R v P HC Auckland Cri-2007-012-6675

[2009] NZHC 471

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI-2007-012-006675

THE QUEEN

v

P

Charge:          Dangerous driving causing death

Plea:               Not Guilty

Counsel:         CER Power for Crown

M A Stevens for accused

Sentence:       1 May 2009

SENTENCING NOTES OF MACKENZIE J

[1]      P    you appear for sentence on a count of dangerous driving causing death.  You were found guilty by the jury at your trial.

[2]      The circumstances of this case are tragic.  On 1 July 2007 your cousin and her family visited you and your family to see your new baby.  In the course of the afternoon you suggested a visit to some pine trees at the bottom of your farmlet property to collect pinecones.  The group comprised your cousin and her partner and

their two young children aged seven and three years, with you and your three year

R V P HC DUN CRI-2007-012-006675  1 May 2009

old daughter.  You own a 1960s bulldozer.  That machine was old but kept in good condition and it had recently been serviced.   You made the decision to take the bulldozer rather than your quad bike because the ground was wet and slippery.  You drove the bulldozer and the others travelled on a trailer behind it.  On your way back up the hill, after collecting cones, the bulldozer stalled.   It was then on a steep section of the track.  You were unable to restart the bulldozer.  You let it run slowly back until it came to a stop, it then being on a lesser slope.  The trailer was against a gate post.  After the bulldozer had come to a stop, you lowered the blade so that it was resting on  the  ground.    You  climbed  off  the  bulldozer  and  the  passengers climbed off the trailer.   About a minute or so later the bulldozer moved suddenly backwards.  Tragically, your cousin’s son, Matthew Birtles, who was three years of age, was run over.  He was killed instantly.

[3]      The task of sentencing you for these tragic events is a difficult and indeed a harrowing one. The offence is one for which a sentence of imprisonment is available. Home detention would also be available.  Counsel are agreed that neither of those is appropriate here and I say at the outset that I agree with that assessment and that I do not consider that either of those options would be an appropriate sentence.

[4]      The consequences of your actions were grave.  But, in fixing an appropriate sentence,  I must have regard to the level of  your  culpability rather than to the severity of the consequences.  Having heard the evidence at your trial, I accept that you believed that the bulldozer had completely come to rest and that, had  you appreciated that there was any risk of further movement you would not have left the bulldozer without taking further steps to secure it.  There was a dispute at trial as to whether the parking brake was applied, and if so to what extent, and whether the bulldozer was left in gear, and if so what gear.   I take it as inherent in the jury’s verdict that the dangerousness which they have found relates to a failure on your part to apply the parking brake sufficiently firmly, or to engage a sufficiently low gear. There was evidence which raised as a possibility that the tyre of the trailer had initially been jammed against the gate post, so that the bulldozer had not come to a stop solely because of the lessening of the slope, and that the movement may have been caused or contributed to by creeping of the tyre past the post and the sudden removal of that restraint.  The jury verdict indicates that the jury did not accept that

possibility as absolving you of your responsibility to ensure that the bulldozer was secure.   But the verdict does not make that possible explanation irrelevant to sentencing.  Having heard the evidence at trial, I am of the view that some weight must be given to that possibility.   I also take into account that the ability of the bulldozer to move if left on a slight slope was not known until tests were conducted later.  There was evidence that the slope of the ground on which the bulldozer was resting  was  close  to  the  critical  slope  at  which  movement  would  occur  if  the

bulldozer was left with 5th gear engaged.  The verdict of the jury is not inconsistent

with the acceptance of your evidence that a gear, possibly 5th  gear, was engaged. There was no evidence to refute that, and  I consider it appropriate to take that possibility into account.   So, I consider that the level of culpability which must attach to your actions is at the lower end of the scale.

[5]      Your counsel has drawn attention to the decision of the Court of Appeal in R v Fallowfield [1996] 3 NZLR 657 where the Court recognised that it is false to assume that culpability necessarily is greater where death results. The consequences of the offending are but one aspect of the assessment of culpability for sentencing purposes. The assessment of the degree of seriousness of the lapse from the proper standard of care must not be over shadowed by the seriousness of the consequences of that lapse.

[6]      I  must  consider  the  relevant  purposes  of  sentencing  in  determining  an appropriate sentence.  The most important of the purposes of the sentencing in this case are those which relate to the harm done, rather than those which relate to the gravity of the conduct, or deterrence.   That follows from the conclusion I have reached  that  the  harm  done  is  out  of  proportion  to  the  blameworthiness  of  the actions.  The victim impact statements speak eloquently of the grief and anguish of Matthew’s  parents.     Matthew’s  mother  and  father  have  each  described  the devastating effect of their loss on them, and on their family and their relationship. Mr Birtles has read his statement this morning.  It is not an exaggeration to say that this tragedy has destroyed their family.  This sentencing process must acknowledge that.  But in holding you accountable the sentencing process must not be vindictive. Nothing can assuage the loss that they have suffered and it is not the purpose of the sentence, which I must impose, to do so.  Nothing that I say should be viewed in any

way as diminishing the extent of their loss or of underrating it.   Their grief, and indeed anger, are understandable.  Only time may help to diminish that.

[7]      Counsel for the Crown submits that deterrence is an important purpose of sentencing.   The circumstances of this case are so unusual that, in my view, deterrence of others from similar offending is not a significant consideration.  As to deterrence of you, the gravity of the consequences is a deterrent in itself.   Your counsel has referred to that.  I am sure that the events of 1 July 2007 will haunt you, and that that will impose a punishment greater than any that I can impose.  You have expressed remorse at the tragic outcome.  I accept that that is genuine and heartfelt. While it may be difficult, at this stage, for Matthew’s family to accept that, I hope that it will, in time, in some small way, help them to move forward.

[8]      As well as reflecting the nature of the offending the sentence must also reflect any personal aggravating and mitigating features of yourself.  You are 42 years of age, married with two young girls.  You have a supportive family background.  Since

1996, you have been self employed as a building relocation contractor.  You have produced several references which speak highly of your character and your work ethic.  So there are many mitigating features in your background.

[9]      You have a number of convictions for what I regard as relatively minor matters, many of them now quite historical.  For the most part I do not consider that those are relevant as an aggravating feature.   There is one conviction which does require consideration as an aggravating feature.   That is your conviction in 2005 under the Health and Safety and Employment Act.   It indicates a possible lack of concern for safety which is a  worrying feature.   However,  I consider that it is sufficiently distinct from the present circumstances that it does not require a specific adjustment to the sentence to reflect a deterrent purpose.  It does not outweigh the mitigating personal circumstances and it is reflected in the sentence which I intend to impose.

[10]     I consider that a sentence of community work is the appropriate response, and one which properly recognises the nature of the offending and the aggravating and mitigating features of it, as well as those personal factors.  As to the length of the

community service which should be imposed counsel for the Crown submits that this should be at the maximum of 400 hours.  Your counsel submits that you would like to put something back into the community and have discussed that possibility with a number of your referees.  I consider that that is appropriate and commendable.  The probation officer has informed you that your eligibility for agency placement will be assessed by Community Work staff.   Your wish to put something back into the community can be taken into account then.

[11]     In relation to the length of time which should be imposed I must also take into account another form of sentence which is available in combination with community work.  That is a sentence of reparation.  Your counsel indicates that you wish to make a payment by way of emotional harm reparation and that you are extending your mortgage for that purpose.  No amount of money can compensate for Matthew’s loss, but this is an appropriate element of the sentence in this case.  Your offer of reparation is in the sum of $5,000 and I must take that offer into account in fixing the sentence.  Counsel for the Crown submits that a figure of $10,000 would be appropriate.   I think that the appropriate course here is to impose a sum of the amount which is offered and to take into account in fixing the length of the other major component of the sentence which is the community work.

[12]     I am also required to order you to be disqualified from holding or obtaining a driver’s licence for one  year or more, unless for special reasons relating to the offence I think fit to order otherwise.   You counsel indicates that loss of licence would have serious consequences for your business.  That is not a factor that I can take into account.  It is not a special reason relating to the offence.  Your counsel relies on a number of features of the incident itself.  The Crown submits that those do not constitute special reasons.   I have come to the view that there are special reasons not to impose a disqualification in respect of the whole of your driving licence, for reasons somewhat different from  those  discussed  by counsel.    This offending did not involve the driving of a conventional motor vehicle, and it did not involve driving on a road.  Those circumstances, in my view, take this case outside the ordinary purview of the requirement to impose a period of disqualification.  They are, in my view, special reasons not to impose a total disqualification.  Section 82(2) of the Land Transport Act 1998 makes it clear that disqualification may be imposed

in respect of a particular class of licence or endorsement.   I accept your counsel’s submission that any disqualification should be imposed only in respect of the self laying track endorsement type T on your driver’s licence.   I consider that a disqualification in respect of that type of vehicle does fall within the purview of the legislation, and is required.  In the unique circumstances of this case, I consider that a disqualification limited to the type of vehicle involved will properly reflect the objectives of the legislation, and that a full disqualification would not be appropriate.

[13]     The sentence which I impose on you, in the light of those remarks, is as follows:

a)        You are sentence to a total of 300 hours of community work;

b)You are ordered to pay the sum of $5,000 by way of emotional harm reparation;  and

c)        You are disqualified from holding a licence endorsement of type T to your drivers licence for a period of two years.

“A D MacKenzie J”