R v Martin
[2020] NZHC 1542
•2 July 2020
IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY
I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE
CRI-2020-025-000234
[2020] NZHC 1542
THE QUEEN v
RODNEY MARTIN
Hearing: 2 July 2020 Appearances:
R W Donnelly for Crown
F E Guy Kidd QC for Defendant
Judgment:
2 July 2020
SENTENCING NOTES OF DUNNINGHAM J
[1] Mr Martin, you are here for sentence today having pleaded guilty to one charge of reckless driving causing death.
[2] However, before I begin with sentencing, I want to acknowledge the family of Nola Paterson-Barton, her husband Jamie, her children, Sophia, Lucy and Ruby, her twin sister Julie, her mother Hilary, and her mother-in-law Lorna. Thank you all for writing so warmly and passionately about what Nola meant to you. Nothing I can do in sentencing today will bring Nola back nor will it ease the sense of grief that you feel. All I can hope is that through the sentencing process, you have been able to share with the community what Nola meant to you and after this you will be able to get back to your lives and deal with the grief and the loss, that you are suffering.
R v MARTIN [2020] NZHC 1542 [2 July 2020]
[3] Before discussing how I have reached the sentence today, I need to briefly outline the facts of the offending.
[4] The accident occurred at the intersection of Mill Road South and Oteramika Road, which are both major roads in rural Southland. The intersection is recognised as a regular crash site and is controlled by a stop sign requiring traffic on Mill Road South to stop, allowing Oteramika Road traffic right of way. Mill Road South is signposted with three different stop warning signs beginning 250 metres from the intersection. One of the signs is erected on both sides of Mill Road South and is an extremely large road sign that reads “High Crash Site, Stop Ahead”.
[5] At around 6.30 am on 21 November 2019 you were driving your Ford Ranger utility vehicle south on Mill Road South. You know the road and the intersection as you drive it often. As you approached the intersection, another motorist travelling ahead of you stopped at the required point and travelled through the intersection safely.
[6] As you approached the stop sign you applied the accelerator making no attempt to stop and check if the way was clear.
[7] Your victim, Nola Paterson-Barton, was travelling west on Oteramika Road in a Ford Territory vehicle. You proceeded through the intersection and T-boned the victim in her vehicle directly on her driver’s door side, causing her vehicle to be pushed through the intersection, slide along a neighbouring fence line, before coming to rest. She was trapped in her vehicle and although you and members of the public attempted to assist before emergency services arrived, she died at the scene.
[8] When you were spoken to, you acknowledged that you had consciously decided not to stop at the stop sign as you believed you had enough time to follow the vehicle ahead of you through the intersection safety without having to come to a stop and because of the time of the morning.
Sentencing purposes and principles
[9] In sentencing you today I have to have regard to the principles and purposes of the Sentencing Act 2002. The things I particularly need to have regard to today are:
(a)denouncing the conduct in which you were involved;
(b)deterring others from committing the same or similar offending;
(c)holding you accountable for the harm you have done to your victims; but also
(d)the need to impose the least restrictive outcome that is appropriate in the circumstances.
Starting point
[10] The maximum penalty for this offence is 10 years’ imprisonment or a fine not exceeding $20,000. In addition, I have to order that you be disqualified from holding or obtaining a driver licence for one year or more.
[11] In deciding what starting point is appropriate, I have to look at the aggravating and mitigating features of your offending and compare those with other cases where people have been sentenced for similar offending.
[12] I then have to take account of any aggravating or mitigating features relating to you personally which would warrant an uplift or a discount from that sentence. If I reach a sentence of less than two years’ imprisonment, I have to consider whether an electronically monitored sentence is appropriate.
[13] The Crown submits that the following aggravating features are present in this case:
(a)the loss of life, but as Mr Donnelly has explained, more particularly, the resulting harm that this has caused the family and friends of Nola Paterson-Barton;
(b)the nature of the intersection and your knowledge of it;
(c)the fact the need to stop at the intersection was well signposted with large and multiple warning signs, and you would have been familiar with them and yet you chose to drive through the stop sign; and
(d)the fact you made a conscious decision not to stop.
[14] The Crown submissions refer to a decision in Gacitua v R,1 and to cases which apply the principles there, but pointing out that they all have more aggravating features than in your case.2 Having regard to those cases the Crown says a starting point of two years and six months’ imprisonment should be adopted.
[15] Your lawyer says that some of the aggravating features identified by the Crown, are really inherent in the charge itself. She accepts, though, that you were familiar with the intersection and the warning signs that were there. She also acknowledges the devastating impact that your offending has had. She advocates a starting point of two years and three months.
[16] I accept that there are limited aggravating features here. There was no other illegality or deficiency in your driving other than the failure to stop at the intersection which was clearly signalled as requiring this. I also accept, as your lawyer points out, that you assisted the victim until emergency services arrived, but of course, you were obligated to do that.
[17] In my view, this is an offence involving a momentary but dangerous error of judgment resulting in the death of one person, and it warrants a starting point of between two to three years’ imprisonment. However, given the lack of aggravating features, and comparison with the case of Hati v R, which I consider is more serious than your case, I agree that a starting point of 27 months is appropriate.3
[18] In terms of aggravating and mitigating features relating to you, I note that you have two historic vehicle convictions, one for driving with excess breath alcohol in 1997 and one in 1987 for breaching motor vehicle regulations. Given the historic
1 Gacitua v R [2013] NZCA 234.
2 Richards v R [to be inserted].
3 Hati v R [2017] NZHC 687.
nature of those convictions, I accept the Crown’s submission that they do not require an uplift to the sentence.
[19] I also accept that you have numerous good character references and you are a hardworking, well-respected member of the community. You have also served, as your lawyer noted, in the army for 10 years. You are married with three young children of your own and you have worked hard and made sacrifices to get a foothold in your own small farm. I accept that a five per cent discount for good character is warranted.
[20] I turn now to the question of remorse. I have a great deal of material before me which suggests genuine remorse. You have offered to work through the restorative justice process with the family of the deceased. You have written a letter of apology to the family, and we have heard extracts from that today. The references from those who know you say you are devastated and absolutely distraught as a result of this accident. Your wife, who knows you best I imagine, attests to how much this has affected your life and how you are struggling to deal with these issues. The only contrary note in the material before me is in the pre-sentence report where you were described as minimising the extent of the accident and suggesting you were being dealt with too harshly. However, I accept that that is an aberration that your remorse is genuine and, related to this is your offer to pay $10,000 in reparation.
[21] Your lawyer says you are in a position to make immediate payment of that, and I consider it is appropriate. You have also agreed to pay the cost of repairing the damaged farm fence which, again, I consider is appropriate. I know that given your limited financial means, this is a really meaningful way of demonstrating your remorse and your wish to make amends. I would further discount your sentence by seven per cent for remorse and eight per cent for the emotional harm payment.
[22] Both counsel are agreed that you are entitled to the full 25 per cent discount for your guilty plea.
[23] So, applying staggered discounts of 20 per cent and 25 per cent to the starting point of two years and three months’ imprisonment results in a notional sentence of 16 months.
[24] That leads me to the more difficult issue of whether that can be commuted to a sentence of eight months’ home detention or, as your lawyer seeks, whether it should be community detention which the statute says can be for no more than six months in duration.4 Although both lawyers accept an electronically monitored sentence would be appropriate, there are some practical difficulties with this. You cannot serve it in your own home and have to serve it at a friend’s property, 14 kilometres away. It is for this reason, that your lawyer asks for the slightly less onerous sentence of community detention.
[25] The address which has been located, as I have said, is 14 kilometres from your family farm. You will not be able to drive to that address, so will have to cycle, or be driven to and from your property by your wife. As your lawyer explains, this will be a significant additional hardship for you, and your family. In light of this, your lawyer submits that a sentence of community detention of six months duration is the more appropriate sentence. Under that, you would be required to abide a curfew between the hours of 8.00 pm until 6.00 am seven days a week. Your lawyer says that community detention still provides significant deterrence and restriction while lessening the consequential impact on your family.
[26] Before I can sentence you to community detention though, I have to be satisfied that s 69C(1) of the Sentencing Act is met. A requirement of that Act is the sentence of community detention would reduce the likelihood of further offending by restricting the offender’s movements during specified periods (which I accept, is not related to you) or, would achieve one or more of the purposes set out in s 7(1)(a), (b), (e) or (f) of the Sentencing Act. These are the purposes of holding an offender accountable for harm done to the victim and community by the offending, promoting in the offender a sense of responsibility for and acknowledgment of, that harm, denouncing the conduct in which the offender was involved and deterring the offender or other persons from committing the same or similar offences.
[27] Your lawyer considers these principles are adequately met by the imposition of a combined sentence of six months’ community detention, along with
4 Sentencing Act 2002, s 69B(2).
disqualification from driving for two years and a reparation and emotional harm payment. However, she says the advantage of the sentence is that your farming obligations do not conform to periods of “approved absences” for home detention on less than seven days a week and that is why she seeks the more flexible regime of community detention.
[28] Mr Donnelly, however, says that it is insufficient to mark the seriousness of the offending and a deterrent sentence is required.
[29] While I am sympathetic to your position, I consider reducing what would have been an eight month sentence of home detention to a six month sentence of community detention is too significant an adjustment, and would fail to meet the relevant purposes of the Sentencing Act of holding you accountable for the harm done.
[30] I acknowledge you and your family will be detrimentally affected by the sentence, but it is only for eight months and in that time you are going to have to lean on your family and friends to support you and get you through that period.
[31] I have no doubt that your probation officer will approve a liberal work schedule, but it cannot be as liberal as would be permitted under a sentence of community detention.
[32] Finally, I must disqualify you from driving for a minimum of one year. I accept, as your lawyer says, that your remote location and farming responsibilities will make a period of disqualification harder for you than it might be for others. I also accept that you are not, in the normal course, a risk to the public and you are someone who will have learned from this tragic experience. For these reasons, I am satisfied a period of disqualification of two years would be sufficient to meet the purposes and principles of sentencing.
[33] Mr Martin, would you please stand. On the charge of reckless driving causing the death of Nola Paterson-Barton, you are sentenced to eight months’ home detention to be served at [address removed].
[34] You are required to make reparation payments of $10,000 to Jamie Barton at his address and a payment of $1,594.78 to the [name and address removed], the owner of the property whose fence was damaged.
[35] You are disqualified from driving for two years. Six months’ post detention conditions will also apply.
Solicitors:
Preston Russell, Invercargill
F E Guy Kidd QC, Invercargill