZCA 63

IN THE COURT OF APPEAL OF NEW ZEALAND

CA454/04

THE QUEEN

v

PAE WHENUA ERUERA

Hearing:8 March 2005

Court:William Young, Randerson and Robertson JJ

Counsel:N Levy for Appellant

A Markham for Crown

Judgment:8 April 2005 

JUDGMENT OF THE COURT

A        The appeal against sentence is allowed.

B        The sentence of seven years imprisonment is reduced to five years.

CThe minimum non-parole period is reduced from three and a half years to two and a half years.

REASONS

(Given by Randerson J)

[1]        The appellant pleaded guilty in the District Court at Kaikohe to two counts of wounding with intent to cause grievous bodily harm (s 188(1) of the Crimes Act 1961) and one count of injuring with intent to cause grievous bodily harm (s 89(1) Crimes Act).

[2]       Judge Tompkins sentenced the appellant on 26 May 2004 to seven years imprisonment with a minimum non-parole period of three and a half years.  The appellant now appeals against his sentence on the ground that it was manifestly excessive. 

The facts

[3]       The charges all arose from a very serious incident on 14 December 2003 in which the appellant drove a motor vehicle directly at his partner, Ms H.  At the last moment his vehicle veered away and struck a parked campervan.  While Ms H was not harmed, serious injuries were sustained by three of the couple’s five children who were sitting unrestrained in the back seat of the car.

[4]       The charges were unusual in that the appellant was charged with intending to harm his partner, yet the injuries were not to her but to the children.  Under s 188(1) he was charged that, with intent to cause grievous bodily harm to Ms H, he wounded two of the three children.  Under s 189(1), the appellant was charged that, with intent to cause grevious bodily harm to his partner, he injured the third child. 

[5]       The summary of facts is not in dispute.  On the day in question, the appellant was drinking with family members in Kaikohe.  Ms H and their five children were also present.  A dispute arose between the appellant and Ms H as to what they would do that day.  The appellant became abusive and ordered Ms H and the children into the car.  The appellant drove off down the road erratically, mounting the kerb several times.  Ms H became distressed and fearful for the safety of herself and the children.  She pleaded with the appellant to let her drive.  When he refused, she managed to stop the vehicle using the brakes and turning the steering wheel.  She took the keys from the ignition, threw them outside and got out of the vehicle with the children.

[6]       Matters did not stop there.  The appellant pursued Ms H and put three of the children into the back of the vehicle.  Fortunately, Ms H managed to stop the appellant taking their fourth child, a baby, whom she was holding in her arms.

[7]       The appellant then drove off at speed with the children in the back seat with no seat belts.  About four or five minutes later he turned into another road and drove along it at excessive speed, overtaking a vehicle travelling in the same direction and narrowly avoiding a vehicle travelling towards him.  Both the other vehicles were forced to swerve wildly to avoid a collision. 

[8]       He then drove back towards the place where Ms H had alighted from the vehicle.  He crossed onto the incorrect side of the road and then back to the correct side, travelling a distance of about 60 metres at high speed.  When he saw Ms H standing adjacent to the campervan parked on the opposite side of the road, he turned the vehicle towards her still travelling at high speed.  According to the summary of facts, at the last minute, his vehicle veered off into the parked campervan.  The summary does not make it clear whether the vehicle veered off as a result of the deliberate action of the appellant or for some other reason.  The force of the impact shunted the campervan backwards for some 10-12 metres causing major damage to both vehicles.

[9]       The couple’s 11 year old daughter suffered head injuries including a fractured skull.  She remained in hospital for 10 days and was later readmitted for reconstructive cranial surgery.  She has suffered a permanent physical deformity to her right eye.  The eight year old daughter was thrown into the windscreen and suffered multiple lacerations to the face which required stitches.  The five year old son suffered a compound fracture of the lower leg bone, a fractured left thighbone and a laceration to his lip.  He underwent surgery with a metal pin being placed in his leg which required traction for several weeks.  He developed an infection and spent a total of over seven weeks in hospital.

The Judge’s approach to sentencing

[10]     The Judge observed that the charges carried maximum terms of imprisonment of 14 years and 10 years respectively.  After setting out the facts the Judge referred to the injuries and to emotional harm reports received by the Court.  He noted that the effect on the appellant’s partner was very significant, particularly in the days and weeks following the offending.  She had to deal largely on her own with one child in intensive care in Auckland and others in two separate hospitals in Northland.  Two other children were staying with relatives at other addresses.  Difficulties had arisen in the relationship between Ms H’s older son and herself and between that child and the appellant.

[11]     The Judge noted that the prisoner had an extensive list of previous convictions including convictions for violence, driving offences and dishonesty spanning some 22 years since 1981 to May 2003.  We observe that, for present purposes, the most relevant previous conviction was in 1996 when the appellant was convicted on a charge of male assaults female involving the same complainant.

[12]     The Judge referred to the pre-sentence report in which the appellant stated that after a few years not drinking alcohol, he shared a bottle of home-made whisky with a relative on the day in question and became drunk.  He expressed deep remorse for his conduct.  Ms H (with whom the appellant had been in a relationship for some 13 years) had told the Probation Officer that, despite the current offending, the appellant was an excellent father to the children.  The pre-sentence report recorded that the appellant had entered a residential program about a month after the incident and was undertaking anger management and other programs for drug and alcohol abuse.  At the time of his sentencing, it was reported that the appellant had conscientiously attended the courses made available to him, was a good influence on younger men at the residence and was making good progress.  Nevertheless, imprisonment was recommended by the Probation Officer.

[13]     After dealing with counsel’s submissions (including a reference to R v Hereora [1996] 2 NZLR 164 relied upon by the Crown) the Judge expressed the view that the offending was extremely serious. The aggravating features were the appellant’s intoxication; his efforts to aggravate, intimidate and ultimately harm his partner; the fact that he had ignored several opportunities when he could have desisted before the collision and injuries occurred; the breach of trust involved towards the three vulnerable and powerless children; dragging the children unwillingly into a situation where their lives were significantly in danger while attempting, for his own ends, to intimidate and injure his partner; and the permanent injuries suffered including the trauma of hospitalisation.

[14]     The Judge referred to the decision of this Court in R v Leuta [2002] 1 NZLR 215, highlighting the defenceless and vulnerable position of children who are subjected to violence by adults. He observed that Leuta was a case of the manslaughter by a parent of a four and a half year old son.  A six year sentence of imprisonment was increased to seven years. 

[15]     The Judge then stated:

That death to either the prisoner’s partner or one or more of his children did not result, can only be put down to extreme good fortune.  Not only did he drive in such a way that during the period of the driving prior to the collision he and his children were at significant risk of death or injury, as were other road users.  The prisoner then attempted to attack his partner standing on the side of the road, using a speeding vehicle as a weapon.  Those are all circumstances which, in my view, are significant aggravating features.

[16]     He adopted a term of seven years imprisonment as the “starting point” for all of the four charges.  It is evident from the Judge’s later remarks that the starting point was before taking into account either aggravating or mitigating circumstances.  Although the Judge was inclined to the view that the combined effect of the mitigating factors was outweighed by the aggravating features, he decided not to increase the sentence beyond the seven year starting point.  He determined under s 86 of the Sentencing Act 2002 that the offending was sufficiently serious to justify a minimum non-parole period longer than the one-third allowed under the legislation and imposed a minimum period of three and a half years.

Appellant’s submissions

[17]     Ms Levy’s principal submission for the appellant was that he should have been sentenced on the basis that he drove the car at his partner at high speed while intoxicated, swerving at the last minute, and causing serious injuries to the children.  She accepted there was a high degree of recklessness involved but submitted that the sentencing should have been approached by reference to decisions of this Court in alcohol-affected driving cases where injury or death had been caused.  Examples of such cases cited by Ms Levy included R v Fallowfield [1996] 14 CRNZ 871 and R v Emerson (CA203/02; 9 September 2002).  She cited the following passage from Fallowfield at (92):

The preferable approach to sentencing for cases of alcohol affected driving causing injury or death is to seek to place the offending in its proper position in the scale of seriousness of offending, whatever the charge, and taking into account only as a factor the consequences for the victims.  The maximum sentence for alcohol impaired driving causing injury is not necessarily less than that provided in the Transport Act merely because the same offence encompasses also acts or omissions causing death.

[18]     Ms Levy submitted that the Judge was wrong to find that the appellant had attempted to attack his partner with the motor vehicle.  She said that the last minute veering away was inconsistent with such an intention.  It was not, she submitted, appropriate for the Judge to sentence on the footing of cases such as Hereora. 

[19]     Letters were produced to the Court from Ms H and the appellant’s sister pleading for his early release.  Ms H stated in her letter that she had visited the appellant with their children in Wellington and would like to visit more often.  She said she had forgiven the appellant for what had happened.  The children had recovered from the accident she said and loved their father very much.  She and the children wanted the family to be restored.  The appellant’s sister wrote in similar terms.

[20]     Ms Levy submitted that a sentence of no more than three years was appropriate.

Crown submissions

[21]     Ms Markham submitted for the Crown that the appellant had pleaded guilty to charges which carried a specific intent to cause grievous bodily harm to Ms H.  By his pleas of guilty, the appellant must be taken to have accepted that, at the time he caused the injuries to his children, he intended to cause grievous bodily harm to Ms H (R v Ramsay [1967] NZLR 1005). That was so, she submitted, notwithstanding the last minute veering away. To submit otherwise would be tantamount to an application to vacate the pleas of guilty.

[22]     Contrary to the submission made on behalf of the appellant, Ms Markham submitted that it was not a case of dangerous driving but a case of assault using a vehicle as a weapon.  She submitted it was not appropriate to rely on cases such as Fallowfield and Emerson where no specific intent to cause harm was at issue.  She said this Court did not intend to suggest in Fallowfield that those convicted under s 188(1) should be placed in the same category as drunk drivers who cause accidental injury.

[23]     She submitted that the correct approach was to apply Hereora and that the case clearly fell within the second band of offending identified in that case (five to eight years imprisonment for cases exhibiting a combination of aggravating features).

[24]     Ms Markham also referred the Court to English authorities including R v Hall [1997] 1 Cr App R (S) 62 and R v Evans [2002] 2 Cr App R (S) 12 where sentences of twelve and eight years respectively were imposed following conviction after trial for causing serious injury through the intentional use of vehicles as weapons.  These authorities distinguished between intentional harm on the one hand and recklessness on the other. 

[25]     Ms Markham submitted that, although the Judge did not identify a starting point before mitigating features, it was likely to have been between nine and ten years.  She submitted that the end sentence, taking into account the pleas of guilty entered on the morning of depositions, was not manifestly excessive.

Discussion

[26]     We are unable to accept Ms Levy’s submission that this case should be treated as if it were a case of reckless or dangerous driving causing injury.  We accept Ms Markham’s submission that the appellant must be taken by his pleas of guilty to have accepted the essential elements of the offences including that, at the time the injuries to the children were caused, he intended to cause grievous bodily harm to Ms H.  Even if, as Ms Levy submitted, the appellant had a last minute change of heart which caused him to veer away from Ms H (which is a matter of mere speculation), he deliberately embarked on a course of conduct which, in the end, resulted in very serious injury to the children. 

[27]     In doing so, he deliberately exposed the children to the risk of serious injury or death which takes this case well beyond one of reckless or dangerous driving while intoxicated.  Fortunately for the appellant, no-one was killed.  If that had occurred, the appellant would likely be facing a manslaughter count and might also have been facing a count of murder or attempted murder.  When one adds his grossly reckless driving while intoxicated, with the children unrestrained in the back seat, this case was indeed a very serious one. 

[28]     On the other hand, the appellant acknowledged his guilt at an early stage and he was entitled to a distinct and significant credit for that.  As well, he expressed his remorse which appears to have been genuine.  His partner and children want him back, a factor which was not before the Judge at the time of sentencing.

[29]     While we are grateful for the English cases cited by Crown counsel, we consider them to be distinguishable.  In Hall for example, after driving in an intoxicated state at high speeds, the appellant collided with a wall and then deliberately reversed at high speed and crushed a police officer under the car causing serious fractures to her spine and other injuries.  A sentence of 12 years imprisonment was upheld.  In Evans the appellant, drove a truck towards three men on the pavement.  One of the men was hit and carried by the vehicle for some distance, suffering serious injury to his spinal column and was left with permanent injury.  A sentence of eight years imprisonment was upheld.  We observe that sentences of that order might have been justified if Ms H had been deliberately run over by the appellant’s vehicle.

[30]     Nevertheless, we accept Ms Markham’s submission that Hereora can be regarded at least as a guide in cases involving deliberate conduct of this type, even though the factual context of that case is very different from this.  In the end, it is the degree of culpability which is important and we accept the Crown submission that this case falls within the second band of Hereora in terms of culpability. 

[31]     After taking into account the aggravating features identified by the Judge, we consider that the appropriate starting point was seven years imprisonment.  Weighing the mitigating features including, in particular, the early guilty pleas and the genuine remorse expressed by the appellant, we arrive at an end sentence of five years imprisonment.  It follows that the sentence of seven years imposed by the Judge was manifestly excessive.

[32]     Having regard to the fact that there were multiple victims, the deliberate nature of the appellant’s conduct and the serious injuries caused to vulnerable and defenceless children, we have no doubt that this is a case which is sufficiently serious to warrant a minimum term of imprisonment in excess of the usual period of one-third of the sentence.  The appropriate minimum parole period is two and a half years.

[33]     We add that it is desirable for sentencing Judges to identify a starting point which includes allowance for all aggravating features of the offending but does not allow for mitigating factors.  From that starting point, a distinct deduction should then be made as appropriate for guilty pleas and any other identified mitigating factors.  Otherwise an appellate Court is left to speculate about the sentencing Judge’s assessment of the extent of aggravating factors and the allowance made for guilty pleas and other mitigation.  As well, it is in the public interest that offenders have a clearly identified discount to recognise their pleas of guilty.

Solicitors:

Crown Law Office, Wellington