R v Vanstone HC Hamilton CRI 2010-068-000603

[2011] NZHC 989

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI 2010-068-000603

THE QUEEN

v

RICKIE VANSTONE

Hearing:         19 April 2011

Counsel:         T Clark for Crown

J Tustin for Prisoner

Judgment:      19 April 2011

SENTENCING NOTES OF ANDREWS J

Solicitors:           Almao Douch, PO Box 19173, Hamilton 3244

Counsel:            K L Tuskin, PO Box 9035, Waikato Mail Centre, Hamilton 3240

R V VANSTONE HC HAM CRI 2010-068-000603 19 April 2011

Charges

[1]      Rickie Vanstone you appear for sentencing today having pleaded guilty in the District Court at Taumarunui on 22 February 2011 to one charge of manslaughter, one charge of reckless driving causing injury, and one charge of driving with excess blood alcohol causing injury.

[2]      The charge of manslaughter carries a maximum sentence that can be imposed of life imprisonment.  The other two charges carry a maximum sentence of 5 years imprisonment.

Relevant facts

[3]      On the afternoon of 9 October 2010 you were in Taumarunui with a number of associates, two of whom were with you in the car later when it crashed.  They were  Cody Cribb (who died upon impact) and Troy Montgomery (who escaped with minor injuries).

[4]      You drank 3 cans of 8 percent bourbon and cola premixes.  Later in the day, the three of you left that address and travelled in a Mitsubishi Galant car to a birthday party at a rural address approximately 23 kilometres from Taumarunui. You were a passenger on this journey.  The car had an expired warrant of fitness date of

23 May 2007.  The front tyres were badly worn in the centre portion. You knew both of these things.

[5]      On arrival at the party, you drank two more cans of the same premix.  You were present during speeches given at the party, in which the host warned all guests present of the dangers of drinking and driving and advised that there was ample bedding for all guests to stay over, with breakfast available for the morning after.

[6]      However, at about 10.00 pm, you returned to the car and got in to drive. Cody Cribb got into the rear seat and Troy Montgomery got into the front passenger seat. You drove the car towards State Highway 43.

[7]      It was completely dark with no street lights on the road.  At the beginning of the journey, you noticed that the brakes were not functioning correctly.  You noticed this before you got onto the highway when you were driving over a bridge and applied the brakes.  They suddenly locked up causing the car to skid.  You had to pump the brake pedal a number of times before the brakes worked.

[8]      Despite all of this, you continued to drive the car.   When you reached the highway, you accelerated and began driving at high speeds.   The highway has a speed  limit  of  100  km/h.    You  drove  around  corners  and  in  doing  so,  drove completely over the centre line.   Troy Montgomery became very concerned about your speed and the way you were driving and asked you to slow down.   He later described you as driving competitively as if you were on a race track.  You replied in an angry manner, telling him to be quiet and just let you drive.

[9]      As  you  came  up  to  a  moderate  right  hand  corner  travelling  north,  you completely crossed the centre line to keep up your speed.  Another vehicle, a Mitsubishi Ute, was travelling south towards the same corner.   The driver of the Mitsubishi saw your lights, slowed down and dimmed his lights.

[10]     You were still completely across the centre line on the wrong side of the road and did not see the Mitsubishi coming towards you.  The two vehicles collided head on even though the Mitsubishi was as far to the left on the road as possible.  The driver of that vehicle could not move any further over to avoid the collision because there was a bank on that side of the road.  He described his efforts as “hugging the bank” on his side of the road.  Your car slid back across to the other side of the road and  came  to  rest  approximately  15  metres  from  the  Mitsubishi.  It  was  badly damaged. You and Cody were trapped inside your vehicle and had to be cut free.

[11]     At the time of collision, you were travelling at between 99 and 108 km/h. The Mitsubishi was driving at between 50 and 54 km/h.

[12]     You suffered a broken right upper leg.  Cody Cribb died at the scene.  Troy Montgomery was moderately injured.   Neither of the occupants of the Mitsubishi was severely injured.  One was distressed and required medical attention for this.

[13]     Your blood sample was analysed to have 83 milligrams of alcohol per 100 millilitres of blood. You were 19 years old and classified as a youth driver.  The legal limit for youth drivers is 30 milligrams of alcohol per 100 millilitres of blood.  I note for comparison sake that the legal limit for adult drivers is 80 milligrams of alcohol per 100 millilitres of blood, so you exceeded the adult level.

[14]     During a video interview later, you told the police you knew you were over the legal limit, that you did not think it was safe to drive the car because of the state of the brakes, that you knew that section of the highway very well and had a habit of cutting corners on it, especially at night as you felt this would alert you to oncoming cars because you would see their headlights.

[15]     You have a significant history of driving offences.   Since obtaining your licence in November 2007, you have been issued 13 traffic infringement notices, including seven for exceeding the speed limit and one for failing to keep left.  You also have a conviction for driving with excess breath alcohol in 2009. At the time of the crash, you were to be served with a licence suspension notice for accumulating

100 or more demerit points. You have had previous suspensions.

Victim impact statements

[16]     There is a victim impact statement from Mr Cribb’s grandmother, Mrs Joyce. She dedicated her life to raising her six children and also raised five of her grandchildren, one of whom was Cody.   Mrs Joyce talked about the shock and sadness that Cody’s death has brought to the family.  She had to identify his body. The funeral was very difficult but seeing all of his friends there brought her some comfort. There is no doubt that Cody Cribb is sorely missed. As you heard me say to Ms Tustin and Ms Clarke when making submissions, I found Mrs Joyce’s victim impact statement to be dignified, to be sincere, and I have great respect for her for having written the victim impact statement as she did.

[17]     Mrs Cribb says that she frequently visits Cody’s grave because she wants to be close to him.  She thinks about him all the time and the funny things that he used to do.   Of course she misses him very much.

[18]     I have also read a victim impact statement from Troy Montgomery.  He says he was very lucky, and he suffered only minor injuries, but now feels uncomfortable when he is a passenger in a motor vehicle.   He hopes you have learned from the mistakes you made that night.  He feels extremely sorry for the family of his mate Cody.

[19]     I have read victim impact statements from the two people in the Mitsubishi. They  did  not  suffer  any  serious  injury,  but  being  in  the  collision  caused  them distress.   The owner of the vehicle suffered financially from having to replace it. They too express how sorry they feel for the family of Cody who died.

Pre-sentence report

[20]     I turn first to consider the pre-sentence report.  You are now 20, you were 19 years old at the time of your offending.  You were raised in Taumarunui and were living there with your mother and your two year old son.  You left school halfway through the sixth form to begin an apprenticeship, and at the time of your offending you had been working for a local plumber.

[21]     The probation officer noted that you presented as being very remorseful for your offending, and found it difficult to talk about it.   Your two passengers were friends, and you described Cody as being your “best mate”.  You were not aware of the tragedy of his death until you were told about it after you had had surgery for you broken leg.

[22]     The probation officer assessed you as being at a low risk of re-offending.  He identified factors contributing to your offending as being alcohol (in respect of which you were assessed as having a harmful pattern of alcohol use), and the fact that people around you agreed to your driving.  The probation officer noted that the host at the party had been responsible in warning guests not to drink and drive, and had offered accommodation, yet you ignored that.

[23]     I want now to refer to the letter you wrote, that has been provided to me by

Ms Tustin.  You record there that the serious car accident resulted in the death of one

of your best friends and that as the driver of the vehicle you take full responsibility for your actions.   You acknowledge that you were responsible for your friend’s death.

[24]     You were having problems in your life, and unfortunately you thought people around you were nagging you about those issues.  You now realise that they were all concerned for you, and trying to help you.  You say that since the accident you have spent time with your family, and you have attended counselling.   You are deeply regretful for your actions, and recognise that this is something that will hang over you for your life. You are concerned for your baby son, and you are trying hard to be someone he can be proud of.

[25]     You refer to the pain that Cody’s family has dealt with. As you say, you wish you could take that away but as you can’t do that, you say you can turn your life around and live a good live both for yourself and for Cody. As you say in your letter, it would be a great dishonour to Cody and his family if you carried on as you did before the accident.

[26]     I have also read letters of support from your baby son’s grandmother and great-grandmother.  They both speak well of you, and record your awareness of the hurt you have caused.  I have also read the letter from the physiotherapist, which sets out  the  treatment  you  have  received,  and  still  require,  and  a  letter  from  your employer, who describes you as a valued employee, with initiative and drive and achieving good results.

The sentencing process

[27]     The first step in sentencing you is to establish what we refer to as the starting point, which is the sentence that would be imposed on  the most serious of the charges, the charge of manslaughter, if you had been convicted after a trial in court. The second step is to take the starting point and decide what the appropriate sentence is for you and for your offending.  I do this by considering whether there is anything about your offending that makes it more or less serious – these are aggravating or mitigating factors, that would lead me to impose a sentence that is greater or less

than the starting point.  I also consider matters that relate to you, personally, because these may also lead me to adjust your final sentence, either up or down.

[28]     In sentencing you I have to take into account the purposes and principles of sentencing.   With respect to the purposes of sentencing, I have to hold you accountable – that means to make you responsible for your offending.   I have to consider deterrence  –  both  of  you  and  of others  –  and  the need  to  protect  the community.  I must also denounce your offending – what this means is tell you that your offending is not acceptable in New Zealand. At the same time, the purpose of sentencing any offender is rehabilitation and re-integration:  that is, to help you to get back into the community and to be a useful member of the community.

[29]     In your case the relevant principles of sentencing are to consider the gravity of your offending, including your culpability, the seriousness of your offending in comparison with other types of offences, and the general desirability of keeping consistency in appropriate sentencing levels.   I must take into account any information provided about the effect of your offending on the victim, and I must impose the least restrictive outcome that is appropriate in the circumstances.

[30]     It is desirable to keep offenders in the community as far as that is practicable with regard to the safety of the community.   However, the Court can  impose a sentence of imprisonment in order to achieve the purposes of sentencing that are relevant to your case.

Starting point

[31]     I come then to the starting point.  As I said earlier, I set the starting point by reference to your conviction on the charge of manslaughter.

[32]     There is some guidance as to the appropriate starting point or consideration of sentencing in two judgments of the Court of Appeal, these are R v Grey,[1] and R v Skerrett.[2]  In the first of these, Mr Grey was driving his vehicle at excessive speed,

he failed to negotiate a bend and collided with two boys riding bicycles. Both boys

were killed. The vehicle also struck a road sign, ripping the pole out of the ground, struck a stationary car and demolished a concrete brick wall until finally coming to rest in the front yard of a house. Mr Grey was charged with two counts of manslaughter.  The  Court  of  Appeal  described  his  offending  as  amounting  to deliberate irresponsibility, fraught with danger to others on or in the vicinity of the road.  Serious consequences to other road users were inevitable.

[1] R v Grey (1992) 8 CRNZ 523 (CA).

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

[33]      A starting point of nine years was adopted, and following a modest reduction for the offender’s guilty plea, he was sentenced to 8 ½ years imprisonment.   The Court of Appeal noted then (in 1992) that the continuing road toll, the repetition of personal  tragedies  and  a  growing  sense  of  public  outrage  had  led  to  a  rapid hardening in the attitude of sentencing Courts to such cases. Imprisonment is now regarded as the norm in cases of death or serious injury where the driver is under the influence of drink or drugs, and a term of some years in length is not unusual.

[34]     In  R  v Skerrett,  the Court  of Appeal  reviewed  cases  involving death  by reckless or dangerous driving and identified aggravating factors that should be taken into account in sentencing. You have heard counsel talking to me about those factors. They are:

(a)       Consumption of alcohol or drugs;

(b)Racing, competitive driving on the highway, grossly excessive speed and showing off;

(c)       Disregard by the driver of warnings from his passengers; (d)  A persistent and deliberate course of very bad driving;

(e)       Other offences committed at the same time and related offences such as driving while disqualified or without ever having had a licence;

(f)       Previous convictions involving bad driving or offences involving the consumption of excessive liquor before driving;

(g)      The incident of death as a result of reckless driving;

(h)Behaviour  at  the  time  of  the  offence,  e.g.  failure  to  stop  or endeavouring, at further risk to the victim, to escape;

(i)Causing  death  in  the  course  of  reckless  driving  carried  out  in attempting to avoid detention or apprehension.

[35]     The Court also noted some mitigating factors which were:

(a)       The fact that the driving is a “one off” piece of driving; a momentary

reckless error of judgment;

(b)      The existence of a good driving record; (c)      A plea of guilty or genuine remorse;

(d)Where the victim was either a close relative or close friend of the defendant and the consequent emotional shock is likely to be great.

[36]   In the written submissions, and indeed in my own preparation for this sentencing, I have been referred to many examples of sentences imposed where people of around your age have driven when they were drunk, at speed, and have caused the death of one or more of their passengers, in most cases their friends.  The facts of all these cases are extremely sad.  In all cases referred to, the Court started from the position that a sentence of imprisonment was required.   I will note the

decisions I have found most relevant in my typed sentencing decision.[3]

[3] See R v Hughes HC Auckland CRI 2004-004-957, 7 September 2004; R v Macswain CA37/05,

[37]     In your case, you had been drinking during the afternoon and evening. You were more than two and a half times the legal limit for someone of your age.  I have

no doubt that you were affected by alcohol.   Also, before the accident you were

driving at excessive speeds and the accident came after a course of what can only be described as very bad driving.   You took no notice of warnings and pleas to stop from your passengers.   You have several driving-related previous infringements, many of which were for driving at excessive speed and you have one previous drink driving conviction. You caused the death of one of your passengers.

[38]     You knew of the condition of the car and that its warrant of fitness had expired.  Furthermore, you were aware that the brakes were not working properly as they were faulty on the night of the crash.   I accept that these two matters did not, in and of themselves, cause the crash.  That was caused by you driving on the wrong side of the road on a blind bend.

Starting point

[39]     On behalf of the Crown, Ms Clark submitted that I should adopt a starting point of at least six years imprisonment. Ms Tustin submitted the starting point should be between four and five years imprisonment.   Both counsel referred particularly to the starting point adopted in the case of Wagener.  Ms Clark submitted that your offending was more serious than Mr Wagener’s; Ms Tustin submitted there were features that made it less serious.  Ms Clark’s submission was based essentially on  your previous convictions for driving offences and the conviction for drink- driving.  Ms Tustin referred to Mr Wagener’s much higher alcohol level, what she submitted was Mr Wagener’s more dangerous driving, his refusal to allow others to take over driving, and the fact that his driving caused more injuries as well as a death.

[40]     I  have  concluded  in  this  case  that  a  sentence  of  imprisonment  must  be imposed.   A lesser sentence would not be appropriate in light of what occurred. Having considered the circumstances of your offending, but excluding your previous convictions, I have concluded that the appropriate starting point, based on my assessment of your culpability, is five years’ imprisonment. The starting point must be increased, however, to take account of two factors.   These are your previous convictions for driving and drink driving offences, and the fact that your sentence

today must reflect the totality of your offending.  The adjusted starting point is six

years’ imprisonment.

Personal factors

[41]     I turn now to consider matters that relate to you, personally.   Ms Tustin submitted that while you knew that driving while drunk was wrong, you did not have the maturity to appreciate the full gravity, or the danger of what you were doing.  She submitted that your youth can be taken into account in sentencing for your offending which he said resulted from your immaturity, and was an impulsive action.  I accept that some discount for your youth is appropriate, but I must also take into account

that you were near to your 20th birthday, and you have  had driving offences before

which do not appear to have brought home to you the fact that you should not speed, you should not drive recklessly, you should not drink and drive.

[42]     I do accept that you are genuinely remorseful – that comes through clearly both from what you said to the probation officer and the letter that has been provided to me.  I also take account of Ms Tustin’s submission that you intend to make a lump sum payment towards reparation, and are, as she noted, willing to make a payment in recognition of emotional harm to the victims and their families, although as you will know from the discussion you have heard, that is not sought.   I accept that these matters can be recognised by way of a reduction of your sentence.

[43]     As recognised in the Skerrett sentencing, I also take into account the fact that your offending caused the death of one of your best friends.  You will have to live with that for the rest of your life, and I recognise that that will in a very real sense be a lifelong sentence on you.   I also accept, as Ms Tustin submitted to me, that this offending has brought about a complete change in your life and your attitude.

[44]     I have concluded that a reduction of 16 months is appropriate for the factors I

have set out, bringing the adjusted sentence to four years eight months.

Guilty Plea

[45]     I come  now  to  your  guilty plea.    I accept  that  you  were  frank  in  your statement to the police and that your plea was entered at the earliest opportunity You are  entitled to the full available discount.[4]    In the end result your sentence will be reduced by one-quarter from the adjusted sentence, leading me to impose a final sentence of three years six months.

Sentence

[4] See Hessell v R [2011] NZSC 135; [2011] 1 NZLR 607.

[46]     Accordingly, on the charge of manslaughter you are sentenced to three years and six months imprisonment.

[47]     On the charge of reckless driving causing injury you are sentenced to twelve months imprisonment.

[48]     On the the charge of driving with excess blood alcohol causing injury you are sentenced to twelve months imprisonment.

[49]     All three sentences are to be served concurrently.   That means that your effective sentence is three years six months imprisonment.

[50]     You are disqualified from driving for a period of three years.

[51]     I order you to pay reparation in the sum of $2,100 in respect of damage suffered by the owner of the Mitsubishi vehicle.  That payment is to be made within

21 days to the High Court in Hamilton.

[52]     Mr Vanstone, I remind you again of what you said in your letter to me and which has been of much significance to me in considering this sentence.  I am going to read from your letter:

I am deeply regretful for my actions and know that this is something that will hang over me for life.  The hardest part is knowing that I am responsible

for Cody’s death.  I hate the fact that it takes an accident like this for me to realise that I needed to change my ways.

Later on in your letter you say:

I can’t imagine the pain that of Cody’s family is having to deal with and I wish that I could take it away but I can’t but I can turn my life around and live a good life for me and Cody and it would be a great dishonour to his family if I carried on the same way.

I ask that you remember these words and do your best to keep up to that in the future.

First Strike warning

[53]     Mr Vanstone, because of your conviction for manslaughter, which is a serious violent offence under the Sentencing Act, you are now subject to the three strikes law.   I am now going to give you a warning as to the consequences of another conviction for a serious violent offence.  You will also be given a written warning outlining these consequences, and it lists the serious violent offences.

[54]     The consequences are as follows:

(a)      If you are convicted of any serious violent offences other than murder, committed after this warning, and if a Judge imposes a sentence of imprisonment, then you will serve that sentence without parole or early release.

(b)If you are convicted of murder, committed after this warning, then you must be sentenced to life imprisonment.   That 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.

[55]     Please stand down.

Andrews  J

26 May 2005; R v Edgcombe HC New Plymouth CRI 2006-043-3868, 23 October 2007; R v Paikea
HC Tauranga CRI 2009-019-5625, 29 September 2009; R v Martin HC New Plymouth CRI 2009-
043-4845, 29 April 2010; R v Wagener HC Invercargill CRI 2010-025-000191, 8 June 2010; and R v
Christy, HC Napier CRI 2010-220-36, 16 February 2011.