IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2022-090-4196
[2024] NZHC 870
THE KING
v
BRAYDEN ANDREW TOWLER
Hearing:
19 April 2024
Appearances:
C P Paterson and K S Li for Crown
A D Couchman and K L Blackmore for Mr Towler
Date of sentence:
19 April 2024
SENTENCING NOTES OF JAGOSE J
R v TOWLER [2024] NZHC 870 [19 April 2024]
[1] Mr Towler, as you know, on 20 March this year, a jury found you guilty of the manslaughter of Petunu Talitimu, by the unlawful act of dangerous driving causing death. You were convicted accordingly. I now am to sentence you on your conviction.
[2] In sentencing you, I must accept as proven all facts essential to your established guilt.1 Because I was the trial judge, for sentencing, I also am entitled to make factual findings based on the evidence at trial, if consistent with the jury’s verdicts, whether or not adverse to your interests. I am not bound to accept a version of facts most favourable to you.2
[3] I have read and listened to all counsel have had to say, both for you and for the Crown. The Crown recommends a starting point of five years’ imprisonment. Your counsel, Adam Couchman, advocates for a starting point of four years and three months’ imprisonment. He additionally claims discounts in a range of 40-45 per cent, leading to an end sentence of two years and four to six months’ imprisonment. Both counsel propose a period of disqualification from driving after your release: six years says the Crown; 12 months says Mr Couchman.
[4] The lawyers’ written submissions are detailed and lengthy. I have given them careful consideration. But I don’t recite them, because sentencing is an intense exercise of my own judgement. I am not bound by the lawyers’ views; I have to come to my own decision. To meet sentencing’s multiple purposes,3 I must satisfy myself of the appropriate sentence for the gravity (or seriousness) of your offending, including your culpability (or responsibility) for it.
Your offending
[5] I need first to cover off the background to your offending, to let people know the conduct for which I am sentencing you.
3 Sentencing Act, s 7: accountability, responsibility, victims’ interests, reparation, denunciation, deterrence, community protection, rehabilitation and reintegration.
[6] Around midday on Wednesday, 23 November 2022, in traffic on streets surrounding a suburban shopping mall and other community facilities in Auckland’s Glen Eden, an altercation occurred between you and Mr Talitimu from the Holden Commodore and Ford Territory in which you respectively were travelling.
[7] On Glenmall Place’s one-lane roadway, edged on both sides by angled carparks serving the mall shops, the Ford initially was behind your Holden after you…
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.
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AGLC
R v Towler [2024] NZHC 870
Case
[2024] NZHC 870
Decision Date
CaseChat Overview and Summary
The High Court of New Zealand heard the case of The King v Towler, where Brayden Andrew Towler was convicted of the manslaughter of Petunu Talitimu by dangerous driving. The court was tasked with determining an appropriate sentence for Towler's conviction, considering factors such as the gravity of the offence, the harm caused to the victims, and the personal circumstances of the offender. The Crown recommended a starting point of five years' imprisonment, while Towler's counsel advocated for a starting point of four years and three months' imprisonment, with a proposed end sentence of two years and four to six months' imprisonment. Both parties also suggested periods of disqualification from driving post-release, with the Crown proposing six years and Towler's counsel suggesting 12 months.
In delivering the sentence, the court first established a starting point of five years' imprisonment, taking into account the highly culpable nature of Towler's driving, his habitual driving without a valid licence and while forbidden, and his irresponsible behaviour at the time of the offence. The court then considered mitigating factors, such as Towler's guilty plea, his early steps towards rehabilitation in custody, and the significant impact of his imprisonment on his young son. The court applied a total discount of 35 per cent, resulting in an end sentence of three years and three months' imprisonment. Finally, the court ordered a 15-month disqualification from holding or obtaining a driver's licence post-release, considering this appropriate for both punitive and protective purposes.
The court's sentencing decision reflects the multiple purposes of sentencing, including accountability, deterrence, and community protection. By imposing a significant prison term and a period of disqualification from driving, the court aims to denounce Towler's conduct, deter him and others from committing similar offences, and protect the community from further harm. The sentence also provides an opportunity for Towler's rehabilitation and reintegration into society, while acknowledging the profound impact of his actions on the victims and their families.