R v Prince HC Wanganui CRI-2011-083-1775

[2011] NZHC 1988

IN THE HIGH COURT OF NEW ZEALAND WANGANUI REGISTRY

CRI-2011-083-1775

THE QUEEN

v

ROY PRINCE

Counsel:         H C Mallalieu for Crown

S Ross for Prisoner

Judgment:      5 December 2011

SENTENCING NOTES OF WILLIAMS J

[1]      Mr  Prince  I  must  sentence  you  today  for  the  manslaughter  of  Tymeka Wheeler and for four counts of dangerous driving causing injury.  I must sentence you because on a tragic night seven months ago  you made a decision to drive dangerously with five passengers on board – four of them without seatbelts. You lost control and crashed killing one passenger and injuring the other four.

[2]      Those  are  the  stark  facts  but  they  cannot  convey  the  tragedy,  pain  and suffering that you inflicted on all involved, on their families and their friends, and from what I see of the papers in this case, on yourself.

[3]      Here’s how it happened.

R V ROY PRINCE HC WANG CRI-2011-083-1775 5 December 2011

The facts

[4]      On the night of 27 April this year you and three female friends drove from Whanganui to Taihape.  The three friends were Tymeka Wheeler aged 16, Ita Hepi- McRitchie aged 15, and Anna Marina Baldwin also aged 15.

[5]      You were driving your Toyota RAV4.  As far as I can tell you were 18 at the time and you were driving on a restricted licence.

[6]      You stopped at Marton on the way and bought a box of Codys (8%).  Your group spent the evening in Taihape drinking and socialising.  You said you had two drinks on the way to Taihape and “another three or four” while there.  You say you stopped drinking after that because you intended to drive home that night.

[7]      You and three girls left for the return trip just before midnight but you had two extra passengers: Nathan Te Tua-Rerekura who was 21, and Levi Taitimu-Chase who was 18. The RAV4 was obviously overloaded.

[8]      Only you and Tymeka were belted into the front two seats at the start of the journey.  The rest were in the back unrestrained with two of them crouching in the luggage area at the rear of the vehicle.

[9]      According to the some of the passengers, you were angry and aggressive on the return journey.  The suggestion is that this was because your jersey had been left behind in Taihape though there may have been other reasons as well.  But at any rate somewhere between Taihape and Hunterville you started driving too fast – estimates were at 140km per hour – and erratically – swerving across the centre line from one side of the road to the other.

[10]     Your passengers became alarmed and they asked you to slow down.  They must have felt that they were in a potentially dangerous situation, but you ignored their requests.

[11]     In what turned out to be a fatal mistake for Tymeka, she and Levi Taitimu- Chase moved into the luggage area, swapping with those who had been there.

[12]     The crash happened about 2km south of Hunterville on a straight stretch of road approaching a gentle left-hand corner.   It happened during one of your high speed swerving manoeuvres.  A RAV4 is a relatively tall vehicle with a high centre of gravity.  With a load on board that the vehicle was not designed to carry, neither you nor the RAV could handle the lateral forces you were imposing on it.  You lost control.  The RAV slid sideways down State Highway 1 for about 38 metres, hit a roadside ditch before becoming airborne and spinning end over end for another

37 metres, eventually ending up roof first in the ditch.

[13]     There were no inherent faults with the RAV that might have contributed to the events that night.  Nor with the road.  It was damp but it was not wet.  The crash was caused entirely by you.

[14]     Tymeka was catapulted through the rear window.  She landed in the ditch on the opposite side of the road.  She had injuries suggesting that at some point as the RAV rolled end over end, she had been knocked out.  According to the post mortem, Tymeka drowned in the ditch; face down.

[15]     Levi (who was in the luggage compartment with Tymeka) was also thrown from the RAV and he landed, as fate would have it, only about a metre from Tymeka. He was lucky enough to wake up.   He suffered grazes to his head, face, hands, shoulders, waist, hip and knees.

[16]     Nathan Te Tua-Rerekura was in the back seat.  He too was thrown clear of the RAV, was knocked out and woke up lying on the road.   He suffered a dislocated shoulder and chips to a shoulder bone.  He also suffered cuts to his head, elbow and knee all of which needed stitches.

[17]     Anna Marina Baldwin was also in the back seat.  She too was thrown from the RAV and knocked out.  She woke up at the scene in an ambulance.  She suffered cuts to her eyelid, elbow and knee all requiring stitches.  She suffered lesser cuts to

her lower lip, chin, neck and hip, as well as grazes to her face and chest and two chipped teeth.

[18]     Ita Hepi-McRitchie was restrained in the front seat by her seatbelt.   She suffered bruising to her legs, stomach and head, cuts to her face and left shin, seatbelt burns across the top of her chest as well as neck soreness from whiplash.

[19]     You were tested 2.75 hours after the crash and a blood alcohol level of 5mg per 100ml of blood was found.  The forensic scientist who undertook the testing of your blood sample felt that this level was too low for any firm conclusions to be drawn in light of the time between the crash and the test itself.  Nonetheless, you accept that alcohol may have been an issue.  You say you thought you were sober enough to drive but  you would not have overloaded the RAV if  you  had been completely sober.

[20]     None of these descriptions of the physical injuries suffered by those in your car address the deep psychological and emotional injuries you inflicted that night.

Emotional damage

[21]     I have read very carefully the victim impact statements that were provided by Ita Hepi-McRitchie; Tymeka’s older sister Atahlia, and her parents Mark and Tania Wheeler.  Those statements explain directly and eloquently just how much emotional hurt you have inflicted on your passengers and their whanau.   Ita says she has become withdrawn and afraid of speeding cars.  She says she hopes you understand how your actions can have consequences not just on your life but on the lives of others as well.

[22]     The  psychological  impact  of  Tymeka’s  death  on  the  Wheelers  has  been

utterly devastating. Tania says:

Lots of things can trigger me off or upset me, sights, sounds, anything.  My heart aches for her.   I dream about her all the time, my whole life has changed.  Part of me died that day too.  I miss her so much that I would give my life to have her back.

[23]     Mark says:

Where do I start?  It is so unnatural and wrong to try and sum up how I am feeling and write down on a few pages who my daughter was, how I miss her and what impact that this has had on my life.  Parts of me get angry, I am helpless.  I feel lost and temperamental all the time.

Things remind me of Tymeka all the time.   I only have to see a kid in a school  uniform  walking  along  the  street  and  it  takes  me  back  to  what Tymeka was like when she was at school.   I always wonder what if.   I wonder what she would be like six months on in life from the crash.

I end up teary-eyed when I see an ambulance driving down the street with its lights flashing and it takes me straight back to the morning of the crash. Ambulances get me all the time.  Ninety percent of the time I’ll cry within

30 seconds or so.  I worry and wonder what sort of incident they are going to. Will it be another crash like the one Tymeka was in?  I hope not.

... I will be a grieving father for the rest of my life.  Grieving for my darling child. They say that a father’s love for his daughter is unconditional – well – that’s me.

Restorative justice

[24]     Two restorative justice meetings were held.   One between your family and Tymeka’s family (although I note that Mark Wheeler did not attend), and another between  you  and  your  mum,  Chrissie,  and  the  other  crash  survivors  and  their families.

[25]     Sometimes restorative justice huis do not go well.  Sometimes there is just too much anger between victims and their families on the one hand and offenders and their families on the other.   Sometimes parties will not even meet and talk. There  is  too  much  anger.    There  are  many  cases  however  where  victims  and offenders meet and through expressing and sharing pain and sorrow, both sides can begin to heal themselves. This is one such case.

[26]     In the meeting with Tania Wheeler, her partner Craig, and daughter Atahlia, you offered a heartfelt apology for what happened to Tymeka.   You heard Tania speak of her love for Tymeka.  Your mother Chrissie read out a letter from herself and  your father Doug who was unable to attend  due to an  eye injury.   It was acknowledged and appreciated that Tymeka’s whanau embraced Roy at Tymeka’s

tangi – a practical and powerful expression of their aroha in the midst of the pain they were feeling.

[27]     Both Tania and Craig said that they had no wish for retribution and saw no point in you being sent to jail.   I was particularly touched by the way in which Chrissie and Tania expressed their emotions mother to mother – their love for their respective children and their profound grief at the death of one child and the burden the other must carry for the rest of his life.  This was indeed a powerful meeting of whanau, of hearts and of minds.

[28]     The experience of the second restorative justice conference was similar. Your apology was offered and from what I can see in the report, freely accepted by the survivors and their whanau.  Forgiveness was offered in return.  Once again thought of retribution appeared to have been put to one side.

[29]     That then is the background to this sentencing: a tragic event involving loss of life and genuine attempts from those affected on both sides to heal the hurt.

Approach to sentencing

[30]     Let me begin by reiterating what Tania and Mark Wheeler have already said. No sentence can bring Tymeka back.  Nor is this an exercise in trying to come up with a punishment that somehow is the equivalent of her life.   That would be an impossible task.   Rather, the law says the sentence I impose should hold you accountable for the harm you have done and encourage you to take responsibility for that; my purpose must be to provide for the interests and needs of the victims where appropriate; to denounce what you have done and to deter others from doing the same thing; to protect the wider community and to assist in your rehabilitation and reintegration into that community.

[31]     It is a sad fact Mr Prince that there are far too many cases involving (mostly) young men killing and maiming others from behind the wheel of a motor vehicle.  I must strive to arrive at a sentence that is consistent with those (all too many) earlier cases while taking into account any particular features of your case.

[32]     The law says I must look first at what you did in order to establish a starting point.  Then I must look at your personal circumstances to see whether that starting point should shift up or down.

Factors related to offending

[33]     Turning first then to the offending – the cases suggest starting points tend to be between five and seven years imprisonment for cases such as this.   The worst aspect of your offending on that night was that you deliberately chose to drive very badly and at grossly excessive speeds.  You deliberately put your passengers at risk. And you disregarded their warnings to slow  down.   You admit to having been drinking that night and that your driving was affected but I accept that there is no evidence that you were driving with excess blood alcohol.  That of course means that when you made the choice to drive in the erratic way that you did, your judgment was not affected by alcohol to the extent one often sees in motor manslaughter cases.

[34]     The final factor is that on the night in question you were driving in breach of the terms of your restricted licence.  You did not have a fully licensed driver with you.

[35]     Focussing on the manslaughter charge, it is appropriate for me to take into account the injury suffered by the other four passengers as an aggravating factor of your offending.   You (and they) are very lucky you did not cause more than one fatality that night.

[36]     On the other hand, you offered every assistance at the scene and co-operated with the police to the full extent possible.

[37]     These factors together suggest a starting point at the bottom end of the range. While there was gross speeding and recklessness and while there were warnings from your friends to slow down, other crucial factors are not present – an inherently dangerous vehicle or massive consumption of alcohol for example – the element one so often sees in these cases.  I differ from Crown counsel in that I do not consider

this to be a case on all fours with R v Wagener.[1]   I consider culpability in that case to be materially higher – more alcohol, stubborn refusal to give up the wheel to the designated sober driver and a failed warrant of fitness.   I adopt a starting point of five years in this case.

Factors related to offender

[1] HC Invercargill CRI-2010-025-000191, 8 June 2010.

[38]     Turning now to the factors personal to you Mr Prince.  There are in my view significant mitigating factors.  Tymeka was both a close friend and as it turns out a relative of yours, although I think you did not know that.   You have been deeply affected by her death and your role in it and so you should be.  You should carry this like a tattoo for the rest of your life.   You are young and, apart from this terrible incident, you have a good driving record and no previous criminal record whatever. You pleaded guilty at an early stage and the restorative justice process has demonstrated your profound remorse for what happened.  Your participation in that restorative justice process has assisted Tymeka’s family in particular to begin the process of healing after the loss of their daughter and sister, and I was particularly moved by the generosity of spirit shown by all victims and families in both of these restorative justice processes.

[39]     In addition, you undertook an alcohol and drug rehabilitation programme in which your counsellor who is here today, and is very supportive of you, confirms that you do not suffer from the alcohol and drug issues that so often accompany cases such as these.

[40]     The  presence  of  people  from  Te Arahou  in  such  numbers  attests  to  the support that you have among your peers.   I have also read references from your former teachers, both primary and secondary – all of them speaking in glowing terms of your loyalty and work ethic, both your physical and emotional strength, and the

struggle you have had to overcome your learning difficulties.

[41]     You are dyslexic. This makes you appear to be shy and inarticulate.  It means you  rarely engage  in  the  sort  of  verbal  banter  one  expects  of  teenagers.   This probably means that you express yourself through action more than words.   Your incredibly stupid driving on that fateful night was partly a result of this in my view.  I do not suggest that is an excuse.  Far from it.  I simply suggest that your disability probably contributed to your appallingly bad decision-making that night.

[42]     Finally, there is the extraordinary support of your parents.   As it has been made amply clear through this process, they have said that they will always be there for you through thick and thin, no matter what.

[43]     I have been particularly moved by the magnitude of your remorse and the willingness of those whom you have hurt to forgive you.  When all factors are drawn together, they justify a substantial reduction in my mind.

[44]     Looking back to the purposes of sentencing that I mentioned right at the start, I am well satisfied that you accept responsibility for what you did and that the restorative justice process has addressed the interests of the victims in this case at least as best as any process can after this terrible event.

[45]     I note in passing that you and your parents provided $1,300 to assist with the expenses of Tymeka’s tangi.   And I repeat how significant it appeared to me that Tymeka’s parents allowed you to attend her tangi and express your remorse in public in front of them.   Many whanau would not have done that.   I note also that the experts agree that you are a low risk of reoffending.  It follows that the remaining purposes of sentencing are denunciation and deterrence.  I agree these are important factors although they must not eclipse the personal and human story of contrition and forgiveness that this sentencing process has produced outside the walls of this courtroom.

[46]     In any event, a longer prison term is not the only way of achieving deterrence and denunciation as I will shortly explain.

[47]     I  have  said  that  the  restorative  justice  process  has  been  an  important ingredient in my attitude to sentencing in this case.  But I have also been particularly focussed on the statement from Mark Wheeler.   Perhaps because I am a father of daughters, and I struggle to imagine what it would be like to lose one of them, I am particularly attuned to his words.  He did not attend the restorative justice process. His anger and frustration are still palpable.   I can well understand why.   I have quoted from him at length already – I am going to do it again.  He said:

In terms of punishment, there’s no punishment that will bring Tymeka back and there’s nothing that will make me feel satisfied with the process.   I would like to see Roy go to some schools, visit them and tell people what he did, to deter them, to tell them that speeding and showing off and having an over-crowded car and drinking doesn’t work.

Roy killed one of his best mates and he’s going to have to live with that, but if he can do anything that will save even one person as part of his rehabilitation, then he should go and do it.

[48]     Even Mark Wheeler wanted good to come of this loss.

[49]     Mr Prince, taking all of these factors into account, I have decided that this is one case where the right thing to do is to go out on a limb for you.

[50]     I would deduct three years.

Sentence

[51]     With a final sentence of two years it is possible to consider a community- based sentence.  Such a sentence would in my view be just and appropriate in this case.  Prison would do you no good whatsoever.  And it has the potential to do you a great deal of harm.  The deterrence and denunciation purposes of sentencing would be better achieved by requiring you to tell your story to young people wherever and whenever possible – for Tymeka’s sake – and to do all you can to prevent this story of six young people out on a fat Saturday night being repeated.

[52]     On the count of manslaughter, I sentence you to 12 months’ home detention with 250 hours of community work.   I require you with the help of the Probation Service, your legal counsel and your parents to prepare a plan for community-based

education at schools, youth groups and the like whereby you can tell your story and warn people of the dangers when young people drive recklessly whether drunk or not.

[53]     I require you to complete this plan within 21 days and provide a draft to me for signing off.  If I need to have further discussions with your counsel and/or the Probation Service or prosecutors then that will be arranged.  I realise Mr Prince that this project will be a difficult task for you. You are not a public speaker.  You are not articulate.  You are a shy man.  You will need to find ways of getting your message across as best you can and you will need plenty of help.  If the Wheelers wish to be consulted about the content of your plan, I am fully supportive of that.  If they or the survivors and their families wish to help in this programme of public education, I am supportive of that as well.

[54]     On  each  of  the  four  counts  of  reckless  driving  causing  injury,  you  are

sentenced to four months’ home detention to be served concurrently.

[55]     Your home detention is to be served at the address provided in the Probation

Sentencing Report and on the special conditions contained in the recommendations. [56]     You are disqualified from driving for three years.

[57]     Please stand down.

Williams J