R v Richards
[2017] NZHC 74
•3 February 2017
IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY
CRI-2016-012-000172 [2017] NZHC 74
REGINA
v
SHAY ROBERT RICHARDS
Hearing: 3 February 2017 Appearances:
R D Smith for Crown
A Stevens for DefendantJudgment:
3 February 2017
SENTENCING REMARKS OF GENDALL J
Introduction
[1] Mr Richards, you appear for sentence today having pleaded guilty to one charge of reckless driving causing death, three counts of reckless driving causing injury and one count of theft of petrol. These charges are the result of your actions on 29 July 2015 which lead to the tragic death of Ms Nikita Strange.
[2] You may be seated now until I ask you to stand.
[3] The maximum penalty for the most serious charge of reckless driving causing death is 10 years’ imprisonment or a fine not exceeding $20,000. Reckless driving causing injury carries a maximum sentence of five years’ imprisonment or a fine not exceeding $20,000. Both also require a minimum period of licence disqualification of one year. The theft charge carries a maximum penalty of three months’
imprisonment.
R v RICHARDS [2017] NZHC 74 [3 February 2017]
[4] Mr Richards, you are now 20 years of age, having been 18 at the time of the offending. You have two previous convictions involving theft and you have also twice been convicted and discharged as an unlicensed driver.
Facts
[5] I will now briefly outline the facts of your offending. Early in the morning hours of 29 July 2015, Ms Strange contacted you for help in getting petrol for the car she and her acquaintances were in. Ms Strange, along with Mr Devin Sparrow, Mr Liam Boniface and Mr Xavier Sardiello, had driven up to Dunedin from Invercargill, intending to drive to Christchurch. They realised near Dunedin that they needed petrol but did not have enough money. You offered to do a petrol “drive-off” for the group. The group picked you up and your friend, Ms Kama Hurring. You took over the driving of the car and pulled into the BP Service Station on Cumberland Street, Dunedin, at 2.05 am.
[6] Ms Hurring proceeded to fill the car with $75.54 worth of petrol and then got back in the car. You then quickly drove away, tyres squealing, from the station without paying for the petrol. During this stage Mr Sardiello was the front seat passenger. The other four passengers were sitting in the back. None of the back seat passengers were wearing a seat belt.
[7] You drove south on Cumberland Street before turning and travelling the wrong way down a one-way street to get on to a road back towards Central Dunedin. A passenger estimated that you reached speeds of up to 80 kmph but you told police you were travelling only around 60 km/h. Mr Sardiello told you to slow down and Ms Hurring told you to “stop driving like an idiot” but you did not respond to them.
[8] You turned off Princes Street onto Hope Street, driving at speeds of around
60 kmph. At the intersection of Hope and Carroll Street it is claimed you did not slow down from this speed, despite being obliged to give way. Your vehicle continued at speed up Hope Street to the intersection with Stafford Street where the fatal incident occurred. The Crown says you failed to slow down and clearly you did not give way as you were obliged to. Mr Richards, you have maintained that you did not see the other vehicle and you thought you were close to the speed limit as you
approached the give way sign. As you drove straight through the intersection, the other vehicle (who had right of way) crashed into you. This vehicle was driven by Mr Odering. The front of it impacted the back right passenger’s side of the car you were driving. This caused your car to spin and it carried on through the intersection, crashing into a parked car. The car you were driving finally stopped when it hit a wall.
[9] The sounds of the crash and a female’s screams alerted those in nearby homes and calls were made to the Emergency Services. You forced your driver’s door open and helped Ms Hurring out of the left rear of the vehicle. You noticed that Ms Strange was not moving. You then helped Mr Sardiello get Mr Boniface out of the car. After retrieving Ms Hurring’s shoe from inside the vehicle, the two of you walked up Hope Street away from the crash scene. You were heard to say you intended to call a taxi. Some way up the road you both stopped in a driveway and sent text messages to four different people, asking them to call you.
[10] Meanwhile, the driver of the other vehicle, Mr Odering, performed CPR on Ms Strange. Emergency services arrived and assisted Mr Odering in removing Ms Strange from the vehicle and continued CPR. She was taken to Dunedin Public Hospital, and sadly was pronounced dead at 2.57am. Police located you and Ms Hurring about 60 metres from the crash. You and all the passengers were transported to Dunedin Public Hospital. Mr Boniface was hospitalized for three days, receiving treatment for a broken rib and spleen injury. Mr Sparrow was in hospital for four days and treated for a ruptured bladder, fractured jaw, fractured pelvis and a spinal injury. Mr Sardiello was hospitalized for one day and received treatment for minor pain to his neck and chest and tenderness to his rib cage. All three have had ongoing pain and issues. Ms Hurring was hospitalized for three hours with only minor discomfort. You spent six hours in hospital but also received no significant injuries. Mr Odering was checked at the scene by paramedics. He had a sore neck and back but as his injuries were minor he was not admitted to hospital.
[11] A sample of your blood was obtained after the crash. Analysis showed
0.3 micrograms of THC per litre of blood. This is the equivalent of your having smoked a single cannabis cigarette within the last one to 12 hours. You were driving
on your learner licence at the time of the crash. As I have noted, you told police that you had been driving at speeds close to the speed limit. You said you did not see Mr Odering’s vehicle. You did admit to being a party to the petrol drive off. The Crash Expert who analysed the crash estimated that at the time of the impact your car was travelling somewhere between 56 and 62 kmph.
[12] I have read the victim impact statements and we have heard them all read out in this court today. They make for very sad and sombre reading. Ms Strange’s family members have described what a lively and loving person she was, with many of them describing her as a rock and someone that they could always talk to. It is clear that they are distraught at her death and many have been struggling to cope with their loss. They emphasise how young she was and how much life she had left to live. They also express their feelings suggesting too that you have not made efforts to apologise to them and that they do not believe you feel remorse for what you did. You will have to live with the knowledge that you took a much loved young woman from her family and that you have responsibility for the scars they bear.
[13] The other passengers in the car on that night have also provided victim impact statements. They have expressed how the injuries they received that night have affected them physically since. They also describe the emotional and psychological trauma they carry as a result of being part of a violent crash and seeing their friend die beside them. Finally, Mr Odering has courageously spoken today. In doing so he expressed the guilt and trauma he feels because of his role in the crash. Though he is not at fault in any way in causing the crash, he has to live with that because of your actions, Mr Richards.
Principles of Sentencing
[14] In sentencing you for this offending I am required to consider the purposes and principles of the Sentencing Act 2002. These include the need to hold you accountable, Mr Richards, for the harm you have caused to the victims of your offending. The sentence should also promote in you a sense of responsibility for, and acknowledgement of that harm. The Sentencing Act also requires me to take into account the need for denunciation and deterrence of offending of this nature.
These are the principal purposes of punishment for traffic offences.1 I also need to consider your rehabilitation and reintegration into the community and overall I must impose the least restrictive sentence appropriate in the circumstances.
[15] In May 2011 Parliament increased the maximum penalty for the reckless
driving causing death charge offence from five to 10 years’ imprisonment. In a 2013
Court of Appeal decision Gacitua v R the Court said at 44:2
…Parliament has moved decisively to respond to public concerns over the road toll. While it is regrettable that a young man of unblemished character and obvious potential should face a lengthy prison term, the public interest in discouraging dangerous and grossly irresponsible driving must prevail.
Deterrence and denunciation are clearly significant in the sentencing exercise I must undertake although as I have mentioned I must also have regard to the interests of the victims, your reintegration Mr Richards and the requirement to impose the least restrictive sentence that is appropriate in the circumstances.
[16] Mr Richards, your sentencing today will be a three-step process. The first step is to look at the seriousness of your offending. To do that I have to take into account those principles and purposes of sentencing. This will involve me considering cases similar to yours to see what others have been sentenced to for similar kinds of offending. From this I will decide on a starting point which must be here a sentence of imprisonment. This starting point will take into account factors relating to your offending itself.
[17] My second step will be to look at the factors that relate to you personally. Based on these I will determine how far the starting point of imprisonment should be reduced. My final step will be to consider how much of a discount you should be given for your guilty plea and any other relevant factors.
[18] And, finally, before sentencing you I will then look at the totality of your offending to check that the end sentence properly reflects that.
Starting Point- Reckless Driving Causing Death
[19] I will now undertake the first step and establish a starting point for sentencing. This is determined by considering the seriousness of your offending and your level of culpability. Sentencing in this area is always fact specific but I will consider similar cases in deciding this starting point.3 The charge of reckless driving causing death is the lead offence here.
[20] I will now turn to the individual submissions made to me by your counsel
Mrs Stevens, and Mr Smith for the Crown.
[21] Mrs Stevens submits the degree of recklessness you showed, Mr Richards, was moderate and that a starting point between three and four years’ imprisonment would be appropriate in this case. She also argues that discounts of 25 percent for your youth, remorse and personal circumstances and 25 percent for your guilty plea are appropriate. This would take your end sentence to one of between one and half and two years’ imprisonment, thus opening up the possibility of home detention.
[22] In response, Mr Smith for the Crown submits that your offending is at the high end of the range and that there should be an uplift for your poor driving record. Mr Smith suggests that the starting point should be between five and six years’ imprisonment. He also submits that your youth calls for only a modest discount and that you have shown little real remorse. The Crown does acknowledge your guilty pleas and submits that a discount of 20 percent is sufficient for these. This would result in an end sentence of between three years six months and four years two months’ imprisonment.
[23] The leading case for reckless driving causing death is the Court of Appeal decision I have referred to, Gacitua v R. This case gives some guidance on what factors should be considered in sentencing for this particular type of offence. In
Gacitua the Court of Appeal approved of the use of the guidelines in the English
3 Above n 2 at [22].
case R v Cooksley4 for this type of offending in order to identify some of the aggravating and mitigating factors relevant to sentencing.5
[24] I will now consider the aggravating factors of your offending here, Mr Richards, in order to determine the level of your culpability. A number of the aggravating factors listed in Cooksley were present, as I see it, in your offending:
(a) The consumption of drugs - blood evidence indicates you had consumed cannabis in the hours prior to the incident.
(b) Disregard of warnings from passengers - you ignored pleas from
Mr Sardiello and Ms Hurring to slow down and drive sensibly.
(c) A prolonged, persistent and deliberate course of bad driving - you travelled at speeds above the speed limit along main city roads, you drove the wrong way up a one-way street and drove through a give way intersection it seems without slowing to check for other traffic.
(d)Driving a dangerously loaded vehicle - your car was carrying six passengers, in excess of its 5 passenger capacity. This meant that the passengers in the back were unable to all be wearing seatbelts.
(e) Other offences committed at the same time - you were driving without proper supervision and in the middle of the night despite being on a learner licence.
(f) Previous convictions for motoring offences - you have two previous convictions for being an unlicensed driver and a number of infringements for being a learner driver without appropriate supervision. Although they are far more minor than the present case, they do show some history of improper driving.
(g) Serious injury caused to others in addition to the death of Ms Strange
- Mr Boniface, Mr Sardiello, and Mr Sparrow suffered serious injuries during the crash and Ms Hurring, too, suffered some injury and was briefly hospitalised.
These factors indicate that your offending is generally, as I see it, at the higher end of culpability. The starting point I take must be reflective of this.
[25] In Gacitua, Venning J took a starting point of five years.6 In that case, the defendant, driving at high speed, had attempted to overtake a vehicle in front of him which was turning right at an intersection and to turn right himself. As he was doing so an approaching car, who had right of way, collided with him. The defendant’s passenger died and the passenger of the approaching car was seriously injured. Venning J considered that the aggravating factors present were: Mr Gacitua had consumed alcohol (though he was not over the legal limit); he was engaged in a sustained bout of high speed competitive driving; he pursued a prolonged, persistent and deliberate course of very bad driving; and he had driven aggressively. The Court of Appeal considered that, as these factors showed some overlap, Mr Gacitua’s culpability was high but not the most serious. This meant that a starting point in the
range of four to five years was seen to be appropriate.7
[26] In another relatively recent decision, Scott v R, the defendant drove a month after major abdominal surgery which had been causing her sleep issues since.8 She was intending to drive to her mothers. She was braking erratically, crossed the centre line on a number of occasions and narrowly avoided a collision with an oncoming vehicle. Ms Scott crossed the centre line completely on a slight corner into the path of an oncoming van which had no time to react. The passenger in the
van was killed and the driver of the van seriously injured. The aggravating factors identified were the prolonged, persistent and deliberate course of very bad driving, and driving when knowingly deprived of adequate sleep or rest. The Judge set the
starting point in that case at four years.
6 R v Gacitua [2012] NZHC 2542 at [35].
7 Gacitua, above n 2, at [43].
[27] I find that your culpability here is perhaps similar, if not slightly greater than that in Gacitua, placing it above the middle or at the slightly higher end of the spectrum. I am mindful of the sentencing principle that requires me to impose a penalty near to the maximum penalty prescribed for offending which is near to the most serious of its kind. Having regard to the authorities I have considered and bearing in mind the totality of the offending in this case, which apart from the charge of reckless driving causing death, involves three other charges of causing injuries and a theft of petrol, I take a starting point for your offending of five years’ imprisonment.
Personal Factors
[28] I will now move to step two and consider factors relevant to you, Mr Richards, as an individual.
[29] On a general level, Mr Richards, at the time of this offending, as I have noted, you were the holder of a learner drivers licence and were driving contrary to the restrictions imposed by that licence. As I have also noted, you have two previous convictions for being an unlicensed driver and failing to comply with a prohibition. Prior to the crash you had also incurred five infringements for being a learner driver driving without appropriate supervision, including one such infringement occurring one week prior to the crash. You had previously been suspended from driving for accumulating demerit points for being a learner driver without appropriate supervision. Following the crash, Mr Richards, you have incurred a further four infringements of the same type and have again incurred sufficient demerit points to have your licence suspended. For your previous offending you have received community based sentences of community work, supervision and reparation. You have never served a term of imprisonment.
[30] Although, as I have noted, you have several convictions for previous offending, by a fine margin I do not consider that they warrant an uplift of your sentence as they are not generally of the same direct nature.
[31] Mrs Stevens your counsel, in her submissions has noted that remorse is a mitigating feature in your offending. She claims that you are ‘truly remorseful’ and
that this is evidenced by your quiet social-life since your offending. I note that you have sent a letter of apology to Ms Strange’s father. However this was only sent in the last few months, long after the incident occurred. There is a letter of apology also on the Court file. I am also aware, however, that you declined to participate in a restorative justice conference.
[32] The probation report states that you have felt guilt for the damage you have caused and you are aware that you will live with this weight for the rest of your life. Yet your comments to the probation officer may well tend to show that you may not have taken full responsibility for your actions, despite having decided to plead guilty. The Crown’s submissions before me also point out that you have continued to drive contrary to the terms of your learner licence after the crash, resulting in demerit points and fines. At one level this shows a disregard for the law and the damage you have caused.
[33] Based on these factors, I do not consider your level of remorse warrants a further reduction.
[34] At the time of your offending, Mr Richards, you were 18 years old. Submissions by Mrs Stevens argue that your relative youth calls for a discount, as does your family background which has been described as a difficult one. Youth does not automatically justify leniency. In serious cases like this it is important to
have regard to the principles of deterrence and denunciation.9 As many cases have
noted, offending of this type is overwhelmingly caused by young males so your sentence needs to send a message to the community that such offending will be regarded seriously.10
[35] Nonetheless, I am mindful of the reasons discussed in Churchward v R that do support appropriate discounts for youth.11 These include factors such as the effect of imprisonment on young people and the negative effect it can have on their ability
to gain employment and play a worthwhile role in society in future.12
9 R v Accused CA 265/88 (1988) 4 CRNZ 36 at 48.
10 For example R v Presland [2015] NZHC 1203 at [22].
11 Churchward v R [2011] NZCA 531.
12 Churchward, above n 10, at [77] and [78].
[36] With all this in mind I consider here, Mr Richards, that a 10 percent discount for your youth and general personal factors is appropriate.
Guilty Plea
[37] I will now move to the third step and consider what discount you should receive for your guilty plea.
[38] The Supreme Court in a decision known as Hessell established that a
25 percent discount is appropriate for a guilty plea entered at the earlier stages.13
You pleaded guilty here, Mr Richards, before trial so I will give you the full
25 percent discount. This and the personal factors discount of 10 percent I have already noted, make up a total of a 35 percent discount. On the starting point sentence of five years’ imprisonment, this leaves a final sentence of three years, three months’ imprisonment.
Totality
[39] I will now consider whether this overall sentence accurately reflects the totality of your offending, and not just the charge of reckless driving causing death. Section 85(4)(a) Sentencing Act requires that “if only concurrent sentences are to be imposed, the most serious offence must… receive the penalty that is appropriate for the totality of the offending”. Looking at the total sentence of three years and three months’ imprisonment, I consider that it is proportionate here to the gravity of your overall offending that you are being sentenced for.
Disqualification
[40] The driving offences you face, Mr Richards, all require me to give a mandatory period of disqualification from driving of at least one year. This is subject to the s 81 Land Transport Act defence of special reasons, which are defined in the decision Whittall v Kirby as specific factors relating to the offence and they are subject to a high standard.14 But there are no special reasons here which dissuade
me from applying this mandatory disqualification. The purpose of a disqualification
13 Hessell v R [2010] NZSC 135.
14 Whittall v Kirby [1947] KB 194.
is to protect the community from further offending. I therefore disqualify you from holding or obtaining a licence for four years (which was the period of disqualification that was imposed in Gacitua) beginning from today.
Sentence
[41] Now that I have considered all the relevant factors I will now sentence you for your offending. Mr Richards, would you please stand.
[42] Mr Richards, on the charge of reckless driving causing death you are sentenced to three years and three months’ imprisonment. On the three charges of reckless driving causing injury you are sentenced to two years' imprisonment for each, which are to be served concurrently. On the charge of theft you are sentenced to one month imprisonment to be served concurrently. This brings your total effective sentence to one of three years, three months’ imprisonment.
[43] On the four reckless driving charges you are disqualified from holding or obtaining a driver's licence for a period of four years from today. Stand down please.
...................................................
Gendall J
Solicitors:
RPB Law, Dunedin
Anne Stevens, Dunedin
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