R v Maharaj

[2021] NZHC 3511

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI-2019-019-916

[2021] NZHC 3511

THE QUEEN

v

REUBEN WILLIAM MAHARAJ

Hearing:

16 December 2021

Appearances:

R L Mann for the Crown

R Mansfield QC and A O Graham for the defendant

Judgment:

16 December 2021

SENTENCING JUDGMENT OF HARLAND J

Counsel/Solicitors:

Hamilton Legal, Crown Solicitor at Hamilton R Mansfield QC/A Graham, Auckland

R v MAHARAJ [2021] NZHC 3511 [16 December 2021]

Introduction

[1]                  I commence by acknowledging all who are present here today, either in person or attending remotely. Each of you have come to support a person you love or have loved and each of you have come with some expectation about how today will evolve.

[2]                  My task today is to sentence Mr Maharaj. The way I must do this may seem rather artificial or even clinical, but it is a process I must follow. I want you to know that despite this, I understand the very human factors at play here for all the families represented.

[3]                  Because I am sentencing Mr Maharaj, I now address my remarks to him personally.

[4]                  Reuben Maharaj, you appear before the Court for the first time at 34 years of age for sentence, having pleaded guilty to three charges of manslaughter1 and one of dangerous driving causing injury.2 These charges arise from a fatal vehicle collision caused by you which occurred in Hamilton shortly after midnight on 11 November 2018. Three people in the vehicle you hit -Jeremy Kay, Tania Kay and Grace Hill were killed. The driver, Mitchell Kay, was seriously injured. Jeremy and Tania were his parents, and Grace was his girlfriend.

[5]                  The maximum period of imprisonment for the offence of manslaughter is life imprisonment. The maximum penalty for the offence of dangerous driving causing injury is 5 years’ imprisonment or a fine not exceeding $20,000 and a minimum of 12 months disqualification.

[6]I first address what you did.

1      Sections 158, 160(2)(a), 171 and 177, Crimes Act 1961.

2      Section 36(1)(b) and (2), Land Transport Act 1998.

The offending

[7]                  On the evening of 10 November 2018, you were at home in Auckland where you were living with your parents. After a minor argument with one of your parents, you left the address, taking your father’s Toyota Prado SUV without his permission.

[8]                  At about 11.53 pm that evening, your parents contacted the police to report that their vehicle had been taken without permission by you and that they were concerned about your mental state and depression. During that call, your parents confirmed your previous suicide attempt while driving a vehicle and advised that you were a diagnosed schizophrenic but were not on medication for it at the time.

[9]                  Just after midnight, you were driving along State Highway 1 towards Hamilton, going through the roundabout onto Avalon Drive bypass. You were observed by others on the road to be driving aggressively. Approximately 800 metres south of the roundabout, you accelerated and drove with a sudden swerve, crossing the centreline into the oncoming northbound traffic. You collided with a Honda Trax motor vehicle that was being driven by Mitchell Kay, then aged 18, who had just collected his parents and girlfriend from a 21st birthday party.

[10]              An eyewitness described you as appearing to speed up and, at almost the same time, starting to drive on the wrong side of the road at speed. In this fashion you approached the vehicle being driven by Mitchell. He attempted to take evasive action by braking and swerving away from your vehicle. Tragically, this was not enough, and your vehicle collided directly with his. Mitchell’s parents, Jeremy and Tania and his girlfriend Grace suffered multiple injuries and died at the scene. Mitchell was hospitalised, having suffered a cracked vertebra, a fracture to his skull, a broken collar bone and bruised lungs. You also were injured.

Victim impact

[11]              Mr Maharaj, your offending has had devastating effects on the victims’ families and their friends. I have read their statements very carefully and listened to those presented orally today. The loss described by family members is particularly poignant.

They are devastated by the extent of their loss. Their grief will be ongoing for many years and will be especially felt on family occasions where it will be most pronounced.

[12]I first acknowledge the Kay family.

[13]              I especially acknowledge the impact your offending has had on Mitchell Kay who lost his parents and girlfriend on that tragic night. The impact on him has been immense. Not only was he physically injured, but there have been emotional and psychological impacts as well. Although it must be very difficult to do so, he has said he is willing to forgive you for what you have done, provided he can be satisfied that you are truly remorseful and that you get the help you need. I am impressed by the maturity he has displayed, given the extent of his loss and his relative youth.

[14]              I also acknowledge Mitchell’s sister Courtney who lost her parents as well and the parents of Tania and Jeremy. It is clear to me from reading the victim impact statements that that Jeremy and Tania’s families are close, loving community-minded families, supportive of one another and traumatised by what has happened. From the statements, I have gained a picture of who Jeremy and Tania were. They were devoted parents, hard workers and much-loved parents, children, siblings and relatives. They were friends to many.

[15]I next acknowledge Ms Elwood, Grace Hill’s mother.

[16]              Grace was only 16 when she died. Grace was the youngest of her children who she had parented alone since Grace was nine years of age. The tragic circumstance surrounding Grace’s father’s death must make Grace’s death even more difficult for her. I am also impressed that she too, does not express feelings of hate towards you Mr Maharaj. It is also clear from the statements of others that Grace was a much- loved daughter, sister, granddaughter, niece and friend.

[17]              Many others prepared statements, all have assisted me to understand how much the victims of your offending have been affected by it.

Mr Maharaj

[18]              You were 32 years of age at the time of the offending. You are one of four children and have been raised in a loving, caring, community-minded family. You are described by members of your family as a caring, sensitive and kind person.

[19]              Despite some early learning difficulties, you were able to achieve some relative academic success at high school. After high school, you began university studying town planning, after which you completed post-graduate studies and were employed in this field. However, this work proved stressful and, in the end, you left that field of endeavour as your mental health issues developed.

[20]              Sadly, in 2013, at the age of 27 you were first diagnosed with schizophrenia. I want to say to you Mr Maharaj that it is not your fault you suffer from a mental illness. Your illness has interrupted what seemed a promising career. It has debilitated many aspects of your life; however, your diagnosis has subsequently been confirmed by multiple clinicians. It is contended that your mental health disorder has been poorly or under-treated.

[21]              I have been referred to two known occasions prior to the current offending that concern your driving conduct which are relevant.

[22]              On 8 August 2015, you requested mental health services from the North Shore DHB to contact you on your cellphone. When contacted, you advised you were experiencing suicidal thoughts. You reported driving faster than the speed limit the previous night with thoughts of driving into a traffic island. You said that you had driven outside of the road markings due to being angry and frustrated at the voices in your head.

[23]              Another incident occurred on 5 September 2015, when you attempted to commit suicide by driving your vehicle into a concrete wall. You said you did this in response to the voices in your head at the time when you were upset about a situation in your life. You were not taking medication at that time.

[24]              In relation to the offending for which you are before the Court today, your counsel submits that the crash may have been a result of suicidal ideation in the context of untreated schizophrenia or perhaps a depressive disorder. Whether or not this was the case, your mental health issues were clearly a significant, if not the causative factor in relation to the collision which caused the deaths and injury I have referred to. Equally clear is that you require medical care and that such an outcome is essential to ensure there is a low risk of further like offending.

[25]              I have carefully read your letter to me and I have read the letters from members of your family supporting you. Both you and your family express deep sadness, remorse, guilt and disbelief about what has happened. You directly address your remorse for what you did to the victims’ families and you apologise for the grief and heartache you have caused. Your family members also express the same feelings towards the victims’ families.

[26]              It is clear to me from reading the letters that you have a strong, caring family who have tried their best to get help for you when it became evident in 2013 that you were suffering from mental health issues. It is not my task today to assess or form any opinion about the help you did or did not receive, however I can see that the efforts made to support you through these difficult times were considerable.

[27]              Your letter and those of your family have all helped me to understand that before your mental health difficulties arose, you were a functioning, caring, much loved member of your family and community. I accept that there is no reason to have expected before your mental health difficulties arose that you would have been involved in anything like this. Not only are these things important for me to understand in sentencing you, but they are also important for the family and friends of your victims to hear.

[28]              I accept you are genuine in your expression of remorse for what you have done and that although traumatised yourself by what has occurred, you are prepared to receive the help you need. Your family is also desirous and supportive of your need to get help with your mental health issues.

[29]              I will return to assess what help you might need shortly but first I outline the approach I must take in sentencing you.

Approach to sentencing

[30]                  The Crown’s position is that a sentence of imprisonment is necessary in this case together with an order for indefinite disqualification from driving. As well as this, the Crown invites me to order that you be detained in a hospital as a special patient pursuant to s 34(1)(a)(i) of the Criminal Procedure (Mentally Impaired Persons) Act 2003 (CP (MIP) Act) in conjunction with imposing an appropriate term of imprisonment. Your lawyer agrees. The difference between them is the starting point for the term of imprisonment I should adopt and the discounts I should apply for mitigating matters.

[31]              The most important purposes of sentencing in your case are the need to protect the community, to provide for the interests of the victims and to assist in your rehabilitation and reintegration.

[32]              It is useful to consider similar cases before deciding what the starting point for a term of imprisonment ought to be, and counsel both filed very full submissions addressing them, but it is also obvious that each case depends on its own facts as no two cases are exactly the same. I have been helped by counsels’ analyses, but I do not intend to traverse them in detail here. First because the general principles that apply (such as there is no guideline decision for manslaughter) were not in dispute, and second because the cases only provide a general indication of where a starting point might reasonably be fixed. I record that I have had regard to the vehicle manslaughter cases setting out the aggravating and mitigating features of such offending that help to assess a defendant’s culpability and therefore the relevant starting point.3

[33]              The real point of difference in the suggested starting points (10 years for the Crown and 7 years for your lawyer) was because the Crown relied more on the vehicle manslaughter cases, whereas your lawyer submitted that help can be drawn from cases

3      Gacitua v R [2013] NZCA 234 at [25] where the Court of Appeal cited with approval the aggravating features cited by Lord Woolf CJ in R v Cooksley [2013] All ER 40 (Crim App)

where suicidal ideation or mental health issues featured strongly in the offending and therefore should be reflected in the starting point as well as in relation to mitigating matters personal to the offender.4

[34]              In the end, the assessment must reflect the aggravating factors present in the offending, which in your case include your persistent and deliberate course of very bad driving and the deaths of three people and serious injury of another. Although it could be argued that you were driving when you knew you suffered from a medical condition which impaired your driving skills, it is more likely in my view that it was the fact of your mental illness rather than your recognition of it that convinced you to take your parents’ car and drive that evening in the way that you did.

[35]              The assessment must also include the effects on the victims of your offending, which cannot be adequately captured in words and which as best I can, I have already traversed.

[36]              Having regard to the related circumstances in which the four offences were committed, it is appropriate to fix a global starting point because your culpability is the same in respect of all charges.

[37]              In my view, taking these matters into account, it cannot be said that a starting point of 10 years of imprisonment is out of range especially given that three deaths and serious injury to another occurred. In my view a starting point of 7 years is too low to reflect the gravity of this offending even if I take into account your mental health at the time.

[38]I adopt 10 years imprisonment as the starting point.

Personal mitigating matters relevant to you.

[39]              You have no previous convictions and I agree that with appropriate medication and support, it is hoped that you will not offend in a similar way again. Although you do not have any previous convictions, given the existence of the two previous driving

4      R v Ught HC Rotorua CRI-2011-263-073, 21 July 2011. R v Guanzhi Yu [2015] NZHC 89.

R v Skerrett CA236/86. R v Whiu [2007] NZCA 591.

occasions I referred to, I conclude that you do not have a good driving record. A small credit is appropriate, but not that which was sought by your lawyer. I adopt 5 per cent.

[40]              The case law supports a discount to reflect the fact that you were acutely and severely mentally unwell at the time and that this illness was a major contributing factor to your offending. The difference between the lawyers is whether a discount of this nature ought to be in the order of 25 to 30 per cent (your lawyers position) or 10 to 15 per cent (the Crown’s position).5 In my view, based on the case law, a discount of 25 percent is justified.6

[41]              It is also submitted that there should be a further deduction to reflect the time you have spent on EM bail. You were initially remanded in custody on 11 June 2019 but granted EM bail on 19 December 2019. You breached your bail on 5 August 2020 and then were remanded back into custody from 12 October 2020. In total, you spent 10 months subject to very restrictive EM bail conditions. It is suggested that the appropriate reduction should be 5 months imprisonment. The Crown does not disagree and neither do I.

[42]              Then there is your guilty plea. Your counsel submits you should be entitled to a reduction of 20 to 25 per cent which came after a substantial investigation into the availability of a defence of insanity. The Crown submits that 15 per cent is appropriate. I accept that the time it has taken to resolve this matter is not your fault, however it has been stressful for the victims’ families. When the position was clear to you and your lawyer however via the expert reports, you entered guilty pleas to the charges at the earliest opportunity. This is early enough in my view to justify a discount of 20 per cent, which I adopt. I am not satisfied a further deduction however for remorse is warranted.

[43]              All the deductions I have referred to in terms of percentages that in my view are justified. I do so with reference to case law.

5      R v Hyde [2013] NZHC 2586.

6      R v Guanzhi Yu [2015] NZHC 89.

Term of imprisonment

[44]              Taking these matters into account and accepting that the victims of your offending will probably never accept that it is enough, the result is a term of imprisonment of 4 years 5 months.

Disposition as a special patient

[45]              Under s 34 of the Criminal Procedure (Mentally Impaired Persons) Act 2003 (“CP(MIP) Act”) I have the option of sentencing you to a term of imprisonment while also ordering that you be detained in a hospital as a special patient under the Mental Health (Compulsory Assessment and Treatment) Act 1992 (“MH(CAT) Act”).7 I can only impose this type of sentence if I am satisfied on the evidence of one or more health assessors that you are mentally disordered and that you require compulsory treatment or compulsory care either in your own interests or the interests of public safety The focus must be on whether there is a necessary causal connection between the mental impairment and the need for compulsory treatment either in your interests or for the safety of others.8 I am so satisfied in your case.

[46]              The effect of such an order, within the life of the sentence of imprisonment, was outlined by Kos J in these terms in Yu in ordering that the defendant in that case serve her sentence of imprisonment as a special patient in a psychiatric hospital:

That does not mean that you will necessarily serve the whole of the sentence period in a psychiatric hospital, as opposed to prison. Section 47 of the Mental Health (Compulsory Assessment and Treatment) Act 1992 provides that if in the opinion of the Director of Area Mental Health Services, a special patient detained pursuant to section 34(1)(a)(i) is fit to be released back to prison, that course may be taken.

[47]              The short point is that you could also serve a term of imprisonment if I were to order you to be a special patient.

[48]              The most suitable method of dealing you was included in the reports of      Dr Westerlund and Dr Pillai. Both have undertaken risk assessments. Dr Pillai’s report was peer reviewed by Dr Carney on your behalf.

7      Criminal Procedure (Mentally Impaired Persons) Act 2003, s 34(1)(a)(i).

8      R v Schuster [2015] NZHC 2725.

[49]              Dr Westerlund’s opinion is that you pose an extremely high risk not only to yourself but to members of the public who risk getting hurt due to your driving under the influence of your psychotic illness. Dr Westerlund’s view is long term treatment in a special hospital and that without this you are likely to relapse into more serious mental illness, with it, the risk and possibility of reoffending. His recommendation was that you be made a special patient under s 34(1)(a)(i) of the Criminal Procedure (Mentally Impaired Persons) Act 2003. He also considered that when you are due to be released from your prison sentence, you should continue to be subject to an order under the Mental Health (Compulsory Assessment and Treatment) Act 1992 either as an inpatient or under a community compulsory treatment order. So, in his opinion, for you regardless of the end sentence, your mental health status will require you to continue to be overseen by mental health services either inpatient in hospital or under and subject to a community compulsory treatment order.

[50]              Dr Pillai’s opinion is that you pose a serious danger to the health and safety of the others and yourself as a result of what she described as your abnormal state of mind. In her opinion there is ample evidence to suggest that but for your mental illness the offending would not have occurred. She also considers that compulsory supervision of you in treatment in the future by specialist mental health services is required as a significant risk mitigation strategy.

[51]              I acknowledge the helpful analysis by counsel of the two options available to me under s 34(1) of the Criminal Procedure (Mentally Impaired Persons) Act 2003 , however there is no need for me to traverse the option under s 34(1)(b) as counsel agree that on the facts of your case, s34(1)(a) is the most appropriate option.

[52]              Section 34(1)(a) is intended to be used for more serious offences where a deterrence and community protection is likely to be warranted. A term of imprisonment with or without an order to detain the offender in a hospital or in a secure unit is imposed. If you were assessed as no longer requiring treatment during the currency of the prison sentence, you would still have to serve the remainder of the sentence.9

9      Mental Health (Compulsory Assessment and Treatment) Act 1992, s 47.

[53]              The four factors to be considered are the nature of the offence; the circumstances of the offending; your circumstances; and whether the case calls for a sentence requiring deterrence or denunciation or community protection, as opposed to rehabilitation alone:10

(a)The Court in R v Goodlet refers to s 86A of the Sentencing Act as providing guidance as to what will be a serious offence. Manslaughter is clearly a serious offence.

(b)The offending took place in circumstances where you were having problems in your life and following an argument with one of your parents when you wanted to get away. Your parents described you as not very stable mentally at the time of the offending.

(c)As discussed earlier, you do not have a record of similar offending, but you have acted in a similar manner in the past. Your mental disorder is also likely to have had a significant effect on the seriousness of the offending.

(d)Finally, and very clearly, this case calls for community protection as well as rehabilitation. Although your risk of reoffending has been assessed as being low, the risk of harm of any future offending has been assessed as high.

[54]              Having considered all of the matters referred to and the experts’ risk assessments, I am persuaded that the most appropriate course of action is that you be detained in a hospital as a special patient pursuant to s 34(1)(a)(i) in addition to the imposition of a term of imprisonment. Although the Crown sought a minimum period of imprisonment,11 having made the order under s 34(1)(a)(i), I do not consider that that is warranted. I made that comment especially taking into account Dr Pillai’s observations that even after you have been successfully treated, you would require ongoing and significant oversight by the mental health services in the future.

10     R v Goodlet [2011] NZCA 357, [2011] 3 NZLR 783.

11     Section 86 Sentencing Act.

Disqualification

[55]              Finally, the Crown submits that an indefinite period of disqualification from driving is appropriate to protect the public from the risk you pose. I agree.

Result

[56]              Mr Maharaj, on all three charges of manslaughter, I sentence you to a period of four years and five months’ imprisonment. In relation to the change of dangerous driving causing injury, I sentence you to two years’ imprisonment and I also disqualify you indefinitely from holding or obtaining a driver’s licence under s 125(2) of the Sentencing Act. All sentences are to be served concurrently which means at the same time.

[57]              I also order that you be detained in a suitable hospital as a special patient pursuant to s 34(1)(a)(i) of the Criminal Procedure (Mentally Impaired Persons) Act.

Harland J