R v Fleming - [2022] NZHC 1517

IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY

I TE KŌTI MATUA O AOTEAROA TE TIHI-O-MARU ROHE

CRI-2021-076-1065

[2022] NZHC 1517

THE QUEEN

v

TYREESE STUART FLEMING

Hearing: 29 June 2022

Appearances:

A R McRae for Crown

T C G Nation for Defendant

Judgment:

29 June 2022

ORAL SENTENCING REMARKS OF OSBORNE J

Introduction

[1]Mr Fleming, I am going to ask you to stand please.

[2] Tyreese Stuart Fleming, you appear for sentence on five charges of dangerous driving causing death, to which you pleaded guilty and were convicted on 5 April 2022.1 By your dangerous driving you took the lives of five teenagers:

(a)Andrew Goodger, aged 15 years;

1 Land Transport Act 1998, s 36AA(1)(b) and (2) – maximum penalty of 10 years’ imprisonment or a fine not exceeding $20,000, and at least one year’s disqualification from driving.

(b)Javarney Drummond, aged 15 years;

(c)Niko Hill, aged 15 years;

(d)Jack Wallace, aged 16 years; and

(e)Joseff (Joey) McCarthy, aged 16 years.

[3] Mr Fleming, I am shortly going to ask you to sit again while I explain the sentence I will be imposing on you. Necessarily, this will take time. I will indicate to you towards the end when you need to stand again.

[4]Please be seated now.

[5] As you have heard, the Crown submits that a starting point of between five and six years’ imprisonment is appropriate. The Crown submits that even when mitigating factors are taken into account the appropriate sentence will still be one of imprisonment.

[6] Your counsel submits that a starting point of four years’ imprisonment would be appropriate. He suggests that that should be reduced by four discounts and a community-based sentence would be justified.

[7] I am going to indicate to you now that I have determined that your sentence will be one of imprisonment and that you will be sentenced to two years and six months’ imprisonment.

[8]I will now explain why that will be your sentence.

Agreed summary of facts

The offending

[9] At the time of your offending, you were 19 years old. That compares to the ages of your victims who were variously 15 and 16 years old.

[10] On 4 August 2021, you obtained your restricted driver’s licence. The conditions of your licence precluded you from driving if you had had any alcohol, and from having any of the victims as passengers.

[11] At approximately 6.20 pm three days later, on 7 August 2021, you entered a liquor store in Timaru and purchased two boxes of a vodka-based RTD.

[12] At about 6.25 pm you drove to the skatepark at Caroline Bay, carrying Andrew Goodger and Niko Hill as your passengers. Javarney Drummond, Jack Wallace and Joey McCarthy joined you at around 6.40 pm. The group of you spent time around the skatepark drinking the alcohol you had purchased until approximately 7 pm. While there, you posted a “Snapchat” of yourself sculling at least two bottles of the alcohol.

[13] At around 7.02 pm, everyone got…

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 Fleming

Details

AGLC: R v Fleming [2022] NZHC 1517
Case: [2022] NZHC 1517
Decision Date: 29 June 2022

CaseChat Overview and Summary

In the case of R v Fleming, Tyreese Stuart Fleming, a 19-year-old man, was convicted of five counts of dangerous driving causing death. The court considered the aggravating and mitigating factors of the case to determine the appropriate sentence. The aggravating factors included the multiple fatalities, dangerously loaded vehicle, alcohol consumption, breach of a restricted license, and excessive speed. The mitigating factors included the defendant's guilty plea, remorse, youth, cognitive issues, and previous good character. The court adopted a starting point of five and a half years' imprisonment, and after applying the mitigating factors, sentenced Fleming to two years and six months' imprisonment. Additionally, Fleming was disqualified from holding or obtaining a driver's license for five years.

The court in this case considered the aggravating and mitigating factors to determine the appropriate sentence for the defendant. The primary aggravating factor was the extent of harm caused by Fleming's dangerous driving, resulting in the deaths of five teenagers. Other aggravating factors included Fleming's alcohol consumption, dangerously loaded vehicle, breach of his restricted license, and excessive speed. The mitigating factors considered by the court included Fleming's guilty plea, remorse, youth, cognitive issues, and previous good character. The court found that a discount of 25% for the guilty plea, 15% for youth and cognitive issues, 10% for remorse, and 5% for previous good character were appropriate. The resulting sentence was two years and six months' imprisonment, with an additional disqualification from holding or obtaining a driver's license for five years.

Orders