R v Nicholson-Kuiti HC Palmerston North CRI-2011-031-000695

[2011] NZHC 761

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CRI-2011-031-000695

THE QUEEN

v

WILLIAM TE ARANGA NICHOLSON-KUITI

Counsel:         P L Murray for Crown

S N Hewson for Prisoner

Judgment:      5 July 2011

SENTENCING NOTES OF GENDALL J

[1]      William Te Aranga Nicholson-Kuiti, you appear for sentence having pleaded guilty to two charges of manslaughter and four charges of dangerous driving a motor vehicle causing injury.  You pleaded guilty in the District Court at Levin on 25 May

2011 and have been remanded for sentence in this Court.

[2]      The facts upon which I sentence you are as follows.  On 19 February 2011 you and a number of your friends were at a party in Oroua Downs. At about 3.00am the following morning, 20 February 2011 the gathering broke up.   You had been forbidden from driving a motor vehicle on 18 March 2009 but volunteered to drive a vehicle owned by Ms Louise Reichenbach back to Foxton.  She was later to lose her life because she later got into that vehicle as I will describe.

[3]      You were moderately intoxicated through having consumed alcohol at the party and initially, you and two passengers in the car as you proceeded to Foxton.

They were your cousin Tia Kuiti and Mr Terry Barnard.  Upon arriving at a park in

R V NICHOLSON-KUITI HC PMN CRI-2011-031-000695 5 July 2011

Foxton you met up with another vehicle and its occupants at Victoria Park.  Loutish behaviour occurred by some members of the group and more drinking occurred, including you consuming alcohol.  It was about 4.45am in the morning and it was a perilous mix.  The assembled group discussed how they would get home.  Two of them  made  decisions  that  would  shortly  cost  them  their  lives.    The  first  was Louise Reichenbach and the second, Bailey Kinita, he being a young man aged 14 years.  What he was doing drinking alcohol with you and the others at 4.00am in the morning,   is   beyond   me.      In   addition,   associates   named   Luke   Taranaki, Jivharn Hubbard and your two original passengers Ms Tia Kuiti and Terry Barnard, got into your vehicle.  So there was a total of six passengers, as well as you in the Telstar vehicle.   It seems that only two of them wore seatbelts.   One passenger, Ms Reichenbach sat in the front passenger’s footwell and she was shortly to die trapped in that position.  One was sitting on the lap of a backseat passenger.  That was the 14 year old Bailey Kinita and he was also to shortly be killed.  Your other four passengers were shortly to sustain serious injuries as were you.

[4]      The other vehicle and that being driven by you then performed some donuts and wheelies and other hoonish behaviour on the grass in the park before speeding off through Foxton.  One of your passengers told you to stop and to slow down.  It is apparent that both vehicles were speeding and probably racing.  Control of the other vehicle was lost by its driver and it mounted the kerb and stopped. You proceeded to travel in excess of the speed limit accelerating towards Foxton Beach.   The other vehicle it seemed chased you and overtook you at speed.  You were travelling in an

80kmph zone at conservative speeds of between 108kmph and 127kmph and passengers told you to slow down.  Shortly after you were overtaken by the chasing vehicle, your vehicle veered to the left side of the road, got into gravel, you lost control of it endeavouring to stop or correct it, crossed the road and it rolled a number of times before coming to stop.

[5]      Louise Reichenbach suffered severe injuries in the front passenger footwell and died at the scene.  Fourteen year old Bailey Kinita was thrown from the vehicle approximately 25 metres, suffered head injuries and died at the scene.   Another passenger and you were both thrown from the vehicle, the passenger suffering severe head injuries and brain trauma.  You had moderate injuries.  Those who remained in

the  vehicle  apart  from  Ms Reichenbach  were  Mr  Taranaki  who  suffered  head injuries, he had a left ear torn off and a severely broken arm, Ms Kuiti suffered cuts to her hands, face and legs and Mr Hubbard suffered only minor injuries.  A subsequent blood sample taken from you revealed a level of 108 milligrams of alcohol per 100 millilitres of blood, that being above the legal limit for an adult and substantially above the 30 milligrams which applied to you, that being the youth limit.  You told the police you could not remember much about the crash, admitted driving the vehicle, being a forbidden driver and said you had consumed eight to ten bottles of beer that night.  You have two relatively minor convictions entered in May

2009 and for sentencing purposes I will be putting those to one side.

[6]      This year I have had the sad task of sentencing five young men for killing their friends and also other innocent road users whilst driving whilst intoxicated and at speed.  And those cases involved six deaths.  Yours is yet another case of a tragic example of young people losing their lives and others being grievously injured, while passengers in a motor vehicle being driven at speed by a young man under the influence of alcohol, in circumstances where judgement is totally impaired, and irresponsible bravado results in catastrophe.   Reckless young men are killing their friends and often innocent strangers who are road users at alarming proportions. And the High Court is having to sentence increasing numbers of people for crimes of manslaughter in  similar  circumstances.   The  Courts  are despairing of  situations where young and not so young ignore the fact that irresponsible behaviour after consuming alcohol and driving motor vehicles in circumstances which the vehicle is a lethal weapon, will inevitably lead to terrible tragedy for everyone concerned. Despite extensive and dramatic advertising and messages being conveyed to the public and to our young people, the message does not seem to be getting home.  The time is coming when stern deterrent sentences may have to be necessary to bring home to the youth that this is, as it is defined in the Crimes Act, culpable homicide.

[7]      Some of your surviving victims and their families have very graciously said at the restorative justice meetings that they forgive you and that it could easily have been them that had been driving.  But that is precisely the point.  It should have been none of you or them.  If stern penalties are necessary to protect road users from the

young and not so young, who are fuelled with alcohol and believe themselves to be invincible then so be it.

Victim impact reports

[8]     The victim impact reports make typically graphic and sad reading. Unquestionably there is a grievous effect of this event upon your victims and the family.  I call it an event because it was not an accident.  It was an inevitability given what you were up to that night.  The victim impact reports are distressing and typical of the grief and loss, and sometimes anger and bewilderment that follows such catastrophes.  No amount of regret or remorse can bring back the dead youngsters, nor will any sentence I impose on you make any difference to the feelings of grief for the victims’ families.  You would like to turn the clock back and so would they, and that is sadly the case with countless people in similar situations.  But if there is genuine remorse and contrition the possibility of forgiveness on the part of the victims’ families may follow.  You are blessed that the families of these victims and the victims themselves say that they forgive you.   That is an essential step in the healing process.  For there to be forgiveness there has to be remorse and contrition. But those who have lost their loved children and siblings will never get over that loss.  They will simply just get used to it. A term of imprisonment has to be imposed upon you in the hope that it might make some difference in deterring others, other young and not so young people from behaving in similar ways.  Because even if you have learnt your lesson from what you did and I think you have, the message has to be sent loud and clear to other people in the hope that it might deter some further tragedies.

[9]      The probation officer describes you as having a low risk of reoffending based upon your level of remorse and the positive impact of the restorative justice meeting. You would have an escalated risk, however, following upon alcohol use at teenage gatherings when in the company of young friends.  But you are motivated to change and that stands in your favour.

[10]     Sentencing principles for this type of homicide are well known.  The Court is required to hold you accountable for the harm you have caused to the families of

your victims as well as to the surviving victims.  The sentence must also denounce your behaviour.   Crucially, as I have said, it is a vital consideration that there be deterrence to others who speed, drive dangerously, having consumed alcohol, so as to deter others and to provide protection from the public generally from avoidable death and injury on the roads.  The starting point is the somewhat historic case of the

Court of Appeal in R v Skerrett1  and you have heard counsel refer to that.  But the

Courts have noticed there has been a hardening of attitudes about this type of crime in recent years, and sentencing levels have increased.  What I am required to do is to look  at  a  collection  of  circumstances,  which  may  be  factors  that  aggravate  or mitigate against your offending.  Those factors which are aggravating as identified in

Skerrett and your case are:

first, consumption of alcohol;

second, racing or showing off or competitive driving;

thirdly, disregard for the warnings from passengers;

fourthly,  although  only  marginally,  bad  driving  leading  up  to  the offending, including performing skids and donuts which is really just an example of bravado and did not aggravate what later happened.  But the

excessive speed prior to the crash did;

fifthly, driving when not permitted to do so.   You have never held a

driver’s licence, never been through the process of assessment of your driving ability and had been forbidden to drive in March 2009;  and

lastly, two persons were killed as a result of this dangerous driving.

[11]     Two weeks ago in Nelson I had to sentence another young man who killed his front seat passenger, and I said then and I repeat it, it is simply a lottery who gets killed and who gets injured.  Sometimes it is a friend, sometimes it is a total stranger. But it is not possible to ignore the ultimate grievous consequences that occurred.

There are at least five Skerrett factors, possibly six.  There are aggravating matters which relate to the crime itself.  It is not mitigating that you may have thought you were less affected by alcohol than the others.  It is not put forward on that basis and as I have said you continued to drink at the Foxton park when you were clearly under the influence.

[12]     I will shortly come to fix what is the starting point, but I turn to mitigating and aggravating personal factors.  Those are matters that do not relate to the crime itself, but to you personally.  As I have said you have minor convictions and I put them to one side. They will not increase the starting point.

[13]     In your case it is mitigating that you have pleaded guilty at an early stage and you have displayed genuine remorse.  There is a significant emotional shock through the killing of two close friends and I accept that you are especially remorseful and have participated in very worthwhile restorative justice meetings with the victims’ families.  I do not consider that your age is a particularly mitigating circumstance.  It is not uncommon for young persons to commit crimes and given the need to protect the public relatively little discount for you is given. As the Court of Appeal said in R

v Pretty, about a 19 year old charged with manslaughter:2

Young persons offending in this way have found that the law will put aside their relative youth in these circumstances and they will receive prison sentences along with persons of greater age and maturity such is the need to protect the public from avoidable death and injury on the roads.

[14]     You  will  be  given  significant  credit  for  your  early  guilty  plea,  your willingness to engage in the restorative justice programme and the productive outcome of it.  Some of the victims have said they do not wish you to be imprisoned, but it is not they or any other individual who determines the sentence.  It is for the Court and sentencing involves rather more than punishment.  I suspect you have had enough punishment but the purpose of this sentence is deterrence for others.

[15]     The starting point is that which is appropriate before taking into account personal factors.  In endeavouring to compare all cases of motor manslaughter is not helpful because there is such a large number of them and they are all different and

they all depend on their own facts.  Some are more serious, some less.  Mr Hewson has referred in his submission to examples of between two and a half to three years for the sentencing of very young offenders.  I think that you must fall into the more serious category because of the five aggravating factors.  Examples of serious cases are R v Whiu,3  where the Court upheld a starting point of nine years’ imprisonment where an offender caused the death of a 16 year old driver of another car and seriously injured  a passenger.   In R v Douglas,4  a starting point of nine years’ imprisonment was adopted and reduced to a final sentence of six years because of a guilty plea.   In R v Aiomanu,5  a starting point of eight years’ imprisonment was adopted and the final sentence of six years to take account of guilty plea and other mitigating factors.   In R v Tu,6  a starting point of seven years would have been adopted but because two persons were killed an eight year starting point was adopted and there has been similar starting points of seven  years’ imprisonment in  R v Rutene, R v Singh, R v Guest and R v Prescott.7   But in the end each case will depend upon its own circumstances and the degree of culpability of the killing with the final sentence being fixed after adjustment for personal individual circumstances of an accused.  But as was said by the Court of Appeal in R v MacSwain:8

Cases arising from teenage motor accidents where lives are lost are never easy.   The Court, however, has signalled a clear approach as reflected in many cases over the years ... .

[16]     In your case you are nearly 20.   I would not put you in the category of a teenager of tender years.  Your actions may not be in the very bad category of R v Grey,9  when a 21 year old killed two innocent schoolboys while driving at high speed and recklessly in a built-up area.  A starting point of nine years’ imprisonment was taken.  But the starting point in your case where two persons were killed in these circumstances and four injured must be a term of seven years’ imprisonment, which

would reflect the aggravating circumstances of the crime.   That includes driving

whilst forbidden.

3      R v Whiu [2007] NZCA 591.

4      R v Douglas HC Hamilton CRI 2004-079-946, 13 July 2004.

5      R v Aiomanu HC Christchurch CRI 2004-009-6616, 7 October 2004.

6      R v Tu HC Gisborne S3/2001, 21 February 2001.

7      R v Rutene HC Rotorua CRI 2006-069-1183, 26 September 2006; R v Singh HC Auckland

CRI 2005-092-163, 23 June 2006; R v Guest CA111/94, 20 July 2004 and R v Prescott

HC Auckland CRI 2004-004-19706, 15 July 2005.

8      R v MacSwain CA37/05, 26 May 2005 at [15].

9      R v Grey CA122/92, 6 August 1992.

[17]     Turning then to the personal factors for which concessions will be given.  As I have said, there are not aggravating factors.  Based upon your guilty plea I give to you what I see is a maximum concession available and indicated by the Supreme Court in the decision of Hessell v R10 and that is a 25 per cent discount.  That would lead to a sentence of five years three months’ imprisonment.  Because your remorse is genuine and I find it to be profound, and your anticipation in and the positive

outcome of the restorative process, I am prepared to recognise this by way of further discount.  A number of Judges may not but I consider it is within my discretion to exercise  that  mercy.    You  are  very  fortunate  indeed  that  the  victims  and  the deceased’s families have shown to you their compassion and forgiveness that they have.  I give to you a further concession of six months, which is a little over five per cent.  That would lead to a final sentence of four years nine months’ imprisonment. That must be the absolute minimum that all the circumstances dictate.  Without your guilty plea and genuine remorse and the attitude of the victims and families your sentence would have been seven  years’ imprisonment.   You will be eligible for parole after a certain period and if the Parole Board is satisfied then that you pose no risk to the community you will be released and the future will augur well for you.

[18]     On each charge of manslaughter you are sentenced to four years nine months’ imprisonment.  On each of the four charges of dangerous driving causing injury you are sentenced to two years’ imprisonment. All of those terms are to be concurrent.  I impose a disqualification on you on the charge of manslaughter from holding or obtaining a driver’s licence for a period of five years from the date of your release from imprisonment.   On the charges of dangerous driving causing injury you are disqualified from driving for a period of 18 months, which terms are of course concurrent and absorbed by the five year lead disqualification.

[19]     You are now subject to what is known as the three strikes warning under the Sentencing  and  Parole  Reform  Act  2010.    This  requires  that  I  give  to  you  a Stage One warning because you have committed a serious violent offence as defined by the Act, no previous warning has been given and you were over the age of

18 years when the offence was committed.  Accordingly I am required to give you

this warning.

10     Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.

[20]     Given your convictions for manslaughter you are now subject to the three strikes law.  I am going to give you a warning of the consequences of another serious violent conviction.   You will also be given a written warning outlining these consequences, which lists what are known as the “serious violent offences”:

(1)If you are convicted of any serious violent offences other than murder committed after this warning, and if a Judge then imposes a period of imprisonment, then you will serve that sentence without parole or early release.

(2)If you are convicted of murder committed after this warning, then you must be sentenced to life imprisonment.  That will be served without parole unless it would be manifestly unjust.  In that event the Judge must sentence you to a minimum term of imprisonment.

[21]     You will be given that three strikes warning in written form by Court officials before you are taken down.  I simply want to acknowledge the presence, courage, grief and anguish felt by all members of the families of the dead couple and of the other victims and to commend all those who had the courage and compassion to

participate in the restorative justice programme.

Solicitors:

Crown Solicitor, Palmerston North

Ord Legal, Wellington for Prisoner

J W Gendall J