R v Watson HC Auckland CRI 2010-090-3663

[2011] NZHC 1270

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2010-090-3663

THE QUEEN

v

WALLY DAVID WATSON

Hearing:         4 October 2011

Counsel:         B D Tantrum for Crown

J L Cagney for Prisoner

Judgment:      4 October 2011

SENTENCE OF KEANE J

Solicitors:

Crown Solicitor, Auckland: [email protected]

Counsel:

J L Cagney: [email protected]

R V WALLY DAVID WATSON HC AK CRI 2010-090-3663 4 October 2011

[1]      Wally David Watson, you appear for sentence, having been found guilty at trial of the manslaughter of Gavin Cuthbert. You caused his death by an unlawful act, driving dangerously, on 15 February 2010. You are for sentence also, having been found guilty at trial, of two other aggravating offences.

[2]      You drove with an excess breath alcohol. The level was 1001 micrograms of alcohol per litre of breath, just over two and a half times the legal limit. You drove while  indefinitely  disqualified.  Each  of  these  offences  is  a  third  or  subsequent offence, placing them in the aggravated category for the purpose of sentence.

Evidence at trial

[3]      On the evening before the accident in which Gavin Cuthbert died, you and he and another flatmate of the two of you went to the home of a woman friend and spent the evening drinking together. You travelled there in Gavin Cuthbert’s left hand drive Chevrolet Utility and you and he left the address together late in the evening, or in the early morning. Your third flatmate remained.

[4]      Who drove there, and more especially who drove away, was the issue at trial. Gavin Cuthbert had recently been indefinitely disqualified and you were indefinitely disqualified. Both of you clearly enough had been drinking very extensively that night. The evidence of your flatmate as to which of you was the driver was inconclusive. The wider evidence was that, after Gavin Cuthbert was disqualified the month before, he looked to others to drive and that you had driven him on occasions.

[5]      There was no real issue at the trial as to how the accident in which Mr Cuthbert died came about.   The evidence was clear that on Glenview Road, Glen Eden, Waitakere, which is the subject of a 50 kilometre per hour limit, the utility must have entered the gradual left hand bend at which the accident occurred at almost twice the permitted speed. It then yawed diagonally across the south bound lane and the extensive median strip into the opposing lane. It hit the far kerb, then the far sloping bank. It travelled a short way along the bank until it came to a low retaining wall. It then flipped over onto its canopy across the road facing inwards towards the bank at the point of pivot.

[6]      There was no issue either that soon after the accident happened Mr Cuthbert was found pinned under the right hand side of the utility on what was the passenger side, or that you were found sitting just beyond the driver's window unharmed. At the roadside and afterwards you maintained that Mr Cuthbert had been the driver and you the passenger. The Crown's case at trial was that where you and Mr Cuthbert were found, coupled with the accident dynamic, was consistent with the wider evidence. Mr Cuthbert, the Crown contended, could not have been the driver. It must have been you. The jury agreed.

[7]      It is on that basis that you are to be sentenced for manslaughter, for causing Mr Cuthbert’s death by driving dangerously at an excessive speed. There was no issue at trial as to your two other offences aggravating that offence; that you had been drinking very excessively, and that you were indefinitely disqualified. Nor was there any as to the extent to which you had offended in those two ways before.

Victim impact statements

[8]      I have victim impact statements from Mr Cuthbert's wife, his son, and his brother. His brother's victim impact statement has been read to the Court by the victims' adviser. Mr Cuthbert's wife and son are content that I should simply read their statements and take them into account on sentence.

[9]      Mr Cuthbert and his wife were estranged but his wife feels broken and alone. She has felt since both lost and helpless. She has asked herself how she is going to be able to bring up their son without Mr Cuthbert's help. She has asked herself how she is going to pay for everything. It has been of especial concern to her that her son has found life very difficult since his father’s death.

[10]     In his victim impact statement Mr Cuthbert's son expresses the anger that he continues to feel. He says that his life has turned to ash since he lost his father. His father was the most important person in his life. He finds it hard to bear the thought that he can no longer turn to his father, if he needs to, and that if he has children himself they will never know their grandfather or how wonderful he was.

[11]     Mr Cuthbert's brother's statement, which was read out to the Court, has as its focus  the  fact  that  you  denied  the  offence  and  attributed  to  Mr  Cuthbert responsibility for the accident. That has compounded his grief and has resulted in difficulties that he has faced that his family have also had to bear.

Pre-sentence report

[12]     You are, as your pre-sentence report confirms, aged 51 years. Before this offending you had been living with Mr Cuthbert for six months. You thought of him as a good friend. You continued to deny, as you do today, that you were the driver that night and were responsible for his death. You nevertheless expressed sorrow then, as you express sorrow now, that he died as he did.

[13]     Your use of alcohol, your report says, has been entrenched and abusive for many years and, as you have agreed more than once in the past when charged with offending that foreshadowed this, it inevitably has played a very large part in your offending. In fact it must clearly have been the cause of much of it.

[14]     You have, according to your assessor, 18 previous convictions for driving with excess breath alcohol and 20 for driving while disqualified, leaving aside convictions for other driving offences and for violence. Those figures may not be entirely  accurate.  Counts  made  by  counsel  today  differ  and  differ  between themselves. But, as your counsel rightly accepts, you have a very high number of previous convictions in both categories and that is the material thing.

[15]     Also material is that since 1995 you have almost invariably been sentenced to imprisonment for driving while disqualified and with excess breath alcohol. In 2005 you were sentenced to one year, three months imprisonment, and in 2008 to 18 months imprisonment. Four months on a residential program with NSAD at Martin in 1993 and three months with Odyssey House in 2006 have not assisted you.

[16]     You are considered to be at high risk of re-offending as long as you continue to drink alcohol. Mr Cuthbert's death, your assessor says, does not on the face of it

appear to have influenced you to reconsider this issue, though your counsel tells me you have. Inevitably your report recommends that you be imprisoned.

Purposes and principles

[17]     In sentencing you I must hold you accountable for the harm you have done, promote in you, if I can, a sense of responsibility for your offence, denounce it and impose a sentence that deters you and others and protects the community. I am unable to give any significant place to your rehabilitation and reintegration. The sentence that I impose on you must take account of the gravity of your offending and the sentences that have been imposed in like cases.

Crown submissions

[18]   The Court of Appeal has declined to issue a guideline judgment for manslaughter generally or for motor manslaughter,  which is  your lead  offence.[1]

Relying primarily on such cases, however, as R v Skerrett,[2]  and more recently R v

Grey,[3]  and the cases since, the Crown contends that for the manslaughter offence I

should take a starting of six - seven years imprisonment.

[1] R v Edwards [2005] 2 NZLR 709; R v Whiu [2007] NZCA 591 at [19].

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

[3] R v Grey (1992) 8 CRNZ 523; see also R v Anderson [2010] NZCA 339.

[19]     In driving at such a dangerously excessive speed in a 50 kilometre an hour area as you did, the Crown contends, you posed a real risk to members of the public. You rendered your passenger, Mr Cuthbert, especially vulnerable and you must be held accountable for his death. Compounding your offence, the Crown says, is that you were so heavily intoxicated and you were indefinitely disqualified.

[20]     The Crown  contends  that  for  your previous  offending  there should  be  a significant uplift. The sheer number of your previous convictions calls for that to be so. The Crown contends for an uplift of two years. The Crown seeks concurrent sentences for the two lesser offences of 18 months imprisonment each. The Crown

seeks  also  a  minimum  term  of  imprisonment  beyond  the  one-third  mandatory

minimum term to protect the community. The Crown contends finally for an indefinite period of disqualification to apply on your release.

Defence submissions

[21]     Your counsel submits that your responsibility does not stand as high as the Crown has portrayed it. Even accepting the jury's verdict, which you do not, he says, it must still be the case that in the early hours of that morning you drove because Mr Cuthbert permitted you to, or wished you to. You had both been drinking heavily before then, he as much as you, and he too was indefinitely disqualified. If you did drive, that was a decision he shared, assuming some level of risk; a risk that sadly eventuated.

[22]     Nevertheless, your counsel tells me, you have, while in prison, not been drinking and you are determined to continue not to drink. You regret the fact that the accident happened and that Mr Cuthbert died and, contrary to your pre-sentence report, that has been a real consideration. When you are released from custody you intend to enter Odyssey House. You are also willing to be disqualified indefinitely.

[23]     As to your lead offence, the manslaughter offence, your counsel accepts that a starting point of six years cannot be resisted. He accepts also that an uplift of one year for your previous convictions cannot be resisted either. He accepts that concurrent sentences of imprisonment for the two other offences of 18 months may well be appropriate and that an indefinite period of disqualification may be imposed.

[24]     Your counsel opposes the Crown's late contention for a heightened minimum non-parole period to protect the community. The fact that you have not been drinking for the past 18 months, that you have resolved to face up to that issue and that you are happy to be disqualified indefinitely, he submits, all make the need for a longer non-parole period unnecessary. The community's safety will not be compromised.

Conclusions

[25]     The high speed at which, on the jury's verdict, you entered the bend that early morning, Mr Watson, driving Mr Cuthbert's car, a speed twice the speed limit, and the gross extent to which you were intoxicated, and the fact that you were driving at all, are the features that stand out for the purpose of sentence.

[26]     You  drove  dangerously  in  the  most  concrete  sense. You  constituted  not merely a risk to yourself and to Mr Cuthbert, a risk that sadly eventuated. You constituted a risk to any other member of the public on the road at that time with you. Very shortly after the car upended two other motorists arrived. Had they been there even slightly earlier, the result could have been that much more extreme.

[27]     You are to be sentenced, however, having regard to sentencing decisions in other cases where the driving resulting in death was even more dangerous and, having regard to those cases, I take a starting point for your manslaughter offence of six and a half years.

[28]     There must be an uplift to reflect your appalling previous history of driving while disqualified and with excess breath alcohol, the two offences that so aggravate your principal offence. That you have as many such convictions as you do, and that you have not responded to any sanction or therapy, has to be especially troubling. There will be an uplift of two years, increasing your sentence to eight and a half years imprisonment.

[29]     The issue then becomes whether I should also impose a heightened minimum non-parole period to protect the community. Despite what you say, your history leaves me no confidence that you will, once released, remain free of alcohol or driving. Despite every sanction and therapy, that has not been the pattern of your life. A minimum non-parole period of four years is, I consider, called for.

[30]     You are sentence, therefore, to eight and a half years imprisonment with that minimum four year non-parole period. You are sentenced concurrently to 18 months imprisonment for the two other offences. I disqualify you indefinitely from holding

or obtaining a driver's licence, both under 125 of the Sentencing Act 2002 and s 65 of the Land Transport Act 1998; the latter because of your breath alcohol level, 1001

micrograms, and your related previous conviction within five years.

P.J. Keane J