R v Stretch HC Hamilton CRI 2009-019-10192

[2010] NZHC 1223

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2009-019-10192

THE QUEEN

v

DANIEL CLIVE STRETCH

Hearing:         13 July 2010

Appearances: R Douch for the Crown

T Sutcliffe for the Prisoner

Judgment:      13 July 2010

SENTENCING NOTES OF ELLIS J

Solicitors:      Crown Solicitors, PO Box 19-173, Hamilton 3244

Counsel:       T Sutcliffe, PO Box 19021, Hamilton 3244

R V STRETCH HC HAM CRI-2009-019-10192  13 July 2010

[1]      Mr   Stretch,   you   have   pleaded   guilty   to   one   charge   of   assaulting Kaameta Pohe with a vehicle and one charge of intentionally causing grievous bodily harm to Eric Drawbridge.   The maximum penalties for these offences is five and fourteen years imprisonment respectively.

Facts

[2]      On 7 November 2009, you and your then girlfriend Ms Pohe and her boarder, Mr Drawbridge, had been drinking for most of the day.  You got into an argument with Mr Drawbridge and Ms Pohe went with you to the shop to try and diffuse the situation. You drove to the shops so fast that Ms Pohe refused to get back in the car. You then followed her in the car as she walked along the footpath calling out that you loved her. You then revved the car and drove it up onto the footpath at an estimated speed of 50 to 60 km/hr, narrowly missing her while she was running away.

[3]      Then you went to her address and took her 7 year old daughter and drove up and down the road very fast with her in the car.   Ms Pohe tried to stop you and eventually you let her daughter out of the car.  Then you got into a further argument with Mr Drawbridge on the road.  He was standing in front of the car and shouting and gesturing at you. You deliberately drove towards him and he was lifted onto the bonnet. He tried to stay on the bonnet by holding onto the windscreen wipers but you then drove fast onto the wrong side of the road for 100 metres, swiping a vehicle parked on the road side, before breaking heavily for around 10 metres.  At that point Mr Drawbridge was thrown under the vehicle where he became trapped. When you tried to leave the scene you manoeuvred the vehicle to release Mr Drawbridge, but in fact ran him over.

[4]      Mr  Drawbridge  was  admitted  to  Waikato  Hospital  for  multiple  injuries including a collapsed lung; compound fracture to the right leg; fractured left ankle; fractured collarbone; abrasions and burns to his body; facial abrasions to the right side of his face and cheek.

[5]      When asked about what happened, you first of all said Mr Drawbridge had run out in front of you and that you were trying to reverse away from him but selected the wrong gear. You have also said that you have no memory of driving the car towards Ms Pohe.

Pre-sentence Report and Victim Impact Statements

[6]      I have read the pre-sentence report.   It says you are 47 years old and of Ngai Tahu  descent.  You  have  no  contact  with  your  family  and  describe  your upbringing as violent, and have said that you were sexually abused in a boy’s home when you were 13. You have said you take full responsibility for your actions and have expressed remorse, although as I have said you say that you have no memory of driving towards  Ms  Pohe  and  you  have  said  also  you  were not  aware  that  Mr Drawbridge was under the car when you ran him over.

[7]      The report also records that you accept that you are an alcoholic and that you had drunk “approximately 36 beers” and smoked two or three joints on the day you committed these offences.  In Ms Pohe’s letter that you handed up today, she says that you drank even more than that.  The writer of the report says that you would benefit  from  intensive  drug  and  alcohol  counselling  treatment  and  violence prevention programme.  You have said you would be willing to attend such courses and that you also think you would benefit from more intensive programmes.  That is a positive sign.

[8]      You have been assessed as being at medium risk of re-offending.  The report concludes with a recommendation of imprisonment.

[9]      I  have   also   read   the   victim   impact   statements   from   Ms   Pohe   and Mr Drawbridge although  these,  I think, rather  minimise the seriousness of what happened.  All I can say is that you are very lucky that they are so forgiving and also that you did not hurt them far more seriously than you did.  I have also read your letter to Ms Pohe and her letter back to you from January 2010.  I acknowledge and accept that what you both say in those letters is genuine.

Submissions

[10]     The Crown does not say that you ran over Mr Drawbridge on purpose but rather that what you have been convicted for is driving into him and then applying the brakes while he was still on the bonnet in order to make him fall off and onto the ground.  The Crown says that if you had not done that Mr Drawbridge would not have been injured and that is plainly right.  Mr Sutcliffe, it seems to me, also accepts this.

[11]     As regards the offence against Ms Pohe the Crown says that driving towards her in the way you did, and mounting the kerb, was a very dangerous thing to do, even though you were lucky again and did not actually injure her.   Mr Sutcliffe rightly says that it is not established that you intended ever to hit her with the car.

[12]     The Crown says there are a number of things about what you did that day that make it particularly serious – including the use of the car as a weapon, the actual harm that resulted to Mr Drawbridge, the risk that greater harm might have occurred to both victims, your involvement of Ms Pohe’s young daughter and the fact that you ran away after running over Mr Drawbridge.   The Crown says what you did was premeditated.   They point to the fact that  you  have many previous convictions including some involving violent offending, although they freely acknowledge that your more recent convictions have been less serious.

[13]     The Crown says that all this means is that the starting point for any sentence imposed by me for injuring Mr Drawbridge should be six years imprisonment with a further 18 months or so added on for what you did to Ms Pohe and to take account of your previous convictions.   The Crown acknowledges that you pleaded guilty just before trial and accepts that this should reduce the end sentence by 10%.  But they also say that I should impose a minimum period of imprisonment of two thirds of your final sentence because of the ongoing harm or danger you pose to others and the risk of reoffending posed by your alcohol and substance abuse.

[14]     Mr  Sutcliffe  very  fairly  agreed  with  a  lot  of  what  the  Crown  said  but submitted that Mr Drawbridge to some extent provoked you and also noted that you

admitted being angry and said you were scared of him.  He says that it was only as a result of panic that you actually ran over Mr Drawbridge.   He accepts that the starting point is in the five to 10 years imprisonment range[1]  but says five years is appropriate.  He says that such a starting point would also take account of what you did to Ms Pohe and that no further increase should be imposed.  He emphasises your guilty plea and the remorse you have expressed as warranting a further reduction.

Discussion

[1] Both counsel being agreed that the offending fell within Band 2 of R v Taueki [2005] 3 NZLR 372.

[15]     There are certain matters to which I am required by law to consider when determining your sentence.  I must try, through my sentence, to hold you accountable for the harm you have done, and to promote in you a sense of responsibility.  I must denounce your conduct, and try and stop both you and others from acting in this way.  I also have to try to protect the community.

[16]     I also need to take into account the seriousness of what you have done, and the need to be consistent with other sentences imposed in similar cases.[2]   But I must also try and impose the sentence that is the least restrictive outcome appropriate in the circumstances.

[2] R v Eruera CA454/04, 8 April 2005; R v Goyen CA285/05, 1 May 2006.

[17]     I  largely  accept  that  the  aggravating  features  of  your  offending  are  as submitted by the Crown.  However I do not place great weight on any premeditation in relation, at least, to the offence against Mr Drawbridge or on the earlier involvement of Ms Pohe’s daughter, although endangering her in that way cannot be excused.     Necessarily,  though,  I  also  take  into  account  that  Ms  Pohe  and Mr Drawbridge say that they have not suffered any ongoing effects from what you did.  But as I have already said, the fact that you are not today being sentenced for more serious offences or in relation to more serious consequences is a matter of luck, rather than good management.  I accept that you are remorseful but, as Mr Douch said, cannot take that separately into account.

[18]     Having considered both counsel’s submissions and the various cases they have referred me to, I consider that the starting point here should be five years imprisonment, although this term is intended to reflect what is known as the totality of your offending, namely what you did to Ms Pohe as well.   After moving that starting point upwards for your previous convictions and downwards by 10% for your guilty pleas, this starting point will also be the end point.

[19]     Although I have carefully considered the issue, I am not going to impose a minimum period of imprisonment.  In all the circumstances of your case and having heard from Mr Sutcliffe on the issue today, I believe that a five year sentence will be sufficient for the purposes of holding you accountable, denunciation, deterrence and protecting the community.   There will be a concurrent sentence of 12 months imprisonment on the lesser assault charge.

[20]     I hope that you will be able to obtain assistance while in prison to address what appears to me to be the principal underlying causes of your offending which, particularly in this instance, appears to be a very serious problem with alcohol.

[21]     Accordingly, Mr Stretch, in formal terms the sentence of the Court will be five years imprisonment.

[22]     Stand down please.

Rebecca Ellis J