R v Makoare

[2020] NZHC 2289

IN THE HIGH COURT OF NEW ZEALAND WHANGANUI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGANUI ROHE

CRI-2020-067-4

[2020] NZHC 2289

THE QUEEN

v

WADE MAKOARE

Hearing:	3 September 2020
Appearances:	C Wilkinson-Smith and H R Hancock for the Crown C P Brosnahan and A Brosnahan for the Defendant
Judgment:	3 September 2020
Reissued:	9 September 2020

SENTENCING OF COOKE J

[1]                 Mr Makoare you have pleaded guilty to one charge of manslaughter1 and five charges of dangerous driving causing injury2 after you caused a deadly crash that killed your six month old son and left a two year old child a tetraplegic.

[2]                 You have never held a driver’s licence but in June 2019 you drove your family from Palmerston North back home to Auckland. The night before the trip you stayed up all night smoking methamphetamine. You smoked more methamphetamine the following morning 13 June, thinking the drug would help you stay awake for the drive home.

1      Crimes Act 1961, ss 156, 160(2)(a), 171 and 177, maximum penalty life imprisonment.

2      Land Transport Act 1998, ss 7 and 36(1)(b), maximum penalty five years’ imprisonment or

$20,000 fine and mandatory minimum one year’s disqualification from driving.

R v MAKOARE [2020] NZHC 2289 [3 September 2020]

[3]                 There were five passengers in your vehicle. With you were your partner, your three year old daughter and six month old infant son. There was also an adult friend and her three year old son. There were more passengers than seatbelts, and due to cramped conditions inside the car you and your partner decided your son would sit on his mother’s lap. Your three year old daughter sat next to you in the front passenger’s seat, restrained in a car seat. Your partner sat behind the driver’s seat with your son on her lap. Your friend and her son were also in the back seat and the child was restrained by a lap belt.

[4]                 At 11.40 am you were driving on State Highway One, between Taihape and Waiouru. It was drizzling and the road was wet from heavy rainfall. You were speeding. Your partner had earlier asked you to slow down which you did, but only for a period.

[5]                 Your car was behind a truck and trailer unit. You sped up, looking to overtake. The road was curved at this point and was coming up to a blind corner. Your partner told you not to pass the truck and to wait for a passing lane, but you ignored her. You began to overtake. Halfway through overtaking you saw an oncoming car coming around the blind corner. The two cars collided head on. You estimate you were travelling at 110–120 kilometres an hour.

[6]                 The oncoming car contained a family of four who were simply heading home to Wellington. The mother was driving, the father was in the front passenger seat and their two daughters aged two and four were in the backseat, restrained in their car seats.

[7]                 It was a serious accident. Your six month old son, Michael, died at the scene. All other passengers were rushed to hospital and received extensive injuries. Your partner received a broken arm. Your adult friend broke her arm and jaw. The two three year olds received minor bruising.

[8]                 The driver of the other car broke her ribs and suffered extensive internal bleeding. The father in the other car fractured his femur and dislocated his hip. Their

two year old daughter is permanently paralysed from the chest down. Their four year old daughter received minor bruising.

[9]                 So not only was your son killed, but a two year old girl is now a tetraplegic. This is truly a tragic case.

Impact of the offending

[10]              You have heard the statements from Daelyn Moenoa-Phillips and Mohammad Najim. We have statements from your own family provided to the Court. The impact on all of them has been devastating, and overwhelming. This will stay with them for the rest of their lives. For Mr Najim and Ms Moenoa-Phillips they had the extensive period when their two year old daughter was in intensive care at Starship Hospital, and she now faces struggles in her life ahead. The impact has been physical, emotional and financial. All they were doing was driving home.

[11]              You will need to carry the responsibility of having killed your son, tragically injured a two year old girl in a way that will likely affect her for the rest of her life, and seriously hurting others.

Personal circumstances

[12]              You are 25 years old. You identify as Ngāti Whatua and Ngāpuhi. You are the pōtiki of your whanau — the youngest of eight children. You were born and raised in Auckland. Your father was a drinker and growing up you remember your mother trying to protect you and your siblings from your father’s harsh discipline. You were raised speaking Te Reo Māori and struggled to adjust at an English speaking school. You had been with your partner for the last eight years and you had two children together. You have had limited education and have never had stable employment but for periods of time worked in scaffolding, landscaping and road works.

[13]              You have a history of offending, although this latest set of offending represents a significant increase in severity. The pre-sentence report assesses you to be at low risk of reoffending. You have several convictions for dishonesty-related offending in the Youth Court, and in the last few years you have obtained charges for speaking

threateningly, possession of an offensive weapons, resisting and assaulting police and breach of intensive supervision conditions.

[14]              In assessing the sentence I begin by assessing the starting point, which is based on the offending itself. I will then further consider you personally, and whether there are discounts from the starting point based on your circumstances.

Starting point

[15]              The Crown submits a collective starting point for all the charges of seven years, six months’ imprisonment is appropriate. Mr Brosnahan submits a total starting point of no more than six years, six months.

[16]              Manslaughter can encompass a wide range of circumstances. In Gacitua the Court of Appeal provided a list of aggravating and mitigating circumstances in cases involving vehicular manslaughter,3 in addition to the aggravating factors provided for in s 9 of the Sentencing Act 2002. That case concerned a charge of reckless driving causing death which carries a lower maximum period of imprisonment but the list of factors has been cited in a number of manslaughter decisions. Here the following factors were present:

(a)Impairment: You consumed methamphetamine the night before, and the morning of this accident, and this was confirmed by analysis of your blood. You also knew that you had been deprived of sleep.

(b)Vulnerability of the victim: You knew that your son was not restrained because there was not enough room in the car to do so. He was vulnerable if any accident occurred.

(c)Aggressive driving: You were then driving in an aggressive manner, at excessive speeds, close to the truck and trailer, and then overtaking on a blind corner. You did this despite your impaired state, and the vulnerable position of your son.

3      Gacitua v R [2013] NZCA 234.

(d)Warnings: You were warned by your partner to slow down, but only did that for a short time. Then before you decided to overtake you were warned not to do so.

(e)Other offending: You were driving without a licence and under the influence of a class A drug. You also had previous convictions for driving whilst forbidden. You were also driving whilst subject to a sentence of intensive supervision for unlicensed driving imposed on 29 November 2018.

(f)Serious injury to one or more victims in addition to death: The collision resulted in a number of serious injuries to the passengers in your car, and the passengers in the oncoming car, the most serious being of course the serious injury to the two year old victim.

[17]              A starting point of six to nine years’ imprisonment is usually adopted in manslaughter cases where death results from reckless driving under the influence of alcohol.4 Both the Crown and defence have referred me to a number of comparable authorities. Of the cases provided I consider three most relevant: Ormsby v R, where an 18 year old driver driving at excess speed whilst over the breath alcohol limit, and notwithstanding warnings from his passengers, where a starting point of six years six months was adopted;5 R v McGrath where a person on a learners’ licence driving at high speed whilst over the breath alcohol limit being pursued by police ultimately crashed into a house killing one person and seriously injuring the other — here in light of the previous convictions for excessive breath alcohol a starting point of seven years five months was adopted;6 and R v Mika where after a night of drinking and smoking cannabis, the defendant drove at 100 kilometres an hour in a 50 kilometre zone on the wrong side of the road despite the requests of his passengers and collided with an oncoming car killing one of his passengers and seriously injuring one of the others.7

4      For example, see R v Thomas [2018] NZHC 819; R v Pora [2015] NZHC 1104; R v Whiu [2007] NZCA 591; Ormsby v R [2013] NZCA 578; R v McGrath [2014] NZHC 1583; R v Mika [2013] NZHC 2357; and R v Murcott [2014] NZHC 971.

5      Ormsby v R, above n 4.

6      R v McGrath, above n 4.

7      R v Mika, above n 4.

He also fled the scene without checking on their condition. A starting point of eight years was adopted with an uplift of one year for previous convictions.

[18]              Comparisons are difficult. Each case turns on its own facts and other cases are only a general guide. The most serious features of your offending here are the fact that you were driving dangerously under the influence of methamphetamine, you knew that your child was unrestrained and you seriously injured another child. You were not intentionally exposing the passengers to the fear of dangerous driving as appears to be the case in Ormsby, or fleeing from the police as in McGrath, and neither did you flee the scene as in Mika. But it did involve very serious dangerous driving whilst under the influence of methamphetamine.

[19]              In the circumstances of your case I adopt a seven year starting point collectively for all the charges.8

Adjustments to the starting point

[20]              I now consider factors personal to you that may result in discounts from the starting point.

[21]              When imposing a sentence with a partly or wholly rehabilitative purpose the Court must take into account personal, whanau, community and cultural background of the offender.9 I have been provided with a cultural report that addresses your background and how that may have contributed to your offending. As the Court of Appeal have recently noted, ingrained systemic poverty resulting from loss of land, language, culture, rangatiratanga, mana and dignity require consideration at sentencing when shown to contribute causatively to the individual’s offending.10

[22]              The report details your upbringing. I have already explained some of it when describing who you are. It demonstrates that social and cultural deprivation have influenced your life in a way that reduces individual culpability. You have lost your

8      That includes the five charges of dangerous driving causing injury.

9      Section 8(i).

10     Zhang v R [2019] NZCA 507 at [159]. See also Solicitor-General v Heta [2018] NZHC, [2019] 2 NZLR 241 at [49].

cultural and societal links to the community. You were introduced to methamphetamine at a young age by one of your sisters. You first tried methamphetamine and cannabis at only eight years old. You struggled at school and were expelled at age 13 for fighting. By your teen years you had left home and were living rough on the streets of south Auckland. By age 15 you were using methamphetamine intravenously.

[23]              Methamphetamine has had a devastating impact on your life. The cultural report writer observes you used it as a coping mechanism for emotional pain and trauma, with your use increasing following the death of your father two years ago. You self-report experiencing suicidal tendencies throughout your life.

[24]              You were born into a community of high deprivation where substance abuse, gangs and violence were the norm. You have lacked social and cultural connections. You were provided with limited opportunities to learn and understand your place in the world as a tāne Māori. This offending will burden you with whakamā for the rest of your life. A discount for these factors is appropriate.

[25]              Sometimes discounts are also provided for youth. A discount for youth recognises the existence of age-related neurological differences between young people and adults,11 and the greater potential for rehabilitation.12 It also recognises the crushing nature of a long sentence that may have a disproportionate effect on a young person.13 The extent to which youth will justify leniency depends, however, on the seriousness of the offending. And at 25 years of age you are not so young that youth justifies a significant discount in of itself. But your age increases your rehabilitation potential, and I take it into account.

[26]              Voluntary consumption of alcohol or drugs cannot be taken into account by way of mitigation, but they engage the sentencing purposes of assisting an offender’s rehabilitation and reintegration.14 Both the pre-sentence report and the cultural report

11     See Rolleston v R [2018] NZCA 611 at [28].

12     See Churchward v R [2011] NZCA 531, (2011) 25 CRNZ 446 at [77].

13     See R v Chankau [2007] NZCA 587 at [26]; and R v Slade [2005] 2 NZLR 526, (2005) 21 CRNZ 600 (CA) at [43].

14     See Sentencing Act 2002, s 9(3); and Zhang v R, above n 10, at [145].

detail your rehabilitation potential. You have expressed a desire to overcome your addiction, not only for yourself but to help others in the same circumstances. You say it is your main goal in your time in prison. A discount to reflect these factors, which explain, but do not excuse why you are here, is appropriate.

[27]              I think it best to apply a global discount to acknowledge addiction and rehabilitation potential as well as the factors that reflect diminished culpability as referred to in the cultural report. I assess a total discount of 20 per cent as appropriate for these factors.

Remorse

[28]              Tangible evidence of genuine remorse may justify a small discount in the range of five to eight per cent.15 You have displayed some insight into the cause and impact of your offending. Initially you attempted to shift blame for your actions when first placed in custody, but you later volunteered to participate in restorative justice with your partner’s family. I consider a discount of five per cent appropriate in the circumstances.

Guilty plea discount

[29]You are entitled to a full 25 per cent discount for the early entry of guilty plea.

Result

[30]This brings the end sentence down to three years, six months’ imprisonment.

Minimum period of imprisonment

[31]              The Crown suggests a minimum period of imprisonment of two to three years’, or approximately half the end sentence, is appropriate to sufficiently address the sentencing purposes of denunciation, deterrence and protection of the community.

15     See for example McArthur v R [2013] NZCA 600 at [13]–[14] and Rowles v R [2016] NZCA 208 at [18].

[32]              Mr Brosnahan submits that such an imposition is not required in the circumstances, and notes that a minimum period of imprisonment would delay your ability to undergo appropriate rehabilitation programmes in prison. I agree that a minimum term would interfere rather than enhance the relevant sentencing principles, especially given that you are not assessed as a high risk of reoffending. The significant sentence itself satisfies the principles of denunciation, deterrence and accountability.

Disqualification

[33]              The question of disqualification is unusual given that the charge itself involves a mandatory disqualification of one year or more, and in addition you are already forbidden from driving until you obtain a licence. It nevertheless seems to me to be appropriate to disqualify you from driving for at least one year following your sentence end date. So I disqualify you for four years and six months.

[34]              Mr Makaore for the manslaughter of your son I sentence you to three years six month’ imprisonment. On each of the five charges of dangerous driving causing injury I sentence you to one years’ imprisonment each, with each of those periods served concurrently meaning that your total sentence remains three years six months’ imprisonment. You are also to be disqualified from driving for four years and six months.

Cooke J

Solicitors:

Crown Solicitors, Whanganui C P Brosnahan, Whanganui