R v Honeycombe HC Gisborne CRI-2010-016-2385

[2011] NZHC 268

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

CRI-2010-016-2385

THE QUEEN

v

BRAD ALLAN JOHN HONEYCOMBE

Counsel:         C R Walker for Crown

D J Sharp for Prisoner

Judgment:      29 March 2011

SENTENCING NOTES OF BREWER J

SOLICITORS

Crown Solicitor’s Office (Gisborne) for Crown

Burnard Bull & Co (Gisborne) for Prisoner

R V HONEYCOMBE HC GIS CRI-2010-016-2385 29 March 2011

Introduction

[1]      Mr Honeycombe, you appear for sentence having pleaded guilty to one count of manslaughter.  You got drunk.  You drove your motorcycle with your cousin as pillion passenger. You crashed and your cousin was killed.  His death was your fault, but the sentence I have to impose on you is not intended to somehow compensate for his death.  That would be impossible.  What I have to do is to respond to what you did in the way and to the extent that the law requires.

[2]      In  preparing  for  sentencing  I  have  had  the  benefit  of  helpful  written submissions from your lawyer and from the Crown and, of course, their oral submissions today.  Both lawyers referred me to quite a number of cases which have similarities to yours, several from the Gisborne area.  Reading them brought home to me yet again the appalling losses which occur when young people get drunk, drive fast and dangerously and then crash.  I will mention the names of the cases for the record but I do not intend to discuss them with you because, although they determine the broad range of sentence into which yours must fit, as Mr Sharp said, each case

has its unique circumstances and yours is no exception.   The cases are Skerrett, [1]

Grey,[2] Tu,[3] Emerson,[4] Rutene,[5] Ah Chong,[6] Edgcombe,[7] Whiu[8] and Kumar.[9]  That last case, Kumar, Mr Honeycombe, was a Gisborne one with two young lives lost and with the sentence being handed down only 18 days before your offending.

Facts

[1] R v Skerrett CA236/86, 9 December 1986.

[2] R v Grey (1992) 8 CRNZ 523.

[3] R v Tu HC Gisborne, S3/2001, 21 February 2001.

[4] R v Emerson CA203/02, 9 September 2002.

[5] R v Rutene HC Rotorua, CRI 2006-069-1183, 26 September 2006.

[6] R v Ah Chong HC Auckland, CRI 2004-004-010735, 9 August 2007.

[7] R v Edgcombe HC New Plymouth, CRI 2006-043-3868, 23 October 2007.

[8] R v Whiu [2007] NZCA 591.

[9] R v Kumar HC Gisborne, CRI 2009-016-3998, 28 April 2010

[3]      I will start with outlining the facts of your case.

[4]      On 16 May 2010 you were drinking with your cousin, Jason Whitney, and others at Makaraka.  You had a motorcycle and Mr Whitney asked if he could take it

for a ride.  You refused, but said that you would take him for a ride.  Mr Whitney was hesitant about accepting because you were drunk.   However, in the end, and reluctantly, he got on behind you and you drove off.   It was a powerful bike, a

1000cc Yamaha road bike.

[5]      Mr Honeycombe, at that time you were a disqualified driver.  You had just completed 120 hours of community work for drink driving, a sentence imposed on you on 12 March 2010 – only two months before.  You were still disqualified.  You should not have been driving for that reason alone.  Further, your motorcycle was unregistered and unwarranted.  Although the condition of the bike was not related to the crash, the fact remains that it should not have been on the road.  And neither you nor Mr Whitney were wearing helmets. The danger inherent in that is obvious.

[6]      Shortly after you drove off you were seen to do a wheel stand.   You then drove from Makaraka to the intersection of Bushmere Road and State Highway 2.  In front of you a car indicated that it would turn right into Bushmere Road, and it began to turn right.  You tried to pass it but struck it in the right front guard area at a speed estimated in the summary of facts to be between 105 km/h and 115 km/h.  It was a

100 km/h area of road.  Mr Whitney died in hospital. You had serious injuries.

[7]      In hospital a blood sample was taken from you.  The blood alcohol reading at that time was found to be 222 milligrams of alcohol per 100 millilitres of blood – close to three times the legal limit.

Victims

[8]      I come to the harm to your victims.

[9]      Mr Whitney had a partner and four young children.  It is unnecessary for me to go into the grief they feel and the ongoing effects of their loss.

[10]     Mr Whitney’s mother has had to bear this loss on top of the recent deaths of her husband and mother.  Her statement is dignified, restrained and infused with her grief.

[11]     Mr Whitney’s sister lost a beloved brother and her children cannot understand why Uncle Jason no longer visits.  And Mr Whitney’s older brother, who has special needs and who was close to Mr Whitney, is simply unable to comprehend the reason for his absence.

[12]     This is an example of the human tragedy behind the road deaths statistics, but it is the particular human tragedy you caused.

Personal characteristics

[13]     I need to look at your personal characteristics.

[14]     In addition to the submissions of Mr Sharp, I have read your full pre-sentence report and also a neuropsychological report dated 10 January 2011 and a psychiatric treatment report dated 3 February 2011.

[15]     You had recently turned 23 at the date of the crash.  You had been employed as a road worker for nine months previously and you had a partner and a four months old daughter. You had an alcohol problem and a related anger problem.

[16]     You continue to drink, heavily at times, and there are contradictions between comments in the pre-sentence report as to your awareness of the need to address your drinking habit and comments in the psychological reports about your lack of awareness of that need.

[17]     The crash caused you serious injuries including brain damage.   Physically you have recovered quite well, but the effects of the brain damage linger in the form of outbursts of irritability and other symptoms.

[18]     You  have  a  number  of  convictions,  two  of  which  are  relevant.     On

3 September 2004 and 12 March 2010 you were convicted of driving with excess breath alcohol.

Starting point

[19]     Against this background I have to fix a starting point for the manslaughter sentence.  I do this by looking just at the seriousness of your offending.  Once I set the starting point, I then look at your personal circumstances to see if the starting point should be increased or reduced.

[20]     The factors relevant to assessing the seriousness of your offending are:

You drove a motorcycle with close to three times the permitted blood alcohol

level while carrying a pillion passenger;

You drove badly, witness the wheel stand and the excessive speed;

You attempted to overtake a turning vehicle at high speed and you crashed into it;

You were driving while disqualified from doing so;

You were driving an unregistered and unwarranted vehicle; Neither you nor your passenger were wearing helmets.

[21]     The only mitigating feature of the offending, and I am going to characterise it as a mitigating feature of the offending, is that the person you killed was your cousin and your friend.  You did not, of course, intend to kill him or cause him harm, but you nevertheless killed someone who was close to you.

[22]     The Crown has suggested a starting point of five to six years.  Your lawyer submits that five years would be appropriate.  My assessment is that the fragility of human  beings  on  the  back  of  a  speeding  motorcycle,  without  even  the  basic protection of helmets in the event of a crash in circumstances as I have described, would warrant a starting point in excess of six years, perhaps six-and-a-half years.

But, in view of the loss to you of your cousin and friend, I fix a starting point of six years.

Personal circumstances

[23]     I now consider your personal circumstances to see whether the starting point should be adjusted up or down.

[24]     Your previous convictions for driving with excess breath alcohol, particularly the 2010 conviction because of its recency, do require an increase in the sentence. The reason for that is that they show that you do not care.  You do not learn.  You repeat the conduct for which you were previously before the Court, and it was serious conduct because driving with excess alcohol in your body raises the potential for just the sort of catastrophe which has occurred.  I therefore increase the starting point by six months, to six years and six months.

[25]     There are no circumstances justifying a decrease in the sentence, other than your guilty plea which I will come to.

[26]     I have heard the submissions about your remorse and about the effects that the crash have had on your life.  I accept that you are remorseful.  It is inherent in the relationship you had with Mr Whitney, and I have recognised that in the discount on your starting point, and I feel it would be artificial to separate the two aspects.

[27]     I  also   accept  that   you  have  suffered   and   are  suffering,  particularly psychological effects, as a result of the crash.  But these are to a significant extent, as I read the reports, made worse by your drinking, and that is a problem for you to address.

[28]     On the basis of the submission from your lawyer, Mr Sharp, and on the acceptance of that submission by the Crown, I will give you the full 25% discount for your plea of guilty.   It is generous in the circumstances.   The end result is a sentence of four years 10 months imprisonment.   In addition I will disqualify you from holding or obtaining a driver’s licence for an effective period of three years.

Sentence

[29]     Mr Honeycombe, please stand for the formal imposition of sentence.

[30]   Mr Honeycombe, for the offence of manslaughter you are sentenced to imprisonment for four years and 10 months.  You are disqualified from holding or obtaining a driver’s licence for a period of three years, and that disqualification

commences on your release from prison.  Stand down.

Brewer J