R v Fairburn - [2012] NZHC 28

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Fairburn

Details

AGLC: R v Fairburn [2012] NZHC 28
Case: [2012] NZHC 28
Decision Date: 30 January 2012

CaseChat Overview and Summary

The case of R v Fairburn involved Cyndi Marcia Fairburn who was convicted of manslaughter. The incident in question occurred on 6 August 2007, when Fairburn drove with her former partner, Darren Maxwell, clinging to the bonnet of her car for 13.1 kilometres. This tragic journey ended when Fairburn crossed the centre-line and collided with an oncoming car, resulting in Maxwell’s death and injuries to Fairburn and the other driver. The court had to decide on the appropriate sentence for Fairburn, considering both the aggravating and mitigating factors surrounding the incident.

The legal issues primarily revolved around determining the appropriate starting point for sentencing, given the unique circumstances of the case, and the extent to which various factors should be considered as aggravating or mitigating. The court had to balance the gravity of the offending, Fairburn's culpability, and the need for denunciation and deterrence, against her personal circumstances and mitigating factors. The court also needed to decide whether a period of disqualification from driving should be imposed.

The court began by assessing the culpability of the offending, considering factors such as Fairburn’s excessive speed, persistent and dangerous driving, the length and duration of the journey, and the particularly vulnerable position of Maxwell on the bonnet of the car. These factors were considered as aggravating. In light of these factors, the court set a starting point of six years and eight months imprisonment. The mitigating factors considered included Fairburn’s willingness to plead guilty, her previous good character, her mental health background, her history of domestic and sexual abuse, her family responsibilities, and her genuine remorse. Taking these into account, the court allowed reductions for the guilty plea and other mitigating factors, resulting in a final sentence of four years imprisonment. The court also declined to impose a longer period of disqualification from driving, aligning it with the three-year sentence previously imposed for dangerous driving causing injury.

In conclusion, Cyndi Marcia Fairburn was sentenced to four years imprisonment for the manslaughter of Darren Maxwell. The sentence was determined after careful consideration of both the aggravating and mitigating factors, in line with established sentencing principles and relevant case law. The court also declined to impose a longer period of disqualification from driving beyond the three years previously imposed.

Orders