R v Tulafano HC Auckland CRI-2010-004-16876

[2011] NZHC 33

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2010-004-16876

THE QUEEN

v

AARON TULAFANO

Appearances: P Dean for the Crown

M Dyhrberg and O Hintze for the prisoner

Judgment:      8 February 2011

SENTENCING NOTES OF PRIESTLEY J

Counsel:

P Dean, Meredith Connell & Co, DX CP24063, Auckland 1140. Fax: [phone]
Email: [email protected]
M Dyhrberg, P O Box 47867, Ponsonby, Auckland 1144. Fax: [phone]

Email: [email protected]

R V TULAFANO HC AK CRI-2010-004-16876 [8 February 2011]

[1]      Mr Tulafano, as you know, you are being sentenced today on a large number of  serious  charges.    You  face  two  convictions  for  manslaughter,  to  which  you pleaded guilty.  Manslaughter carries a maximum penalty of life imprisonment.  You face two further counts of dangerous driving causing injury.   That crime carries a maximum of five years imprisonment.  Because after the accident, with which I am dealing, you got out of the vehicle and ran away, you are facing a further count of failing to ascertain injury after an accident.   That carries also a maximum term of five years imprisonment.  You were driving whilst disqualified, this being the third occasion on which you were in that position.   That carries a maximum penalty of two years imprisonment and, in the circumstances of your situation, I have a very broad discretion so far as disqualification periods are concerned.    Any disqualification I impose must be for a minimum of one year.

[2]      Finally, as you have heard from the exchange I have just had with counsel, you are facing a charge under s 52 of the Land Transport Act 1988, of failing to stop for blue and red flashing lights.

[3]      I will say more about the details of your offending in a minute.  But what you were doing that night, Mr Tulafano, was reckless and stupid.   As a result of your stupidity which I regard as being deliberate, two young people have lost their lives and the void which that has left in their families is huge, as is apparent from the victim impact report.

[4]      I notice that in a sentence I imposed in Hamilton over six years ago involving motor manslaughter,[1]  I commented that the use of a motor vehicle involves two important factors.  Those factors are often overlooked by drivers, particularly young men in their teens and twenties.  The first factor is that a motor vehicle is potentially a lethal weapon.  It can kill or maim, as it did that night.  The second factor is that driving a motor vehicle is not some form of God-given right or citizen’s right.  It is a

privilege.  It is a privilege which the law permits only to licensed drivers who are

using roadworthy vehicles and adhering to the relevant traffic laws.

[1] R v Tairi HC HAM T 033323, 20 April 2004.

[5]      Obviously,  and  courts  are  aware  of  this,  minor  or  momentary lapses  of attention or carelessness can have serious consequences.  But courts will have little sympathy with recklessness, dangerous driving and gross stupidity.  And what makes it all the worse for you is that you should not have been driving at all because there were Court orders in place prohibiting you from driving.  You knew that, which is why you tried to run away and this is something you had already done before.  Had you obeyed those disqualification orders which were imposed upon you, you would not be sitting there in the dock today facing a lengthy term of imprisonment.  Nor would these two young people be dead and one of your passengers having to labour under serious injuries.

[6]      Having  said  that,  I  am  obliged  to  make  some  brief  reference  to  your offending.   That night you were in control of a motor vehicle owned by another person, in which were sitting, besides yourself, four passengers.  That vehicle had been seen somewhere in the vicinity of Queenstown Road and the over-bridge on the motorway.   Legitimately, police needed to make inquiries about a vehicle in that area.   Whether or not occupants of your vehicle had been using a laser light to distract, in a dangerous way, drivers on the motorway below, I do not know.  I put that entirely to one side for sentencing purposes.  But, nonetheless, a police patrol car arrived in the area promptly.

[7]      One version of events is that you and your friends were parked up and were consuming cannabis.  As soon as the police vehicle arrived you - doubtless because you knew that you were disqualified and should not have been driving, at approximately 8.45 on a Friday night, 17 November – decided to drive off at high speed.

[8]      The route you followed involved suburban streets running roughly parallel with the motorway in Onehunga.  The summary of facts, which you heard Mr Dean read out today, evidences appalling driving on your part.  You were being followed by a police vehicle flashing its lights.  The weather that night was not good.  I am told the road surfaces were wet.

[9]      You sped along Queenstown Road, round a roundabout and then followed Beachcroft Avenue in the general direction of Onehunga.   The speed limit in that area is 50 kp/h.   You were clocked at driving somewhere in excess of 80.   You continued at speed into Church Street, Onehunga, with the police vehicle behind you.   In Church Street, which is also controlled by a 50 kp/h limit, you reached speeds in excess of 100 kp/h.  Before 9 o’clock on a Friday night on a wet road in a

50 kp/h area, those speeds are insane.

[10]     At the intersection of Hill Street and Church Street which, so far as you were concerned was controlled by a give way sign, you sped through the give way sign, ignoring  it,  showing  no  signs  of  slowing  down.     You  then  approached  the intersection of Selwyn Street and Church Street.  That is an intersection controlled by traffic lights.   You deliberately and at speed went through that intersection, in breach of the traffic light.

[11]     These roads along which you were driving are roads which are crossed by roads which take considerable traffic to and from Auckland International Airport, quite apart from people who are resident in the Onehunga area.  Your driving, quite apart from its irresponsibility, constituted a huge hazard to other innocent members of the public.

[12]     Having breached the Selwyn Street red light, you then went up a small rise approaching Onehunga Mall and there awaited the nemesis for you and your passengers.  The intersection of Church Street and Onehunga Mall has a roundabout. One of your passengers alerted you to that roundabout.  You hit it and carried across to the other side of Church Street, you lost control of the vehicle.  The car flipped onto its roof and slid towards the intersection of Church Street and Waller Street, out of control, colliding with a power pole.

[13]     As  a result  of the collision,  you  were thrown  out  of the car.   The two passengers who were sitting in the rear seat – both of them being friends or acquaintances of you, being Joseph Tawhai and Jaycherree Makakea, both of whom at the time were aged 20 – were killed.  Another of your passengers – Skye Ngatai in the back seat – had serious spinal injuries inflicted on her.

[14]     You, being thrown  from  the vehicle,  decamped  from  the scene  on  foot, travelling a considerable distance across country to your family in South Auckland. Later that night, doubtless when the full seriousness of what had occurred was rammed home to you, you surrendered to the police, I think at the Manukau Police Station.

Victim impact statements

[15]     I now turn to the victim impact statements which I have read and which make tragic reading.  Skye Ngatai was a friend of yours.  She reports to the atmosphere inside the car that night.  All passengers were scared.  You were told to stop or slow down.  You ignored that advice.  Ms Ngatai, who suffered damage to her back and spine is in a very painful situation, was in hospital for at least six weeks.  She needs ongoing surgery.  Her movement is limited.  Her life has been changed.  Her family have had to undergo significant financial cost.

[16]     The owner of the car, Simone Pouka, has lost the use of her motor vehicle. Approximately  $4,000  was  involved.    It  is  not  practical  for  me  to  make  any reparation sentence so far as you are concerned.  I note, however, that both you and your family accept some form of moral obligation and will do your best to reimburse Ms Pouka when the opportunity arises.

[17]     I have read the victim impact reports from the family and whanau of the two people who were killed that night.  They make tragic reading.  There is a void left in both families and all the worse, so far as you are concerned, is that these are people you knew.  I have not, and deliberately so, read out the details of the victim impact statements but I do assure family members involved that I have read them with some care and I am obliged by the law to reflect in my sentencing the plight which the deaths of those two young people have brought to you.  And I thank you for what must have been a difficult job in putting together those victim impact statements for me.

Personal circumstances

[18]     I turn now, Mr Tulafono, to your personal circumstances.  You are 21 at the moment.  You were 20 at the time of the offending.  At the time of the accident you were meant to be looking after and caring for your grandmother who lived in Mangere.   You are an only child.   You come from a supportive family.   Until approximately three weeks before your offending, you had a job, which you had held down for two years, as a steel fabricator.

[19]     You admit to having a passion for cars.   You admitted to the probation officer  that  you  had  been  both  drinking  and  smoking  cannabis  prior  to  your offending.  Those are two aggravating features.

[20]     You told the authorities that you freaked out and panicked when you saw the police car coming, knowing that you were a disqualified driver.  To some extent, you have attempted to place some of the blame for your decision to flee on Joseph Tawhai, now dead, because he was, so you say, the owner of cannabis which was being consumed in the car that night.  I have no view on that.

[21]     Certainly, you have expressed remorse.  I have read the letter to which your counsel have referred me.  I note that you and your family have made efforts to assist financially your victims’ families with contributions or koha towards the funeral expenses involved.  What makes it all the worse for you is that these were people who were known to you.

Pre-sentence report

[22]     The pre-sentence report assesses your risk of reoffending as low.  It notes the very truthful statement you made that you are going to have to live with the consequences of your offending for the rest of your life.  You did make an offer to attend a restorative justice conference which, for various reasons, did not take place. But I accept that you were prepared to participate and to be confronted by the families of our victims.  For that I give you some credit.

[23]    The pre-sentence report obviously identifies drugs and alcohol as being contributing factors to your offending.  Imprisonment is recommended.

Previous convictions

[24]     Unfortunately  for  you,  you  have  previous  convictions.    You  have  one conviction  imposed  in  May  2009  for  wilful  damage,  dealt  with  by  way  of  a reparation sentence.  You were disqualified in 2007 for a period of three months for driving with excess breath alcohol.  In April 2010 you were disqualified for a further six months for driving whilst disqualified.   Then, quite blatantly, you reoffended again.   A further conviction was imposed for driving whilst disqualified in July

2010, only two months before the tragic accident that night.

Aggravating and mitigating features

[25]     Counsel have correctly identified various aggravating features and mitigating factors as far as your offending is concerned.  I am dealing here with a homicide and loss of life.  You were subject to disqualification orders at the time.  There is a high degree of recklessness and danger in the driving on which you embarked that night. And you face, of course, a number of charges.

[26]     I do, however, intend to give you credit for mitigating factors.  Your counsel has competently identified these.  She is correct when she submits that you did enter guilty pleas at the earliest possibility opportunity.  The only area of doubt, so far as you were concerned on the charges you faced, was whether the police were going to bring manslaughter charges or lesser charges of dangerous driving causing death. Manslaughter charges are clearly appropriate in this particular situation.  You are, in

terms of the recent Supreme Court judgment of R v Hessell,[2]  entitled to significant

[2] R v Hessell [2010] NZSC 135

credit for your guilty pleas.   You have also displayed what I accept is genuine remorse.  You have, together with your family, tried to make amends of a financial nature and expressed a willingness to attend a restorative justice conference.  And,

finally, in sentencing a young man like you, I must give some credit for your age and craft a sentence which is not going to crush you and ruin the chances you have of rehabilitation and leading a useful life on your release.

Sentencing principles

[27]     Counsel have also identified for me the relevant purposes and principles stipulated by s 7 and 8 of the Sentencing Act 2002.  I must hold you accountable for the  harm  which  you  inflicted  on  your  victims.    I  must  denounce  and  deter. Particularly I must impose a sentence which deters other young drivers who might be minded to try to flee from the police when being told to stop.

[28]     Although,  as  Allan J  remarked  in  one of the  authorities  cited  to  me  by counsel,[3]  offending of this type has reached epidemic proportions.   I, for my part, consider that fleeing the police by drivers is something which has reached epidemic proportions.   In  your case, the consequences  were catastrophic.   Some form of denunciation and deterrence of conduct of that sort is justified.

[3] R v Faaotaoto Faaotaota HC AK CRI-2009-092-4744, 17 December 2010 Allan J at [21].

[29]     Other principles and purposes are self-evident.  I must impose a sentence on you which is consistent with other sentences imposed for motor manslaughter cases. I  must  strive,  however,  given  your  age  and  certain  positive  characteristics  you exhibit, not to impose a sentence on you which is too excessive or crushing.

Counsel submissions

[30]     Counsel’s submissions have been helpful.  The Crown submits that I should deploy a start point of between 9 and 10 years imprisonment.  With reference to the recent judgment of Panckhurst J, R v Bannan,[4]  Mr Dean submits that I should start close to the top of that band at 10 years.   The Crown also, while accepting the various mitigating factors which I have mentioned, considers that I should impose a minimum term of imprisonment on you under s 86 of the Sentencing Act.

[4] R v Bannan HC CHCH CRI-2010-009-014017.

[31]     Ms Dyhrberg, who has done an excellent job for you, asserts that my start point should be between 8 and 8½ years.   Her written submissions attribute your offending to a very bad decision you made on that night.  I accept that submission but it was not only a bad decision, it was a decision that was maintained for an extensive period of time.

[32]     Ms Dyhrberg has submitted I should give you credit for the mitigating factors to which I have referred.   At the end of the day, Ms Dyhrberg submits that an appropriate end sentence should be 6 to 6½ years.  Ms Dyhrberg submits I should not impose a minimum term under s 86 because, so far as the category of motor manslaughter cases are concerned, there is nothing out of the ordinary about this particular case.   Ms Dyhrberg accepts, however, that in a number of motor manslaughter cases minimum terms have been imposed.

Sentence

[33]     So I now turn to the difficult task of imposing sentences on you.   I have considered all the cases referred to me by counsel.  I do not intend to list all those cases in my sentencing notes.  The starting point for any examination of the law in this area must be the now somewhat ancient  Court of Appeal authority of  R v Skerrett.[5]   As has been observed by both the Court of Appeal and other Courts since then,   the   sentences   imposed   for   motor   manslaughter   cases   has   increased considerably in the intervening years.  What is useful in Skerrett, however, is it lists a number of aggravating factors involving bad driving.  Some of the ones relevant in

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

your case are consumption of alcohol and drugs, high speed, disregard by you for warning pleas from your passengers, persistent driving in the way that you did, your previous convictions, the fact that two deaths were involved in this particular case.

[34]     I have given close consideration to Mr Dean’s submission relating to R v Bannan.  I accept that there are distinguishing factors in that case, particularly so far as Mr Bannan’s driving record was concerned.  I do not consider that Ms Dyhrberg

or Mr Dean are out of line with their submissions.   It is quite clear that the band

between them of 8 years, up to 10 years, is amply justified by the various sentencing authorities to which they have referred me.

[35]     I am going to ask you to stand up at this point please.

[36]     Mr Tulafono, dealing with all the charges which you appear for sentence on, I must fix a start point which is consistent with the totality of your offending and your overall culpability.  I have already set out a description of your offending, but your dangerous driving, your flight from the scene and, in particular, your driving whilst disqualified, are all features which attach to your overall culpability for the two manslaughter counts.

[37]     In my judgment, an appropriate start point which reflects that totality is one of 9 years imprisonment.   I consider that the fact that your driving was when you were disqualified justifies an uplift of one year.   So that brings me to an adjusted start point of ten years imprisonment.

[38]     Given the strength of the Crown case, your early guilty plea, in my judgment justifies a reduction of 20 per cent.  I intend to add to that a further 15 per cent to reflect your remorse, your offer of amends and your youth.   So the total term of imprisonment  which  I  intend  to  impose  on  you  will  be  one  of  6½  years imprisonment.

[39]     Using the two manslaughter charges as the lead sentences, on both those charges I sentence you to 6½ years imprisonment.

[40]     On the two charges of dangerous driving causing injury, I sentence you to three years imprisonment on each.

[41]     On the charge of failing to ascertain injury, effectively decamping from the scene – this was serious – I consider a term of 2½ years imprisonment is justified.

[42]     On the charge of driving whilst disqualified for the third time, I intend to

impose a term of one year’s imprisonment, coupled with a disqualification period of

5½ years which will run from today.

[43]     Given that you have no money, on the charge under s 52 for the failing to stop for blue and red flashing lights, you are convicted and discharge.

[44]     All those terms of imprisonment which I have imposed on you are to be served concurrently.

Section 86 minimum term of imprisonment

[45]     I now turn to the issue of a s 86 minimum term of imprisonment.   On the basis of a 6½ year term you would, under the Parole Act, be eligible for parole once you have served two years and two months.  Having regard to the statutory criteria in s 86 of holding you accountable for the harm done to your two victims who are dead and, additionally, to the victim on whom you inflicted serious spinal injuries, having regard also for the need to denounce an deter and, particular to deter offending by young  men  such  as  you  who  decide  they  want  to  avoid  the  police  instead  of stopping,   I  consider  that  the  grounds  for  imposing  a  minimum  period  of imprisonment under s 86 are made out and should be imposed by me.

[46]     Looking at it as leniently as I can, I impose a minimum term of imprisonment under 86 of three years imprisonment.  So, in total or in summary, Mr Tulafono, you are sentenced to 6½ years imprisonment.  You will not be eligible for parole until you have served three years of that.  Whether the Parole Board decides to release you

after three years is entirely a matter for them.  I suspect you will be.

[47]     Thank you.  Take him down.

.......................................…

Priestley J