R v Kumar HC Gisborne CRI 2009-016-3998
[2010] NZHC 644
•28 April 2010
IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY
CRI 2009-016-3998
THE QUEEN
v
SANDEEP KUMAR
Hearing: 28 April 2010
Appearances: S Manning for the Crown
J Mathieson and L Hemi for Mr Kumar
Sentencing: 28 April 2010
SENTENCE OF WOODHOUSE J
Solicitors:
Mr S Manning, Elvidge & Partners, Office of the Crown Solicitor, Napier
Mr J Mathieson and Mr L Hemi, Rishworth Wall & Mathieson, Solicitors, Gisborne
R V KUMAR HC GIS CRI 2009-016-3998 28 April 2010
[1] Mr Kumar, you may remain seated.
[2] I need to take some time to explain the sentence that I am going to impose on you. As has been acknowledged by Mr Hemi on your behalf, I am bound to impose a sentence of imprisonment and it will be for a number of years.
[3] I need to explain this, of course, to you, but I also need to explain it to the victims who are still alive and to the families. And beyond that, and just as importantly, in a different way, I need to explain it to the community as a whole. It is important that this be done with any sentencing. There is an added reason here, and that is the effects of excessive use of alcohol, the devastating effects, which so often seem to be ignored. So I need to outline quite a few things that you know about, but not everybody else.
[4] On 7 August 2009 you were driving your car after drinking a lot of alcohol and smoking cannabis. Your driving was extremely dangerous. Your actions resulted in the death of Emma Green, aged 14, and Ajay Singh, aged 23, and in serious injuries to Sherylea Taylor, who was then aged 19, and her sister Toni, then aged 14. All four were passengers in your car.
[5] You pleaded guilty to two charges of manslaughter – and that is causing death from the manner of your driving – and two charges of causing bodily injury while driving with excess alcohol. The maximum penalty for manslaughter, Mr Kumar, is life imprisonment. The maximum penalty for the other offences is 5 years imprisonment.
Facts
[6] I will outline the facts.
[7] On 7 August 2009, during the day, you were driving your car at speed around the streets of Gisborne. In the early evening you started drinking alcohol. At some point you also smoked a cannabis cigarette.
[8] At about 9:15 that night you were driving with the four passengers on State Highway 2, north of Gisborne. You started driving at such a high speed that three of the passengers pleaded with you to stop. They wanted Mr Singh to drive as he had not been drinking alcohol. You did not agree, appeared to get angry and drove your car even faster. You began to drive erratically and in excess of the 100 kph speed limit. I heard further submissions this morning as to estimates of your speed. One of your passengers, looking at the speedometer, said that at one point anyway it got up to 180 kph. I acknowledge that there is some other evidence suggesting that it might be lower, but they are estimates. In addition to the person who saw the speedometer is the graphic evidence from the crash where your car drove a concrete block of steps weighing 1,480 kilograms a distance of 19 metres along the road, and being a block of concrete steps fixed by steel rods to another concrete structure.
[9] In addition to the speed there were other bad features of your driving. You, at the end of it, overtook another car in a dangerous manner, clipped that car, lost control and crashed into the concrete steps as I have just described.
[10] From a blood test sample taken about two hours after the accident you were found to have 197 milligrams of alcohol per 100 millilitres of blood.
[11] Those are the essential facts of your driving and the condition you were in.
The harm to your victims
[12] I come to the harm to your victims.
[13] It is unnecessary for me to say anything about the consequences of killing two young people and the effect of this on the families. There is a statement from Ms Eunice Green, Emma’s mother. She has recorded, with brevity and dignity, the anguish for her, her other two children and the wider family.
[14] There are also statements from Sherylea and Toni Taylor. These record the extent of their injuries. Sherylea had a broken femur with other injuries. She now has a steel rod in her leg which will require a further operation to have screws
removed. The steel rod causes problems which may remain with her and there are inevitable psychological and emotional effects. She feels less secure getting into cars with other people and panics at little things when she is in a car.
[15] Toni Taylor suffered a dislocated right hip, an open fracture to her left ankle and numerous fractures to her head and face. She has permanent screws in her ankle and permanent titanium plates in her face. At times she has double vision. She has trouble chewing food because of a broken jaw. The double vision and chewing difficulties may diminish but that may take two years or more. She also has inevitably suffered psychologically and emotionally.
[16] I do note that both young women have lost money through damaged property, but I am not going to order reparation because you do not appear to have any means of paying them.
Mr Kumar – personal circumstances
[17] I come to your personal circumstances.
[18] At the end of her statement, Ms Eunice Green said, and I quote:
Family and myself are slowly moving on. We are pleased with the guilty plea. But all our family would like to know what sort of man he is, why did he drive like he did with passengers.
[19] I cannot provide really any answers to that. I can indicate some of what is contained in the pre-sentence report. It records, Mr Kumar, that you are now 25 years old. You came to New Zealand from Fiji without your family but with their support when you were 17 years of age. You are the youngest of three children. It is said that, before coming to New Zealand, you had some academic ability and sporting ability, but decided to come to New Zealand instead of pursuing your education.
[20] You have a 6 year old daughter. It appears that you and the mother lived together for a period. You separated some time before this offending.
[21] It is recorded, and I quote what is in the pre-sentence report: “Mr Kumar expressed remorse for his offending throughout the interview, openly weeping when discussing the deaths of the two passengers”. I acknowledge that Mr Kumar and it is taken into account because it is best represented by your very prompt guilty pleas. Mr Singh was your friend. It seems that you met Emma Green and Toni and Sherylea Taylor only that evening.
[22] You have been unemployed for a period and have outstanding fines in excess of $5,000. And it is for this reason, and the fact that a sentence of imprisonment will be imposed, that I am not ordering payment of reparation.
[23] You have 13 previous traffic offences. Some of them are relevant. These include four speeding offences, three for exceeding 100 kph, operating an unfit motor vehicle and driving without a licence or contrary to conditions. All of these offences, and a few others which are not relevant, resulted in the fines totalling just over $5,000. These fines go back to the first one in 2004. It seems, Mr Kumar, that no fine imposed on you has been paid, out of a total of 18 individual fines.
Starting point
[24] I come specifically to the sentence.
[25] I need to fix a starting point for the manslaughter. This is assessed in relation to the gravity of the offending, without taking account at this stage of any personal circumstances which might increase or reduce the sentence.
[26] The factors relevant to assessing the gravity of your offending are the following, and I list these in barest outline:
a) You drank a lot of alcohol then drove a car and drove with passengers;
b) You had also smoked cannabis;
c) You drove at excessive speed and without proper control. d) You disregarded pleas from your passengers to stop;
e) You overtook another car at very high speed and in such a manner that you then lost all control;
f) And this occurred after bad driving earlier in the day.
And the result of all of this was the death of two young people and serious injuries to two other young people.
[27] Mr Kumar, there are no features of your offending which are in your favour.
[28] The Crown referred me to a number of cases in support of a submission that the starting point should be 7 to 8 years imprisonment. Mr Hemi, on your behalf, has submitted, in effect, that your driving was not as bad as the driving in the other cases and that the starting point should be 6 years.
[29] The other cases – and I will simply note their names – are: Edgecombe[1], Rutene[2], Prescott[3], Smith[4], MacSwain[5], and Grant[6]. I do not intend to discuss these cases. It is necessary to have regard to sentences imposed in other cases and I have. But there is a limit as to how far that can be taken in cases of this sort, where
circumstances vary so much. There is certainly a limit as to how far one can compare the specific facts of one case to another. And with all due respect to Mr Hemi’s submissions on the cases, and which I discussed with him, his distinctions are somewhat fine. In addition – and as he acknowledged – he referred only to the quality of the driving in seeking to distinguish the other cases. There was no reference to the consequences in those cases compared with the consequences in this.
[1] R v Edgecombe HC NWP, CRI 2006-043-3868, Baragwanath J, 23 October 2007
[2] R v Rutene HC ROT, CRI 2006-069-1183, Winkelmann J, 26 September 2006
[3] R v Prescott HC AK, CRI 2004-004-19706, Allan J, 15 July 2005
[4] R v Smith HC AK, CRI 2005-057-675, Baragwanath J, 4 November 2005
[5] R v MacSwain CA37/05, 26 May 2005
[6] R v GrantCA240/02, 11 December 2002
[30] Reference may also be made, but also without comment, to Court of Appeal cases called Skerett[7] and Grey[8] and two other High Court cases that I have had regard to called Peneha[9] and Tu[10].
[7] R v Skerrett CA236/86, 9 December 1986
[8] R v Grey (1992) 8 CRNZ 523 (CA)
[9] R v Peneha HC WGN, CRI 2006-078-872, Gendall J, 1 August 2006
[10] R v Tu HC GIS, S3/2001, Laurenson J, 21 February 2001
[31] The Crown’s starting point is not too high. What you deliberately did was put at serious risk the lives of four people, as well as your own life. As a result you caused the deaths of two people and serious injuries to two others. I fix the starting point at 8 years imprisonment for manslaughter but I do not intend to increase that for the other two offences, which is something I was bound to consider.
Personal circumstances
[32] Mr Kumar I now consider your personal circumstances and history to determine whether there should be any increase or decrease in that 8 year starting point.
[33] Your previous convictions for driving offences, and principally the series of convictions for excessive speed and your response to the fines, do require an increase in this sentence. This is not to penalise you again for those offences. It is a consequence of what the previous convictions – all relating to driving – and your responses disclose in relation to the present offending – and that is an indifference on your part to the law so far as your driving is concerned. I intend to increase the starting point by 3 months to 8 years and 3 months.
[34] In my judgment, there are no circumstances justifying a decrease in the sentence other than your guilty pleas. It was submitted on your behalf that you are also entitled to credit for expressions of remorse and previous good character. As I have already said Mr Kumar, I acknowledge that you have genuine remorse, not simply for yourself but for what you have done to others. But that is fully reflected
in your guilty pleas and the Court of Appeal case of Hessell[11] makes clear that it is taken into account in the credit for the guilty pleas.
[11] R v Hessell CA170/09, 2 October 2009
[35] In relation to previous good character I have read the references on your behalf and I accept them. It is obvious that you can contribute to the community in various ways. But your downfall has been, and is, your driving, alcohol and – certainly on this occasion – cannabis. Against the previous convictions, and apparent indifference to the fact that you have been fined, I cannot give you credit for good character.
[36] You are entitled to a credit of one-third for your guilty pleas, which were entered at the earliest reasonable opportunity. The end result is a sentence on the manslaughter charges, Mr Kumar, of 5 years 6 months imprisonment. You will also be sentenced to imprisonment for 2 years for the offences of causing injury when driving with excess blood alcohol. Those sentences will not be added to the manslaughter sentences.
[37] In addition I will disqualify you from holding or obtaining a driver licence for an effective period of 5 years.
Formal sentence
[38] Mr Kumar, I now need to impose the formal sentence. Would you please stand.
[39] For each of the offences of manslaughter you are sentenced to imprisonment for 5 years and 6 months. In relation to that sentence I should note that the Crown expressly did not seek a minimum period of imprisonment and I do not intend to impose one.
[40] On the two charges of causing injury when driving with excess blood alcohol you are sentenced to imprisonment for 2 years. These sentences are to be served
concurrently with the manslaughter sentences, so the total effective sentence is 5 years and 6 months.
[41] You are disqualified from holding or obtaining a driver licence for a period of
5 years, and that disqualification commences on your release from prison.
[42] Stand down Mr Kumar.
Peter Woodhouse J
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