R v Popo

[2009] NZCA 447

IN THE COURT OF APPEAL OF NEW ZEALAND

CA357/2009
[2009] NZCA 447

THE QUEEN

v

ANDREW POPO

Hearing:22 September 2009

Court:O'Regan, Venning and Winkelmann JJ

Counsel:C W J Stevenson for Appellant

C L Mander and H A Wrigley for Crown

Judgment:30 September 2009 at 11.30 am

JUDGMENT OF THE COURT

THE APPEAL AGAINST SENTENCE IS DISMISSED.

____________________________________________________________________

REASONS OF THE COURT

(Given by Venning J)

Introduction

[1]       The appellant pleaded guilty to manslaughter, related driving offences and injuring with intent to injure.  On the lead charge of manslaughter MacKenzie J sentenced him to imprisonment for eight years nine months with a minimum non-parole period of five years.  He appeals against that sentence.

Background

[2]       In the early hours of the morning on Friday 11 July 2008 the appellant drove to a park on Davies Street adjacent to the Tawa swimming pool.  There were a number of young people there drinking.  The appellant and a person by the name of Eremiha exchanged words and an argument ensued.  Eremiha took off his shirt and confronted the appellant.  The appellant faced up to Eremiha and punched him to the ground.  He then punched and kicked Eremiha about the head and body while he was on the ground.  Each time Eremiha tried to get up the appellant punched and kicked him back to the ground.  Eventually Eremiha managed to get away and ran across the park. 

[3]       Although a disqualified driver, the appellant then took Eremiha’s car and drove off along Davies Street towards Porirua.  The police were notified about the assault and told that Eremiha’s car had been stolen. 

[4]       While this was going on, the victim of the manslaughter, Sergeant Wootton, was attending a domestic incident at an address in Dimock Street, Titahi Bay, with other police officers.  They were alerted to the appellant’s actions.  The accused continued to drive north at normal speeds over Raiha Street, through Elsdon and towards the roundabout at Placemakers, Porirua.  A police officer approaching the roundabout saw the car the accused was driving at the roundabout and recognised it as the car reported as stolen.  He turned his red and blue lights and siren on.  The appellant refused to stop.  He speeded up and drove eastwards through the roundabout onto Semple Street towards the Porirua mega-centre.  The appellant drove through the mega-centre before driving back onto Semple Street heading westward, returning the way he had come.  The police maintained pursuit towards Elsdon. 

[5]       The appellant continued to drive through Elsdon and then eastward down Takapuwahia Drive to Titahi Bay Road.  He drove across Titahi Bay Road eastward into Wineera Drive and then southward back towards the Porirua mega-centre.  By this time one of the police constables who had been at the domestic incident in Dimock Street had left the address and proceeded towards Porirua to assist in the pursuit. 

[6]       At times the appellant was driving on the wrong side of the road and cutting corners.  He went through a roundabout on the wrong side and at one stage was on the wrong side of a traffic island.  One of the police officers was forced to take evasive action to avoid the appellant who was driving in her lane.  The accused turned right at the roundabout driving in the oncoming lane and drove northward towards Titahi Bay.  With the police in pursuit the appellant drove towards Titahi Bay at speeds reaching 150 kilometres an hour in a 70 kilometres per hour zone.  Oncoming traffic, including the police constable who had left the domestic incident at Dimock Street, had to stop and pull over to avoid the appellant.  The appellant then drove north up Main Road, Titahi Bay at speeds in excess of 100 kilometres an hour in a 50 kilometres an hour zone. 

[7]       Sergeant Wootton notified the police units involved in the pursuit that he was going to an area further down Dimock Street to deploy road spikes.  The accused turned right into Dimock Street.  Sergeant Wootton parked his vehicle on the eastern side of Dimock Street at the curb-side facing south.  The red and blue flashing lights on his patrol car were on.  Sergeant Wootton took the police road spikes from his car and was in the middle of the lane in which his vehicle was facing.  By this time the appellant was driving towards Sergeant Wootton at between 60 to 70 kilometres an hour with his vehicle straddling the centre line of Dimock Street.  Sergeant Wootton dropped the road spikes and tried to get away.  He was too late.  The car the appellant was driving hit Sergeant Wootton and catapulted him onto the front windscreen, around the driver’s side and threw him some 27.5 metres further up Dimock Street.  Sergeant Wootton was killed instantly.  The appellant’s car struck the road spikes but he kept going for a further 800 metres until the spikes had taken effect and deflated the tyres fully.  The appellant then tried to run away but was caught and arrested.

[8]       When spoken to, the appellant refused to make a statement.  He passed a breath screening test but refused to allow the police to conduct a toxicology test.  At the time of the offending the appellant was a disqualified driver. 

[9]       The victim of the earlier assault suffered a severely bruised eye socket, bruised ribcage and numerous grazes.

High Court sentence

[10]     In sentencing the appellant MacKenzie J said the principal appellate guidance was contained in the cases of R v Skerrett CA236/86 9 December 1986 and R v Grey (1992) 8 CRNZ 523 (CA).  He also noted that the Courts have more recently confirmed a hardening of attitude to this type of offending.  MacKenzie J noted that in the worst cases starting points of 10 years or more are appropriate.  He assessed the offending in this case as being amongst the worst cases, and considered that a starting point of between nine to 10 years would be appropriate.  He then imposed a specific uplift of two to three years to reflect the fact that the victim was a police officer on active duty when killed.  That led to a starting point for the manslaughter of 12 years.  To reflect the other offending, particularly the injuring with intent to injure, the Judge took a starting point for the offending overall of 12 years nine months.  He declined to impose any further uplift for the appellant’s appalling driving record. 

[11]     MacKenzie J considered that the appellant’s early guilty plea to manslaughter, once it was offered, warranted a substantial discount.  The Judge also took into account counsel’s submissions that the appellant was remorseful.  Taken with the guilty plea the appellant’s personal mitigating factors led to a reduction of four years, leaving an end sentence of eight years nine months. 

[12]     MacKenzie J then considered a minimum non-parole period was required to reflect the purposes of denunciation and deterrence but accepted a minimum non-parole period of two thirds would be unduly punitive.  He imposed a minimum non-parole of five years. 

Appellant’s submissions

[13]     The appellant appeals against the sentence as manifestly excessive.  In particular Mr Stevenson submitted that:

(a)the starting point of nine to 10 years for the manslaughter was too high; and

(b)the Judge was wrong to increase the starting point by two to three years to reflect the fact the victim was a police officer.

Analysis and decision

[14]     Mr Stevenson accepted that a number of aggravating features existed in this case.  But he submitted that there was an absence of a number of other aggravating features, notably that the appellant had not been drinking, this was not a case of multiple fatalities, the appellant’s driving on Dimock Street was moderated and the driving did not occur at a time when there was a risk to a large number of other road users.  Mr Stevenson submitted that absent those features, and by reference to what he categorised as the more serious cases of R v Time (2004) 21 CRNZ 31 (HC), R v Douglas HC HAM CRI-2004-079-946 13 July 2004, R v Hawthorn HC WN CRI-2003-035-3840 28 May 2004 and R v Tairi HC HAM T-033323 20 April 2004, the present case could not be categorised as one of the worst of its kind.  He relied on the comments of Harrison J in R v Drinnan HC NWP CRI-2008-021-838 4 March 2009 that:

[14]     ... In the worst instances a starting point of 10 years or more is appropriate.  That length is normally reserved for cases of multiple fatalities and where the driving is at a speed which is grossly excessive.

Mr Stevenson submitted that for those reasons the starting point of nine to 10 years was too high and a starting point in the region of seven years was appropriate.

[15]     Next, while Mr Stevenson accepted in his oral submissions the fact the victim was a serving police officer killed in the execution of his duty could be seen as a further aggravating factor, he submitted the uplift for that factor of two to three years was excessive. 

[16]     Finally, Mr Stevenson noted that the Judge referred to dealing with the charge of injuring with intent to injure concurrently but then added nine months to the starting point for the manslaughter.  Mr Stevenson concluded by submitting that the adjusted starting point of twelve years nine months was too high, with the result that even accepting the discount of four years for the guilty pleas and mitigating factors (which he did not challenge), the end sentence of eight years nine months was manifestly excessive.

[17]     There is no guideline judgment in this area.  Mackenzie J was correct to identify the cases of Skerrett and Grey as establishing the principles to apply and to note the hardening of the attitude to offending of this nature, as confirmed by this Court in R v Whiu [2007] NZCA 591. The aggravating features will vary from case to case. The absence of one or more aggravating features is not itself a factor that mitigates the offending. In this case the following are the relevant aggravating features of the offending:

(a)this was a persistent course of bad driving covering at least five kilometres;

(b)at times the appellant had driven at excessive speed and at other times had driven dangerously and on the wrong side of the road;

(c)the appellant committed other offences while driving in this way, including driving a stolen car and driving while disqualified;

(d)the appellant knew that the police were following him and was attempting to avoid being stopped and apprehended;

(e)even before the fatal accident, the appellant’s driving required others (including police officers) to take evasive action to avoid collision with him;

(f)the appellant made no attempt to stop following impact and tried to run away once his vehicle was ultimately disabled;

(g)       the appellant’s driving was only stopped when his car was disabled.

[18]     Given those aggravating features, while there may be worse cases of motor manslaughter, MacKenzie J was justified in categorising this offending as amongst the worst cases.  While at the top end of the range, a starting point, before considering the further aggravating feature of killing a police officer on duty, of nine to 10 years was open to the Judge.

[19]     There is then the need to consider the fact the victim was a police officer acting in the course of his duty.  We agree that in the circumstances of this case, that was a further aggravating factor. 

[20]     A number of statutory provisions recognise offending against police officers acting in the course of their duty as either a specific offence or an aggravating feature of other offending:  ss 192(2) and 198A of the Crimes Act 1961, and s 10 of the Summary Offences Act 1981.  In addition s 104(f) of the Sentencing Act 2002 imposes a minimum period of imprisonment of 17 years for murder where the victim is a member of the police or a prison officer acting in the course of his or her duty. 

[21]     The general principle, that offending against police officers acting in the course of their duty is an aggravating factor of other offending, was recognised by this Court in R v Thomas (2003) 20 CRNZ 538 at [31].  The Court accepted an aggravating feature of an assault was the fact it was carried out on a police officer in the lawful execution of his duty.  This Court referred with approval to the following observations from the earlier decision of R v Williams CA177/96 20 August 1996:

Law enforcement officers, by the very nature of their duty requiring them to investigate suspicious circumstances, are particularly vulnerable to attack. …

...

… Where an attack is made on a police officer, what may otherwise have been considered to be an appropriate sentence should be increased to take into account this feature. Only in this way can the Courts do what it can to protect police officers acting in the course of their duty.

[22]     This Court in R v Taueki [2005] 3 NZLR 372 at [31](1) also accepted that if the victim of an assault is a law enforcement officer carrying out his or her duties that is a serious additional aggravating factor.

[23]     Mr Stevenson emphasised that the appellant did not intend to kill Sergeant Wootton.  In R v Pollock [2005] NICA 43 at [8] the Northern Ireland Court of Appeal made the point that it is not a matter of mitigation of the offence of manslaughter that the applicant did not intend to kill.  The lack of intent is recognised by the charge.  The appellant was deliberately driving in a dangerous manner (on the centre line, exceeding the speed limit and failing to stop for police pursuers), which caused the death of the police officer.  The police officer was not a mere passer by.  He was acting in the course of his duty to protect the safety of the public.  Moreover he was there, on Dimock Street, acting in the course of that duty attempting to stop the appellant from driving dangerously. 

[24]     However, we agree with Mr Stevenson that an uplift of two to three years for that feature is difficult to sustain.  An uplift of one to one and a half years would be more appropriate. 

[25]     Against that, the Judge’s decision not to provide an uplift for the appellant’s personal aggravating features was favourable to the appellant.  The relevant personal aggravating factors of the appellant must be considered.  The appellant is a recidivist offender in relation to driving whilst disqualified.  He has at least 12 previous convictions in the District Court for driving whilst disqualified.  He was also subject to a sentence at the time of this offending.  Those features are aggravating features recognised by ss 9(1)(c) and (j) of the Sentencing Act. 

[26]     MacKenzie J considered there would be a case of double counting if he took the appellant’s driving record into account, as a bad driving record often features in this sort of offending.  The fact the appellant was a disqualified driver at the time is an aggravating feature of the offence itself, but that is a different issue to the appellant’s previous convictions.  The appellant’s previous convictions remain an aggravating factor personal to him.  Taking the appellant’s relevant previous convictions into account is not to punish him twice.  As this Court noted in R v Casey [1931] NZLR 594 at 597 it may be necessary to take previous convictions into consideration because the character of the offender frequently affects the question of the nature and gravity of the crime. Further, at 597, the Court added:

… the previous convictions of a prisoner may indicate a predilection to commit the particular type of offence of which he is convicted, in which case it is the duty of the Court, for the protection of the public, to take them into consideration and lengthen the period of confinement accordingly.

[27]     That principle is now expressly recognised by s 9(1)(j) of the Sentencing Act. 

[28]     As noted, MacKenzie J did not refer to the further aggravating feature that the offending was committed whilst subject to a sentence.  Taken together these further personal aggravating factors would support an uplift of an additional one to one and a half years.

[29]     There is then the additional and quite separate offence of injuring with intent to injure.  If, as the Judge observed, it was to be dealt with by the imposition of a concurrent sentence, an uplift to what otherwise would be an appropriate sentence for the lead charge of manslaughter was required to reflect that additional offending.  We note that it would have been open to the Judge to deal with that charge as an offence requiring a cumulative term of imprisonment under s 84(1) of the Sentencing Act as the offences are quite different in kind.  Whatever approach is taken, the further offending required an uplift.  The Judge took nine months.  Mr Stevenson realistically did not criticise that.

Summary

[30]     In summary, having regard to the totality of the offending, the Judge would have been entitled to take a starting point for the manslaughter and the driving offences (including the appellant’s personal aggravating features and the fact the victim was a police officer acting in the course of his duty), in the region of 12 years.  An uplift of nine months on the injuring with intent to injure is necessary to reflect the totality of the appellant’s offending. 

[31]     The allowance for guilty pleas and any other mitigating factors of over 30 per cent in this case was an appropriate deduction.

[32]     As this Court observed in R v Johnstone [2008] NZCA 143 at [9] the issue is whether the end sentence was manifestly excessive for the overall offending in light of the appellant’s personal circumstances. Provided the end result is within range, this Court will not interfere, even if it might have reached that end result (or one close to it) by somewhat different reasoning. Having reviewed the sentencing process, we conclude that the end sentence of eight years nine months was open to the Judge in the circumstances of this case.

Minimum period

[33]     The Judge was right to impose a minimum period of imprisonment in this case.  The purposes and principles of the Sentencing Act, in particular, deterrence, denunciation and protection of the public required the imposition of a minimum term given the appellant’s driving on the night and his appalling driving record.

Result

[34]     The appeal against sentence is dismissed.

Solicitors:
Crown Law Office, Wellington