R v Kawhena
[2017] NZHC 1098
•25 May 2017
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
CRI-2016-019-002049 [2017] NZHC 1098
THE QUEEN
v
BROC KAWHENA
Hearing: 25 May 2017 Counsel:
G A Kelly for the Crown
T Sutcliffe for the DefendantSentence:
25 May 2017
SENTENCE OF GORDON J
Counsel: T Sutcliffe, Hamilton
Solicitors: Almao Douch, Hamilton
R v KAWHENA [2017] NZHC 1098 [25 May 2017]
Introduction
[1] Mr Kawhena, you may remain seated until the time comes to formally pass sentence upon you.
[2] Mr Kawhena, you appear for sentence on a single charge of causing death while in charge of a motor vehicle under s 61(2)(a) of the Land Transport Act 1998. The charge carries a maximum sentence of 10 years’ imprisonment.
[3] You pleaded guilty to the charge following a sentence indication which I gave on 1 March 2017. In giving that indication, I set out the facts of your offending and my reasons for imposing the indicated starting point. However, I repeat those remarks in full today because of the nature of your offending. I consider that it is important to send a message to the community about the very significant harm that is caused by this sort of offending.
Factual background
[4] The facts of your offending were as follows.
[5] On the night of Saturday, 2 April 2016, you were visiting a friend’s home with your partner in Otorohanga. Over the course of the evening, you consumed a significant volume of alcohol, approximately 18 to 20 standard-size bottles of beer. You eventually went to sleep there, but were woken by your partner in the early hours of the morning. Your partner wanted to leave the property. She had pushed you to leave earlier in the evening, but your friends had intervened to keep you there. On this later occasion, however, your partner was successful. There was an argument between the two of you before you left the property. The precise reason for the argument is not clear from the summary of facts.
[6] The two of you left your friend’s home in an unregistered and unwarranted Honda Accord. At this stage, it was after 3.30 am, though the exact time is not known. The road was wet from recent rain and it was misty, although the streets were adequately lit with street lighting. You were driving and your partner was beside you in the passenger seat. At the time, you held a restricted licence, the
conditions of which prohibited you from driving between the hours of 10.00 pm and
5.00 am unless you were accompanied by a fully licensed supervisor. It is not clear whether your partner was qualified to act as a supervisor, but in any case, you were intoxicated and should never have been driving that night.
[7] As you left the house, your driving was erratic and you were speeding. As you approached the crest of the first hill, you crossed the centre line and collided with a vehicle parked on the other side of the road, shunting it up onto the footpath. As a result, both your car and the parked car sustained significant damage. Your front bumper came off completely and was left at the side of the road. You should have known already that you were in shape to drive. Even so, that first collision should have been a further warning to you. However, you did not heed that warning.
[8] You continued driving towards the Otorohanga township at speed. The section of the road you were on had a 70 kilometre per hour speed limit, which decreased to 50 kilometres per hour as you neared the town. You were travelling at approximately 80 to 90 kilometres per hour. At the same time, you were continuing the argument with your partner. You took your eyes off the road to look at her. At that moment, the car came to a slight bend in the road and you failed to take the corner safely.
[9] A young woman, Ocean Heke, was walking along the side of the road on her way back from a birthday party. She was 17 years old at that time. Your vehicle struck her from behind with extreme force. She was thrown into the air, hitting the lower front windscreen of your vehicle and smashing part of the side mirror. She was then thrown away from the vehicle, travelling 10 metres at speed into a brick pillar and wooden fence. She suffered catastrophic, non-survivable injuries which would have resulted in her near instantaneous death. She died alone and was not found for several hours.
[10] Although you must have noted the impact, you did not stop the car. You swerved back onto the road and continued driving out of control towards the township. Your journey eventually came to an end when you again mounted the concrete curb, travelling through a steel fence into a trucking yard depot, where your
vehicle came to a stop. You and your partner then exited the vehicle and walked
towards a nearby relative’s house.
Pre-sentence report
[11] I have received a pre-sentence report dated 18 April 2017 in which the probation officer records that you told her you have no memory of hitting Ms Heke and are not satisfied you caused her death. You advised her that you entered a guilty plea, not out of remorse, but because the court process was taking a long time. These comments are both disappointing and concerning. There is no doubt that it was your car which struck Ms Heke and that you were driving the car at the time. Your refusal to accept that fact does not reflect at all well upon you, Mr Kawhena.
[12] The probation officer assesses you as being at medium risk of reoffending and considers that there is a high risk you will cause harm to others in the future. The offending-related factors which lead to that assessment are your attitudes and your use of alcohol. In respect of alcohol, the probation officer notes that you are a binge drinker, consuming large amounts of alcohol, on average, once a month. Although you attended an alcohol and drugs assessment after the offending, you did not or could not complete the following sessions. It appears, however, that this may not have been due to any fault on your part.
[13] Turning to your personal life, the pre-sentence report records that you continue to reside with your partner and your three year old child in Te Kuiti. You informed the probation officer that, notwithstanding her role in your offending, the two of you have a good relationship. You are employed at Universal Beef Packers and you have been with that company for around seven years, with one brief interruption. You apparently play rugby for a local team and have a keen interest in hunting and fishing. These factors suggest that you have the potential, in future, to contribute to the community in a positive way.
Victim impact statements
[14] I have received victim impact statements from a number of Ms Heke’s family
members. Unsurprisingly, they make very sad reading. Each of them has struggled
to cope with her death. It is particularly difficult for them to know that she died on her own, and in pain. They have experienced profound sorrow, as well as guilt and anger. Ms Heke’s mother read her statement to the Court today. She, in particular, has found her daughter’s death very difficult to bear. Your continued refusal to accept full responsibility for your actions makes the grieving process even more painful.
Sentencing approach
[15] The sentence which I will impose today is determined, in large part, by the sentence indication which I gave on 1 March 2017. However, for the benefit of those who are here today, I will briefly restate the Court’s approach to sentencing. The first step is to identify a starting point which reflects the gravity of your offending. That starting point is fixed by your sentence indication. I will then adjust that starting point to take into account any aggravating or mitigating features relating to you personally.
[16] In sentencing you today, I must have regard to the purposes of sentencing, which include the need to hold you accountable for the harm you have done to the victim and the community by your offending; to promote in you a sense of responsibility for, and acknowledgement of, that harm; to denounce the conduct in which you were involved and to deter you and others from committing the same or a similar offence in the future.1 However, I must also have regard to the need to assist in your rehabilitation and reintegration.
[17] I must also consider the principles of sentencing and take into account the gravity of your offending; the seriousness of this offence in comparison with other offences; and the general desirability of consistency with appropriate sentencing levels.2 I must impose the least restrictive outcome that is appropriate in the
circumstances.
1 Sentencing Act 2002, s 7.
2 Sentencing Act 2002, s 8.
Starting point
[18] As I explained in my sentence indication, I consider that a starting point of
five years’ imprisonment is appropriate in your case.
[19] That starting point is justified because of the aggravating features which characterise your offending. You had consumed a significant volume of alcohol and were travelling at a speed which was more than 30 kilometres per hour in excess of the posted speed limit. You engaged in a persistent course of very bad and dangerous driving, in an unregistered and unwarranted vehicle. You have previously received demerit points for exceeding a 100 kilometre per hour posted speed limit. Obviously, your offending resulted in very severe injuries to Ms Heke, which caused her death. Finally, the fact that you did not stop after hitting Ms Heke is a significant aggravating factor.
[20] There are no mitigating features of your offending.
Adjusting the starting point
[21] The Crown accepts that there are no aggravating factors relating to you personally. Accordingly, there is no reason to uplift the starting point.
[22] Your counsel has submitted today that I should allow a reduction in the starting point to reflect, first, your youth; and second, your previous good character. The Crown opposes any reduction on these bases.
[23] As I noted in my sentence indication, you are beyond the age where the Court would normally give any significant discount to reflect your youth. Age can be a relevant factor in sentencing, both because it may reduce the culpability of the offending and because young people generally have a greater capacity for rehabilitation. However, youth will not always justify leniency. In some cases, there will be other factors which weigh against a discount, such as the seriousness of the offending and the need to protect the safety of the community. Your refusal to accept that your actions caused Ms Heke’s death are troubling and have caused me to consider whether the public interest in holding you accountable for your offending
and promoting in you a sense of responsibility for that offending outweighs the public interest in recognising the impact of your youth on your offending. On balance, however, I consider that a very small discount of five per cent is warranted. This brings the starting point to four years and nine months’ imprisonment.
[24] There is also the matter of previous good character. It is true that you do not have any previous criminal record. However, your demerit point and licence suspension history report shows that you have received demerit points on seven occasions in the past three years for infringements relating to your motor vehicle, including operating an unregistered motor vehicle and carrying unauthorised passengers. On 19 November 2014, your licence was suspended for three months. These past infringements demonstrate a disregard for the road rules and for the safety of yourself and others. They are not so serious as to merit an uplift to your starting point. However, they are sufficient in my view to rule out any reduction in your starting point for previous good character.
[25] Finally, there is the matter of your guilty plea. In my sentence indication, I said that you would be entitled to a further discount of 15 per cent, if you pleaded guilty by Wednesday, 8 March 2017. I am bound by that indication. Applying a discount of 15 per cent results in a final sentence of four years’ imprisonment.
Minimum period of imprisonment
[26] The Crown seeks a minimum period of imprisonment of 50 per cent of your sentence. In my view that is unnecessary, particularly given your lack of previous convictions. That means that you will be eligible for parole after serving one-third of your sentence.
Further matters
[27] There are two further matters which must be addressed. The first is the question of reparation. The Crown seeks an order requiring you to pay reparation of
$5,977.07 for repairs to the galvanised wire mesh fence where you crashed your car. Your counsel has submitted that with a sentence of four years’ imprisonment, there is
no realistic prospect of you paying that amount. I agree and I decline to make the order for reparation.
[28] There is also the matter of disqualification from driving, which follows automatically when a person is convicted of an offence of this nature. As I stated in my sentence indication, I consider that a disqualification period of four years is justified in your case.
Result
[29] Mr Kawhena, please stand.
[30] On the charge of causing death while in charge of a motor vehicle, I sentence
you to four years’ imprisonment.
[31] You are disqualified from driving for a period of four years.
[32] The Crown offers no evidence on the alternative charge of manslaughter. You are discharged on that charge pursuant to s 147 of the Criminal Procedure Act
2011.
[33] You may now stand down.
Gordon J
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