R v Tawhai

[2014] NZHC 131

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI-2013-043-1299 [2014] NZHC 131

THE QUEEN

v

HENRY ANTHONY TAWHAI

Hearing:                   12 February 2014

Appearances:           CE Clarke for Crown

S Hughes QC for Accused

Sentence:                 12 February 2014

SENTENCING NOTES OF TOOGOOD J

R v TAWHAI [2014] NZHC 131 [12 February 2014]

[1]      Henry Anthony Tawhai: you have pleaded guilty, following a sentence indication, to a charge that on 28 May 2012 at Motonui you committed criminal nuisance by doing an unlawful act.   What was particularly alleged was that you operated a heavy truck and trailer on a road and failed to ensure that the load was secure and contained in such a manner that it could not fall or escape from the vehicle.   It is an ingredient of that charge also that you knew that your failure to secure the load would endanger the lives, safety or health of the public.

[2]      What  makes  this  offending  tragic  is  that  two  people,  Ernest  and  Nancy Sutton, were killed when the car in which they were driving was crushed by the large steel pipes which fell from the vehicle being driven by you.   You were initially charged with dangerous driving causing death and with driving under the influence of cannabis.  Those charges were withdrawn shortly before you were due to be tried and two manslaughter charges were laid.   The laying of the more serious charges inevitably delayed completion of the criminal proceedings against you.  Then, about a week before you were due to be tried in this Court by a jury, the application to amend the indictment has exacerbated the unfortunate delays in dealing with your offending.  The manslaughter charges were deleted and amended in the indictment to the charge to which you have pleaded guilty.

[3]      Your trial on that charge began before a jury on Monday this week, but on the following day I declared a mistrial because of the timing of a report in the online version of the local newspaper that you had previously faced the cannabis related charge.  Both Ms Hughes QC on your behalf and the Crown Solicitor submitted to me that the publication of this information had the potential to compromise your right to a fair trial and, in those circumstances, the jury was discharged and a retrial ordered.

[4]      I then received from  Ms  Hughes  your request  for a  sentence indication. Immediately following the hearing and my decision you were re-arraigned and you pleaded guilty.

[5]      You have waived your right to a pre-sentence report and counsel agree that, in light of the indication I gave yesterday, it would be proper for me to sentence you

today on the basis of the evidence given and proposed to be given on behalf of both

Crown and defence, and having regard to counsel’s submissions.

[6]      I have also received and am grateful for a joint report from the two Police experts and a defence expert, Dr Stevenson, about the causes of the failure of your load, and I have been assisted by their views.

[7]      I have also received a copy of a letter from you addressed to the whanau of Mr and Mrs Sutton, in which you apologise and express your remorse and regret for your part in the deaths of two deeply-loved family members.  I have also received and read statements by family members who are also victims in this case and you have heard several of those statements read to the Court.

[8]      In approaching the duty of imposing an appropriate sentence upon you it is both  necessary  and   appropriate  that   I  should  take  into  account   the  tragic consequences of your offence.  By all accounts Ern and Nancy Sutton were a much loved couple who were widely respected, not only within the family but also within their community; their loss is keenly felt.  But I must not allow natural feelings of sympathy to override other factors which I am required to take into account.

[9]      First, I must be mindful that the maximum penalty for criminal nuisance is one year’s imprisonment.  Although there is no doubt that your failure to ensure that your load was secure led to these tragic deaths, you are not charged with an offence which holds you directly responsible.  Second, it is also important to recognise that the unlawful act relied upon by the Crown as an ingredient of your offence is one of strict liability.  That means that the mere fact that the pipes fell from your vehicle imposed on you an obligation to show that in all the circumstances you should not be held accountable.  Your guilty plea reflects the fact that you recognised you were unable to discharge that burden and that you do accept responsibility, at least in part, for the failure to secure the load.

[10]     The circumstances which have brought you here today were that you were directed by your employer to pick up a load of heavy steel pipes from the supplier, Pipes New Zealand Limited, and deliver them to Auckland. The load comprised four

large pipes and four smaller pipes all of which were intended for irrigation purposes. It is said that the load had a total weight of approximately 25 tonnes, although it may have been a little lighter than that.

[11]     The pipes were loaded onto the trailer unit with two large pipes on the deck and two large pipes placed directly on top of them.  A smaller pipe was then loaded inside each of the large pipes.  Chains and strops were used to secure the load to the tray of the trailer.  It is the view of the experts that this method of loading the smaller pipes was unusual and inappropriate.  I am satisfied also that your fault in this tragic matter lies in your failure to follow what I understand to be a basic principle for securing a heavy load; namely, that the combined rating of the security measures - whether chains or strops - should be double that of the weight of the load.  Whereas you should have applied total security capable of retaining a 50-tonne load, the combined rating of the restraints which you applied was only approximately 30 tonnes.

[12]     That this load was inherently unsafe may be inferred also from the fact that it was  very soon  after  you  began  your  journey,  while  taking  a  moderate  bend  at Motonui within the speed limit, that the load shifted, causing one or more of the restraints to fail and leading to the pipes falling into the path of Mr and Mrs Sutton’s vehicle.

[13]     The sentencing purposes and principles which I am required to take into account  mean  that  you  must  be made accountable for  your  failure to  meet  the standard required of  you as a driver of a very heavy load which represented a potential danger to other road users.  I must also consider the need to remind you and others about the responsibilities of those who operate heavy transport and to deter them, and you, from such breaches of duty in the future.

[14]   In undertaking what both counsel have acknowledged, in the particular circumstances of this case, to be a difficult sentencing exercise, I am required to take into account any aggravating or mitigating factors related to your offending and to you personally.

[15]     You  do  not  have  an  unblemished  criminal  history but  apart  from  minor charges in 2000 and 2007 nothing in the past 20 years, and all of your offending may be described as having been of an anti-social nature.  You have one conviction for driving with excess breath alcohol but that was 35 years ago so I put that to one side also.  Against that, for 25 years you have driven on our roads for many many hours without committing any driving offence and you are entitled to credit for that.

[16]     I do not regard it to be an aggravating factor that a blood sample taken from you shortly after the accident revealed traces of cannabis, and I need to explain why. The evidence of the level of THC, the active ingredient of cannabis, in your blood was said by an expert to be consistent with smoking the equivalent of a single cannabis cigarette within about four hours prior to your blood sample being taken.  It needs  to  be said  that  it  was  highly irresponsible and  unacceptable  for  a heavy transport operator to consume cannabis before working, but the evidence falls short of establishing that there was any connection between your use of cannabis and the manner of your driving.   That is why the earlier drug-related driving charge was withdrawn  by  the  prosecution.    It  might  be  thought  that  your  consumption  of cannabis may have affected your judgment as to the securing of the load, but there is no evidence of that before me and accordingly I must put it to one side in sentencing you.

[17]     I must also take into account in your favour that the evidence established that you were not driving at an excessive speed at the time the load failed and that there is no evidence of any fault in the manner of your driving.

[18]     Next, it is necessary for me to recognise that you received no warning prior to arriving at Pipes New Zealand about the nature of the load  you were to carry. Although you had 25 years of experience in heavy transport work, you were not experienced in transporting this kind of load.  You had received no training or any instruction from your employer or anyone else as to the appropriate safety measures which had to be taken in respect of what was an unusual load and configuration. You were left, as I understand the evidence, to determine how you should carry out your  responsibilities  to  ensure the safety of the load without  the  knowledge  or experience necessary to deal with this particular consignment.

[19]     I also take into account that placing the smaller pipes inside the larger pipes was proposed by the transport logistics manager of Pipes New Zealand on whose experience and expertise you were entitled to rely.  The evidence given to the jury included evidence that two earlier loads had been transported to Auckland without incident, in the same configuration, but with considerably greater restraint than that which was applied by you.   The evidence suggested to me that the Pipes New Zealand employees who loaded the pipes onto  your vehicle considered  that the restraints applied in the earlier cases were excessive.  That may explain why they did not insist that greater restraints should be applied by you.   That proved to be a serious error of judgment on their part and it is relevant that, although it is now acknowledged that they share legal and practical responsibility with you for ensuring the load was secure, you are the only person who has been prosecuted.

[20]     It is also relevant, in my view, that the experts both for the defence and the prosecution  have observed  in  their  joint  statement  that  the  New  Zealand Truck Loading Code is difficult for those in the industry to understand and implement, and that a rigid long-length load such as that involved in this case is not adequately covered by the Code.  They recommend that the Code be updated. These are matters I have no doubt which will be addressed in the context of the Coroner’s inquest into Mr and Mrs Sutton’s deaths, along with the identification of any other person who should share some of the responsibility for the failure to properly secure the load.

[21]     All of these factors assist me in coming to a view of the level of culpability or blameworthiness which I am required to take into account.   In assessing how that should  be  reflected  in  the  penalty  in  this  case,  I  have  been  assisted  also  by considering a number of other sentences imposed for criminal nuisance and careless driving causing death.1   There is no guideline judgment for such offending because

the circumstances are infinitely various.  In one case2, as I said yesterday, where a

mussel-processing facility sold mussels contaminated by listeria, resulting in the deaths of five people, the general manager of the plant was held responsible for the

1      R  v  Turner  (1995)  13  CRNZ  142;  Khammo  v  Police  HC  Hamilton CRI-2007-419-68 13

November 2007; Wood v Police HC Hamilton CRI-2008-419-85, 1 May 2009; Chapman v Police HC Christchurch CRI-2010-409-210, 30 November 2010; Barr v Police HC Rotorua CRI-2011-463-42, 28 November 2011; Haskell v Police [2012] NZHC 118; R v Tod [2014] NZHC 188;.

2      R v Turner, above n1.

systemic failures which led to the contamination.   He received a sentence of community work and a fine following a lengthy trial.

[22]     As I have said earlier, while you have not been charged with an offence directly related to the loss of Mr and Mrs Sutton’s lives, it is necessary for me to take into  account  the  consequences  of  your  offending,  including  the  effect  on  the surviving family members and to consider their views.

[23]     No one could fail to be moved by the expressions of grief by the members of a family which has been devastated by the loss of much loved parents, parents-in- law and grandparents.   I acknowledge the presence of Sutton family members in Court today and extend to them the Court’s deepest sympathy, and I am grateful to them for the dignified and restrained way in which they have expressed their deep grief and sense of loss in this case.  They have directed much of their anger at the needless  loss  of  these  lives  at  you  Mr Tawhai,  and  they  want  you  to  be  held accountable.   But as the members of the family appear to recognise, no punishment, however severe, will bring back those two much-loved family members.

[24]     I hope they will also come to recognise, as I do, that you have expressed in a moving letter addressed to them genuine and deep feelings of remorse and regret for these deaths.  It has been suggested that these sentiments have been far too late in coming, but I accept that, having regard to the way in which this prosecution has developed, and given particularly that you faced very serious charges until only a few days ago, it is by no means unusual and is understandable that your sentiments have been kept from members of the family until now.  I accept from Ms Hughes QC, as she explained to me yesterday, that your regret and remorse is longstanding and that you have shared it with her over many months.  As you have said, you will carry with you for the rest of your life the burden of responsibility which you have now acknowledged publicly and that in itself is a considerable punishment.

[25]     I accept and I am required to take into account also your offer to do whatever you can to make amends, including meeting with any of the Sutton family members who wish to meet you.  In the circumstances, it is not appropriate for me to give any directions about such a meeting but I observe that its purpose should be one of

reconciliation  and that  any such meeting should be facilitated professionally by somebody experienced in restorative justice procedures.

[26]     It is also a mitigating factor in my view that you have had to wait some

21 months  since  this  accident  for  the  criminal  process  to  be  completed.    The significant delay is no fault of yours, and I accept that the delays and the way in which serious charges have been laid and withdrawn twice have imposed an additional emotional burden on you, as well as on the Sutton family.

[27]     Taking into account all of these factors, I am satisfied that a sentence of imprisonment is not a necessary response to this offending, notwithstanding the tragic consequences, and that the imposition of a substantial period of community work will provide an appropriate balance between the level of your blameworthiness and the mitigating factors I have discussed.   While an order for reparation would normally be considered seriously in a case such as this, notwithstanding that no amount of money could compensate the family members for their loss, I accept that you have no money and that no reparation order or any other financial penalty could be met.

[28]     I have considered the submissions of counsel as to the appropriate length of a sentence of community work, and it is no surprise to me that experienced counsel have agreed that a period which I had in mind as a starting point is appropriate.

[29]     Given the failure on your part to apply a basic principle in the management of a heavy load and the consequences of that failure, but bearing in mind the roles of others, I take as a starting point a period of 300 hours of community work as being appropriate.  While that is not a custodial sentence, it is, as the courts have said on a number of occasions, a significant penalty.  You are entitled, however, to a discount for your plea of guilty.   In the circumstances, the Crown acknowledges that the discount should amount to the full credit permitted because of the late withdrawal of the manslaughter charges, and in those circumstances I will discount your sentence by 25 percent.

[30]     I have given serious consideration to disqualifying you from driving as an appropriate additional penalty in this case.   I would have made a disqualification order had it not been for the fact that you have had your heavy transport licence suspended from the time of the accident.   That is an effective disqualification of

21 months, which exceeds the period of disqualification I would have considered appropriate in this case.   It is a significant punishment and I do not consider it appropriate in those circumstances to impose any further period of disqualification.

[31]     Mr Tawhai, would you please stand.

[32]     Having  pleaded  guilty  plea  to  one  count  of  criminal  nuisance,  you  are convicted and sentenced to undertake 225 hours of community work subject to the usual conditions.  That sentence will be conducted in Palmerston North where you live but, within 72 hours, you are to report to the probation officer at New Plymouth, at an address to be given to you by the Registrar, so that you may receive instructions as to how the period of community work is to be carried out.

[33]     Please stand down.

[34]     I am grateful to both counsel for their considerable assistance in this tragic case.

..................................

Toogood J