R v M HC Gisborne CRI 2007-016-102

[2007] NZHC 1407

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

CRI 2007-016-102

THE QUEEN

v

M
B

Hearing:         7 December 2007

Counsel:         J Reilly for Crown

D D Rishworth for M 
D J Sharp for B 

Judgment:      7 December 2007

SENTENCING REMARKS OF PRIESTLEY J

Solicitors:

Crown Solicitor Gisborne

Rishworth Wall, Gisborne

Burnard Bull, Gisborne

R V M  AND B  HC GIS CRI 2007-016-102  7 December 2007

[1]      Mr  M    and  Mr  B  ,  I  am  to  sentence  you  today  on  various charges to which you pleaded guilty on 29 October.  You have both pleaded guilty to dangerous driving causing death under s 36(1)(b) of the Land Tranport Act 1998. The relevant offending which I will describe in a few minutes took place on 13 July

2006.   Dangerous driving causing death carries a maximum penalty of five years imprisonment or a fine not exceeding $20,000, and mandatory disqualification from holding a driver’s licence for a period of not less than one year.

[2]      You, Mr M  , pleaded guilty to an additional charge under s 36A(1)(a) of the Land Transport Act of operating a motor vehicle in an unauthorised race.

[3]      The offending took place at approximately 9 pm on Centennial Marine Drive in Gisborne.  I am told by counsel that this is a rural road, giving access to a rubbish tip.  It is apparently well known in the Gisborne area as a road upon which people can drive at high speeds or race from time to time.

[4]      The deceased was your partner, Mr M  , Waipa Hundal.  At the time she was sitting in the rear passage seat of your vehicle, and was not wearing a seat belt.

[5]      Before this tragedy both of you were unknown to each other.  You were both driving motor vehicles.  Your vehicle Mr M  , although holding a current warrant of fitness, had three worn tyres, two of which had steel wire strands showing.  There is no evidence, however, that that contributed to the accident.   The major factor causing this tragic death was speed.   I will say more about your relationship with the deceased later on

[6]      It appears your cars met by chance at an intersection.  You then raced south on the roadway for approximately 3 km, at times side by side, at speeds of up to 180 kph to the rubbish tip area.  Mr M   was asked whether he wanted to race back; he replied he did.  Both vehicles then raced back towards Pacific Street, where the race had started.

[7]      Although there is no reference to this in the summary of facts, it is clear the passengers in your respective vehicles, the deceased in Mr M  ’s and a young

woman called Amber James in Mr B  ’s vehicle, to some extent were egging on  their  respective  drivers,  or  certainly  participating  in  the  race  with  some enthusiasm

[8]      On the return race, where again from time to time the vehicles were side by side, Mr M   lost control of his vehicle.  It left the road and rolled a number of times across two fences.  The deceased was thrown out of the vehicle and died at the scene shortly after from injuries she sustained.  The forensic examination suggests at the time the vehicle left the road, or shortly before, its speed was approximately

165 kph.

[9]      Mr B   returned to the scene of the accident.   When stopped by a police patrol Mr M   was located approximately 3 km from the crash scene. Blood analysis taken in hospital from Mr M   showed he had a concentration of

112 milligrams of alcohol to 100 millilitres of blood.  An independent analysis came in with a slightly lower reading of 107.  At the time of the accident this was a level significantly greater than allowed for a driver of his age of 18 years.

[10]     At the time of the accident Mr B   had been disqualified from driving for eight months in February 2006 in the Gisborne District Court.

[11]     Originally  you  were  both  charged  with  manslaughter.    As  a  result  of discussions between counsel, the Crown agreed to accept guilty pleas on the lesser charges of dangerous driving causing death, to which you both pleaded guilty at the first available opportunity.

[12]     One of the tragic aspects of this case is that the deceased was the mother of Mr M  ’s child.  You and the deceased had been living together for approximately four and a half  years.   Your daughter is now three years of  age.   Your living conditions were far from satisfactory.  As I understand it, in July 2006 you and the deceased were both living in your motor vehicle.

[13]     Attempts have been made to locate the deceased’s mother, but they have been unsuccessful because of her transitory lifestyle.  With assistance from the police the

Crown has obtained a victim impact statement from Charlotte Goodnight, the deceased’s cousin.  She has been the caregiver of your daughter Tamlea since she was about five months old and now has full custody and control of that child.  I have no doubt Ms Goodnight is supportive of, and sympathetic to, Mr M  ’s position. In the victim impact statement she says the deceased would visit her daughter most weekends.  She also tells me that since Ms Hundal’s death, you Mr M  , have had weekend contact with your daughter every fortnight.  There is also a younger sister of the deceased called Jayxena, who regards you as her brother, and with whom you have an affectionate relationship.

[14]     I now  turn  to  your  respective  personal  circumstances,  and  also  the  pre- sentence reports.  You Mr M   are now aged 19.  Subsequent to this offending you were convicted of driving with excess blood alcohol, were sentenced to 80 hours of community work and disqualified for six months.   I understand you have completed your 80 hours of community work and the disqualification will expire in March.   You have been co-operative with the probation officer and the police generally.  You have not had a happy past.   You left high school when you were aged 14 years because of violence and truancy, but in recent times you have been in full employment.

[15]     Key factors to your offending have been identified as your alcohol use and your  youth,  both  of  which  make  you  vulnerable  to  poor  decision  making.    A screening assessment has indicated a harmful pattern of alcohol use, but you deny using any illicit drugs.   Your motivation to address your offending behaviour is assessed as high and the probation report is favourable to you and recommends a sentence of home detention.

[16]     With that in mind, a detailed report dated 3 December, as required by the

Sentencing Act, has been prepared for the proposed home detention address of 46

Atkinson Street Gisborne, the home of your mother and her partner, and the address to which you have been bailed since pleading guilty.  Checks have been carried out. There are no impediments to this address being used as the site of home detention. Your mother clearly consents to you being at that address, as does her partner.  A number of terms and conditions would be required which include residence at that

address, on-going counselling at Awhina House Addiction Centre as directed, other counselling or programmes as directed by your probation officer, and no association with any persons nominated by your probation officer.   You are to abstain from alcohol and/or drugs use for the duration of the sentence, and you are to submit to random alcohol and/or drug testing as directed by the probation officer.

[17]     I will return to the home detention aspect later.  It clearly has attractions.  The first is that it gives you the best possible opportunity to rehabilitate yourself on what would probably be regarded as your last chance.  And secondly would enable you to continue in the employment you have.

[18]     Mr B  , who was 20 at the time of the offending is now aged 21.  The probation officer describes you as a “young man who is drifting along in life without a lot of forethought about where his life is headed”.  You have acknowledged both alcohol and cannabis have played a major part in your offending life to date.

[19]     When you pleaded guilty you were remanded in custody.   Since pleading guilty you have been convicted as a result of a jury trial in Gisborne on charges of cultivating cannabis and possession of cannabis for supply.  You will be sentenced on these in the Gisborne District Court on 21 December.  From what your counsel tells me, you fall inside the second category stipulated in R v Terewi [1999] 3 NZLR

62 attracting a two to four years sentence, and possibly towards the lower end, but I

have no knowledge of that.

[20]     You told the Probation Service, although you have previously been in paid employment, you have not been working for some time, and indicated the tragedy has had a major impact.  You are now on medication to overcome anxiety attacks associated with your cannabis use, and with the crash in July 2006.  You have been assessed as presenting a low risk to the community, and of re-offending because of your age and your relatively short list of convictions.

[21]     Unfortunately  neither  of  you  has  a  totally  clear  record.    Mr  M  ’s convictions  relate  to  trespass  and  breaches  of  local  liquor  bans.    Regrettably, Mr B  ’s  previous  convictions  include  excess  blood  alcohol  and  driving

while  disqualified,  the  offence  date  being in  November  2005.    There  is  also  a conviction for bribing or offering to bribe a member or the police, which from the date I take to be part and parcel of your apprehension for driving while disqualified. I note you were sentenced to 200 hours community work and given a final warning on 17 February 2006.  That obviously did not have the desired result.

[22]     I  turn  to  various  aggravating  and  mitigating  features  which  have  been correctly identified by counsel.  I must consider, when getting to a start point, (R v Taueki [2005] 3 NZLR 372) the aggravating features relating to the offence and also the aggravating features relating to you personally.

[23]     Clearly the major aggravating features of the offence are that you were both having a street race and were driving at high speeds.  In respect of street racing, or boy racing as it is called, the need for courts to denounce and deter is unarguable. The aggravating feature relating to you Mr M  , was the excess blood alcohol level when you were driving, and for you Mr B  , was that you were a disqualified driver at the time.

[24]     There is some force in Ms Reilly’s observation that immediately after the accident, you, Mr B   did not show any remorse, which was exhibited in your stance for some time that Amber James was in fact the driver of the vehicle, when you were.  However, you have both displayed remorse since then, and it goes without saying Mr M  , that you are fully aware of the gravity of killing the partner you loved, and taking away a mother from her daughter.  That tragedy will be with you for the rest of your life, and is something you and your whanau will have to live with.

[25]     I need say little about ss 7 and 8:  purposes and principles.  You must be held accountable for the harm you have done to the victim.    With racing of this type denunciation and deterrence are important factors.   This offending resulted in the loss of a human life, and must be regarded as serious and grave.   In imposing sentence I have to observe some consistency with comparable sentences across the board.   For both of you, given your youth and the contents of the pre-sentence

reports, I consider it important to impose the least restrictive outcome permitted by law and to encourage, to the extent I can, your rehabilitation.

[26]     I turn to counsel’s submissions.  I am indebted to counsel for their succinct and focused submissions, and have been assisted by them all.  As was observed by Rodney Hansen J in Khan v Police HC AK   A89/01 24 at [13] dangerous acts of driving resulting in tragic consequences are notoriously difficult from a sentencing judge’s perspective.

[27]     The Crown has helpfully referred me to all the authorities.  In respect of both of you it submits that a range of 18 months to 2½ years is appropriate.  Both of you are entitled to a substantial discount on any sentence I impose to reflect your realistic guilty pleas at the first available opportunity, once the current charge was laid.

[28]     The Crown also urges on me a disqualification period of four years.

[29]     For Mr M   Mr Rishworth, although initially suggesting an end sentence somewhere in the range of home detention to two years, has urged me to impose the maximum home detention sentence available of 12 months.   Were I to impose a sentence of anywhere between 12 months and two years, then Mr M   would be eligible for parole when he has served half of that.  As Mr Rishworth points out, a 12 month sentence of home detention would have to be served in full.  Such a sentence is inevitably onerous, but says Mr Rishworth, there are many positive features which attach to it, and you would be able to benefit from the counselling programmes and general supervision available, and also continue with your employment.

[30]     For Mr B  , Mr Sharp suggests, relying by way of comparison on Khan v Police¸ a custodial sentence of under two years.   Realistically, Mr Sharp accepts that a custodial sentence is inevitable.  A bedevilling factor here is that you will also be subject to a term of imprisonment later this month in the District Court for your drug offending.   Issues of totality will come into play, but these are not matters I can properly consider in sentencing you today.

[31]     There are a number of authorities to which I have been referred, including:

Khan v Police, R v Skerrett CA236/86 9 Dec 1986,  R v Luke HC ROT CRI 2007-

070-3532 19 October 2007, and  R v Hodgson & Yousif HC WN CRI 2006-085-5409

23 October 2007.

[32]     R v Luke involved a sentence for manslaughter.  In many instances it is hard to differentiate between boy racing cases resulting in death where manslaughter is laid as a charge, and where the lesser charge of dangerous driving causing death is laid.   Ultimately that is a matter of prosecutorial discretion.   But there are clear conceptual difficulties, as Ms Reilly responsibly acknowledged, in using manslaughter cases as a sentencing guideline here, quite simply because there is a yawning chasm between a maximum penalty of life imprisonment, and a maximum penalty of five years imprisonment.

[33]     Mr B  , given the aggravating features which I have identified, I think a starting point of three and a half years would be justified.  You are entitled to a discount for your guilty plea, and also a discount for your current remorse.   To encourage your rehabilitation and to ensure the final outcome is not too restrictive, I consider an appropriate sentence for you on the charge you face is one of two years imprisonment, and I sentence you to two years imprisonment accordingly.

[34]     As  a  guide,  but  in  no  way  a  direction  to  the  District  Court  Judge  who sentences you in a fortnight’s time, I indicate that had a sentence already been imposed on you under the Misuse of Drugs Act, I would have directed that my sentence be served concurrently with that hypothetical sentence.    In the circumstances I would not have considered a cumulative sentence.   Thus the sentencing factor with which the District Court Judge will have to grapple, he being totally cognisant of the Misuse of Drugs Act sentence, is that of totality.

[35]     So  far  as  the  mandatory  disqualification  is  concerned  Mr  B  ,  I intend to impose on you in all the circumstances, a period of disqualification of three years and eight months.

[36]     Mr M  , in your case I would have regarded an appropriate starting point to have been one of three years imprisonment.   For your remorse for the tragic consequences which Ms Hundal’s death has had on your life, and also to reflect your guilty plea, I would have been disposed to end up with a sentence of one year and eight months imprisonment.   Certainly the Crown is opposed to my imposing a sentence of home detention.  Were I to impose a sentence of one year eight months imprisonment, you would have been eligible for release after serving 10 months.

[37]     At the moment you are the beneficiary of a Parliamentary oversight.   As Stevens J  observed  in  his  recent  sentencing  notes  which  I  have  discussed  with counsel, R v Lambert HC AK CRI 2005-090-7900 20 November 2007, at [40], a “short-term” sentence for the purposes of s 15A of the Sentencing Act is defined as a sentence of under two years.  There is clearly an anomaly there, since the maximum sentence of home detention which can be imposed under s 15A is one of 12 months.

[38]   In terms of s 15A(b), I would have imposed a short-term sentence of imprisonment on you as currently defined in this particular case.  I do not consider I am being unprincipled or departing in any significant way from the principles of the Sentencing Act by extending to you in your particular circumstances a degree of leniency, to which, once the anomaly is cleared up in a year’s time, you would probably not be entitled.

[39]     I intend to sentence you to the maximum home detention period available of

12 months.  That sentence is to be served at 46 Atkinson Street, Gisborne.  You are to go to that address once you are released from custody here and await the arrival of a probation officer.  You are to reside at that address as directed and to continue in your employment as directed, and attend on-going counselling and such programmes at  Awhina  House  Addiction  Centre  as  directed,  it  being  this  Court’s  clear expectation you are to be given every possible assistance to address your alcoholism. You  are  to  attend  any other  programmes  as  may be  directed.    You  are  not  to associate with any people your probation officer nominates, and throughout this period of home detention you are to abstain from alcohol and drug use and submit to random alcohol and drug testing.

[40]     I set out very clearly, in case the matter goes further, why I have adopted this approach.  Unlike a lot of young men, you have had this appalling past and all its disadvantages to live with.  You are showing some signs of motivation to rehabilitate yourself.  You are only going to do this in a secure and structured environment.  You are only going to get your life back on the rails if you have a large amount of professional support available to you.  In my judgment, 12 months home detention will enable you to get that support you need, whereas being released from jail after

10 months would deny that to you.   Those are the reasons I am extending this leniency to you.

[41]     That sentence of 12 months home detention is imposed on both the counts on which you have been convicted.

[42]     I also impose on you Mr M   an identical disqualification from driving of three years eight months.  In respect of your disqualification, that will take effect at the expiration of your current disqualification in March 2008.

[43]     Finally I raised with Ms Reilly, the issue of whether this is a case where a confiscation  order  should  be  made  in  respect  of  motor  vehicles  under  s  129. Inquiries have been made.  Mr M  ’s vehicle was written off;  Mr B  ’s vehicle was not his, thus no such confiscation order can be made.  If you had owned the vehicles I would have unhesitatingly ordered their confiscation.

[44]     Stand down.

………………………

Priestley J