R v Faaotaota HC Auckland CRI 2009-092-4744
[2010] NZHC 2340
•17 December 2010
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI 2009-092-4744
THE QUEEN
v
FAAOTAOTO FAAOTAOTA
Hearing: 17 December 2010
Appearances: J Shaw for Crown
D Wallwork for Faaotaota
Judgment: 17 December 2010
SENTENCING REMARKS OF ALLAN J
Solicitors:
Crown Solicitor Auckland
D Wallwork, Auckland [email protected]
R V FAAOTAOTA HC AK CRI 2009-092-4744 17 December 2010
[1] Mr Faaotaota, you appear for sentence this morning on one count of manslaughter and one of causing grievous bodily harm with reckless disregard.
[2] You pleaded guilty to the manslaughter count at the commencement of your trial for murder, of which you were acquitted by the jury. The jury found you guilty on the grievous bodily harm count.
Factual background
[3] On the morning of 18 November 2008, you left the house of a girlfriend Tutuila Fuiava. You had been involved in an argument with her, and concede you were in an angry state. You were picked up by another girlfriend, Ms Iese, in her car. You went to her house and there engaged in a drinking session which placed you well over the legal driving limit for a person aged 19 years, as you then were.
[4] Some hours later, at about 2 pm, you and Ms Iese left the house in her car in order to pick up her two older children from school. Her two younger children, including a baby of whom you were the father, were seated in the back seat. Although you were in an advanced state of intoxication and had recently been disqualified from driving, you nevertheless chose to drive. Ms Iese was seated in the front passenger seat.
[5] You then drove for a considerable distance. Not unexpectedly, given your condition, your driving was erratic. There was eye-witness evidence that you were weaving across your lane, and at one point you collided with a round-about causing a certain amount of damage to Ms Iese’s vehicle. Each of you was aware of that damage because at one point you stopped the vehicle and you both alighted to inspect it. As Mr Shaw submits this morning, that was a second opportunity for you to reverse your unwise decision to drive at all. It must have been plain to you, that you were incapable of driving safety.
[6] By 2.30 pm you were driving in the north-bound lane on Dalgety Drive, Wiri. Not long after turning into Dalgety Drive there was an interaction between you and Ms Iese. There is a discrepancy in the eye-witness evidence on the point. One witness said that she was sure you were having an argument with your passenger, that you were shaking your head violently and leaning towards her in a threatening manner. Another witness, although corroborating the leaning motion, thought you might have been on the point of kissing your passenger. Ms Iese confirmed that the mood inside the car was buoyant and happy, and there was no question of an argument.
[7] The evidential discrepancies do not matter very much. It is common ground that by reason of what was going on in the car, your attention to your driving was limited. At the time at which you leant towards Ms Iese, or immediately afterwards, you caused your vehicle to swerve violently towards the centre lane and across it, where it collided with an on-coming vehicle driven by Ms Smiler, who was fatally injured and died soon afterwards. There is not the slightest suggestion that she was in any way responsible for the collision.
[8] Her passenger, Ms Kara, received extensive injuries including four fractured ribs, lacerations to her liver, a scalp haematoma, a mild brain contusion, bruising and cuts. You yourself suffered certain relatively minor injuries. Miraculously neither your girlfriend nor her very young children were injured.
[9] An evidential breath test was conducted at 3.45 pm, a little more than an hour after the accident. It returned a result of 709 micrograms per litre of breath. The legal limit for a driver under the age of 20 years is 150 micrograms of alcohol per litre of breath. By way of comparison, the legal limit for a driver over the age of 20 years is 400 micrograms of alcohol per litre of breath. You were approaching five times over the legal limit for someone of your age, and just about double the legal limit for an adult.
[10] I want to turn briefly to the impact on what occurred on those who might be said to be victims. Of course, there was Ms Smiler herself who lost her life at a point when, as has been told to the Court today, she had discovered she was in
remission from cancer, and had a great deal to look forward to in her life, including the impending birth of a grandchild.
[11] Then there is Ms Kara who received very extensive injuries, and from the victim impact report which has been tendered, has never really recovered from what occurred. Her personal relationships have been damaged to a significant degree, and she is plainly not the person she used to be.
[12] There are three victim impact reports, one is from Ms Kara, the other two from two of Ms Smiler’s children. Those latter reports have been read out in Court this morning by Corey and then by his mother in law speaking on behalf of Michelle, who as I understand it, cannot face today’s proceedings.
[13] Each of the speakers movingly read through the victim impact statements, and it was obvious from the way in which they were read that it was an ordeal for them. I am not surprised; offending like this Mr Faaotaota, cannot help but bring widespread grief and permanent devastation to the lives of many more than just the immediate victims. I simply wish to express the hope that these proceedings in some small way may assist the family in bringing at least partially, a sense of closure to the events of November 2008, and what has gone on in your lives since.
Personal circumstances
[14] The pre-sentence report discloses that you emigrated from Samoa to New Zealand with your parents and four brothers in 2000. You attended school here, leaving college in 2004 to take up employment. It seems you have had only two jobs over a period of about four years. That suggests a certain amount of reliability and stability on your part at least in your working life. You come from a Christian family, and had the benefit of a good upbringing, during which your parents instilled strong Christian values in you. None of your brothers has been before the Court.
[15] Unfortunately in your case, you were unable to cope with the freedom you experienced here following your arrival, in comparison with life back in Samoa. You developed relationships with groups who could not be said to provide a positive
influence, and you ended up before the courts. You have two convictions for excess breath alcohol (including a conviction arising out of the present incident). There is a further conviction for operating a motor vehicle causing a sustained loss of traction, for which you were disqualified not long before the present offending. You have already been dealt with on the charge of driving while disqualified arising out of the events on the day in question.
[16] At a personal level, you were leading a somewhat complicated life at the time of the offending. You were in an intimate relationship with Ms Fuiava, and she was carrying your child. At the same time you were in a relationship with Ms Iese, who had recently given birth to your baby. Neither of your girlfriends knew of the other.
[17] That state of affairs suggests there is a tendency to self-indulgence on your part. Although you are not here by reason of your personal life, the events of this most unfortunate day do tend to reflect a tendency on your part simply to act as you please.
[18] Having said that, the pre-sentence report suggests that there might be grounds for optimism. You have indicated you are making a conscious effort to distance yourself from your previous criminal associates and in particular, the street gang with which you were affiliated. You have indicated you are determined to live a lifestyle free of alcohol and drugs, and you told the probation officer that you are sincerely remorseful for the terrible events on the day in question.
[19] This morning Ms Wallwork read out in open Court passages from the probation sentence report which record your expression of remorse to the procedure, and which appear to have struck him as a little out of the ordinary and completely genuine.
Sentencing principles
[20] In a case like this I must take into account the need to hold you accountable for the harm you have done to your victims and to the community, to promote in you a sense of responsibility, to provide so far as I can, for the interests of the victims, to
denounce your conduct and to reflect on behalf of the community the abhorrence which society feels for mindless offending of this sort.
[21] There is a corresponding need to deter you and others from offending in this way. As I will mention again in a moment, motor manslaughter cases are alarmingly frequent. Indeed, they are approaching epidemic proportions. As French J recently said:[1]
The community has simply had enough.
[1] R v Forbes HC Invercargill CRI-20100025-2061, 30 August 2010.
[22] So I must take into account the seriousness of your offending, the level of penalty imposed in other cases and the effect on your victims. But I must be mindful also of an obligation to impose the least restrictive outcome upon you that is appropriate in all the circumstances.
Sentencing discussion
[23] There is no guideline authority in manslaughter cases, in particular motor manslaughter, because the circumstances vary so widely. I have however considered a number of previous cases. Regrettably, motor manslaughter cases have been all too numerous in recent times. Those to which I have referred are listed in the schedule attached to the sentencing notes for the benefit of counsel. Here, there is a measure of agreement between counsel as to the appropriate starting point, which is the appropriate term of imprisonment selected before taking into account aggravating features, those which make your case worse, and mitigating features, those for which you are entitled to a discount.
[24] Ms Wallwork submits that a starting point in the region of seven years imprisonment is appropriate. The Crown suggests a slightly lower starting point in the vicinity of six to six and a half years. But as I understand the suggested sentences, it would be appropriate to impose a lower uplift to that on account of aggravating features, so there is little between counsel as to the starting point.
[25] An aggravating feature, not present in your case, but found in many, is excessive speed. All eye witnesses are agreed that your speed was moderate and not in excess of the applicable speed limit. Neither did you fail to stop for the police, as often occurs in motor manslaughter cases.
[26] But there are aggravating factors associated with the offending itself. You were severely intoxicated, many times the legal limit for a man of 19. You must have known you were unable to drive in a safe fashion. I repeat, if it was not obvious beforehand, your collision with the roundabout must have driven that home to you. You knew you had damaged your vehicle at a round-about, because you got out a little later to inspect the damage. You were weaving across the road. Not only did you fail to keep to your own side of the road, but you allowed yourself to be completely distracted from your driving obligations, with the result that you caused your vehicle to swerve suddenly and violently across the road.
[27] The evidence is that that was caused by a sudden wrenching motion of the steering wheel. By reason of the jury’s verdict, the proper inference is that that occurred simply because you were not paying proper attention to your driving.
[28] A further aggravating feature is the fact that not only did you bring Ms Smiler’s life to an end, you also caused Ms Kara serious injuries. It was obvious when she gave evidence that she is still significantly affected by the collision.
[29] Gathering up all those factors, it is my view that the appropriate starting point is six and a half years imprisonment.
[30] I turn then to aggravating circumstances. In my view there is a single significant aggravating factor. Just one month before these offences were committed, you were convicted of excess breath alcohol and of operating a motor vehicle causing sustained loss of traction. On that occasion your breath alcohol level was 493 mg per litre of breath, which placed you more than three times over the youth limit. You were disqualified from driving for a period of seven months. You had served only one month of that period of disqualification when, regrettably, you chose to drive on the day of these offences.
[31] It appears that you had learned virtually nothing from your previous offences, and that the sanctions then imposed on you meant very little. You knew you were disqualified and yet you simply ignored your obligation to stay away from the driver’s seat. In her evidence Ms Iese indicated that there was no reason why she could not have driven. She said, at least she had consumed significantly less alcohol than you had and because she was much older than you, she was an adult for the purposes of the breath alcohol limits imposed by our law.
[32] I consider that an uplift of six months is necessary in order to reflect this significant aggravating feature. That produces a total of seven years imprisonment.
[33] I turn to mitigating factors. In my opinion there are two, only one of which needs to be specifically reflected in the ultimate sentence. First of all there is the question of remorse. The writer of the probation report was struck by the extent to which throughout your interview you expressed your remorse for these terrible events, and is convinced that you are indeed truly sorry for what occurred.
[34] Expressions of remorse are encountered frequently. Sometimes it is difficult to accept that they are genuine. In this case the probation report writer has gone out of his way to confirm that what you said came from the heart, and I take that into account.
[35] In some exceptional cases it is appropriate to reflect remorse by way of a separate discount. I do not think this case has reached that level, but I do propose to take it into account in a general sense when I come to deal with the question of a discount for the second mitigating factor, which is your plea of guilty.
[36] I accept that at a relatively early stage you indicated through your counsel that you would plead guilty to manslaughter, but the Crown determined to proceed to trial on the murder count. You did not plead guilty to count 2 involving the injuries to Ms Kara.
[37] In assessing the appropriate discount for a guilty plea signalled relatively early, it is important to take into account the strength of the prosecution case. Here,
it was very strong. There was effectively no prospect of mounting a successful defence.
[38] I propose to allow a further discount of 18 months for your guilty plea, which amounts to a discount of about 22%.
[39] Sometimes a further discount is allowed for a prisoner’s youth. However, for some time now the Courts have been mindful of the observation in R v Pretty[2] to the effect that young offenders who are involved in motor manslaughter will not generally be entitled to a discount for youth, such is the need to protect the public from avoidable death and injury on the roads.
[2] R v Pretty CA227/00, 26 October 2000.
[40] So the sentence for manslaughter will be five years six months.
[41] Counsel are agreed that it is appropriate for the Court to impose a significant period of further disqualification from driving. The Courts routinely impose a period of disqualification which extends well beyond the likely date of an offender’s release from prison. I am satisfied that it is appropriate to follow that course in the present case.
Sentence
[42] Mr Faaotaota, I cannot improve on the summary appearing in the Crown’s written submissions:
This was tragic offending, it was also wholly avoidable. Despite having been sentenced for similarly dangerous drunken driving just before the incident, the prisoner chose to drive, despite being severely intoxicated and persisted despite warnings that he stop. The consequences of his actions were as awful as they were foreseeable.
[43] On the manslaughter count you are sentenced to five years six months imprisonment. On the count of causing grievous bodily harm with reckless disregard you are sentenced to 18 months imprisonment to be served concurrently with the
sentence imposed on the manslaughter count. The result is an overall sentence of five years six months imprisonment.
[44] You are disqualified from holding or obtaining a driver’s licence for a period of seven years.
[45] The sentence of 250 hours community work imposed on you on 3 December
2009 in respect of your conviction on two charges of wilful damage is cancelled.
C J Allan J
Schedule of cases
R v Skerrett CA 236/86, 9 December 1986
Brook v R CA750/2009 [2010] NZCA 13, 19 February 2010
R v White HC Rotorua CRI 2009-063-509, 4 June 2010
R v Wagener HC Invercargill CRI-2010-025-191, 8 June 2010
Anderson v R CA15/2010 [2010] NZCA 338, 2 August 2010
R v Forbes HC Invercargill CRI-2010-025-2061, 30 August 2010
R v Pretty CA277/00, 26 October 2000
R v Peneha CA307/06 [2007] NZCA 191 15 May 2007
R v Whiu CA195/07 [2007] NZCA 591, 20 December 2007
R v Popo CA357/2009 [2009] NZCA 447, 30 September 2009
R v Brook CA750/2009 [2010] NZCA 13, 19 February 2010
Anderson v R CA15/2010 [2010] NZCA 339 2 August 2010
Hessell v R SC 102/2009 [2010] NZSC 135, 16 November 2010
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