R v Tuitama

[2024] NZHC 1175

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CRI-2023-085-1374

[2024] NZHC 1175

THE KING

v

JASON TUITAMA

Hearing:

10 May 2024

Counsel:

R De Silva for Crown

L A Scott and S Campbell for Defendant

Sentence:

10 May 2024

Reissued:

14 May 2024

SENTENCING NOTES OF ISAC J

Introduction

[1]    I want to begin by acknowledging the person who can’t be here today. Cass Maguire was only 28 years old when she passed away. She was a loving mother, partner, daughter and sister who should have had a long life in front of her.

[2]    Janette,  her  Mum,  describes  Cass  on  the  evening  of  the  wedding   of  17 June 2023—the last family gathering that she would ever attend—as a beautiful, vibrant, funny, and proud mum in her element. She was a representative player in many of the sports she played and represented New Zealand in handball. But much more than this, she was a caring person who spent her life dedicated to others: her young son Hendricks, her partner Luke, her brother and sister and mum and dad, and her

R v TUITAMA [2024] NZHC 1175 [10 May 2024]

wider whānau. Her care for others was reflected in the jobs and professional roles that she performed.

[3]    Thank you to those who spoke today. I could see how difficult it was for you and I am grateful for your words. What you said was very distressing to listen to. While today my focus must be on sentencing the defendant, I have not lost sight of the special person whose life was lost so needlessly, and the immense sorrow that that has caused you.

[4]    Mr Tuitama, you appear for sentence having pleaded guilty to Ms Maguire’s manslaughter,1 reckless driving causing injury to another victim,2 failing to stop to ascertain if your victims were injured,3 and driving with excess breath alcohol.4

The offending

[5]    On 8 February 2023, you were suspended from driving for 28 days after driving in excess of 40km/h on Murphy Street here in Wellington.

[6]    A month later, on 4 March, you were stopped for speeding and charged with driving whilst suspended.

[7]    On 15 April 2023, you were stopped once again for speeding, this time on Jervois Quay. You were suspended from driving for three months as a result of excess demerit points. The period of suspension lasted until 14 July 2023.

[8]    Two-weeks later, on 1 May, you appeared in the Porirua District Court in relation to the charge of driving whilst suspended from 4 March. Your lawyer at the time was not advised about the subsequent 15 April 2023 suspension notice and mistakenly advised you that you were able to drive until your sentencing date in late June last year.

1      Crimes Act 1961, ss 156, 171, 160(2)(b) and 177. Maximum penalty life imprisonment.

2      Land Transport Act 1998, s 36(1)(a). Maximum penalty five years’ imprisonment.

3      Land Transport Act, s 36(1)(c).

4      Land Transport Act 1998, s 56(1). Maximum penalty three months’ imprisonment, $4,500 fine, minimum six months’ disqualification.

[9]    You are also required as a condition of your driver licence to wear correcting lenses at all times while driving.

17 June 2023

[10]   On the day of your offending, Saturday 17 June 2023, you had been at the Johnsonville Rugby Club celebrating your blazer game. You were drinking, and an evidential  breath  alcohol  reading  after  the  fatal  crash  returned  a  reading  of  993 micrograms of alcohol per litre of breath. You were almost four times the legal limit.

[11]   That very same evening, Ms Maguire was at a family wedding on the waterfront. Her 13-month-old baby boy had been taken home in the evening to bed by his grandmother, so she could continue enjoying the celebration with her family. The other primary victim of your offending was also out celebrating at a family 21st. Purely be chance they ran into each other outside Te Papa.

[12]   Just after midnight you got into your vehicle with your then girlfriend and began driving into Wellington from Johnsonville. Police have undertaken a careful analysis using CCTV footage of the speed you were travelling at during different points of the journey. While you approached the Newlands motorway ramp, you were travelling at 118km per hour. That is an 80km/ph speed zone. You were then seen to activate your brakes to reduce your speed prior to the fixed speed camera.

[13]   Once clear of the camera you accelerated again. As you and your passenger travelled over the motorway flyover you were travelling at an average of 133km/ph. By the time you passed Kaiwharawhara, you were travelling at an average of 150km/ph.

[14]   You then turned off the motorway at Aotea Quay and proceeded along the quay towards the city centre, which had a posted speed limit of 50km/ph. As you approached Hinemoa Street you were travelling at 90km/ph. However, at that point in time there was a Police alcohol checkpoint in the northbound lane, where officers were moving about on the street in glow coats. CCTV footage revealed that you braked, slowing to an average speed of 45km/ph and ultimately slowed to 40km/ph at the commercial

vehicle entrance to the Bluebridge ferry. So Mr Tuitama, you could see very well what you were driving past and tailored your driving to suit.

[15]   You then accelerated again. You reached an average speed of 104km/ph as you approached the intersection of Waterloo Quay and Bunny Street. That intersection is only 200 metres from this Courthouse and is in the heart of Wellington’s CBD. It is a 50km/ph area which connects the city to the waterfront. It goes without saying that it is a public thoroughfare used by pedestrians at all hours of the day.

[16]   You then ran at least one set of red lights before approaching the Brandon Street intersection. You were travelling an average speed of 95km/ph. A pedestrian walked from the right side of the road towards the waterfront. You did not slow down for that person even though they were on your side of the road.

[17]   Between the Queen’s Wharf and Hunter Street intersections you were variously measured as travelling at 89km/ph and 115km/ph. By this stage, your partner was pleading with you to slow down and stop. You ignored her.

[18]   You  then  approached  the  intersection  of  Taranaki  Street  Wharf  and Cable Street, an intersection again controlled by traffic lights. There is also a protected pedestrian crossing. The green pedestrian signal was lit. In addition, the vehicle signal for vehicles leaving Taranaki Street Wharf was also green, meaning you were approaching a red light.

[19]   Despite that, you again ran the red light—at least the second time you had done so. You travelled through the intersection at an average speed of 85km/ph. A vehicle that exited from the Circa Theatre carpark narrowly missed you. At the same time, Ms Maguire and the other victim were crossing the road. Your vehicle struck them, propelling them into the air.

[20]   Rather than stop and assist the people you had run down, you drove away from the scene, leaving your victims critically injured on the road.

[21]   You were eventually stopped by Police on Evans Bay Parade. You immediately acknowledged that you knew you had done something terrible.

[22]   Ms Maguire received non-survivable injuries and died 18 days later in Wellington Hospital. The other young woman you ran down received very serious injuries. She was hospitalised on two occasions and required a number of surgeries. As well as the physical injuries you left her with, she is also psychologically traumatised by what you did.

Consequences of the offending

[23]   As you’ve heard today Mr Tuitama, the consequences of your offending have been devastating. You killed a young woman and left her infant son motherless. Her partner now faces a life raising their son alone without the woman he thought he would spend his life with. A child, a sister, has so senselessly been taken away and it was all so utterly avoidable. The victim impact statements indicate a profound trauma— physical and psychological—that you have caused.

[24]   Cass’ mother says her grief has now become an emotional prison. That is a sentiment which echoes through all of the statements I have read. And I do not think Mr Tuitama that you can truly comprehend the enormity of what you have done, or the sorrow you have caused to so many people.

Personal circumstances

[25]   At the time of the offending you were 23 years of age. You are 24 now. You were brought up in a good household by loving parents. They brought you up in the Church. You should be grateful for all the support and care they continue to give you. There are no indications of negative childhood experiences that would be relevant to sentencing.

[26]   At the time of the accident it appears you were working towards a qualification as a personal trainer and working in construction. You were a competitive and very able rugby player. There are a number of letters of support that say you are a quiet man and generally a good person. I am also told that you rarely if ever attended after-match

functions, and were generally not a heavy drinker. However, you did have a period of two years when you were smoking cannabis regularly and heavily. You reported that you felt addicted to it. But even so, you stopped habitually smoking it in 2020.

[27]   While you do not have an extensive criminal history, you were convicted in 2020 of four charges of assault on a person in a family relationship and wilful damage. It follows that you do not appear as a first offender or a person of unblemished character.

[28]   Material that has been filed on your behalf indicates that you had been in a difficult relationship for four years, and one that you felt you could not get out of. The writer of a psychological report prepared late last year suggests that at the time of your offending you likely had pre-existing and untreated depression related to that relationship. His opinion is that the combination of your untreated depression and the alcohol you consumed appear to have combined in an extremely unfortunate way, leading to an impulsive and reckless decision to drive. The report writer also considers that you now exhibit signs consistent with post-traumatic stress disorder as a result of the accident.

[29]   An alcohol and drug clinical assessment records that you told the report writers that you were so drunk that you do not remember much of the night of your offending. The report writers also note that you had not slept properly the night before as a result of an argument with your partner, and this may have contributed to the offending. This is echoed in the pre-sentence report also.

Starting point

[30]   I begin then by setting a starting point for sentencing on the lead charge of manslaughter. In doing so, in accordance with the approach in previous authorities I intend to treat the charges of reckless driving causing injury and failing to render assistance as factors aggravating the sentence for manslaughter.

[31]The aggravating features present in your offending are as follows:

(a)You were grossly intoxicated, being nearly four times the legal limit.

(b)It was a condition of your driver licence that you wear prescription glasses when driving, but you chose not to do so.

(c)Most significant in my view, there was a sustained course of extremely dangerous driving from the moment you joined the motorway in Johnsonville until the fatal collision. You heard Ms Scott refer to it as a distance of 11km. You drove at speeds reaching 150km/ph on the motorway. Worse, in a densely populated city centre with a speed limit of 50km/ph on a Saturday night you drove at speeds up to 104km/ph. You cynically slowed for a Police check point, but drove towards pedestrians crossing the road at close to 90km/ph. You did that twice. You ran two if not three red lights. Your driving is some of the worst imaginable.

(d)You ignored repeated warnings and pleas from your girlfriend—who could have been a sober driver—to slow down or stop.

(e)You caused very serious injury to a second victim.5

(f)And having caused that, caused what you knew must have been life-threatening injury, you drove on, leaving your victims on the road.

(g)Finally, for months before the crash you drove habitually below an acceptable standard. So I am unable to accept that your driving on the night of the offending was spontaneous or one-off. It was part of a pattern of driving in which you were consistently indifferent to the law and the safety of others.

[32]   These aggravating factors 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 that taken by other judges.6

5      On its own, a discrete sentence for the charge of reckless driving causing injury of 20 to 24 months’ imprisonment would be warranted. See cases cited by the Crown: Hazel v New Zealand Police[2020] NZHC 609; Kerr v Police HC Invercargill CRI-2011-425-000037, 25 October 2011.

6      R v Presland  [2015] NZHC 1203, R v Hyde [2013] NZHC 2586, R v Guest [2013] NZHC 2432,

R v Pora [2015] NZHC 1104, R v Thomas [2018] NZHC 819, R v Boyce [2023] NZHC 3508.

[33]   The Crown and your counsel referred me to a number of authorities which indicate that the starting point for this type of offending typically ranges between six and nine years’ imprisonment.7 The Crown submits a global starting point for the offending should be in the order of eight years’ imprisonment. Ms Scott on your behalf suggests six-and-a-half years.

[34]   Having considered the authorities, a starting point as low as six-and-a-half years would fail to adequately reflect the gravity of your offending. The cases cited in support are in my view less serious than your own.8 Apart from flight from Police, there is little to distinguish your driving from those more serious cases where starting points in excess of eight years have been adopted.9

[35]Overall, I adopt a starting point on all charges of eight years’ imprisonment.

Personal aggravating and mitigating factors

[36]   I turn then to consider personal aggravating and mitigating factors. Your previous convictions are few and are not relevant and the Crown accepts that no uplift to reflect aggravating factors personal to you is warranted. I agree.

7      Counsel raised the following cases and the starting points adopted in them: Gacitua v R [2013] NZCA 234; R v Cooksley [2003] 3 All ER 40 (Crim App); R v Thomas [2018] NZHC 819; R v Lochhead and Anor HC CHCH T16-18/02 8 March 2002; R v Mika [2013] NZHC 2357; R v Green [2016] NZHC 513; Millar v R [2019] NZCA 570; R v Ormsby [2013] NZHC 1873; R v Faaotaoto Faaotaota HC AK CRI 2009-092-4744 [17 December 2010]; R v Solo HC New Plymouth CRI-2004-043-3158, 3 December 2004; R v Holdem [2018] NZHC 1739; R v Vanstone HC HAM CI 2010-068-000603 [19 April 2011]; Millar v R [2019] NZCA 570. See also R v Makaore [2020] NZHC 2289 (seven years’ imprisonment); R v Strickland [2020] NZHC 2314 (10 years); R v McGrath   [2014]   NZHC   1583   (seven   years);   R   v   James   HC   Palmerston   North    CRI 2010-031-001812 (seven years); R v Price [2020] NZHC 2995 (six years); Zhao v Police HC Hamilton AP 32-03 6 June 2003 at [32]; Brook v R [2010] NZCA 13 (seven years); R v Kane [2019] NZHC 2622 (seven and a half years); R v Guest [2013] NZHC 2432 (eight years and nine months).

8      The cases cited by counsel for the defendant involved fewer or less serious aggravating factors such as a lower level of alcohol impairment and involved more ‘one-off’ losses of control or poor driving such as accelerating through a give way sign or mounting the median strip, as opposed to the sustained period of bad driving present in the current offending. See R v Ormsby, above n 7; R v Faaotaoto Faaotaota above n 7; R v Solo above n 7; and R v Holdem above n 7.

9      The cases of R v Thomas, above n 7; R v Lochhead, above n 7; and R v Mika, above n 7, all involved serious aggravating factors similar to the offending in this case, namely similarly excessive speed, prolonged and persistent course of very bad driving, disregarding warnings from passengers, and consumption of drugs/alcohol. In each of these cases a starting point of eight years’ imprisonment was adopted.

Guilty plea

[37]   Ms Scott submits that a full reduction for your guilty plea of 25 per cent is appropriate on the basis that you entered your plea at the first reasonable opportunity.

[38]   The Crown also accepts that you are entitled to a full credit for your plea despite the eight-month delay. It is said the delay arose because both the Crown and defence obtained expert reports and there were discussions regarding the charges and the summary of facts.

[39]   While you are certainly entitled to a significant discount for your plea, I do not consider a full discount for an early plea is justified. You knew that you drank to excess, drove from Johnsonville at terrifying speed, ran red lights and struck two young women before driving off. Your passenger had pleaded with you to stop before the accident. You were not injured and when you were first spoken to by Police on the evening in question, you immediately asked if you had killed someone. The Crown expert report was  available  in  October  2023. Your  pleas  were  not  entered  until 1 March 2024. Given the strength of the evidence against you, the delay in the entry of your plea does not sound in a full reduction.

[40]In the circumstances, a reduction of 20 per cent is appropriate.

Youth and rehabilitative prospects

[41]   On your behalf Ms Scott also submits that reductions for your relative youth and your rehabilitative prospects are warranted. I agree. The Court of Appeal in Churchward v R reviewed scientific literature which confirms that the immaturity of the young adult brain increases the risk of impulsive behaviour.10 It would also be misguided to equate the failings of a young person with those of an adult, because there is greater scope for change in a young person’s poor judgment. There is also a much greater impact of imprisonment on young people. The consequences of imprisonment can have life-long effects which are less likely for mature adults. So the magnifying effect of imprisonment on young people can be disproportionate.

10     Churchward v R [2011] NZCA 531, (2011) 25 CRNZ 446.

[42]   Combined with this, I also accept that you have engaged very positively in rehabilitative steps, and indeed there is every hope that you will continue in the positive work that you have started.

[43]   I consider that a discount of 15 per cent to reflect youth and rehabilitative prospects is appropriate, notwithstanding the gravity of your offending.

Remorse

[44]   Your counsel also submits that a discount of 10-15 per cent is warranted for “exceptional remorse”.

[45]   The Supreme Court in Hessell v R observed that sentencing judges are aware that remorse may well be no more than self-pity of a defendant for his or her predicament and will properly be sceptical about unsubstantiated claims.11 A proper and robust evaluation of all the circumstances is required.

[46]   In your case Mr Tuitama I accept that you are remorseful. I accept that you are sorry for what you have done. I am not satisfied that there is evidence of exceptional remorse.

[47]Given this, a five per cent reduction, at most, is warranted.

Mental health, media attention and emotional harm reparation

[48]   Ms Scott also advances a number of other mitigating factors on your behalf. These include an offer to  make emotional harm payment,  your poor mental health,  s 27 Sentencing Act factors, and the impact of media reporting on you and your family.

[49]   Turning first to your mental health, I am unable to accept that psychological factors led in any material way to your decision to drive and the death of an innocent person. There is no evidence that you had been diagnosed with or sought treatment for depression prior to the accident. There is no evidence that you are currently being treated for it either. The only evidence available is the self-reported change in your

11     Hessell v R [2010] NZSC 15 at [64].

behaviour that you and your family members attribute to your former partner’s behaviour.

[50]   Most people Mr Tuitama during their lives will encounter difficulties with relationships. Many will suffer from depression. They do not behave the way that you did. On the material before me, it is not safe to conclude that you were suffering from untreated depression on the night of the offending or, even if you were, that it could be taken into account as a mitigating factor. Your driving was not a momentary lapse of judgment, but a sustained and highly dangerous course of conduct after a night drinking at the rugby club. You braked when you saw a Police checkpoint, but you did not slow down when vulnerable pedestrians were crossing the road. The inference I must draw is that you were only concerned that night about your own situation, all the while taking extraordinary risks with the lives of others.

[51]   Nor am I satisfied there is a proper basis to provide additional reductions for media attention, or the impact of that and related matters on your family.

[52]   However, the making of emotional harm reparation is something that Parliament in the Sentencing Act 2002 has acknowledged as a mitigating factor that must be taken into account.12 In addition, you have worked hard doing community work for many community organisations such as hospices. You have received glowing reports from those institutions for your work and for your attitude. Overall, a further 5 per cent discount is needed to acknowledge these personal mitigating factors.

[53]That brings the total reductions for mitigating factors to 45 per cent.

Sentence

[54]Please stand now Mr Tuitama.

[55]   On the charge of manslaughter of Cassidhe Maguire, you are sentenced to four years and four months’ imprisonment.

12     Section 9(2)(f).

[56]   On the charge of reckless driving causing injury, you are sentenced to two years’ imprisonment.

[57]   On the charge of failing to stop to ascertain injury,  you are sentenced to     12 months’ imprisonment.

[58]   On the charge of driving with excess breath alcohol, you are sentenced to four weeks’ imprisonment.

[59]These sentences are all concurrent.

[60]I make an order for the immediate payment of emotional harm reparation of

$15,000.

[61]   In addition to the mandatory minimum period of disqualification for driving with excess breath alcohol, you are disqualified from driving for a period of four years, commencing on your release. Those periods of disqualification are to run concurrently.

[62]   Given the lengthy term of imprisonment I have imposed, I make no order for reparation. I don’t consider a long term of imprisonment and a reparation sentence are compatible.

[63]Thank you Mr Tuitama you may stand down.

Isac J