R v Henare
[2024] NZHC 364
•28 February 2024
IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY
I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE
CRI-2022-031-776
[2024] NZHC 364
THE KING v
ADAM KAPO HENARE
Trial: 2–10 October 2023 Counsel:
G J C Carter and G M Stone for Crown P C Mitchell for Defendant
Sentencing:
28 February 2024
SENTENCING NOTES OF RADICH J
Introduction
[1] Kia ora koutou katoa. Mr Henare, you appear for sentence today, having been convicted by a jury of a charge of reckless driving causing death.1
The offending
[2] I begin, as one does in sentencing decisions like this, by describing the offending. It is something I need to do again to place the facts and circumstances into their proper context.
1 Land Transport Act 1998, ss 36AA(1)(a).
R v HENARE [2024] NZHC 364 [28 February 2024]
[3] In the early hours of 23 February 2022, you were at the Gladstone Reserve near Levin with a female friend, having driven there in a blue Subaru. While you were there, the victim, Raynor Cribb, arrived with two friends in a silver Honda. There was some interaction between you and your friend, on the one hand, and between Mr Cribb and his friends, on the other, before you and your friend left in the Subaru you were driving. Shortly after you left, Mr Cribb and his friends returned to the silver Honda to find, they believed, that it had been rummaged through and that Mr Cribb’s phone had been taken. They assumed it was you who took it. Whether or not their assumption was correct was not an essential issue at trial and is not something that was established in the evidence. Whatever the case, Mr Cribb and his friends then got into the Honda and, with one of Mr Cribb’s friends driving, chased after you, eventually catching up to you along a long straight on Tararua Road. During this chase both cars were driving at speeds well in excess of the speed limit and of up to 160 kmph.
[4] As the chase continued at these high speeds along Tararua Road, both cars came up to a near-ninety-degree right-hand turn where Tararua Road turns onto Cambridge Street in Levin. The car you were driving was on the left and the silver Honda was on the right. As both cars approached the corner, both drivers braked heavily and the Honda overshot the Subaru that you were driving. As this happened, and before your car came to a stop, Mr Cribb somehow came out of the front passenger seat of the Honda and into the path of the Subaru before coming to be underneath the Subaru.
[5] Immediately following the accident, the driver of the Honda, whose car had not come to a complete stop, drove away and then, realising that Mr Cribb was no longer in the car, returned to the location of the accident. There, he found you standing beside the passenger door of the Subaru, next to Mr Cribb, who could be seen under the car; he was trapped. You had made some effort to move the car off Mr Cribb, but you could not. The driver of the Honda got out and went over to you. You said to him something to the effect of, “your bro is under the car”. It was said in evidence that you or your friend told him not to call an ambulance, which he did not do, out of fear. The driver of the Honda attempted, unsuccessfully, to move Mr Cribb out from under
the car and to lift the car off Mr Cribb. His evidence was that he then drove away to fetch a car jack.
[6] As the jury found, a short while later, knowing that Mr Cribb was trapped underneath the Subaru, you got back into that car and you drove off, swerving as you went in an attempt to free Mr Cribb from the underside of the Subaru. An eye-witness, who saw events from a distance, described the car’s movement as if it was “bunny- hopping” along the road. After this attempt was unsuccessful, you stopped a second time, now 84 metres from the location of the accident. Your friend got out of the car and guided you as you manoeuvred the car forwards and backwards to get it off from Mr Cribb. A point made in your in defence included an explanation that this manoeuvre was undertaken in such a way so as to avoid running Mr Cribb over again with the left front wheel of the car. You then drove away without contacting emergency services. The jury found that the injuries caused to Mr Cribb while he was under your car during that 84 metre drive were a not insignificant cause of his death. I will return to this point later in these remarks.
[7] A little while later, the driver of the Honda came back to the location of the accident, where he found the Subaru to be gone, along with Mr Cribb. After searching, he discovered Mr Cribb 84 metres down the road. At this stage Mr Cribb was still alive and an ambulance was called. Mr Cribb was still alive when the ambulance arrived, but died at the scene shortly after.
Victim impact statement
[8] We have heard from Mr Cribb’s partner and from his mother on how deeply and how profoundly your conduct has affected them. They have described in their victim impact statements the devastation that is still suffered by them, by Mr Cribb’s daughter, by his brothers and his sister and by his whānau as a whole.
Purposes and principles of sentencing
[9] A conviction of reckless driving causing death carries with it a mandatory disqualification from driving for at least one year. It carries also a maximum penalty of 10 years’ imprisonment or a fine of $20,000.
[10] In sentencing you, the Court is to have regard to the purposes and principles of sentencing in the Sentencing Act 2002. The primary sentencing purposes in this case must be to denounce your conduct and to hold you accountable for the harm that you have caused. Equally, a relevant sentencing purpose from the Act is to protect the community from you, a matter to which I return a little later.
[11] The sentence should promote in you a sense of responsibility for the harm that you have caused. And, under the Act, the sentence should deter other persons from committing the same or similar offences.
[12] The relevant principles of sentencing that I am to take into account include the gravity of the offending and the seriousness of the offence. I am required to consider the prospect of your ultimate rehabilitation and I must take into account comparative cases where they are relevant. In this case, the least restrictive outcome – in terms of the relevant sentencing principles – is a term of imprisonment.
[13]To determine the appropriate sentence for you, I must take two steps:
(a)the first step is to calculate a starting point, incorporating adjustments for any aggravating and mitigating factors of your offending; and
(b)the second step is to incorporate all aggravating and mitigating factors that are personal to you.2
Starting point
[14] There is no guidance judgment from an appeal court for reckless driving causing death. Aggravating and mitigating factors for an offence of reckless driving causing death were discussed by the Court of Appeal in Gacitua v R.3 However, they are factors that relate primarily to fact situations in which a defendant has driven in such a way as to cause a motor vehicle accident. Your counsel, Mr Mitchell, has, for example, referred to R v Scott where Clifford J referred to an extract from the 2003
2 Moses v R [2020] NZCA 296, [2023] 3 NZLR 583 at [46].
3 Gacitua v R [2013] NZCA 234.
English Court of Appeal decision in R v Cooksley.4 This extract was, in turn, cited by the New Zealand Court of Appeal in Gacitua.5 The point is made in this extract that an offender sentenced for causing death by dangerous driving will not have intended to cause death or serious injury, even if they were driving without regard for the safety of others.
[15] That is not the case here. It was accepted in the first instance, at trial, both by you and by the Crown, that the fact that Mr Cribb came out of the Honda and came to be underneath the Subaru was not your fault. While your actions up to the point of the accident at the corner of Tararua Road and Cambridge Street provide important context and do involve both cars driving at high speeds, they are not aggravating factors that can be taken into account in this offending. Nor is driving of the driver of the Honda, in chasing you along Tararua Road, a mitigating factor in your offending.
[16] Your offending related entirely to your decision, as found by the jury, to drive away, knowing that Mr Cribb was trapped underneath your car and your actions in then driving in such a way as to try to shake him loose before coming to a stop and then intentionally manoeuvring, forwards and backwards, around him before driving away for a second time.
[17] I do add that your driving later that night, when you drove at speed to evade the police, is not an aggravating factor for me.
[18] As the Court of Appeal said in Gacitua v R, sentencing in cases in which death has been caused by dangerous driving – or in this case, reckless driving – is highly fact-specific.6 So much depends on the particular circumstances of the offending. Accordingly, the Gacitua factors – the factors that are outlined by the Judges in that case for Courts to take into account – have some relevance, in a broad sense, but the circumstances here are such that a more bespoke approach is needed.
[19] Alongside the general guidance that Gacitua provides, counsel for the Crown and your counsel have referred to several cases involving offending that is similar to
4 Scott v R [2014] NZHC 1598 at [22] citing R v Cooksley [2003] 3 All ER 40 at [1].
5 Gacitua v R, above n 3, at [24].
6 Gacitua v R, above n 3, at [22].
your offending. Features of those cases and the features of your case lead the Crown to submit that a starting point of four years is appropriate here and lead your counsel to say that a starting point of two years should be adopted.
[20] I begin by considering the aggravating features of your offending in order to consider where it sits alongside those similar cases. I will then explain the cases themselves.
[21] There are a number of aggravating features of the offending in your case. First, as the jury has found, when you stopped at the corner of Tararua Road and Cambridge Street, immediately after the accident, you knew that Mr Cribb was trapped helplessly under your car. You had made some attempt to get him out.
[22] Secondly, the evidence at trial, supported by the jury’s findings, made it clear that Mr Cribb was still alive at that time. He was still breathing when, after you had left the scene, the driver of the Honda returned and the ambulance arrived. As has been said in submissions for you, from your own perspective, you did drive off despite the risk that Mr Cribb was still alive. And, as was said in the provision of advice report to the Court, your actions from the point that you learnt the victim was seriously injured under your car do implicate you.
[23] Thirdly, you knew as you drove the 84 metres down the road that Mr Cribb had not come free from underneath the car because the evidence is that you were swerving left and right along the road to try to get him loose.
[24] Fourthly, knowing what you had then done – in driving for 84 metres with Mr Cribb beneath your car and with the knowledge that I have mentioned – you then manoeuvred your car forwards and backwards to finally come free from him. And then you drove off at speed.
[25] Fifthly, having done all of that, you made no attempt to call an ambulance or to render medical assistance to Mr Cribb in any other way. You left him dying on the side of the road.
[26] To put it broadly, Mr Cribb suffered injuries, first, from leaping from the Honda. A question that was put to the jury in the case was whether the injuries that were then suffered while he was under the Subaru was one of the things – one of the not trivial things – that led to his death. The jury found that it was and that that element of the offence was satisfied as a result.
[27]I turn now to the cases to which I have been referred.
[28] In R v Tawa, the offender’s brother was on the sill of the car the offender was driving.7 He was punching and kicking the offender. He was then run over when the car mounted the kerb. The Judge in that case was not satisfied beyond reasonable doubt that the offender knew that he had struck the deceased. The charge in that case was manslaughter and a starting point of four years was adopted by the Court.
[29] The extent of your knowledge and the nature of your subsequent actions make your offending more serious than that of Mr Tawa. This is a point that Palmer J made in his sentencing indication in this proceeding of 11 September 2023. However, as Mr Mitchell rightly says, in Tawa the charge was manslaughter and, as the High Court said in R v Takaimoana, drawing comparisons between reckless driving causing death
– which is the charge here – and manslaughter is a difficult task in which there is a high risk of perverse sentencing outcomes.8
[30] In Takaimoana, following an argument between them, the appellant’s partner climbed on to the bonnet of the appellant’s car in an endeavour to prevent the appellant from driving off. The appellant started the car. His partner moved up to the roof of the car, and the appellant drove off while she was there. The appellant turned out of a car park on to a State highway and then turned right on to another State highway. The appellant was unsure whether his partner was still on the roof of the car at this stage. Previously, she had done something similar but had jumped off. However, this time his partner fell from the roof of the car and died. The appellant did not swerve deliberately, it was found in that case, to dislodge her and he did not believe that she
7 R v Tawa [2019] NZHC 95.
8 Takaimoana v Police [2021] NZHC 1028 at [38].
was still on the roof. But he did not check. On appeal in this case, the High Court reduced the starting point to three years and seven months’ imprisonment.
[31] Mr Mitchell has submitted that a starting point that is lower than that in Takaimoana should be applied here. I do not believe that could be appropriate. Again, the extent of your knowledge, and the nature of your actions, makes your offending more serious. Rather than, as was the case there, driving away without checking that the deceased was free of the car, you drove off deliberately in the certain knowledge that he was not. You knew that he was tumbling under your car as you were driving. You drove for over 80 metres with this knowledge.
[32] When I look back at the Gucitua factors which, as I have said, are not directly on point, I see three of them as being present here: a highly culpable standard of driving during the course of the offending, driving while you were disqualified from doing so in the first place as a result of previous dangerous driving offending, and your overwhelmingly irresponsible behaviour and then driving off rather than waiting and calling emergency services. While Mr Mitchell has referred to you as being in a panic at that point, that could only be a panic arising from your fear of apprehension. It cannot lessen your irresponsibility.
[33] I cannot see any basis for a starting point of less than four years. That in my view is the least restrictive starting point that could be appropriate.
[34] Your offending occurred while you were on electronically monitored bail. You had cut off your bracelet. An uplift of three months’ imprisonment is appropriate. Accordingly, the global starting point is four years and three months.
Personal aggravating factors
[35] You have, since 1997, been convicted of well over 80 offences. Five of them are violence-related. A good number were committed while you were on bail. However, your offending history has, to the extent that it can be relevant, been factored into the starting point uplift and so I do not add to it here.
Personal mitigating factors
[36] Under s 8(i) of the Sentencing Act, the Court must take into account the offender’s personal, family, whānau, community and cultural background. A background factor will warrant a sentence discount if it is either the operative or proximate cause of the offending, or if the factor makes a causative contribution.9 A background factor will make a causative contribution if it helps to explain how an offender came to offend.10 These principles reflect the need to capture background factors that are more diffuse or are intergenerational drivers of offending.11
[37] Your personal circumstances have been described in two reports. The first is a comprehensive report, prepared by Ms Maaka under s 27 of the Sentencing Act. The report describes you as being of Ngāpuhi in Northland. I pause to reflect on the Ngāpuhi people, descended from Kupe through Rāhiri, led by Hōne Heke in the first half of the 19th century and the iwi of so many well-known people including Willie Apiata. The report explains that you do not have strong connections to your Māoritanga, whānau, hapū or iwi but it does make the point that your people are wanting you to relocate back to Kaikohe, to your turangawaewae, to take care of land there and to disengage from the lifestyle you have known.
[38] That lifestyle began, by all accounts, as a happy one. You are reported as having positive relationships with your mother and siblings. You lived for a year with your father when you were about eight years of age. When you were 12 years old, stability shifted through changes in your family circumstances. You became witness to gang-related dynamics and by the time you were 13, you were stealing cars for those you were then associated with and became involved in a range of criminal and anti- social behaviour. When you were 17 you were sentenced to 18 months’ imprisonment for aggravated robbery. You had your first child when you were 19 years old and entered a period of stability for several years. You were working at Quality Bakers at that time as what was called a dough man and were, the report explains, focused on your partner, your child and your work.
9 Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509 at [107]–[109].
10 At [121].
11 At [109].
[39] You were diagnosed with a syndrome that affected your nervous system when you were 23. You were hospitalised for a time. Regrettably, following your recovery, your drug and alcohol use increased, your relationship with your partner ended and you began a new relationship. You became a father again during this time. You entered another period of relative stability, beginning a pre-trade carpentry course and then, as a result of the skills you demonstrated, beginning an architectural bachelor’s degree which you pursued for 18 months. However, a relationship break-up and relocation for you led to further substance abuse and offending. A stable relationship with another partner in Wellington subsequently saw the birth of your third child. However, the loss of someone very close to you then led to increased drug and alcohol use, offending and imprisonment.
[40] The report writer has addressed, also, the systemic deprivation faced by Māori following failures on the part of the Crown to uphold obligations under the principles of Te Tiriti, the Treaty of Waitangi, causing intergenerational trauma, displacement and disconnection from whenua, economic sustenance, traditions, language, culture, whakapapa, tikanga and whanaungatanga. These points are certainly acknowledged, but, as the Supreme Court said in Berkland v R, if circumstances such as these are to be taken into account, there needs to be a focus on the offender’s own community.12 Wider historical dispossession and social disruption are relevant, but must manifest in a causal connection or contribution with the offending.13
[41] There is no explanation in the material before us as to the ways in which acknowledged Crown failures have manifested through the experiences of Ngāpuhi and then, through that, to you. Moreover, I need to look at the broader factors in your background and upbringing to see if they have contributed causatively to your offending. Do they help to explain in some rational way why you have come to offend?14
[42] A causal connection is not direct here. Drug use is not, for example, a feature of the offending in question. It is not a case where, for example, socioeconomic factors
12 At [146].
13 At [125] and see also Harris v R [2023] NZCA 462 at [24].
14 At [16(c)] and [109].
have led to offences for dishonesty. A causal connection to your terrible decision to drive off with Mr Cribb under your car from your personal background is not immediately apparent. However, the Supreme Court in Berkland has made the point that the approach to the causative contribution should not be unduly vigorous.15 As the author of the PAC report – the second report that has been prepared for your sentencing – observes, substance abuse played little or no part in your offending. Substance abuse remains an area of concern in your life and has been a major contributing factor to your ongoing interaction with the justice system as well as your ongoing associations with negative peer groups. Real change is needed on your part here. But the substance abuse itself did not contribute to this particular offending.
[43] However, I can see the ways in which your upbringing and the circumstances to which you have been exposed have contributed to a range of very poor choices that you have made in your life – at a family level, at a lifestyle level and in terms of decisions you make under pressure.
[44] You do have positive options available to you in the future. You have children who you would want to have look up to you. You have whānau in Kaikohe who call to you. This is a life option that many people just do not have. I can only implore you to embrace that call, when the time comes, and the wairua that it might bring.
[45] But for now, I return to the reduction from your sentence that these factors would warrant. I assess it at 13 per cent. In rounded terms, I will apply a reduction of seven months.
Remorse
[46] Genuine remorse can justify a discount on any sentence.16 Remorse need not be extraordinary to earn a discount, but a discount does require something more than a bare acceptance of responsibility.17
15 At [16(c)].
16 Sentencing Act 2002, s 9(2)(f): Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [64].
17 Moses v R , above n 2 at [24].
[47] In the PAC report it is said that you take responsibility for your position before the Court today and that you feel very bad for the victim who lost his life and for his friends and family members. It is said that you make no excuse for the decisions you made in the early hours of that morning and that you acknowledge the profound effect that your actions have had. It is said that the reason for proceeding to trial was not to deny the charge, or to dispute the sentence indication you had received, but to enable everyone concerned – the family of the victim in particular – to have a clearer understanding of the events that led to the death. It is said that, while you were aware that this may impact negatively upon the final sentencing outcome, you saw it as being necessary nonetheless.
[48] And we have heard your words in court today through a letter that has been read to us by your counsel, written to the family of Mr Cribb, which explains the emotion you do feel as a result of the choices you made that morning. Moreover, you did make a genuine offer to attend a restorative justice conference with Mr Cribb’s family.
[49] It is said for the Crown that there has not been acceptance on your part of the central aspect of the offending – your knowledge at the time that you drove – and that a remorse allowance should not in those circumstances be available here. However, I do accept that you have remorse. You have expressed it in different ways to report writers and to this Court. I do see it as genuine. It enables me to see a pathway of hope for you in the future. Accordingly, I apply a reduction of five per cent from the starting point, which I round up to three months.
Sentence calculation
[50] For the reasons I have given, I have applied a starting point of four years and three months’ imprisonment. I have made total discounts of 10 months resulting in a sentence of three years and five months’ imprisonment.
Disqualification
[51] Under the provision in the Land Transport Act 1998 under which you have been charged, when convicted of an offence, the Court must order you to be
disqualified from holding or obtaining a driver’s licence for one year or more.18 The Crown submits that a disqualification period of at least two years is appropriate. Mr Mitchell submits that the minimum disqualification period of one year is sufficient.
[52] As the principles and purposes of sentencing have in my view been achieved through the sentence that will be imposed, I will make an order disqualifying you from holding or obtaining a driver’s licence for a period of one year.
Sentence
[53]Mr Henare, please stand.
[54] Mr Henare, on the charge of reckless driving causing death, you are sentenced to three years and five months’ imprisonment. You are disqualified from holding or obtaining a driver’s licence for a period of one year.
Radich J
Solicitors:
Crown Solicitor, Palmerston North for Crown Mitchell Law, Waikanae for Defendant
18 Land Transport Act 1988, s 36AA(2)(b).
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