Roberts v Police
[2013] NZHC 2233
•29 August 2013
IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY
CRI-2013-412-000015 [2013] NZHC 2233
CAMERON ZANE ROBERTS
v
NEW ZEALAND POLICE
Hearing: 29 August 2013 Counsel:
S C Blake for Appellant
R D Smith for the CrownJudgment:
29 August 2013
JUDGMENT OF PANCKHURST J
[1] This tragic case is another example of the prevalent problem of young men living in a rural environment who drive irresponsibly after drinking with the result that one has lost his life.
[2] The appellant, Cameron Roberts, faced a charge of dangerous driving causing death. In May 2013 he was sentenced to two years and eight months imprisonment. He appeals against that sentence on the basis that it is clearly excessive and that a lesser term should have been arrived at as the end sentence, which would have opened the door for a community based response.
[3] To my mind, the main focus of the appeal has been upon the starting point adopted by Judge Crosbie of four and a half years imprisonment, before he made a
40 percent reduction for a guilty plea and personal mitigating factors to arrive at the
end sentence of two years and eight months.
ROBERTS v NEW ZEALAND POLICE [2013] NZHC 2233 [29 August 2013]
[4] Invariably, the facts are of crucial importance in cases such as this. On Monday 5 March 2012, the appellant and two friends went to the Ranfurly Hotel at about 6.15 pm. One of the friends was about to depart for the United Kingdom and they were to have farewell drinks together. They did this for a time and then left the hotel, purchased petrol and also something to eat. The three then picked up Mr Cobie Stringer, a young man aged 20 years. They then went to the Patearoa Tavern arriving there at about 8.30 in the evening. En route to the tavern they passed another motorist who observed that the appellant was driving in excess of the 100 kilometres per hour speed limit. At the tavern they were joined by two further friends. The group of six remained together at the tavern until about 11.30 pm. The two who had joined the group at a later stage left first, driving separately and towards Ranfurly.
[5] Mr Roberts, the appellant drove his vehicle with the three passengers, Mr Stringer being in the back seat. Initially the front seat passenger did not have his seatbelt on. However, during the course of the journey he became uncomfortable as a result of the course of driving and he fastened his seatbelt. The appellant’s vehicle failed to take a moderate bend. It went on to the wrong side of the road, off the road and into a ditch. It then slid for approximately 50 metres before it became airborne, barrel rolled a number of times and came to rest having travelled a further 64 metres.
[6] Mr Stringer was the only one not wearing a seatbelt. He was ejected from the vehicle at an early stage in its slide or as it became airborne. He sustained skull and brain injuries which proved fatal. He could not be revived at the scene. By contrast, the other passengers escaped with relatively minor injuries. The appellant, however, was taken to Dunedin hospital by ambulance. At 5.00 am in the morning a blood sample was taken and a subsequent analysis revealed that an alcohol concentration of 68 milligrams per 100 millilitres of blood. Using the conventional extrapolation test it was estimated that his alcohol reading was likely between 126 and 179 at the time of the accident, some several hours earlier.
[7] Likewise, a serious crash analyst considered the evidence available in relation to the crash itself and concluded that the speed of the car at the time of the incident was probably of the order of 126 to 132 kilometres per hour.
[8] The appellant was interviewed some time after the event. He acknowledged that he had consumed perhaps two and a half large bottles of beer, a whiskey and another whiskey obtained for a friend, who did not want to drink it. He was relatively frank at interview in acknowledging that he was trying to catch up to his friend’s car. To use his phrase, he was “going for it” and estimated his speed at the time as perhaps 120 kilometres per hour. He also noted that his car had a tendency to develop a steering problem, such that the steering became “heavy”.
[9] Mr Roberts, in March 2012 was 23 years of age, but 24 at the time he appeared for sentence. He was in employment as the manger of a dairy farm owned by his parents. The pre-sentence report contains this assessment:
I assess Mr Roberts as being at low risk of re-offending and low risk of harm to others based on his age at first conviction and willingness to accept responsibility. Poor judgment, a harmful pattern of alcohol use, immaturity, an unhelpful lifestyle balance and an inflated sense of self entitlement are what I consider to be the contributing factors to his current offending. It is considered it is unlikely that Mr Roberts will come before the Courts for this type of offending again. This is based on his complete lifestyle change over the last 12 months and his genuine expressions of remorse and guilt.
[10] The report writer made other pertinent observations including noting the appellant’s comments that at the relevant time he was in the habit of drinking regularly because he had “nothing else to do”. He had also said that it was not his habit at that time to think of the consequences of his actions. However, he had achieved something of a turnaround in the period between the death of his friend and the sentencing. He had self referred to an addictive service that provided treatment for alcohol abuse. He had joined the Young Farmers’ Association and become involved in its activities. In addition, there were signs of genuine anguish at his having caused the death of a friend, and significant remorse in relation to the impact upon Mr Stringer’s family. Money had been paid into a reparation account, the appellant said he was able to make further payments in the sum of $250 per week and he was also willing to participate in a restorative justice initiative. However, Mr Stringer’s family did not want reparation, nor were they in a state to participate in the restorative justice initiative.
[11] Judge Crosbie in detailed sentencing notes gave full consideration to the circumstances of the case. He found that the aggravating features included excessive speed, bad driving earlier that night, the consumption of alcohol and the concern evinced by the front seat passenger who fortunately fastened his seatbelt.
[12] The Crown had proposed a starting point for the offending of between three and a half to four and a half years, whereas Mr Blake, who appeared both in the District Court and in this Court, submitted that the range should be three to three and a half years. The Judge adopted the upper end of the Crown’s range, four and a half years. He then made a full allowance of 25 percent for the guilty plea which had been entered as soon as the charge was reformulated as one of dangerous driving causing death. He then indicated that personal mitigating factors were apparent, being the appellant’s age, the absence of previous convictions and remorse. In the round he allowed a 40 percent deduction from the four and a half year starting point, to arrive at the effective end sentence, two years and eight months.
[13] I note that at the time of the District Court sentencing the information available to the Court was that the appellant had no previous convictions. It has since emerged that he had one; namely a conviction in 2009 for causing intentional damage in relation to which he was ordered to pay significant reparation and undertake 400 hours of community work. For accuracy, I note the existence of that previous conviction. It is not, however, a significant factor in relation to my determination of the appeal.
[14] Mr Blake in support of the appeal canvassed a number of aspects of the sentencing decision. He challenged whether it was accurate to describe the appellant’s driving earlier that night as bad, since it involved nothing more than exceeding the open road limit. He expressed concern at the Judge’s reference to the appellant having incurred demerit points for speeding infringements on a number of previous occasions. My sense of the sentencing notes is that while this aspect was noted by the Judge, it did not play a significant part, other than in indicating the appellant’s attitude in relation to driving.
[15] The major thrust of counsel’s argument was directed to the starting point of four and a half years. Mr Blake submitted, after reference to a significant number of previous cases, that the available range was between three and three and a half years, at most. He also challenged the Judge’s 40 percent allowance. It could not of course be criticised for the reduction in relation to the guilty plea, but there was a basis for a greater allowance than 15 percent for other personal factors.
[16] Mr Blake stressed the turnaround achieved by the appellant as evidenced by the passage from the pre-sentence report to which I have already referred. And, he also relied upon what were termed humanitarian grounds. Unfortunately, shortly after the driving incident, both of the appellant’s parents were diagnosed with cancer and were undergoing aggressive treatment at the time of his sentencing in May 2013. Neither could attend the District Court hearing. They reside in Blenheim, while the appellant manages a farm property they own here in Otago. The argument was that their present medical problems, which are serious, particularly in relation to one of the parents, warranted recognition.
[17] In addition, Mr Blake drew attention to the fact that the deceased was the only person in the vehicle not to be wearing a seatbelt. This was something he could not stress in the District Court because of the delicacy of the then situation. He submitted that there was every indication that had Mr Stringer been wearing a seatbelt he, in common with the other three, would have survived the impact with probably only moderate injuries.
[18] Mr Smith did not accept that the starting point adopted was beyond the available range. By reference to Hall’s Sentencing notes1 on sentencing, he noted that prior to the increase in the maximum penalty for this offence, there was a discernible sentencing range of 18 months to three years for cases without significant aggravating or mitigating factors. This was an end sentence range, not a starting point range. This, it was suggested, indicated that following the increase in the maximum penalty end sentences could be expected to have increased and, of course,
so could starting points. Hence, counsel submitted that the adoption by the Judge of
1 Refer to APPVII.3.2(b) Sentencing Practice: Selected Offences Against the Land Transport Act
1998: “No Tariff”.
four and a half years was within range. Indeed, Mr Smith submitted that the range for this particular offence was between four and five years imprisonment, although he also characterised the Judge’s adoption as four and a half years as a starting point as “stern”.
[19] He accepted that the aggravating features were effectively three in number. There was consumption of alcohol, what he termed excessive speed, particularly given that this accident occurred at night, on a bend and in a vehicle where its owner was aware of a heavy steering issue. Thirdly, he described the appellant’s driving conduct throughout the night as “aggressive” and also consistent with his previous record in that regard.
[20] With reference to the seatbelt, Mr Smith doubted that it could be treated as a mitigating feature unless viewed as ‘conduct of a victim’ in terms of s 9(2)(c) of the Sentencing Act. However, he submitted that the subsection is not directed to an issue such as this, rather to active conduct per se. He submitted the Judge was right to note this aspect, but treat it at the end of the day as a neutral factor, since it was the fact of the loss of control and the accident which was most causative of the death. By contrast, it could not be said with assurance that the seatbelt would have saved the victim, although in my view there is a good chance that it would. I note that the Judge considered a duty rested upon the appellant to ensure that his passengers were wearing seatbelts, whereas it is acknowledged that there is no such legal duty in relation to persons over 14 years of age.
[21] Both counsel referred to two cases which are of relevance to the starting point. The first is the case of R v Teece,2 decided in the District Court at Nelson in February 2012 and therefore subsequent to the increase in the maximum penalty. In that case, a starting point of five years imprisonment was imposed for driving which I accept was rather worse than the driving in this case. The charge was dangerous driving causing death. On the basis of the reasoning in that case, Mr Blake submitted that four and a half years as a starting point in this case was beyond the available range. For my part, I have some concerns about the decision in Teece. It
seems to me that the assessment of the driving was generous, the more so because
2 R v Teece [2012] DCR 450 (DC).
the starting point is open to the criticism that it included an uplift for a previous appalling driving record, contrary to the approach ordained in R v Taueki.3 To my mind it is not an authority which is helpful in deciding this appeal.
[22] The other case is the decision of a divisional Court in Gacitua v R4, decided in June 2013. This case concerned reckless driving causing death, where again the driving was rather more reprehensible than in the present case. The Court considered the need for sentencing bands for this offence in light of the increase to the maximum penalty, but ultimately concluded that it was best left for consideration by the Permanent Court. Nonetheless, there are observations in the judgment which provide assistance. With reference to starting point, the Court approved that which had been adopted by the Judge in the High Court of five years and also adopted a range of four to five years as appropriate.
[23] To my mind, this case is by no means easy. In large measure I am in agreement with the submissions made by Mr Smith. I am not persuaded that the starting point adopted by the Judge of four and a half years was beyond the available range, although I agree that it was stern. The other main point in the appeal is whether the allowance of 40 percent for both the prompt plea of guilty, and personal mitigating factors, was sufficient in all the circumstances of the case. Again, I am not persuaded that the Judge erred in this regard, although there was certainly weight in Mr Blake’s submission that humanitarian grounds could have been factored in as a further aspect in relation to the personal credits.
[24] It follows that I am not persuaded that the end sentence of two years and eight months was clearly excessive and for the reasons I have endeavoured to
explain, the appeal is dismissed.
3 R v Taueki [2005] 3 NZLR 372 (CA).
4 Gacitua v R [2013] NZCA 234.
[25] I acknowledge the submissions that have been provided on both sides. They were well framed and have assisted me in deciding what was a difficult case.
Solicitors:
S C Blake, Takanini, Auckland
R D Smith, Dunedin
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