R v Thompson

[2012] NZHC 2526

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2011-019-007940 [2012] NZHC 2526

THE QUEEN

v

WILLIAM ASHTON THOMPSON

Hearing:         23 July 2012

Appearances: C D Bean for the Accused

T V Clark for the Crown

Judgment:      20 September 2012

SENTENCING REMARKS OF GILBERT J

Counsel: T V Clark, Hamilton:  [email protected]

C D Bean, Hamilton:  [email protected]

R V THOMPSON HC HAM CRI-2011-019-007940 [20 September 2012]

[1]      Mr Thompson, you appear today for sentence having been found guilty by a jury of manslaughter. This offence carries a maximum penalty of life imprisonment.

Facts

[2]      Shortly before 6.30 pm  on 6  October 2011  you drove to the Brookfield accommodation block in Dey Street, Hamilton.  You removed a rubbish sack from your car and placed it on the ground.

[3]      The deceased, Warren Deane, was a 41 year old university student who was living in the accommodation block.  He saw you dumping the rubbish and he came over to confront you about it.   He asked you to put the rubbish back in your car, which you did.  He said he was going to call the police and he stood in front of your car to prevent you from leaving.  You made it clear that you were not prepared to wait for the police to arrive.  You got back into your car and started to move slowly forward towards Mr Deane.  He ended up on the bonnet of your car as you drove off. He was lying on his back facing forward with his upper back against the front windscreen on the driver’s side.

[4]      You  drove  at  speeds  of  between  30  and  60  kilometres  per  hour  for approximately 440 metres with Mr Deane in this vulnerable position.   You drove along Dey Street, past the give way sign at the intersection with Brookfield Street. You continued along Dey Street and then turned left into Naylor Street passing another give way sign without stopping.  As you accelerated down Naylor Street, Mr Deane decided to try to get off the bonnet.  He rolled off the right-hand side of the car and landed heavily on the road sustaining fatal head injuries as a result.  You did not stop or offer any assistance. You carried on driving home.

[5]      While Mr Deane was on the bonnet of your car, he called out to bystanders asking them to call the police saying that he thought you were trying to kill him.  He called 111 on his cellphone while he was on the bonnet of your car and asked for their urgent assistance.  You must have heard Mr Deane crying out for help.  It must

have been obvious to you that Mr Deane feared for his life and yet at no stage did you stop or slow sufficiently to enable him to get off your car safely.

[6]      Despite  the  best  efforts  of  emergency  services  and  medical  personnel, Mr Deane could not be saved and he died in hospital from his head injuries five days later.

Victim impact statement

[7]      David  and  Wendy  Deane,  Warren’s  parents,  have  written  a  joint  victim impact statement describing their great sadness and loss as a result of Warren’s death.   Warren was a much-loved son and he had many friends.   He is greatly missed.

Pre-sentence report

[8]      You are a 63 year old married man.   You have been employed in various labouring jobs and other positions.   Previous employers speak highly of you as a good and trusted worker.

[9]      The pre-sentence report notes that you are devastated by what has happened, but continue to justify your actions claiming that you feared for your own safety at the time. You have been assessed as having a low risk of re-offending.

[10]     You have some previous convictions but none since 1993.   I do not regard these as relevant for the purposes of sentencing today.

Purposes and principles of sentencing

[11]     In deciding what sentence should be imposed on you I have to take into account  established  sentencing  principles.     I  must  hold  you  accountable  for Mr Deane’s death.  I need to denounce your offending and deter you and others from offending in this way.

[12]     I must also take into account the gravity of the offending, and the degree of your culpability.  The sentence I impose on you must be consistent in kind and in length with those imposed on others who have offended similarly.   However, it is also necessary to impose the least restrictive outcome in the circumstances.  Finally, I must consider your re-integration into the community.

Submissions

Crown

[13]     The Crown submits that a starting point of between five years, six months and five years nine months’ imprisonment should be adopted in this case.  In support of that submission, the Crown points to the following features it sees as being aggravating:

(a)       Causing the death of another person;

(b)      Driving  the  car  towards  Mr  Deane.     The  Crown  submits  that

Mr Deane only ended up on the bonnet to avoid being run over;

(c)      That  you  continued  to  drive  440  metres  with  the  victim  on  your bonnet, obstructing your vision as you drove;

(d)That  you  did  not  slow  down  at  any time  to  allow  Mr  Deane  an opportunity to get off.

(e)      That you did not reconsider what you were doing despite Mr Deane yelling for help and speaking on his cellphone with the 111 operator; and

(f)       That you did not stop to check on Mr Deane or offer him assistance.

Defence

[14]     Your counsel, Mr Bean, submits that I should adopt a starting point of three to three and a half years’ imprisonment, with discounts to be afforded for genuine remorse, good character and your age.

[15]     Both    counsel  fairly  acknowledge  that  this  was  a  one-off  case  of  bad judgement and bad driving on your part.

Starting point

[16]     I must first set a starting point for this sentence.  I have regard to the Court of Appeal’s decision in R v Skerrett[1] which sets out a list of non-exhaustive aggravating and mitigating factors to consider in manslaughter cases.

[1] R v Skerrett CA 236/86, 9 December 1986.

[17]     In  setting  the  starting  point  for  your  sentence,  I  take  into  account  as aggravating  factors:  the  distance  travelled;  the  fact  that  you  carried  on  driving despite  Mr Deane  calling  out  for  help  and  calling  emergency  services  on  his cellphone; and the fact that you failed to stop and offer assistance to Mr Deane after he  fell  on  the  road,  choosing  instead  to  drive  home.    In  my  view,  the  other aggravating features suggested by the Crown are elements of the offence rather than true aggravating features.

[18]     I  do  not  consider  that  there  are  any  relevant  mitigating  features  of  the offending.

[19]     In  setting  a  starting  point,  I  must  compare  your  offending  with  similar offending.  The most comparable case[2] involved driving with a person on the bonnet of a car for a distance of 13 kilometres at speeds of up to 120 kilometres per hour.  In that case, the driver veered from side to side across the centre line and eventually crashed into another vehicle, killing the person on the bonnet.  The starting point for

sentencing in that case was six years and eight months’ imprisonment.

[2] R v Fairburn [2012] NZHC 28.

[20]     Your driving was not as bad as the driving in the Fairburn case and the journey not as long. You drove at a normal speed and in a normal manner apart from the fact that you had Mr Deane on the bonnet with his back against the windscreen on the driver’s side obscuring your view.

[21]     Taking  all  these  matters  into  account,  including  the  fact  that  this  was  a one-off incident involving bad judgement and bad driving on your part, I consider that a starting point of four years and six months’ imprisonment is appropriate in your case.

Personal factors

[22]     There are no personal aggravating features.

[23]     Your pre-sentence report states that you are remorseful and deeply regret the harm you have caused to the victim and his family by this incident.  However, I have to balance those statements and the statement you have made in your letter presented to me this morning, with your continued attempt to justify your actions by saying you acted out of fear for your own safety. You have not accepted responsibility and I am unable to allow any discount for your claimed remorse.

[24]     I conclude that there are no personal aggravating or mitigating features and therefore no reason to adjust the starting point I have adopted.

Sentence

[25]     Mr Deane’s death was tragic and avoidable.  I must hold you accountable for

it.  I sentence you to a term of imprisonment of four years and six months.

[26]     I make an order disqualifying you from holding or obtaining a driver licence for a period of three years commencing from and including the date of your release

from prison.

M A Gilbert J