R v Howard
[2023] NZHC 1965
•26 July 2023
IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY
I TE KŌTI MATUA O AOTEAROA TE TIHI-O-MARU ROHE
CRI-2022-076-742
[2023] NZHC 1965
THE KING v
JEFFREY RAYNOR HOWARD
Hearing: 26 July 2023 Appearances:
A-M McRae for Crown
T J Jackson and M L Bonniface for Defendant
Sentencing:
26 July 2023
SENTENCE REMARKS OF OSBORNE J
[1] I am about to sentence you, Mr Howard. As when I gave you your sentence indication this will take some time, so I am now going to ask you to sit again. I will indicate to you towards the end when you must stand for the sentence itself. Thank you.
[2] Jeffrey Raynor Howard, I will sentence you this morning on one charge of driving with excess blood alcohol causing death.1 You were 60 years old at the time of the event on 12 February 2022, when you caused the death of your partner, Karen Steven. I acknowledge that whatever sentence I impose on you today will be less weighty than the burden of knowing you caused Karen’s death.
1 Land Transport Act 1998, ss 61(1)(b) and 61(3AA); maximum sentence: 10 years’ imprisonment and mandatory disqualification from driving of at least one year.
R v HOWARD [2023] NZHC 1965 [26 July 2023]
[3] I acknowledge in court this morning also Karen’s family members — her children, her daughter-in-law, her sisters and her brother. I acknowledge to each of you the Court’s recognition of the loss you have each suffered. I acknowledge also the members of your own blood family here, Mr Howard, and I acknowledge the loss you have also suffered.
Facts of the offending
[4] In February 2022, Mr Howard, you were at your home in Temuka with your partner, Karen, and two friends. The group of you drank together. You and Karen then smoked cannabis together before going to bed around 3 am.
[5] From midday, you and Karen had more alcohol to drink. You then left your home and drove along Factory Road, Temuka. You lost control of the car while accelerating. You failed to negotiate an easy right-hand bend.
[6] The estimate of the Police Serious Crash Unit was that you were travelling at an average speed of 142 kilometres per hour around the time of the incident.
[7] The car swerved off the left-hand side of the road and dropped into an irrigation ditch. It travelled along the ditch some way, coming to rest left-hand side down in the water.
[8] Karen died at the scene. You sustained moderate injuries and were transported to Timaru Hospital.
[9] The blood sample there taken from you recorded a result of 102+/- 4 milligrams of alcohol per 100 millilitres of blood. That is double the legal blood alcohol limit. THC (the main psychoactive compound in marijuana) was also present in your blood at a concentration of approximately 2 nanograms per millilitre.
Your sentence indication
[10] You initially faced two charges. That was one charge of manslaughter and one charge of driving with excess blood alcohol causing death. The charges were laid in the alternative.
[11] You initially entered not guilty pleas to both charges. Late last year you requested a sentence indication which was the subject of a hearing in May 2023.
[12] At that time I gave you an indication on the blood alcohol charge of a term of imprisonment of two years and four months. I recorded that sentence might be reduced by further mitigating factors at sentence after reports were received.2
[13] I will incorporate into this judgment a copy of my sentence indication judgment as that fully explains the basis on which the indicated sentence was calculated.
[14] In brief, I adopted a starting point of three years’ imprisonment having regard to four particular factors:
(a)a relatively high level of culpability involved in your carelessness;
(b)evidence (albeit relatively historic) of an habitual approach to drink driving;
(c)a particularly grave outcome of your offending (which I recognised is inherent in this particular charge); and
(d)the extended period of alcohol consumption leading up to your driving.
[15] Having regard to the timing of your plea of guilty, I indicated a discount of 20 per cent on account of the guilty plea would be available.
[16] Those considerations led to my sentence indication of two years and four months’ imprisonment.
2 R v Howard [2023] NZHC 1073 at [44].
Personal circumstances
[17] I have had the benefit of extensive reports in relation to you, your offending and the impact on others. In particular I note:
(a)I have had a thorough pre-sentence report from your Probation Officer who identifies your home as technically suitable for electronic monitoring. She recommends as the first sentencing option that you be sentenced to home detention with special conditions relating to alcohol and drugs.
(b)I have had a drug and alcohol assessment report completed by a specialist assessor and clinician, Shane Pleasance. He identifies your plan to establish an enduring alcohol and drug abstinence regime and strongly recommends continuing alcohol and drug treatment.
(c)I have also had a cultural report from Dr Juan Tauri and Tara Oakley under s 27 Sentencing Act 2002. Dr Tauri identifies causal connections between your significant early childhood disadvantages — in particular the death of your father when you were two years old, your mother’s difficulties in then raising you, and your two-year period in Borstal from the time you were only 14 years old. You report being a heavy drinker for years, beginning around age 18. Your s 27 report indicates that a severe substance abuse disorder is confirmed both by your offending history and by reports from family members and medical personnel who know you. You had repeated involvement with the Youth Court from the time you were 15 and as an adult became a serial offender for the 22 years between 1980 and 2002.
(d)I also have a report from a registered nurse at the Hospital Board’s Mental Health and Addiction Services Unit. She details the assistance you have sought and obtained to deal with your alcohol addiction.
[18] Mr Jackson has also provided me with references from friends and family members — of your own personal family and of Karen’s family — people who have
known you for between 20 and 40 years. Their knowledge of you counts for much. Each of them speaks of positive qualities that you possess. They refer to Karen’s many, wonderful qualities. They refer to the impact they have seen the offending have on you since February last year.
[19] Significantly, I have a detailed statement from Karen’s sister, Janet Steven. She speaks not only of the suffering of family members as a result of the accident, but also her assessment of the extent of your genuine remorse.
Submissions
[20] You have read and heard what counsel have had to say as to discounts I might give. They have been outlined in reports and identified by counsel. Mr Jackson submitted that I might appropriately further discount the two years and four months figure in three ways:
(a)a 15 or 20 per cent discount for the matters of disadvantage in your childhood that led to a severe substance abuse disorder directly relevant to the circumstances involved in your offending;
(b)a discount of up to five per cent on account of your prospects of rehabilitation; and
(c)a discount of up to five per cent for your remorse.
[21] For the Crown, Ms McRae has acknowledged a discount (in the region of 10 per cent) would be appropriate to recognise the positive steps you have already taken, and will no doubt continue to take, towards your rehabilitation. She accepts a discount in the region of five per cent would be appropriate for your genuine remorse for Karen’s death. That said, the Crown challenges any discount on account of matters in your personal background on the basis that the true cause of your offending in February last year was your abuse of alcohol and your consequent poor decision- making.
[22] Having read all I have read, I have no doubt as to your genuine remorse. You have had direct discussions with members of Karen’s family and you have apologised for your conduct that led to Karen’s death. Those close to you and Karen recognise the extent of the responsibility you accept — one friend for instance refers to you now living a life of hell for the rest of your life. I consider that, beyond the recognition of remorse contained in the 20 per cent discount for your guilty plea, a distinct discount of five per cent on account of your remorse is appropriate.
[23] I also accept there should be a discount to recognise and encourage the rehabilitation you have been pursuing and will continue to pursue. I accept the Crown’s submission that a discount of 10 per cent on that account is appropriate. The steps you have taken are positive and genuine.
[24] That leaves my assessment of matters in your background leading to the issues you have had with substance abuse. The information before the Court, particularly the drug and alcohol assessment reports, satisfies me that the heavy consumption of alcohol, which has marred periods of your adulthood, is directly related to the disadvantages you suffered as a child and young person.
[25] I note the Crown’s submission that there is much that occurred on 12 February last year that is down to your independent decision-making that day. Details in your history of offending, however, point to the impact of alcohol dependence for periods in your life. There was an appalling period of alcohol-related offending from the time you were 18 till you turned 39. There was then the remarkable period of 20 years (2002 to 2022), coinciding with your relationship with Karen, where you stayed out of Court. Any binge-drinking through that period does not seem to have resulted in offending. That appears to have altered following your injury in 2019 very much for the worse. You suffered a severe head injury, with steel plates inserted. From then you were unable to work for a significant period. Your pattern of binge drinking leading to the potential for offending returned. I do not suggest that it had disappeared in every way through the intervening period, but the pattern of binge drinking resulting in offending returned.
[26] There is sufficient information before me to establish that the extended period of hardship and degree to which you were deprived of normal family support and nurturing in your childhood, which early established in you a pattern of alcohol abuse, has a causal connection to the events that led you to your February 2022 offence. You are not entitled to a discount on account of your voluntary consumption of alcohol at that time. But you are entitled to a modest discount for the contributing impact of the background disadvantages that preceded that offending.
[27]I will be allowing a further discount for that factor of 10 per cent.
Total discount
[28] When those additional discounts, totalling 25 per cent, are added to the 20 per cent for your guilty plea and are then applied to three-year starting point sentence, they indicate to me that if a sentence of imprisonment were imposed, the appropriate end sentence would have been 20 months’ imprisonment.
Should I impose a sentence of home detention?
[29] Once the end sentence is under two years, as you know, Mr Jackson submits I should substitute that short term of imprisonment with a sentence of home detention.
[30] In my sentence indication I informed you that you would need to bear in mind what has been expressly recognised in the cases, namely that home detention is an exceptional outcome in cases such as yours which generally call for a custodial sentence.3
[31] The Crown, while drawing that observation to my attention again, has recognised there is a difficult balance in your case in balancing on the one hand the interests of the victims (particularly Karen’s family members) and the need for general deterrence and denunciation with, on the other side of the balance, your particular interests and needs for rehabilitation. The Crown has therefore recorded that it will abide the Court’s decision on the selection of imprisonment or home detention.
3 R v Howard, above n 2, at [41].
[32] Karen’s family members are victims of your offending. I note the strong sentiments expressed to the Court by those immediate family members, namely that Karen would not have wanted to see you imprisoned in these circumstances. They see great value in you remaining in the community so the strong family bonds they have with you are not themselves victims of this situation.
[33] I have decided it is appropriate to substitute a sentence of home detention for a period of imprisonment.
[34] There is a clear need, given the relative seriousness of your driving conduct, for deterrence and denunciation in the sentence imposed. That said, in exceptional cases, home detention can carry with it the appropriate level of deterrence and denunciation when other circumstances are brought into account.
[35] Your particular circumstances involve the grief you must bear for your responsibility in the death of your loved partner and the steps you have taken and the prospects you have of full rehabilitation at the age of 61. These matters, in my judgement, justify the imposition of the most serious level of punishment short of imprisonment. That is home detention.
[36] I also take into account the fact your home detention, to be served without others residing at your address, will carry social restrictions of an unusual nature. I acknowledge the support you will have from your close, supportive, extended family which will have a significant impact to your benefit in seeing you through home detention.
Community work
[37] You have heard today my discussion with counsel about the possibility that I might impose also a sentence of community work.4
[38] Such a sentence may require you to undertake community work for a period of hours between 40 and 400.
4 Sentencing Act 2002, s 55.
[39] I am conscious that, during the period of home detention you will serve, you will be living on your own although you will have family members coming to that home to continue their lives with you. But, in my view, that situation suggests that an element of community work, where you go back out into the community, would form an appropriate part of your overall sentence. The sentence of community work will still be one aspect of holding you accountable for the harm done to the community by your offending.
[40] Having heard from counsel, and you having acknowledged through Mr Jackson that you would be fit to undertake community work, I intend to impose a sentence of 100 hours community work. Having regard to the need to consider the totality of your sentence, I consider it would be appropriate to adjust your period of home detention down by two months.
Outcome on home detention
[41] Having calculated an end period of imprisonment of 20 months, I would ordinarily have converted that to 10 months’ home detention. Given that you will be sentenced to serve community work also, I will be imposing a period of eight months’ home detention.
Disqualification
[42] You have been convicted of the offence of driving with excess blood alcohol causing death and must be subject also to a period of disqualification from driving for at least one year.5 At your sentence indication, the Crown referred to cases in which periods of disqualification of five years and of three years respectively were imposed.6
[43] The primary objective of disqualification is public safety. The matters I must take into account in setting the period of your disqualification are your high blood alcohol reading, the clearly excessive speed at which you were driving, and your
5 Land Transport Act, s 61(3AA)(b).
6 Leaupepe v R [2016] NZCA 228 (five years’ disqualification); McMillan v Police [2014] NZHC 150 (three years’ disqualification).
lengthy (albeit historical) record of poor driving which led, in the period from 1981 to 1997, to repeated periods of disqualification.
[44]I assess the appropriate period of disqualification in your case at four years.
Orders
[45]Please stand, Mr Howard.
[46] I sentence you to eight months’ home detention, to be served at the home detention residence with (in addition to the standard conditions) the following special conditions, namely that you are:
(a)to travel directly from the Court to the home detention residence;
(b)not to possess, consume or use any alcohol or drugs not prescribed to you;
(c)to attend and complete an appropriate treatment, counselling or programme to address substance abuse to the satisfaction of a Probation Officer, with the specific details of the appropriate programme to be determined by the Probation Officer; and
(d)to attend and complete, as appropriate, any other programme, counselling or treatment to the satisfaction of a Probation Officer, the specific details of the appropriate programme to be determined by the Probation Officer.
[47] The conditions at (b), (c) and (d) will continue to apply for six months after the finish of your period of home detention.
[48] In addition to that sentence of home detention you are sentenced to 100 hours of community work, for which you are to report to the Probation Officer in accordance with the direction of the Probation Officer.
[49] Finally, you are disqualified from holding or obtaining a driver’s licence for a period of four years from today.
[50] Mr Howard, thank you for listening to me. Can I say just a few words to you now? I acknowledge here, as has been reflected in everything I have heard from counsel and in the reports I have read, the close and affectionate relationship you and Karen shared and the extremely close and affectionate extended family relationship that developed over the years of that wonderful relationship. I acknowledge that you have had the support of a remarkable extended family, not only your own blood family but the family that came together when you and Karen got together.
[51] This sentence today involves a degree of compassion on the part of the Court as a representative of the community, recognising steps you have already taken with the support of that family to put yourself on the road to a rich and fulfilling later period in your life. I wish you well in that.
[52]Thank you, you may stand down.
Osborne J
Solicitors:
Crown Solicitor, Timaru JMJ Lawyers, Timaru
NOTE: PUBLICATION OF THE .WDGMENT AND OF TnE REQ U EST FOR A SENTENCING INDICATION IN ANY NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE IS PROHIBITED BY SECTION 63 OF THE CRIMINAL PROCEDURE ACT 2011 UNTIL THE DEFENDANT HAS BEEN SENTENCED OR THE CHARGE DISMISSED. SEE
align="center">ORDFR PROHIBITING PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS OF APPELLANT(S)/RESPONDENT(S)/ACCUSED/DEFENDANT(fi) PURE UANT TO S 200 CRIMIH AL PROCEDURE ACT 2011. SEE
THE HIGH COURT OF NEW ZEALAND TIMARU Rf€;lSTRY
I TE KÖTI MATUA O AOTEAROA TE TIHI-O-MARU ROHE
CII-2022-076-742 [2023] NZHC 1073
THEKJNG
JEFFREY RAYNOR HOWARB
Clearing: 5 May 2023
Appearances: S M H McManus for Crown
M L Bonniface for Defendant
Judgment:
lt v
5 May 2023
JUDGMENT OF OSBORNE J
(Sentence Indication)
'l'his ju ûg ment was debivered h)' me on 5 May 2023 al 4.00 pm
RcgisiraxD eputy Regislrar Date:
1073 J 5 M y 20?3]
[l] Mr Howard, I have had the chance to rcad everything in detail before coming in today so 1 an going to not havc a break now, I am just going to give you my sentence indication which will takc a little bit of time so please stay seated. For convcnience I am going to be speaking about you in the third person. I am not going to be saying “you” and so on, I am going to be talking about “Mr Howard”, but I can assure you this is a sentence indication for you. It was just easier for me to write it ir the third person.
Introduction
[2] Jeffrey Howard appears for sentence indication on one charge of driving with excess breath alcohol causing death, an offence under s 61 Land Transport Act 1998 carry ing a maximum term of ten years’ imprisonment, l Mr Howard also faces a manslaughter charge2 that will be withdrawn by the C‹Own should he plead guilty to his excess brGath alcohol charge.
[3]I think I just said excess breath alcOhol, 1 should have said excess blood
alcohol.
Background
[4] The following arc the facts set out in the police summary of facts and are taken to be cor rect fOf the purposes of sentencing.
[5] Mr Howard is 60 years old. On 12 February 2022 he was drinking with Karyn Stcvcn (the victim) and two friends at his home in Temuka. Mr Howard and the victim smoked cannabis together until 3 am when they went to bed.
[61 At midday the pair continued to drink beforc leaving Mr Howard’s home. Mr Howard dfove along Factory Road in 3“emuka. I Ie lost control of the car while accelerating. He failed to negotiate an easy right-hand bend in the road. Mr I toward
'Land Transport Act 1998, s 61; maximum penalty ton years’ imprisonineiit.
'Criines Act 1961, ss 171, l60f2)(a) and ss 150. 177: maxirnuin nenaltv life irnnrisonircnt.
is estimated by police to have been travelling at an average speed of 142 kilometres
[7] he car swerved off the left-hand side of the road and dropped into an irrigation ditch. The car travelled along the ditch coming to rest left-side down ir the water.
[8] Ms Steven died at the scene. Mr Howard sustained moderate injuries and was transported to Tirnaru hospital. A blood sample taken there recorded a result of 102*/- 4 milligrams of alcohol per 100 millilitres of blood. That is double the legal blood alcohol limit. THC, the main psychoactive compound in marijuana, was also present at a concentration of approximately two nanosra ms per millilitre.
Prior convictions
[9] Mr Howard has a raft of trallic related convictions, including five for excess blood alcohol and one tor refusing a request for a blood specimen. He also has one dangerous driving conviction. These convictions all occurred between 1981 and 1997. In that period he also incurred repeated convictions for driving wl4 ile disqualified.
Submissions
Defc›nce Submissions
[10] Matthew bonniface appears for Mr Howard. Mr Bonniface suggests the factors adopted in sentencing for offending under ss 38, 39 and 62 Land Transport Act should also he adopted to determine the seriousness of Mr Howard’s offending. Those factors are:'
(a) the degree of carelessness;
(b) the level ot alcohol;
(c)the consequences; and
(d) the public interest in deterring drink driving.
[11] ] Mr Bonniface submits a brief lack ot concentration was responsible for the crash, with the presence of alcohol in Jim Howard’s system enabling this. Mr bonniface submits, because the corner was manageable, a lapse of concentration and a failure to take the corner correctly would have resulted in the crash regardless of speed.
[1>1 Mr Bonniface notes that an alcohol level between 50 milligrams and 80 milligrams per 100 millilitres of blood constitutes an infringement offence. Mr Bonniface submits Mr Howard's levels should not be regarded as greatly over the limit. He also submits the srnal I amount of THC in Mr Howard’s blood has little relevance.
[131 Mr Bonniface acknowledges the consequences of Mr Howard’s conduct were dirt and the public interest in deterrence of drink driving, especially where a dcath is involved, is high.
[14] Mr Bonniface refers to Leciupef›e v kolice in which a starting point of three years’ imprisonment was upheld on appeal.4 There, the appellant lost control while rounding a corner at between 136 to 164 kilometres per hour in a I 00-kilometre zone. He gave a blood alcohol sample of 126 milligrams per 100 mill ilitrcs of blood. His passenger died at the scene. I note that Mr Leaupepe had two excess breath alcohol offences from some eight years earlier.
[15] Mr Bonniface also referred me to Edmond.s v A.‘ There an appellant’s poor negotiation of a comer led to overcorrection in steering and a subsequent collision with a fence post. The impact killed the appellant’s friend. The appellant gave a blood alcoho I sample of 245 milligrams of alcohol per 100 millilitres of blood. A starting point of three and a half years’ imprisonment n'as not disturbed on appeal.
[16] Mr Ronniface submits Mr Howard’s situation is in line with I.eaupepe and not as serious as Edmonds. He submits a three-yGar starting point is appropriate for Mr Howard’s offending. Mr Bonniface submits Mr Howaid should then receive a 25 per cent credit for any guilty plea, although he recognised in oral discussion with me today that I might be justified in granting a slightly lower credit.
[17] Mr Bonniface refGrs to repous that might be obtained before sentencing. I Ie suggests the Coun order a Drug and Alcohol Assessment Report. Mr Bonnifacc further suggests a home detention sentence may become appi•O Tiate. ThOse matters wit i not be considered in detail here because they all depend on the other information that needs to come in.
[18] Ms McManus for the Crown refers to the views of the victim’s family, who are generally supportive of Mr Howard and wish to see him engage in a rehabilitation process to address the behaviour exhibited in the offending,
[19) Ms McManus notes theTe is no guideline or tariff decision for excess blood alcohol causing death, with sentencing in this area being highly fact specific.‘ The Court of Appeal in k v Gncitua commended reference to fi v Cooksley in assessing aggravating and mitigating features in relation to this type of of’tending.7
[20]Ill Cook‹/ey the Court identified four aggravating faCtOfS: 8
(a)highly culpable standard of driving at the time of the offence;
(b)driving habitually below standard;
(c)the outcome of the offence; and
(d)iuesponsible behaviour at the time ot the offence.
6 R v Gacilua [2013] N fiA 234 at [221, see also L v Cookiley [2003] 3 All ER 40 at [15]. ' At [25].
' ñ v Coo/r.s/eg [2003] fi All ER 40(CA) at 47.
[21] The Crown submits that Mr Howard’s consumption oI drugs and alcohol, his greatly excessive speed and significant (a1be it historic) previous record of’ driving related offences arc ali aggravating tñctors on a Coolss ley analysis.
[22] Ms McManus referred me to MC(’ullough v Police.’ The appellant there was sentenced on one charge of driving under the influence of alcoho1 causing death and one of causing injury. A starting point of three-and-a-half years' imprisonment was not disturbed by this Court. The appellant was driving an unregistered, unwarranted, car with a manual transmission wl3ich his licence conditions did not pens it. The appellant crashed while driving at 100 kilometres per hour, killed one passenger and inflicted injuries on himself and another passenger. A sample of 1 62 milligrams of alcohol per 100 rnillilitres of blood was taken.
[23) Ms McManus referred also to Hitchens v R." There the Court of Appeal uphelcl a sentence of three-and-a-half years’ imprisonment. The appellant had entered a corner, with a 35 kilometre per hour advisory speed, at 70 kilometres per hour and lost control. One passenger was killed and two were injured. Two hours after the accident the appellant had a blood alcoho1 level o1 157 milligrams of alcohol per 100 mill ilities of blood with traces of cannabis. He had a significant number of previous convictions for driving related offences. I note the starting point imposed on Mr Hitchens ir the trial Court had been five years’ imprisonment.
[24a Ms McManus also refers to /eaupepe. She notes the appellant there was also clisqualified from driving for a period of five years for what was his third conviction for driving with excess blood alcohol. ' ' 'that was upheld in the Court of Appeal.
[25] Finally, Ms McManus referred me to McMillan v Folice.'’ There, the defendant crossed the centre line upon entering a “severe blind left-handed bend”." The resulting crash killed a mother and tier two daughters were hospitalised in critical conclition. The defendant’s blood specimen contained 163 milligrams of alcohol per
’ ,4 Ie Cuf/onefi v Police [20 13] NZHC 279.
i a Hifcftens v fi CA 380/03, 25 March 2004.
leuupe ae v f?, above n 4.
i/coi//« v r line [20 i 4] NZHC 150.
100 miililities. Thcrc was no suggcstion of a breach of the speed limit or of reckless driving, the loss of control being attributed to the consumption of alcohol. Thrce years and six months’ imprisonment was consider ed appropriate on appeal.
[26) Ms McManus submits that imprisonment for three to three-and-a-half years is the most appropriate staring point here. She su bmits Mr Howard should also be disqualified from driving for five years to reflect the high blood alcohol level, excessive speed and his lengthy record of related driving offences.
[27] Ms McManuS submits that the discount for a guilty plea shOUld be 20 per cent given the plea has not come at the first available opportunity.
Analysis
[28]This is my analysis of the factors relevant to Mr Howard’s offending.
The degree o[ carele.s.one. .‹
[29] Although Factory Road, on which Mr Howard was di•iving, has an Open speed limit, Mr Howard’s attempt to navigate the bend at a speed approaching, let alone well over, 100 kilometres per hour, when Mr Howafd had drunk and taken drugs to the extent he had, involved a gross breach o1 driving standards. A relatively high level of culpability is involved.
driving habitually helow the acceplahle standard
30] Mr Howard’s previous history of driving-related offences is unusual. In the 17 year s between 1980 (that is, from the time he was around 18) and 1997 he incurred wore than 20 driving offences. While many were for driving while disqualified as I have identificd, five were for eKcess breath alcohol, one was for refusing a i•equest tor a blood specimen and one was for dangerous driving.
[31] While those are, as the Crown concedes, relatively histoi•ic, they constitute evidence of a habitual approach to drink driving and are an aggravating factor to which I attach some weight. Mr Howard's o0’ending on the day in question suggests there may be a habit that he has not fully broken.
[32]The outcome of Mr Howard’s offending was grav—e by his driving he took
the life of Ms Steven, a fact 1 recognise is inherent in this particular charge.
Irresponsible behaviour at the time of offence
[33] Mr Howard's driving after consuming excessive alcohol and taking drugs was highly irresponsible. The fact that the driving was undertaken with excess blood alcohol is an element of the charge and I do not treat tha t aspect as aggravating. What is significantly aggravating is the extent of his alcohol consumption leading up to his driving.
[34] Of the previous cases referred to by counsel, all of which are helpful in considering the relative seriousness of the offending, Edmonds and lVcCullough (in each of which starting points of three-and-a-half years were identified) may be viewed as wore serious when the alcohol levels are taken into account (as well as other factors such as the state of Ms McCullough's vehicle).'
[35] kitchens, again was a case with a starting point ot three-and-a-half years, may be viewed as a slightly more serious case, having regard to the range of aggravating features present in that case. '‘
[36] The two previous cases that bear the most resemblance to Mr Howard’s are I.eaupepe and McMillan.' McMillan, in which a starting point of three-and-a-halt years was found appropriate on appeal, involved a similar range of aggravating features to Mr Howard’s but with the extent of excess alcohol somewhat higher than Mr Howard’s.
[37] In £eaupuy›e, on the other hand, the circumstances bear an even closer relationship to those of Mr Howard. While each case must turn on its own mets, I see
14 Edmonds v R. a hove ii 5; McCullough v Folice , above n 9
Miracle us v £, above n 10.
Zcoirpspe v P, above n 4; Me Ui//on v Polies, ago ve n 12.
no basis on which to distinguish the culpability of Mr Howard’s offending from that
of Leaupepe.
[38]For this reason, a starring point of three ycars’ imprisonment is indicated.
[39] A lengthy period of disqualification is inevitable upon a guilty plea or conviction but I accept, as submitted by Mr Bonniface, the appropriate time to determine that aspect of the sentencing will be when, and if, the sentence indication is accepted.
[40] This is not a case in which it would be appropriate to grant Mr Howard, in the event he pleads guilty now, a full 25 per cent discOunt in relation to that plea. I recognise the Crown has only recently indicated that it would withdraw the manslaughter charge should Mr' Howard plead guilty to the s 61 charge but it has been open to Mr Howard, since he was charged in August 2022, to make a plea of guilty to the lesser charge.
[41] ] I note Mr Bonniface's indication that. should the sentence indication be accepted, Mr Howard will be seeking a sentence of hOme detention. Whether a sentence of hornc detention will be clearly seen as apprOpriate is a matter to be determined at sentencing, not now. But in considering whether to accept this sentence indication Mr Howard will necd to bear in mind what has been cxpressly recognised by Mr Bonniface, namely that hOrne detention is an exceptional outcome in cases such as this which the Couns have said generally do call for a custodial sentence.
[42] That said, I make it clear that the personal factors and other factors Mr Bonniface has said will be thc subject of the further information to come into the Coun will be carcfully considered by me or such othei• Judgc as ultimately deals with the sentencing, when and if sentencing occurs.
Overall di. counl
[43) The discount that would definitely be available to Mr Howard should he accept this sentence indication would be 20 per cent on account of his guilty plea. That would reduce the sentence from the three years’ staring point to one of two years and four
months’ imprisonment, in other words four months above the level at which the Court can consider home detention.
[44] The sentence indication I will be giving Mr Howard is one of two years and four months, but obviously subject to other factors as I have indicated. It may therefore be reduced by further mitigating factors at sentence after reports are received.
Result
[451 I am now addressing you, Mr I loward. This is the result. The sentence indication I make today is a term of imprisonment of two years and four months’ inn prisoninent.
[46] As Mr Bonniface will discuss with you, my indication as a matter of law will expire at 5.00 pm on 1 2 May 2023, that is next Friday, it you do not accept it by that date.
[47] Thank you, counsel. Thank you, Mr Howard. ’l’hank you, members of the extended family, for being here.
[48] Mr Howard is remanded on his present bail terms to 9.1 5 am, next Friday, 1 2 May 2023.
Osborne I
Crown Solicitor, Tim am JMJ Lawyers Ltd, ’l’imaru
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