R v Pairama HC Wanganui CRI 2009-083-2345

[2010] NZHC 932

IN THE HIGH COURT OF NEW ZEALAND WANGANUI REGISTRY

CRI-2009-083-002345

THE QUEEN

v

EUGENE MANUEL PAIRAMA

Counsel:         L C Rowe for Crown

S K Ellis for Prisoner

Sentence:       31 May 2010

SENTENCING REMARKS OF GENDALL J

[1]      Eugene Manuel Pairama, you appear for sentence having pleaded guilty to charges of manslaughter and possession of a Class C drug cannabis for the purpose of sale.  In addition, you are to be sentenced on two further charges arising out of the same events which occurred on 1 August 2009, namely, causing bodily injury whilst driving under the influence of alcohol and refusing to permit a blood specimen to be taken, you having been at least twice previously convicted of blood or breath alcohol offences.

[2]      In   addition,   you   are   to   be   sentenced   in   respect   of  three   summary informations, originally laid in the Manukau and Papatoetoe District Courts, on which you have pleaded guilty and have been remanded to this Court.   They are

offences of driving with excess breath alcohol on 1 February 2009;  driving whilst

R V PAIRAMA HC WANG CRI-2009-083-002345  31 May 2010

your licence was suspended, you having been convicted at least twice previously;

and failing to answer your bail on 12 May 2009.

[3]      The  lead  sentence  obviously  is  that  to  be  imposed  on  the  count  of manslaughter.  The facts on which I sentence you in respect of that and other related crimes which occurred on 1 August 2009 are as follows.   On that date a family celebration was taking place at a home situated about half way between Pipiriki and Raetihi townships.  You were a distant relative of the home owners and became a boyfriend of one of their daughters.  You were present at this celebration and had been there at least throughout the afternoon, continuously drinking alcohol.  As the night went on eyewitnesses described you as being drunk, and so intoxicated that you would fall off a seat.  At times you wanted to leave the gathering to get more alcohol.   But you were in no condition to drive, and others, on several occasions, took keys from you out of concern that you might drive.

[4]      For some reason, however, you nevertheless wished to leave, either in an attempt to locate someone else who had already left the party, or to obtain liquor. Despite that others had tried to prevent you from doing, you managed to get into your high-powered motor vehicle and drive away at about 10.40pm.   It had been modified and had a supercharger put in it.  I have seen photographs of it and it is a typical low flying bullet.  Two young people got into the back seat and another, aged

16 and a daughter of the hosts of the party, got into the front passenger seat.  You were known to be prone to speeding and fancied yourself as a fast driver.  You had made it a habit of driving after consuming alcohol.  The young girl who got into the front passenger seat was signing her own death warrant.   Others did not stop you only because some were not aware that you were departing with those vulnerable youngsters in your “suped-up” car.   Others, as I have said, certainly intervened earlier in the evening when you indicated an intention to drive.

[5]      The evidence from the deposition statements makes it quite clear that you drove recklessly and dangerously on the winding road between Pipiriki and Raetihi. It was an appalling piece of driving.  You travelled at high speed assessed by one of the backseat passengers – a cousin of the deceased – who described seeing your speedometer  at  around  160kph.    For  us  who  are  old-fashioned  that  is  nearly

100 mph.   You came upon another vehicle and undertook a recklessly dangerous passing manoeuvre, on a corner at speed.  The young lass in the front passenger’s seat was not happy and told you to slow down several times.  But you continued to speed, recklessly driving as though you were in a racing car.  You took corners on the wrong side of the road and terrified your passengers so much so that the young girl in the front seat cried “fuck I want to get out of the car”.  She was told by the backseat passenger that you were drunk and “we should not even have jumped in the car”.   A tragedy was inevitable.   It could not be described as an “accident”.   It occurred when you lost control at high speed on a corner crashing into a bank, injuring a backseat passenger and killing the 16 year old girl in the front seat.  As she had said she wanted, she was able now to get out of the car, but was dead.  There were other independent witnesses, who confirmed your speed and dangerous manoeuvres at a time when the road surface was damp.

[6]      When help came upon the scene you were out of the car but immediately seen to be intoxicated.  You had trouble standing and walking.  When asked by an ambulance officer how much you had had to drink, you stated “heaps”.  The police officer required you to undergo a breath screening test and, given your past history of breath and blood alcohol offences, you well knew what that was about.  So you refused to comply with that request.  You were then arrested and continued to refuse to carry out any breath alcohol procedures, because you knew of the state of your intoxication.  You again refused to undergo an evidential breath test when taken to the Ohakune Police Station and also refused to permit a blood specimen to be taken. You knew what had happened and what you had done and at the police station you said words to the effect of “I fucked up.  I just killed my niece”.

[7]      The teenager in the back seat sustained injuries which were fortunately not life threatening, but required hospitalisation.

[8]      The cannabis charge arises from the fact that in your bag was a quantity of cannabis, which you had taken to the gathering and which you intended to sell.  You are not a stranger to dealing in drugs, having two convictions for selling cannabis and two for possession of cannabis for supply between 1995 and 1999.  Judging by

the term of imprisonment then imposed, which I see was five years, that suggests they were particularly serious offences of their kind.

[9]      Turning to the summary matters.  The facts are that on 1 February 2009 at

2.50am in the morning you were stopped for speeding in Papatoetoe and showed signs  of  alcohol  consumption.    An  evidential  breath  test  recorded  a  reading  of

672 micrograms of alcohol per litre of breath.  You had been previously convicted of driving with excess blood alcohol on 13 July 2007 and 1 July 2008.   You were suspended from driving for 28 days.   But notwithstanding that, under two weeks later on 13 February 2009 at about 10.15am you were stopped whilst driving on State Highway 20 in Manukau.   You were bailed to appear for sentence on those matters but failed to attend at the District Court when required.

[10]     The aggravating features in respect of your crime of manslaughter encompass most of those matters which are indentified in the Court of Appeal decision of R v Skerrett.[1]

[1] R v Skerrett CA236/86, 9 December 1986.

•   you had consumed an excessive amount of alcohol and were drunk.  You drove at a grossly excessive speed at night and disregarded the warnings from your passengers and the pleas of the front seat passenger, who you were seen to kill;

•   eyewitnesses   described   your   advanced   state   of   drunkenness   or intoxication;

•   this was persistent reckless dangerous driving in an appalling manner, at times on the wrong side of the road, overtaking on a blind corner and it was  inevitable  someone  would  be  killed,  either  another  road  user, yourself or your young front seat passenger.

[11]     It  is  aggravating  you  have  previous  convictions  involving  bad  driving offences and consumption of excess alcohol before driving and your behaviour after the  offence  in  endeavouring  to  avoid  breath  and  blood  alcohol  procedures  is

aggravating.  None of the mitigating features referred to in Skerrett apply except of course your guilty plea.

[12]     This type of driving by you in this condition places you at the higher end of the scale of seriousness for motor manslaughter.  There are no mitigating features at all in respect of your driving on that night.  There are aggravating features which are personal to you, namely your previous convictions and you have clearly not learnt from the multiple serious convictions.  The only real mitigating feature personal to you is your guilty plea and you will be given an appropriate allowance for that, although a guilty plea was inevitable given the overwhelming evidence against you. I accept you have expressed remorse and sorrow at a conference with the family and I take that into account.

[13]     As I have said, the lead sentence must be the manslaughter, but you should understand that multiple offending such as yours, at different times and in serious ways, particularly through alcohol impaired driving, will not mean that you will only receive concurrent sentences with the lead sentence.  Criminals do not get discounts for  multiple  offending.    You  have  a  poor  criminal  record  totalling 35  previous convictions, which range from reckless driving to perjury, possession of pistols and explosives, selling and possessing cannabis for supply.  You have seven convictions for dishonesty offences and three for unlawfully taking motor vehicles.  Disturbingly you have four previous convictions for excess breath and blood alcohol offences. You have served terms of imprisonment but seem to consider yourself invincible, continuing to drive at speed and dangerously after consuming alcohol.  Regrettably, your passengers and the public are not invincible and a young girl has lost her life through your criminal act.

[14]     In earlier years it seems you had an association with the Tribesmen gang, although this has not continued in recent times.   But as I have said, you have a propensity to not only abuse alcohol but drive on frequent occasions when under that influence, notwithstanding your confident predictions that you are fit to do so.  That had some bearing upon your actions that night as has been in the past, namely your over-confident ability to drive.  You have a grandiose attitude towards your ability to drive aggressively and fast in high-powered cars, and the probation officer describes

you as still speaking “with some enthusiasm about the qualities of the car involved in the crash” it being supercharged, which married your supercharged alcohol-infused bravado.

[15]     You will be aware of the anguish and the pain and the suffering the whole family and whanau feel over what has happened.   The lead sentence must be for manslaughter.   The hardening of the Courts to the continuing road toll and the repetition of personal tragedies and the growing sense of public outrage is rcognised

in R v Gray.[2]    Likewise, in R v Whiu[3]  the offender pleaded guilty to one count of

manslaughter by dangerous driving and one count of causing injury whilst driving with excess blood alcohol and received a sentence of seven and a half years’ imprisonment.  The Court there said a starting point in the region of nine years was justifiable in light of the circumstances and nature of the offending, although this was at the upper end of the range.  But the driving involved many different breaches of road rules, including excessive speed and grossly dangerous driving which posed a serious threat to all on the road.  There the offender was badly intoxicated and a starting point was increased to ten years to reflect the aggravating features.  It was a mitigating feature that that offender had suffered physical and verbal abuse by men with whom she had been in a relationship and so a substantial discount because of guilty plea, expressions of remorse and her psychological condition was justified.  In the end a sentence of seven and a half years’ imprisonment was held to be not manifestly excessive.

[2] R v Gray (1992) 8 CRNZ 523.

[3] R v Whiu [2007] NZCA 591.

[16]     The  summary  charge  of  excess  breath  alcohol  earlier  in  the  year  in Papatoetoe will attract a cumulative sentence, otherwise you would escape scot-free from that crime which is not justice.  In addition, the charge of selling cannabis and possession of cannabis for supply (of which you agree you were involved in dealing) will also carry a cumulative sentence, although the two drug charges will have concurrent sentences within themselves.  The reason for that is to ensure that you do not avoid the proper penalties that should be imposed upon you because of your separate offending.   All the other sentences that I impose will carry concurrent sentences.

[17]     A long-term custodial sentence is necessary to protect the public.  Your risk as shown from your past behaviour which shows that you are a danger to the public. That  risk  must  be  minimised  and  regrettably  the  only  way  is  for  a  long-term custodial sentence.  You are a chronic alcohol abuser and drink-driving offender and have killed whilst in that condition.  Whilst you have fancied yourself as a racing car driver with high-powered supercharged motor vehicles, you are a menace to the road, being the type of menace that the community and Parliament have demanded be removed.  That is why you must go to jail for a lengthy period.

[18]     In  respect  of  the  manslaughter  conviction  I  take  a  starting  point  for sentencing purposes of nine years’ imprisonment.  I think 10-11 years is too high. However, to reflect the aggravating features of your serious previous offending, including the four blood and breath alcohol related offences, that starting point is increased by 12 months, to ten years’ imprisonment.  The outrage of the community and your victim’s whanau has to be marked in that way.  You are entitled to a one- third discount for your guilty plea and consequent remorse.   So in respect of the manslaughter conviction you are sentenced to six years eight months’ imprisonment.

[19]     On the charge of causing bodily injury whilst under the influence of alcohol you are sentenced to two years six months’ imprisonment to be served concurrently.

[20]     In  respect  of  the  excess  breath  alcohol  offending  earlier  that  year  on

1 February 2009 I take a starting point of 12 months’ imprisonment.  You are also entitled to a discount of 30 per cent for your guilty plea, but that sentence will be cumulative.   So the sentence on that charge is eight months’ cumulative imprisonment.

[21]     In respect of the offence of possession of cannabis for supply, on that charge a starting point of one year’s imprisonment is appropriate.  Again, you will receive a one-third   discount   for   your   guilty  plea,   so   the   sentence   is   eight   months’ imprisonment.  It is to be cumulative upon the other terms, that is, upon the seven year four months’ imprisonment.

[22]     On the charge of failing to permit a blood specimen to be taken you are sentenced to six months’ imprisonment concurrent on the lead sentence.   It might have been made cumulative but it has already been taken into account as an aggravating feature of the crime of manslaughter.

[23]     In respect of the other matters, that is the charge of driving whilst your licence was suspended and failing to answer your bail, you are convicted and discharged.

[24]     So the end result of the sentences is that you have an effective term of eight years’ imprisonment.

[25]     As to your ability to drive in the future when you are released from prison, as I have said you are a danger to the public.   You should not be permitted to drive again for a very long time.  That you have been able to continue to drive from time to time, despite your convictions might really have led to a forfeit of any right or privilege of remaining on the roads of New Zealand.  Under s 124 of the Sentencing Act 2002 the Court may disqualify you from driving upon conviction for manslaughter if satisfied that the crime was facilitated by the use of a motor vehicle as it clearly was.  The period of disqualification may be as long as the Court thinks fit.   My initial instinct was to make it indefinite but I think that that would not represent the proper sentencing process.   I fix the term of disqualification at ten years, under s 85 of the Land Transport Act 1998.

[26]     Your  disqualification  will  commence  on  the  date  upon  which  you  are released from prison.  An example of this is R v Kumar.[4]   In respect of the conviction for causing bodily injury whilst under the influence of alcohol and refusing to permit blood  specimens  to  be  taken,  you  are  disqualified  from  holding  or  obtaining  a driver’s licence for a period of two years, those terms to commence upon your release from prison.  They will of course run together with the ten years’ period of

disqualification.

[4] R v Kumar HC Gisborne CRI-2009-016-3998, 28 April 2010.

[27]     So the effect of all this is as follows.  The sentence of six years eight months’ imprisonment  on  the charge of manslaughter,  together with  the  two  cumulative sentences of eight months’ imprisonment lead to an eventual or effective eight years. I am persuaded by the Crown that this is a case for the imposition of a minimum non-parole period, which I fix at four years.

[28]     The summary charge that was originally laid, namely causing death while driving under the influence of alcohol on which a guilty plea was entered before a Community Magistrate, that conviction was a nullity.   It is subsumed within the manslaughter conviction.  The Crown has sought leave to withdraw that information

which leave is granted.

J W Gendall J

Solicitors:

Crown Solicitor, Wanganui
Sean K Ellis, Auckland for Prisoner