R v Tanirau

[2008] NZCA 9

IN THE COURT OF APPEAL OF NEW ZEALAND

CA517/07
[2008] NZCA 9

THE QUEEN

v

HENARE MIHAKA HOHEPA TANIRAU

Hearing:13 February 2008

Court:Ellen France, Williams and Heath JJ

Counsel:H S Edward and O J Brittain for Appellant

H D M Lawry for Crown

Judgment:20 February 2008 at 10.30 am

JUDGMENT OF THE COURT

A        The time to bring the appeal is extended.

B        The appeal against sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Heath J)

Introduction

[1]       Mr Tanirau seeks to appeal out of time against a sentence of three years imprisonment, $2000 reparation and disqualification from holding or obtaining a driver licence for a period of four years.  The sentence was imposed by Judge McGuire in the District Court at Rotorua on 20 July 2007, after Mr Tanirau had pleaded guilty to two charges, one each of dangerous driving causing death and dangerous driving causing injury: DC ROT CRI 2006-063-4141.  Mr Edward, for Mr Tanirau, challenged both the length of the term of imprisonment and the disqualification.

[2]       The charges arose out of a single incident which occurred on 29 April 2006 at Murupara.  Mr Tanirau was 23 years old at the time of the accident, but had turned 24 by the time he was sentenced.  He had not previously appeared before the Court.

[3]       Mr Tanirau applies to extend the time to appeal.  The delay was caused by an appeal being filed in the wrong Court.  The delay has been explained adequately.  The Crown does not oppose an extension of time.  The time to appeal is extended.

The facts

[4]       On Saturday 29 April 2006, Mr Tanirau had been socialising with friends in the Murupara area.  From mid afternoon to late evening, he had consumed a considerable quantity of alcohol.

[5]       At about 10.45pm, notwithstanding the alcohol consumed, Mr Tanirau decided to drive his car.  He drove with three passengers.  Mr Grootjans was in the front passenger seat.  Mr Waru was in the left rear seat of the vehicle.  A third person was sitting in the right rear seat.  They drove from Rata Place towards Pine Drive. 

[6]       While on Pine Drive, Mr Tanirau drove over two “speed humps” near the local shopping centre.  These were in a 50 km/h zone.  He accelerated along the road and started to negotiate a moderate right hand corner, situated 450 metres north of the second “speed hump”.  The vehicle was travelling too fast to negotiate the corner safely.  It went off the left hand side of the road, some 90 metres into the corner.

[7]       The front corner of the vehicle hit a tree on the grass verge.  Damage was caused to the front passenger side of the vehicle.  The vehicle rotated to the right, travelling some 17 metres in the air, and landed on the upper portion of the driver’s side of the vehicle.  The roof folded in. 

[8]       The vehicle continued to roll and struck a low level post and rail wooden fence.  It came to rest in a reserve area, landing on all four wheels and sliding sideways before stopping.

[9]       Mr Waru was ejected from the car and landed on the footpath.  He died at the scene as a result of the injuries he suffered.  Mr Grootjans was also thrown from the vehicle.  He was found about five metres away from the vehicle’s final resting point.  Mr Grootjans suffered a large gash to the lower left leg, as well as a fracture to his left ankle.  He was hospitalised for approximately two and a half weeks.

[10]     Police experts assessed that there were no mechanical defects that may have contributed to the accident.  Likewise, they concluded that weather, lighting and road conditions would have played a minimal part in what occurred.  Their opinion was that the vehicle was likely to have been travelling, while negotiating the corner, at a speed of not less than 110 km/h.

[11]     An evidential breath test was administered to Mr Tanirau, some three and a half hours after the incident.  Mr Tanirau had a breath/alcohol reading of 911 micrograms of alcohol per litre of breath.  This reading was well in excess of twice the legal limit.

[12]     Both Mr Waru and Mr Grootjans were close friends of Mr Tanirau.  There is no doubt that Mr Tanirau has experienced real difficulties in coming to terms with, particularly, the death of Mr Waru.

The sentence imposed

[13]     Judge McGuire took the view that a sentence of imprisonment was inevitable to denounce Mr Tanirau’s conduct and to hold him accountable for his actions. 

[14]     The Judge was concerned that the guilty pleas were entered late in the piece, on 16 May 2007, over a year after the incident.  The Judge regarded the “very high level of alcohol involved” and “the deliberate speed” at which Mr Tanirau was travelling when he “lost control of the car” as putting the offending at the upper end of the sentencing range for offences of that type (at [23]).

[15]     In mitigation, the Judge accepted some credit ought to be given for the guilty pleas.  Credit was also available for the remorse shown and the relative youth of the offender.

[16]     The maximum penalty for each of the two offences to which Mr Tanirau pleaded guilty is five years imprisonment.  The Judge took the view that a starting point of four years imprisonment was appropriate, from which a reduction of one year ought to be made to take account of mitigating factors.  That left an end sentence of three years imprisonment.

[17]     The Judge made reference to a restorative justice programme which Mr Tanirau had been asked to attend.  The Judge considered it was “a real shame” that the referral had not occurred six months (or even) earlier as it may have had a better chance of securing closure for the deceased’s whanau (at [14]).  Mr Tanirau only attended a “pre-meeting” two days before sentencing with the programme organisers.  In those circumstances, the Judge expressed the view that it was “not surprising” that there was reluctance on the part of the deceased’s family to engage in that process (at [14]). 

[18]     Contrary to Mr Edward’s submission, we do not read the Judge’s comments on the restorative justice issue as influencing the starting point for sentence.  Rather, we infer that the sentencing Judge considered it a neutral factor.

Competing submissions

[19]     Mr Edward submitted that the sentence of imprisonment was manifestly excessive. He argued that a starting point of four years imprisonment was too high and that too little credit was extended.

[20]     Mr Edward also submitted that the term of the driving disqualification imposed by the Judge was excessive. 

[21]     For the Crown, Mr Lawry submitted that the offending could properly be seen, having regard to the quantity of alcohol consumed at the time of driving, as close to the worst of its type.  He submitted that the authorities justified a starting point of four years imprisonment.  Based on the same aggravating factors, Mr Lawry contended that the term of the disqualification was also within an acceptable sentencing range.

[22]     An additional point, relating to the reparation order, was mentioned by both counsel during the course of submissions.  That order was not expressly challenged on appeal.  We deal with the points raised later.

Analysis

The term of imprisonment

[23]     There is no tariff for offences of dangerous driving causing death or injury.  Both charges carry a maximum term of imprisonment of five years.  In bad cases it is common for a person who has driven in a manner akin to Mr Tanirau and caused death or injury to be charged with manslaughter.  In those cases, the maximum penalty available to the Court is one of life imprisonment.

[24]     The first step is to consider what starting point ought to have been taken.  In the circumstances of this case, the dangerous nature of Mr Tanirau’s driving is captured within the elements of each offence.  But excessive speed and the quantity of alcohol consumed is not.

[25]     This was not only dangerous driving, it was also driving while impaired through the voluntary consumption of alcohol.  Indeed, the quantity of alcohol consumed was such as to leave Mr Tanirau, some three and a half hours after the incident, with a very high breath/alcohol reading.  The dangerous nature of the appellant’s actions was exacerbated by his driving at over twice the legal speed limit.

[26]     The driving that led up to the fatal accident was exemplified by the obvious impairment to Mr Tanirau’s ability to control the vehicle.  The death of one young man and a serious injury to another can be seen as not unexpected consequences resulting from Mr Tanirau’s decision to drive in those circumstances.  We do not accept Mr Edward’s submission that the Judge placed too much weight on the consequences.

[27]     Furthermore, we are satisfied that, having regard to the maximum penalty available for offences of this type, it was not unreasonable for the Judge to take a starting point equating to 80 per cent of the maximum sentence.  That starting point allowed for the nature of the dangerous driving, the speed at which Mr Tanirau was driving, the additional impairment caused by the consumption of alcohol and the consequences of death and injury to the passengers.  In our view, the starting point taken by the Judge was within the range available to him.

[28]     The next issue relates to mitigation.  Despite the Judge’s concerns about the late entry of guilty pleas, the combined credit for the guilty pleas and remorse amounted to 25 per cent of the starting point.  In R v Fonotia [2007] 3 NZLR 338 (CA) at [50] and [51] this Court noted that it had regularly approved credits of between 10 per cent and 33 per cent for guilty pleas. The obvious point was made that “[t]he earlier the plea is entered, the greater the discount”: at [50].

[29]     Although the 25 per cent credit encompassed all mitigating factors, we are satisfied, having regard to the lateness of the guilty pleas and the inevitability of convictions, that the overall credit given by the Judge was within the range available.

The disqualification order

[30]     Having regard to Mr Tanirau’s age and the absence of prior convictions (driving or otherwise), Mr Edward submitted that the length of the disqualification was excessive.

[31]     On conviction for the offence of dangerous driving causing either injury or death, a sentencing Court is required, as a matter of law, to order that the offender be disqualified from holding or obtaining a driver licence for one year or more: s 36(2)(b) of the Land Transport Act 1998.  Section 36(2) of the Land Transport Act makes it clear that a disqualification order is required, notwithstanding the imposition of a term of imprisonment or a fine.  Although the imposition of a mandatory disqualification can be avoided if s 81 of the Act is applicable, that section has no relevance to Mr Tanirau’s situation.

[32]     The aggravating features of Mr Tanirau’s offending, to which we referred at [24] – [27], require a period of disqualification well in excess of the statutory minimum.  A disqualification from holding or obtaining a driver licence for a period of four years cannot be said to have been outside the range available to the Judge, given the nature and consequences of the driving in issue.

Reparation order

[33]     Mr Edward did not challenge specifically the reparation order.  However, as a result of a question from the Bench, an issue arose about whether the sentencing Judge had information before him on the basis of which a reparation order could be made.

[34]     Section 33 of the Sentencing Act 2002 empowers a Court to direct that “a probation officer, or any other person designated by the court for the purpose, […] prepare a reparation report for the court” on the factors identified in s 33(1).  No such report can be found.  However, in certain circumstances, including a situation in which “the court considers that a report is unnecessary” the sentencing Judge may decline to seek a reparation report and impose a sentence of reparation without further inquiry: s 33(2)(c).

[35]     In the absence of any challenge to the reparation order, we are not prepared to interfere with what we infer was a discretionary decision of the sentencing Judge not to seek a reparation report.  We assume that the order was made on the basis of information provided at the sentencing hearing which is not within the appeal record.

Result

[36]     For those reasons, the time for filing an appeal is extended but the appeal against sentence is dismissed.

Solicitors:
Crown Law Office, Wellington