R v Green
[2016] NZHC 513
•23 March 2016
IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY
CRI-2015-070-576 [2016] NZHC 513
THE QUEEN
v
RAYMOND GREEN
Hearing: 23 March 2016 Appearances:
A J Pollett and N Batts for Crown
T Rickard-Simms for DefendantSentence:
23 March 2016
SENTENCING NOTES OF WHATA J
Solicitors:
Crown Solicitor, Tauranga
Pacific Coast Law, Papamoa
R v GREEN [2016] NZHC 513 [23 March 2016]
Introduction
[1] Mr Green, you have pleaded guilty to the following charges: (a) Manslaughter;
(b) Driving while disqualified (3rd or subsequent); and
(c) Refusing an officer’s request for a blood specimen (3rd or subsequent). [2] You now appear for sentence.
[3] The charge of manslaughter carries a maximum penalty of life imprisonment.1 The driving charges each carry a maximum penalty of two years’ imprisonment or a fine not exceeding $6,000.2
[4] My sentence will be in six parts:
(a) First, I must re-tell the facts of your offending;
(b) Second, I will describe your personal circumstances; (c) Third, I will refer to the victim impact statements;
(d)Fourth, I will describe the legal frame, principles and purposes of sentencing;
(e) Fifth, I will set out the reasons for the sentence I will impose on you;
and
(f) Sixth, I will deliver my sentence.
[5] Before proceeding further, however, I want to acknowledge Ilya’s family and
friends. I wish to express my personal sympathy for your loss and I know that
1 Crimes Act 1961, s 177.
2 Land Transport Act 1998, ss 32 and 56.
recounting the facts will be distressing for you. There will be times during my sentencing where you may feel that the emphasis is on the defendant, Mr Green. But please note that I am mindful throughout of your great loss.
Facts
[6] Mr Green, on 2 February 2015 you had a day off work and decided to link up with a friend Paul Butler at your brother’s house at about 4.30 pm. Mr Butler arrived in his Subaru B4 motor vehicle. You had a couple of drinks and then decided to go to another work colleague’s house in Gate Pa. His name is Charlie Aranui.
[7] When you caught up with Mr Aranui, he decided that he would be the sober driver and you together drove in convoy to Mr Butler’s house to drop Mr Aranui’s car off there and continued to Mt Maunganui in the Subaru. Mr Aranui was driving.
[8] On the way back over to Mt Maunganui you stopped at a liquor store in
Tauranga City and bought some beers and Woodstock bourbon and colas to drink.
[9] Having stocked up on drinks, the three of you went to Pilot Bay at the Mount. Mr Aranui was driving the Subaru while you and Mr Butler drank your alcohol. From there the three of you drove around the Mount for a bit longer before going to the pub.
[10] At the pub you drank some beer and played pool.
[11] From the pub you went to the Bayfair shopping mall to buy some more alcohol. On arriving at Bayfair, Mr Aranui was driving, but after the alcohol had been purchased you took over driving from him.
[12] With you behind the wheel, the Subaru left the Bayfair car park destined for
Welcome Bay.
The deceased’s evening
[13] While this was happening, the deceased, Ilya Kojevnikov, went to his friend’s house at 146 Welcome Bay Road at around 5.30 pm in the evening. He took a bottle of home brew vodka and some fresh fish with him.
[14] Mr Kojevnikov and his friend from the address, Aaron Ormsby, were drinking the vodka and raro in the shed throughout the evening. They went out twice to get more of the home brew vodka.
[15] Later in the evening, the pair decided to go back to Mr Kojevnikiv’s house and play pool. Mr Ormsby took his two year old daughter with him and she was in his arms. Mr Kojevnikov’s blood alcohol level was three times the legal limit for driving. He also had some traces of THC or cannabis in his system. The mood was jovial and they were having a laugh.
The drive up Welcome Bay Road
[16] By this time, you had reached Welcome Bay Road. As you drove up, Mr Kojevnikov and Mr Ormsby were down by the road – Mr Ormsby had gone first and was in the middle of the road with his daughter.
[17] As you drove past, Mr Kojevnikov was coming down onto the road. Seeing the car pass he kicked out at it in a karate kick-type motion. CCTV footage captured this.
[18] Having seen this, Mr Aranui said that you should go back to see what his problem was.
[19] You then completed a U-turn a little further up the road and sped back down the road.
[20] By this time Mr Kojevnikov was in the middle of the road and had been waving his arms around. Mr Ormsby was walking still with his daughter up the other side towards the Food Market across the street.
[21] By the time your car reached this area, Mr Ormsby was off the road but Mr Kojevnikov was walking to the other side. Seeing the headlights of the vehicle speeding towards him, he stopped and took two or three steps into the median strip.
[22] Your vehicle drove into the median strip and struck Mr Kojevnikov on the median strip closest to the wrong side of the road. When struck, he flew into the air and came to rest on the road outside the driveway next door to 146 Welcome Bay Road. He was killed instantly.
[23] There is expert dispute about how fast you were driving, but I am satisfied that it was well in excess of the 60 kilometres limit, and in the order of 80-100 kilometres per hour.
Defendant immediately after impact – back to Papamoa Beach Road
[24] You then fled at breakneck speed. You did not stop or call emergency services.
[25] In the vehicle there were discussions about options including burning the car, and you suggested attributing blame to Mr Butler
[26] Mr Butler thought Mr Kojevnikov was going to die and wanted to go back. He felt threatened by you.
[27] On getting back to your house, the vehicle was parked up at the back of the property, out of sight from the road.
[28] You then went to make yourself a feed. Mr Butler and Mr Aranui were not in the mood for eating and they wanted to leave as soon as possible to call the police.
[29] As soon as they found the opportunity to leave, they left you and the vehicle at the property. The police were then called.
Back at Welcome Bay Road
[30] Paramedics and the police arrived at Welcome Bay Road where the people from the address at 146 Welcome Bay Road were and other neighbours who had come out.
[31] Mr Kojevnikov had been formally pronounced deceased.
Defendant
[32] You were arrested and transported back to the Tauranga Police Station. The officer could smell alcohol on your breath. You told the officer that you had been drinking beer during the daytime. You said you were not intoxicated. This wasn’t able to be verified as you refused a breath screening and blood specimen test.
[33] The next morning you provided a statement to the police. In essence, you said that the deceased jumped in front of you; and that you were going the speed limit and that you panicked.
Personal circumstances
[34] I turn now to your personal circumstances.
[35] You are 33. You have children aged seven and 10 who live in Nelson with their mother.
[36] Until recently, you were in a long term relationship. Though it now appears to be at an end, your former partner is still supporting you through this time. You also have a supportive mother.
[37] Unfortunately, you have a number of driving-related convictions, including five for dangerous or careless driving, seven for excess breath alcohol, one for refusal to give a blood specimen and one for failing to stop. Your pre-sentencing report also notes that your offending is escalating in severity and that you are high risk of harm to others taking into account your previous and current convictions.
[38] On the positive side, the report notes that you have expressed remorse for your offending and that you are willing to pay reparation.
Victim impact statements
[39] Ms Theodore, Mr Kojevnikov’s former partner with whom he has a daughter has provided a victim impact statement. Their daughter, Tatiana, is six years’ old. Ms Theodore in her statement spoke of how you have robbed Tatiana of her father. Tatiana loved spending time with her dad. Mr Kojevnikov will not be there for the milestones in Tatiana’s life. Ms Theodore also spoke of how much she has grieved at the loss of Mr Kojevnikov and that she can no longer rely on him for support in looking after Tatiana.
[40] Mr Kojevnikov’s mother, Tatiana Wilson has also provided a statement. She describes how they moved here to avoid conscription. She feels that she must live with a decision that ultimately resulted in Ilya’s death.
Legal frame, principles and purposes of sentencing
[41] I am now going to describe the legal frame, principles and purposes that must guide sentencing.
[42] I have to take into account the purposes and principles of sentencing outlined in ss 7 and 8 of the Sentencing Act 2002. There is a need to denounce the offending and to hold you accountable for the harm that you have done. The sentence I will impose is intended to promote a sense of responsibility in you for that harm. There must be deterrence, both against future offending by you and against others who might act similarly. I also have to consider the protection of the public and your rehabilitation.
[43] The sentence I impose on you must be consistent in kind and in length with those imposed on others who have offended in a similar way. I must consider the gravity of your offending and your culpability. I must also take into account any circumstances that might make an otherwise appropriate sentence disproportionately severe and the effects that the offending has had upon you.
[44] Turning then to your sentence. I will first identify the key features of your offending to ascertain its severity and the level of your culpability. In light of those features, I will examine other sentences to gain a gauge on where your offending sits relative to the other offending of this kind. This will help me to set a starting point for your sentence. I will then look at your personal circumstances and apply any uplifts or discounts to the starting point in light of those circumstances.
Culpability – aggravating features
[45] Mr Green, your driving killed Mr Kojevnikov. This level of harm means that both your culpability and the severity of your offending are very high.
[46] I also agree with the Crown that the following features of your offending are aggravating:
(a) Consumption of alcohol – you had consumed several alcoholic drinks prior to taking over the driving of the car. While I cannot assess accurately your level of intoxication, it must have been sufficient to cause you to decline to be tested.
(b)Grossly excessive speed – there is ample evidence that you drove with excessive speed before, during and after the collision with Mr Kojevnikov.
(c) Deliberately reckless driving – travelling at 80-100 kilometres per hour, with two pedestrians in close proximity, on a stretch of road subject to a 60 kilometre per hour limit was plainly reckless.
(d)Failure to stop – while I accept that you panicked, the fact you fled from the scene is a significant aggravating feature.
[47] I reject, however, the Crown contention that your offending was premeditated. You did not instigate the U-turn and, on the evidence, your actions were reckless, rather than pre-planned or overtly intentional.
[48] The Crown emphasised that you crossed the median line. But on my interpretation of the evidence, including the CCTV footage, you were negotiating the corner at a recklessly high speed rather than turning to bring yourself closer to Mr Kojevnikov. Regrettably, it is also clear that Mr Kojevnikov was highly intoxicated, and moved toward the car rather than away from it, as might ordinarily be expected. The combination was tragically lethal.
[49] With this combination of facts in mind, I turn to examine the appropriate sentence for your offending in the light of other sentences for similar offending. The Crown and your counsel have cited a number of authorities to me. The Crown submits that a starting point of eight to nine years is appropriate. Mr Rickard-Simms submits that the appropriate starting point is four to five years. As it happens, I consider that the Crown’s starting point is too high, while Mr Rickard- Simms’ is too low.
[50] The cases cited by the Crown3 involved more serious offending, including multiple deaths,4 higher speeds,5 more reckless driving6 and refusing to stop at the
request of passengers.7
3 R v Grey CA122/92, 6 August 1992; R v McKelvy CA372/97, 25 November 1997; R v Whiu
[2007] NZCA 591; R v Mika [2013] NZHC 2357.
4 In R v Grey, above, the defendant was driving at excessive speed around a corner. He failed to take the bend and side-swiped a power pole. The car then went into a slide and collided with two
11 year old schoolboys riding their bikes on the side of the road. The car then collided with
another car but did not harm any of its occupants. The two schoolboys died. The Court of Appeal
upheld a starting point of nine years’ imprisonment.
5 In R v McKelvy, above n 3, the defendant drove 120 kilometres per hour in a 50 kilometres per hour zone. He failed to negotiate a moderate right hand bend and lost control of his car which slid sideways and collided head-on with a car travelling in the opposite direction. The front-seat passenger of that car was killed instantly. The Court of Appeal upheld an end -sentence of eight years’ imprisonment with an “assumed” start point of nine years.
6 In R v Whiu, above n 3, the appellant had been driving in an erratic manner at speed, had run
several red lights, made illegal turns and collided with several cars over a 9 km journey. When a car in front of her was trying to make a legal right turn into a driveway, she attempted to overtake the car at 100 kilometres per hour. She collided with the driver’s side of the car and killed the driver. The Court of Appeal held that a starting point of nine years’ imprisonment was justifiable.
7 In R v Mika, above n 3, Gendall J adopted a start point of eight years’ imprisonment in circumstances where the defendant had lost control of his vehicle after driving at an excessive speed and the subsequent crash killed one of the four passengers. The defendant had been speeding prior to the crash and had been spotted by a Police officer. The passengers in the car had pleaded that he stop, but the defendant insisted on “getting them out of it”.
[51] Mr Rickard Simms provided a table of sentences in manslaughter and dangerous driving causing death cases. That table largely drew upon a number of cases cited by the Court of Appeal in Gacitua v R.8 The table helpfully indicates a broad range of examples across a variety of situations. The lower sentences tend to relate to the lesser charge of dangerous driving causing death,9 the maximum sentence for which is 10 years’ imprisonment.10 Some caution therefore is needed for the purpose of the present sentencing as the charge is motor manslaughter. Having said that, I am obliged to achieve parity of sentence for similar fact offending.11 In Gacitua v R, the Court of Appeal observed that where alcohol is an aggravating factor, a starting point between six years and six years six months tends to be adopted.12 It also noted that in cases involving two deaths, the starting points tend to be eight years and eight years six months.13
[52] In any event, I am satisfied that a starting point of five to seven years based on a range of sentences for similar offending is appropriate. In R v Barclay,14 a starting point of five to six years was imposed in relation to driving 40-50 kilometres per hour over the speed limit and crossing the centre line hitting an oncoming car and causing death. In R v McGrath,15 a starting point of seven years was adopted in relation to an alcohol impaired driver, who drove at 142 kilometres per hour and crashed into a house. That case is, however, distinguishable because the driver was avoiding apprehension by the police. In R v Haufano,16 the driver chased a
pedestrian and ran him over, killing him. A start point of six years was adopted.
8 Gacitua v R [2013] NZCA 234 at [31]–[37].
9 The dangerous driving causing death cases include McCulloch v Police [2013] NZHC 279 (starting point of three years six months upheld on appeal where the defendant drove on a restricted licence in an unregistered and unwarranted vehicle after drinking); R v Teece [2012] DCR 450 (five year starting point where the aggravating factors were excessive speed, overtaking dangerously and poor driving record), Ko v Police [2012] NZHC 3312 (starting point of three years upheld on appeal where there was a head-on collision after the appellant tried to
overtake a truck over double painted yellow lines). In R v Adlam [2015] NZHC 2192 the
defendant, who was charged with motor manslaughter, received a start point of five years, where he deliberately disabled the brake and drove around for more than a week, all the while ignoring warning signs, and the car was unregistered, unwarranted and not roadworthy.
10 Land Transport Act 1998, s 36AA.
11 Sentencing Act 2002, s 8(e).
12 Gacitua v R, above n 8, at [38].
13 Above.
14 R v Barclay HC Nelson CRI-2006-042-4085, 31 May 2007.
15 R v McGrath [2014] NZHC 1583.
16 R v Haufano [2014] NZHC 1201.
[53] Given the foregoing, I have come to the view that six years six months is an appropriate starting point to properly account for the aggravating features of your offending.
Aggravating personal factors
[54] I turn to personal aggravating features. Unfortunately Mr Green you have a lengthy and escalating history of driving-related offending.17 This is compounded by the fact that you were driving while disqualified when the present offending occurred (for which you have three previous convictions) and refused to give a blood specimen (for which you have a previous conviction). The Crown submits that an 18 month uplift is warranted. I agree. You have shown woeful disregard for road rules
designed to protect the public, culminating in the present tragedy.
Mitigating factors
[55] I accept however that there are mitigating personal factors. You are remorseful and there are strong prospects for rehabilitation with good family support. I will allow a five per cent discount for this.
[56] Your guilty plea also warrants a discount: the issue is how much. While your guilty plea to manslaughter came late in the trial, you were facing a murder charge which, in my view, you had a proper basis to deny. You also admitted culpability by offering a plea of guilty to a charge of dangerous driving causing death at a very
early stage.
17 In 2001, Mr Green was convicted and sentenced to periodic detention and two months disqualification for driving with EBA. In 2002, he was convicted and sentenced to periodic detention and three months disqualification for driving with EBA. In 2003, he received 100 hours community work and was disqualified from driving for 9 months for driving with EBA (3rd or subs). That same year he drove while disqualified and failed to stop, for which he received 75 hours of community work and a further six months’ disqualification. In 2007, he was fined for operating a vehicle carelessly. He was also sentenced to 250 hours community work and nine months’ disqualification for driving with EBA (3rd or subs). In 2011, he was convicted and sentenced to 120 hours of community work, community detention for six months and was disqualified for one year for driving with EBA (3rd or subs). In 2012, he was imprisoned for four months and was indefinitely disqualified from driving for the offences of driving with EBA (3rd or subs) and driving while disqualified. In 2013, he was imprisoned for 11 months and disqualified for two years for refusing a blood sample, driving with EBA (3rd or subs) and driving a motor vehicle dangerously.
[57] Ms Pollett submitted that the Crown indicated that it was prepared to consider a manslaughter plea. The offer to treat is well short of an offer to accept a plea. Mr Green I accept that you faced a murder charge and it is speculative to suggest that the Crown would have accepted a manslaughter plea. Balanced against this, it was in your hands to take the active step to avoid trial. I have come to the view that a 10 per cent discount for your guilty plea reflects a proper balance of considerations including your early indication of culpability and the ambiguity of the Crown’s position.
[58] These factors taken together warrant a discount of 15 per cent.
Summary
[59] In summary, I adopt a starting point of six years six months; I add 18 months for your prior conduct and offending while disqualified to arrive at a preliminary sentence of eight years. I discount that sentence by 15 per cent to reach a final sentence of six years and eight months.
[60] On the convictions for:
(a) Driving while disqualified (3rd or subsequent); and
(b) Refusing an officer’s request for a blood specimen (3rd or subsequent); I impose a sentence of 12 months on each,18 to be served concurrently with the
manslaughter sentence, that offending having already been accounted for in the manslaughter sentence.
[61] Given that you have been convicted of refusing an officer’s request for a
blood specimen within five years of being convicted of the same offence, I must disqualify you from holding a licence until the Agency removes that disqualification.
18 I have come to the sentence of 12 months in relation to disqualification charge in reliance on the following authorities: Samson v Police [2015] NZHC 748; Drinkwater v Police [2013] NZHC
1036; Keenan v Police [2014] NZHC 1894; Harre v Police [2013] NZHC 1740; Hokianga v Police [2013] NZHC 1355; Iwikau v Police [2013] NZHC 2515. With regard to the sentence for refusing to give a blood sample (3rd and subsequent), I have relied on Kumar v R [2015] NZHC
1034 and Hart v Police [2014] NZHC 429.
[62] I also impose a finite disqualification in accordance with s 124 of the Sentencing Act 2002 of seven years from today: that is, 23 March 2016 given your appalling driving record.19
Minimum term of imprisonment
[63] The Crown also seeks a minimum term of imprisonment. I consider that three factors compel me to do so:
(a) The escalating nature of your offending;
(b) The failure to stop and offer assistance; and
(c) The harm caused by your driving.
[64] I am therefore satisfied that the requirements for denunciation, accountability and deterrence demand a minimum sentence in your case of 50 per cent.
Sentence
[65] Mr Green please stand:
(a) On the charge of manslaughter I impose a sentence of six years eight months together with a finite disqualification from holding or obtaining a driver’s licence for a period of seven years from 23 March
2016 – you will serve a minimum non parole period of 50 per cent of this sentence;
(b)On the charge of driving while disqualified (3rd or subsequent), I impose a sentence of 12 months’ imprisonment to be served concurrently with the sentence for manslaughter; and
(c) On the charge of refusing an officer’s request for a blood specimen
(3rd or subsequent), I impose a sentence of 12 months’ imprisonment
19 Land Transport Act 1998, s 85; Hitchens v R CA380/03, 25 March 2004.
to be served concurrently with the sentence for manslaughter. You are also disqualified from obtaining or holding a driver’s licence until the Agency removes that disqualification.
(d) I remit your outstanding your fines.
[66] I have already given you your first strike warning. [67] Mr Green, please stand down.
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