R v Fairburn
[2012] NZHC 28
•30 January 2012
IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY
CRI-2008-043-000931 [2012] NZHC 28
THE QUEEN
v
CYNDI MARCIA FAIRBURN
Hearing: 30 January 2012
Counsel: S Clarke for the Crown
R Earwaker for the Prisoner
Judgment: 30 January 2012
SENTENCING NOTES OF WOOLFORD J
Solicitors:
C & M Legal, New Plymouth for the Crown
R Earwaker, Auckland for the Prisoner
R V FAIRBURN HC NWP CRI-2008-043-000931 [30 January 2012]
Introduction
[1] Cindy Fairburn, you appear for sentence on one charge of manslaughter.1
This carries a maximum penalty of life imprisonment.2
Facts
[2] On 6 August 2007 you drove 13.1 kilometres with Mr Darren Maxwell, known as Nardy, clinging to the bonnet of your car. That journey ended when you crossed the centre-line and collided with an on-coming car, killing Mr Maxwell, and injuring both yourself and the other driver. Mr Maxwell was your former partner, and the father of your two year old daughter.
[3] In the days before his death, you formed the belief that Mr Maxwell had sexually abused your daughter. Later investigations suggest that this belief was unfounded, but there is no indication that your belief was not honestly held. You reported your suspicions to the police, and you were dissatisfied when they responded cautiously by declining to arrest Mr Maxwell. You spoke to friends about taking Mr Maxwell out, using poison or a stun gun. You also made enquiries about obtaining a taser.
[4] On the day in question Mr Maxwell was attending a tangi in Inglewood. That evening you drove to an Inglewood hotel where you believed that Mr Maxwell would be drinking with his whanau. You report that you intended to tell Mr Maxwell to stay away from you and your daughter. You both remained at the hotel bar for some time, although mostly talking to other people. Later on, you and Mr Maxwell argued. At about 9.45 pm you left the hotel to go to your car. You stated that as you were leaving the hotel bar you told Mr Maxwell that he would never see you again. Mr Maxwell then followed you and somehow ended up on the bonnet of your car. You reported that he began smashing his head against the windscreen, yelling and screaming at you. You were frightened, as Mr Maxwell had always told you that you would never leave him alive. There was no-one in the immediate vicinity, though
you could not explain why you did not sound your horn or use your phone to seek help.
[5] You began driving intending, it seems, to go to the Inglewood Police Station. However, realising it would not be open at that time of night you continued to drive around whilst trying to attract attention by “having a few jolts on the road”. You thought someone would call the police.
[6] Part of this journey was observed by Mr Jason McLaughlin, who stated that your car was veering quite wildly across both lanes of traffic, and crossed the centre- line three or four times whilst still within the township of Inglewood. You then left Inglewood with Mr Maxwell still on the bonnet of your car, heading for New Plymouth. You were also seen speeding by Mr Mark Jones, who gave evidence that your car was travelling at speeds of around about 120 kilometres per hour. Mr Jones also noticed the brake lights coming on and off, albeit without seeming to slow the car significantly, and your use of hazard lights.
[7] As mentioned, the accident occurred 13.1 kilometres from the hotel, about five kilometres from the centre of New Plymouth. Ms Denise Smillie saw your car cross the centre-line and collide with another car driven by a single occupant. This collision killed Mr Maxwell, and caused serious injuries to the single occupant of the other car, as well as to yourself.
[8] At trial in 2009 you were found guilty of murder and sentenced to a term of life imprisonment, with a minimum non-parole period of 10 years.3 Your case was appealed all the way to the Supreme Court, which ordered a retrial.4 You were then convicted of manslaughter at the re-trial in November last year.
Personal circumstances
[9] Ms Fairburn, your pre-sentence report shows that you are a 41 year old woman with no previous convictions. You were married for 13 years and you have
three children with your ex-husband, in addition to the daughter you have with Mr Maxwell. You have no formal qualifications, and although you reported having had various jobs across your life, you had difficulty providing details or timeframes about such jobs.
[10] You have a long history as a victim of both sexual and physical abuse dating back to your childhood. Your ex-husband was abusive as was, it seems, Mr Maxwell at times. You have said that during your relationship Mr Maxwell threatened you and slapped you. On one occasion you sought help at a women’s refuge.5 You have also been in other violent relationships with police attending 15 separate family violence incidents involving yourself and various partners. Domestic violence was a
causative factor in your offending, and as you have a history of entering violent relationships your risk of re-offending has been assessed as medium.
[11] Although there is no evidence that you suffer psychosis, anxiety, or a current major depressive episode, you have a history of self-harming and your psychiatric history suggests borderline personality traits, if not disorder. Further, you have some history of drug and alcohol abuse. Although there is no evidence to suggest that alcohol or drugs were operative in your offending, your history may nevertheless impede your successful re-integration into the community.
[12] The pre-sentence report writer recommends that rehabilitative intervention should address these underlying mental health issues, and notes that you appear motivated to do so. You have expressed remorse for your actions, and have recognised the impact those actions have had, and continue to have on Mr Maxwell’s family, your own children, and the wider community. The pre-sentence report writer considered that a community-based sentence would not be proportionate to your level of offending, and recommended a long term of imprisonment.
Victim Impact Statement
[13] Mr Maxwell’s sister, Colleen Maxwell, spoke of Nardy as a musically
talented man who worked hard and nurtured close relationships with each of his nine
5 R v Fairburn [2010] NZSC 159 at [16].
siblings. He was much loved by his nieces and nephews and is survived by four children and one granddaughter. Colleen Maxwell expressed distress at the media’s focus on Nardy’s past convictions and the role those played in the events leading to his death. One of Nardy’s brothers, Norman, was particularly upset by the insensitivity of the media at that time. Norman’s sons have reported that when Norman returned to his home in Australia after Nardy’s death he was a changed man.
[14] Nardy’s family continue to struggle with their loss. Three of Nardy’s sisters drive past the crash site regularly, which constantly reminds them of their brother’s death. Nardy’s niece, Kelly Stout, saw photos of Nardy’s body lying on the morgue table, and suffers nightmares as a result. Colleen Maxwell also spoke of the difficulties caused by the trials themselves. Having been satisfied with the outcome of the first trial, the family have struggled with its re-opening and of watching family and friends give evidence a second time.
Purposes and Principles of Sentencing
[15] In deciding what sentence should be imposed on you I have to take into account established sentencing principles.6 You must be held accountable for the harm done to your victim, and your sentence must provide for the victim’s interests. There is a need to denounce your offending and hold you accountable to the community. There must be an element of deterrence against both future offending by you, and by others who might be minded to offend similarly.
[16] I must also take into account the gravity of the offending, and the degree of your culpability. The sentence I impose on you must be consistent in kind and in length with those imposed on others who have offended similarly. I must take into account any information provided to the Court concerning the effect of the offending on the victim, and the victim’s family. However it is also necessary to impose the least restrictive outcome possible in the circumstances. Finally, I must consider your
re-integration into the community.
6 Sentencing Act 2002, ss 7 and 8.
Submissions
[17] The Crown seeks a starting point of eight years imprisonment, pointing to the following aggravating factors:
(a) a grossly excessive speed of up to 120 kilometres per hour;
(b)persistent and deliberate bad driving - it is said you drove erratically and unusually;
(c) the length and duration of the journey – some 13.1 kilometres which the Crown believes points to an element of deliberation in your actions; and
(d) the death of Mr Maxwell and the extent of harm that must have been
suffered by Mr Maxwell’s whanau.
[18] The Crown does, however, accept that it is appropriate for concessions to be made for the following factors:
(a) your willingness to plead guilty to motor manslaughter,
(b) your previous good character and lack of previous convictions, (c) the fact that it was a one-off piece of bad driving,
(d) the loss of a close friend; and
(e) your mental health background, and at the time of the offending particularly, the existence of post-traumatic stress traits and borderline personality traits.
[19] In addition, the Crown submits that a significant period of disqualification from driving is appropriate.
[20] On the other hand, your counsel submits that a starting point of between three and four years imprisonment is appropriate in all the circumstances. Your counsel accepts that your speed, and the length of your journey may be considered aggravating factors. While he accepts that your driving was persistent he queries whether it can be termed “deliberate bad driving” and suggests I must examine the reasons why you did not stop, and indeed elected to keep driving towards New Plymouth.
[21] He points to your motivation at the time which was to attract attention to your predicament. The veering from side to side and the speed were not deliberately causative of Mr Maxwell’s death. Instead the collision was an accident caused by your inability to negotiate a bend in the road. The jury’s verdict indicates that they accepted a scenario which referred to a loss of control and an accidental crossing of the centre-line.
[22] Your counsel points to the mitigating features of the offending as the following:
(a) the conduct of Mr Maxwell in following you as you left the hotel alone, having just attempted to finally end your relationship;
(b)the conduct of Mr Maxwell in jumping on the bonnet of your car and acting in an aggressive manner;
(c) your state of mind when you drove from Inglewood towards New Plymouth - your counsel submits you were fearful, not callous. He said that you had no desire to harm Mr Maxwell; and
(d)finally, he points to the serious injuries you sustained which eventually necessitated the amputation of your leg.
[23] As to personal mitigating factors, your counsel points to the willingness to plead guilty to manslaughter, your remorse, and your lack of previous criminal convictions. He also submits that an additional term of disqualification is not
required in respect of the sentence of manslaughter as you have already been disqualified for three years from when you were released from prison on the charge of dangerous driving causing injury to the driver of the other car involved in the collision.
Decision
[24] In approaching the sentencing today I must first consider the culpability of the offending itself divorced from matters relating to you personally. From this I will fix a starting point sentence. As counsel have submitted, there is no tariff case for motor manslaughter due to the varying circumstances in which such offending may occur. However, R v Skerrett7 does provide guidance in the form of a non- exhaustive list of relevant aggravating and mitigating factors. The Court of Appeal in Skerrett stated that sentences involved in motor manslaughter cases may range widely due to the varying circumstances in which such offending may take place.8
Nevertheless, the penalties imposed for bad driving resulting in death should reflect the concerns the public have in the preservation of proper standards of driving on our roads.
[25] I will not list the relevant aggravating factors and the personal factors which were mentioned by the Court of Appeal as relevant in the case of Skerrett but I take them into account. Those factors continue to be useful in assessing sentencing, although the Court of Appeal did state in R v Grey:9
Although the decision in Skerrett is not yet 6 years old, the continuing road toll, the repetition of personal tragedies, well illustrated by the devastating effects on the families involved of which the victim impact statements speak in the present case, and a growing sense of public outrage, have led to a rapid hardening of the attitude of sentencing Courts to such cases. Imprisonment is now regarded as the norm in cases of death or serious injury where the driver is under the influence of drink or drugs, and a term of some years in length no longer excites comment.
7 R v Skerrett CA236/86, 9 December 1986; affirmed by R v Fallowfield [1996] 3 NZLR 657 (CA) at 663.
8 R v Skerrett, above n 7, at 12.
9 R v Grey (1992) 8 CRNZ 532 (CA).
[26] I have reviewed a large number of cases of motor manslaughter, they are regrettably reasonably common. Many such cases adopt a starting point of between six years and eight years imprisonment. Your counsel has drawn my attention to several cases that shared broad similarities with the present case. I have found two cases particularly helpful, and I will refer to both of these.
[27] The accused in R v Tauira10 pleaded guilty to one count of manslaughter. His plea followed two trials for murder, both of which resulted in hung juries. Briefly, the facts were that on an evening in August 2006, Mr Tauira was socialising with friends. On his own evidence he consumed 12 bottles of beer over several hours. Later in the evening the group left and drove to a party in a convoy of three vehicles. He was the driver of one of those vehicles. As the group approached their destination they passed a group of people clustered around a lamp post. That group had gathered to commemorate the death of one of their associates who had been murdered at that location some weeks prior. Words were exchanged as the convoy of vehicles passed the group gathered around the lamp post. A passenger in one of the vehicles got out and challenged the group. A fight then broke out between that passenger and the group gathered around the lamp post.
[28] Mr Tauira stopped his vehicle to enable his three passengers to alight and assist in the fight. He then drove a short distance up the street, carried out a u-turn and then stopped on the side of the road facing the fighting. In order to assist his passengers he drove towards the group. His intention was to stop short of the group in order to cause them to disperse. However, he did not. Instead his vehicle struck the deceased who was then thrown forward onto the roadway and became stuck under his vehicle.
[29] While Mr Tauira was aware he had struck at least one person, he was not aware that the deceased was trapped under his vehicle. He drove, with the deceased still wedged under his vehicle, for some 2.4 kilometres. During that time he collided
with another vehicle but was able to keep driving.
10 R v Tauira HC Auckland CRI-2006-092-11737, 19 June 2009.
[30] Allan J adopted a starting point of six years and six months imprisonment. His Honour allowed a reduction of two years imprisonment in recognition of the guilty plea, and a further three months to reflect the prisoner’s remorse and previous good record, leading to a final sentence of four years and three months.
[31] In the second of the cases I found quite helpful, R v Anderson11 the accused was involved in a domestic dispute with her partner during which he assaulted her. Ms Anderson went to leave their home, and as she reversed out of the driveway her partner came out of the house and spread-eagled himself on the bonnet of the car. Ms Anderson reversed at speed, causing her partner to fall off the bonnet onto the road. She continued reversing at speed for about 70 metres, and then returned to check that her partner was all right, but was unable to locate him. She then drove off.
[32] Ms Anderson drove up behind the deceased’s car and twice rammed into it. The deceased (who was not known to her) was panicked by this and tried to accelerate away from her. Ms Anderson tailgated the deceased and both cars continued at speeds of over 100 kilometres an hour for about 1.5 kilometres. The two cars approached a T intersection, which neither car was able to negotiate. Both cars crashed causing the fatality.
[33] The trial judge adopted a starting point of seven years imprisonment which was reduced to six years for personal mitigating factors. A further 20 percent discount was made for Ms Anderson’s guilty plea, leading to a final sentence of four years and 10 months.
[34] The Court of Appeal in that case12 noted that while Skerrett remains a useful guide in assessing the features of motor manslaughter that are to be taken into account in determining a starting point, the levels of sentence have increased very markedly since Skerrett has decided. Ms Anderson’s appeal that the sentence of four
years and 10 months was manifestly excessive was dismissed.
11 R v Anderson HC Invercargill CRI-2009-025-995, 27 November 2009.
12 Anderson v R [2010] NZCA 339.
[35] I will not here analyse other cases except to mention that I have had regard to R v Whiu13, R v Pori14¸ R v Grey15, R v Faaotaota16, R v Emery17, R v Jagger18, R v Barclay19, and R v Martin20.
[36] Coming to your case now, Ms Fairburn, in assessing a starting point in this case, the aggravating features of the offending are:
(a) your excessive speed;
(b)your persistent bad driving - such as veering from side to side in an attempt either to attract attention or to dislodge Mr Maxwell, and your overtaking of other vehicles with an obvious obstruction in the form of Mr Maxwell’s body on the bonnet of your car;
(c) the length and duration of the journey – 13.1 kilometres; and
(d)the death of Mr Maxwell who was, in my view, in a particularly vulnerable position on the bonnet of the car.
[37] In light of these aggravating factors, and the case law to which I have referred, I adopt a starting point of six years and eight months imprisonment. There are no aggravating features personal to you. Mitigating personal factors include:
(a) your previous good character and lack of previous convictions; (b) the fact that it was a one-off piece of bad driving by you;
(c) the loss of a former partner, and someone I believe you still genuinely
loved;
13 R v Whiu [2007] NZCA 591 at [20].
14 R v Pori HC Auckland CRI-2004-204-118, 5 October 2004.
15 R v Grey (1992) 8 CRNZ 523 (CA).
16 R v Faaotaota HC Auckland CRI-2009-092-4744, 17 December 2010.
17 R v Emery HC Tauranga CRI-2010-070-7808, 1 July 2011.
18 R v Jagger HC Palmerston North CRI-2009-054-3889, 2 December 2009.
19 R v Barclay HC Nelson CRI-2006-042-4085, 31 May 2007.
20 R v Martin HC New Plymouth CRI-2009-043-4845, 29 April 2010.
(d)your mental health background at the time of the offending, particularly the existence of post-traumatic stress traits and borderline personality disorder;
(e) your history as a victim of domestic violence and sexual abuse, particularly the way in which that history may have informed your belief that Mr Maxwell was a threat to both yourself and your daughter;
(f) your family responsibilities – you have four children, and
(g)finally, your remorse and willingness to take responsibility for the offence, which I believe to be genuine.
[38] In R v Hessell21 it was stated that a willingness to plead guilty to an offence a defendant is eventually convicted of ought to be treated in sentencing in the same manner as a guilty plea to the actual offence charged. That is, the offender should not be disadvantaged by the fact that the prosecution chose to proceed to trial on a more serious charge that resulted in an acquittal. Discounts for guilty pleas are discretionary but should not exceed 25 percent.22 A determination of an appropriate discount must take into account all the circumstances surrounding the expression of a willingness to plead guilty.
[39] In light of the significance and number of these mitigating factors, I allow a reduction of 25 percent, or one year and eight months imprisonment, for your expressed willingness to plead guilty, and a further reduction of 15 percent, or one years imprisonment, for your previous good character, mental health issues, family responsibilities, and genuine remorse. This results in a final sentence of four years imprisonment, which is to be served concurrently with the three year sentence for
dangerous driving causing injury imposed by Harrison J.23
21 R v Hessell [2009] NZCA 450, [2010] 2 NZLR 298; overturned by Hessell v R [2010] NZSC
135, [2007] 1 NZLR 607 but not on this point.
22 Hessell v R at [75].
23 R v Fairburn HC New Plymouth CRI-2008-043-931, 4 March 2009.
[40] There is the additional question of whether a period of disqualification from driving should be imposed and, if so, how long. This discretionary power is exercisable under s 124 of the Sentencing Act 2002 and may, in this case, be for any period the Court thinks fit. However, as this offending is a one-off piece of bad driving, I am of the view that the significant period for disqualification the Crown seeks is not appropriate. I therefore decline to disqualify you for longer than the three years imposed on the charge of dangerous driving causing injury.
[41] Accordingly, Ms Fairburn, you are sentenced to imprisonment for four years in respect of the charge of manslaughter of which you have been found guilty by the jury.
……………………………..
Woolford J
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