R v Kala'Uta

[2016] NZHC 1526

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2015-092-6330 [2016] NZHC 1526

THE QUEEN

v

HINGANO ANAMANU KALAʼUTA

Hearing:	5 July 2016
Appearances:	N E Walker for Crown N T Tupou for Defendant
Judgment:	5 July 2016

SENTENCING NOTES OF PETERS J

Solicitors:           Kayes Fletcher Walker Ltd, Crown Solicitor, Manukau

Sinisa Law Limited, Auckland

Counsel:            N T Tupou, Auckland

R v KALAʼUTA [2016] NZHC 1526 [5 July 2016]

Introduction

[1]      Mr Kala’uta, you are for sentence on one charge of manslaughter and four charges of driving with excess blood alcohol causing injury.1

[2]      In sentencing you today I have been greatly assisted by the written and oral submissions from your counsel, Mr Tupou, and from Ms Walker for the Crown.

[3]      The charges arise from a single incident in the early hours of 1 January 2015.

[4]      You had been out drinking with friends and family that night – New Year’s Eve.  There were seven of you in the car which, as I understand it, had several rows of seats.  Sensibly, the group had agreed that Mr Hafeez would act as the sober driver and so he was driving at the start of the trip home from town.

[5]      At some point you decided that you should drive and insisted on doing so, to the point where you threatened Mr Hafeez verbally and physically, demanding that he pull over.  The other passengers were extremely unhappy about this, and said as much, because you had been drinking.  Nonetheless, and it is no criticism of him, Mr Hafeez pulled over and you took over the driving.

[6]      From that point, events deteriorated.  You and your now wife, Ms Naufahu, were arguing.  She got into the front seat and the argument continued.  Matters were not helped by the fact that she started hitting you and later turned on the windscreen wipers and indicators while you were driving.

[7]      The others in the car – and other motorists for that matter – considered your driving to be erratic and aggressive and you were speeding – up to 160km/h.  You ignored your passengers when they yelled at you to stop.

[8]      The accident occurred at about 6.20 am as you approached the East Tamaki off-ramp.  You tried to swerve around a car in front of you, lost control, the car spun and then slammed into the steel barrier at the side of the motorway.  One passenger

was thrown out of the car at that point and suffered moderate injuries.

1      Crimes Act 1961, ss 160(2)(a) and 171 and Land Transport Act 1998, s 61(1)(b).

[9]      The force of that collision sent the car across the southbound lanes of the motorway.  Ms Taimani was thrown out of the car and died at the scene as a result of injuries to her head and chest.  The four other charges relate to four of your other passengers who suffered injury – your wife, Ms Naufahu; your cousin, Mr Makisi; Ms Moala; and Mr Kaivelata.  Also, Mr Hafeez has indicated to me in his victim impact statement that he suffered concussion, ongoing memory loss and that he has also been suffering from depression.

[10]     The road was dry, the weather was fine, visibility was good and the car was roadworthy.  The causes of this accident were the manner of your driving – at speed and aggressive – and alcohol. Your blood alcohol level was 89 milligrams of alcohol per 100 millilitres of blood so more than the permitted maximum of 80.

Victims

[11]     Your actions have had a terrible effect upon those involved and their families. Ms Taimani’s family know that they have lost her because of your actions.  She was plainly a delightful and much loved young woman with much ahead of her that would have been exciting for her, her parents and her family.  Their pain and grief is indescribable.

[12]     Other victims also have to bear the consequences of your actions.  Ms Moala is nervous when she is a passenger and has ongoing neck pain as a result of whiplash suffered in the accident.

[13]     Several victims have forgiven you because you are remorseful and have taken responsibility for your actions.  That they can do so in the circumstances of this case is impressive.  It shows a generosity of spirit that is quite remarkable.  Many in the same circumstances would not be able to be so generous.

[14]     I have also read the report of the Restorative Justice Conference which took place recently on 28 June 2016.  The report is a credit to all concerned, including you.  It takes a great deal of courage to meet those you have affected so badly and your victims face to face, as you did.

Personal circumstances

[15]     Mr Kala’uta, you were 22 years old at the time of accident.

[16]     The documents before me indicate that prior to this accident you were in the habit of drinking too much but that you now understand that drinking is a problem for you, that you have made a real effort to stop and that you are:2

… an honest and open young man who is genuinely hurting and struggling to come to terms with the consequences of his actions which have resulted in a death.  However he appears to be doing what he can to make sense of this event, to learn and develop as a person, and to contribute something productive to society as a result.

[17]     On the basis of the pre-sentence report, you are at risk of reoffending if you drink too much.  And you are at low risk if you do not.  The report writer says that you have a deep sense of remorse and do not shy away from the fact that you caused this accident.

[18]     I have also received letters from your former employer, your uncle and your parish steward, all of which are very supportive.  Your former employer in particular describes you as a trustworthy and sociable person who was a great “team player”.

[19]     You have completed several programmes to improve your driving and to take a more sensible and mature attitude to  drinking.   These have been through the Harmony Trust, Care NZ, the Waitemata District Health Board and CADS.3

[20]     There is also the important matter of the $20,000 that has been offered in reparation and, which I understand from your counsel, has largely derived from your family’s efforts.   The fact that such a sum  has been raised is  indicative of the seriousness with which your family and you view this matter.  It is a very substantial sum and that is not lost on me.  Of course it will be for you to pay your family back

in due course and you will need to ensure that you do that.

2      Harmony Trust Report dated 30 August 2015.

3      Other  programmes  Mr  Kala’utu  has  completed  include  a  Wellness  Recovery Action  Plan programme; the TUPU Pacific Alcohol, Drug and Gambling Services programme; the One for the Road programme; and an Impaired Driving – Education Programme.

Sentencing Act 2002

[21]     The sentence I impose on you must be sufficient to hold you accountable for the very serious harm that you have caused and to denounce the conduct in question and deter others from doing the same.  I must also treat you consistently with others, take into account the effect of the offending on the victims and impose the least restrictive sentence available in the circumstances.

Starting point

[22]     In sentencing you today I have considered Gacitua v R, a decision of the Court of Appeal which sets out matters to be taken into account in cases when death has been caused by driving under the influence of alcohol or other drugs.4   Although the nature of your charges are different, the reasoning applies equally in this case.  I have also considered the many cases to which Mr Tupou and Ms Walker have referred me.5   The point of looking at those cases is to make sure that I treat you the same way that others in your position have been treated.

[23]     The five factors that increase the culpability of your offending are: (a)          you were driving well above the speed limit;

(b)      your blood alcohol level was more than the legal limit; (c)     you ignored warnings from your passengers;

(d)      you drove dangerously and aggressively for a prolonged period; and

(e)       other passengers in the vehicle were injured to a moderate extent.

4      Gacitua v R [2013] NZCA 234.

5      R v Tumahai HC Hamilton CRI-2011-019-1692, 8 December 2011; R v Ormsby [2013] NZHC

1873; R v Guest [2013] NZHC 2432; R v Pretty CA277/00, 26 October 2000; R v Maposua

CA131/04, 3  September 2004; R v  Edgcombe HC New Plymouth CRI-2006-043-3868, 23

October 2007; R v Wagener HC Invercargill CRI-2010-025-191, 8 June 2010; R v Vanstone HC Hamilton CRI-2010-068-603, 19 April 2011; R v Faletolu [2014] NZHC 2218; McMillan v Police [2014] NZHC 150.

[24]     The Crown suggests a starting point of six and a half years’ imprisonment, Mr Tupou suggests five years.  I consider the appropriate starting point is six years’ imprisonment.

Adjusting the starting point

[25]     Then I must take into account the matters which relate to you personally and which might make it necessary to increase or reduce the starting point so as to arrive at your final sentence.

[26]     There are no factors that would lead me to increase it.  There are, however, a number of mitigating factors.

[27]     The first is that I am satisfied that you have done everything you reasonably could to rehabilitate yourself and to demonstrate your remorse.  This is only to be expected of course since Ms Taimani was your friend, and she had been a close friend of your wife since childhood.  You also know that the others you injured were your friends or family.

[28]      As I have said, assembling a payment of $20,000 requires work and of course  you  have taken  part  in  the  restorative justice process.   Your  remorse  is genuine.

[29]     The Crown acknowledges that all of these matters do warrant a discount and that in comparable cases the appropriate reduction has ranged from 15 to 20 per cent. I consider a discount of up to 20 per cent is appropriate to reflect the factors to which I have just referred.

[30]     Then there is your guilty plea.  The offending took place on 1 January 2015. Although you did not plead guilty until 6 April 2016, the Crown accepts that the delay was due in part to efforts to raise money to pay reparation and counsel agrees that a significant discount should be given.  I shall reduce the sentence by 20 per cent for your guilty plea.

[31]     The result is that you will be sentenced to four years’ imprisonment on the manslaughter charge.

[32]     I will also sentence you to one year’s imprisonment on each charge of driving with excess blood alcohol causing injury, to be served concurrently, so at the same time.

[33]     I shall also disqualify you from holding or obtaining a driver’s license for

four years from the date of your release from prison.

[34]     The majority of your reparation payment should go to the family members of Ms Taimani.  The rest should be split evenly between the four people who were the victims of the other charges.  One of those of course is your wife, Ms Naufahu, and it may be that she thinks in the circumstances that it might be appropriate to make all or some of her payment available to Mr Hafeez.  That is a matter for her.  I direct that $15,000 is to be paid to Ms Taimani’s family and a further $1,250 is to be paid to each of the other passengers who were injured and the subject of charges.  In light of that payment, I shall not make any further order for reparation.

Sentence

[35]     Mr Kala’uta, please stand.

[36]     On   the   charge   of   manslaughter   you   are   sentenced   to   four   years’ imprisonment.   On each of the four charges of driving with excess blood alcohol causing injury, you are sentenced to imprisonment for one year.  Each is to be served concurrently with the manslaughter sentence, so that your total term of imprisonment is four years.

[37]     You are also disqualified from holding or obtaining a drivers’ licence for four

years, commencing on your release from prison. [38] Please stand down.

..................................................................

Peters J