R v Tanawhea

[2022] NZHC 180

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE

CRI 2021-01906

[2022] NZHC 180

THE QUEEN

v

VANESSA HINEMOA TE HAU TANAWHEA

Hearing:	11 February 2022
Appearances:	B R Smith for Crown G Boot for Defendant
Sentence:	11 February 2022

SENTENCE OF DUFFY J

One c

Solicitors:

Crown Solicitor, Tauranga Gavin Boot Law, Hamilton

R v TE HAU TANAWHEA [2022] NZHC 180 [11 February 2022]

Facts of offending

[1]                 Ms Te Hau Tanawhea, you appear for sentencing today having pleaded guilty to one charge of dangerous driving causing death.

[2]                 The facts of the offending are briefly set out in the Crown summary of facts to which you have pleaded guilty. You were in a relationship with the deceased victim for a short period of time. On 30 December 2020 you and he were at a residential address at Kawerau. At around 7 am an argument developed and you went to leave the address in your vehicle. On multiple occasions the victim climbed onto the bonnet as you drove away from the address in the vehicle. You accelerated the vehicle in a westerly direction along Newall Street with the victim still on the bonnet. He came off the bonnet and landed on the road near the kerb at the intersection of Newall and Whittaker Streets. The fall caused his head to strike the road with significant force to cause a skull fracture. At 7.10 am the victim was located by a member of the public and emergency services attended the scene. However, the victim had suffered critical injuries and died at the scene.

[3]                 The post-mortem examination identified a skull fracture caused by blunt trauma consistent with striking the road. The condition of the victim’s body was reported by the attending pathologist as consistent with being thrown or falling from a vehicle in movement.

[4]                 When spoken to by police your explanation was that the deceased climbed onto the vehicle and you drove away at speed because you were upset and angry that he had become aggressive. You told police the victim sat up on the bonnet and then pushed himself off the car. You saw him lying on the road, panicked and carried on driving.

[5]                 You told the police you drove away at speed but there is no evidence you drove at an excess speed that day. Apart from continuing to drive while the victim was on the car bonnet there is no evidence there was anything else that was dangerous or reckless about the way you drove that day.

[6]                 There is no evidence that you realised the victim was seriously injured when you saw him lying on the road. There is no evidence that your failure to stop and help him contributed to his death. I note he was found, and emergency services help was sought shortly after you had left the scene. There is also no evidence as to whether the victim fell from the vehicle, or whether he pushed himself off in an attempt to jump clear of it.

[7]                 Whilst it was wrong of you to keep driving while the victim was on the bonnet, I recognise that he had chosen to place himself there to stop you from leaving him and going to your home. I also accept that given he was prepared to jump on the bonnet of a moving vehicle multiple times to stop you from leaving him, there may have been a reasonable prospect that had you stopped in circumstances where he was able to remove himself from the vehicle without injury, he may have taken other steps to prevent you from carrying out your intent of leaving him to go home to your children, which could have resulted in either physical harm or emotional harm to yourself.

[8]                 I accept that at the time of the incident you panicked you would have been afraid and emotionally upset as well as angry that he had become aggressive towards you, particularly because all you wanted to do was to go home to your children and take them to their father I accept that as you told the pre-sentence report writer, you feared for your safety that day.

[9]There is no evidence that drugs or alcohol were involved in the offending.

[10]              Members of the victim’s whānau have spoken today of their close connection and strong emotional ties with him. They present him as a kind, loving family man. I acknowledge the emotional pain and hurt they feel and have sympathy for their loss.

[11]              I also acknowledge that the victim impact reports portray the victim quite differently from the circumstantial account in the Crown summary of facts and the report you gave to the pre-sentence report writer and the cultural report writer.

[12]              I accept that the offending occurred in the context of a domestic dispute between you and the victim based on your wish to leave him that morning to return to

your children so that you could take them to their father, and him wanting you to stay with him.

[13]              You were in a relationship with the victim at the time of the offending and you say you wanted to make a go of the relationship with him, but you were also concerned to keep your daughters safe given your own life experiences. You have three daughters. The oldest is 19 years, the second is also an adolescent and the youngest two years old. Your concerns about the safety of your children and your desire to protect them have been reinforced — and I speak here from having read the pre- sentence report and the cultural report and I mean no disrespect to your whānau — by the fact your father was a member of the Mongrel Mob and as a child you witnessed his abuse of your mother. You have advised the writer of the cultural report that the victim was in the Mongrel Mob and that you had met him on Facebook. You say, he did not understand you and that he would demand that you put your youngest child to sleep so that he could have sex with you, and you did not like that. Your concern was with the way he treated your children and you were frightened by that. This led you to try to keep him separate from your family life. This in turn may have left him feeling resentful of your children and the place they hold in your heart.

[14]              Because of the difficulties in the past that you have experienced and/or witnessed with men and their abusive impact on women and children you reported to the cultural report writer that you wanted a no ties relationship with the victim, and you knew he was seeing other women. Perhaps your wish to remain independent of him left him feeling threatened and insecure. No-one will ever know why he went so far as to jump on the car bonnet multiple times that morning to stop you leaving him. It has had tragic consequences for him, for his whānau and for you and your whānau.

[15]              This is the second occasion I have had to deal with sentencing the driver of a vehicle in such circumstances. It needs to be said that when people who are involved in domestic disputes jump on car bonnets to stop the other person from driving away, those who act in this way commit a dangerous and risky act. It can result in unnecessary tragedy for everyone.

Personal circumstances

[16]              Ms Te Hau Tanawhea, you are of Ngāti Haua descent. You have previously appeared before the Court. However, that was some time ago. Your last serious offending was in October 2007 when you committed two aggravated robberies which resulted in you receiving concurrent sentences of imprisonment of six years. Further, your criminal history starts with you committing the offence of unlawfully taking a motor vehicle in January 2007. The serious offending was all committed in that year and the only other prior offending outside of 2007 was driving with a licence suspended or revoked in April 2008. Given your difficult personal circumstances in terms of the deprivation and poverty that is outlined in the pre-sentence report and the cultural report that is something that you not only have suffered from but you continue to experience, your ability to refrain from offending after your release from prison is very much to your credit. That would not have been easy.

[17]              I have been helpfully informed of your personal circumstances by the pre- sentence report and the cultural report, prepared pursuant to s 27 of the Sentencing Act 2002. The information provided by those reports outlines the extremely difficult and impoverished circumstances you have experienced throughout your life both as a child and an adult. I accept the written submissions of your counsel, Mr Boot and the oral submissions today of Mr Boot Snr that there is a clear nexus between your actions, particularly in failing to stop the vehicle or to render assistance to the victim and your background, as recorded by the pre-sentence report and the cultural report known to community services for dysfunction and gang affiliations.

[18]              Mr Boot advises me that the victim became aggressive to you when you told him you wanted to return to your home and children on the morning of the incident; that is set out in the written submissions. Your history shows that you have suffered much family violence and abuse. Regrettably this has been done by men who you should have been able to look to for protection. Mr Boot submits this explains why you wanted to remove yourself from the vicinity of the victim that day. He also submits that you were concerned about your children which was at the heart of the argument between you and the victim about you leaving that morning. This need to protect your children had been generated by the significant abuse that you have either

suffered or witnessed as a child and an adult. Mr Boot submits your history of abuse (I refer here to the written submissions) goes some way to helping understand why you thought it necessary that day to get away and to be with your children. I agree with the submission. The level of abuse you have experienced over the course of your life is well established. I do not propose to outline it in detail because that would intrude on your right to privacy and in relation to some aspects of your past be in breach of court suppression orders.

[19]              I consider that the level of violence you have experienced and/or witnessed from the men in your life may well have made you fearful of stopping the vehicle while the victim was on the bonnet of the vehicle. And further, this history may explain why you did not stop once you knew he had moved off the vehicle in order to see if you could help him. In the heat of that moment you may not have understood how badly hurt he was and that he could no longer pose a threat you.

Sentencing process

[20]              The first step in sentencing is to set a starting point. Here, the Crown argues that I should adopt a starting point of three years nine months’ imprisonment to take into account the aggravating and mitigating features of the offending. The Crown also submits that a disqualification from driving of at least two and a half years is appropriate. I shall deal with the disqualification period at the end of the sentence.

[21]              The Crown acknowledges there is no recognised tariff case for this type of offending. The Crown, however, in written submissions, has referred to the Court of Appeal’s decision in Gacitua v R as providing guidance for sentencing in cases involving driving cause death.1 In Gacitua the Court of Appeal adopted guidelines from the English decision in R v Cooksley.2 Those guidelines cover a variety of conduct. Here in written submissions, the Crown identifies the following aggravating factors as set out in Cooksley:

1      Gacitua v R [2013] NZCA 234.

2      R v Cooksley [2003] 3 All ER 40.

(a)Deliberate persistent course of very bad driving. The Crown submits you knew the victim was on the car, when you started the car, you drove it out of the drive and then drove it on the road. The Crown says the driving was obviously dangerous, deliberate and persistent. The Crown concedes that although the summary of facts describes the vehicle as being driven at speed, there is no indication it was driven at a speed in excess of the posted speed limited. The Crown relies on your failure to stop once the victim fell from the vehicle. The Crown refers to you saying, you saw the victim lying on the road, panicked and continued driving away without stopping to see if he was injured. Then there is the outcome of the offending because your actions led to the death of the victim and there is the significant impact his death had on his whanau, as detailed in the victim impact reports.

[22]              The Crown invites me to consider the circumstances of your offending as being analogous to those in R v Takimoana.3 In that case, Mr Takimoana was charged with dangerous driving causing death, failing to stop to ascertain injury and driving whilst disqualified. He and the deceased were living in a hotel above the bar room of the hotel. They had been in a relationship which at the time was volatile, they argued, he tried to leave in his car, the deceased climbed onto the bonnet and then on the roof. It was not the first time she had done that. He drove off, it was night time, he was unsure whether she was still on the roof but did not stop to check. In this way he drove recklessly. She fell from the car and died. He drove away unaware she had fallen.

[23]              In that case a starting point of three years six months’ imprisonment was applied following Mr Takimoana’s successful appeal against sentence to this court. The end sentence was one which allowed home detention to be considered and a sentence of home detention was substituted.

[24]              Here, the Crown says the facts of your offending are broadly analogous. However, the Crown submits the offending in Takimoana was somewhat less serious than in your case. The Crown says that in Takimoana the defendant was unsure that

3      R v Takimoana [2021] NZHC 1028.

the deceased was on the vehicle and he did not know the deceased had fallen from the vehicle and so did not stop to ascertain injury.

[25]              Given these differences the Crown submits a starting point of three years nine months to four years’ imprisonment is appropriate.

[26]              On the other hand, your counsel Mr Boot, submits that your offending is less serious than that in Takimoana. Mr Boot identifies that in Takimoana there was the aggravating feature of the loss of traction while driving and the fact Mr Takimoana was driving while disqualified at the time. Moreover, the Judge determined the driving was reckless.

[27]              Mr Boot also submits that given the lack of aggravating features as identified in Gacitua your offending is at a level whereby a starting point in the range of two and a half years to two years nine months’ imprisonment is appropriate.

[28]              Ms Te Hau Tanawhea, I consider your offending to have similar aspects to the offending in Takimoana, but also different aspects. In both cases the offending arose out of a domestic dispute where one of the partners did not want the other to drive off.

[29]              The difference between the two cases however is that in Takimoana the offender was a man who was faced with the prospect that if he had stopped the car he was driving before the victim had fall off, he would have been faced with an angry, unhappy female partner.

[30]              Here, the positions are reversed. You have referred to the victim’s aggression that morning. You have said you feared for your safety. Whilst there is no independent evidence of his aggression the circumstances of him placing himself on the bonnet of your car multiple times in order to stop you leaving, support the inference that he was aggressive. Such conduct is consistent with aggressive behaviour.

[31]              In your case, you were the vulnerable party and the power balance was against you in terms of any face-to-face engagement with the victim. Had you not been in the car, you would have been the more physically vulnerable person. That vulnerability

would have also been present had you stopped the car in circumstances where he was not harmed. In those circumstances he would have had the upper hand physically. Your only way of being sure of putting yourself out of his reach was to remain in the car and use it to get away from him. This is not to condone what you did, but it simply recognises your vulnerability in terms of the physical power imbalance that existed between you both and the threat of harm the victim could pose to you.

[32]              The Cooksley factors refer to irresponsible behaviour at the time of the offence and give as an example, trying to throw a victim of the bonnet of a car by swerving in order to escape. There is no evidence here that you swerved or attempted to dislodge the victim from the bonnet of the car.

[33]              The other aggravating features in Cooksley involved driving with excessive speed, consumption of drugs or alcohol, disregard of warnings from fellow passengers, prolonged persistent and deliberate course of very bad driving, aggressive driving, driving while the driver’s attention was avoidably distracted such as by reading or using a mobile phone, driving when knowingly suffering from a medical condition which significantly impairs the driver’s skills, driving when knowingly deprived of adequate sleep or rest, driving a poorly maintained or dangerously loaded vehicle. None of those features appear here. Further, all of those features require an element of knowledge and either intent or wilful persistence on the part of the driver.

[34]              Other aggravating features from Cooksley include: driving habitually below an acceptable standard – an outcome of the offending being that more than one person is killed or there is serious injury to one or more victims in addition to the death of a victim, irresponsible behaviour at the time of the offence including causing death in an attempt to avoid detention or apprehension, which I read to mean by persons in authority or persons having a lawful purpose in detaining or apprehending the driver. Also, offences committed while the defendant was on bail. None of those features apply here.

[35]              On the other hand, the mitigating factors identified in Cooksley that apply to you include: what I would describe as a good driving record, with the absence of

previous driving offences relevant to road safety, a timely plea of guilty and genuine remorse.

[36]              In terms of your previous driving history — in October 2007 you failed to stop when required and in April 2008 you drove while your licence was suspended or revoked. These are minor offences and they do not involve conduct that poses any risk to other persons on the road. You have no other relevant criminal history in relation to road traffic offending. Also, unlike in Takimoana you were a licensed driver.

[37]              When I take all the relevant aggravating and mitigating facts of the offending into account, I find your offending to be less serious than that of Mr Takimoana who, in addition to the dangerous driving causing death offending, drove as a disqualified driver. He too, like you, failed to stop. In his case he didn’t know the victim had fallen from the vehicle, he didn’t even know the victim was still on the vehicle, whereas here you did. However, there is no evidence that you realised the seriousness of the injury the victim suffered. That and the circumstances surrounding how he came to be injured, support the view that you were fearful, you panicked and without thinking properly you drove off.

[38]              Here, the aggravating features are fewer and different from those in Takimoana and there are more mitigating features. In such circumstances I consider the starting point should be less than three years six months’ imprisonment that was adopted in Takimoana. Here, I consider that a starting point of three years’ imprisonment is appropriate.

[39]              In relation to your circumstances the Crown and your counsel are agreed that the appropriate discount for your early guilty plea is 20 per cent. I agree with them. I propose to adopt that figure.

[40]I now turn to the considerations relevant to your personal circumstances.

[41]              There are no aggravating features relevant to you. Whilst you do have previous convictions, none are in any way similar or relevant to the present offending. The

Crown accepts this. I do not therefore propose to make any uplift in sentence to reflect previous convictions. The Crown has not sought any uplift. I consider the sentences received at the time you were sentenced for the earlier offending are sufficient penalty for your conduct at that time.

[42]              In terms of personal mitigating factors. I acknowledge that you feel genuine remorse for what has happened. This is recorded and accepted in the pre-sentence report and the cultural report. I propose to recognise this remorse with a discount of five per cent.

[43]              The Crown contends you do not warrant any recognition for good character given your past criminal history. However, with your background you have been exposed to many persons who criminally offend. You have experienced a deprived and impoverished life both in terms of material well-being and emotional support. For someone with those experiences to receive a prison sentence of six years in 2007 and to then not offend again until the present offending is, in my view, an incredible achievement. All too often, once people receive sentences of imprisonment this starts an endless cycle of further offending and further sentences of imprisonment. This is something that you have avoided. It is very much to your credit. It is unusual. Indeed, you have avoided any further offending at all between 2007 and the date of this offending. There has been other offending since, but that is not relevant to the task at hand and it may well have been influenced by the impact of the present offending on you.

[44]              Secondly, I propose to recognise the good character you have demonstrated by remaining free of criminal offending since the prison sentences imposed in 2007, with a discount of five per cent.

[45]              You said to the cultural report writer that you now want to focus on employment and maintaining a home for your children. In this regard you have already proved yourself to be a reliable and good employee. Your present employer is willing to continue to employ you, which reflects well on your character. However, you intend to seek employment elsewhere because you want to be closer to your home given the restriction and driving disqualification imposes on you.

[46]              Thirdly, I consider a further five per cent discount in recognition of rehabilitation for present offending is warranted.

[47]                Finally, I turn to the cultural report. I accept your counsel’s submissions that there is a clear nexus between the offending and the factors identified in the cultural report.

[48]              I have already referred to the fact that you are recognised by the pre-sentence report writer to belong to a whānau that is dysfunctional and with gang affiliations. As recognised in Zhang v R poverty and deprivation can go hand in hand with loss of land, language, culture, rangatiratanga, mana and dignity. Systemic deprivation affects Māori generally and is traceable to linkages between the deprivation you have experienced and the way in which you have reacted when faced with the victim’s determination to stop you leaving his place. You will have encountered many men like this in your life and the fact they are like this may, in itself (and this may reflect the dysfunction within your own whānau), be grounded in the deprivation they too have experienced due to the same loss of land, language, culture, rangatiratanga, mana and dignity. It can be expected that a man with pride in himself and his people would not treat his female partner badly or be aggressive to her. I give a five per cent discount to reflect these cultural factors.

[49]              I note, I have split matters up with the discounts. The Crown suggested 15 per cent for cultural factors but that took a broader view. The approach I have taken takes a much more fragmented approach, but identifies what I consider to be all the relevant factors.

[50]              Taken together, in accordance with the approach in Moses v R4 the total effect of the discounts for mitigating circumstances leads to an end sentence of roughly 21 and a half months’ imprisonment. This is a short term of imprisonment which therefore allows me to consider a sentence of home detention. For short term sentences of imprisonment by law, only half of a sentence is served.5 Therefore if you were to receive a sentence of imprisonment you would serve just under 11 months.

4      Moses v R [2020] NZCA 296, [2020] 3 NZLR 583.

5      Parole Act, s 86(1).

[51]              I am satisfied that the circumstances that have led to the personal discounts I have applied also support a sentence of home detention. I see no proper basis in your circumstances to impose a sentence of imprisonment. This outcome is supported by the pre-sentence report writer. Further, it is well established by case law that a sentence of home detention is not a soft option.6

[52]              I propose to impose a sentence of 11 months’ home detention with the conditions set out in the pre-sentence report. That is longer than imposed in Takimoana which I have already acknowledged, involved more serious offending than the present. However, Takimoana involved an appeal against sentence and allowance had to be made for the fact, Mr Takimoana had served two months of the original sentence of imprisonment.

[53]              There is also the period of disqualification. The Crown seeks two and a half years’ disqualification. You no longer have a car. However, you have three daughters. You will not, during the disqualification period, be able to drive them anywhere they may need to go. Your ability to live as a tight family unit and your wish to protect your daughters from malign influences, will be compromised by the loss of freedom to drive a car. The driving incident that has brought you before the Court was a one off incident. You have no criminal history of poor driving endangering safety. I consider two years’ disqualification from driving is a sufficient period of time.

[54]Ms Te Hau Tanawhea, please stand.

Result

[55]              On the charge of dangerous driving causing death, I sentence you to 11 months’ home detention on the conditions set out in the pre-sentence report dated 3 February 2022

[56]              I impose a disqualification from driving a motor vehicle for a period of two years.

6      R v Hill [2008] NZCA 41, [2008] NZLR 381 at [31]–[34]; R v Iosefa [2008] NZCA 453 at [41];

and Fairbrother v R [2013] NZCA 340 at [28].

[57]              I say to everyone; kia kaha, kia māia, kia manawanui. Tēnā koutou, tēnā koutou, tēnā koutou katoa.

[58]Please stand down.

Duffy J