R v Wagener HC Invercargill CRI 2010-025-191

[2010] NZHC 934

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CRI-2010-025-000191

REGINA

v

HUNNTER WILLIAM WAGENER

Appearances: J Young for Crown

S G Vidal for Prisoner

Judgment:      8 June 2010

SENTENCE OF HON. JUSTICE FRENCH

[1]      Hunnter William Wagener, you appear this afternoon for sentence following pleas of guilty to four counts: one count of manslaughter and three counts of driving with excess blood alcohol causing injury.

Facts of the offending

[2]      The facts of the offending are as follows.

[3]      On 4 December last year you and a group of friends were gathered at a rural property at Otatara drinking alcohol.   At about 8 o’clock  you and  your friends decided to drive into town in your car.  Earlier that evening you had arranged a sober driver, a female friend.  However, when the time came to leave you told the sober

driver that you would drive the car from inside the address to the gateway.   Your

R V WAGENER HC INV CRI-2010-025-000191  8 June 2010

friends got into the car and you began to drive towards the gate across a grassed area. In doing so, you started to spin the wheels on the vehicle and completed two donuts.

[4]      Once you reached the gateway, the sober driver got out of the back seat and said she would drive now.  You, however, refused to give up the wheel and said you would drive to a nearby intersection.  When you arrived at the nearby intersection you slowed down but then continued to drive, accelerating heavily, at which point the sober driver again told you to pull over, as she would drive.  You ignored her and continued to accelerate.   She again told you to pull over, but you continued to go faster and faster, reaching a speed estimated by one of the passengers at approximately 80 kilometres per hour.  Once again the female friend told you slow down and stop the vehicle, and once again was ignored.

[5]      Fearing for her safety, the female friend began to tug on your T-shirt, telling you to stop and slow down.  You again ignored her request.

[6]      You were driving so fast the driver of an oncoming vehicle was sufficiently concerned to slow and pull over until you passed him.  Once past this vehicle you lost control of the car and crashed into a concrete power pole on the passenger side. Tragically, the impact of this crash killed your friend, Jerome Henry, who was sitting in the front passenger seat.

[7]      The female friend was able to get out of the car and call for help while you and the other two passengers were trapped in the vehicle for up to two hours.  All required medical treatment.  One of the surviving passengers received a fracture to his right ankle and a sore shoulder, with the other receiving an open fracture to his foot and a cut to his arm which required stitches.  The female friend received cuts to her leg.

[8]      While in hospital a blood sample was taken from you.  It showed that an hour after the accident there was a concentration of 147 milligrams of alcohol per 100 millilitres of blood.   The police crash analyst calculated your speed at the time of losing control to be between 85 and 101 kilometres per hour.  This in a 50 kilometre speed zone.

[9]      As regards property damage, the concrete power pole broke at ground level, pulling the base of it two metres out of the ground.   This resulted in damage of

$5631.59.

[10]     When interviewed by the police, you stated you were unable to remember the events of the crash.

Reports

[11]     I have read the victim impact report from Jerome’s family, his girlfriend and the injured passengers.  I also heard this afternoon from Jerome’s brother.  It is clear that Jerome was a much loved member of his immediate and extended family.  They are understandably heartbroken.  He had all his life before him, only to have it taken away as a result of your irresponsible and stupid conduct.  He was so young.

[12]     In addition to the victim impact reports, I have also read a pre-sentence report and a medical report.  The reports tell me that you were 18 years of age at the time of this offence.   You have previous convictions as well as driving infringements, but none of any particular significance, and the Crown accepts that you should be treated as a first offender.

[13]     To your credit, it appears you have a good work record and your employer is willing to keep your job open.

[14]     Of concern to me, however, is what both reports say about your attitude to alcohol.  They say, in effect, that you are in denial that you have a drinking problem, and that you are not particularly serious about addressing it.

[15]     There is also a suggestion in both reports that you do not fully appreciate the enormity of what you have done.  The probation officer writes that you present as being in shock or out of your depth.  As a result, she was unable to assess the level of your remorse.

[16]     Dr Gordon attributes your apparent lack of appreciation to your personality and what is described as a “carefree attitude to life”.  This is consistent in some ways

with what is said in the victim impact report from Jerome’s mother. She expresses her disappointment that you have never approached them personally to apologise or to ask if there is anything you can do for them.  She also writes that on two occasions you failed to turn up to meetings with them that had been arranged.

[17]     On the other hand, I do accept that people grieve in different ways and that some of your actions may well be the actions of a person who is simply unable to confront what has happened.   That has been reinforced for me by a letter I have received from your grandparents which is written in very heartfelt terms.  Of course we have this afternoon also heard from Jerome’s brother about how close you and Jerome were.

[18]     Ms  Vidal  has  also  asked  me  to  put  the  report  writers’  comments  about alcohol into perspective, and a young person’s understanding of what constitutes a drinking problem.  She tells me you are undertaking counselling and would wish to continue that.

Sentencing analysis

[19]     I turn now to explain the sentencing decisions that I have to make today.

[20]     In sentencing you, I am required to take account of what are called the principles and purposes of sentencing.

[21]     First of all, as regards the purposes of sentencing, they are to hold you accountable for the harm you have done; to promote in you a sense of responsibility for that harm; to provide for the interests of the victims; to denounce your conduct – by that I mean to express society’s complete condemnation and rejection of your conduct;  and  also  to  deter  you  and  others  from  similar  offending.    There  is widespread community concern about young people drink driving and speeding and killing others.

[22]     I would like to read to you something another Judge said in a similar case involving someone about your age.  The Judge had this to say:

[17]     A  Land  Transport  report  records  that  in  the  decade  to  1

January 2004 some 5000 were killed on New Zealand roads.  That is the size of a small town.   The shame that attaches to hard drug offending is something that all of us understand, and it must be understood, not least by those of your age, that that shame must also attach to putting lives at risk by dangerous driving because it has the same  effect.     It  kills  people,  mutilates  them  and  destroys  their families’ peace of mind.  Courts at sentence must help to teach that message.

[18]   While the Sentencing Act requires both proportion and consistency in sentencing, that is why we look at other cases, as the facts of this case show the hideous death toll on the roads and the increasingly hard line taken by sentencing courts have too often failed to register with young drivers. Yet they provide the highest statistics among the numerous cases in the past five years to which I have been referred…

(R v Smith HC Auckland CRI-2005-057-000675, 4 November 2005, Baragwanath J)

[23]     That was said in 2005.   Reckless or dangerous driving leading to death remains a major social problem in this country.  The community has had enough.

[24]     In terms of the principles of sentencing, the principles of particular relevance are the seriousness of the offending, the seriousness of the offence relative to other types of offence, sentencing consistency and consideration of the effect of the offending on the victims.   I must also be mindful of my obligation to impose the least restrictive outcome appropriate in the circumstances.

[25]     I need also to explain to you that in coming to a decision this afternoon, I am required by law to follow what can loosely be called a two-stage approach.

[26]      In the first stage I have to fix what is known as the starting point.  What that means is simply the sentence which reflects the blameworthiness associated with your offending.  That is the first stage.  Fixing the starting point.

[27]      The second stage is that having fixed the starting point I am then required to consider whether your personal circumstances warrant any adjustment upwards or downwards to the starting point.

[28]     I turn now to identify the starting point.

[29]      I take as the lead offence the offence of manslaughter.  As was mentioned by   Ms   Vidal,   there   are   no   guideline   cases   for   manslaughter   because   the circumstances are so variable.

[30]     The lawyers disagree as to what is the appropriate starting point in your case. Ms Vidal says three and a half to four years’ imprisonment.   Mr Young for the Crown says six to seven years.

[31]     I identify the key aggravating features in your case as being:

i)        The fact that three other people were injured.

ii)The consumption of alcohol.   At a level of 147  you were almost five times over the relevant limit.  Further, you knew that you had drunk too much to be driving, because you arranged a sober driver, yet went ahead anyway.

iii)      The excessive speed.

iv)The fact you were repeatedly asked by your female friend to pull over, slow down, stop.   I regard this as a particularly serious aggravating factor.  It also means I cannot accept one of Ms Vidal’s submissions that your victims chose to enter the car.  The female friend wanted you to stop.

v)The fact there was a course of bad driving, beginning with the donuts, the drink driving and the excessive speed.

vi)The fact that earlier that same day, to your knowledge, the car had failed its Warrant of Fitness and so should not have been on the road at all.

[32]     Having  regard  to  these  aggravating  factors  and  the  comparator  cases  I

consider an appropriate starting point is six years’ imprisonment.

[33]     I turn then to stage two, which is to consider your personal circumstances and whether or not they warrant an adjustment upwards or downwards from the starting point.

[34]     Ms Vidal submits there are the following mitigating factors that should be taken into account:

i)The fact that the deceased, Jerome Henry, was a particularly close friend.

ii)       Your offer to make amends.

iii)      Your lack of relevant previous convictions. iv) Your age.

v)       Your co-operation with the police. vi)   Your remorse.

vii)     Your guilty plea.

[35]     I do not agree that all of these matters independently warrant a discount.  Co- operation  with  the  police  and  remorse,  for  example,  are  subsumed  within  the discount already allowed for your guilty plea.  An additional discount for remorse is only to be given if the remorse can be described as exceptional.  In your case I do not think it can be so described.

[36]    Further, while the youth of an offender is often a mitigating feature at sentencing, the Court of Appeal has said it is not to receive the same weight in cases of motor manslaughter : see R v Pretty CA277/00 26 October 2000.

[37]     I do, however, accept that you are entitled to a reduction on account of the fact that Jerome was a close friend, your previous good character and a payment of

$1260 which you are in a position to make today to the Henry family.  On account of those factors, I allow a reduction of 12 months.

[38]     In addition, you are entitled to receive a significant discount of a full third on account of the early guilty plea, arriving by my calculation at an end sentence of three years and four months’ imprisonment.

[39]     I must also impose a sentence in respect of the drink driving causing injury charges.  However, they are to be concurrent because I have already taken them into account in setting the starting point for the manslaughter.

Sentence

[40]     Hunnter William Wagener, on the charge of manslaughter you are convicted and sentenced to a term of imprisonment of three years and four months.  On each of the charges of driving with an excessive blood alcohol level causing injury you convicted and sentenced to a term of imprisonment of 18 months, to be served concurrently.  That means that the total effective sentence is a term of imprisonment of three years and four months.

[41]     Further, you are disqualified from holding a driver’s licence for a period of four years.

[42]     I also make a reparation order requiring payment of the sum of $12,631.59,

$7000 of which is payable to Jerome’s parents and the balance payable to the power company on account of the power pole.  I order that $1260 of that amount is to be paid immediately to Jerome’s parents.   As for the balance, because of your imprisonment, that is not payable until your release.  Because of your imprisonment, it is also not possible for me to determine now a payment scheme providing for payment by instalments, the frequency of those instalments and the amounts of those instalments.  In those circumstances, Ms Vidal has suggested the appropriate course is for me to order that on your release from prison, the position is to be reviewed and

an  assessment  made  then  as  to  payment,  the  amount  of  any  instalments  and frequency. Those matters will therefore effectively be deferred until your release. The registry can then conduct an assessment at the appropriate time as to those instalments.

Solicitors:

Crown Solicitor’s Office, Invercargill

S Vidal, Invercargill