R v Tawa
[2020] NZHC 95
•7 February 2020
IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY
I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE
CRI-2018-087-002032
[2019] NZHC 95
THE QUEEN v
HIRA MOANAROA TAWA
Hearing: 7 February 2020 (Heard at Rotorua) Appearances:
R W Jenson for Crown
G Tomlinson for Defendant
Judgment:
7 February 2020
SENTENCING REMARKS OF LANG J
R v HIRA MOANAROA TAWA [2019] NZHC 95 [7 February 2020]
[1] Mr Tawa, you appear for sentence today having been found guilty by a jury on a charge of manslaughter. The charge was laid after an incident that occurred on the afternoon of 12 November 2018 at Taneatua. I was the Judge who presided over your trial so I have a familiarity with the facts that enables me to set them out without the ned to refer to any summary. I also need to explain the reasons underlying a factual finding that is important to the sentence to be imposed. This relates to the basis on which the jury found you guilty of manslaughter.
Background
[2] The evidence at trial revealed that on 12 November 2018, you were in the company of your older brother, who is the victim of your offending. You were in and about Taneatua socialising and drinking. In the late afternoon you went to a residential address where further drinking occurred. You say that at this point your brother became abusive to both you and others in the room. It seems that at this point also he and others began consuming methamphetamine.
[3] You decided to remove yourself from the situation by driving home. You went out to your car and began to drive off down the road. Your brother was not content for this to occur. He followed you out and pulled the driver’s door of the car open. As the car moved off down the road he stood on the front driver’s sill of the vehicle and began kicking and punching you. You continued to drive away notwithstanding this attack.
[4] Your brother was evidently able to hang on for some time, but eventually he fell off the vehicle in the vicinity of a “T” intersection at the end of the street. He is likely to have sustained some injuries as a result of this incident, but it is impossible now on the basis of the evidence to say exactly which of the injuries that he finally sustained were caused by it. The Crown accepts, however, that you bear no blame for anything that occurred up to the point where your brother fell off the vehicle. It accepts you were merely trying to extricate yourself from a situation in which your brother was being both obnoxious and violent towards you.
[5] In the ordinary course of events you would have turned right at the intersection and driven home. Rather than do that, however, you drove up onto the kerb at the end of the street and you then put your vehicle into a violent left hand turn over the grass verge and a nearby driveway. Photographs taken of skid marks show that your vehicle sustained loss of traction during this manoeuvre. Your vehicle then came back onto the roadway on the wrong side of the road, facing in the direction you ought to have gone in the first place. Rather than revert to the correct side of the road, however, you mounted the kerb in the street you had just left and then drove off down the street along or near the footpath. You eventually got back onto the road and left the scene. You did not stop to check on your brother’s welfare but instead left the scene.
[6] As it transpires, you ran over your brother’s body in the vicinity of the kerb where you mounted the footpath. The wheel of the vehicle struck his head and is likely to have caused multiple brain injuries. The pathologist who gave evidence at trial was only able to say categorically that one of these was caused by the wheel of your vehicle striking your brother’s head. The jury’s verdict makes it plain, however, that the impact between the tyre of your vehicle and your brother’s head was a substantial and operating cause of his death notwithstanding any injuries he may have received when he fell off your vehicle earlier.
[7] The first issue I need to determine is the factual basis on which the jury reached its verdict. This is important because the jury could have reached a verdict of manslaughter in one of two ways. First, it could have determined that you deliberately drove your vehicle in such a manner that it collided with your brother’s body. In that event it would have been required to determine whether you intended to kill your brother or to cause him really serious injury that you knew was likely to lead to death. The alternative basis on which the jury could reach its verdict was that, in causing your brother’s death, you operated your motor vehicle in a way that constituted a major departure from the standard of driving expected of a reasonable person in your position at that time.
[8] When I considered the issue of bail in December 2019, I advised counsel that I had concluded that the jury must have reached its verdict based on the latter scenario. I say this because, if the jury had determined that you deliberately caused your motor
vehicle to strike the head or body of your brother whilst he was lying on the road, it would inevitably in my view have returned a verdict of guilty on the charge of murder. Any person who deliberately causes their vehicle to strike the body or head of a person lying on the road must either intend to kill that person or, at the very least, must know that it will cause very serious injury that may lead to death.
[9] I therefore sentence you on the basis that, even given the circumstances in which you found yourself, nevertheless your driving at the time you caused your brother’s death constituted a major departure from the standard expected of a reasonable person in that position.
Starting point
[10] The first step in the sentencing process is to select a starting point for the sentence to be imposed on you. This is the sentence that would be imposed having regard to all relevant factors relating to the offending, but putting aside factors relevant to you personally.
[11] In cases of manslaughter involving the use of a motor vehicle sentences vary widely. This reflects the fact that death can be caused in such circumstances in an infinite variety of ways. By way of example, death can ensue following a prolonged piece of seriously bad driving in circumstances where the offender has consumed a considerable quantity of alcohol or drugs, and where others in the vehicle may be urging him or her to cease driving in that way. Sentences where driving causing death in that context obviously attract starting points towards the top of the available range.
[12] What the courts endeavour to do in these circumstances is to take into account all relevant factors relating to the culpability or blameworthiness of the driving that led to death.1 They then weigh those against sentences imposed in other broadly similar cases in order to determine what the starting point should be.
[13] In the present case I accept that your driving did not involve a prolonged piece of bad driving. Rather, it involved a decision by you on the spur of the moment to put
1 Gacitua v R [2013] NZCA 234 at [23] and [29].
your vehicle into a u-turn and then to drive along the wrong side of the road. It is likely, as your counsel submits, that all of this was over within seconds, if not minutes.
[14] Secondly, I accept that you are likely to have been motivated by a sense of panic in trying to escape from a situation in which you considered you were at risk of physical injury from your brother. He had been persistent in his attempts to prevent you leaving the area to the point where he had assaulted you whilst you were driving the vehicle to prevent you from doing that. This was therefore neither a prolonged nor a premeditated piece of bad driving.
[15] You acknowledge you had consumed some beer during the course of the afternoon. You told the person who prepared the pre-sentence report that you had consumed five beers. I do not consider this is an aggravating factor and the Crown accepts this is the case.
[16] You were also subject to a learner’s licence, and the Crown points out that you were in breach of that licence by driving alone. I accept this, but I do not consider it aggravates the culpability of your offending. I infer that you had arrived at the address with your older brother, but it was obviously impractical for you to require your brother to accompany you away from the address for the reasons I have already outlined. There is therefore nothing in the fact that you were subject to a learner’s licence to aggravate the sentence to be imposed on you.
[17] The most significant aggravating factor is that you caused your vehicle to travel over to the wrong side of the road in circumstances where you must have known your brother was somewhere in the vicinity. I accept, however, that you could not have known his precise position because, as Mr Tomlinson demonstrated through cross- examination at the trial, it is reasonably possible that you did not see your brother lying on the ground beside the kerb. Nevertheless, the jury found that causing your motor vehicle to drive in the area where your brother had fallen from the vehicle constituted a major departure from the standards required of a person in your position at that time.
[18] The Crown contends that a further aggravating factor is that you drove away without checking on the welfare of your brother. Had you been aware that you had struck your brother I agree that this could have been an aggravating factor.
[19] I am not able to be satisfied beyond reasonable doubt, however, that you did know your vehicle had struck your brother. I say this because your brother was lying very close to the kerb that your vehicle mounted before it travelled away on or near the footpath. I cannot be sure you would have been able to distinguish the vehicle striking your brother’s body from the vehicle mounting the kerb beside which his body lay. I therefore do not take that factor into account in setting the starting point.
[20] As both counsel acknowledge, the case that is closest on the facts to the present case is that of R v Stevens.2 In that case, as in the present, the driver of a vehicle was endeavouring to leave a scene. The victim of the offending did not want him to leave and clung to the vehicle in an effort to prevent him from leaving. The victim then fell off the vehicle onto the roadway. The vehicle continued reversing back and then began to drive forward. As it did so, the victim began to get up off the road. The vehicle struck the victim and killed her. The starting point adopted in that case was a sentence of four years imprisonment.
[21] The Crown endeavours to distinguish that case by saying that you must have known that your brother was in that area. I agree with that, but I do not consider it is a sufficient distinguishing characteristic to adopt a significantly different starting point for your offending.
[22] The Crown submits that an appropriate starting point is five to five and a half years imprisonment. Your counsel urges me to adopt a starting point of four years imprisonment, but then to reduce that by some degree to reflect the provocative behaviour of your brother. I consider all factors can be adequately recognised, including the extent to which your brother may have influenced the events that occurred, by adopting a starting point of four years imprisonment.
2 R v Stevens [2017] NZHC 727.
Aggravating factors
[23] I now turn to aggravating and mitigating factors that are personal to you. You have no previous convictions other than a conviction entered in January 2018 on a charge of driving with excess breath alcohol. That was dealt with by way of fine and the Crown accepts it should not result in any uplift for present purposes.
Mitigating factors
[24] In terms of mitigating factors, there are several. The first is that you are just 22 years of age, and other than the conviction to which I have referred, you have not appeared before the courts on any other occasion. Having read a very helpful cultural report that I have received I find it surprising that you have not been before the courts prior to 2018. It is clear that you had a very difficult upbringing and witnessed many events that you should not have seen.
[25] Despite this fact that you have been able to keep your nose clean and have not become involved in any offending. More to the point, you have distinguished yourself within both your whanau and your wider community. I have the benefit of input from both members of your family and other people in the community. The overwhelming impression to be gained from this is that you are humble person who does his best to help others. You are held in high respect not only within your whanau but your wider community. You do good deeds for others whenever you can, and I have no doubt that this is likely to continue in the future.
[26] The Court of Appeal has recognised that youth may be a significant mitigating factor for several reasons.3 The first is that it may contribute to offending because a lack of maturity may not enable an offender to appreciate the true consequences of the offending.4 I consider this case to be typical of offending driven by immature youth. I say that both in relation to you and your brother. It is unlikely in my view that older people would have become involved in an incident such as that which occurred here.
3 Churchward v R [2011] NZCA 531, (2011) 25 CRNZ 446 at [76]-[91].
4 At [80]-[81].
Secondly, youth may be relevant because there may be greater prospects of rehabilitation than for an older offender.5 Rehabilitation must obviously be encouraged rather than discouraged by the courts. Taking these factors into account, I consider that you are entitled to a credit of 25 per cent, or 12 months, to reflect your age and hitherto good character.
[27] Next, I take into account the remorse that I am satisfied you feel for your offending. You are a victim of the offending as much as the rest of your family because you have lost a loved brother. It is clear, as the reports demonstrate, that your relationship with your brother was not always an easy one. It also seems obvious that he was a person who tried to dominate you and this is evident from the circumstances that gave rise to the present charge. Nevertheless, I am satisfied that you have demonstrated genuine remorse because you must bear responsibility within your whanau for the fact that you have removed a loved member from it. I propose to give you a credit of five months, or around five per cent, to reflect this factor.
[28] You also offered through your counsel to plead guilty to a charge of manslaughter approximately one month before the commencement of the trial. It is entirely understandable that the Crown did not accept that offer. It was for the jury and not for the Crown to decide whether you drove your vehicle deliberately at your brother as he lay on the road. Until that issue was resolved the charge of murder could not be removed from the equation. I therefore accept the Crown acted entirely appropriately in declining to accept your offer to plead guilty to a charge of manslaughter.
[29] Nevertheless, the offer to plead guilty to that charge is important in two ways. First, it reflects a clear acceptance of responsibility by you for your offending. Secondly, if accepted, it could have saved both the State the cost of a trial and your family and whanau the trauma of reliving the events that led to your brother’s death. The offer to plead guilty was obviously not made at an early stage, but I consider it requires discrete recognition. I therefore allocate a discount of seven months, or approximately 15 per cent, to this factor.
5 At [88]-[91].
Home detention
[30] This means that, from a starting point of four years imprisonment, I am left with an end sentence of two years imprisonment. This opens the prospect that a sentence of home detention may be available. On this issue the answer is obvious. It would be pointless to send you to prison and, as the pre-sentence report points out, to thereby expose you to sinister criminal influences. Rather, you need to be returned to the support of your whanau so they can assist you to come to terms with what you have done. You can also assist them to atone for what you have done through the appropriate expressions of remorse and by providing assistance to others in the same way that you have assisted them in the past. I consider a sentence of home detention to not only be the least restrictive outcome, but also the outcome that will best promote the prospect of rehabilitation so you can remain a valuable member of our community.
[31] I consider, however, that you should also be required to serve a sentence of community work. This will enable you to demonstrate in a practical way that you wish to atone for your offending.
[32] Finally, it will be necessary for me to impose a period of disqualification from driving. That is appropriate because you have caused the death of another human being through the improper and illegal use of a motor vehicle. The Crown suggests a sentence of disqualification of four years is appropriate. Having regard to the recent decision of the Court of Appeal in Taiapa v R, however, I do not accept that submission.6 I also consider a driver’s licence to be an important tool in the rehabilitation of an offender. It allows them not only to take up significant employment, but also to visit and socialise with others in the community. Extended deprivation of that ability can, in my view, be counterproductive to the rehabilitative process.
Sentence
[33] On the charge of manslaughter, you are sentenced to 12 months home detention on the conditions and post-detention conditions set out in the pre-sentence report. The
6 Taiapa v R [2019] NZCA 524.
latter is to last for 12 months following completion of the sentence. In addition, you are ordered to perform 200 hours of community work. You are disqualified also from holding or obtaining a driver’s licence for a period of 12 months from the expiry of your sentence.
[34]Stand down.
Lang J
Solicitors:
Crown Solicitor, Tauranga
4
4
0