R v McClutchie
[2013] NZHC 1988
•8 August 2013
IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY
CRI 2012-003-000621 [2013] NZHC 1988
THE QUEEN
v
JORDAN NEPIA McCLUTCHIE
Hearing: 8 August 2013
Counsel: A McRae for Crown
M Starling for Prisoner
Judgment: 8 August 2013
SENTENCING NOTES OF HEATH J
Solicitors:
Crown Solicitor, Timaru
Counsel:M Starling, Christchurch
R v McCLUTCHIE [2013] NZHC 1988 [8 August 2013]
Introduction
[1] Jordan Nepia McCluthie, you appear for sentence today having pleaded guilty to one charge of driving with an excess blood alcohol concentration causing death, two charges of driving with an excess blood alcohol concentration causing injury, and one of unlawfully taking a motor vehicle.
[2] The most serious charge is that of driving with an excess blood alcohol concentration causing death. The maximum penalty for that offence is 10 years imprisonment, a $20,000 fine and disqualification for one year or more. That makes it very plain how serious the offending is.
[3] You entered guilty pleas in this Court on 7 March 2013, following transfer from the District Court. The case was transferred because the Crown intended to charge you with manslaughter. Ultimately, the Crown did not proceed with that charge as a result of your pleas of guilty. You were remanded on bail pending sentence.[1] A sentencing date was set for 3 May 2013. Before that date you breached your bail and absconded. Having been re-arrested, you now appear for sentence.
Summary of facts
[1] R v McClutchie [2013] NZHC 493.
[4] From 24 August 2007, you were an unlicensed driver and forbidden to drive a motor vehicle.
[5] Between 3pm on 26 February 2012 and 12pm on 27 February 2012, a Nissan van was stolen from a business address in Christchurch.
[6] On 3 March 2012 you received a text from Ms Hunt to come and pick her up and take her to Ashburton. You went to her address. She was there with her daughter, Ms Weston. Ms Hunt and Ms Weston are members of your whanau. You
arrived in the stolen motor vehicle and were the sole occupant.
[7] At 5.15pm you went to pick up petrol at Caroline Bay, in Timaru. Following obtaining that petrol, Ms Hunt got into the front passenger seat and you drove away from the forecourt. No attempt was made to pay for the fuel.
[8] You were driving, with Ms Hunt sitting in the passenger seat. Ms Weston was seated beside you. You arrived in Ashburton. You went to a liquor store and purchased alcohol. You then went to Countdown and purchased more alcohol. You then drove to an address in Ashburton to pick up a friend, Rochelle Rimene. After that, you were in the driver’s seat. Ms Hunt was in the passenger’s seat and Ms Weston and Ms Rimene got into the back of the van. There were no seats in the back of the van. That meant that Ms Weston and Ms Rimene were seated on the metal floor.
[9] During the evening the four of you went to a party at which you consumed the alcohol you had purchased. You left at about 11.40pm in the Nissan van, at a time when all four of you were intoxicated. Again, you drove with Ms Hunt in the front, with Ms Rimene and Ms Weston in the back. While seatbelts were available to you and Ms Hunt, neither of you wore them.
[10] You were driving with a bottle of alcohol being passed around. You were seen taking a swig from the bottle before it was passed back to Ms Weston and Ms Rimene.
[11] At 11.50pm you drove the van south-west on Hamptons Road towards Seafield Road. That is a rural shingle road with a speed limit of 100km/h. It turns into a sealed road about 25 metres before Seafield Road. While on that road, you did what have been described as “little skids”. Ms Hunt told you to slow down.
[12] Hamptons Road and Seafield Road meet as a “T” intersection. There are farm paddocks surrounding the road. Visibility was restricted by light rain and the absence of street lighting in the rural area. Ms Weston believed the car was travelling at something between 130 and 140km/h at some point prior to the crash. I am not sure how reliable that estimate is, and I will treat it with some caution. In any event, you were driving fast.
[13] As you approached the intersection, Ms Weston heard Ms Hunt yelling at you to slow down. You drove straight through the intersection onto a grass shoulder without braking. The van hit a raised mound on the grass shoulder. That acted as a ramp and launched the vehicle into the air. The chevron sign was hit in front of a water race. The front of the van then hit the bank on the south side of the race. This caused the front windscreen to fall out. Ms Hunt was ejected into the farm paddock through the front window. The momentum caused the van to flip. It landed on its roof on top of Ms Hunt, crushing her.
[14] You left the scene and walked to an address nearby. You were met by two locals. You told them that your car had broken down and that you needed a lift. They went with you, noticing that you were holding your chest in pain. When they drove off with you they asked you if you had been in a crash and you responded “yes”. They asked if there was anyone else in the car. You answered “no”. It was only when they noticed the van upside down in their carrot field that they went towards it. Ms Weston came from the side of the van, agitated and upset, yelling at you that you had killed her mother.
[15] Emergency services were then called. You, Ms Weston and Ms Rimene were taken to Ashburton Hospital. A blood sample was taken from you. That demonstrated that you had 116mgs of alcohol per 100mls of blood. The legal limit is
80mgs of alcohol per 100mls of blood.
Purposes and principles of sentencing
[16] I am required to have regard to a number of principles in sentencing you. The most important are that I must hold you responsible for the harm that you have done to the victims; the death of Ms Hunt and the injuries to two others. I must try to promote in you a sense of responsibility and acknowledgement of that harm. While I had some concerns about that before I came into Court, I think I now accept from seeing you here, that you do have that acknowledgement.
[17] I must provide for the interests of the victim, denounce the conduct in which you were involved and attempt to deter others from acting in this way. There is also
a need to protect the community from someone who would drive in this way and cause such loss to others.
[18] I must take into account the gravity of the offending, which is emphasised by the resulting death. There is a need for me to provide a sentence consistent with others for similar offending. I also take account of information provided to the Court about the effect on victims. Finally, having said all of that, I am required to impose the least restrictive outcome in the circumstances.
Analysis[2]
[2] In determining sentence, I have had regard, in particular, to Gacitua v R [2013] NZHC 234 and R v Cooksley [2003] 3 All ER 40(Crim App), to which reference is made in Gacitua.
[19] I have had the benefit of submissions both in writing and orally from Mr McRae, for the Crown, and Mr Starling, on your behalf. I do not intend to refer to what each has said in detail. I have taken them into account. This is a case in which I should say clearly to you what I believe should be done and why.
[20] I say at once that a sentence short of imprisonment will not be imposed. You opted to flee rather than to face up to your responsibilities when you entered your pleas of guilty. That, despite the fact that you were given an indulgence of bail at a time when the presiding Judge made it clear that imprisonment was a likely
sentencing outcome.[3] You were not located until 10 July 2013. You made no efforts
to surrender to the Police earlier. Had you done so, at least that would have signalled that your absconding was done as a reaction to the situation in which you found yourself rather than as a deliberate decision to keep away from the sentencing process.
[3] Ibid.
[21] I take the charge of dangerous driving causing death as the lead offence for sentencing purposes. That carries a maximum penalty of 10 years imprisonment. It is inherent that someone has died. By your own admission, through the guilty plea, you caused her death by driving while intoxicated. To put it more bluntly, you killed
her.
[22] Having regard to the circumstances in which the death occurred, in particular the level of your blood alcohol concentration and the injuries to the two passengers, I must assess a suitable starting point by reference to aggravating factors. There are many. You were driving at excessive speed. You disregarded Ms Hunt’s warning to stop. Had you stopped she would have lived.
[23] You were drinking while driving. You were not using a seatbelt. You were driving too fast in the rain and doing skids. You endeavoured to depart the scene without alerting people who lived nearby to the fate of your passengers. Having said that, I acknowledge the confused state you would have been in at the time and I do not place much weight on that.
[24] Having regard to all of those factors, a starting point for sentence of five years is appropriate.
[25] There are also some personal aggravating factors. You have, at the young age of 23 years, accumulated some 49 previous convictions. Many are not relevant to what I have to decide today, but you are at a crossroads. The time in prison needs to be taken to do something about your life, to do programmes and to try to put yourself on the right course when you get out. If you don’t you are likely to spend a good deal of your life in prison and that would be a waste. You obviously have talents and I suspect you are intelligent and understand what is going on.
[26] There have been breaches of bail and Court imposed sanctions. At the time of the offending you were serving sentences of community work and supervision.
[27] Taking account of those factors, the effect on the deceased’s family and the injured victims and allowing for the related offending of unlawfully taking a motor vehicle, I uplift the starting point by three months, to five years three months imprisonment.
[28] I next need to consider what credit should be given for mitigating factors. I am not prepared to give a further allowance for remorse even though I perceive that you are now understanding what has happened and are genuinely expressing a
degree of remorse. However, that is offset to a degree by your conduct in absconding. The extent of remorse will be properly taken into account by the level of credit I give for the guilty pleas.
[29] So far as the guilty pleas are concerned they were entered after the proceeding was transferred to this Court. The circumstances in which that occurred lead me to view the credit at the higher level of the spectrum available. I will give a
20% credit for the guilty pleas. Rounding that leaves the end sentence as one of four years and three months imprisonment.
[30] As you do not have the means to pay reparation I make no order in that regard.
[31] That leaves the question of disqualification. You are an unlicensed driver but I am required to disqualify you from both holding or obtaining a driver licence. A meaningful period is required to take account of the time you are likely to spend in custody. I impose a disqualification of four years to commence from the date of your release from prison.[4]
[4] Land Transport Act 1998, s 85(1).
[32] You have expressed a wish to be present at Ms Hunt’s unveiling in Masterton on 19 August 2013. I am told that you have saved for a headstone. Whanaungatanga is important. You need to be able to express your sympathies appropriately.
[33] It is not for me, however, to give that permission. It can only be granted by the prison authorities. You have the right to apply for compassionate leave to attend that function. I suggest you do so. You will need to make it plain to the authorities that you have the right motives to do so. They will naturally be concerned about your absconding on a prior occasion. That is something you will need to deal with. Whether or not that leave is granted is for the prison authorities to decide.
Sentence
[34] Mr McCluthie you are sentenced to an efective term of imprisonment of four years and three months. The sentence of four years and three months imprisonment
is imposed on the charges of driving with an excess blood alcohol concentration causing death and injury. On the charge of unlawfully taking a motor vehicle the sentence is one of one year’s imprisonment. Those terms are to be served concurrently.
[35] You are disqualified from holding or obtaining a driver licence for a period of four years, commencing on the date of your release from prison.
[36] Mr McRae informs me that there has not yet been any order with regard to the count of manslaughter in the indictment. The Crown offers no evidence. On that charge you are discharged under s 347 of the Crimes Act 1961. Mr McClutchie, that has the effect of an acquittal on the manslaughter charge.
[37] Stand down.
P R Heath J