R v Murcott
[2014] NZHC 971
•8 May 2014
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
CRI-2014-070-000202 [2014] NZHC 971
THE QUEEN
v
COLT ARTHUR MURCOTT
Hearing: 8 May 2014 Appearances:
Hayley Sheridan for the Crown
Craig Tuck for the AccusedJudgment:
8 May 2014
SENTENCING NOTES OF MOORE J
Introduction
[1] This is a dreadfully sad and tragic case. It is tragic for everyone connected with it.
[2] It is, of course, particularly tragic for the family of Ricky Pettigrew. He was only 16 when he died in such avoidable circumstances. He had his whole life in front of him and he did not deserve to die in such a violent way in the back seat of the car driven by his stepbrother. Ricky Pettigrew’s death is the greatest tragedy in this whole ghastly business.
[3] But it is also a tragedy that you, Colt Murcott, must every day for the rest of your life, look back at what happened that night in late October last year when, because of your immaturity, because your lack of insight, because of your bravado you took to the wheel of your car when you knew that you should not have; when
you knew there were others in your car who you had a duty to keep safe and to
R v MURCOTT [2014] NZHC 971 [8 May 2014]
protect but instead, you showed off and in doing so, in the space of probably no more than a minute or two, you ended up losing control of your car, slamming it at speed sideways into a tree killing Ricky and injuring your other two passengers sufficiently seriously that they had to go to hospital.
[4] The sentence I will be imposing on you will be finite in the sense it will have an end, at least as far as you and the law is concerned. But I suspect that the real sentence you will face for the rest of your life is that you will have to live in the knowledge that in a moment of stupidity and a moment of immaturity you took the life of Ricky.
[5] My task today is to hand down a sentence. The sentencing process is about applying the law, as Parliament has written it and as other Judges have interpreted it.
[6] Some may feel that the sentence I will impose is too lenient. Others, no doubt, will feel it is too harsh.
[7] But the sentencing process is not about engaging the popularity of any particular quarter in our community. It is about applying the law correctly and dispassionately. It is the law which prescribes what I must do today and having heard the very helpful submissions made by both lawyers it is noteworthy that there is actually a high degree of agreement about the range and limits of the sentencing options in this case. And that has made this difficult task a good deal easier.
[8] Mr Murcott, you have pleaded guilty to:
(a) two charges of driving with excess breath alcohol and causing injury; (b) two charges of reckless driving causing injury;
(c) one charge of failing to stop or ascertain injury or death after an accident; and
(d) one charge of manslaughter.
[9] The maximum sentence for manslaughter is life imprisonment. The
maximum sentence for the other charges is five years’ imprisonment.
[10] I turn now to the facts.
The facts
[11] The Crown has filed a summary of facts which I understand you accept is correct.
[12] This reveals that on the evening of 27 October last year, you were with friends and family at a rural address in Katikati and later with friends and associates at Waihi Beach. Over those several hours you consumed about 10 stubbies of beer.
[13] Although the car was yours, Bradley Bryan was nominated the sober driver for the trip home from Waihi Beach. You were in the front as passenger. In the back seat was Ricky and next to him 16 year old Shaquille Hona.
[14] As you neared home, you told Bradley to drive past your driveway and down to the bottom of Hikurangi Road. That road is mostly unsealed and has a moderate downhill gradient. Bradley drove to the end of the road at which point you told him to swap places so you could drive.
[15] It was a place you knew well. You had driven there often before and used it to perform skids, drifts, burn outs and hand brake slides.
[16] Once behind the wheel you accelerated heavily on the gravel surface, performing a skid as you went back up the Hikurangi Road hill towards State Highway 2.
[17] Once you approached the highway, you turned around and sped back down
Hikurangi Road through the dust that you had generated on your way up.
[18] Bradley removed his seat belt because he thought you were going to turn into his driveway but instead you accelerated up to a speed estimated by the surviving
occupants of your car to be between 90km and 110kms per hour. You later told the
Police that in your view, the safe speed to cross onto the gravel section was closer to
20kms per hour.
[19] Bradley told you to slow down as he tried, unsuccessfully, to re-engage his seat belt. Because of the dust, visibility at this point was estimated at between three and five metres.
[20] You then applied the hand brake to send the car into a slide. Inevitably you began to lose control on the gravel downhill gradient and the car drifted off the road before striking a small fence and then slamming sideways into a large tree. The car did not stop immediately but continued to slide another few metres.
[21] The major point of impact with the tree was near the left rear passenger door where Ricky was sitting.
[22] The impact was severe. The side of the car was severely distorted.
[23] When the car stopped, you and Bradley ran off. Bradley went to summons help.
[24] But as you were leaving the scene you asked Bradley if he would take the rap for you and offered him $150 if he did. Sensibly he refused your offer.
[25] You ran away. You did not stay at the scene of the crash to check if any of your passengers were hurt. You did not hang around to help them. Instead, you took to your heels and it was not for several hours that you were later found some distance away.
[26] After you left it was 16 year old Shaquille Hona, himself injured, who pulled Ricky out of the car and placed him on the ground and tried to make him comfortable until help arrived. Family members arrived at the crash scene and tried to help but Ricky died before the emergency services arrived.
[27] Bradley was injured with cuts and bruising to both legs and an injury to his
right arm. Shaquille’s lungs were bruised and he fractured a vertebrae.
[28] Your injuries were minor; a cut to your left eyebrow and a cut on the top of your head.
[29] After you were found several hours later and several kilometres from the crash scene, you underwent a blood test which indicated that your blood alcohol level was 97 milligrams per 100 millilitres of blood. It is estimated that your blood alcohol level at the time of the crash would have been around 190 milligrams per
100 millilitres of blood.
[30] I turn now to the approach to sentencing.
Approach to sentencing
[31] As counsel have already indicated in setting the sentence today, my first task under our law is to fix a starting point which reflects the sentence which an adult offender with no mitigating or aggravating personal circumstances would receive. I must then adjust that starting point having regard to the factors which relate to you and which may justify a departure from that starting point.1 Finally, I must apply a discount to reflect the fact that you pleaded guilty at the earliest stage and that is something which the law requires me to take into account and which Ms Sheridan accepts fully.2
[32] I turn to the principles and purposes of sentencing.
Principles and purposes for sentencing
[33] The Sentencing Act 2002 is the statute which governs sentencing in
New Zealand. It sets out a number of different purposes which I take into account when sentencing you.3 There are several which I consider are relevant to your case.
1 R v Taueki [2005] 3 NZLR 372 (CA).
2 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.
3 Section 7 of the Sentencing Act.
For example, I must denounce your conduct4 and hold you accountable for what you did,5 but I must also provide for your rehabilitation and reintegration into society.6
Starting point
[34] I commence with establishing a starting point. It is well understood that there is no tariff case for manslaughter. This is because there are so many different ways manslaughter can be committed.7 Sadly, it is not at all unusual that death occurs as a result of dangerous driving. And because of that there are a number of relevant sentencing cases which discuss what is often referred to as motor manslaughter.8 In particular, in Gacitua v R9 the Court of Appeal recently set out a list of factors which it considered relevant to assessing the culpability of offenders in such a case. A number of these factors apply to your case and I shall list them:
(a) Alcohol consumption:10
As you are under 20, you are not permitted to have any alcohol in your blood while driving. Before the law changed, the maximum limit was 30 milligrams per 100 millilitres of blood.11 As I have mentioned it has been estimated your blood/alcohol level would have been around 190 milligrams per 100 millilitres of blood. That is very high indeed. I also note that in a number of cases, alcohol has been
considered an aggravating factor even when the blood/alcohol ratio was below the legal limit.12 Wisely, you and your group nominated a sober driver for the trip home from Waihi Beach. However, very unwisely, you told Bradley to hand control of the car over to you when you were nearly home. Given that the car was yours, Bradley
probably had little option. But from the moment you sat behind the
4 Section 7(e).
5 Section 7(a).
6 Section 7(h).
7Kepu v R [2011] NZCA 104 at [15].8 See, for example, R v Skerrett CA 236 and 86, 9 December 1986; R v Guest [2013] NZHC 2432; R v
Christy HC Napier, CRI-2010-220-36, 7 February 2011; Whiu v R [2007] NZCA 591; Anderson v R [2010] NZCA 339.
9 Gacitua v R [2013] NZCA 234 at [25].
10 At [25][a].
11 This limit still applies under s 57(2) of the Land Transport Act 1988.12 Gacitua v R at [40]; R v Prince HC Wanganui, CRI-2011-083-1775, 5 December 2011 at [19].
steering wheel in your grossly intoxicated state you made the prospects of a tragic outcome so very much more likely and that must be a seriously aggravating factor in your offending.
(b) The excessive speed:13
I do not know, on the information before me, what the speed limit on Hikurangi Road is. However, the summary of facts records that the part of the road you were on had a metal or gravel surface and you have previously accepted that a speed of 20 kms per hour would have been appropriate for that part of the road. Despite that, some of your passengers estimated your speed to be at between 90km and 110kms per hour. Furthermore, because of the dust, visibility was apparently between three and five metres at the junction between the sealed and unsealed road. Driving at speed in these conditions is inherently
extremely dangerous. It is another serious aggravating factor.14 Just
before the accident, you pulled on the hand brake and deliberately put the car into a skid. Whilst I accept you may have done this several times, perhaps many times, before it is always a very dangerous manoeuvre made all the more so by the other factors I have just mentioned. In other cases, deliberately drifting or performing skids has been taken very seriously by the Court because of their intrinsic
danger.15 Combined with speed and the other factors this was both
deliberate and very dangerous.16
13 Gacitua v R at [25][b].
14 At [25].
15 R v Bishop [2012] NZHC 2761.16 Gacitua v R at [25][d].
(c) Disregard of warnings:17
You must have known that what you were doing was dangerous and you were not the only one in the car who knew that because Bradley was scared enough by what you were doing to ask you to slow down as he was trying to put his seat belt back on. You ignored him. Despite his warnings and his request you did not slow down. You ignored him. In fact, it seems on the summary, it was after Bradley’s attempted intervention you decided to put the hand brake on and put the car into a skid. Again, this demonstrates how deliberately dangerous your driving was and how dismissive you were of the fears expressed by one of your passengers.
(d) Driving in breach of licence conditions:18
On top of these factors, I also take into account the fact that your driving was in breach of the restrictions you had as a learner driver. You are not allowed to drive without a qualified driver supervising you. There was no qualified driver. There was no such supervision. The reasons these restrictions exist is because Parliament has determined that learner drivers are not generally experienced enough to deal with many of the challenges which driving a car involves. It takes time and experience to develop those skills. To deliberately breach those conditions and drive in the highly dangerous way you did is to put yourself, your passengers and other road users at risk.
(e) Serious injury to other passengers:19
In addition to causing Ricky’s death, you caused significant injuries to
two of your passengers; Shaquille more than Bradley. Both needed to go to hospital, although I accept it would be overstating the position to
17 At [25][c].
18 At [25][j].
19 At [25][m].
describe either as having suffered a serious injury. Despite that, these injuries do add to the overall seriousness of what you did.
[35] Against these factors is the sad reality which I have already referred to and that is the victim in all of this was your stepbrother. This is something which will have impacted you personally in a significant way and it is appropriate to consider that factor in assessing what an appropriate sentence should be. I will deal with this issue later in these sentencing remarks.
[36] In assessing what the appropriate sentence should be, I am required to consider similar cases in determining the appropriate starting point. Both your counsel and the Crown have pointed to a number of similar cases which I have found helpful. In my view, the circumstances of your case are most similar to R v
Ormsby,20 and R v Elliot21 where a starting points of six and a half years and six
years were considered appropriate.
[37] Based on these cases, I consider a starting point of six years’ imprisonment is appropriate. This starting point takes into account the aggravating features I have already listed. As such, it includes the injuring charges involving your passengers. This is because I consider they are best assessed as increasing the seriousness of the lead charge, which is the manslaughter charge.
[38] In addition to this, I must also consider your decision to flee the scene of the crash without waiting to help to see if anyone was hurt. At one level fleeing the scene may be an explicable reaction for an immature young man in panic who has just realised he has made a terrible mistake and on the other hand it is inexcusable. It also cannot be ignored you asked Bradley to take the rap for the crash and offered him money if he did. That is also inexcusable, although in assessing the gravity of that conduct I accept you readily accepted fault when you were found some hours later. But it is not a matter which I can ignore in the overall assessment. It is
necessary to reflect your attempts, albeit short lived and inevitably futile, to avoid
20 Ormsby v R [2013] NZHC 1873 and [2013] NZCA 578. R v Surynt HC Christchurch, CRI-2011-
009-8160, 1 December 2011 is also similar and took a six month starting point although this did not include the aggravating features of the offending.
21 R v Elliott HC Hamilton CRI-2010-219-182, 17 November 2011.
liability by attempting to have another accept the blame for you. That is why I consider a relatively modest uplift of six months should be made to reflect that conduct.
[39] Taking all matters into account, the final starting point, having regard to the
totality of your offending, is six years and six months’ imprisonment.
[40] I turn to the personal factors.
Personal factors
[41] The effect your personal attributes have on this offending must be taken into account and there are several factors I will take into account, including your guilty plea which I will deal with at the end. The other factors are your youth, your good character and your expressions of remorse.
[42] You are 19 years old. You were 18 in October last year. Youth has been recognised repeatedly as an important factor to consider in the sentencing process.22
This is because young people are recognised as being prone to risk taking23 and
being less able to engage in good decision making.24 Both these factors have been accepted by the Court as meaning young people may be less culpable for their actions than adults. Similarly, it is well known young people are more prone to being influenced by their peers; a factor which tends to reduce their culpability for offending.25 It is also acknowledged the prison system can be a particularly harsh environment for young people; so sentences must be balanced more carefully.26
Finally, young people should be treated as having a greater capacity for rehabilitation.27
[43] On the other hand, it has been repeatedly recognised that motor manslaughter often involves young drivers. It is a significant and worrying issue in our country. A
22 R v Christy, above n 8, at [23]; Ormsby v R, above n 20, at [6]-[10]; R v Brook [2010] NZCA 13 at
[18]; R v Elliot HC Hamilton CRI-2011-219-182, 17 November 2011 at [33] and [35].
23 Churchward v R [2011] NZCA 531, (2011) 25 CRNZ 446 at [53]-[54].
24 At [51].
25 At [77(a)].
26 At [77(b)].27 At [77(c)].
discrete youth credit may be limited to give effect to other sentencing principles, particularly denunciation and deterrence.28 As such, in these sorts of cases, Courts are reluctant to allow large discounts because of an offender’s youth.
[44] Therefore, in awarding a discount for youth, I must be conscious that deterrence and denunciation are important considerations and this lowers the discount I would otherwise have awarded.29
[45] A discount is also required to reflect your good character. I have before me numerous references which attest to your gentle and caring nature. You are described as respectful, polite and hardworking. It is obvious you are well liked by a range of respected members in our community who have taken the trouble to write to me in your support. These references confirm this offending arose from a moment of stupidity fuelled by alcohol. You have no prior convictions. Another factor is the remorse you have expressed for your actions. The pre-sentence report records you as presenting as very remorseful and sincere and that you made no attempt to mitigate or hide from responsibility. You advised the Probation Officer you have not consumed alcohol since the offending.
[46] On the other hand, I am concerned by Ricky’s father’s victim impact statement. You lived with their family for about three years. He was your guardian and yet he has reported to the Court which has been confirmed by the Crown that you have not apologised to the family. On the other hand, I take into account what Mr Tuck advised me from the bar this morning that immediately after the accident you did express your apologies and your remorse to the family. What you cannot escape is the victim was close to you. The Court of Appeal has identified the mitigating factor of remorse may be greater in cases where the victim is a close
relation or friend.30 The reason for this is because your sentence must be considered
alongside the remorse and sense of loss you already feel and which, as I said at the beginning of my sentencing remarks, is something you will carry for the rest of your
life.
28 Ormsby v R, above n 20.
29 R v Elliot, above n 24, at [35].
30 R v Gacitua, above n 9, at [26(d)].
[47] Overall, I consider a discount of 35 per cent is appropriate to reflect these factors and this results in a provisional sentence of four years and three months’ imprisonment.
Guilty plea
[48] I turn last to the guilty plea and its effect. You pleaded guilty to all charges on your first appearance in the High Court. The Crown accepts you pleaded at the earliest possible opportunity and under our law this means you are entitled to the maximum discount available which is 25 per cent.31 There are all sorts of reasons why an early guilty plea should attract a discount which reduces the sentence which might otherwise be imposed, not the least of which is the recognition the Court must give to the savings which an early plea represents. But it also means the costs and inconvenience of a trial is avoided and the anguish of those close to the victim is
reduced.
[49] The result of this is a final sentence of three years and two months’
imprisonment.
Sentence
[50] As I touched on right at the beginning, the sentence I am about to impose is not and never should be viewed as some kind of measure of the value of Ricky’s life. Obviously no value can be ascribed to that. No sentence can ever properly reflect the ongoing pain suffered by Ricky’s absence as a result of what you did. And I make particular mention here of the victim impact statements I have received and the courage of those who read their statements to me. But I should also in that context the graciousness they have extended to you and in recognition of the fact that you still have a life to live. That is a great credit to them; the spirit of generosity reflected in their remarks. The sentence reflects what our law says should be the proper sentence.
[51] Mr Murcott, you are still a teenager. It is obvious from the letters, references and other material which I have read in preparing for this sentence you have around
31 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.
you a loving and caring family who continue to support you. You have earned the respect and support of others in the community, including employers and educationalists. You must serve the punishment for your offending because that is the law of this land. And as I have already said in these remarks, but I repeat because it is important, you will always have to live with the consequences of what you did. The best way that you can atone for the terrible consequences of that night in October last year is for you to lead a positive and good life on your release. With the help of others and the grace of those who have spoken not only about Ricky but of you, and through the insight that you have already shown, I am confident you will be able to do that.
[52] Colt Murcott, would you please stand.
[53] On the charge of manslaughter, I sentence you to three years’ and two months’ imprisonment. On each of the other charges, I sentence you to one years’ imprisonment, those sentences to be served concurrently with each other and with the sentence imposed on the charge of manslaughter.
[54] You are also disqualified from driving for three years following your release and you are ordered to pay reparation in the sum of $93 for the analysis fee relating to the cost of the blood sample.
[55] I now turn to the three strikes warning which the law requires me to give you.
Three strikes
[56] Because you have pleaded guilty to manslaughter, you are now subject to the three strikes law.32 Because you were not given a warning when you pleaded guilty, I am now required to give you that warning. You will also be given a written notice setting out the consequences of another serious violent conviction. Following this morning, if you are convicted of any serious violence offences other than murder, committed after this warning, and if a Judge imposes a sentence of imprisonment,
you will serve that sentence without parole or early release. If you are convicted of
32 Sentencing Act 2002, s 86A, definition of “serious violent offence”, para (21).
murder committed following this warning, then you must be sentenced to life imprisonment and you must serve that sentence without parole unless it would be manifestly unjust. In that event, the Judge must sentence you to a minimum term of imprisonment.
[57] Mr Murcott, you may stand down.
Moore J
Solicitors:
Crown Solicitor, Tauranga
C Tuck, Tauranga
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