R v Martin HC New Plymouth CRI 2009-043-4845

[2010] NZHC 646

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI-2009-043-4845

QUEEN

v

JORDAN THOMAS MARTIN

Hearing:         29 April 2010

Appearances: J Marinovich for Crown

T Sutcliffe for Offender

Judgment:      29 April 2010

Sentence imposed:     Manslaughter

Three years and ten months’ imprisonment

Disqualified from driving for five years.

SENTENCING NOTES OF ASHER J

Solicitors:

J   Marinovich,  Auld  Brewer  Mazengarb  &   McEwen,  PO  Box  738,  New  Plymouth  4340

(justin[email protected] )

T Sutcliffe, Barrister, Hamilton ([email protected] )

R V MARTIN HC NWP CRI-2009-043-4845  29 April 2010

[1]      Jordan Thomas Martin, you appear for sentence today having pleaded guilty to one count of manslaughter caused by an unlawful act, namely dangerous driving. The maximum penalty for this offence is life imprisonment.

The facts

[2]      The circumstances of your offending are that on the afternoon of Sunday,

17 May 2009,  you  had  been  drinking  spirits  with  friends  and  associates  in Inglewood.   When the alcohol ran out you went to a local supermarket with your friends and purchased some more.  You then separated from that group of friends.

[3]      At about 8:30 pm that night you and another went to a house in Inglewood and persuaded some occupants to go for a drive with you to New Plymouth.  You had in your possession the keys to your caregiver’s 1990 Holden Commodore.  You were not meant to have those keys or to be driving the car.  However, the previous night you had, without your caregiver knowing, taken the car and driven it, and you decided to do the same again this night.

[4]      A group of four of you, which included the victim Jaryd Edser, went to where the Holden Commodore was parked.  You unlocked the car and then helped by two of your associates, you pushed it down the street before starting it so as not to alert your caregiver as to what you were doing.  In doing so you hit a parked car.  That should have been an indication as to how out-of-control matters were getting, but it did not deter you.  You got into the car and proceeded to drive through the night to New Plymouth.  Before leaving town you went to the local service station and got a small amount of fuel and some confectionary.  You were at the time the holder of a learner’s licence.

[5]      On leaving the service station you drove through the streets of Inglewood. There was a 50 kph restriction but you drove at speeds of up to 100 kph, and you narrowly avoided hitting the rear of several cars that were parked.  You then drove out onto State Highway 3 and  accelerated.   You proceeded  at speeds  of up  to

180 kph.  You drove erratically, frequently crossing the centre line to drive on the

wrong side of the road.   Your passengers were yelling at you asking you to slow down and stop.  They were scared you were going to crash.

[6]      As you drove the vehicle down the hill towards Upland Road, you passed a vehicle coming the other way, driving your vehicle on the wrong side of the centre line in the opposing passing line.  You then passed another vehicle so closely and at such high speed that the driver of that vehicle likened the pressure wave that struck his car as being similar to that created by a large passing truck.   At this stage the passengers in the vehicle were all yelling at you and asking you to stop, in great fear that you would crash.   You continued on towards Egmont Village.   As you approached  the  gentle  right-hand  bend  where  there  is  a  bridge  just  outside  the village, you were again on the wrong side of the road and travelling at speed.  Still your passengers were yelling at you and asking you to get back on to the right side of the road and to stop driving.

[7]      As you entered onto the bridge you swerved to the left.   You clipped an object as you exited the bridge and lost control of the vehicle.  You slid across the centre line for a considerable distance, impacting head-on with a dirt embankment. The vehicle was massively damaged.  It ended up at right angles to the road facing the centre line on the wrong side of the road.

[8]      All four of the occupants suffered major injuries.  Passers-by pulled the two rear passengers out of the vehicle.  The two in the front were trapped and had to be cut free.   The front seat passenger suffered a collapsed lung, pelvic and femoral fractures, hip dislocation and hand and facial injuries.  The left rear seat passenger suffered abdominal and chest wall bruising and contusions on his right ankle. Tragically the right rear seat passenger, Jaryd Edser, who was not wearing his seat belt at the time, was most severely injured.  He was attended to at the scene but died a short time afterwards from his injuries.

[9]      You suffered very severe head and leg injuries.   While at the hospital a sample  of  your  blood  was  taken  and  you  were  found  to  have  a  proportion  of

75 milligrams of alcohol per 100 millilitres of blood.  This was more than twice the legal limit for a youth, which is 30 milligrams of alcohol per 100 millilitres of blood,

and is just under the limit for adults of 80 milligrams of alcohol per 100 millilitres of blood.

Impact on victims

[10]     I turn to the impact that your driving and the death of Jaryd Edser has caused on  the  victims,  those  who  were  close  to  and  loved  Jaryd.    I acknowledge  the presence in court of Jaryd’s mother, Mrs Edser, and his father, Mr Little.   I also record  that  I  have  received  seven  victim  impact  statements,  statements  from Mrs Edser and Mr Little, Mr Zimmerman, Mrs Edser’s partner and step-father to Jaryd, Christine Bennett, Mr Little’s partner and step-mother to Jaryd.  I also have the statements of Jaryd’s two grandmothers and his uncle.   Mrs Edser read her statement to the court, supported by Mr Zimmerman.

[11]     Jaryd was clearly a remarkable young man who had a great future ahead of him.  He was working as a butcher’s apprentice at the time, but was planning to join the Air Force when he was old enough to do so.  Statements about him refer to his ready smile and likeable personality.  His loved ones are left to face a terrible loss that will be with them for the rest of their lives.   I quote from the statement of Mrs Edser, one of the many moving things she said in court:

I absolutely dread all the important occasions, milestones, birthdays, and Christmases to come, as I have to face them knowing one of the biggest parts of my life has been stolen away from me and we can never again share them together.

Submissions

[12]     The  Crown  has  submitted  that  when  sentencing  you  a  starting  point  of between seven and seven-and-a-half years’ imprisonment is appropriate.  Following a deduction for mitigating factors it is submitted that a final sentence of between three to four years’ imprisonment is appropriate.  Your counsel has submitted that the starting point should be seven years’ imprisonment.  In oral submissions today he suggested  that  the  end  sentence  should  be  in  the  vicinity  of  three  years’ imprisonment.   I also have testimonials supporting you provided by Mr Sutcliffe,

and a plea is made by some, in particular your mother, for you not to be sentenced to prison.

Approach to sentencing

[13]     In sentencing you I have to have regard to the purposes of sentencing as set out in the Sentencing Act 2002.  I need to hold you accountable for the harm that you have done by your actions to the victims.   It is also necessary that the sentence I impose serves to denounce your conduct, and to deter you and others from similar offending.   Very reckless driving of the sort carried out by you, especially when accompanied by drink, is so inherently dangerous that there is a public interest in sentences being imposed that deter others from such conduct.   I have to take into account, of course, the other sentencing purposes and principles, including the need to impose the least restrictive outcome that is appropriate in the circumstances.

[14]     In approaching sentencing I first consider the culpability of the offending itself without considering matters relating to you personally, and I fix a starting point in relation to that offending.  I say by way of background that I have been referred to a very large number of cases by counsel, including R v Jagger,[1]  R v Prescott,[2]  R v Pretty,[3] R v Grant,[4] R v Herewini,[5] R v Edgcombe,[6] R v Smith,[7].  There is, however, no decision that sets out a tariff or sentencing bands to which I must adhere.   A

majority of the decisions to which I have been referred by counsel contain starting points in the vicinity of seven to eight years.  I now turn to assess your culpability.

Culpability of offending

[1] R v Jagger HC Palmerston North CRI-2009-054-3889 2 December 2009

[2] R v Prescott HC Auckland CRI-2004-004-19706 15 July 2005.

[3] R v Pretty CA 277/00 26 October 2000.

[4] R v Grant CA 240/02 11 December 2002.

[5] R v Herewini HC Hamilton CRI-2007-019-10174 14 May 2009.

[6] R v Edgcombe HC New Plymouth CRI-2006-043-3868 23 October 2007.

[7] R v Smith HC Auckland CRI-2005-057-675 4 November 2005.

[15]     There  is  a  leading  decision  called  R  v  Skerrett,[8]where  the  various aggravating factors in manslaughter cases such as this are set out.  It is to be noted that when one considers R v Skerrett, that little has changed over the last 24 years in

what is perceived to be aggravating factors in a case such as this.   Most of the aggravating factors referred to in R v Skerrett are present in your offending.  You had consumed alcohol and were over the limit, you were driving at a grossly excessive speed.  Not only were you driving at an excessive speed but your driving was very bad, swerving, driving on the wrong side of the road, and repeatedly making obvious errors of judgment.  On any consideration your driving was of the most dangerous type, and it was going to take great good luck for you and your passengers to survive the trip to New Plymouth.

[8] R v Skerrett CA 236/86 9 December 1986.

[16]     Tragically you disregarded the pleas of your passengers.  They begged you to stop but you did not do so.   This was not just a momentary lapse of judgment or short piece of bad driving.  It was over quite a period and in defiance of the pleas of your passengers.  And then, of course, the luck ran out.  There was a tragic death. There could have been more.  You could have hit either of those two cars we know you passed in a reckless way.   The damage you have done is not just limited to Jaryd, although, of course, that is by far the most severe.  You caused very severe injury to one of the other passengers, and serious injury to the third.  So in terms of culpability this was very serious offending of its type.

[17]     In relation to the starting point, both counsel have referred me to the Court of Appeal decision in R v Macswain,[9] where a starting point of seven years was fixed. If anything, your driving was worse on this occasion, and the injuries you caused to others appear to be more severe.

[9] R v MacSwain CA 37/05 26 May 2005.

[18]     I have determined that the right starting point for you is seven-and-a-half- years’ imprisonment, and that is the sentence that would be imposed upon you if there were no other mitigating or aggravating matters relating to you personally.

Personal factors

[19]     I turn now to personal factors.   There are no aggravating matters; a minor burglary conviction is not relevant.  There is, of course, the mitigating factor of the

guilty plea, but I deal with that last after I first assess the sentence in relation to all other matters.

[20]     In assessing matters relating to you personally I have the benefit of a pre- sentence report.  It is not very sympathetic to you and indicates doubt as to whether you are truly remorseful.  On the other hand, I have quite a body of material from your mother and others, and helpful submissions from your counsel Mr Sutcliffe, the tenor of which I accept.  Any responses you may have given to the probation officer in a formal situation must be seen in the context that you are still suffering from a severe brain injury, and that this has undoubtedly affected your cognitive powers and ability to communicate.  In the end, the issue of remorse does not, however, carry the sentencing process much further.  It is clear from the recent Court of Appeal decision

in R v Hessell[10] that credit for remorse is incorporated in the credit that is given for a

guilty plea which, as I have said, I will come to at the end of this sentencing process. There is certainly no extraordinary factor of remorse that would warrant a further discount beyond the guilty plea discount.

[10] R v Hessell [2009] NZCA 450, at [24]-[28].

[21]     So, I turn to other matters.  I have read the moving and undoubtedly sincere plea written for you from your mother.  I accept that you had and, indeed, still do have a future as a welder.  However, given the burglary conviction I am unable to give you any specific credit for good character.

[22]     What is a very major factor to be taken into account is your youth.  You were a little under 16½ at the time of the accident.  You were still a young person and in any ordinary events any criminal offending by you would have been dealt with by the Youth Court.  You are only at this court because of the gravity of the charge.  So, you  are  entitled  to  a  significant  discount  for  your  youth.    I  am  aware  that  on occasions judges have expressed caution about giving significant credit for youth in relation to charges of this very serious type.   However, here there is a distinction between a young person who is over the age of 18 and someone such as you who would still normally fall within the Youth Court jurisdiction as a child or young person.

[23]     The discount that is appropriate is a reduction of one-and-a-half years, or approximately 20 per cent.  This would bring your end sentence down to six years’ imprisonment.

[24]     There is not the mitigating factor here as there was in R v Macswain, of you having a disability at the time of the accident.  I do think it appropriate, however, to give some modest recognition for the fact that you are left very injured.   In this regard I have not only your mother’s report but also a very detailed assessment provided to me by your counsel from ABI Rehabilitation.   Your abilities to concentrate and communicate have been diminished, and just how long this will continue for cannot be assessed.  Clearly your brain injury is of a major order.  You also suffered a most severe leg injury which has not yet fully recovered.  However, this discount must be modest and in the end I assess it at two months.

[25]     Before I apply the guilty plea discount I, therefore, assess your sentence as five years and ten months’ imprisonment.  I then must decide on the discount for a guilty plea.  The guidelines are set out in R v Hessell, but it is difficult to apply them exactly in this case because the matter was first called in the Youth Court and then transferred to this court.  It seems that you did enter a guilty plea at the first possible opportunity, after consulting with your counsel, once the matter was transferred to this court.  The Crown does not suggest that the full discount is not appropriate, and I consider that anything less than the full discount would be unfair.  Therefore, you are entitled to a one-third discount, which reduces the sentence to a sentence of three years and ten months’ imprisonment.

[26]     Nothing less than a lengthy period of disqualification is appropriate.  You are disqualified from driving for five years from today’s date.

Conclusion

[27]     Could you stand up please Mr Martin.  It is an obvious thing to say but I have to record that what you did has caused a terrible tragedy.  It was tragic for Jaryd, and it is tragic now for those who loved him.   Nothing that could be done in this

sentencing process can help remedy the pain of the victims.  And, of course, it also leaves your family and those who love you damaged and sad.

......................................

Asher J