R v Millar
[2018] NZHC 625
•9 April 2018
IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE
CRI-2017-002-000317 [2018] NZHC 625
THE QUEEN v
SCOTT DAVID MILLAR
Hearing: 9 April 2018 Appearances:
R D Smith for the Crown
R D Checketts for the Defendant
Judgment:
9 April 2018
SENTENCING REMARKS OF NATION J
[1]Scott Millar, you can remain seated while I go through my remarks.
[2] You have read the victim impact statement from the Sharma family and today you heard it being read out and you saw Mr Sharma standing there as that happened. For the Sharma family, life stopped when they heard that, because of your actions, their son and brother had been killed. They struggle with that loss every day. No sentence this Court can impose can take away or even reduce their grief.
[3] You know you face a sentence of imprisonment. Unlike Ravineel, a time will come when you have the opportunity to rebuild your life. A time will eventually come when you are likely to be able to drive a vehicle. You will be older then. If you ever think of driving aggressively or too fast or after you have been drinking, remember what happened on 10 August 2017. Think of the family of your friend who were
R v MILLAR [2018] NZHC 625 [9 April 2018]
unable to sit down at their dinner table as a family because they could not bear the sight of an empty chair. You owe it to them to make something of your life after your prison sentence finishes, and to make sure that what you did can never happen again. You are fortunate that you have the love and support of your family and others in the community, including your employer, who will help you get through this. With your upbringing, you have the character and basic values you need to come out of this a stronger person. Do not let prison mark you for life.
[4] In 2011, Parliament increased the maximum sentence for dangerous or reckless driving causing death from five years’ imprisonment to 10 years as part of a package of reforms intended to promote road safety and to indicate to the Courts that Parliament and society expected to see stronger penalties for dangerous or reckless driving causing death.
[5] Before that penalty was increased, the Court of Appeal said that the reason for charging manslaughter in driving cases is because the appropriate penalty should exceed the maximum provided for in Land Transport Act 1998 offences, such as reckless driving causing death.1 It was appropriate that you were charged with manslaughter and that you have pleaded guilty to that charge.
[6] As a result of the injuries caused to Hayden Crawley, you have pleaded guilty to the charge of reckless driving causing injury for which the maximum penalty is five years’ imprisonment, but you have also pleaded guilty to a charge of manslaughter for which a maximum potential penalty is life imprisonment.
[7] On Thursday 10 August 2017, you were with a group of other young men for a barbecue after work. A large amount of alcohol was consumed in a short time. At least once, and perhaps twice, you knelt and consumed alcohol from a road-cone, as others poured alcohol into it.
[8] At about 11.45 pm, Mr Sharma and Mr Crawley, a young man who you had met just recently, went to leave. You offered Mr Crawley a lift home in your vehicle. He accepted, believing you would be driving him to where he lived, approximately
1 R v Fallowfield [1996] 3 NZLR 657.
one kilometre away. Mr Sharma also lived in Alexandra where the gathering had taken place. It is apparent from all the material that has been put before me that Ravineel Sharma was your good friend.
[9] You should never have been driving. Some four hours after the crash, you were found to have 142 milligrams of alcohol to 100 millilitres of blood. As a driver under the age of 20, you were subject to a zero-alcohol limit. The reading was approaching three times the recently lowered alcohol limit for an adult driver. The summary of facts says you were described by others at that point as being noticeably intoxicated, too drunk to drive and six out of 10 on a scale of intoxication. It is part of this tragedy that no one there told you “don’t drive”.
[10] Instead of taking Mr Crawley to his home, you drove off on a totally unnecessary joy-ride. Presumably you thought it would be fun.
[11] Leaving Alexandra, you approached a T-intersection in a 50 kilometres per hour area. You turned the vehicle to the left and slid it through the intersection, colliding with the opposite gutter and jumping the vehicle onto the footpath. Your speed was estimated, by a member of the public who saw it, as being between 80 to 120 kilometres per hour prior to the slide. The concrete gutter was gouged by the front wheel of your vehicle. The wheel rim was damaged but the tyre did not deflate. The vehicle stopped momentarily but you did not get out and check the damage. You sped off, still in a 50 kilometres per hour area, at a speed in excess of 100 kilometres per hour.
[12] As you approached the open road section of Dunstan Road, travelling north out of Alexandra towards Cromwell, both Mr Crawley and Mr Sharma asked you to slow down. You did not. On the open road, when Mr Crawley asked you what speed you were travelling, you said it was “off the clock”. His observation was that you were travelling at more than 180 kilometres per hour. He asked you to slow down but you did not. You do not think your vehicle could have reached that speed. Although the pre-sentence report says you cannot believe that you would not have carried on driving at speed if your passengers had told you to slow down, it is clear from the summary of facts that your passengers did tell you to slow down and you did not do
so. In his submissions, Mr Checketts says you accept the witness’s statement in this regard.
[13] After travelling about three kilometres, you turned right into another road, in a manoeuvre which Mr Crawley describes as a drift. He expected you to crash again.
[14] Near the Alexandra airport, it seems you performed donuts on a large asphalt area and then drove to a muddy area where you again spun the vehicle using the handbrake before travelling along Coates Road back towards Dunstan Road which you had been on earlier. It was a winding section of road with trees on either side and grit on it during the winter. You drove at speed down that road then leant hard to the right before momentarily pulling on the handbrake, consistent with you attempting to put the vehicle into another drift. This caused the vehicle to slide out of its lane, first to the right lane then returning to the left, before going off the roadway and down a steep bank where the vehicle rolled and the roof collided with a large tree. Through the impact of the collapsed car roof, Mr Sharma died at the scene almost immediately from severe head and neck injuries. You received serious head injuries. Mr Crawley was also injured but managed to get out of the vehicle and went for help.
[15] It seems, from what you told the probation officer, that you have difficulty accepting that you did something which caused the vehicle to drift but you accept the summary of facts. It makes it clear this is what happened. In his submissions, Mr Checketts said that it was clear, from the forensic investigation by the Police, that you skidded off the road in a drift immediately before the collision with the trees. He says that your speed at the point you lost control prior to leaving the road was 89 kilometres per hour, whereas the critical curve speed for the corner was 80 kilometres per hour. It is perhaps consistent with the summary of facts that it was not speed alone which caused the vehicle to leave the road.
[16] With the way you drove your car, it was effectively a lethal weapon. You drove as though you did not care what risks there were for your passengers or anyone else who might have been in your path that night. I have read the numerous references that have been put before me. They tell me that, if only you had been able to stop and think about what you were doing, perhaps if someone else had said firmly to you “don’t do
this”, you might have made different choices. But no one was able to exercise that influence over you. You made all the wrong choices and now you and everyone else have to face the consequences.
[17] The Sentencing Act 2002 sets out the purposes of sentencing which I can consider. In your case, the most important is to hold you accountable for the harm you have done to Mr Crawley, Mr Sharma and to Mr Sharma’s family, who are all victims of your offending. I am trying to make sure you have a sense of responsibility for and an acknowledgement of that harm. The material that Mr Checketts has put before me indicates you do take responsibility for that harm and will have to live with that forever.
[18] I need to make it clear how seriously Parliament and the Courts regard conduct like yours and I need to impose a sentence which will deter you or other people from committing the same sort of offence.
[19] Under the Sentencing Act, I should arrive at a sentence which is consistent with sentences that have been imposed for similar offenders, committing similar offences in similar circumstances.2 I must take into account the seriousness of this type of offence in comparison with other types of offences, as indicated by the maximum penalties prescribed for the offences.3 And, in that regard, it is significant that you were charged with and have pleaded guilty to manslaughter where the maximum sentence is much greater than for reckless driving causing death.
[20] In sentencing you, I first have to arrive at a starting point having regard to the seriousness or culpability of your offending.
[21] There is really nothing that can be said that mitigates just how bad this driving was.
[22]The aggravating features are:
2 Sentencing Act 2002, s 8(e).
3 Sentencing Act 2002, s 8(b).
· your deciding unilaterally to take these passengers off with you when they were expecting you to go straight to Mr Crawley’s home just a kilometre away;
· your consumption of alcohol;
· your grossly excessive speed and/or showing off in ways that were extremely dangerous and deliberate, and I accept the submission made by the Crown that this was an instance of prolonged bad driving; and
· your continuing to drive dangerously and recklessly after an initial crash where your vehicle was out of control and hit the curb.
[23] The Crown and your counsel Mr Checketts submit that, having regard to other sentences, a starting point of six to six and a half years would be appropriate. I consider the upper limit of that range could be higher. In Gacitua, the case you have heard the lawyers refer to, in 2013, the Court of Appeal referred to a number of previous manslaughter cases in which alcohol was an aggravating factor and said they indicated a starting point of between six years and six and a half years was appropriate but, where two deaths had ensued, a starting point of between eight years and eight and a half years was adopted.4
[24] This is an “especially serious case”, as that term was used in Gacitua. Although one person has died, Mr Crawley was also injured so you are being sentenced on two charges. The aggravating features of your offending went beyond the fact that you drove with such a high alcohol level. When the Court of Appeal referred to those starting points having been adopted, they referred to a number of cases involving sentences imposed between 8 June 2010 and 8 December 2011. As I noted in a question I put to Mr Smith for the Crown, in none of those earlier cases did the Court have regard to the significant increase in the penalty for dangerous or reckless driving causing death. The Crown however accept that, having considered sentences that have been imposed since then, the guideline referred to in Gacitua of six to six and a half years remains appropriate, and I am not going to depart from that.
4 Gacitua v R [2013] NZCA 234 at [44].
[25] I remind myself that the charge to which you have pleaded guilty is manslaughter. No one suggests you intended to cause Mr Sharma’s death. It is not suggested that you consciously thought he might die as a result of what you were doing but recklessly carried on driving as you did in a way that caused his death.
[26] I adopt a starting point at the top of the range suggested by the Crown of six and a half years.
[27] I must next consider whether there are any aggravating or mitigating circumstances relating to you personally that require an adjustment to that starting point. It has been suggested that I might consider the previous driving offence, for which you were diverted, should be treated as an aggravating feature. Fortunately for you, I am not going to do that, although it means that you do not get the credit you might have as if you had absolutely no previous convictions.
[28] Significantly, these events happened when you and, I note, your passengers were 19. You were an apprentice builder. But for the one matter which I will refer to later, you had not been in trouble before. You had the potential to do well in life. In this regard, I have been much assisted by the detailed information which Mr Checketts made available to me through his submissions, information as to your personal and family background. The letters I have read and the information from your secondary school make it clear that you were regarded by your family and by friends in a wider but close community as a decent young man. I particularly noted that, at the end of year 13 at secondary school, you received the Tai Poutini Award which was for someone who displayed a high level of caring for others around them, as well as a high level of personal skill and motivation in the subject of outdoor education. Your employer at work trusted you to drive company vehicles and described you as polite, courteous and respectful towards the company’s customers and subcontractors.
[29]You cannot however be dealt with as if this was your first driving offence.
[30] In November 2016, your car was involved in a crash on the Otago Peninsula, where it left the road, rolled several times and ended up approximately 100 metres down a bank. You were located around 10.30 am at the scene of the crash. You told
the Police you remembered being in Dunedin the previous night and having a few beers but could not remember driving. A blood sample taken at midday after the crash returned an alcohol reading of 22 milligrams per litre. You were hospitalised for five days with bruising to the brain. You received diversion on a charge of careless use of a motor vehicle. To receive diversion, you had to acknowledge to the Police that you had committed that offence.
[31] A condition of the diversion was that you undertake a defensive driving course, which you did. You must have put that incident, the benefit of diversion and what you should have learnt from the defensive driving course completely out of your mind when you drove as you did on 10 August 2017.
[32] Consistent with the Sentencing Act, I take into account your relative youth when all this occurred. As I said, you were just over 19. Courts recognise that neurologically, at the age of 19, people do not have the same ability to exercise the maturity and judgment that comes as they move into their 20s and are older. What happened was all about your exercising terrible judgment and making disastrous choices, for yourself but, so sadly, also for others.
[33] Courts have also recognised that, with a person of your age, it is important not to impose a sentence which is so crushing as to increase the risk of your being involved in further criminal offending at the end of your sentence. One of the purposes of sentencing should be to assist in your rehabilitation and your eventual reintegration back into the community when your sentence is finished. I should not impose a sentence which is so long that it makes this more difficult for you.
[34] I need to recognise that, because of your youth and with the support you have from family and others, there is a greater potential for you to avoid a repetition of this offending.5
[35] In this regard, Mr Checketts has drawn my attention to comments made by the Department of Corrections to the current Minister of Justice as to the particular challenges which young people can face if sentenced to imprisonment. I am also
5 See comments of the Court of Appeal in Churchward v R [2001] NZCA 531 at [77].
conscious of the comments which the Minister has made as to his wish to see a reduction in the number of people in our prisons and a greater emphasis on alternative sentences which are more likely to avoid further offending in the future. In this Court, however, I am obliged to recognise what the law requires of me through existing legislation and such guidance as has been given in this area by the Court of Appeal.
[36] The Court of Appeal has said that the rationale for a youth-related discount has to be balanced with the need to denounce and deter offending of this kind. The scope to allow a discount for youth will often be limited because the very factors that can lead young people to offending like this can also cause concerns about public safety.6 The Court of Appeal has said that, while it is regrettable that young men of unblemished character and obvious potential can face lengthy prison terms, “the public interest in discouraging dangerous and grossly irresponsible driving must prevail”.7 It said that having regard to the fact that Parliament had increased the sanction for this kind of offending.
[37] I take into account as mitigation the fact you were seriously injured as a result of the same crash.8 You suffered serious head injuries. On admission to Dunedin Hospital, you were in intensive care and placed in an induced coma. You spent three weeks in hospital before being discharged. I am pleased though that your ACC report indicates that, by the end of February 2018, you had made a full recovery from the traumatic brain injuries you experienced in this crash.
[38] Mr Checketts has emphasised the remorse you have for what happened. The Sharma family described their hurt that no one from your family attended their service for Ravineel, after Ravineel’s father had contacted your family and then received only a text message in reply the next day. At that point, you were still in intensive care. With the material that has been put before me, I am satisfied that the Millar family did not mean, in any way, to be uncaring and that they have kept the Sharma family in their thoughts and prayers throughout the time that both families have had to come to terms with what happened.
6 Richards v R [2017] NZCA 232 at [39].
7 Richards v R, above n 6, at [40].
8 A mitigating feature identified in the UK and R v Cooksley [2003] EWCA Crim 996; followed by the Court of Appeal in Gacitua v R, above n 3, at [26]; R v Richardson [2007] 2 All ER 601.
[39] The Crown has acknowledged your willingness to attend restorative justice with Mr Sharma’s family and that you should be given credit for this, even though, through no fault of yours, such a meeting has not taken place. The potential for a restorative justice meeting is now available almost as a matter of course for all defendants. It is thus easy for a defendant to say they would be willing to attend such a meeting and to seek some credit for this. So, of itself, such willingness may not be a real indication of genuine and meaningful remorse. I am however satisfied that, in your case Mr Millar, you do have genuine feelings of remorse and those feelings were there even before you had pleaded guilty to these charges and knew what the consequences would be. The ACC report referred to your participating in a number of sessions with an occupational therapist and your repeatedly communicating your deep regret that your actions had caused the death of your friend. You voluntarily engaged in personal and alcohol counselling. Mr Checketts said that, as soon as you saw the victim impact report and the Sharma family’s mention of the significant costs they had incurred through Ravineel’s death, you began, and it is you and your family, began arranging funds to pay out-of-pocket expenses incurred by the family. I am told now that, with the help of your family, you are to make a significant reparation payment of $20,000 to the Sharma family. Today, Mr Smith for the Crown has confirmed that, although it has been with some angst, the Sharma family have resolved to accept that and acknowledge it as a payment on account of the costs they have incurred and as a payment intended as reparation.
[40] If prison authorities and restorative justice services are satisfied that a restorative justice meeting with Mr Sharma’s family could be beneficial for them, they should try and set up a restorative justice meeting. Whether or not Mr Sharma’s family wish to participate will be entirely for them. It may be that perhaps, when their Hindu year of mourning has finished and they have been back to Fiji, they might be open to such a meeting. So much will depend on your attitude but there is evidence that, carefully managed, such a meeting might help them to come to terms with their loss.
[41] Your counsel submitted that you should receive a credit of 20 per cent for your personal circumstances, including remorse and youth, and for your not having previous convictions, a separate five per cent credit for the reparation that you are able to make and a 25 per cent credit for early guilty pleas.
[42] The Crown suggested, anticipating that a reparation payment would be made, that the discount for personal mitigating features and the guilty plea should be 35 per cent, with the credit for a guilty plea being just 20 per cent given the compelling nature of the Crown case against you.
[43] The offer by you and your family to pay $20,000 is significant, although I acknowledge that, with the loss of wages and the cost to the family of having to return to Fiji for the final stage of their mourning, in accordance with their Hindu faith, the costs they have suffered as a result of Ravineel’s death have been significantly more than this. I also acknowledge the difficulty they would have had in accepting the reparation payment because of the way no payment can compensate or make up for the fact they have lost their much loved son. But, the credit I give for this payment of reparation, together with credit for your remorse, your youth and your good character, despite the earlier driving offence for which you received diversion, is 25 per cent. That means that, on a starting point sentence of six and a half years, the adjusted starting point I arrive at is approximately four years and 10 months. You are then entitled to a further discount for your guilty pleas.
[44] I accept that they were entered at an early stage and you should be given significant credit for those guilty pleas, particularly so when, because you had no memory of the events immediately leading up to the crash, you may have had difficulty accepting what the objective forensic evidence and the statements from witnesses proved as to how this crash occurred. And, I would say you have been particularly well served by your counsel in being able to come to terms with the reality of what happened. As apparent from the summary of facts, the evidence against you was however overwhelming. The discount I allow for your guilty pleas is 20 per cent so that the end sentence I arrive at is approximately three years and 10 months’ imprisonment.
[45] Now, because that sentence involves you receiving a significant credit for the fact that a payment of $20,000 is being made to the Sharma family, I am going to briefly adjourn this hearing so that payment can be made and the Crown can confirm that it is accepted that payment is made. So, at this stage Mr Millar, I am going to adjourn the sentencing. You may stand down. The Court will reconvene in 15 minutes
when I will formally pass sentence on you, after advice as to what has happened over reparation.
[Brief adjournment]
[46] Mr Millar, your counsel, Mr Checketts, has given the Court an undertaking that he will be paying the $20,000 reparation to the Court for the Sharma family tomorrow so I am sentencing you on that basis.
[47] On the charge of manslaughter, you are sentenced to three years and 10 months’ imprisonment.
[48] On the charge of reckless driving causing injury, you are sentenced to two years’ imprisonment, concurrent with the sentence for manslaughter.
[49] On both charges, you are disqualified from driving for five years. You are thus disqualified from driving for five years from today.
[50]You are ordered to pay $20,000 as reparation to the family of Ravineel Sharma.
[51]Mr Millar, you may stand down.
Solicitors:
R P Bates, Crown Solicitor, Dunedin
Checketts McKay Law Limited, Alexandra.
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