R v Harrison

[2008] NZCA 514

IN THE COURT OF APPEAL OF NEW ZEALAND

CA511/2008
[2008] NZCA 514

THE QUEEN

v

RYAN CHRISTOPHER HARRISON

Hearing:18 November 2008

Court:Arnold, Venning and Miller JJ

Counsel:D L Bates for Appellant

K Bicknell for Crown

Judgment:1 December 2008 at 2.30 pm 

JUDGMENT OF THE COURT

The appeal is dismissed.

REASONS OF THE COURT

(Given by Arnold J)

[1]        Following a jury trial the appellant was convicted on two counts of dangerous driving causing death and two counts of dangerous driving causing injury.  Judge Rollo sentenced him to imprisonment for two years six months on the former charges and for one year nine months on the latter, the sentences to be served concurrently: DC TAU CRI-2007-070-1270 25 July 2008.  The appellant now appeals against those sentences.

Factual background

[2]        On 8 October 2006 the appellant was driving a fully laden truck and two trailer combination (known as a B-train) on State Highway 29.  The vehicle had an estimated gross weight of over 46,000 kilograms.  The open road speed limit for it was 90 kph. 

[3]        While attempting to negotiate a moderate left-hand bend at the bottom of a steep hill, the appellant lost control of the vehicle.  The second trailer drifted into the wrong lane and ultimately the entire B-train tipped on its side and slid along the road, occupying the full width of the road.  While the drivers of some of the oncoming vehicles were able to take evasive action to avoid the B-train without injuring themselves or their passengers, others were not.  The result was that two people in oncoming vehicles were killed at the scene and two others suffered serious injuries.

[4]        The Crown theory was that the accident had resulted from two factors – excessive speed and the appellant’s faulty driving of the B-train, in particular turning it too sharply as he rounded the bend.  As to speed, the Crown relied in particular on the following:

(a)The B-train was fitted with a global positioning system (GPS) unit, which read the truck’s position at five minute or two kilometre intervals and sent the relevant information to a remote computer.  The Crown said that the GPS readings showed that the truck had been travelling at 122 kph immediately before the accident. 

(b)Various eyewitnesses gave evidence to the effect that the truck was exceeding the speed limit, in particular two experienced truck drivers who were driving in the opposite direction to the B-train shortly before the accident.  However, the estimates of speed made by the various eyewitnesses varied significantly. 

(c)Expert evidence from crash analysis experts, to the effect that the B‑train must have been travelling at excessive speed immediately prior to the accident. 

(d)Data from the truck’s computer-based engine management system, which the Crown said indicated excessive speed.

[5]        For his part, the appellant said he was unable to remember what happened immediately prior to the accident.  But he denied that he had been travelling at excessive speed.  He said that any error that he made while driving the B-train was the type of error that any motorist might make and did not amount to dangerous driving.  In his defence the appellant called expert witnesses to challenge the Crown’s GPS and crash analysis evidence.

Sentencing

[6]        To understand the issues in the appeal it is necessary to set out Judge Rollo’s sentencing remarks in some detail. 

[7]        At the outset of his sentencing remarks the Judge noted that the B-train was fitted with various safety devices which were intended to limit its speed.  The Judge said:

[2]       …  The truck was also fitted with a number of safety and management measures, one of which was a governor which prevented fuel being supplied to the engine once the speed reached 90 kilometres per hour, which is the maximum open road permissible speed in New Zealand for such a heavy truck.  The truck was also fitted with what is called a Jacob’s brake or an engine brake, which operates to slow the descent of the vehicle on a hill.

[3]       The truck itself was configured such that you merely disengaged the clutch on a hill, having selected the Jacob’s brake degree of engagement, and the brake automatically applied to slow the truck.  Evidence was given at trial that the safe driving practice for such a vehicle coming down the Tauriko Hill would be to have the maximum Jacob’s brake applied and to have it engaged effectively throughout the descent of that hill approaching the corner near the Redwood Lane intersection.  If the truck increased speed, that expert driving evidence was, that one would further slow it using the foot brake.

[8]        Having commented on the GPS evidence and the expert evidence from the crash analysts Judge Rollo said:

[12]     There was some dispute at trial as to exactly what those speeds were, but in submissions today, [Crown counsel], asked that I accept that the minimum speed of the vehicle was 111 kilometres per hour as it took the corner.  Although he invites me to find a higher speed, given that the expert evidence was that at that speed, which is a very conservative assessment and does not take into account an allowance for the camber of the road, the vehicle should not have tipped over.  It obviously did, which would point to either the driving fault or a higher speed that that.

[13]     The defence expert called … put the relevant speed at less than that on the basis of his appraisal of where the relevant calculations of the corner should be taken and the speed that those calculations would identify.

[14]     The jury, of course, was invited by the Crown, in its case, to come to its own assessment and [Crown counsel] … was particular in his final address to the jury to say that the Crown did not specify any particular speed other than to say that the speed you were travelling at was far too fast for the corner and additionally, there was a driving fault.  The verdict of the jury in respect of the four counts before it clearly is to that effect.

[9]        The Judge summarised the evidence of the two truck drivers as to the speed of the B-train before saying:

[16]     I have had the benefit of hearing and seeing the witnesses give all of that evidence.  The jury’s determination, in its verdicts, is whether or not the counts in the indictment have been proved, but at sentence it is my assessment of the facts which I find reasonably to have been found by the jury which is the critical assessment.

[17]     In addition to the evidence of the two truck drivers ascending Tauriko Hill was the evidence of other motorists who were most fortunate to avoid being killed in the ensuing collision.  They put the speed of the truck, as it approached them, at a lesser speed.  I acknowledge that.  My own view is that the speed estimate range of the two experienced truck drivers ascending Tauriko Hill is a far more reliable one in all of the circumstances.  They were not confronted with a sudden emergency that threatened to kill them.  They noticed the truck speeding by only briefly and commented on the speed as, indeed, did other motorists, but I consider with their experience of life, their experience as truck drivers, their experience of that road and of what they saw and heard, particularly the racing engine noise, is such that their assessment of the probable speed is much closer to reality than that proposed by other motorists who observed your truck coming around the corner.  They were clearly mistaken when they estimated the speed at in excess of 130 or 140 kilometres per hour, but what they clearly meant by that estimate is that you were travelling at an extremely fast speed and in that circumstance, I tend to the view that the GPS assessment that the maximum speed was 122 kilometres per hour is, in all probability, an accurate assessment of the speed you reached as your maximum on that descent.

…

[19]     The simple point remains … that you were travelling far, far too fast for that corner.  The effects have been tragic, regrettably for probably everybody in this Courtroom, yourself included to some degree.  As the truck came around the corner the rear trailer began to tip over.  It impacted on the first trailer and then on the tractor unit, tipping the B-train onto its side, it then slid out of control along the State Highway towards and past the intersection of Redwood Lane.

[10]     Later the Judge said:

[35]     The evidence, in addition to that which related to speed, was that as you approached the corner at the bottom on the Tauriko Hill, you were too far into the corner.  Rather than turning to follow the arc of the road, you continued further on, possibly one or two metres, towards the centre line and as a result you were required to correct by turning in an excessive manner to the left to keep the truck on your side of the road.  The combination of speed and that driving fault, the Crown says, constitutes the offence that you have been charged with in the four counts and of which the Jury found you guilty.

[36]     What the Crown submits is the most significant and overriding aggravating feature is that the dangerous act of speeding was wilful.  I refer to how you overrode the safety mechanisms of the truck, including disengaging the Jacob’s brake to allow the only way the truck could gain the speeds, which I have referred to as indicative, by free wheeling the truck.  [Crown counsel] has also referred me to the law, quite correctly, that dangerous driving can be a momentary action to which fault should be attributed or it can be an ongoing dangerous action over a period of time.  Here the Crown says this was something more than momentary in that this speeding could only have occurred as a result of a deliberate and ongoing decision by you to allow the truck to exceed both its governed speed and the legal speed limit on Tauriko Hill.

[11]     The Judge then recorded that the appellant’s trial counsel had submitted that a sentence of home detention was appropriate and went on to say:

[51]     [Defence counsel] has then focussed on the seminal case of [R v Skerrett CA236/86 9 December 1986], where the Court of Appeal set out perhaps nine factors that are aggravating circumstances in such cases of dangerous driving causing death or injury.  He submits that the only relevant factor in your case is that death ensued as a result of your driving.  I take a different view to some extent on my assessment of the facts, for the reasons that I have referred to.  I consider that you were travelling at a grossly excessive speed in the circumstances.

[52]     Secondly, whilst I accept that this is not one of those cases which comes before the Court from time to time where there is a persistent and deliberate course of very bad driving, sometimes over many, many kilometres, your actions in overriding the safety and braking mechanisms of the vehicle on the Tauriko Hill in the way in which I have described, I consider to put your driving far beyond the circumstance of a momentary error attracting fault into one of being a persistent and deliberate course of very bad driving.

[53]     I do accept however that you are entitled to credit for previous good character and for an absence of previous convictions.  I also accept that you have had a good driving record.  You may well have one infringement that was incurred sometime prior to these events on 8 October 2006.  Otherwise, you have had a blameless driving record.  That of course, is a factor, which at law, I am required to take into account in assessing the penalty that is imposed.

[12]     The Judge concluded:

[59]     I consider that the level of culpability that attaches to you for your driving in this instance is in the higher range.  This was a relatively short period of driving in terms of time and the distance involved, but it must be seen within its topographical context, the size and dimensions of the vehicle you were driving, the expected number of other vehicles that would be on that piece of roadway and the mad driving that you undertook in free-wheeling down that Tauriko Hill in the way I have described.  Such an unnecessary exhibition of speed in that vehicle has had such tragic consequences, so that when I take all of those factors into account, I accept that the appropriate starting point in this case, by comparison to the other authorities put before me, is one of three years imprisonment, as the Crown has submitted.

[60]     In that regard, for the reasons I have referred to, I am of the view that the way in which [defence counsel] has urged me, quite properly from a defence counsel’s point of view, to view the facts of the case is one that I am not attracted to.

[61]     From that starting point I consider that six months should be deducted for personal mitigating factors, your prior good character, what has been essentially an impeccable driving record, your genuine remorse, your absence of previous convictions and to some minor extent, the nature of the apology which you have tended to victims in open Court today, being such an apology made for the first time.

[62]     That would leave a sentence of two years, six months imprisonment.  I consider that that is the appropriate sentence on the particular facts of this case, having regard to the matters I have referred to, in addition to the emphasis I place on the views that victims have expressed of their losses and the number of victims who have been affected so tragically by what you have done.

[13]     The Judge said that a sentence of home detention would be inappropriate in the circumstances.

Basis for appeal

[14]     Mr Bates argued that the sentence imposed was manifestly excessive and ought not to have exceeded 2 years.     He advanced four submissions in support.  He submitted that the Judge had:

(a)Taken an unjustifed view of the speed of the vehicle immediately before the accident;

(b)Incorrectly assessed the significance of the appellant’s steering error;

(c)Wrongly concluded that the appellant had disengaged the Jacob’s brake; and

(d)Given insufficient weight to the appellant’s thwarted desire to participate in a restorative justice process.

[15]     The first three grounds are essentially different aspects of the same general point, namely that the Judge wrongly assessed the circumstances in which the accident occurred.  Mr Bates said that the Judge had erred in determining that 122 kph was in all probability the maximum speed that the B-train had reached while descending the hill immediately before the accident, and in determining that excessive speed was a contributing cause of the accident.  He said that the Judge was also wrong to treat the excessive speed as deliberate or wilful.  The evidence did not, he said, support the Judge’s view that the appellant had switched off the Jacob’s brake so that he could exceed the speed to which it would ordinarily limit the truck, i.e., 90 kph.  Rather, he said, it was a reasonable possibility that the primary cause of the accident was the abrupt steering manoeuvre that the appellant carried out at the bottom of the hill, which caused the truck to tip on its side.  This manoeuvre was the result of a momentary lapse in concentration, or was error of judgment, of the type that occurs daily on New Zealand roads.

Discussion

[16]     As this Court said in R v Heti (1992) 8 CRNZ 554, “[a] Judge who has heard the evidence in a jury trial is entitled, where the evidence supports it, to reach his own view of the facts relevant to sentencing provided such view is not inconsistent with the verdict” (at 555).  The Court also noted that a sentencing judge is not bound to adopt a view of the facts that is most favourable to the offender.

[17]     In the present case there was ample evidence to justify the conclusions that the B-train was travelling at excessive speed at the time of the accident and that excessive speed was a contributing cause of the accident.  The Crown’s case, based on the expert and other evidence, was that the minimum speed of the truck as it took the corner was 111 kph.  Excessive speed, coupled with the steering manoeuvre, caused the accident.  As the Judge said (at [14]), it seems clear that the jury accepted this.  Certainly the jury concluded that the appellant’s driving was “dangerous” rather than being a simple error of judgment.

[18]     The Judge’s conclusion about the maximum speed reached by the truck was expressed in tentative terms – “I tend to the view that the GPS assessment that the maximum speed was 122 kilometres per hour is, in all probability, an accurate assessment of the speed you reached as your maximum on that descent” (at [17]).  Much more important than the identification of that particular speed was the Judge’s assessment that the truck was travelling at excessive speed and that excessive speed was a causative factor.  In other words, what was important was the characterisation of the speed as excessive in the circumstances, not whether that speed was 111 kph or 122 kph or something else.  Clearly that characterisation was open to the Judge on the evidence, and was consistent with the jury’s verdict.

[19]     As we have said, Mr Bates submitted that it was a reasonable possibility that the primary cause of the accident was the appellant’s unexplained abrupt steering manoeuvre and that was simply a momentary incident of dangerous driving, not an ongoing and deliberate course of conduct.   The evidence, he said, did not justify the Judge’s view that the appellant had overridden the Jacob brake.  

[20]     The answer to these submissions is that, on the evidence before him, the Judge was entitled to draw the conclusions which he did.  Further, those conclusions were consistent with the jury’s verdict.  Accordingly, the submissions must fail.

[21]     Finally there is the restorative justice point.  Section 8(j) of the Sentencing Act 2002 provides that a sentencing judge must take into account any outcomes of restorative justice processes that have occurred (see also s 10).  Mr Bates argued that the appellant wanted to engage with the victims and their families at the earliest possible time but as a result of “firm” legal advice, he was prevented from doing so.  He submitted that the Judge should have taken that into account in sentencing the appellant.

[22]     Normally where that type of submission was made we would expect the appellant to file an affidavit to support his version of events and to waive privilege so that his counsel could respond.  In the present case, Mr Bates said that trial counsel had acknowledged to the Judge in his submissions on sentence that he had advised the appellant not to engage with the victims or their families until the case was resolved.

[23]     Accepting that for the purposes of argument, it is difficult to see that this point assists the appellant significantly.  Restorative justice processes are based on the premise that the offender accepts responsibility for his or her actions.  Here, although the appellant accepted that he was driving the truck and had made an error of judgment, he denied that he was guilty of dangerous driving. In those circumstances, he could have accepted responsibility for what happened to some extent. But that would have been a difficult course, and may well not have been particularly helpful from the perspective of the victims or their families, especially as there was no suggestion that the appellant or his family were in a position to make an offer of amends or reparation.  If a limited apology had been made, the Judge would have been obliged to consider the response of the victims’ families: s 10(2)(b) of the Sentencing Act.  So a restorative justice process was likely to have been of limited value while the appellant maintained his stance that he was not guilty of an offence.

[24] In any event, the Judge deducted six months from the starting point to reflect the appellant’s personal mitigating factors, including giving some credit for the apology that the appellant tendered to the victims and their families in Court during sentencing (see [61], quoted at [12] above). Any additional credit for an earlier apology would have been minor – certainly not sufficient to mean that the end sentence was manifestly excessive.

Decision

[25]     We conclude that the sentence was not manifestly excessive.  The appeal is dismissed.

Solicitors:

Crown Law Office, Wellington