R v Munro

[2024] NZHC 151

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CRI-2023-270-000007

[2024] NZHC 151

THE KING

v

KRISJAIN JAMES MUNRO

Appearances:

S A Teki-Clark for Crown

R M Adams S M Price for Prisoner

Sentenced:

12 February 2024

SENTENCING NOTES OF ANDREW J

R v MUNRO [2024] NZHC 151 [12 February 2024]

Introduction

[1]        Tēnā koe Mr Munro, Krisjain, you may remain seated if you wish until I have finished my remarks but that is up to you whether you stand or sit.

[2]        Krisjain, you appear this morning for sentence having pleaded guilty to a charge of manslaughter.1 Your actions resulted in the death of your passenger and friend, Tamamutu Kinita. You are also being sentenced this morning on a charge of reckless driving causing injury2 because your actions resulted in the injury to Romeo Newton.

[3]The charge of manslaughter carries a maximum penalty of life imprisonment.3

[4]        The charge of reckless driving causing injury carries a maximum penalty of five years’ imprisonment, a $20,000 fine and mandatory minimum one year disqualification.4

[5]        It is not an easy task to pass sentence in a case like this Krisjain. The life of a young man was needlessly taken. A young man with a whole future in front of him and nothing I say, of course, can bring him back. But I must pass sentence on you – publicly and before your community. That community includes, importantly of course, the grieving whānāu of Tamamutu and your own grieving family. The Kinita whānāu has, of course, lost a son forever.

[6]        I must mark on behalf of all the seriousness of your offending, the taking of a human life. It is my job today to find a sentence that fits the seriousness of your offence, but at the same time recognises your individual personal circumstances – and in particular here, it is important to recognise your young age.

[7]        The critical issues I have to determine today are firstly, the starting point for the sentence – and you have heard the lawyers make submissions on that – and second, the important issue of to what extent should there be a discount for your personal

1      Crimes Act 1961, ss 160(2)(b), 171, and 177.

2      Land Transport Act 1998, s 36(1)(a).

3      Crimes Act 1961, s 177.

4      Land Transport Act 1998, s 36(2).

circumstances. That will of course then determine the end sentence that I impose on you.

[8]        I am going to begin my comments by addressing the facts of your offending as set out in the Police summary of facts, because of course I must sentence you on that basis.

Relevant facts

[9]        On 17 June 2022, you were driving a Mazda Atenza motor vehicle in and around Mount Maunganui. Also driving a motor vehicle at that time was an associate of yours. The victim, Tamamutu, was a passenger in your vehicle. You had a New Zealand learners driver’s licence and so too, did your associate.

[10]      Your vehicle had an expired registration and recently expired warrant of fitness. Importantly, the left rear tyre was a space saver tyre which has a maximum speed rating of about 80 kilometres per hour.

[11]      Prior to the crash, there is CCTV footage showing that you and another vehicle were racing on Marine Parade. Footage on State Highway 29A shows both vehicles were travelling at excessive speed and weaving in and out of other westbound vehicles. The Crash Investigation Report estimates that your vehicle was being driving between 138 and 141 kilometres per hour.

[12]      You ultimately lost control of your vehicle while travelling around a moderate right-hand bend on State Highway 29A, sending the vehicle into a yaw and leaving the roadway, before crossing the grass verge and hitting a row of shelterbelt trees. The impact of the crash was significant, as indicated by the knocked over tree, extensive vehicle damage, and at least two of the occupants of the vehicle being ejected from the vehicle on impact.

[13]      You and Romeo Newton were transported to Tauranga Hospital with moderate injuries. Romeo was hospitalised due to his injuries. Tamamutu, tragically, died at the scene.

[14]      You had been drinking that evening, and your blood alcohol sample returned a positive result for alcohol of 52.2 milligrams of alcohol per 100 millilitres of blood – though it is estimated that this was significantly higher at the time of the crash. As you are under the age of 20 you are not allowed to drive with alcohol in your system. You had two passengers in your vehicle and drove in breach of the conditions of that licence.

Victim Impact Statements

[15]      I have received and had read to me today a victim impact statement from Tamamutu’s parents.

[16]      That statement is very powerful. The compassion and forgiveness that they have demonstrated towards you is very moving and commendable. They graciously acknowledge that you, too, are grieving the loss of your friend.

Personal circumstances

[17]      In considering what sentence is appropriate, I have had regard to various court documents, including what we lawyers call a provision of advice court report (PAC report). I have also had regard to your s 27 cultural report.

[18]      I note that you are 19 years old and have no previous convictions. You were of course 17 years old at the time of the offending. You are currently living in Te Kuiti with your partner and your very young child. You have been employed as a labourer for approximately the last five months at Gray Construction and I note that you have the opportunity to commence an apprenticeship with that company working in the workshop based in Otorohanga.

[19]      The letter of support from the Ngati Ranginui Social Services notes that you are a rangitahi with great potential and love for those around you. The cultural report notes that you became a father at a very young age, namely 16 years old, and the prospect of becoming a father was very frightening for you. You were still a teenager in high school at that time. That report notes that in the weeks before the offending

you wanted to live life to the fullest because you believed that after the baby was born your life as you knew it would be over forever.

What is the appropriate starting point?

[20]      As you will have heard, the first stage is to set the starting point. That is done by reference to the aggravating and mitigating factors of your offending and to other cases similar to yours. After that I shall consider the second key issue, that of what adjustments need to be made to the starting point to account for your personal circumstances.5

[21]      There is no guideline judgment for manslaughter. That is because manslaughter is recognised as being a crime which may be committed in wide-ranging circumstances.6

[22]      I now address the various submissions made by the parties this morning, and of course submissions were filed in writing and I have read and considered all of the submissions.

[23]      Mr Teki-Clark, on behalf of the Crown, submitted in writing initially that a starting point of between five years and six months’ imprisonment and six years’ should be adopted for the manslaughter conviction. In submissions today he accepted that there should properly be a softening of that five-and-a-half to six years’ position, he suggested by some three months.

[24]      Ms Adams, on your behalf, submitted that there should be a starting point of five years’ imprisonment.

[25]      I have read all of the cases the parties have referred to. This includes the Court of Appeal decision R v Skerrett,7 which refers with approval to the list of motor manslaughter-specific,  aggravating and mitigating factors set out in the  key English

5      Moses v R [2020] 3 NZLR 583, which refers to a two-step methodology; see also R v Edwards

[2022] NZHC 2209 at [16].

6      Everett v R [2019] NZCA 68 at [24].

7      R v Skerrett CA236/86, 9 December 1986, at p12.

Court of Appeal decision known as R v Boswell.8 Subsequent sentencing decisions for motor manslaughter in New Zealand have utilised the list of factors in Skerrett in determining this issue of a starting point.

[26]      Both the Crown and Ms Adams, on your behalf, accept that there are aggravating features in your offending. This includes the consumption of alcohol or drugs, excessive speed, showing off and other offences committed at the time. That includes the fact that you were driving in breach of the conditions of your learners’ licence and that the vehicle’s registration and warrant of fitness had expired. The vehicle was also fitted with an under-inflated space saver tyre. However, I accept Ms Adams’ submissions that you are inexperienced and likely did not have any technical understanding of that issue. Ultimately, of course, and most tragically, your passenger and childhood friend was killed.

[27]      Ms Adams, on your behalf, challenges the Crown’s submission that there was an element of racing or competitive driving, although I note that you wish, responsibly it seems, to take responsibility for what has happened. Ms Adams submits that the Crown submission on racing is speculative. I note, however, that the summary of facts does refer to the two motor vehicles racing on Marine Parade at 10.53 pm that evening. Ultimately, of course, we may not ever know about these matters. I do not believe in the circumstances that too much weight should be placed on that factor.

[28]      Ms Adams accepts that you were travelling at well above the posted speed limit and what is accepted as driving at speed amounting to recklessness.

[29]      In reviewing all of the comparable guideline cases that I have been referred to, including R v Tiddy,9 R v Bishop10 and R v Matagi,11 I find that there should be a starting point of five years’ imprisonment. In my view, the offending here is comparable to that in R v Matagi, where the primary causative factor was excessive speed. In that case there was a prolonged pattern of deliberate racing, although alcohol or unroadworthiness were not factors.

8      R v Boswell [1984] 79 Crim at App R277.

9      R v Tiddy [2023] NZHC 2288.

10     R v Bishop [2012] NZHC 2761.

11     R v Matagi HC Christchurch CRI-2008-009-12096, 1 October 2009.

[30]      Ultimately, sentencing in a case such as this is highly fact-specific and must turn on the particular circumstances of your case. In my view, the driving here fell short of being classified as very bad driving in comparison to the extended and very serious dangerous driving reflected in a number of the other cases where higher starting points were adopted. That includes R v Tiddy which, in my view, was more serious offending than yours.

[31]      In applying the totality principle, I find that there should be an overall starting point of five years, and that will encompass both charges, namely the manslaughter and the reckless driving causing injury charge.

Adjustment for personal circumstances

[32]      In addressing the issue of mitigating personal factors, the appropriate discount for such factors must be proportionate to the overall sentence.12 I address first, the question of your youth.

Youth

[33]      At the time of your offending you were of course only 17 years old. The young age of an offender has been repeatedly emphasised by the courts as a factor of importance in determining an appropriate sentence. It is a factor directly relevant to a consideration of rehabilitative potential.13

[34]      The Crown has described your youth in this case as a stand out feature, particularly given the nature of the offending. I agree. I would add that the other stand out feature is the compassion and forgiveness of Tamamutu’s whānāu. And I note the submission – the powerful submission made on your behalf – that you are humbled by their compassion.

[35]      The Court of Appeal in a case called Churchward v R14 outlined why youth is relevant to sentencing. That includes three factors:

12     R v Poono [2022] NZHC 3416 at [50].

13     R v Autagavaia [1985] 1 NZLR 389.

14     Churchward v R [2011] NZCA 531 at [77] – [78]; see also Dickey v R [2023] 2 NZLR 405

(a)There are age-related and neurological differences between young people and adults, including that young people may be more vulnerable or susceptible to negative influences and outside pressures (including peer pressure) and may be more impulsive than adults;

(b)The effect of imprisonment on young people, including the fact that long sentences may be crushing on some young people;

(c)Young people have greater capacity for rehabilitation, particularly given that the character of a juvenile is not as well formed as that of an adult.

[36]      The Crown responsibly accepted in submissions today that there could be, in principle, a substantial discount for youth. I agree.

[37]      In the circumstances, I find that a discount of 20 per cent is appropriate to recognise your very young age.

Guilty pleas

[38]      You did not enter guilty pleas at the very earliest opportunity. However, as Ms Adams has submitted, they were entered shortly after receipt of an independent Crash Investigation Report.

[39]      In the circumstances, I agree with the Crown submission that you should be given the full 25 per cent discount for your guilty plea.

Previous good character and the s 27 report

[40]      Previous good character will usually amount to a mitigating factor even for serious offences such as this.15 In R v Findlay, the Court of Appeal explained that a discount for previous good character exists to recognise:

15     R v Howe [1982] 1 NZLR 618 (CA) at 629.

(a)That a fall from grace is punishment in itself and of course, here you have the burden for the rest of your life of knowing that you were responsible for the death of your friend; and

(b)The greater rehabilitation potential where community involvement and good character bears witness to a reduced probability of re-offending.16

[41]      As I have already noted, you have no previous convictions and I have also had regard to the letters of support filed by members of your community. Those letters are very positive and include support from your current employer. He expressly notes your work ethics and your dedication. He notes that you are a valuable asset to his business.

[42]      The cultural report is of some value in helping to explain your offending on this night.

[43]      I find that a discount of five per cent should be applied for your previous good character and cultural issues.

Remorse, restorative justice and prospects for rehabilitation

[44]      I note that Tamamutu Kinita was a close friend of yours and you are genuinely remorseful.

[45]      You attended a restorative justice conference. The victim’s whānāu have noted their close relationship with you and they have forgiven you.

[46]      I also acknowledge that as a first-time offender you are likely to have reasonable prospects for rehabilitation.

[47]      Ms Adams has spoken about the steps you are taking and have taken to ensure a pro-social life. I find in all the circumstances that a discount of 10 per cent is

16     R v Findlay [2007] NZCA 553 at [91], subsequently cited with approval in Davidson v R [2011] NZCA 356 at [16].

appropriate to recognise your remorse, engagement with restorative justice and your prospects for rehabilitation.

Total adjustment

[48]      I conclude that there should be a total discount of 60 per cent from the starting point of five years’ imprisonment for your personal mitigating factors (i.e. 20 per cent for youth, 25 per cent for guilty plea, five per cent for previous good character and factors in the cultural report and 10 per cent for remorse and restorative justice).

[49]      Since the final sentence I have settled on is two years’ imprisonment, a sentence of home detention might be available.17 However, a short-term sentence should not always be substituted with a sentence of home detention. This is a matter of discretion to be exercised in a considered and principled way and particularly to give effect to the principles of denunciation and deterrence. I must decide whether imprisonment or home detention will be the least restrictive sentence to impose given the purposes of sentencing.18

Home detention

[50]      Rehabilitative considerations are important for determining whether to sentence an offender to home detention.19 Where an offender is motivated to change and where there is a realistic prospect that he or she will be able to change, there are obvious benefits in a sentence of home detention both from society’s perspective and from that of the offender. The courts have also repeatedly made it clear that home detention is not a soft option; it still involves a significant restriction on an offender’s liberty and those sentenced to home detention regularly find compliance with its terms onerous.20

[51]      I find that the appropriate end sentence for you in this case is a sentence of home detention. As I have already noted, the various reports I have read speak

17     Sentencing  Act   2002, s  15A(1)(b).     A short-term sentence is a determinate sentence of imprisonment of 24 months or less.

18     R v Larsen [2020] NZHC 237 at [39].

19     R v Hill [2008] NZCA 51, [2008] 2 NZLR 381 at [37].

20     Wilson Korewha v R [2018] NZHC 1896; see also Taiapa v R [2020] NZHC 3355.

positively about your prospects of rehabilitation. I repeat the observations of the Ngati Ranginui Social Services that you are a rangitahi with great potential. It is equally clear that you have demonstrated a great degree of remorse for what you have done.

[52]      This is, in my view, a merciful sentence but the facts of this case, as Ms Adams submits, clearly support such an approach. I have taken into account the clear wishes of Tamamutu’s whānāu that a non-custodial sentence be imposed. This is one of those cases where the state is best served by taking the form of action calculated to encourage reformation.21

Conclusion and sentence

[53]      Therefore, Mr Munro, for the manslaughter of Mr Kinita, I sentence you to a term of home detention for 10 months. The special conditions set out in the PAC Report at page 5 are to apply. You are now to return to the home detention residence, set out in the PAC Report, in Te Kuiti as soon as reasonably practicable and to await there for the arrival of the probation officer.

[54]       On the charge of injuring with intent to injure, you are disqualified from holding a driver’s licence for one year. I do not impose any additional sentence in relation to that charge.

[55]Please stand down.

Andrew J

21     R v Wihapi [1976] 1 NZLR 422 (CA); see also R v Cargill [1990] 2 NZLR 138 (CA) at [140].