R v Tuirirangi HC Wanganui CRI 2010-083-2891

[2011] NZHC 2053

IN THE HIGH COURT OF NEW ZEALAND WANGANUI REGISTRY

CRI 2010-083-2891

THE QUEEN

v

DONOVAN JAMES MATENGA TUIRIRANGI

Counsel:         H C Mallalieu for the Crown

C P Brosnahan for Donovan Tuirirangi

Judgment:      21 June 2011

SENTENCING REMARKS OF MALLON J

[1]      Mr Tuirirangi, you need to stand now.  You have pleaded guilty to two counts of manslaughter[1]  and now appear for sentence.   The manslaughter involved the unlawful act of dangerous driving which caused the deaths of two of the occupants of the car you were driving.  They were Frances Tekaawa (a 38 year old mother of 6) and her two year old son Duane Pauro.

Circumstances of offending

[1] Sections 160(2)(a), 171 and 177 of the Crimes Act 1961.

[2]      These very sad events occurred on a Sunday afternoon on 12 December last year.  Ms Tekaawa and you had been drinking that morning at your house and then she wanted to go to her house to get some money.  You drove Ms Tekaawa to her house.  With you in the car, in the front seat was your 15 year old nephew.  In the backseat, with Ms Tekaawa and Duane, was your 13 year nephew.  Duane had a seat

belt on but was not in an approved child restraint.

R v TUIRIRANGI HC WANG CRI 2010-083-2891 21 June 2011

[3]      At the time you held a restricted licence.  This meant that you could drive yourself and dependents, but if you had other passengers there needed to be someone with a full licence holder to oversee your driving.  The passengers in your car did not meet these requirements.

[4]      On the way back from Ms Tekaawa’s house, with these passengers on board, you were speeding through a 50km/hr area.    Your speed attracted the attention of several witnesses, who estimated your speed at between 70 to 100 km/hr.   You overtook one vehicle and then another.   The occupants of that second vehicle, a Toyota, estimated your speed at no less than 100 km/hr at this stage.  While stopped for oncoming traffic the driver of the Toyota made a hand gesture at you to express his displeasure.

[5]      This caused you to pursue the Toyota again at a speed of around 100 km/hr. The driver of another vehicle observed you to suddenly pull out and cross to the other side of the road to overtake the vehicle you had been pursuing.  At this time your speed was estimated at about 110-120 km/hr.  The driver of the Toyota had to brake to give you room to pull back in because of an oncoming car.

[6]      After this you slid out of control and plunged 12 to 15 metres down the bank and into the Whanganui River.  Based on skid friction tests, your speed, as you hit the curb before plunging down the bank, was estimated at between 125 and 132 km/hr.

[7]      You and your two nephews managed to escape out windows and to swim to the riverbank where residents assisted in pulling the two boys from the water. Emergency Services arrived and found your car several metres below the surface of the water and about 10 metres from the riverbank.  They found Ms Tekaawa still in the rear seat and pulled her out to the riverbank where she was pronounced dead. This was about 20 minutes after the crash.  Duane was not found until later in the evening.  He was found by a member of the police dive team in the river downstream from the car.  He too was pronounced dead.  Both had died from drowning.

[8]      You were tested for alcohol.  The evidential breath test was not completed because of an incomplete sample.  A blood sample taken, about 3 hours after the crash, on analysis was found to contain 130 milligrams of alcohol per 100 millilitres of blood.

Personal circumstances

[9]      Turning to your personal circumstances.  You are 39 years old.  You have a partner who you have been with on and off for 16 years.  You have seven children, four of whom were living with you before you were remanded in custody on this matter.   Before your remand you had been working for a number of years at an engineering and contracting firm.

[10]     You  have  a  close  family  and  have  their  support.    Your  partner  speaks positively about your qualities as a father and a person.   She also describes the emotional impact this matter has had on your children and the strain on the family’s financial circumstances as you were the financial provider.  A sister in law has also described your qualities with children and as a worker.  I also have a letter from your parents who express their love for you, and a letter from your employer who attests to your qualities as an employee.

[11]     The  pre-sentence  report  writer  describes  your  sadness  about  what  has happened and views your remorse as genuine. You acknowledge that there is no-one to blame but yourself and that you and everyone else will have to live with the consequences for the rest of their lives.

[12]     On  28  May 2011  you  took  part  in  a  restorative  justice  conference  with Mr Pauro, the partner and father of the two who died.  As is said in the report this was always going to be a difficult and challenging conversation.  Understandably it was a painful conference and it is to your credit that you engaged in that, acknowledging the stupidity of your actions, conveying your apology in person, and listening first hand to the anger and grief of Mr Pauro.  No resolution came out of that conference but  your counsel on  your behalf expresses the hope that  in the

fullness of time the hurt that people are understandably feeling will subside in some way.

[13]     The pre-sentence report writer assesses you as a low risk of re-offending providing you undergo a rehabilitation programme to address your alcohol and driving practices.

[14]    Now to the less positive information.  You have a number of previous convictions.  They are mostly for driving related offences.  As to those, you have four convictions for driving with excess breath alcohol.  Two of those were in 1990, the third was in 1999, and the fourth and most recent was in 2005.  You have four convictions for driving while disqualified.  These were in the period 1990 to 1993. At the same time as your conviction in 1992 for driving while disqualified, you were also convicted of failing to stop or ascertain injury and operating a vehicle carelessly. At the same time as your 2005 conviction for driving with excess breath alcohol you were also convicted of failing to stop and driving a vehicle in a dangerous manner. On 14 separate occasions between 2001 and 2005 demerit points were imposed for being an unaccompanied learner driver.

[15]     That history shows a period of years between each instance of driving with excess alcohol.   To some extent that matches with what you have told the pre- sentence report writer, that you had made changes and you were motivated to do so because of your children.  Nevertheless it is a poor history of alcohol and driving offending.  It seems that in these previous incidents no-one was injured. Alcohol and irresponsible driving is, however, a lethal combination, as the Courts in this country see all too often, and on this occasion your dangerous actions have had devastating consequences.

Victim Impact Statements

[16]     I  have  before  me  the  emotional  harm  reparation  report  which  conveys something of the tremendous emotional impact the death of Ms Tekaawa and her son have had on their family.  The victims interviewed indicated that they would not be

comforted by the thought of any reparation being offered.  In any event you are not in a financial position to pay any reparation.

[17]     I have before me victim impact statements from two of Ms Tekaawa’s sisters and from the grandfather of Duane.   They speak of their sadness and loss and lifetime impact the death of their loved ones will have on them and others in the family, including Ms Tekaawa’s partner and her other children.   I thank them for their courage in putting in writing for submission to this Court the impact upon them.

Starting point

[18]     Sentencing for manslaughter is difficult.   Of course you did not intend the outcome, but it occurred because of your dangerous actions.   The sentence is not meant to somehow make up for the deaths of loved ones.  It cannot do that.  It must, however, take into account a number of purposes and principles which are set out in the law.  I am not going to go through all of them in these remarks; they have been referred to in the submissions of counsel.  The ones I am going to emphasise are that the sentence must hold you accountable for your actions; and it must denounce and deter drink drivers who speed and thereby put others’ lives at risk.

[19]     The  first  step  is  to  assess  an  appropriate  starting  point  in  light  of  your culpability for your offending. After that, the starting point is adjusted in light of any aggravating or mitigating factors personal to you.

[20]     The Crown submits that an appropriate starting point is eight to nine years’ imprisonment. Your counsel submits that an appropriate starting point is six to seven years’ imprisonment.

[21]     The factors relevant to the starting point are, in my view, that you had been drinking, that you were speeding at a time of the day when others were out and about on the road, this involved competitive driving in that you became incensed at another driver’s gesture to you, that you had responsibility for the young passengers that were  with  you  (particularly the two  year old  who, as  I said,  was  not  properly restrained in a child restraint), that your passengers had told you to slow down, and

that you were driving in breach of the terms of your restricted licence.   And the consequence of all of this was that two lives were lost.

[22]     As well as the cases counsel have referred to[2]  I have reviewed a number of other cases of motor manslaughter.[3]    Your sentence should be consistent with sentences given to others with similar offending and so the cases help in deciding where in the available range your offending sits, although they also illustrate the

shocking toll drink driving continues to have on our society.

[2] R v Popo [2009] NZCA 447; R v Skerrett CA236/86, 9 December 1986; R v Grey (1992) 8 CRNZ 523 (CA); R v Whiu [2007] NZCA 591; R v Grant CA240/02, 11 December 2002; R v Pairama HC Whanganui CRI 2009-083-002345, 31 May 2010; R v Kerr HC Gisborne CRI 2009-016-3998, 28 April 2010; R v Hitchens CA 380/03, 25 March 2004; R v Peneha [2007] NZCA 191; R v Jagger HC Palmerston North CRI 2009-054-003889, 2 December 2009; R v Herewini CRI 2007-019-010174, 14 May 2009; R v Thorby HC Whanganui CRI 2009-067-000458, 12 February 2010; R v Clarke HC Palmerston North CRI 2010-039-000152, 25 March 2011.

[3] R v Tozer HC Palmerston North CRI 2004-054-002221, 18 August 2004; R v Smith HC Auckland

CRI 2005-057-000675, 4 November 2005; R v Rutene HC Rotorua CRI 2006-069-001183, 26 September 2006; R v Aiomanu HC Christchurch CRI 2004-009-006616, 7 October 2004; R v Tu HC Gisborne S 3/2001, 21 February 2001; R v Guest CA 111/94, 20 July 1994.

[23]     In my view the appropriate starting point is eight years’ imprisonment.  The driving while bad, is not at the very worst end and nor did it involve a police chase as is sometimes the case.[4]   Your counsel has referred to two cases where a six year

[4] Eg, R v Popo and R v Hansen where higher starting points have been taken.

starting point was adopted,[5] but there are a number of other cases where higher start

points of seven or eight years have been adopted.[6]  I consider that eight rather than seven years is appropriate particularly because you had a two year old in your car who was not, as I said, properly restrained and because your actions caused two deaths.

Personal aggravating factors

[5] R v Thorby; R v Clarke.

[6] R v Tozer; R v Smith; R v Rutene; R v Aiomanu; R v Tu; R v Grey; R v Whiu; R v Grant; R v Peneha; R v Jagger; R v Herewini; R v Kerr.

[24]     Your previous convictions are an aggravating factor.   The Crown and your counsel are agreed that this should uplift the sentence by 12 months.  I agree and it is

in line with other cases.[7]

[7] For example, R v Rutene, R v Pairama, R v Whiu and R v Popo.

[25]     You are entitled to a discount for your early guilty plea.  Counsel are agreed that the discount should be 25% and I agree with that.

[26]     Remorse is a mitigating factor.  It is also to your credit that you attended the restorative justice conference and indeed that it was at your request and that you apologised  to  the  partner  and  father  of  the  two  who  have  died.    There  is  no suggestion that your remorse is anything other than genuine.  You have to live with your actions and the constant thoughts you have about that.

[27]     Taking into account all the mitigating factors I consider a discount of 33% is

appropriate. This means an end sentence of six years’ imprisonment.

Minimum Period of Imprisonment

[28]     The Crown submits that I should impose a minimum period of imprisonment. Sometimes for offending of this kind minimum periods of imprisonment are imposed.[8]   In other cases they are not.[9]   I am not going to impose a minimum period for two reasons.  First, your previous driving offending occurred some time ago and the break in their timeframes suggests some effort on your part not to offend in this way.    So,  while  certainly dreadful,  this  is  not  a  case  of  appalling  drink  driver

recidivisicm of the kind the courts sometime see.   Secondly,  your remorse and acceptance of responsibility means that there is no greater need to hold you accountable, or to denounce or deter or to protect the community than that which the sentence I have imposed already does.  The timing of your release will therefore be for the parole board.

Period of Disqualification

[8] Eg R v Tozer; R v Popo; R v Hansen; R v Peneha; R v Jagger; R v Herewini.

[9] Eg R v Smith; R v Rutene; R v Aiomanu; R v Clarke.

[29]     I am to impose a period of disqualification from driving that I think fit.  The

Crown submit[s] that the period of disqualification should be 10 years commencing from the date of release from imprisonment.  In making that submission the Crown

principally relies on one case,[10]  but the driver in that case had a worse history than

you.   Other cases show a range of periods of disqualification below that level. Having looked at that range and considering your history and the need to protect the public, I am going to disqualify you from driving for a period of five years from your release date.[11]

Sentence

[10] R v Pairama.

[11] Eg, R v Tozer (5 years from sentence date); R v Smith (5 years from sentence date); R v Rutene (3 years from release date); R v Aiomanu (6 years from sentence date); R v Tu (10 years from sentence date); R v Kumar (5 years from release date); R v Thorby (5 years from release date); R v Clarke (5 years from release date).

[30]     So what all that comes to is a sentence on each manslaughter count of six years’  imprisonment  to  be  served  concurrently.    And  an  order  that  you  are disqualified from driving for five years commencing from your release date.

Warning

[31]     That  brings  me  to  the  final  part  of  this  sentencing.     The  charge  of manslaughter is a serious violent offence under s 86A of the Sentencing Act and you qualify under, what is known as, the three strikes rule.   I am therefore required to give you a warning of the consequences of another serious violent conviction.  You will also be given a written warning at the completion of this sentencing.

[32]     The first consequence is that if you are convicted of any serious violent offence,  other than  murder,  which  is  committed  after this  warning  and  a judge imposes a sentence of imprisonment then you will serve that sentence without parole or early release.

[33]     The second  is  that  if  you  are convicted of murder,  committed after this warning, then you must be sentenced to life imprisonment.  That sentence will be served without parole unless it would be manifestly unjust.  In that event the judge

must sentence you to a minimum term of imprisonment.

Mallon J