Rakete v Police
[2017] NZHC 2915
•27 November 2017
IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY
I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE
CRI-2017-441-34 [2017] NZHC 2915
BETWEEN SAM BLAIR RAKETE
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 1 November 2017 Appearances:
W Hawkins and A V Bryant for the appellant
C R Stuart for the respondentJudgment:
27 November 2017
JUDGMENT OF CULL J
[1] On 31 August 2017, Mr Rakete was convicted of one charge of ill-treatment or neglect of a child1 and one charge of dangerous driving,2 following a judge-alone trial before Judge Adeane.3
[2] Mr Rakete appeals the two convictions on the basis that the Judge erred in finding the charges proved. He contests the Judge’s finding that his driving was dangerous in all the circumstances and on the charge of ill-treatment of a child, he says the Judge failed to apply the “major departure test”, under s 195 of the Crimes Act
1961. He submits a miscarriage of justice has occurred.
1 Crimes Act 1961, ss 195(1) and 195(2)(a). Maximum penalty is 10 years’ imprisonment.
2 Land Transport Act 1998, s 35(1)(b). Maximum penalty is three months’ imprisonment, or a fine not exceeding $4,500, and disqualification from holding or obtaining a driver’s licence for six months or more.
3 New Zealand Police v Rakete [2017] NZDC 22700.
RAKETE v NEW ZEALAND POLICE [2017] NZHC 2915 [27 November 2017]
[3] The Crown opposes this appeal and submits there has been no miscarriage of justice. Mr Rakete’s speed and manner of driving was objectively dangerous and intentional. The driving and the crash were likely to cause suffering or injury to the child and is appropriately described as a major departure from the standard of care expected of a reasonable person.
Factual background
[4] On the morning of 2 April 2017, Mr Rakete was driving in a residential area with a 50 km per hour speed restriction. At the time, Mr Rakete had his one year old son in a child restraint chair in the front seat of the vehicle.
[5] A police car passed Mr Rakete and noticed he was not wearing a seat belt. The police car made a U-turn and activated their lights pulling in behind Mr Rakete’s vehicle. At this point, Mr Rakete increased his speed dramatically and continued to ignore the sirens behind him. Mr Rakete drove straight over the front lawn of a residential property, which belonged to one of his relatives, before hitting the side of the house on the passenger side of the vehicle. Mr Rakete jumped out of the vehicle and left the property by climbing over the back fence.
[6] Mr Rakete’s son was on the side of the vehicle that hit the house and was left alone in the vehicle when the defendant ran from police. The summary of facts states that Mr Rakete showed no regard for the safety of his child in the vehicle while failing to stop for police and did not stop to care for the child when he left the vehicle.
District Court decision
[7] The two issues identified by the Judge for determination were:
(a) whether Mr Rakete’s driving was dangerous; and
(b) whether it constituted the offence of child neglect.
[8] The Judge was satisfied that the evidence given by the Constable, who pursued
Mr Rakete, was reliable, as she was in “an optimum position to make the observations which she described.”4 The Judge observed:5
With every incentive to do so she was on road enforcement duties and what unfolded in front of her was the sort of impulsive, thoughtless and inherently dangerous conduct which the police report to the Courts day in and day out.
[9] The Judge concluded that in the circumstances of a police pursuit, where
Mr Rakete was forewarned by both police lights and a siren, his behaviour in failing to stop “carried with it the obvious inference that he was aware that he was being chased.”6 He had deliberately ignored the implicit instruction to stop. He left the road in a way “which must have been dangerous to anybody in the vicinity” and in particular to the child in the vehicle.7
[10] In one paragraph, the Judge concluded that both charges were proved. He said of both charges:8
[7] The charge of dangerous driving, that is deliberately driving a motor vehicle in a manner falling short of the standard of a reasonable and prudent motorist, is manifestly proved on the evidence before the Court. Given the presence of a child of about one year of age in the same vehicle, so too is the further charge of departure from the standard of care expected of a reasonable person, a reasonable driver having the care of a child of that age. Both charges are proved.
[11] The Judge later imposed a sentence of nine months’ imprisonment on the charge of ill-treatment of a child and one month’s imprisonment on the charge of dangerous driving.9 Mr Rakete was also disqualified from driving for six months.
Approach to appeal
[12] An appeal against conviction in a Judge-alone trial is a general appeal. This appeal is governed by s 232 of the Criminal Procedure Act 2011. Therefore the
appellant must satisfy the Court that a miscarriage of justice has occurred, either
4 Rakete, above n 3, at [5].
5 At [5].
6 At [6].
7 At [6].
8 Emphasis added.
9 New Zealand Police v Rakete [2017] NZDC 22532.
because “the Judge erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred” or for any other reason.10 A miscarriage of justice is “any error, irregularity, or occurrence” that “has created a real risk that the outcome of the trial was affected” or “has resulted in an unfair trial or a trial that was a nullity.”11 As s 232 makes clear, not every “error or irregularity” causes a miscarriage of justice.12
[13] An unfair trial exists when the errors are prejudicial or unacceptably give rise to the appearance of unfairness. In Condon v R, the Supreme Court stated that it “is not every departure from good practice which renders a trial unfair.”13 Instead, the errors or irregularities must depart from good practice in a manner that is “so gross, or so persistent, or so prejudicial, or so irremediable” that the court must quash the decision.14
Mr Rakete’s position
[14] Mr Rakete says that the Judge erred in finding the charges proved and therefore a miscarriage of justice has occurred which has affected the outcome of the trial. Mr Hawkins for Mr Rakete makes two key submissions:
(a) the Judge erred in finding the driving was dangerous; and
(b)the Judge erred in failing to apply the major departure test pursuant to s 195 of the Crimes Act in relation to the charge of neglect of a child.
Error in finding the driving was dangerous
[15] While Mr Rakete accepts he did not stop upon seeing the flashing lights, counsel submits there was insufficient evidence to conclude beyond reasonable doubt
that the driving was dangerous in all the circumstances. Even if Mr Rakete is said to
10 Criminal Procedure Act 2011, s 232(2).
11 Section 232(4).
12 “A miscarriage is more than an inconsequential or immaterial mistake or irregularity”: Matenga v
R [2009] NZSC 18, [2009] 3 NZLR 145 at [30].
13 Condon v R [2006] NZSC 62, [2007] 1 NZLR 300 at [78].
14 Randall v R [2002] 1 WLR 2237 (PC) at [28] per Lord Bingham, cited with approval by the
Supreme Court in Condon v R, above n 4, at [78].
have veered off the side of the road onto the residential property, counsel says, it cannot be inferred that this was, in all the circumstances, an episode of dangerous driving. It may have fallen below the standard expected of a reasonable and prudent driver and considered careless, but nothing more.
[16] No evidence was adduced at the trial about the speed that the vehicle was travelling and whether this was excessive. Mr Hawkins submits Constable Jamieson said she had to travel up to 80 km per hour and she was closing in on Mr Rakete’s vehicle at that speed but there was no suggestion that apart from Mr Rakete failing to stop for the police car, that the manner in which he drove was erratic or dangerous to other members of the public. Where a member of the public fails to stop for flashing lights, in the present circumstances, Mr Hawkins submits this does not necessarily create a potentially dangerous situation for other members of the public.
[17] The duration of the pursuit was approximately 500 metres. Counsel submits there is no suggestion that Mr Rakete was fleeing the police; it was simply a failure to stop. The damage caused to the house was so minor to the extent it was repairable by the occupants within the same day. No damage was caused to the car.
[18] It is also submitted that the finding that the driving was dangerous to
Mr Rakete’s child was not supported by the evidence. The child was correctly restrained in a car seat and there was no evidence led that the child was injured or distressed as a result of Mr Rakete’s vehicle stopping in the manner that it did.
[19] Counsel relies on the decision in Stratford v Ministry of Transport for the proposition that the elements of dangerous driving can be an accumulated series of events or a single action of driving that in itself creates a situation of danger.15 In this case, the Judge found the driving proved on the basis of a series of events as opposed to a single specific act amounting to dangerous driving. However, counsel submits the series of events including the failure to stop, leaving the road and clipping the side of the house could not be considered dangerous to the public or Mr Rakete’s son.
Error in failing to apply the major departure test
[20] Mr Rakete submits the Judge did not correctly apply the test in s 195 of the Crimes Act in this case. This test is known as the “major departure test”, where a person intentionally engages in conduct that is a major departure from the standard of care to be expected of a reasonable person.
[21] In relation to the four elements that need to be proved under s 195 of the Crimes
Act, counsel submits:
(a) it is not disputed Mr Rakete had actual care or charge of the child;
(b)Mr Rakete’s driving did not amount to a positive course of action akin to intentionally engaging in conduct or a conscious appreciation as his decision not to stop for the police car was not directed towards the child specifically;
(c) there was no evidence that the child was distressed or injured and
Mr Rakete’s driving cannot be considered as likely to have caused any suffering or injury to the child; and
(d)while Mr Rakete’s driving amounts to a departure from the standard of care expected from a reasonable person it was not a major departure – it was simply a failure to exercise a reasonable standard of care as opposed to an episode of gross negligence.
[22] Counsel submits that this is not the type of case that Parliament intended a prosecution under s 195 to take place and it was not necessary to charge Mr Rakete with such a serious offence. Counsel references the case of JF v New Zealand Police, where it was observed that the major departure test implied that prosecutions under this section should be confined to serious cases and not be resorted to for every occasion where a person responsible for the care of a child fails to exercise a reasonable standard of care.16
[23] Counsel points to the legislative record to examine Parliament’s intent in amending s 195 to its current form. It is clear from the Explanatory Note of the Crimes Amendment Bill No 2 that the Bill’s intent was to implement the Law Commission’s recommendations in this area.17 The relevant Law Commission report identifies that the primary objective was to redress deficiencies and gaps in the Crimes Act which were perceived as not attaching sufficient weight to the importance of child protection.18 The Law Commission noted that the mens rea required any ill-treatment or neglect to be “wilful” or “deliberate”.19
Crown’s position
[24] The Crown opposes this appeal and submits there has been no miscarriage of justice. The Crown submits Mr Rakete’s speed and manner of driving was objectively dangerous and intentional.
[25] The Crown disagrees that this driving is better characterised as careless.
Mr Rakete was fleeing the police at speed. Driving in this way at this time and in this area was or could have been dangerous for other road users, pedestrians, residents and his son. The Judge was correct in finding a conviction on this charge.
[26] On the second charge, the Crown submits the driving and the crash were likely to cause suffering or injury to the child and is appropriately described as a major departure from the standard of care expected of a reasonable person. The Crown submits the standard in s 195 of “intentionally engaging in conduct” can and should be interpreted as requiring conduct to be non-accidental and voluntary. There should not be a subjective form of intent as was the case prior to the amendment of s 195.
[27] The Crown submits that driving at speed, mounting a curb, driving towards and striking the side of a house was likely to cause suffering or injury to Mr Rakete’s son. The Constable described the child as being in shock, which is unsurprising
considering it was the child’s door that impacted the house.
17 Crimes Amendment Bill (No 2) (284–1) (explanatory note).
18 Law Commission Review of Part 8 of the Crimes Act 1961: Crimes Against the Person (NZLC R111, 2009).
19 At [5.17].
[28] The major departure test is wholly objective, a matter of degree and requires a value judgment. The Crown submits that the conduct of deliberately driving off the road during a police pursuit with a child in a front seat, albeit restrained, constitutes a major departure. This conduct was aggravated by Mr Rakete running away from the scene after the impact with the house and leaving his child alone in the running car.
Relevant law
Dangerous driving
[29] Mr Rakete was first charged under s 35(1)(b) of the Land Transport Act 1998. Section 35 of that Act provides:
35Contravention of section 7, or section 22 where no injury or death involved
(1) A person commits an offence if the person—
(a) operates a motor vehicle recklessly on a road; or
(b) drives or causes a motor vehicle to be driven on a road at a speed or in a manner which, having regard to all the circumstances, is or might be dangerous to the public or to a person; or
(c) without reasonable excuse, contravenes section 22 by failing to stop and ascertain whether any person has been injured, after an accident where no other person has been injured or killed.
(2) If a person is convicted of an offence against subsection (1),—
(a) the maximum penalty is imprisonment for a term not exceeding 3 months or a fine not exceeding $4,500; and
(b) the court must order the person to be disqualified from holding or obtaining a driver licence for 6 months or more.
(3) The imposition of a mandatory disqualification under this section is subject to section 81.
[30] Dangerousness is assessed objectively, however, it must be shown that the driver failed to meet the standard of care expected of a reasonable and competent
driver.20
20 R v Jones [1986] 1 NZLR 1 (CA), cited in Stratford, above n 15, at 490.
Neglect of a child
[31] Mr Rakete was secondly charged under s 195 of the Crimes Act. That section provides:
195 Ill-treatment or neglect of child or vulnerable adult
(1) Every one is liable to imprisonment for a term not exceeding 10 years who, being a person described in subsection (2), intentionally engages in conduct that, or omits to discharge or perform any legal duty the omission of which, is likely to cause suffering, injury, adverse effects to health, or any mental disorder or disability to a child or vulnerable adult (the victim) if the conduct engaged in, or the omission to perform the legal duty, is a major departure from the standard of care to be expected of a reasonable person.
(2) The persons are—
(a) a person who has actual care or charge of the victim; or
(b) a person who is a staff member of any hospital, institution, or residence where the victim resides.
(3) For the purposes of this section and section 195A, a child is a person under the age of 18 years.
[32] Actual suffering or injury does not need to be proved, only its likelihood. This requires a real or substantial risk of one or more the proscribed harms taking place, rather than any assessment or balancing of the probabilities.21
[33] The authors of Adams on Criminal Law comment that against the background of the Law Commission’s report, it would appear that the requirement that the defendant “intentionally” engage in conduct or omit to discharge or perform any legal duty, must be read as meaning “simply that the conduct or failure to act must be more than merely accidental.”22
[34] As Toogood J held in JF v New Zealand Police, in order to determine whether there has been a “major departure” requires a two-step process:23
21 R v Hende [1996] 1 NZLR 153 (CA) at 156.
22 Simon France (ed) Adams on Criminal Law (online looseleaf ed, Thomson Reuters) at
[CA195.07].
23 JF, above n 16, at [39].
(a) whether there has been a departure from the standard of care expected from a reasonable person; and
(b)whether such a departure was “major” by reference to community standards. The seriousness of the conduct and the circumstances the offender was in when it occurred are highly relevant.
[35] Toogood J commented that when viewed as a whole “the conduct must be so bad as to justifiably be considered criminal.”24
Discussion
[36] I propose to deal with each of the offences under their respective headings.
Dangerous driving
[37] It is clear from the evidence adduced at trial, that Mr Rakete was travelling at an excessive speed to get away from a police pursuit.
[38] I accept the Crown’s submission that Mr Rakete’s speed and manner of driving was objectively dangerous and intentional because:
(a) the driving occurred in a residential area on a Sunday morning;
(b) the Constable reached a speed of 80 km per hour to close in on
Mr Rakete;
(c) Mr Rakete did not stop for the patrol car’s flashing lights or siren, dramatically increased his speed when the pursuit began and took three turns into residential roads;
(d)the pursuit ended when Mr Rakete drove off the road, across a footpath and then diagonally over the front lawn of a residential property; and
(e) the passenger door of the vehicle impacted the corner of the house before the vehicle came to a stop.
[39] Mr Rakete’s behaviour in the circumstances goes beyond carelessness, as he was intentionally speeding to escape the police. The Judge found that Mr Rakete’s driving fell short of the standard of a reasonable and prudent motorist, which is the appropriate legal test. A reasonable and prudent driver would have stopped when first alerted by a police patrol car’s flashing lights or siren.
[40] I consider there is no error and not one that can be said to have led to a miscarriage of justice. The appeal against conviction for dangerous driving is therefore dismissed.
Ill-treatment or neglect of a child
[41] The principal question in relation to the charge of ill-treatment of a child is whether Mr Rakete’s conduct was a major departure from the standard of care expected from a reasonable person. The Crown submits that the ill-treatment of a child charge can be satisfied by virtue of Mr Rakete’s driving. The Judge appears to have accepted such a submission, by finding the charge proved, because of the presence of a child in the same vehicle, which the driver was driving dangerously. The Judge said that it was a “further charge of departure from the standard of care expected of a reasonable person” because the driver had the care of a child aged one year.25 On that basis, he found the charge of ill-treatment or neglect of a child proved.
[42] This event occurred mid-morning, in a residential area, where police were evidently present. The child was strapped into an age-appropriate child restraint in the front seat of the car. It is unclear, from the one paragraph finding in the Judge’s decision, what constituted ill-treatment or neglect. The Judge has drawn the inference that because a reasonable person should not be driving dangerously and because the child was present in the car, that was sufficient to satisfy the test under s 195 of the Crimes Act.
[43] Recently, the Court of Appeal in M (CA522/2016) v R identified the elements that need to be proved beyond reasonable doubt for a conviction under s 195.26 In relation to Mr Rakete, these elements are:
(a) Mr Rakete had actual care or charge of his son, a child under 18;
(b) Mr Rakete intentionally engaged in conduct towards his son;
(c) the conduct was likely to cause suffering or injury; and
(d)the conduct was a major departure from the standard of care to be expected of a reasonable person.
[44] Applying the two-step process to the “major departure” test, as in JF v New Zealand Police, the departure must be a departure from the standard of care expected from a reasonable person and the departure must be “major” by reference to community standards.27
[45] The seriousness of the conduct and the circumstances are highly relevant. Here, Mr Rakete foolishly sped away from the police, when the Constable put on her flashing light. Mr Rakete drove 500 metres and turned into a residential property, which belonged to one of his relatives. In vacating the vehicle when it collided with the side of the house, Mr Rakete was apprehended a matter of seconds later. His relatives came to the child’s aid, also in a matter of seconds. The child was left for a minimal time in the vehicle, although it appears this did not feature in the Judge’s reasoning.
[46] I consider that Mr Rakete’s behaviour, whilst unwise in respect of his driving, falls short of “intentionally” engaging in conduct or omitting to perform any legal duty as a parent, in relation to his child. The fact that the child was travelling with him in the vehicle was incidental to the 500 metre police pursuit. I uphold the defence
submission that the Judge did not correctly apply the test in s 195 of the Crimes Act
26 M (CA522/2016) v R [2017] NZCA 274 at [14].
27 JF, above n 16, at [39].
in this case, applying a lesser test of a departure from the standard of care expected of a reasonable person, rather than the major departure test as the authorities require.
[47] The major departure test reinforces the purpose of the legislation as discussed in the Law Commission’s report, which appears to be targeted at instances of gross neglect or abuse, rather than simply carelessness or careless parenting.28
[48] I find that the Judge has erred in finding the charge of ill-treatment or neglect of a child proved in the circumstances and a miscarriage of justice has occurred. The appeal is therefore allowed in part.
Sentence
[49] The Judge imposed concurrent sentences of nine months’ imprisonment on the
ill-treatment or neglect of a child charge and one month’s imprisonment on the charge of dangerous driving. In upholding the appeal against conviction for the ill-treatment of a child charge, the concurrent sentences of nine months’ imprisonment in total is manifestly excessive.
[50] The Crown, subsequent to the hearing, invited the Court to re-sentence
Mr Rakete on the dangerous driving charge, treating the presence of the child in the vehicle as an aggravating factor.
[51] I have given this request careful consideration but I consider the one month’s imprisonment and six months’ disqualification from driving for the dangerous driving charge, given the relatively short pursuit and distance, was adequate to mark society’s condemnation of such driving. Although the presence of the child in the car is more relevant to the assessment of dangerous driving, I do not consider that a further penalty, other than one month imprisonment and disqualification, should be imposed.
[52] At the time of hearing this appeal against conviction, Mr Rakete had already served his sentence in full.
28 Law Commission, above n 18, at [5.17].
Result
[53] The appeal is allowed in part. The conviction for ill-treatment or neglect of a child is quashed.
Cull J
Solicitors:
Public Defence Service
Elvidges
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