R v Ross
[2023] NZHC 2477
•5 September 2023
IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY
I TE KŌTI MATUA O AOTEAROA TE TIHI-O-MARU ROHE
CRI-2022-045-238
[2023] NZHC 2477
THE KING v
JOHN DAVID ROSS
Hearing: 5 September 2023 Appearances:
S M H McManus for Crown
S A Saunderson-Warner for Defendant
Judgment:
5 September 2023
SENTENCING REMARKS OF EATON J
[1] John David Ross, you appear for sentence having pleaded guilty to a charge of manslaughter. Your guilty plea was entered following your acceptance of a sentencing indication I gave on 6 June this year.1 The sentence indication notes are to be attached to the sentencing notes.
[2] I acknowledge the presence in court this morning of the family of Brendan Prince.
[3] In sentencing you today, Mr Ross, I will first outline the facts of your offending and refer to the consequences of your offending on the victims. Then, I will refer to the starting point for the offence of manslaughter in cases involving dangerous driving.
1 R v Ross [2023] NZHC 1441.
R v ROSS [2023] NZHC 2477 [5 September 2023]
I will then refer to your personal circumstances. Of course, as with the starting point, a number of those circumstances were considered at the sentence indication hearing, but final quantification of the appropriate total deductions was left to be determined today, awaiting further material.
The offending
[4] You personally will be all too familiar with the details of your admitted offending, as will Mr Prince’s family. However, sentencing is a public function to be undertaken in an open court, and it is necessary for me to refer to the facts of your offending.
[5] On 19 February 2022, you were 18 years old and on a restricted licence. You picked up a passenger in breach of the terms of your restricted licence. You had been drinking. Your passenger was concerned and took over the driving of your vehicle. Due to your intoxication and related belligerent behaviour, that person then left you. You took up the wheel again and drove to meet up with three associates at King George Park in Oamaru.
[6] At the park, you continued drinking alcohol. All four of you then decided to travel in your vehicle to the north end of Oamaru. You were driving. Your front seat passenger was Brendan Prince, a young man aged 25. The rear seat passengers were aged 17 and 19 years. You drove at speed down Tyne Street. You did not slow for the Tyne Street roundabout and narrowly missed a collision with another vehicle. You then drove to an area known locally as “The Junction”, where Wansbeck Street becomes State Highway One and drove through the main street of Oamaru. The maximum speed limit is 50 kph. You were observed by members of the public travelling at a much higher speed, weaving in and out of traffic, tailgating, and overtaking other road-users. As you passed the Countdown supermarket, you failed to follow the curvature of the road and had to take evasive action to avoid a collision with a tree. A passenger in your vehicle was videoing you and your vehicle’s speedometer as you were driving. That recorded that you were driving at speeds of between 130 and 140 km/h.
[7] You entered a mild sweeping bend where the double lanes of Thames Street merge into a single northbound lane on the Thames Highway. You were still travelling at speed. You turned to avoid hitting the gutter. As you did so, you lost control of the vehicle and it started to fishtail. It then began sliding sideways along the highway into oncoming traffic, causing a motorcyclist to brake suddenly. Your vehicle slid a distance of around 91 m. Subsequent analysis by the Police established your vehicle was travelling between 123 and 141 km/h throughout this distance.
[8] Your vehicle then mounted the gutter, hitting and completely demolishing a wooden fence. The vehicle continued sliding sideways and collided at speed with a stone block fence. The front passenger side of your vehicle took the full impact of this collision, killing Brendan Prince instantly. You and one of the rear seat passengers were uninjured. The second rear seat passenger received a minor injury.
[9] That collision caused substantial damage to the fencing of two properties. The force of the impact caused debris from wooden fence palings and posts to scatter in the surrounding area, causing further damage. An electrical fuse box was damaged. Numerous properties lost power. But, as I am sure you will appreciate, Mr Ross, the extensive damage you caused to property pales into insignificance in a case where a life has been taken.
[10] A blood test confirmed you had a blood alcohol level of 253 mg of alcohol per 100 ml of blood. As an 18-year-old, your limit was zero, and the legal limit for adults on a full licence is 50. You were grossly intoxicated.
[11] The Police who attended described you as very upset and distressed. You admitted being the driver and apologised for your actions.
Victim impact statements
[12] Prior to coming into court this morning, I have read all the victim impact statements from the family of Brendan Prince. Victim impact statements have been read in court this morning by two of Brendan’s siblings, from his aunt, and from one of his cousins.
[13] Those statements tell me that Brendan was a young man with a heart of gold, somebody who was kind, considerate and caring, and who put a smile on the face of others. It is very clear that he was loved and is deeply missed by his family. Such was his impact on others, his loved-ones are left wondering how they can face a future without him. The victim impact statements reflect an entirely understandable anger that your senseless and utterly irresponsible actions have had such devastating consequences.
[14]I thank all those who have provided victim impact statements.
[15] I am sure the family understand that no sentence I can impose will reflect the enduring pain and grief that is suffered when a life is taken by an unlawful act.
The starting point
[16] Guidance as to the starting point in a case of motor manslaughter is provided by the decision of the Court of Appeal in Gacitua v R,2 where the Court identified a number of aggravating factors for driving-related offences where a death has resulted and referred to a number of manslaughter cases where alcohol was an aggravating factor.
[17]The aggravating factors in your case are:
(a)Your very high alcohol level. As I have observed, you were heavily intoxicated.
(b)The speeds at which you were driving, speeds so far in excess of the speed limit and so inherently dangerous.
(c)Your driving was generally aggressive as witnessed by several members of the public.
2 Gacitua v R [2013] NZCA 234.
(d)You were on notice that your driving was unsafe. Earlier in the evening, a passenger had observed that you were drinking and had taken over the driving of your vehicle.
(e)Your dangerous driving was prolonged, persistent and deliberate. It took place over a course of 4.7 km.
(f)You were driving in breach of the conditions of your restricted licence.
[18] At the sentence indication hearing I referred in some detail to the facts of Millar v R3 and R v Gosling4 as being cases involving offending with a similar level of culpability to your offending. I have also considered the very recent sentencing of Dunningham J in R v Tiddy.5 Mr Tiddy had never held a driver’s licence and had been subject to a six-month disqualification and an alcohol interlock device order, having committed driving offences involving driving with excess blood alcohol. On 23 February this year, he had been drinking alcohol and smoking cannabis. He drove dangerously over an extended period, causing other drivers to take evasive action, and overtaking on double yellow lines before losing control, the vehicle rolling before hitting a tree, leading to a passenger being killed instantly. He had a blood alcohol level of 141 mg of alcohol per 100 ml of blood. The sentencing Judge, by reference to the cases of Gacitua and Millar, took a starting point of six and a half years’ imprisonment.
[19] That was the very starting point that I indicated would be applied to your sentencing.
[20] While there is no tariff sentence for a case of motor manslaughter, the sad reality is that there are far too many cases, involving the aggravating factors that apply to your offending, and that can be referenced to ensure consistency in fixing a starting point. What that tells me is that these types of cases, cases of appalling driving involving young men, dangerous drunken driving, and high speeds are all too commonplace, highlighting the need for the Court to send a strong message to any
3 Millar v R [2019] NZCA 570.
4 R v Gosling [2019] NZHC 1233.
5 R v Tiddy [2023] NZHC 2288.
like-minded persons that a sentence of imprisonment, even for first offenders, is an almost inevitable outcome for such offending.
[21] So, the starting point I fix is six and half year’s imprisonment. There are no personal aggravating factors that warrant any uplift to that starting point.
Personal circumstances
[22] At the sentence indication, I indicated deductions from that starting point were appropriate to reflect your youth, your mental health and your guilty plea. I indicated a further deduction may be available to reflect remorse and rehabilitation.
Youth
[23] The rationale for a discount to reflect youth has been recently considered by the Court of Appeal Dickey v R6 in the context of sentencing young persons for the offence of murder. In Churchward v R,7 the Court accepted there are significant neurological differences between young people and adults. The Court recognised that the abilities to plan, consider, control impulses and make wise judgments are the last parts of the brain to develop, and acknowledged that young persons’ brains are programmed to engage in higher levels of risk.
[24] The Court in Churchward also recognised that young people are more susceptible to negative influences and that the environment in which they act could lead to inappropriate behaviour. It was accepted that long sentences can have a devastating impact on young people and that young people are more amenable to treatment and consequently have better prospects of rehabilitation than adult offenders.
[25] There is no outer limit to the discount for youth, but discounts of between 10 and 30 per cent are commonplace.8 In R v Rapira, it was acknowledged that: “Where the offending is grave, the scope to take account of youth may be greatly
6 Dickey v R [2023] NZCA 2.
7 Churchward v R [2011] NZCA 531, (2011) 25 CRNZ 446.
8 Pouwhare v R [2010] NZCA 268, (2010) 24 CRNZ 868 at [98].
circumscribed”.9 The principal reason given was that the factors leading young people to offend may point to public safety considerations. The Court also cited Pouwhare v R, in which it was held that radical discounts may be given for youth even when offending is serious.
[26] You are entitled to a discrete discount to reflect your youth. You were 18 years old when you offended. In my view, the youth discount that might otherwise be available to an 18-year-old offender is tempered by the disproportionate involvement of young men in offences of motor manslaughter. That tells me, as a sentencing Judge, that the sentencing purposes of denunciation and deterrence require greater weighting. I have no doubt, Mr Ross, that you are now very aware that young men of your age are far too often involved in fatal driving incidents arising out of the deadly combination of alcohol and speed. You, no doubt as is common to many young men, felt bullet-proof, a belief that “that won’t happen to me, it won’t happen to us”.
[27] Denunciation and deterrence dictate that a credit at that upper end of the youth credit range I have referred to of 30 per cent is not appropriate.
[28] At the sentence indication, I resolved that a discount of 15 per cent for youth was appropriate. That was the youth deduction that was allowed in Millar, a case involving very similar offending by a 19 year old defendant.10 I confirm that level of deduction today.
Mental health
[29] In Dickey, the Court accepted that modern research confirms young persons who commit serious offences frequently exhibit other characteristics which also tend to mitigate culpability, including intellectual deficits, mental illness, and experiences of abuse or other childhood trauma.11 Ms Saunderson-Warner submits that you fall within that category of case, given the evidence you have, for several years, been suffering from mental illness.
9 R v Rapira [2003] 3 NZLR 794 (HC) at [122].
10 Millar v R, above n 3, at [30].
11 Dickey v R, above n 6, at [86].
[30] I have considered the report of Dr Martin Sellbom, a clinical psychologist. I have also had regard to the letter written by your older sister. Dr Sellbom confirms you meet the diagnostic criteria for attention deficit, hyperactivity disorder (ADHD). He tells me you demonstrated clear deficits in attention, concentration, memory, mood regulation and general impulsivity and hyperactivity during his evaluation of you. He tells me you have suffered both a depressive disorder and social anxiety throughout your life with varying degrees of intensity. Your mental health deteriorated substantially following the death of your father in tragic circumstances when you were only 12 years old. Following that, you became socially withdrawn and isolated.
[31] Dr Sellbom is of the opinion that your mental health challenges have had a contributing impact on this offending. Particularly, he says, your ADHD symptoms make it more difficult for you to inhibit your impulses or to contemplate the consequences of your actions. I note you told Dr Sellbom that not long before your offending, your two closest friends in whom you would confide had left Oamaru to attend university, leaving you feeling isolated. Due to your inadequate coping mechanisms, you resorted to increased and persistent alcohol use.
[32] Alcohol abuse, disinhibition of impulse and blindness to the possible consequences of your behaviour are features of your offending. I accept your longstanding and now diagnosed mental health challenges do mitigate your culpability.
[33] Whilst I acknowledge that there is some overlap between your youth and your mental health issues, I do consider a discrete discount is appropriate to reflect the mental health challenges that you were facing at the time and which you continue to face. I allow a 15 per cent credit to recognise your mental health issues.
Guilty plea
[34] Ms Saunderson-Warner on your behalf submits, and Ms McManus on behalf of the Crown accepts, that you are entitled to a 25 per cent credit for your guilty plea. I agree.
Remorse and rehabilitation
[35] At the sentence indication, I left open the possibility of a further discrete discount to reflect your remorse and prospects for rehabilitation. Whether a discrete deduction to reflect those factors was available and, if so, the level of any further deduction, was left to be assessed when all the relevant material, alongside the material I had at the time of the sentence indication hearing, could be considered. That material is now available.
Right Track programme report
[36] Commencing in late September 2022, you participated in Te Ara Tutuki Pai, the Right Track programme, a programme for driving offenders, designed to educate, motivate, challenge and inspire participants through a range of life-changing experiences to enable them to make better decisions and choices for the future.
[37] The programme manager, Mr Duncan Woods, has written to the Court. Mr Woods has a very real experience of young men, dangerous driving, and a devastating outcome. In 2010, Mr Woods’ four-year-old son was killed as his son was walking on the footpath with Mr Woods’ wife and his other child. A vehicle, driven by a 17-year-old who lost control of his vehicle, mounted the footpath, and killed the child.
[38] Mr Woods says that, on entering the Right Track programme, you were struggling to comes to terms with your offending. He emphasises the very strong support you have from your mother. He describes you as being open and honest about your offending and genuine in your efforts to learn and grow. His report describes your graduation ceremony where you shared with the other programme participants your story. When you graduated from the programme, you asked to remain involved with the Right Track as a volunteer and, until your custodial remand, you were participating as a volunteer in the Otago programme. Ms Saunderson-Warner advises that since your custodial remand, your mother has continued to participate and make presentations at the Right-Track Programme in your absence. You are fortunate to have family who continue to support you.
[39] It is very much to your credit that you positively engaged with the Right Track programme, and, through that programme, you have embarked on a number of initiatives intended to bring home to young men the responsibilities they carry when they get behind the wheel.
Pre-sentence report
[40] The pre-sentence report is positive. It tells me you have engaged well since your custodial remand and that you remain motivated to make meaningful changes to reduce the risk of any offending on your release. That report confirms you take full responsibility for your actions. You do not seek to minimise your culpability. You do not seek to pass any responsibility for the offending to any other person.
[41] The report describes you as expressing a high degree of remorse, reflected in your pre-custodial engagements with the Right Track programme and your willingness to participate in a restorative justice process. The report tells me that since your offending and the formal diagnosis of ADHD, you have begun a programme of medication which you describe as being “one hundred percent effective” in controlling your mood fluctuations, leading you to feel less socially anxious.
Restorative justice
[42] I have a brief report from the restorative justice co-ordinator advising that you have confirmed your willingness to participate in a restorative justice conference but that, presently and understandably, Brendan’s family do not feel up to participating in such a conference. That might change after you have been sentenced. Nevertheless, I recognise and commend you for being willing to participate in restorative justice.
[43] Mr Ross, I do accept you are genuinely remorseful for your offending. It is to your credit that, notwithstanding the inevitable sentencing outcome that you face, you have adopted a positive mindset, doing what you can do to make good the harm you have caused by bettering yourself. Ms Saunderson-Warner submits, and Ms McManus on behalf of the Crown responsibly accepts, that a further discrete reduction in your sentence is appropriate, and I fix a discrete credit of 10 per cent to reflect remorse and rehabilitation.
[44] It is appropriate that a lengthy term of disqualification should follow your conviction for motor manslaughter. That is primarily for the objective of public safety. You will be disqualified from holding or obtaining a driver licence for a period of five years from the date of your release from prison.
[45] Reparation was originally sought in the sum of $11,500 approximately to reflect the damage that was caused by your driving, including a sum to reflect the analyst’s fee and medical expenses associated with blood testing procedures. You have limited financial means, but Ms Saunderson-Warner tells me that you have sufficient savings to meet the excesses of $400 for each of the two parties who had property damaged and who have made insurance claims. Beyond that, any reparation order will inevitably be paid by modest weekly instalments following your release from prison.
[46] Having considered your financial situation, I make reparation orders in the sum of $400 in favour of the Clarke family and $400 in favour of the McLay family to cover the excesses on their insurance claims. I also order you to make reparation in the sum of $1,725.63 to Network Waitaki. That is to be paid by instalments on your release from prison. I make no other reparation order.
End sentence
[47] Mr Ross, can you please stand. From a starting point of six and a half years’ imprisonment, with total deductions of 65 per cent, that leaves an end sentence of two years and three months’ imprisonment. On the charge of manslaughter, you are sentenced to two years and three months’ imprisonment. You are disqualified from holding or obtaining a driver licence for a period of five years from the date of your release from prison, and you are ordered to make reparation in the sums I have outlined.
[48]You can stand down.
...................................................
Eaton J
Solicitors/Counsel:
Gresson Dorman & Co, Timaru Sarah Saunderson-Warner, Dunedin
NOTE: PUBMCATION OF THE JUDGI\4$NT AND OF T1fE REQUEST FOlt A fi N(ENCIh G ISDICA1’1ON IR ANY nMWG MEDIA On On EHE INTERNET O.R DTHRR PUBLICLY ACCRS SIBLE DATABA8E IS PROHLBITRD BY SECTION 63 OF THR CRIMINAL PROCEDURE ACT 2011
t.f'i3’lL THE LiEfi'ENHANT IIAs IIERN srnTrncEll liii rim i:HAR€iz
bttg:/Arww.legislation.goat.az/acr/pubIic/201a/0081/latest/Okf\4386S734.filial
IN THE HIGH COURT OP NEW ZBALAND
TIMARU REGIGJRY
fTEKOTI*1*GA0*OTEARDA
TETIIO.MAR0RORE
CBI-2II22-045-Z38
lz4J3j NZI4t 2441
.IOHN DAVID RFS
Hearing:
Appearances: S M I I IvtcMaous for Crown
S A 'iaun6erson-Werner for Defendant
6 June 2023
ORAL fiFfTENClN€i Ii•fDICAT¥ON OF RATON I
[1] John David Ross has asluxl lot a untence on a vharge ol‘ manslaughter: It is impomat jo recegnist ifiat btcatist this is a sentence imlicstion, I will aot addict everything that would be covered if this were a sentencing after a
you wee to plead guilty, irr setting a starting point, and then iiidicae what discounts as n>ilable on the information curreiuly t rfor int.
[2] I will firstly, liowever, deal with the th , ñ r they arc ‹riilcal in iinderstauding is'hat serrtunce is properly' iigpu9nl. There is e very dctailcil summary of leers that has been prepomd by the prosecution, end 1 have read that carefully. For mdaj"a purposes, 1 will briefly xumnarise the alleged offence, and I hope it dr›es nut cause disi^ * !* o1' Brendan’s family. wlsfi are Lere.
[3) On 19 Fcbruar¡ 2022, you were l8* yeai'g öld aùd on a rnstiicte'd licence. OU lhat gay you had been dririking. This was nt concern to a passtnger you had picfed up tu take to an addiess in Oamani, and it expleins w)' that passenger then t0ok over the driviiig of jour veliic]e. Et person td left you. You iuuk up the whcel alain arië drovc æ meer uj u ith three of your' associates at Kiitg tienne Part.
[4] Oiice you n'ere thete With your ass+ciatcs, you continued drinking alcohol: All four nF you dec ical to drive in 'i our I chi ie to the ninth cmd ot'Oaniaru. You were in the dt'jvtr’s seat. Your lrem 'sent passenger r'as Bn:ndén Prince, a 25•ycaoald mam, whr+ ai d not have a currmt valiil driver licence. Your iounic›- took you through nearly ñ x'e kiluitrctrcs ul' rcsirlcntinl stmts with a maximum speed of 5O km/h. \fi were obsur ved thiu'uyb parts of that jsumcy travellin 6 at a much greater npeeñ uwviiig.in afi I ottt of-iwfljc, tailgating, and cri'ertaking. other read-usern. 'I'hei'e was a J›anfienger
in the › ñiclc videoing you a'nd vidaning the i'ehic le‘s st›eedornmr oa you ogre ilriviiig. You are driviiig at speeds of hetweeii I j0 arrd 140. 1; fnfh.
[S) You witered a mind Kwa ping &n‹I wi the J”haozcs Higb a›'. Yuu turor‹i lu avoid hitii n8 the giluer. As you ‹lid so, ihe vehiclo bugnn io la coriàul arif slartod to fishtail. It then begui slidinç. rido»ay s along the highuay into onconiiiig traffic, caunirg a union( eliut to brakc suddcnly. Your sefiicle slid à distance of aimind 91 m. SuRequenl Ott0lysis @' flic Police nhoz'cd your vehicle was 'tw el ting between 123 end 141 ktrr'h thioiighouÎ this distarice. Your vehicle then hit a wooden fence, complètes' dentolishing it, and conûnucd glidirig into a störic block f'yncc. Your
veliiole M the ftill tœpaol ul this cnltision, tragi carly tilliiig Brendan Prince inslonùy. You ont omc cl' the mer scat passengers mere uuinjured. Tire sccnnd rear seai passcngcr rece ivcd e rninm' injury.
[6] Tire collision cord sub5tznlial damage to ttie fencing of two properties Tlin force of ttle iintM caused debris from wooden ftnce. pelliigs and. pn's15 to Faber in the surrounding ores, causing further damage.
[7) A bluud spc.ctmm ñbteml Item you aho»n1 tour blood stained 253 rug of alcohol pur 100 nil of blood. As an 1 &•ycar•old, your limit v•'as zcru, cmi the 1ey1
limit for adults is 50. You were hceiily intoxicated. !
[8] Victim impact statements are nol'presenlly u'eilable, aim they would fonn a vny important part of any sentencing that was to follriw this sentence iñdication. I
simply recognise fhat if is clear from tfiox attei«iiRg in fhis Court today tfiat Bxndan’s
Thy starting poñif
(9] ln dcimining tic prupcr sentence t0r your offmdmp, 1 have regard io the purposes and principles at our in the Sentcnci Act 2002. 'that includes hsving wgard to the pa 'ity' of tfir offi•ndin6 in the particular case that 1 must deal wiih, and ensuring lhnt 1 sentence you cr, in tfiis case, indicate a sentence to yñli: that is consistent with sentencing that* iv imposed on similar ofléndws who lin› ‹ommiilcd similar. offences in generally simile circumstances.
driving related offences where a deck lies insulted, ' And udth reference to th'at case, . Hi s icMaaus hos soid ttere are o number of aggravating temirm that are relevant and apply to your o(Amding.
[11] Tfic lirst in your vrry high level ot' aluuhcrl. The sand is your grestl3' excessive speed. Tfiosc E*o factors erc described by tire Cniwn as being ltte critical aggravatirig factors of yoiu' di'iving. The third is your aggrcssvc* rlrii'itig gcorrnlly. wti ich was witnessid by members of the public in the lead up to the cnish. The 1o atth
ia the laat ttat you tad o pnssengei warmer in ihe m‹tin2 nottce that you .lifi haeii ärinLing, len‹ting tim io taking over ihr Fri ing u1' our •ehicle. ' lie Cmwn seys, well, that puts ycru na notioc that you should riot have bec•n dnving . The fitch is ttiot your dnving involved ri prolongcd, pursistcnt aiul dclibcratc come ol'vcry bad drJ ving over a distoncc of 4.7 kiloinntrcs fioin when j'ou* left King Gcoigc Park to wk you craslied. The firial eggravating factor poiuted to is that yöu sec dïiviiip in bwnch nl' the conditie ns nl your resti'l cted l icence.
[12] tfi ñaundersnn- Wo 'ner, nn your h<I off, os you leave heoid, geIei'atI accepts thu8e aggru vuting fé Ws tm, za: pnttic+I tic, W sp#cJ nnfl ltu+ fto are Eire tHn critical
Sbn ccknnw]edges that
lRCtur *28 [ rcsc0t bui pomts* ont that gczsan x*as coaccmc‹t abo r our JrinLing and
[1.3] As you hate heard. f must have*regard to other cases to try and idcntilJ v•'hel is the appmprinte sentence to lie indicated to you, and, sadly, is this case reminds us, fhete all far too maiij' generally similar cases which l›nth counsel have referred mc In where young rrieo l1ax'e driven dangerously under the influence of alonhol and caused the death of one oi tnñie of their pa vsengers. I us11 not go tit rough them all, but I 1i°vr i'ead M nll in defiling the appropriate storing point for yout offending. There were twu cases, in particular, that, in my 'iew, most closely tells:t your o*ffending. 'Die fi rst in differ v R and the second is fi v Grating.'
[14] lii 3tI//oi; the i9•3'ear-old defendant lost cunti 1 when driving at between 80 and 120 1uri/li iii a 5fi kñ›fi one, but ihen mt un to reach spmJa of at leost 180 km/fi on.the open mad, pcrfmming drifts and donuis. alung thu wuy. \VM he was attempting another drift on a minding section of'the mail, he slid oil'the road orld doWn a smep lurk, drilling one passenger instantly and injuring anotlin.' His blwu6 alc'oliul count wss 142 ing of nl cnhol per 1.00 nil of blood. A starting point in that cnsc ol'*six
th] in G lily, the fietcnfiant liad ten di'io*k iiig u'hen he decided to go for n di'iv é v•'ith his two assuciatn to she»' cft his car. 9ihi ie dñ viag on wet country roads in the’.ëf **DO9]NZ )"0:’oJ*•O,M i)O9]8fNCl2)
iain, fic renews xpcods of' up to 23. 6 *knit before losing control ml ltte vehicle on a bcnil, crañinb into a water race.. One passenger was cJcctml frum the vehicle arid tillod. The other passenger received injivics. The defendant ‘s blond alcohol ley c1, wfren tested some time after the crash, was 99 mg of alcohol per 100 ml of blood and, in that can, the Court took a six year, three iiinntli .staiting point.
[I 6] In jy view, ynur a ffend I nc invnlvm a very similar level of culpabilij',
allhougb' you hari a higher ulwhol reeling ilian flow ttie defendan' ts in /lf I/?ar andapcount of the foot ttnt the spccrls yen v'crc tmvclling at v'm ill u ."0 kM/lr Notre.and i+ot oii the open road.
[I 7) As in i4/ffrir and C‹xi/nig, your driving did engage sim4aincfl, deliberate, dangerous di'iving. I also acknowl edge, aIl›eit' not as a significant aggravntitig factor, It earlier' in the ever iiig you hnd air asmcifite who ivoul d not let you dri 'c because of your level o(*intoxication. Mr Ross, that was a niynal to you tiint J'uq should not hnvé b<m ‹tri 'ing and it is, no. douht. one that you have thought about since, and one thai you should he ve heeded.
[I 8] So, I consider' it six erid 8 hRlt' year sinning puint is 'appropriate in your case, and I consider. thai to be curisixtcnl Cth the Cuuri of Appeal’s ot›sen'vi on ir i7ariruo that, 'other manslaughter cases in which alctihol v•'ns nn qgravating fac1ot'.„ indicate a starting pniit of be s'een six years and gix ycan sis months”, ’
[19) I then turn to the discounts that are available tn you. Buth c'uuwl agree you in entitled tq e 2S per cent discount on that starring point if you ucrc tu cnta' n guilty plea fOllOu0rig the wntence i ndication anéL in those circumsumccs, I wuul4 l1ow 1ho1 level of discount. It h ten explained 1x+ me that the delays in entering your plea hnve bee a msult of delays in completion of the serious crash invc=tigntion end
[20] tloth coutiaet alec avccpt'you arc cntitlcd tu a rliscrctc discouut to rcll ct your yc'uth. i'lial is approprtok lot ttie rmsuris that hRvo.been oiitlincü tu another Court.ul' Appeal case caltaJ €’ûurcùwM.'' As t ipcntionüd, in the iU/frn• case tfic üclénrlunt was aged' 1.9, and in tfiet ce 1. 5 par cent was allowcd for youth." I woùld alloc' flic
[21 As és. l•een recognised in t£e conreu el' oryrmcnt ihis. mcrning, il* moo• complex issuè is what discnunt rnight be «llo›xcd to it i our pcnonnl hcLgroun‹l, iiicludintt your menml health i seues, I hav< rccéivol, mil lúrnd hciptul, the: reporr from lir Martin Selllinin, Who is a cliniuul psycholopst. in his opinion, you mcet the diagn8stic t *8fiÏ8oÍd for multiÇl€ mGntfll Ïlcdlth pFublcIàs. Hc snyx utt mUeÍ IhG criterta for niictitiun Ouficit hypcmct*ivij' disordci' u'hich we at1 kiuifi as ADHD, meanirig you sfiów clear dctiéils in atlcrrfiori, concentmtion, nianory, inood rcg'ulstion and general impulsivity. It is also cleiir from his report that you have suffered from butb a depressiva disordcr and social anxiety through your 1 ife, and tiuit J'our mental hcalth deteriorated iuhstauti al1y foll nwing yaui làtliei ‘n death ivhen you uere only t2 years old. Dr $ellborn is also concerned Prat ynu may meet the threshoid for mild alcohol ase di mrder, although he rèached no definitiva conclus!on ahout that.
[22] It is iciI›orant thst* Dr Setlbom Iss obtained in.his.sport how' ynur mental fresh pzob1 as as conomud tu the cutt<at xI1cge‹I odeahiag beba›iour. He says yoor ADHD mates ii mora dilhculi for von ih«n the average perdon tu inhibit your impulsos and te corcfiilly corixidcr the conscqucnccñ ot' your actiqns.. flc ssys yoo dó not have a guod mping mcchanism io hnndle the lit* sire9soo von have experimced, and \'ou have rcsurtcd to incrcascú and pcrsistcnl alcohol use.
[23] It'follosvs I ai•ocpt that tbnc is'an idcrïtiÇ'ing connection bctuccii your w' tnl hcalth issuns end jour offeiiding. Ms McMauus on bchalf. of the Crowu has sairl the Court ought to exercice caution *in quaiidfying what discount ought to bc aveilabk te iecogjiise your mtriutJ heelth issués and *'our pei'ioiml hackgröund. Sfie says that this* is a casê u4ierë there is signifi cant overtap hetuæri what fins been •fcrrcd to. in
Dr se1lbom’n rest ourt the crodit that he already tween indicated to reflect your youth. She ieliis particularly to impulse continl.
[24] I agree dim there is line o 'erlap, but I dc cimsñlcr tluit your bockgrutiA rind meninl helm isnuen dr justify e discrete mount, stbcii nut at tire level stibniittcrl by Ms fiaundefsoii- Watner. I uiav IN itlluw n i 5 yer cent discrete discoiurt for your mental health insues. ' t'h at u'ould be u toial d inuuunt for youth arid mcntul hcnlfh issues .at 30 per not which, Mf Ross, I consider to be a generous deduction.
}2S] Ms Snundcrsoii•Warner advanced an a further foctnr jpnti 'ing an allowance. your' good character and rehabilitation. I prefer io ment remorse and rehabilitation os being more closely linked and to fee «pmuly considorat from my ahou'ence for good cMcter,
[26] As ter as mmorse arid i'cluibilita1ion arc concerned, Ui Scllbom lells mo you appear tnotis'aRd to engage 'ith mentai hcalth treatment and that you express a desire to wotk on your difficult tcs, wfiich he assesses as genuine. He did caution, however, ihal otir past attempts tit engaging v•'ith mental health ser vicev had met with variable succws aim that your ADHD migiit be a barrier Hi your full engagement.
[27] Tires is other infounation before inc, however, pointing to yo\1r remorse and your' commitment to ielutbilitatic n. In Jmrticmlar, ttiere u'as the leltei' that you have heard discussed from M r liner Woods, from tfie II ight 'l'rnck Programme. a programme designed to enahle drip'ing offender's tc moke helter decisions and choices in the futi1n•. Mr 4'corls believes y uu arc genuinely rcmcrsel ul mm your actions otid thai yOu he e index t'ull rmpurinibitity, including stepping rlriaking. And his Sounder on-Wnmcr line tolrl me lfiis morning nbuut the liirlhcr stups involv your engagement with the Right Trnch R ogruinmc, includiy speaking vulunlnrily to otJscr persons involved with tlmt prognnirnc.
J28] Those arc all positive indicators, Mr Ross, and I hate also got fruin J'oiu ststci' a lcttcr coiifi rmiiig that you have changed significantly since tfie crash. She says yuit have stopped drinking, and she tsikn ahout how she witnessed your fitll invoNcirient in the R ight Track Pmgi'aiume.
[29] derail, although it seems you have struggled to gel yotuself on a propn and safe path in the past, you hnve expressed u'hat f anness to f›e genuine remorse foilou ing the tragic incident giving rim tr+ a death and yau love lvii shnwing a genuine desire to rehabilitate yourself.
Tficrc arc issues off iiun
to bc addrcssod.
[.3 ) ] I ogre Uh ir is fi'ear tn wcit unti) cffnae nattei's licve Feen filly cnrrtg)eted Fel°ore heing definirix'e aHout and' further pITe'wance tn i'eflect Fnth xmnrse arid xlvibiliiatiwi, but I can inJical< to ›cu thaL fyou cwkinue cc the current track, their
'ould a1Iov•’ a U der discount in tbc region of 10 per cent.
} 32] 2inntly, as I have indicatcd, tels Sauiulcmii•Warncr pmposed there be a furlher discourit to rccngnisc your prcinous good charactcr. 1 m noi pcrsuaded lfiet this is 0 case where such a discount is appropriate. You are young' and yu u üo not have ri positive hiatoiy of oontributions to your coivununity. Ind there arc some ncgativc Mf1HYfDt11'al issues that you have enpag'ed iïi throughout your lité that air rccognixml in the mental health discount. I also note you has'e prior recordcü incidents et'driving Without a licenW, inc]iidiitg on ilje second occasion al°ter a mad safcty directive 'sce isstled to you.
}'33] The oIlin4s you have code since the incidcnt thul gives rige tn the chni'ge-. which Arc positive and inv ol 'e you lang votuntnr*' wrrlr with the Right Track Prupmrnmc, I do not consider jvstit'* n cmdii lür prri'ious good chomctei', given those arv siens that luok place nt'icr the cvnt.
tfie li keli hood nf a further discount for remorse and rehabilitation. In nip hni\ever, Mr Rris.5, die end sentence would not lie one of' tu'u yens or less so as io enable a sentence of hnrne detention to he considered, and so I do not consider ib01 flier further today.
[35] I n addition tr› the sentenfi I hay° intlicatA, the Crown seeks mp'sratiun in the sums o I over G l I ,Illlfl and then, separately. over' $350. Thoso mqticsts for mpnration tvoul8 need to be considered in liglit of your pammel circumstances and your ability
[3sj So' that is the sentence indicsiion t'givc io you toda3. A starting point of six and.a hell years’ unprisonnient wiiJi discounts of 55 per cent, with a fiirimer discount available for iemorse and rehabilitation. I forms1 Iy indicate it will remain open untilunti] 9.15 am next tummy to indicate hit wspunsc to the sentence indication.
Such Saunderson-Warner,. Dua zbIn
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