S v Police HC Rotorua Cri-2007-463-127

[2007] NZHC 1217

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2007-463-000127

S

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         7 November 2007

Appearances: Mr J P Temm for Appellant

Mr M Corlett for Crown

Judgment:      7 November 2007

(ORAL) JUDGMENT OF LANG J [on appeal against sentence]

Solicitors:

Mr J P Temm, Rotorua

Crown Solicitor, Rotorua

S V NZ POLICE HC ROT CRI-2007-463-000127  7 November 2007

[1]      Mr S   pleaded guilty in the District Court at Rotorua to one charge of careless driving causing death.   On 10 October 2007 Judge Munro imposed a fine of

$1000 upon him and ordered him to pay Court costs of $130.     In addition, she disqualified Mr S   from obtaining or holding a driver’s licence for a period of six months.

[2]      Mr S   now appeals to this Court against the sentence that was imposed upon him.    He contends that a fine of $1000 was manifestly excessive in all the circumstances, and that the Judge ought to have found that special reasons existed in relation to the offence that justified the Court in not imposing the otherwise mandatory period of disqualification.

Factual background

[3]      The  charge  against  Mr  S    followed  an  incident  that  occurred  on  the afternoon of Sunday 4 March 2007.    At approximately 4 pm on that afternoon Mr S   was driving home from a family gathering.     He was accompanied in his vehicle by his wife, his son, his daughter and his aunt.   His aunt was seated in the rear passenger seat on the driver’s side of the vehicle.    It appears that Mr S   reached  down  to  adjust  the  air-conditioning in  the  vehicle.      In  that  moment’s inadvertence Mr S   took his eyes off the road ahead.    His vehicle then crossed the road, travelled across the gravel on the other side of the road, onto the grass verge and eventually collided with a clay bank or berm.   This caused the vehicle to stop  violently.      Everybody  present  in  the  car  was  injured  to  some  degree. Tragically, Mr S  ’s 74-year-old aunt died at the scene of the accident.

Mitigating and aggravating factors

[4]      The  Judge  took  into  account  a  large  number  of  factors  that  operated  to mitigate Mr S  ’s offending.    First, at the age of 55 years he had no previous convictions of any sort.   As a result the Judge took into account the fact that he had been driving for a very long time with no convictions to his name.

[5]      Secondly, Mr S   had pleaded guilty at the earliest opportunity.     This demonstrated that he accepted responsibility for his offending and also saved the State the cost of a defended hearing.

[6]      Thirdly, the Judge had available to her a large amount of material in relation to Mr S   and his circumstances.    The pre-sentence report outlined in detail the devastating effect that this incident had had on Mr S  .   The report said:

The accident that led to Mr S   being charged with this offence has had a number of serious mental health consequences for him.   He is under both a psychiatrist and a psychologist for post-traumatic stress disorder which manifests itself kin both memory and speech problems.   He is also suffering from anxiety attacks and depression.

[7]      Mr S  ’s degree of grief and remorse for this offending was noted as being very high.    He was emotional when interviewed and obviously finds the weight a heavy burden.   He stated, “I live with the accident every second of the day and my auntie put her faith in me to drive her home and I failed that faith”.

[8]      The  Probation  Officer  rated  Mr  S    as  being  a  very  low  risk  of  re- offending.   In offering a recommendation as to sentence, the Probation Officer noted that it was doubtful that any sentence that the Court might impose would be greater than the burden of grief, remorse and guilt that Mr S   has taken on himself.   For that  reason  the  Probation  Officer  did  not  recommend  any  sentence  either  of  a punitive or rehabilitative nature beyond a conviction.    He noted, however, that if that was the wish of the Court Mr S   was in a position to pay a fine.

[9]      In addition to the pre-sentence report the Judge had available to her victim impact statements from the other occupants of the car, together with a number of references that testified to Mr S  ’s good character.    The other members of his family who were in the vehicle were united in their support for Mr S  , and also in their view that he should not suffer any further punishment as a result of the incident that had led to the death of his aunt.

[10]     There were no aggravating factors either in respect of the offending or in relation to Mr S   personally.

The Judge’s decision

[11]     The Judge commenced her sentencing remarks by stating that she found the case to be an extremely difficult sentencing exercise.   The difficulty arose from the fact  that  the  amount  of  fault  on  Mr  S  ’s  part  was  relatively minor,  but  the outcome was tragic.     She noted that she needed to have regard to the level of culpability  in  question,  but  that  she  was  also  obliged  to  bear  in  mind  the consequences of the offending.

[12]     The Judge noted the mitigating circumstances to which I have referred, and in particular to the devastating effects that this incident has had on Mr S  ’s life. She categorised Mr S  ’s conduct as careless driving at what could be described as the lower end of the scale with not a great deal of carelessness involved.   She also noted that there was a complete absence of any involvement with alcohol, excess speed or any form of dangerous driving.

[13]     The  Judge  then  turned  to  the  issue  of  the  mandatory  disqualification. Counsel for Mr S   had submitted that the circumstances of his offending were such that the Judge was entitled to find that special reasons relating to the offence that would justify the Court in not imposing the period of disqualification that it would otherwise be required to impose.

[14]     She noted that four matters were put forward in support of the submission that a period of disqualification should not be imposed.   These were the fact that his aunt  had  removed  her  seatbelt  and  worn  it  in  an  inappropriate  and  indeed, inoperative, manner in order to be able to travel more comfortably.    Secondly, Mr S  ’s counsel relied on the fact that there was no alcohol, speed or aggressive driving.   Thirdly, he submitted that no other independent third party or property was damaged or involved in the incident.   The fourth matter, although it is not referred to in the Judge’s sentencing remarks, was that no other person in the motor vehicle died as a result of the incident.

[15]     In dealing with the issue of the seatbelt, the Judge noted that she was in a position of difficulty.   The difficulty arose from the fact that she did not have any

medical or independent evidence before her as to the exact cause of death.   Neither did she have any evidence to persuade her that, because the seatbelt was not being worn properly, that factor may have contributed to the death of Mr S  ’s aunt.

[16]     In relation to the other matters raised by counsel the Judge pointed out that, if any of the other matters had in fact been present, it was likely that the charge would have been laid at a higher level.    In other words, those were not special reasons relating to the offence but rather aggravating factors that were not present.

[17]     In those circumstances, and notwithstanding the fact that the Judge obviously had some sympathy for Mr S  ’s position and the difficulties that disqualification would cause, the Judge concluded that there were no special reasons relating to the offence that would justify departing from the mandatory disqualification.

[18]     The Judge then turned to consider the penalty, if any, that should be imposed on Mr S  .   She noted the recommendation in the pre-sentence report to the effect that a conviction and discharge would be sufficient penalty.     Whilst the Judge accepted that the effect of the incident on Mr S   had been enormous, she took the view that a further penalty needed to be imposed.     She said that in her view a monetary penalty was necessary to make quite clear the message that the standard of care required on the roads is high.     As she pointed out, everybody can make a mistake but the cost of a mistake or inadvertence can be enormously high.    It was for that reason that the Judge elected to impose a fine of $1000 upon Mr S  .

Should the Judge have found that special reasons existed to justify not imposing a period of disqualification?

[19]     On  appeal,  Mr  Temm  advances  several  arguments  in  support  of  his submission that the Judge erred in imposing a period of disqualification and a fine upon Mr S  .    First, he submits that the Judge did not deal adequately with the submission that the manner in which Mr S  ’s aunt had worn her seatbelt may well have contributed to her death.    Mr Temm pointed out that his written submissions made express reference to this fact and also emphasised that he had referred to it in his oral submissions at sentencing.

[20]     Mr Temm advised me that the Judge did not raise any questions in relation to this issue and that he had been surprised when, in her sentencing remarks, the Judge made reference to the fact that she did not have any medical or independent evidence relating to the exact cause of death.

[21]     On this point it is clear that the Judge did regard this issue as a matter of some significance.    She noted that there had been a suggestion that if Mr S  ’s aunt had been wearing her seatbelt appropriately or correctly, she might not have died.   She noted that that submission must have been based on the fact that all other persons were wearing their seatbelts correctly and that they survived.

[22]     In advancing his submissions Mr Temm provided me with a copy of the report on the post mortem examination that was carried out on Mr S  ’s aunt at the Coroner’s direction.   The report confirms that bruising and abrasions were present over the lower pelvis and abdomen of the deceased.   These extended a considerable distance to just below the right breast.    At that point bruising that appears to be a seatbelt mark is visible.    The pathologist also noted that there was some stippled patterning to the abrasion just below the right breast.

[23]     I accept that all of these marks are consistent with a scenario in which the deceased had been wearing her seatbelt under her right shoulder and right arm, rather than over her right shoulder as it should have been worn.   Mr Temm also points out that the summary of facts was expressly amended at his request to record the fact that Mr S  ’s aunt had adjusted her seatbelt so that it was under her right arm and not across her right shoulder.

[24]     He submitted that the obvious inference to be drawn from these matters and from his submissions was that it is highly likely that the failure on the part of the aunt to wear her seatbelt correctly was a causative factor in her death.     This is because, had the deceased been correctly restrained, it is unlikely that she would have broken the ribs and suffered the injuries that led to her death.

[25]     Reading the submissions and the autopsy report as a whole, and even taking into account the summary of facts, I am not sure that it is clear overall that the failure

to wear the seatbelt correctly can definitively be said to have contributed to the death of the deceased.    As Mr Temm acknowledges, that issue may need to await the outcome of the inquest

[26]     I accept, however, that there is a realistic prospect that the failure by the aunt to wear her seatbelt properly may well have contributed to the causes of death.    I also accept Mr Temm’s submission that, if the Judge did believe that this was an issue of some importance, it was a matter that she could have raised during the hearing so that further submissions and, if necessary, evidence could be provided in relation to it.

[27]     The difficulty with the submission lies in the fact that, in my view, it would not have changed the ultimate outcome in the present case.   The real problem for Mr S   is that his inadvertence caused his motor vehicle to leave the road and thereby produced the necessary force that led to the death of his aunt.   Even if the failure to wear the seatbelt properly may have been a contributing cause, death would not have occurred had it not been for Mr S  ’s careless driving.

[28]     I do not consider, whether on its own or taken collectively with the other matters that Mr Temm raised, that this factor could amount to a special circumstance relating to the offence that would justify the Court in not imposing the minimum period of disqualification that the statute required.   For this reason I do not consider that any failure by the Judge to adequately take into account the effect of not wearing the seatbelt properly amounted to an error that should be corrected on appeal by this Court.

[29]     I also agree with the observation by the Judge that the other factors raised by Mr Temm relate to aggravating factors that were not present.   They cannot amount to special reasons in relation to the offence that would justify not imposing the mandatory period of disqualification.

[30]     I am therefore satisfied that the appeal cannot succeed so far as it relates to the Judge’s finding that special reasons did not exist so as to justify her not imposing a period of disqualification.

Was the imposition of a fine of $1000 a sentence that was manifestly excessive?

[31]     Mr  Temm  advances  similar  reasons  in  support  of  his  argument  that  the penalty that the Judge imposed, namely a fine of $1000, was manifestly excessive in all the circumstances.   He submits that when all of the mitigating factors are taken into account, as well as the recommendation in the pre-sentence report, a realistic outcome would have been for Mr S   to have been convicted and discharged.   He contends that no realistic purpose, whether by deterrence or otherwise, will be served by the imposition of a fine and that the Judge ought to have followed the recommendation contained in the pre-sentence report.

[32]     It  is  clear  from  the  Judge’s  sentencing  remarks  that  she  approached  the question of penalty from the perspective of the need to deter other people generally from  engaging in  conduct  that  amounted  to  careless  driving.      She  said  that  a monetary penalty was necessary in this case to make quite clear the message that the standard of care required on the roads is high.   I am satisfied that matters such as the issue of the seatbelt did not influence the Judge in reaching her conclusion in relation to the penalty to be imposed on Mr S  .

[33]     The starting point is the penalty that the Court was entitled to impose on Mr S  .   The maximum penalty on a charge of careless driving causing death is three months imprisonment and/or a fine not exceeding $4500.    Every case involving a charge of careless driving causing death will obviously be unique.   Each involves a unique set of circumstances that is unlikely to be replicated in another case.   For this reason, at one end the Court may convict and discharge an offender whilst at the other end, an offender can expect to receive either a short sentence of imprisonment or a lengthy sentence of community work.

[34]     The issue that I am required to decide is whether it can properly be said that a fine of $1000 was manifestly excessive in all the circumstances.   Viewing the matter overall, and without in any way detracting from the mitigating factors that Mr S   could call in aid, I cannot say that this is the case.    It was, of course, open to the Judge to follow the recommendation in the pre-sentence report and to convict and discharge Mr S  .    Equally, however, it was open to her to reach the view that

principles of general deterrence required a monetary penalty to be imposed.    The purpose of such a penalty, as the Judge said, was to indicate to other motorists that a high standard of care is required on our roads.   The fine that the Judge selected was towards the lower end of that which was available to her.     I consider that that reflected the fact that there were numerous mitigating factors.

[35]     For these reasons  I do not consider that it is open to me to disturb the sentence that the Judge imposed.   Although Mr S   may feel aggrieved at the fact that he has received a monetary penalty as well as a conviction, he must understand that there are wider principles at play in situations such as this.

[36]     For these reasons the appeal cannot succeed and is dismissed.

Lang J