R v Surynt HC Christchurch CRI 2011-009-008160

[2011] NZHC 1948

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI 2011-009-008160

REGINA

v

TIMOTHY GEORGE SURYNT

Hearing:         1 December 2011 (Heard at Ashburton)

Counsel:         T J Mackenzie for Crown

C M Ruane for Prisoner

Judgment:      1 December 2011

SENTENCING REMARKS OF FOGARTY J

[1]      Timothy George Surynt you have pleaded guilty to charges of manslaughter, reckless driving causing injury and driving with excess breath alcohol.   You were charged with manslaughter because you caused the death of a passenger in your car, Emma Ford.   You were charged with reckless driving causing injury because the same accident also injured Mr McKerrow and you were driving with excess breath alcohol.

[2]      At about 3.30 pm on Friday, 15 April, you finished work and went to the

Bush Bar at the Bush Inn Hotel where you played on poker machines and won about

$2,000  in  cash.   You  left  the Bush  Bar at  about  11  pm  and  drove to  Robbies

Restaurant on Cranford Street where you met your friend, Kyle McKerrow, who works there.   You had a drink there with him and while you were drinking his

R V SURYNT HC CHCH CRI 2011-009-008160 1 December 2011

girlfriend and your friend, Emma Ford, arrived and parked her car.   She had not consumed any alcohol.

[3]      It must have been shortly after that that the three of you decided to leave and go to Robbies Elmwood at Wairakei Road.  You had a discussion about who would drive and you volunteered.   This was contrary to your restricted driver’s licence. You are not licensed to carry passengers and you are not able to drive after 10 pm in the evening.  It was also a condition on your licence that you only drive a vehicle with automatic transmission and the car you were driving was a manual vehicle because  your  own  car  was  being  repaired.    Kyle  McKerrow  was  in  the  front passenger seat and Ms Ford was in the back seat on the passenger side.  You and she were wearing seatbelts, Mr McKerrow was not.

[4]      I am going to detail where you were driving but you were driving through the north west suburbs of Christchurch.  You arrived at Robbies.  It was closed and you decided to go to Tavern Harewood.  You made a right turn into Wairakei Road and headed towards Idris Road.  You were driving fast.  Emma said something to you like, “cut it out” and she told Kyle that she was a little bit scared of your driving. You were driving at high speed.  There were various estimates of it but you were driving on Idris Road at somewhere between 80 and 90 kilometres an hour approaching a blind right-hand bend before Ilam Road.  That was too fast to make the bend.  You lost control.  The car crashed into the rear of a Hyundai four wheel drive, carried on and hit a second parked vehicle and ended up on the opposite side of Wairakei Road.

[5]      You started up the engine again and drove back towards Idris Road, stopping at the intersection of Wairakei and Idris and got out of the vehicle.   Kyle got out. Emma was unconscious and trapped in the rear of the vehicle by the seatbelt.  A number of people arrived.   In spite of efforts by clinicians on the scene and by ambulance Emma died at Christchurch Hospital from a ruptured aorta caused by the crash.  Kyle received serious injuries including broken ribs.

[6]      You have heard that there are a large number of these cases.  You have no previous convictions.  You are a young man of 21 years.  You have the support of

references from people who know you who say you are of good character, who say you have been and are remorseful.  You have the support of the probation officer who is encouraging me to impose a light sentence.   You are being sentenced according to law.  There is nothing that I can do today to bring Emma back.  But the first principle of the Sentencing Act 2002 which guides the sentencing of all cases is:

... to hold the offender accountable for harm done to the victim and the community by their offending.

[7]      That is the reason why there is no alternative but for you to serve a prison sentence.   The question is, what should that sentence be?   You have heard this afternoon counsel and myself discussing a large number of cases.   Mr Mackenzie said that there had been 14 cases since the last case he did before Panckhurst J.  I have been sitting here trying to think how many cases I have had to sentence in the South Island, several in Invercargill, one recently in Timaru and now in Ashburton. Every case is different.

[8]      Firstly, I deal with my decision of R v Brook HC Timaru CRI 2008-076-

000988 3 November 2009.   That case I think differs from this one in this way: Brook drove for 25 kilometres, chased by a police car.   The police car actually slowed down, turned off the siren in the end and backed away for fear of the accident which happened.   Brook had numerous opportunities to stop during that period of time.  I have detailed your journey partly to indicate that you also had opportunities to stop and not drive.  But it is not as serious as it was in Brook in my view.

[9]      I think that the two closest cases that assist me here are the decision last year in Invercargill of French J in the case R v Wagener HC Invercargill CRI 2010-025-

000191, 8 June 2010, and the decision of Andrews J in April of this year in the case of R v Vanstone HC Hamilton CRI 2010-068-603, 19 April 2011, and I would also add the decision R v Prescott HC Auckland CRI 2004-004-19706, 15 July 2005 but probably more Vanstone.  In Wagener the Judge took a starting point of six years’ imprisonment.  In Vanstone the Judge took a starting point of five years.

[10]     The Crown has suggested a starting point sentence of between six and eight years.  I favour in this case six years as the starting point for analysis.  That is just a judgment doing the best I can with the facts of this case in comparing it with these other cases.  It does seem to me that the starting point in Vanstone of five years was a little light on the authorities although I note it was increased by reason of previous driving convictions up to six years.

[11]     There were a number of aggravating features in your case.   Mr Mackenzie has listed them as:  consumption of alcohol, opting to drive despite the availability of a sober driver, grossly excessive speed, the disregard by the driver of warnings from his passengers, the incident of death and injury, and behaviour at the time of the offence, and driving outside your limited licence conditions.   I accept all those except the behaviour at the time of the offence.  The evidence is that you did try to dial 111. You were plainly in shock and the evidence is that you did not appreciate at that stage, as often people in these accidents do not, just how seriously injured Emma was.

[12]     The incidence of death and injury I think is implicit in the manslaughter charge and I also think the reason for the fact that you were charged with manslaughter is the grossly excessive speed and the consumption of alcohol.  That is the reason why you are being charged.

[13]     If you had had this crash and if Emma had not died you would be charged with  a significantly lesser charge and  probably,  well  maybe,  not  even  going to prison.  As I said before, because your actions killed Emma Ford, you must go to prison.

[14]     For  these  reasons  I  think  that  the  factors  that  have  been  identified  as aggravating factors do not warrant a significant uplift.   They also need to be set against the mitigating factors which are that you have no previous convictions, you are of good character, you are a young man.  I am inclined to think that these factors that I have mentioned so far, cancel themselves out up and down.  So I stay with six years and then apply the decision of R v Hessell [2010] NZSC 135. Hessell is a

decision of the Supreme Court which guides sentencing Judges in the High Court as to how to deal with remorse and with pleas of guilty.

[15]     The Crown has suggested a discount, according to Hessell, of 20% for the plea of guilty, not 25%, on the argument that you are never going to be able to defend these charges anyway.  That argument sometimes applies when there is doubt as to whether the correct charge has been laid and so a full credit is given if the plea of guilty removes the defence.

[16]     In this case I do not think it is necessary to decide precisely between 20 and

25.  But I will take, because one gets to the same result in the end, I will, however take the Crown’s submission of 20%. Then there is a question of remorse. There are many occasions, as members of the public will appreciate, where this Court receives pleas of guilty from offenders who have committed numerous offences.  They have been in and out of the Courts all their lives and the Judges are, to a degree, somewhat cynical as to whether the plea of guilty is a true acknowledgment of remorse or whether it is just because they have decided not to run the trial.   So the remorse analysis is different. The remorse analysis has the Court having a close look.

[17]     In this case I think it is relevant that you have impressed the probation officer who has interviewed you and who writes recommendations to the Court.  I think that this is a case in which there is an additional discount for remorse.   It is partly affected also by youth.  Now the 19 year old cases are slightly different from the 21 year old cases.   But we certainly do not treat 21 year old young men as fully mature men these days. All the evidence is against it.

[18]     For that reason, I will allow a full third discount which reduces the sentence to four years.   Mr Mackenzie has then argued that I should impose a minimum period of imprisonment.  I have the power to do that.  It has never been done in my knowledge in  these cases.    Mr Mackenzie said  the Courts  have been  imposing sentences of imprisonment for these manslaughter cases for quite some years now and  they are  just  increasing  and  therefore  there  should  be  a  deterrent  sentence imposed.  Sentences tending to deter I do not think apply in cases like this, which

are, at another level, tragedies for both the young woman who died and her family, and for you, for your family.

[19]     The  correct  principle  is  the  one  I  stated  earlier  which  is  to  hold  you accountable for the harm done, for taking a life, and for the harm done to Emma’s family on top of that.

[20]     For this reason I do not propose to open up the prospects of a minimum period of imprisonment.

[21]     I am sentencing you on the manslaughter charge to four years’ imprisonment. I am sentencing you on the charge of reckless driving causing injury to two years’ imprisonment to be served concurrently.  On the driving with excess breath alcohol I am sentencing you to three months’ imprisonment to be served concurrently.  You are disqualified from holding or obtaining a driver’s licence and that disqualification will be for a total of one and a half years, being one year disqualification for reckless driving  causing  injury,  and  six  months’ disqualification  for  driving  with  excess breath alcohol.   The six months’ disqualification is to commence on 1 December

2012.

[22]     On release you are to undertake assessment related to alcohol use and if found suitable complete any treatment as may be recommended by the probation officer.

[23]     I am giving you a warning.  Given your conviction for manslaughter you are now subject to  the three strike rule.  I am  going to  give  you  a warning of the consequences of another serious violence conviction.   You will also be given a written notice outlining these consequences which list the serious violence offences.

[24]     If  you are convicted of any serious violence offences 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.    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.

Solicitors:

Raymond Donnelly & Co, Christchurch, for Crown

C M Ruane, Christchurch, for Prisoner