R v Guest
[2013] NZHC 2432
•17 September 2013
IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
CRI-2012-011-000583 [2013] NZHC 2432
THE QUEEN
v
SAMUEL JACK GUEST
Charges:
Plea:
Manslaughter x1
Being in charge of a motor vehicle causing injury x5
Guilty
Appearances:
M B Smith for Crown
J W Watson for PrisonerSentenced:
17 September 2013
SENTENCING NOTES OF VENNING J
Solicitors: Crown Solicitor, Whangarei
Neilsons Lawyers, Auckland
Copy to: J W Watson, Whangarei
R v GUEST [2013] NZHC 2432 [17 September 2013]
[1] Samuel Jack Guest, you are for sentence in this Court having pleaded guilty to manslaughter and five counts of being in charge of a motor vehicle causing injury. Manslaughter carries a maximum penalty of life imprisonment.
[2] Because you have pleaded guilty to manslaughter I confirm and enter a conviction for manslaughter. As a consequence I am required to give you a warning in terms of the three strikes legislation which I now do. Given the conviction for manslaughter you are now subject to the three strikes law. I am giving you a warning of the consequences of another serious violence conviction. You will also be given a written notice outlining those consequences which list serious violent offences. If you are convicted of any serious violence offences other than murder, committed after this warning, and if a Judge imposes a sentence of imprisonment, you will serve that sentence without parole or early release. If you are convicted of murder committed after this warning, then you must be sentenced to life imprisonment. That will be served without parole unless it would be manifestly unjust. In that event the Judge must sentence you to a minimum term of imprisonment.
[3] At the outset I would like to acknowledge those affected by the offending who are here today. I should say that the sentence this Court has to impose on Mr Guest is by no means an attempt at a measure of the value of the life his actions have taken or the consequences of his offending on that night. The sentence is society’s response to the offending through the judicial system.
[4] I deal with the circumstances. At about 10 o’clock on 10 November last year you drove to a tavern south of Dargaville where there were birthday celebrations. While you were there you were drinking beer. At about 1 o’clock in the morning of the next day you got into your car. Four of your friends, Matthew Rawiri-Woollam, Justin Friedrich, George Whippy and Michael Thurston also got into your car. When you were leaving two others approached and asked if they could get a ride with you into Dargaville. They were Anthony Matich and Shane Rapana.
[5] You drove off with all six passengers in your car. Your car was a hatchback. It had seating for five people, including you, the driver. Two of the passengers were
were still trying to shut the rear hatch as you drove off. You accelerated your car towards Dargaville getting up to well over 100 kilometres an hour. At times you drove at speeds up to 180 kilometres an hour. You negotiated several bends at speed.
[6] Several of the passengers yelled at you to slow down but you did not. You passed at least two cars while driving at this excessive speed. Despite being told again to slow down you continued driving at speeds of between 150 and 180 kilometres per hour. One passenger says he saw the speedometer needle go past the
180 kilometre per hour mark at one point. Another passenger again told you to slow down, at least in his recollection, five times. You travelled for approximately 1.6 kilometres along a straight section of road and then round a moderate right hand corner. You then approached an ‘S’ bend corner, commonly known as ‘Cochrane’s corner’, which is approximately 1.5 kilometres from Dargaville, still driving at an excessive speed. There are large reflective signs warning drivers of the corner.
[7] The passengers in the car were yelling at you to slow down. You did not apply brakes but took your foot off the accelerator. Despite that the car was travelling at no less than 129 kilometres per hour when you lost control of it at Cochrane’s corner and crashed. During the crash sequence the car struck a large tree, entered a drain, hit a concrete culvert pipe and ended up on its roof. Passengers Matich, Rapana, Friedrich and Whippy were thrown from the car as were you. Passengers Rawiri-Woollam and Thurston remained in the car. They were wearing seatbelts.
[8] The police and ambulance attended within a short time. Mr Matich was pronounced dead approximately 20 minutes after the ambulance officers arrived at the scene. Mr Rawiri-Woollam was trapped in the car and had to be cut out by the Fire Service. One of the attending fire officers was his stepfather. He was so badly injured he did not recognise him. Mr Rawiri-Woollam received a traumatic brain injury and serious injury to one eye socket. He was airlifted to Whangarei Base Hospital and remained in a comatose state for several days. Mr Whippy received a traumatic brain injury and an abdominal injury and laceration to his arm. He was flown to Auckland Hospital for surgery. He remained in a comatose state for several
days. Mr Friedrich received a broken fibula in his left leg, sprained right ankle and several bruises. Mr Rapana received a broken right femur, multiple vertebrae fractures, large cut under his left upper arm and a laceration to his forehead. Mr Thurston received a minor knee strain, abrasions to his pelvis and right ear and bruising to his right arm. You were also injured but were able to be assisted to the back of a police car and then transferred to an ambulance. A blood sample taken from you disclosed an alcohol reading of 192 milligrams per 100 millilitres of blood.
[9] Mr Guest, at the time of the offending you were 22 years old. You are now
23. You are single and have no dependants. At the time of your offending you were employed by your father on the family farm. You have no previous convictions of any kind.
[10] The letters and references in your support confirm your attributes and talents. It is apparent from the pre-sentence report that your offending has had a significant impact on you. You are fortunate in that you have a strong supportive family. I accept you are extremely remorseful for your actions. To your credit you have not attempted to minimise your behaviour or to shift blame. You are of course particularly affected by the fact that the victims of your offending were friends and people that you have known for a long period of time. You are very well aware of the effect your offending has had on them and their families. It is a tragedy for everyone concerned that you are here before the Court for sentence in these circumstances.
[11] I note you have sought professional help for the guilt which you suffer from and the loss that you have caused.
[12] However in sentencing you Mr Guest I am required to take into account the purposes and principles of the Sentencing Act 2002. In this case the particularly
relevant purposes are:
To hold you accountable for the harm done to the victims and community by driving in such a way when drunk. Frankly I think you probably are now aware and understand the accountability.
acknowledge the harm that you have caused. Again, I consider that you now understand and accept responsibility.
It is also to provide for the interests of the victims of the offending. In that regard the victims’ impact statements are, as Mr Watson and Mr Smith observed, remarkably measured and forgiving in large part. While speaking of the terrible loss they have suffered, particularly the parents of the deceased, they are remarkably restrained. While deploring your actions they
express concern for you.
The sentence must also denounce and deter conduct such as this, drink driving and reckless drink driving. Regrettably this Court is regularly required to sentence young men such as you for the consequences of offending in this way. The message just does not seem to get through. In a recent Court of Appeal decision of Gacitua v R, a case of reckless driving causing death, the Court of Appeal observed that Parliament has moved decisively to respond to public concerns over the road toll.1 The Court of Appeal said that while it is regrettable that young men of unblemished character and obvious potential should face lengthy prison terms, the public interest in discouraging dangerous and grossly irresponsible driving must
prevail.
The sentence I impose should also take into account the need for your
rehabilitation and reintegration into society at the end of the sentence.
[13] In terms of the principles of sentencing I take into account the gravity of your offending, your culpability, which appears from the description of the offending I have reviewed above, and the seriousness of the offence in comparison with other types of sentences and consistency within sentencing levels, in other words, having regard to other cases dealing with similar situations. I also take into account the
views of the victims.
1 Gacitua v R [2013] NZCA 234 at [44].
[14] Counsel have referred to a number of authorities and cases where the Court has dealt with offending of this nature.2
[15] The Crown submits a starting point for your sentence, based on those authorities, must be between nine and 10 years. Mr Watson has argued for a sentence of between seven years and eight and a half years as a starting point.
[16] Mr Guest the particularly aggravating factors of your offending were:
the very high alcohol reading;
the fact you were travelling at a greatly excessive speed;
you disregarded the warnings of your passengers and their requests to slow down on several occasions; and
this was a prolonged, persistent and deliberate course of very bad and
dangerous driving which led to the inevitable result of a crash.
[17] I take as the lead offence for sentencing the charge of manslaughter. Having regard to the authorities I have considered and bearing in mind the totality of the offending in this case, which apart from the manslaughter, involves five other charges of causing injuries, I take as a starting point for your sentence eight years, nine months’ imprisonment.
[18] I then take into account the views of the victims. I also take into account your youth. The Court recognises young people do things that perhaps more mature people may not. Also to your credit is, as I have said, your very real remorse, which is also recognised by the tangible and practical steps you and your family have taken
to assist with some reparation towards the victims of your offending. I also note you
2 R v Brown [2009] NZCA 288; R v Ten Bohmer [2000] 3 NZLR 605; R v Fellowfield [1996] 3
NZLR 657; Gacitua v R, above n 1; R v Cooksley [2003] 3 All ER 40, R v Skerrett CA236/86,
9 December 1986; R v Boswell (1984) 79 Crim App R 277; R v Reihana [2013] NZHC 1273; R v Hessell [2010] NZSC 135; R v Grey (1992) 8 CRNZ 523; R v Whiu [2007] NZCA 591; R v Soti HC Hamilton T 033266, 4 November 2003; R v Surynt HC Christchurch CRI-2011-009-
8160, 1 December 2011; and R v Wagener HC Invercargill CRI-2010-025-191, 8 June 2010.
have no previous convictions and come with high recommendation from the references. For all those positive factors I reduce the sentence by a total of two years.
[19] I then reduce the sentence further to take account of your guilty pleas. While on one view of it the guilty plea was not entered at the earliest possible stage, I take into account Mr Watson’s submissions in that regard and accept in this case a reduction approaching 25 per cent is appropriate. That leads to an end sentence of five years’ imprisonment.
[20] Mr Guest please stand. On the charge of manslaughter you are sentenced to imprisonment for five years. On each of the counts of driving, being a person in charge of a motor vehicle causing injury, you are sentenced to three years’ imprisonment. The terms are concurrent. The effective sentence is five years’ imprisonment.
[21] You are disqualified from holding or obtaining a driver’s licence for a period
of four years.
[22] In your particular circumstances I do not consider a minimum term of imprisonment is required.
[23] Mr Guest you are a young man, still with good prospects for the future. As I have said you are very fortunate you have the strong support of your family. You must serve the punishment for your offending. More than that though you will have to live with the consequences of your offending. The best way for you to atone for the terrible consequences of your actions on the night is to lead a positive and good
life on your release and I hope that you are able to do so. Stand down.
Venning J
13
5
0