R v Savigny

[2021] NZHC 164

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CRI-2020-012-000683

[2021] NZHC 164

THE QUEEN

v

LUKE BRADLEY SAVIGNY

Hearing:

3 February 2021

Appearances:

R McDonald for Crown

A Stevens QC for Mr Savigny

Judgment:

3 February 2021

SENTENCING NOTES OF         DOOGUE J

Introduction

[1]                 What I would like to do now is to observe some moments of silence in reverence of your son, brother, father, grandson.

[2]                 It is now my task to sentence Mr Savigny. I want to say to Chippa’s family before I do so that there is a very formal way in which the case authorities and the Higher Courts have required Judges to follow when they sentence in cases such as this. It is likely to sound very clinical to you, might even sound like a formula because I will be using percentages, but it is my job to do it that way. The reason why I wanted to observe a moment’s silence for your loved one was because I did not want you to think that a person sitting here is devoid of emotion around these things, Judges are

R v SAVIGNY [2021] NZHC 164

human beings as well, and I acknowledge the tremendous sadness that fills this courtroom today.

[3]Now I will undertake the formal task that I am obliged to undertake.

[4]                 Luke Bradley Savigny, you appear for sentence having pleaded guilty to motor manslaughter following the death of your victim, Christopher Narayan Blair, also known as Chippa.1

The offending

[5]                 At the time of this offending you were 24 years old and had never held a driver’s licence. You were subject to the sentence of supervision for substantially similar offending in January 2019. You were also stopped by police on 18 March 2020 and forbidden from driving until you had obtained a licence.

[6]                 Three days later, on 21 March 2020 at approximately 4.15 am, you picked up Chippa from his address in South Dunedin. Together you travelled to the home of a female associate and shared a bottle of gin. After an altercation with the associate you took her vehicle without her permission and drove away in that vehicle with Chippa as a passenger at around 5.50 am.

[7]                 At approximately 6.10 am you travelled through Waikouaiti. North of the town were roadworks controlled by a 30 km/h temporary speed limit. You overtook a vehicle within the roadworks, knocking over road cones and causing the other driver to take evasive action.

[8]                 At 6.22 am you put $50 of petrol in the vehicle at a Z Petrol Station in Palmerston.

[9]                 A short time later, you overtook a line of three vehicles across double yellow lines at high speed. The road was undulating and curving to the right along a small

1 Crimes Act 1961, ss 160(2)(9) and 177; maximum penalty life imprisonment.

rise, with a speed limit of 50 km/h. Soon after that you overtook another vehicle at excessive speed.

[10]             At approximately 6.56 am, police observed you travelling north on State Highway One just before Alma. You were weaving within your lane and crossed the centre line while travelling at speed. A police vehicle activated its siren and lights and began pursuing you. You sped up to approximately 130km/h in an 80km/h zone, failing to stop for police. The police lost sight of your vehicle and abandoned the pursuit due to your excessive speed.

[11]             At around 7.02 am police came across your vehicle. You had crashed in Awamoa Park. The Police Serious Crash Investigation shows that you lost control at a speed in excess of 150 km/h. You veered to the right across the centre line, slid partly sideways, and crossed the kerb and footpath before striking the 50 km/h sign and hitting five trees. The vehicle came to rest on its bonnet but was effectively severed in half. Chippa was not wearing a seatbelt. He was ejected from the passenger seat and landed 15 metres away from the vehicle. He died instantly on impact.

[12]             Your blood was analysed approximately nine hours after the crash. No alcohol was detected, but it showed methamphetamine at a concentration of 0.01 mg per litre of blood, dihydrocodeine and THC. You initially told police that you were extremely intoxicated and admitted to driving erratically prior to the crash. When questioned you said you may have been driving but you did not remember.

Impact on the victims

[13]             The primary victim of your offending was Chippa. He was 32 and did not deserve to die in the way that he did. He will never wear his favourite Michael Jordan top that his mother showed us ever again, nor will he attend an anniversary or event with his family. He will not witness the beautiful milestones associated with his child, Tyrone, growing up. His friends and family will miss him for the rest of their lives.

[14]             We have heard from Chippa’s mother, father and brother. Their statements were emotive and compelling. You inflicted a lifetime of pain and emptiness on them and Chippa’s nana. No parent should ever have to identify their child’s body.

[15]             Chippa’s mother speaks of sleepless nights and heartbreak. The police came to her workplace to tell her that her son had been killed in a car crash. She had to rush to contact the rest of the family because the media already had the story. She was given no chance to process the death of her son. Chippa’s father has suffered a depth of sadness he has never experienced before. Likewise, his brother has suffered pain he has never known. He suffers from not being able to hear his brother’s voice and join him in their love of music. Their lives are forever impacted negatively by your actions and they have frequent reminders of his senseless violent death that will haunt them.

[16]             Chippa’s twelve-year-old son, Tyrone, had to view Chippa’s body at home, the first dead body he had ever seen and it was his Dad. Alongside this trauma you have robbed him of the chance to grow up with a father in his life.

Approach to sentencing

[17]             In sentencing you to imprisonment today I take a two-step approach.2 First, I will adopt a starting point that considers the aggravating and mitigating features of your offending. Second, I will consider your personal aggravating and mitigating factors.

[18]             I have regard to the statutory purposes of sentencing, including holding you accountable for the harm you caused, promoting a sense of responsibility in you, denouncing your conduct, deterrence and protection of the community.3 I also have regard to the statutory principles of sentencing, including the gravity of your offending, the seriousness of the offence, the effect on the victim, your personal background and the restorative justice processes that have occurred.4 I also take into account the prescribed aggravating and mitigating factors.5

[19]The Court of Appeal guided future sentencing for manslaughter in Gacitua v

R.6 They adopted the aggravating and mitigating factors set out in the leading United

2 Moses v R [2020] NZCA 296 at [46].

3  Sentencing Act 2002, s 7.

4  Sentencing Act 2002, s 8.
5 Sentencing Act 2002, ss 9 and 9(A).

6 Gacitua v R [2013] NZCA 234.

Kingdom cases. In doing so, they recognised that sentencing for motor manslaughter is highly fact dependent and as a result aggravating and mitigating factors are to be weighed differently in different cases.7

Submissions

[20]             Mr McDonald, for the Crown, submitted that your offending fell at the very worst end of motor manslaughter cases. He submitted that starting points in this category range from eight to 12 years’ imprisonment, referred to multiple cases in the written submissions and I cite some of those in my analysis. He referred to several factors of your offending that elevate it to the category of “worst case” and submitted that a starting point between 10 and 11 years’ imprisonment was appropriate.

[21]             He did not think that you should receive any discount for personal mitigating factors aside from a 25 percent discount for your guilty plea.

[22]             Mr McDonald also submitted that a minimum period of imprisonment should be imposed, because in this case he said there is a need for deterrence and denouncement. He pointed out your lack of respect for police authority and undeterred behaviour and submitted you pose a serious danger to the public.

[23]             Your counsel, Mrs Stevens, submitted that the presence and encouragement of Chippa mitigated your culpability. She referred to evidence that he encouraged you to drive recklessly and she submitted that a starting point of six years imprisonment was appropriate.

[24]             She also submitted that you should receive two separate discounts for personal mitigating factors, a 10 percent discount for your remorse and rehabilitative steps you have plainly taken and a five percent discount for your broader personal circumstances. She also submitted that you are entitled to a 25 percent discount for your guilty plea.

7 Gacitua v R, above n 6, at [22] and [29].

Starting point

[25]             I will now determine the appropriate starting point for your offending, and I consider the following cases of assistance.

[26]             R v Peneha: The defendant drove while disqualified and under the influence of methamphetamine. They drove on the wrong side of the road for approximately 300 metres at 100km/h. The victim, in an oncoming vehicle, had no chance of avoiding a head-on collision and was killed. The defendant was also carrying passengers, one of whom was not secured by a seatbelt. That passenger was also killed. Gendall J adopted a starting point of eight years and six months after considering previous convictions.8

[27]             R v Thomas: The defendant offended on the day he was released from prison. At twice the legal alcohol limit he attempted to escape police at 130 km/h. His passengers begged him to stop. He swerved into the opposite lane, drove through two give way signs, lost control and hit a parked car. One passenger was killed, and others were seriously injured. Moore J adopted a starting point of eight years and eight months after considering previous convictions.9

[28]             In R v Guest the drunk defendant drove six passengers in a five-seater car at speeds of up to 180 km/h. His passengers yelled at him to slow down but to no avail. He overtook vehicles and negotiated bends at speed. He lost control while travelling through an S-bend at approximately 129 km/h. He killed a passenger and seriously injured others. Venning J adopted a starting point of eight years and nine months.10

[29]             In R v Tuirirangi the drunk defendant drove three passengers and killed two. They sped, drove aggressively and did not ensure their passengers were properly secured. Mallon J adopted a starting point of nine years after considering previous convictions.11

8 R v Peneha HC Wellington CRI-2006-078-872, 1 August 2006.

9  R v Thomas [2018] NZHC 819.
10  R v Guest [2013] NZHC 2432.

11 R v Tuirirangi HC Wanganui CRI-2010-083-2891, 21 June 2011.

[30]             In R v Strickland the defendant, while high on methamphetamine, relentlessly attempted to escape police in two different vehicles. He drove in a reckless and evasive manner through residential Christchurch. He hit a pedestrian and continued accelerating. The victim was dragged for approximately 20 metres before coming free. He died at the scene. The defendant continued driving at speed and eventually escaped police. Osborne J adopted a starting point of ten years after considering previous convictions.12

[31]             R v Hansen: The drunk defendant fled police at speed, reaching between 170 and 180 km/h. He undertook dangerous manoeuvres and forced on-coming cars to swerve out of the way. He lost control and crossed the centreline, crashing into a van and killing three people. Heath J adopted a starting point of 12 years after considering previous convictions.13

[32]The following aggravating factors are present in your case:

(a)you consumed drugs and alcohol;

(b)you drove at an excessive speed, including speed in excess of 150 km/h;

(c)you drove dangerously to avoid apprehension;

(d)you undertook a prolonged period of persistent and deliberately bad driving, including aggressive and dangerous overtaking;

(e)you have never held a driver’s licence;

(f)you have previous and recent convictions for driving offences;

(g)you failed to ensure that your passenger was secured by a safety belt;

(h)you offended in a vehicle you had taken without permission; and

12  R v Strickland [2020] NZHC 2314.

13 R v Hansen HC New Plymouth CRI-2005-021-945, 2 November 2005.

(i)you offended while subject to sentence for a driving offence.

[33]             I specifically note your January 2019 offending as a major aggravating factor. That offending was substantially the same as this offending. The only material difference is that on this occasion you killed someone.

[34]             There is one mitigating factor to your offending. You and Chippa were drinking and taking drugs together before the offending, and there is some evidence that he encouraged you to drive recklessly. In other cases, by contrast, the victim was not a passenger or the passengers had protested the reckless behaviour.

[35]             This mitigating factor only slightly reduces your culpability. You made the choice to drive as you did, and you are responsible for the consequences of that choice. Nonetheless, it does differentiate your offending from other cases and ought to be considered in determining a starting point.

[36]             I conclude that your offending went slightly beyond cases where a starting point of eight to eight and a half years was adopted. You had been driving abhorrently for a long period of time, and you eventually crashed and killed Chippa while attempting to escape police. Your previous convictions are also relevant. However, the situation and circumstances in this case are not as severe as the offending in Strickland or Hansen. For this reason, I do not think it reaches the level of 10 to 11 years’ imprisonment as submitted by the Crown.

[37]I find the appropriate starting point to be nine years’ imprisonment.

Personal factors

Aggravating factors

[38]I now turn to your personal aggravating and mitigating factors.

[39]             Ordinarily your previous convictions would be an aggravating factor warranting an uplift. However, they have been considered in determining the starting point and I must avoid double counting.

Mitigating factors Guilty plea

[40]You are entitled to a discount of 25 percent for your guilty plea.

Remorse

[41]             Remorse is a mitigating factor separate from a guilty plea.14 The discount given in motor manslaughter cases has ranged from zero to 10 percent.15 Your counsel submitted that 10 percent is justified in this case.

[42]             It is to your credit that you took part in a restorative justice conference with Chippa’s parents. You apologised, you took full responsibility and you thanked them for being gracious enough to meet with you. You resolved to change your ways. Further, you were ‘tight’ with Chippa. There is little reason to doubt the genuineness of your remorse. In R v Tuirirangi similar remorse existed and an eight percent discount was given, and I consider an eight percent discount appropriate in your case.16

Personal background

[43]             The Sentencing Act requires I consider your personal background.17 In doing so I consider the health assessor’s report and the cultural report.

[44]             I note your relative youth but do not give a discount for it because the courts must be particularly wary of youth discounts in driving cases.18 Young men disproportionately cause death by driving recklessly and you have an extensive history of this behaviour.

[45]             Overall, you had a good upbringing. You are fortunate to have parents who continue to support you throughout this sentencing process. However, you were exposed to drugs at a young age and substance abuse has had a terrible and consistent

14 Moses v R [2020] NZCA 296 at [24].

15 R v Strickland, above n 13, at [83]-[84] and R v Gosling [2019] NZHC 1233 at [15].

16 R v Tuirirangi, above n 12, at [26].
17 Sentencing Act 2002, s 8(i).

18 Millar v R [2019] NZCA 570 at [25].

impact on your life. The health assessor’s report suggests that your substance abuse plays a substantial role in your offending. It exacerbates your impulsive nature and causes you to make poor decisions. They also opine that you are more vulnerable to manipulation by antisocial peers than the average person, this is due to your ADHD and the level of your intellectual functioning.

[46]             There is also the cultural report which raised a new and important factor. In your early adolescence you were assaulted by a man seven years your senior. The report writer believed that this has almost certainly had an impact on your life, and I note you began to use cannabis around the time of this assault to ameliorate the trauma this caused you.

[47]             Your counsel submitted that these factors warrant a discount and I agree with her. Although you are responsible for your actions these factors somewhat mitigate your behaviour, and I consider that they are fairly represented by a further five percent discount.

[48]             Your total discounts from the starting point are 38 percent and that leads to an end sentence of five years and seven months.

Minimum period of imprisonment

[49]             The Crown submits that I should impose a minimum period of imprisonment of 50 percent of the period of imprisonment. I may do this if I am satisfied that parole at the ordinary release date will insufficiently meet the sentencing purposes of accountability, deterrence, denunciation or protection of the community.19 MPI’s are imposed frequently in motor manslaughter cases.

[50]             Without an MPI you would be eligible for parole after one year and 10 months of imprisonment. That would be a woefully inadequate sentence for such serious offending. In total there were nine aggravating factors. You caused Chippa’s death after a sustained period of recklessly defying road rules and the directions of police. You could easily have killed others. I consider that the ordinary release date would be

19 Sentencing Act 2002, s 86.

insufficient for achieving the objectives of deterrence, accountability and denunciation. I must also recognise the need to ensure public safety, to keep the public safe from you and your impulsive driving activity.

[51]For those reasons I impose an MPI of three years.

Disqualification

[52]             Your offence was facilitated using a motor vehicle and you used a motor vehicle to flee from police. You have been convicted of motor manslaughter, so you can be disqualified from driving for any period that I choose.20 However, this period of disqualification cannot be imposed in a mechanistic or routine way.21

[53]             Lengthy disqualification periods are frequently imposed. They often begin after the offender is released from prison, rather than from the date the period is imposed.22 The former approach is considerably more onerous than the latter. At the highest end, in R v Pairama, the offender was disqualified from driving for 10 years from the date they were released from prison.23 There are numerous cases where more moderate but still lengthy periods have been imposed.

[54]             I recognise that disqualification from driving can negatively impact rehabilitative prospects. It may also be an ineffective penalty due to your disregard for previous driving restrictions. However, neither the state nor the justice system should endorse your incomprehensible disregard for other people’s lives in the way you use and drive motor vehicles. A driver’s licence is a privilege, it is not a right. Motor vehicles are lethal weapons if not operated with competence and due regard for human life.

[55]             Mr Savigny, you do not operate motor vehicles with competence or due regard for human life. Your driving record is appalling. Quite frankly, you are lucky not to have killed anyone else before now. Your conduct must be denounced.

20 Sentencing Act 2002, s 125(2).

21 Taiapa v R [2019] NZCA 524 at [33-35].
22 Taiapa v R, above n 22, at [32].

23 R v Pairama HC Wanganui CRI-2009-083-2345, 31 May 2009.

[56]             Due to the severity of your offending, a period as long as was imposed in Pairama is open to me. However, having regard to your particular personal challenges and the term of imprisonment I have imposed, I consider that you should be disqualified from holding or obtaining a motor vehicle driving licence for a period of eight years from today.

Result

[57]             The result is that you are sentenced to five years and seven months imprisonment with an MPI of three years, and you are disqualified from holding or obtaining a motor vehicle driver’s licence for a period of eight years, commencing today.

Three strikes warning

[58]             Given your conviction for manslaughter I am obliged to tell you that you are now subject to the three strikes law.

[59]             I am now going to give you a warning of the consequences of another serious conviction. You will also be given a written notice outlining these consequences, which lists the serious qualifying violent offences.

[60]             If you are convicted of any serious violent offence other than murder committed after this warning, and if a Judge imposes a sentence of imprisonment then you will serve that sentence without parole or early release.

[61]             If you are convicted of murder committed after this warning, then you must be sentenced to life imprisonment. That will be served without parole unless it would be manifestly unjust. In that event the Judge must sentence you to a minimum term of imprisonment.

[62]That concludes the sentence.

Doogue J

Solicitors:

RPB Law, Dunedin

A Stevens QC, Dunedin