R v Tumahai HC Hamilton CRI 2011-019-1692

[2011] NZHC 1973

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI 2011-019-1692

THE QUEEN

v

HIRO LEONARD TUMAHAI

Hearing:         8 December 2011

Appearances: T V Clark for Crown

R Barnsdale for accused

Judgment:      8 December 2011

SENTENCING REMARKS OF ALLAN J

Solicitors:

Crown Solicitor Hamilton
R Barnsdale, Hamilton

R V TUMAHAI HC HAM CRI 2011-019-1692 8 December 2011

[1]     Mr Tumahai, you appear for sentence this morning on one charge of manslaughter, for which the maximum penalty is life imprisonment, and one charge of driving with excess blood alcohol, for which the maximum penalty is two years imprisonment, together with disqualification for a period exceeding one year.

Background

[2]      On the afternoon of 5 December 2010, there was a family meeting at your home.  During the afternoon you began drinking and became intoxicated.  You then drove to your sister’s address with three passengers in the car.  Your drinking continued.

[3]      Later in the evening, an argument developed with your sister about your alcohol consumption, and you decided to leave.  You attempted to drive your vehicle away from your sister’s property;   in doing so you collided with a fence.   Your brother decided to accompany you to ensure you reached home safely.  He was in the front passenger seat. Your teenage son, Tetua, was in the rear passenger seat.

[4]      Your passengers expected you to drive home.   But instead you drove in a different direction and ultimately reached Roto-o-Rangi Road, which leads out of Leamington into the countryside.   You then accelerated rapidly.   Despite Peter’s repeated urgings to slow down, you continued to accelerate and eventually reached a dangerous speed.

[5]      Soon afterwards, you lost control of the vehicle, crossing the centre line, travelling down a grassed verge, and then colliding at high speed with a concrete power pole.  The vehicle continued along the grassed verge before re-entering the roadway, where it rotated and then flipped, crossing two lanes and coming to rest on its side against a hedge.

[6]      The distance between the point at which the vehicle first left the road and the point at which it came to rest, was about 223 metres.  Estimates of your speed varied. One witness put your speed at 130-140 kph, another at between 160-180 kph.  The

precise speed does not matter, it is plain that you were exceeding the speed limit by a very wide margin.

[7]      Peter was partially ejected from the vehicle.  He became trapped underneath. He suffered head and internal injuries and died at the scene.  You and Tetua were each able to leave the car on your own.   Tetua had minor head lacerations.   You yourself were unhurt.

[8]      Having failed a breath screening test at the scene, you provided a blood sample which disclosed a reading of 153 mcg of alcohol per 100 mll of blood.

Victim impact statements

[9]      The court has been provided with statements from your father, Francis, your two sisters, Moeva and Poenui, and your uncle Daniel.   Daniel lives in Auckland. He is 82 years old, a Justice of the Peace, a recipient of the Queen’s Service Order medal, and a senior kaumatua of Ngati Whatua.  He says that the family as a whole is in shock as a result of what happened.  As everyone has said of you, he believes you are essentially a good man, who has been through a great deal of anguish and ill fortune in recent times.   But he refers, as others do, to your on-going and serious drinking problem.

[10]     Your father says that yours is a close family who have rallied around you in support, at a time when you are in need.   He refers in particular to your recent personal misfortunes which may provide something of a backdrop to this offending. I will come to that detail shortly.

[11]     I want to mention especially at this time your father’s moving explanation to the court of your family’s grief and anguish over what has occurred.  It always takes a great deal of courage to come into a place like this with which you are unfamiliar, and try to explain the nature of the tragedy and how it has affected everyone.  I am very grateful to him for coming up and sharing his thoughts with me and everyone in this court.

[12]     Moeva says that her life has been badly affected by these sad events.  Along with other family tragedies, Peter’s death has come back and hit her again and again. Her husband is unwell and she has found it difficult to deal with the terrible shock of losing Peter.

[13]     Poenui has perhaps had more to cope with than anyone.   She reached the scene not long after the accident, saw debris scattered along the road, Peter’s body covered with a blanket, and you sobbing on your knees.  She identified Peter’s body at the hospital.  She is so badly affected that she could not stay in the Cambridge area and has returned to Auckland.   She says that her grieving process is really only starting.

[14]     Like the others, she remains at your side, but she says you need help, both for your drinking problem and for your angry outbursts.

Pre-sentence report

[15]     You are 48 years old, generally in good health but suffering from depression. In October 2010, your wife was diagnosed with cancer.   You nursed her for nine months before she passed away in June 2011.  During this time, you were also caring for your mother-in-law, who suffered from dementia.   More recently, it has been necessary for you to assume day to day care of your five year old grandchild.

[16]     The discharge of these family obligations is to your credit.  Life became more difficult no doubt, when you were made redundant from your work as a roading contractor about 18 months ago.  Since then you have been in receipt of a sickness benefit.

[17]     You agree that, having consumed a great deal of alcohol on 5 December, you got into an argument with your sister about your alcohol consumption and left her house, considering you were in a fit state to drive.   But you were not fit to drive. You accept that you deliberately put your foot down, saying that a “demon” then took over.

[18]     The writer of the pre-sentence report says that you have displayed genuine and on-going remorse for your brother’s death.  I am sure that is right.  Everything suggests that you and your brother were close.  I am sure you would turn the clock back if you could.

[19]     You concede that you have been drinking to excess over the last five years or so.  Information before the court suggests that you abstained from alcohol for several months after Peter’s death.  I infer that your drinking has resumed, at least to some extent.

[20]     It is gratifying to note that you have been attending regular counselling for alcohol related issues since the accident.  That suggests a degree of contrition and a determination to modify your drinking habits.  But I am sure there is more work to be done in that regard.

[21]     You have three previous convictions for driving with excess breath alcohol. The last of them was 13 years ago in 1998.  There are other minor offences which I put aside for present purposes.

Sentencing principles

[22]     I am obliged to take into account a number of the matters set out in ss 7, 8 and 9 of the Sentencing Act 2002.  Regrettably, cases like this are all too common. Innocent people lose their lives in an instant, because some people are prepared to drive when badly affected by liquor, and so are a danger to everyone else on the road.

[23]     Such people must be held accountable for the harm they have done, not only to their victims but also to the community.  The sentence ultimately imposed needs to denounce such conduct and to provide a deterrent to the offender and to others from similar offending.

[24]     I must take into account the seriousness of the offence to which you have pleaded guilty, but at the same time, the courts are required to impose the least

restrictive outcome that is appropriate in the circumstances.  In that respect, I take into account not only the central role you have played in the lives of others, but also the support of those around you.   I expressly note the sentiments expressed in the supporting letters which have been provided to the court by your counsel.

Discussion

[25]     Sentencing in these cases is difficult.  Every case is different.  But the court routinely takes into account a number of factors, first outlined in R v Skerrett.[1]

Several of the Skerrett aggravating factors are present in this case.

[1] R v Skerrett CA236/86, 9 December 1986.

[26]     First, there is no doubt you were grossly intoxicated at the time.  Your son Tetua described you as drunk, and blood alcohol samples taken from you more than two hours after the crash, revealed that the alcohol concentration in your blood was still twice the legal limit, even at that late stage.  You considered yourself to be in a fit condition to drive, but of course your judgment was badly affected by liquor. You ought to have realised that you were well over the legal limit.  That became plain, at the latest, when you drove your car into the fence at your sister’s house.  At that point, even if not before, it must have been obvious to you that your ability to drive safely was seriously compromised.

[27]     Mr Barnsdale has submitted to me that by reason of the liquor and your considerable anger, you may not have been aware of the collision with the fence.  As to that, I want to say two things.  There is material from Poenui which suggests you were aware of it, and apologised to her for it.  But even if that is not so, the fact that you were not aware of what must have been quite a considerable collision, having regard to the fact that Poenui heard the bang from inside the house, indicates how badly affected by liquor you must have been at the time.

[28]     Further, and importantly in my view, you ignored repeated and increasingly loud pleas from Peter to slow down.  It was Tetua who later said that you ignored

what Peter was saying and instead accelerated further.  That is consistent with your

own concession that you simply put your foot down and allowed a “demon” to take

over.

[29]     Where, as in this case, death results from loss of control by a driver who is under the influence of drink or drugs, a substantial term of imprisonment is the ordinary outcome.[2]

[2] R v Grey [1992] 8 CRNZ 523.

[30]     Mr Tumahai, the court is required to select an appropriate starting point and then to adjust it to take into account both aggravating and mitigating factors.   In assessing an appropriate starting point, it is necessary to consider decisions in previous comparable cases.   Regrettably, the number of such cases is very large. Death   arising   from   irresponsible   driving   bad   enough   to   be   classified   as manslaughter, is all too common.

[31]     In these sentencing notes, I will list the cases which I have considered..[3]   I

will mention very briefly just three cases.

[3] R v Elliott HC Hamilton CRI 2011-219-182, 17 November 2011; R v Wagener HC Invercargill CRI-

[32]     In Elliott, the prisoner, aged 16 at the time of the offence, had been drinking throughout the night.  He took a friend’s car and with the victim as a passenger drove off at high speed. Approaching an intersection he overtook a vehicle travelling in the same direction, but lost control, striking a telegraph pole and then a tree.  The victim, aged 17, and not wearing a seatbelt, was ejected from the car, dying from the injuries he received.  The accused suffered only minor physical injuries.  He was five times over the legal alcohol limit for a person of that age.  A starting point of six years imprisonment was adopted.

[33]     In Wagener the prisoner was aged 18 years at the time of the offence.  He had been drinking with friends at a rural property.  Earlier he had arranged a sober driver, but later in the night he refused to give up the wheel, and despite repeated requests

for him to pull over, continued to accelerate, reaching a speed of 80 kph.  Having

passed another vehicle, he lost control of the car, which collided with a concrete power pole on the passenger side.  A passenger died from the impact of the crash. The prisoner’s blood alcohol level was 147 mcg of alcohol per 100 mll of blood.  His speed at impact was estimated at between 85-100 kph in a 50 kph zone.  Again a starting point of six years imprisonment was adopted.

[34]     In Prescott, the driver aged 19 years was driving his friends home at night, achieving speeds in excess of 150 kph in a 50 kph zone. Although he was repeatedly told to slow down, he failed to do so, ultimately losing control of the car and crashing into a power pole, and then a concrete retaining wall.  One passenger died, the other suffered serious injuries.  The driver was almost four times over the legal blood alcohol limit for his age, and was driving in breach of a restricted licence. A starting point of seven years imprisonment was adopted.

[35]     Those cases are similar to this, in the sense that each prisoner had been drinking for a lengthy period at a social function, the accident occurring after the prisoner drove in an intoxicated condition with other passengers in the car, at excessive speed  and  proving ultimately to be  substantially over the legal blood alcohol limit.

[36]     In Wagener and Prescott, as in this case, the prisoner had continued to drive dangerously at speed, despite repeated pleas that he slow down or stop.

[37]     Taking into account those earlier cases, and the aggravating factors to which I have referred, I consider the appropriate starting point here to be six years imprisonment.  But I accept the Crown’s submission that it is necessary to impose an uplift in order to recognise that you have had three previous convictions for driving with excess breath or blood alcohol.  I do not however, accept that an uplift of the order sought by the Crown is appropriate.  Your previous convictions are now over a decade old.  It is sufficient to impose an additional three months, so taking the term of imprisonment to six years three months.

[38]     From that it is necessary to allow a discount for mitigating factors.

[39]     Everything I have seen and heard satisfies me that it would be proper to allow a significant discount for your remorse, and for the efforts that you are likely to make in future years to ensure that offending of this type is never repeated.

[40]     I take into account also the fact that you have lost a loved brother as a result of the terrible decision you made to drive when drunk.  That is something you will have to live with for the rest of your life.  I allow a 20% discount for these combined factors.   That reduces the end sentence from six years three months to five years imprisonment.

[41]     In addition, you are entitled to a discount for your guilty plea. Although there were delays, while Mr Barnsdale, on your behalf, investigated the precise cause of the crash in order to ensure no defence was available, the Crown accepts that in the circumstances of this case, your guilty plea was signified at an early stage.   The Crown does not oppose the allowance of a full 25% discount.  That reduces the end sentence  to  three  years  nine  months  imprisonment,  which  I am  satisfied  is  the appropriate end sentence.  There will need to be a concurrent sentence for driving with excess blood alcohol.

[42]     Before I come to actually impose sentence I want to say something to those who have gathered to support you today.  This is an unhappy occasion, on which I am obliged to act in accordance with established legal principles.   It is simply a further step on a journey which until now has brought nothing but agony and grief to you all.

[43]     I have been greatly impressed by the victim impact reports.  They evidence a dignified  and  supportive  family,  who  are  able  to  see  through  the  immediate offending, and to reach the man they know as a loved son, brother and nephew. Although the grieving process will take a long time, it is to be hoped that today’s proceedings will assist in bringing some measure of closure to you all, including you Mr Tumahai, for whom today marks a step on the path to redemption.

Sentence

[44]     On the charge of manslaughter you are sentenced to three years nine months imprisonment.    On  the  charge  of  driving  with  excess  blood  alcohol,  you  are sentenced to three months imprisonment. Those two sentences will run concurrently, so the effective sentence is three years nine months imprisonment.

[45]     You are disqualified from holding or obtaining a driver’s licence for a period of three years, from and including the date of your release from prison.  Although I have reflected carefully on the Crown request for a reparation order in respect of damage  to  the  property  of  Waipa  Networks  I  have  concluded  that  in  the circumstances of this case, a reparation order would effectively be futile, and I decline to make one.

[46]     Mr  Tumahai,  on  conviction  for  a  serious  violent  offence,  of  which manslaughter is one, I am required to give you a first warning under s 86A of the Sentencing Act 2002.   Mr Barnsdale has indicated he will speak to you after the sentencing process and explain what is involved.

[47]     If  you  are  convicted  of  any  serious  violent  offence  (except  murder) committed after today, you will receive a final warning.   In addition, if the Judge imposes a sentence of imprisonment for that offence (other than life imprisonment for manslaughter, or preventive detention), then you will serve that sentence without parole or early release.  If you are convicted of a murder committed after today, you will be sentenced to imprisonment for life.  You must serve the life sentence without parole, unless it would be manifestly unjust to do so.  If you receive a life sentence without parole, you will not be released from prison.  If serving the sentence without parole would be manifestly unjust, the Judge must specify the minimum term of imprisonment you will serve.

[48]     Mr Tumahai, that is the warning that I am required by law to give you.  But I consider your prospects of rehabilitation to be high.   It is your responsibility to ensure that none of the consequences of the warning ever come to pass.

C J Allan J

2010-025-191, 8 June 2010; R v Prescott HC Auckland CRI-2004-004-19706, 15 July 2005;  R v
Herewini HC Hamilton CRI-2007-019-10174, 14 May 2009;  R v Jagger HC Palmerston North CRI-
2009-054-3889, 2 December 2009; R v Martin HC New Plymouth CRI-2009-043-4845, 29 April

2010; R v James HC Palmerston North CRI-2010-031-1812, 22 February 2011 and  R v Clarke HC Palmerston North, CRI-2010-039-152, 25 March 2011.