R v Thomas
[2018] NZHC 819
•27 April 2018
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE
CRI-2017-019-006387
[2018] NZHC 819
THE QUEEN v
CAMERON THOMAS
Hearing: 27 April 2018 Appearances:
Ross Douch for the Crown
Kerry Burroughs for the Defendant
Judgment:
27 April 2018
SENTENCING NOTES OF MOORE J
R v THOMAS [2018] NZHC 819 [27 April 2018]
Introduction
[1] Mr Thomas, what I am going to say will take some time and so you may be seated until I formally hand down your sentence. I shall tell you when to stand.
[2] Cameron Thomas, at the age of 34, you appear for sentence having pleaded guilty to four charges. These are:
(a)manslaughter;1
(b)two charges of reckless driving causing injury;2 and
(c)failing to render assistance.3
[3] The victims of your appalling driving were Shane Hohepa, Brooke Whitehead and Fred Daley. Shane Hohepa died. The others were seriously injured. You escaped with only relatively minor injuries.
Facts
[4] It is first necessary for me to set out the background facts which led to the tragedy you were responsible for. No one will know them better than you but because sentencing is a judicial function which must be undertaken in public it is necessary for me to describe them. By the guilty pleas you entered late last year you have accepted these facts and there is no dispute about them.
[5] The day was 27 September last year. For you that day started when you were released from Waikeria Prison having completed a sentence for burglary.
1 Crimes Act 1961, ss 160(2)(a) and 171. The maximum penalty, pursuant to s 177 is life imprisonment.
2 Land Transport Act 1998, ss 7 and 36(1)(a). The maximum penalty is five years’ imprisonment or a fine not exceeding $20,000. The Court must also order the person be disqualified from holding or obtaining a driver licence for one year or more.
3 Sections 22 and 36(1)(c). The maximum penalty is five years’ imprisonment or a fine not exceeding $20,000. The Court must also order the person be disqualified from holding or obtaining a driver licence for one year or more.
[6] You made arrangements to catch up with your friend Fred Daley. On your way to his home you stopped at a liquor store and bought a carton of pre-mixed bourbon. Fred was not home when you got to his place because he was at work. He drove home in his BMW to find you, his partner Brooke Whitehead, Shane Hohepa and Shane’s sister at his home. He noticed empty bourbon cans sitting on the kitchen table.
[7] You told them you wanted to buy some more alcohol. You asked Fred if you could borrow his car. Fred did not think you were particularly drunk but he did know that you had previously had lost your licence. And so he specifically asked you whether you had got it back. You promised him that you had. You and Brooke left.
[8] When you returned you told Fred you wanted to get some cannabis from somewhere in Cambridge. He agreed to join you. The other two, Shane and Brooke, also got in the car and together you all headed towards Cambridge. You were the driver. And you were driving very badly. In fact your driving was so poor that an off- duty Police officer who was heading home, rang up to report you. He saw you attempt a corner with a 55 km per hour recommended limit at between 90 and 100 km per hour. He saw the car cross the centre lane before abruptly cutting in. He then saw you accelerate to a speed he estimated to be between 125 and 130 km per hour. As you sped along the straight he saw you swerve out into the on-coming, opposite lane for about 50 metres.
[9] As you approached the suburb of Leamington you passed one of the Police cars which had been alerted by the officer’s call. She turned on the flashing lights and followed you.
[10] You could see you were being pursued. You told Fred that you would have to ditch the car because you were a disqualified driver. This was obviously news to him because you had earlier told him you had got your licence back. He told you to pull over. You answered him by accelerating.
[11] He was not the only one you ignored. Shane told you at least five or six times to stop. But you carried on.
[12] Witnesses who heard your car speeding through the streets of Cambridge described it as “flying”. Fred said that in the 50 km per hour zone it felt more like you were travelling at about 180 km per hour.
[13] At high speed you drove through two give way signs without stopping before you lost control and hit a parked car. The Police officer following you described seeing the car leaving the ground so that the bonnet pointed to the sky and the roof faced her. Airborne, the car crossed the road before flipping end on end and coming to rest on its left hand side at about 170 metres from the first point of impact.
[14] The officer leapt out of her car to check on the passengers. You met her at the scene and identified yourself as the driver. As she was about to arrest you a member of the public pointed to a body lying nearby on the verge. The officer went to assist and found Brooke lying on her back; unresponsive except for groaning.
[15] The officer asked you why you did not stop. You told her you didn’t have a licence.
[16] She then checked on the other victims. She looked in the car and saw Shane, obviously badly injured, in the left rear passenger seat with his head out the window. Fred was in the front passenger seat. He was sufficiently conscious to be able to tell her that his leg was trapped.
[17] At about this time a member of the public alerted the officer to the fact you were running away. However, by this time, another Police patrol car arrived and arrested you.
[18] While at the scene you spoke with a member of the public. You told them that you were the driver and that you were fleeing the Police because you did not have a licence. That same member of the public helped load Brooke into an ambulance before returning to talk to you. By this time you had been arrested and you were in handcuffs. You offered a different account. You told the witness you were not driver and suggested and that your “dead mate” was actually the driver.
[19] Later the Police spoke to you again. You told them that you accelerated away from the Police because you knew you were going to be chased and you were a disqualified driver. You said you could not remember what happened after you hit the kerb but you suggested you had only been driving at about 80 km per hour.
[20] You were breath tested. The test returned a breath alcohol reading of 501 micrograms of alcohol per litre of breath. The legal limit is 250.4
[21] As you know, Shane died from the injuries he received in the crash. He was only 27.
[22] Fred suffered fractures to the bones of his face and required surgery. He also had a brain bleed which needed to be operated on.
[23] Brooke cannot remember anything. She broke her collar bone, five ribs, her back, fractured the left side of her skull and broke her leg in three places. She is aged just 22.
Victim impact statements
[24] A joint victim impact statement from Fred, his brother Anthony and Brooke has been filed. I read their comments before I came into Court and Mr Douch has read them in open Court today.
[25]It is impossible not to be moved by what they say.
[26] The effects of what you did that day were so utterly predictable and so utterly avoidable. Fred described his serious injuries which he has yet to fully recover from. What you did has also cost him financially. Not only has been unable to work but his BMW was destroyed before he could pay for it.
[27] Brooke is unable to work because of her multiple injuries. She is also dealing with the effects of concussion and short term memory loss.
4 Land Transport Act 1998, s 11(a).
[28] All three remain extremely angry at what you did. It continues to bother Fred that you lied about your licence and your level of sobriety. But it also upsets them greatly that despite their calls for you to stop, you ignored them all, because of your selfish concerns about your own position and the consequences for you if you were caught.
[29] For a while Fred blamed himself for the accident and for the loss of Shane. Fred and Brooke mourn Shane whose loss they are still coming to terms with. Fred’s brother Anthony has been the key support person for the victims and had to deal with the possibility of losing his brother.
[30] I have also read the victim impact statement of Shane’s fiancée. The couple were planning to get married in December. To protect her privacy I shall not repeat publicly what she has so movingly recorded but needless to say the effects of Shane’s death haunt her and will be with her for the rest of her life.
[31] Janeen Hohepa, Shane’s mother, supported by her daughters, has crafted, as you have heard, a very moving tribute to her beloved son. She had the great courage to stand in this Court and present her statement in person. She cannot find the words to describe her wrenching sense of loss in circumstances which were all so avoidable. As with the other victims of your stupidity that day, she simply cannot understand why you ignored the pleas of your passengers to stop. You carried on and you killed her son and her life and the lives of her whanau will never be the same.
[32] Through your actions Mr Thomas you have emotionally scarred the lives of so many people; scars which will take a long time, if ever, to heal.
Personal circumstances
[33] As I have already touched on you are 34-years old. You live in Hamilton. You have a two-year old daughter who lives with her mother out of this city. In the past you have worked fixing cars, planting trees and moving furniture.
[34] The plan was that when you were released from Waikeria you would live with your former partner. But she was unwilling to have you.
[35] I accept that you rarely drink alcohol. That may seem counterintuitive but your older sister confirms what is written in the pre-sentence report. She also speaks positively of you; that you are a wonderful father to your daughter and that you regularly babysit her own children. It is to her great credit that she is prepared to continue to support you.
[36] You told the author of the pre-sentence report that you were diagnosed with ADHD as a child and took Ritalin until the age of 17. Your sister was apparently unaware of this diagnosis but believes your behaviour is consistent with some sort of behavioural disorder which she says has improved with age.
Prior convictions
[37] Your list of previous convictions is extensive. By my calculation you have amassed some 58 convictions going back to 1999.
[38] Of these a number are directly relevant to the present offending. You have five convictions for driving while disqualified and you have been convicted of being an unlicensed driver and failing to comply with a prohibition on four previous occasions. You have once before been convicted of driving with excess breath alcohol. You have three previous convictions for failing to stop when directed to do so and you have twice been convicted for failing to offer proper assistance and endeavouring to leave the scene. Three times you have been convicted of escaping Police custody. And finally and of particular relevance, on three previous occasions you have been convicted of reckless driving and twice for dangerous driving.
Restorative justice conferences
[39] I note that you have participated in two restorative justice conferences with Shane’s family and fiancée. These were in February and March. At the first you met with Shane’s mother and sister. They accepted your explanation that you did, in fact, go back to check the wreckage. They were grateful for the conversation they had with you and thanked you for helping them better understand. They expressed their forgiveness.
[40] Then in March you met Shane’s fiancée. You apologised to her. You told her it was the worst thing that you had done in your life. But you also contradicted some aspects of the summary of facts. You disputed that you attempted to flee the scene. Shane’s fiancée told you how difficult her life has been since Shane’s death and she then said she hoped you would receive a sentence of life imprisonment.
Pre-sentence report
[41] The author of the pre-sentence report has assessed you as posing a very high risk of re-offending and harm to others, and states you lack genuine remorse. This assessment is based on the number of prior driving offences and the fact that your offending occurred on the very day you were released from prison.
[42] You told her that you strongly believe that your drink was spiked with GHB and that you only drank one can of pre-mixed bourbon. As the Probation officer observes, that claim is plainly contradicted by your breath alcohol reading. You also said that you did not know why the others “got” you to drive. On the accepted facts, that is an astonishing statement which not only flies in the face of the accepted facts but also hints at your lack of insight into the central part you played in this tragedy. There is also some room for cynicism as to your motives to engage in restorative justice because you told the author of the report that you wanted to participate because you might get a discount at sentencing. I do not overlook
[43] Against that, you did, however, convey some degree of sorrow over the death of Shane who had been a friend for some years.
[44] I note that you have completed rehabilitative programmes before your release. These included a drug and alcohol programme, Smart Choices and The Power of Positive Change programmes. Given all you did on the very day that you were released, it seems that none of these initiatives succeeded in giving you any insight into the consequences of your behaviour.
Purposes and principles of sentencing
[45] I accept that the purposes and principles of sentencing which are engaged in your case are the need to hold you responsible and accountable for the harm you have caused and to promote in you a sense of responsibility for, and an acknowledgement of, the harm you have caused. It is also necessary that your conduct not only be denounced but that any sentence imposed should deter both you and others who may be similarly inclined. I also accept, particularly having regard to your previous convictions for similar offending, there is a need to protect the community from you.
[46] I take into account the gravity of the offending, including the degree of culpability and the seriousness of the offence. I accept I must take into account the desirability of consistency with appropriate sentencing levels and impose the least restrictive sentence which is appropriate in the circumstances. I must take into account any particular circumstance which might make the sentence disproportionately severe in your case.
Approach to sentencing
[47] In sentencing you today there are a number of procedural steps which must be followed and which are now well known. First I must identify a starting point for your lead offending which in this case everyone agrees is the charge of manslaughter. In doing so I shall take into account any aggravating and mitigating features of the offending. I will then uplift, if necessary, the starting point to reflect your overall offending before turning to your personal circumstances and the aggravating and mitigating factors special to you. I must then stand back and consider whether the sentence arrived at properly reflects your overall culpability. After that step I must then decide whether or not to impose a minimum period of imprisonment.
Starting point
[48] And so I now turn to consider the first step which is setting the starting point. The expression “starting point” is apt to confuse. It does not necessarily mean the base point which may only be added to. It can also mean the base point from which
deductions may be made although in your case there is no room to make any deductions at this point.
[49] There is no guideline judgment to assist the Court when imposing sentences for manslaughter. This is because the crime of manslaughter covers a myriad of situations which are all but impossible to categorise. However, our Court of Appeal in a case called Gacitua v R,5 which followed an English decision, does contain a useful list of the relevant aggravating and mitigating factors in cases involving vehicular manslaughter.
Aggravating features
[50] Both your lawyer, Mr Burroughs, and Mr Douch, for the Crown, are largely agreed on what the aggravating factors in your case are. Despite that, I should list them. They include:
(a)your offending resulted in the greatest harm possible; loss of life as well as serious injury to others;
(b)you were a disqualified driver;
(c)you did not heed the calls of your victims to slow down or to stop;
(d)you failed to stop for the Police;
(e)you had a breath alcohol level at about twice the legal limit;
(f)you were driving recklessly to avoid being caught; and
(g)you failed to give proper assistance to your injured victims.
[51] I also accept as relevant, Mr Douch’s submission that these events occurred on the very day you were released from prison when you were subject to post-release
5 Gacitua v R [2013] NZCA 234.
conditions. It is also relevant that you deceived Fred in obtaining his permission to drive the BMW.
[52] However, the aggravating features which I have just listed are mostly encompassed as elements of the charges you have pleaded guilty to. For that reason I prefer to fix a global starting point for your offending. That approach is consistent with the approach taken by the Judges in the four cases the lawyers have referred me to.
[53]These cases are R v Presland,6 R v Hyde,7 R v Guest8 and R v Pora.9
[54] I will not prolong this process by discussing the facts of those cases and the judicial approaches adopted in them. Needless to say they all involved appalling driving, the consumption of alcohol and the death and injury of passengers. Starting points of between seven years and eight years and nine months’ imprisonment were adopted.
What should be the starting point?
[55] From these cases it is plain that starting points for motor manslaughter arising out of reckless driving, typically where the driver has been drinking, tend to be around the seven year mark, but this is not inflexible and should not be seen as some sort of judicial straight jacket. In cases where there are additional aggravating factors a sterner starting point will be called for. Every case must turn on its own individual facts and circumstances.
[56] Mr Douch submits that in your case a starting point of between eight and nine years’ imprisonment is appropriate. This is because he says your case engages additional aggravating factors. Mr Burroughs, on your behalf, accepts the orthodoxy of a seven year starting point. He says that should be the starting point in your case.
6 R v Presland [2015] NZHC 1203.
7 R v Hyde [2013] NZHC 2586.
8 R v Guest [2013] NZHC 2432.
9 R v Pora [2015] NZHC 1104.
[57] I agree with Mr Douch that this is a case which, given the additional aggravating factors, deserves a starting point of more than seven years’ imprisonment. I do not consider it as serious as the offending in Guest which attracted a sentence of eight years and nine months’ imprisonment. But your offending is, in my assessment, more serious than that in the other cases. You were a disqualified driver; you drove when your breath alcohol level was twice the legal limit; you ignored the pleas of your passengers to slow down and stop; you were running from the Police and after the crash you failed to give proper assistance. These are all factors which contribute to my assessment that your offending is at the more serious end of the scale.
[58] I am therefore of the view that the appropriate starting point in your case is one of eight years’ imprisonment.
Personal aggravating and mitigating factors
[59] I now turn to consider your personal circumstances and how these should influence the sentence I must impose.
Aggravating factors
[60] The only aggravating factor which warrants an uplift in your case is your history of previous convictions, particularly those involving similar conduct to that which led to Shane’s death and serious injury to Fred and Brooke. Mr Douch submits that an uplift of 12 months’ imprisonment should be given in recognition of that factor. Mr Burroughs agrees that such an uplift is necessary but he says that the starting point should be increased by no more than six months’ imprisonment.
[61] I consider an uplift of eight months is appropriate. That is so, in part, given the stern starting point already adopted. Your record of driving offending has correctly been described by Mr Douch as appalling. But I bear in mind that an uplift of only four months was fixed in Pora for a serious, albeit less serious, history of driving offending.
[62] Stepping back, I consider an overall starting point of eight years and eight months’ imprisonment adequately reflects the seriousness of your offending before I turn to consider the mitigating factors personal to you.
Mitigating factors
[63] Mr Burroughs submits a discount should be applied for your remorse and participation in the two restorative justice conferences. He points to your guilty pleas, the two restorative justice conferences and the letter which you have written to me expressing your remorse.
[64] In contrast Mr Douch says that no discount for remorse should be given. He points to the pre-sentence report and the comments it contains about you minimising your offending and suggesting your drink had been spiked and continuing to deny you attempted to leave the scene of the crash. There is also the comment you made about wanting to participate in restorative justice because you might get a discount at sentencing.
[65] I agree with Mr Douch that this combination of factors casts doubt on the genuineness and sincerity of your remorse. In your letter to me you have expressed sorrow and regret for what you did and pointed out that you have been forgiven by Shane’s immediate family although I note not by his fiancée. And while I agree that your participation in restorative justice has had the positive effect of allowing Shane’s family to gain a deeper appreciation of the actions which led to Shane’s death, I note that in your letter you have again tried to minimise what you did. You say that you did check on your friends at the crash scene and only walked away because some “people wanted to fight” you.
[66] Simply put, Mr Thomas, that claim is irreconcilable with the summary which you accept and to which you pleaded guilty. That you pleaded guilty to the charge of failing to render assistance is a potent acknowledgement that you did not assist the victims after the crash. Your repeated claims that you did, in the context of your plea of guilty, colours your claim that you are genuinely remorseful.
[67] In making that comment I am not saying that you do not harbour some grief and regret for what you did. Shane was a friend of yours as were the others. I do not doubt that you grieve for Shane. I do not doubt you regret hurting your other friends so badly. But in all the circumstances, including your comments to the author of the pre-sentence report, I am not satisfied you exhibit the level of genuine remorse which might otherwise justify a discount at sentencing.
[68] Apart from that there are no other factors which Mr Burroughs submits would justify a discount.
[69] I note from the file that at one stage, through your lawyer, you asked to be assessed psychiatrically. It seems that request was made at or about the same time you requested a restorative justice conference. That was at the beginning of December last year. The Judge who dealt with that request questioned the usefulness of such a report and no further steps seemed to have been taken to seek one. In these circumstances and in the absence of any evidence to support a mental health discount there is little this Court can do.
Guilty plea
[70] Where Mr Douch and Mr Burroughs agree is on the allowance I should give you in credit for your pleas of guilty. You pleaded guilty just one month after you first appeared in this Court and following receiving disclosure. I am satisfied that was at the earliest practical point and in doing so you relieve the family and others from the anguish from a trial. As such you are deserving of the full 25 per cent discount.
[71] This means that from a starting point of eight years and eight months’ imprisonment you are entitled to a 26 month discount. This brings your end sentence to one of six years and six months’ imprisonment.
Minimum period of imprisonment
[72] I now turn to consider whether I should impose a minimum period of imprisonment or MPI. Our Sentencing Act 2002 provides for the imposition of an MPI where offenders are sentenced to a determinate sentence of two years’
imprisonment or more and the Court is satisfied the period otherwise applicable is insufficient for holding the offender accountable, denouncing the conduct, deterring the offender and others and protecting the community.10
[73] The standard non-parole period will be one third of the length of your sentence;11 in this case two years and two months’ imprisonment.
[74] Mr Douch submits an MPI should be imposed because that non-parole period is insufficient to achieve the statutory objectives I have mentioned. He says the MPI should equate to two thirds of your end sentence which is the maximum length I can fix under the Sentencing Act.12 Mr Burroughs submits that if an MPI is to be imposed it should not be more than one half of the sentence.
[75] I agree that it is appropriate to impose a MPI in your case for the reasons already given. You are being sentenced for causing the death of one person and the serious injury of two others. Those injuries were caused as a result of extremely reckless behaviour committed in defiance of the road rules and the directions of the Police to stop.
[76] However, I agree with Mr Burroughs that an MPI of two thirds is unnecessary. I agree that an MPI of half your sentence is sufficient to achieve the objectives listed in the Sentencing Act.
[77]I thus impose an MPI of three years and three months’ imprisonment.
Driving disqualification
[78] The final matter is how long you should be disqualified from holding or obtaining a driver’s licence. Disqualification for at least one year is a mandatory consequence of your offending.
10 Sentencing Act 2002, s 86(2).
11 Parole Act 2002, s 84(1).
12 Sentencing Act 2002, s 86(4).
[79] Mr Burroughs submits that a period of “at least” one year will ensure you will not be able to drive legally until you are able to renew your licence.
[80] In the cases I have referred to, significantly longer periods of disqualification were imposed; between three years and 10 years.
[81] Because of the MPI I have fixed I consider it is necessary that the disqualification period should be at least four years so that you cannot drive as soon as you are released from prison. However, given the gravity of your offending and the number of relevant previous convictions I am satisfied that a significantly greater period of disqualification is called for you in your case. You have been a persistent threat to other road users for the last 15 years.
[82] For that reason I consider a 10 year period of disqualification is necessary in your case.
Sentence
[83]Mr Thomas, would you please stand.
[84] On the charge of manslaughter I sentence you to six years and six months’ imprisonment. There shall be a minimum period of imprisonment of three years and three months.
[85] On the two charges of reckless driving causing injury I sentence you to three years’ imprisonment.
[86]On the charge of failing to render assistance you are convicted and discharged.
[87]All custodial sentences imposed are to be served concurrently.
[88] You are also disqualified from holding or obtaining a driver’s licence for a period of 10 years.
[89]Stand down.
Moore J
Solicitors:
Crown Solicitor, Hamilton Mr Burroughs, Hamilton
17
5
0