R v Forbes HC Invercargill CRI 2010-025-2061

[2010] NZHC 1485

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CRI-2010-025-002061

REGINA

v

DANNY ROSS FORBES

Hearing:         30 August 2010

Appearances: M Sinclair for Crown

R Eagles for Prisoner

Judgment:      30 August 2010

SENTENCE OF HON. JUSTICE FRENCH

[1]      Danny Ross Forbes, following a plea of guilty you appear this afternoon for sentence on a charge of manslaughter.

Facts of the offending

[2]      The facts of the offending are as follows.

[3]      On the evening of 20 February 2010 you and your cousin, Ricky Forbes, were out socialising at a Murchison hotel.  Your behaviour deteriorated to the point where at 2 a.m. the landlord asked you both to leave.  You got into a car, with Ricky in the front passenger seat.   You drove around Murchison, the manner of your

driving being such that a member of the public was sufficiently concerned to call

R V FORBES HC INV CRI-2010-025-002061 [30 August 2010]

police.  A police officer in a marked patrol car attempted to stop you, but you sped away.  The officer followed.  However, he lost sight of the vehicle you were driving due to your excessive speed.

[4]      Approximately three and a half kilometres out of the township,  you lost control of the vehicle.  It is estimated that at the time your speed was in the vicinity of 160 to 185 kilometres per hour.

[5]      The car veered off the road and hit a tree, the force of the impact cutting the vehicle in half.

[6]      Tragically, Ricky died at the scene and you yourself suffered serious injuries including a severe traumatic brain injury and multiple fractures of the spinal column.

[7]      You were a disqualified driver.

[8]      A blood sample taken at 5 p.m. indicated a level of 208 milligrams of alcohol per 100 millilitres of blood.  It is estimated that at the earlier time of the accident the level would have been in the region of 230 to 260.

[9]      Because of your head injuries you have no memory of the crash or the events leading up to it.

The reports

[10]     The material before me includes a victim impact report from Ricky’s brother on behalf of the family.  It makes for very sad reading indeed.  Ricky was a much loved member of his immediate and extended family.   His sudden and totally avoidable death has had a profound effect on all their lives.   They say they feel completely devastated.

[11]     In addition to the victim impact report I have also read the pre-sentence report and some medical reports.  The reports tell me that you are 26 years of age, married with two children aged four and six.

[12]     You have 12 previous convictions.  They include three for drink driving, the most recent of which was only in October 2009.   You also have convictions for driving at a dangerous speed, driving when your licence was suspended, driving while disqualified and driving in excess of the speed limit.

[13]     As I already mentioned, you sustained serious head injuries, which have had an ongoing impact, affecting your long-term and short-term memory.  According to the  doctors,  it  is  very  likely  you  may  well  retain  some  neuro-psychological problems.  As for the spinal fractures, although they are healing, it is the doctor’s opinion that any future impact could cause further injury or death.  The doctors also say that it is very likely you will have ongoing pain in your neck, and to a lesser extent your lower back.

[14]     Although you were unable to verbalise your feelings to the probation officer, you have since written a letter to the Court expressing your deep remorse and your grief.  I accept that you do bitterly regret what you have done, and I am sure must fervently wish that if only you could turn the clock back.

[15]     Mr Eagles has also provided me with a number of references, including two references from employers.  It is clear you enjoy significant support.  It is also clear to me that you have a very good work record and are well regarded by the writers of the various letters.

Sentencing analysis

[16]     I now turn to explain the sentencing decisions I must make today.

[17]     First and foremost, in sentencing you I am required to take account of what are called the purposes and principles of sentencing.

[18]     As regards the purposes of sentencing, they are first to hold you accountable for the harm that you have done; to promote in you a sense of responsibility for that harm; to provide for the interests of the victims; to denounce your conduct, and by that I mean to express society’s complete condemnation and indeed sense of outrage at what you have done.  A further important purpose of sentencing is to deter you

from any future offending and to deter others who might be like-minded.  There is widespread concern and anger in our community about those who get behind the wheel when they have had too much to drink, speed and kill or injure others.  It is a major social problem.  The community has simply had enough.

[19]     In terms of the principles of sentencing, the principles of particular relevance in this case are the seriousness of the offending, consistency with other cases and the effect on victims.   I must also be mindful of my obligation to impose the least restrictive sentence that is appropriate in the circumstances.

[20]     Those, then, are the principles and purposes of sentencing.

[21]     In applying those principles and purposes, I am required to follow what has been called a two-stage approach.

[22]     In the first stage, I have to fix what is known as the starting point.   That simply means the sentence which reflects the culpability or blameworthiness associated with your offending.  That is the first stage.  Fixing the starting point.

[23]     The second stage, is that having fixed the starting point, I then look at your personal circumstances as distinct from the circumstances associated with the offending, and I decide whether your personal circumstances warrant an adjustment upwards or downwards to the starting point.

[24]     So turning then to stage one: fixing the starting point.

[25]     There are no guideline cases for manslaughter, because the circumstances are so varied.

[26]     As   Mr   Eagles   has   responsibly   acknowledged,   there   are   significant aggravating features in your case.  I identify the key aggravating factors as being:

i)The consumption of alcohol.  A level of three times over the legal limit.

ii)       Your grossly excessive speed.

iii)The fact that there was a course of bad driving, including the wheelies in the Murchison township and failing to stop for the police officer.

iv)The fact that you were a disqualified driver and should not have been on the road driving at all.

[27]     Having  regard  to  those  aggravating  features  and  the  comparator  cases,  I

consider that an appropriate starting point is seven years’ imprisonment. [28]          There are no mitigating factors relating to the offending.

[29]     I turn then to the second stage: whether your personal circumstances warrant any adjustment to that starting point of seven years’ imprisonment.

[30]     Unfortunately, there is an aggravating factor relating to you personally, and that is your previous convictions, especially for drink driving.

[31]     I  consider  that  on  account  of  those,  an  uplift  of  another  12  months  is warranted, resulting in a term of imprisonment of eight years.

[32]     As regards mitigating factors relating to you personally, Mr Eagles submits that the following should be taken into account:

i)        Your relatively young age. ii)    Your early guilty plea.

iii)      Your remorse.

iv)      The fact that you have suffered serious injury. v)        The evidence of your good character.

[33]     I do not agree that all of these matters independently warrant a discount.  At age 26, for example, you are hardly a youth, and in any event the Court of Appeal has said that youth is not to receive the same weight in cases of motor manslaughter as it does in other cases: see R v Pretty CA277/00 26 October 2000.

[34]     I accept, as I have said, that you are genuinely remorseful, but allowance for remorse is subsumed within the discount for the guilty plea, and I do not regard your remorse as being so exceptional, as to justify an additional discount.

[35]     On the other hand, I do accept that your injuries and the fact that Ricky was a close relative and  friend are significant  matters  that  can  properly be  taken  into account.

[36]     On account of those matters I reduce the sentence by two years, with a further discount of a full third for your early guilty plea.  I thereby arrive at an end sentence of four years’ imprisonment.

Sentence

[37]     Danny Ross Forbes, you are convicted of the charge of manslaughter and sentenced to a term of imprisonment of four years.   You are disqualified from holding or obtaining a driver licence for a period of seven years.

Solicitors:

Crown Solicitor’s Office, Invercargill

Eagles Eagles & Redpath, Invercargill