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 Those charges were withdrawn shortly before you were due to be tried and two manslaughter charges were laid.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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Tawhai

Details

AGLC: R v Tawhai [2014] NZHC 131
Case: [2014] NZHC 131
Decision Date: 12 February 2014

CaseChat Overview and Summary

In the High Court of New Zealand, Henry Anthony Tawhai faced sentencing for criminal nuisance resulting from an incident where his unsecured load caused the deaths of Ernest and Nancy Sutton. Tawhai had pleaded guilty to operating a heavy truck and trailer on a road, failing to ensure the load was secure, which endangered the lives, safety, or health of the public. The tragic consequences of this offence led to the initial charges of dangerous driving causing death and driving under the influence of cannabis, which were later amended to the charge of criminal nuisance to which Tawhai pleaded guilty. The court considered various factors, including Tawhai's lack of experience with the specific load, his otherwise clean driving record, and his expression of remorse and regret.

The court had to balance the tragic consequences of the offence against the principles of sentencing for criminal nuisance. It considered Tawhai's culpability and the mitigating factors, such as his genuine remorse and the absence of evidence linking his cannabis use to the accident. The court also took into account the significant delay in the proceedings and the unique circumstances of the load and its transportation. Ultimately, the court decided that a custodial sentence was not necessary and opted for a substantial period of community work, acknowledging the gravity of the offence and its impact on the Sutton family.

The court sentenced Tawhai to 225 hours of community work, acknowledging his guilty plea and the effective suspension of his heavy transport licence. The court also noted Tawhai's offer to meet with the Sutton family for reconciliation, to be facilitated by a professional in restorative justice. The decision reflects the court's aim to hold Tawhai accountable while considering the broader circumstances of the case and its impact on all involved.

Orders