R v Griffiths
[2018] NZHC 1104
•18 May 2018
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2017-004-7788
[2018] NZHC 1104
THE QUEEN v
SAMUEL MALCOLM GRIFFITHS
Hearing: 18 May 2018 Appearances:
M Harborow and T Bellingham for Crown AGV Rogers and J Kim for Defendant
Judgment:
18 May 2018
SENTENCING NOTES OF TOOGOOD J
R v GRIFFITHS [2018] NZHC 1104 [18 May 2018]
Introduction
[1] Samuel Malcolm Griffiths: you appear for sentence having pleaded guilty to dangerous driving causing death,1 and dangerous driving causing injury.2
[2] Before I embark on the process of explaining the sentence which I will impose upon you, I want to acknowledge all of those in the courtroom who are here in support of the families who have suffered and are suffering through these tragic events. I am sure your support will mean a great deal to those who are most closely affected.
The background facts
[3] At about 2.15 am on 19 February 2017, Mr Griffiths, you were driving a Volkswagen Polo towards the Newton Road on-ramp to the North-Western Motorway/State Highway 16. There were three teenagers in the vehicle with you, including Kiriana Morrison, aged 17, who was in the back seat. You were then aged 18.
[4] As you turned right from Newton Road onto the on-ramp you pulled briefly on the handbrake of the vehicle before releasing it again. You continued to accelerate down the on-ramp westbound. The section of the motorway where you entered it had a temporary posted speed limit of 80 kilometres per hour.
[5] But on the motorway, you accelerated the vehicle at speeds of between 124.8 to 142.7 kilometres per hour. You told your passengers that you were going to pull the handbrake a second time. Daniel Herrmann, in the back seat beside Kiriana, told you not to do that and reached forward, placing his hand over the handbrake, in an attempt to hold it down. Despite his efforts, you pulled the handbrake, with devastating consequences.
1 Land Transport Act 1998, s 36AA(1)(b): maximum penalty imprisonment of 10 years' imprisonment or a fine not exceeding $20,000, with mandatory disqualification for one year or more.
2 Land Transport Act 1998, s 36(1)(b): maximum penalty of five years' imprisonment or a fine not exceeding $20,000, with mandatory disqualification for one year or more.
[6] The vehicle suddenly went into a right-hand arc, crossing both lanes of traffic and the paths of other road users. The front of your car struck the concrete central median barrier before being redirected rearwards onto the road in a 180-degree arc, crossing the paths of road users for a second time. The vehicle then straightened up and moved towards the southern road shoulder, into the path of a westbound taxi, driven by Mr Benham, carrying two passengers. The taxi impacted with the Volkswagen, forcing it into a 360-degree rotation, before it struck the concrete barrier on the southern road shoulder and then coming to rest.
[7] As a result of the secondary collision, Kiriana, who was not wearing a seat belt, was flung out through the left rear passenger's window and was killed instantly. Zac Turner, who was in the front passenger seat, also not wearing a seat belt, received hospital treatment for concussion and a laceration to his head. Both Daniel and Mr Benham received minor cuts and bruising, and you also received some minor injury.
The impact on the victims
[8] You have heard Kiriana's mother, Libby, and her father, Richard, read out their moving victim impact statements. Libby describes her daughter as "beautiful and talented – loyal, kind, generous, fun and courageous". Kiriana "had a smile for everyone". Kiriana had finished school and was ready to embark on a gap year before entering film school. She had just accepted a full-time job which she was due to begin the day after she died and, a short time before, she had passed the test for her learner's drivers licence. Kiriana was right at the start of her life as a young woman. Libby and Richard speak eloquently of their family's loss and how they are still struggling to come to terms with no longer having Kiriana in their lives and the lives of other family members and friends.
[9] Libby has been particularly affected. She finds it difficult to watch Kiriana's school friends moving on through their journeys into adulthood, and the knowledge that she will not fulfil her plans for study, a career, travel, marriage, and children is painful to her.
[10] Libby and Richard want you to accept responsibility for the loss of Kirana's life and for their loss. But it is to their great credit that they speak in sorrow and not in anger, despite their continuing grief, with all of the ill effects on their health and wellbeing that that brings. I thank them for the restrained and dignified manner in which they have explained their grief. They both expressed empathy for your family
– your mother, father and brother - for they are, in a real sense, also victims in this case.
Purposes and principles of sentencing
[11] No sentence imposed by the Court can be any measure of the worth of the life of Kiriana Morrison, nor of the impact that your offending has had on her family. But Libby and Richard are right: there is a need to hold you accountable for the harm done to all of the victims - Kiriana and her family, Daniel, Zac, Mr Benham - and to promote in you a sense of responsibility for that harm.3 In 2011, Parliament doubled the maximum sentence for the offence of dangerous driving causing death to 10 years' imprisonment. That reflects public concern about the high numbers of New Zealanders killed on our roads each year, and it speaks to the public interest in discouraging dangerous and grossly irresponsible driving.4
[12] Bearing in mind the need for consistency in sentencing, it is necessary for the Court to take into account the seriousness of the type of offence5 and to assess the gravity of your offending, including your level of culpability or blameworthiness.6 But Parliament has also said that the sentence imposed should assist in your rehabilitation and reintegration into the community.7 Importantly - and in this case particularly - the Court is also required to impose the least restrictive outcome that is appropriate in the circumstances.8
3 Sentencing Act 2002, s 7(1)(b).
4 Gacitua v R [2013] NZCA 234 at [44]; Sentencing Act 2002, ss 7(1)(e) and 7(1)(f).
5 Section 8(b).
6 Section, 8(a).
7 Section 7(1)(h).
8 Section 8(g).
Approach to assessment of appropriate sentence
[13] In determining what is the appropriate sentence to impose on you in this case, I must take a starting point which reflects the seriousness of your offending and then consider what effect personal factors should have in either increasing or decreasing the sentence. You are to be sentenced on two charges, the most serious of which - the charge of driving dangerously and causing death - I take as the lead offence.
[14] I have received and considered helpful submissions from counsel for the Crown and from Mr Rogers on your behalf, and I have had careful regard to what they have said and to the other cases they have referred to.9 Reflecting their different perspectives, both of them legitimate, they are some way apart on the starting point and on what sentence should be imposed. The Crown's position, simply put, is that your offending calls for a term of imprisonment; Mr Rogers urges me to sentence you to home detention.
[15] There is no disagreement between counsel, of course, that you are here because you drove dangerously in the manner I have described, and that Kiriana died and others were injured as a result. That is inherent in the charges. Taking counsel's submissions and the authorities into account, I consider there are four factors of particular relevance to this case in setting a starting point on the lead offence:
(a)First, at the time of the offence you held a class 1 restricted driver's licence. You should not have been driving unsupervised with passengers after the 10.00 pm curfew. There are very good reasons for those restrictions and what happened in this case is a classic example of why those conditions are imposed and should be – and must be – strictly adhered to.
(b)Second, you were under the influence of alcohol at the time of the offending. An evidential breath screening test returned a result of 587 micrograms of alcohol per litre of breath. That was well over the
9 R v Cooksely [2003] 3 All ER 40 (Crim Appeal); Gacitua v R [2013] NZCA 234; Richards v R
[2017] NZCA 232; R v Millar [2018] NZHC 625 and R v Cossey [2018] NZHC 887.
limit for adult offenders, which is 400 micrograms per litre of breath. But, of course, because you were under 20, the legal breath alcohol limit is zero.
(c)Third, shortly before you lost control of the vehicle you drove at a highly excessive speed, averaging 124.8 to 142.8 kilometres per hour, in an area where the speed limit was 80 kilometres per hour.
(d)Fourth, you were guilty of an extremely dangerous manoeuvre, twice, in applying the handbrake while travelling at high speed.
[16] I have had regard to the facts and circumstances in the other cases counsel have referred to; but, as the Courts have said many times, these cases are fact specific.10 The facts of each case are unique and the outcome turns very much on the particular facts of the particular case. Taking account of the factors I have referred to particularly, and comparing them with the circumstances of the other cases to which I have been referred by counsel, I have determined that a starting point of five-and-a-half years' imprisonment is appropriate to reflect the seriousness of your offending.
[17] That is the sentence that would be imposed on a fully functioning adult if there were no personal factors which justified any discount from what otherwise would be an appropriate sentence. That alone underlines the seriousness of what happened here. But in your case, there are a number of personal factors which require the Court to impose a sentence which is substantially less than that which would otherwise be imposed.
Personal circumstances
Good character
[18] You were born and raised in Auckland and last year you successfully completed the first year of your study towards a Bachelor of Engineering degree at the University of Auckland. In understanding who you are and how you might have come
10 Gacitua v R [2013] NZCA 234 at [29].
to find yourself in this position, I have been greatly assisted by lengthy, heartfelt letters from your parents and from many people who know you and your family, many of them over a long period. Your parents speak of you with great love and affection and it seems to me they have been extremely supportive of you throughout your life. Although naturally very distressed about your present predicament and about the consequences of your actions for Kiriana and her family, they have remained fully supportive of you and they are anxious to do what they can to help you deal with the consequences for you of this offending.
[19] The same may be said for all of those who have provided character references for you. You are universally liked and respected and, although all of the people who took time to provide references are aware of what has brought you to Court, they too remain supportive. You are described as thoughtful and kind; a young man of good character adhering to Christian values. You have never been in any trouble with the law.
Mental health issues
[20] For the purposes of this case, however, the most remarkable feature of your personality is that you have been diagnosed with Attention Deficit Disorder (ADHD), Autistic Spectrum Disorder (ASD) and Asperger's Syndrome. You have also been diagnosed as having an obsessive-compulsive disorder. In case anyone might think that these conditions are put forward only now to excuse what you did at the beginning of last year, I say at once that these are long-standing conditions, having a genetic origin.
[21] I have carefully considered the contents of the affidavits of three psychiatrists: Dr Peter Fenwick, an eminent neuropsychiatrist, Dr Rui Mendel, who treats you, and Dr Carl Jansen. Dr Mendel describes you as having had a difficult birth with hypoxia (that is, that your brain was deprived of oxygen at the time of birth) and that led likely to permanent brain damage which resulted and was displayed in delayed milestones in your growth and social development. Dr Mendel says your emotional ability to understand your surrounding environment has been, and is, limited. That has resulted consistently in you placing yourself in awkward situations, often exposing yourself to
bullying with sometimes serious consequences, including suffering assaults, concussions and traumatic brain injuries. The fact that you were brought up in a nuclear and stable family, in a very warm, nurturing, and supportive environment, has shielded you to some extent from the ongoing traumas you have suffered, and it is your high intellectual ability and the intensive support you have received from your parents that has helped you succeed academically through a lot of hard work.
[22] Dr Jansen says that the long-established, high-functioning ASD and ADHD conditions are linked with impulsive behaviour, poor judgment, and impairment in linking actions with consequences. As Dr Jansen says, you are not responsible for having these two neurodevelopmental conditions, and your family and you have engaged in the treatment and management of these conditions for many years. It may be significant that you had been experiencing difficulties with some of the medicines prescribed for you and that you were untreated at the time of your offending. Also significant in the view of the medical specialists, is that although you had been managing your conditions reasonably well, you experienced a significant emotional trauma with the breakup of your relationship with your first girlfriend on Boxing Day in 2016, less than two months before these events.
[23] Dr Jansen says the ASD placed you at an elevated risk of extreme reactions to this relationship failure and that your life then became more chaotic. You had not previously been a drinker, but you were encouraged by friends to believe that drinking alcohol would help you get over the breakup of your relationship. Because of your particular condition, however, you were not able to limit your drinking and you began to drink to excess. In Dr Jansen's view, the ADHD rendered you less able to manage your impulses and made you more prone to influence by your peers. This was aggravated by sleep deprivation; a factor about which Dr Fenwick speaks at some length as being a part of the conditions from which you suffered. He speaks of chronic depression and anxiety also.
[24] On the night of the offending, you were nominated sober driver for your group and it was only in the early hours of the morning that you were persuaded to drink, which you did by consuming an excessive amount of cider. The personality flaws mentioned by the psychiatrists, the sleep deprivation and the impulsive drinking of
alcohol, in the words of Dr Jansen, "interacted to greatly increase the likelihood of the impulsive behaviours resulting in the tragedy."
[25] As I have said, the disorders from which you suffer have not occurred only recently. They are said by the medical experts to have a major genetic component and the extended family history supports that diagnosis. I disagree, therefore, with the submission by Mr Harborow on the part of the Crown, that these were only background factors and that they were not operative at the time of the crucial events. Mr Harborow has referred to Dr Fenwick's reference to your impressing your friends. That was not mere bravado: that is who you are and that is the way you behaved in these circumstances because of your medical conditions.
[26]Dr Fenwick's conclusions are expressed in this statement:
In summary, ADHD, together with lack of sleep, leads, amongst other things, to an increase in impulsiveness, emotional instability and mood disorders, all of which were shown by the defendant in the days before the crash, and on the day of the crash. These would have been exacerbated by his ASD as he would have poor recognition of his internal states and poor regulation of his emotions. All these factors together would suggest that Sam had a diminished responsibility for his actions that evening.
Youth factors
[27] Impulsiveness, risk taking and an inability to predict the consequences of foolhardy actions are characteristic of young offenders. Your behaviour in driving as recklessly as you did is a tragic hallmark of youth. The courts recognise that this phenomenon requires that the culpability of young offenders should not be determined by reference to adult benchmarks. The Court of Appeal has said that the fact that an offender is a young person can sometimes be given radical effect on sentence, unconstrained by any normative percentage, even where offending is serious.11
[28] There are two other reasons why the courts make allowances for the youth of an offender in sentencing: first, that imprisonment is likely to have a more detrimental effect on a young person than on a mature adult; and, second, that young people have
11 Pouwhare v R [2010] NZCA 268 at [96].
a greater capacity for rehabilitation.12 The medical experts who have assisted the Court in this case have spoken of the devastating effect imprisonment would have on you, even if the sentence was relatively short. That is due in no small measure from the fact that you would be deprived of the support of your family which has helped you get through life in the past.
Discount for mental health and youth factors
[29] I consider that it is necessary in this case to apply significant discounts from the starting point of five-and-a-half years' imprisonment to reflect the operative effect of your psychological conditions on your behaviour on this fateful morning and, therefore, on your offending, and also to reflect that the impulsive and reckless nature of the offending can be attributed, at least in part, to youth and immaturity.
[30] To a significant degree, it is the combination of your youth and your personality disorders which led to the impulsiveness and reckless behaviour which caused Kiriana's death. I should say that I have not included in my consideration any mitigating effect of the consumption of alcohol. That was a factor and you must take responsibility for that. But considering the other factors in combination, I consider a 40 per cent discount from the starting point to be appropriate to reflect those factors: your mental health condition and your youth. That would produce a reduced sentence of three years and four months' imprisonment.
Guilty plea discount
[31] You are also entitled to a discount to the sentence otherwise imposed because you pleaded guilty pleas to the charges. It was Richard Morrison, I think, who said that Kiriana’s family had had to endure a lengthy period during which there was uncertainty about the outcome of the charges against you. That is explained, as I read the papers, because you did not have a reliable recollection of what had occurred, you were faced with a charge of manslaughter and you took the position on the basis of experienced legal advice to instruct both a forensic traffic expert and a consultant psychiatrist. That was your right and it was entirely proper. After receiving that
12 Churchward v R [20122] NZCA 531, (2011) 25 CRNZ 446 at [77].
advice, on 22 March 2018, the summary of facts was accepted as accurate and, on 28 March 2018, you entered guilty pleas to amended charges. I consider in those circumstances that credit should be given for the full 25 per cent available for your guilty pleas. Applying that to the revised term of three years and four months’ imprisonment, produces a sentence of two years and six months' imprisonment.
Lack of prior convictions, remorse and rehabilitation prospects
[32] At the time of the offending, you had no previous convictions. You have not driven since the offending, except to engage in a defensive driving course. In her letter, your mother describes your hope to be able to contribute in ways that will benefit New Zealand society, and it is through your engineering study that you hope to do this. Your attitude is a significant step towards rehabilitation.
[33] You expressed deep remorse for the victims and their families from a very early stage. The Probation Officer described your remorse as wholly genuine and said that you took full responsibility for your actions. On the day following the accident, you made a telephone call to Kiriana's mother: how difficult must that have been for you both? You sent flowers and a card to Kiriana's school; and you offered to pay for the funeral and memorial costs. Importantly, you made efforts at restorative justice. You respected the wishes of Kiriana's family when that was declined. I acknowledge the difficulty that they would have had in those times, because no payment or effort can compensate or make up for the fact they have lost their much-loved daughter. You borrowed money from your parents, which I accept was a genuine loan that you have every intention of repaying when you can, to replace the taxi which was destroyed and deprived Mr Benham of his livelihood. That was a significant act of reparation.
[34] You have been greatly distressed by the burden of responsibility you have accepted and Mr Rogers has described in his submissions the suicidal episodes which have occurred over the past year or so. The psychiatrists see those as genuine. Importantly, I accept that you will carry that burden for the rest of your life.
[35] Viewed overall, these factors apply strongly in your favour. I consider that a global discount of six months' imprisonment is appropriate for your lack of previous
convictions; your prospects of rehabilitation; your deep remorse and the genuine acceptance of responsibility. That brings the appropriate sentence down to one of two years' imprisonment.
Home detention and community detention
[36] As your sentence is a short-term sentence of 24 months, you are eligible for home detention.13 A sentence of home detention is in itself serious punishment, with a significant element of deterrence. The restrictions that home detention would impose on your movement are particularly difficult for a young man.
[37] When considering whether to impose a sentence of home detention instead of imprisonment, the Court must have regard to the desirability of keeping offenders in the community as far as that is practicable and consonant with the safety of the community.14 You are assessed as presenting a low risk of reoffending, but there is a high risk of harm if you got yourself into a situation like the one that occurred in February last year. You should not be permitted to drive a motor vehicle for several years.
[38] In the circumstances of this case, I am satisfied that a sentence of home detention, combined with a long period of disqualification from driving and a substantial period of community work, would meet the sentencing purposes and principles which apply to this case.
[39] If imprisonment had been imposed for a period of two years, you would have automatically been released on parole after 12 months. Home detention does not provide the same early release so that affects the assessment of the appropriate period to be imposed. In this case, I intend nevertheless to impose the maximum.
Sentence
[40]Would you stand, please, Mr Griffiths.
13 Sentencing Act 2002, s 15A(1)(b).
14 Sentencing Act 2002, s 16(1).
[41] On the charge of driving dangerously causing death, I impose a sentence of 12 months' home detention; on the charge of driving dangerously causing injury, I impose a sentence of six months' home detention. Those sentences are to be served concurrently.
[42]The conditions of the home detention sentence are:
(a)It is to be served at your home at 36 Hardington Street, Onehunga.
(b)You are to travel directly to that address from the Court once you are released and you are to wait for the electronic monitoring connection to be completed.
(c)You are not to leave that address at any time during the home detention period without the written approval of a Probation Officer.
(d)You are to attend and complete an alcohol and drug programme to the satisfaction of a Probation Officer.
(e)You are not to consume any alcohol nor any drugs not prescribed to you during that period.
(f)You are to undergo such psychiatric or psychological treatment as may be directed by the Probation Officer.
[43] You are also sentenced to 400 hours of community work and you are disqualified from driving for a period of six years.
[44]You may stand down.
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Toogood J
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