Sidhu v Police

[2019] NZHC 1168

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2019-404-124

[2019] NZHC 1168

BETWEEN

AVTAR SINGH SIDHU

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	27 May 2019
Appearances:	A P Comeskey for the Appellant J E Bragg for the Respondent
Judgment:	27 May 2019

ORAL JUDGMENT OF PALMER J

Solicitors:           Crown Solicitor, Auckland Counsel:  A P Comeskey, Auckland

SIDHU v POLICE [2019] NZHC 1168 [27 May 2019]

What happened?

[1]                  On the morning of 13 February 2018, Mr Avtar Sidhu was driving a light truck north along the Cape Hill Road in Pukekohe when he approached a moderate bend in the road. He saw a Mitsubishi van coming in the opposite direction but subsequently told the Police he thought it was on the wrong side of the road. If so, he was wrong. He crossed the centre line and collided head on with the van. The driver of the van, Mr Zachary Duncan, died from his injuries.

[2]                  Mr Sidhu pleaded guilty to careless driving causing death on a second appearance. The maximum penalty is three months’ imprisonment or a fine not exceeding $4,500 and disqualification from holding or obtaining a driver’s licence for at least six months is required.1

[3]                  On 15 March 2019, in the Manukau District Court, Judge G T Winter found the accident was unnecessary and completely avoidable, caused by Mr Sidhu’s “misjudgement, inattention and then last-minute failure to take appropriate evasive action”.2 He noted Mr Sidhu was a professional driver, holding class 3, 4 and 5 heavy traffic and professional licences and stated the licences are a privilege beyond that of the ordinary motorist and accordingly his driving skill and prudence must be of a higher standard.3 He found Mr Sidhu’s culpability was moderate to high although in an earlier decision on discharge without conviction he described it as being of “moderate” gravity.4 He set a starting point of 360 hours’ community work, made deductions for his overall otherwise good character and remorse, his early guilty plea and cooperation, resulting in 250 hours. He also sentenced Mr Sidhu to a “moderate period” of three months’ community detention, ordered him to pay $10,000 for emotional harm and disqualified him from holding a driver’s licence for 14 months. Mr Sidhu appeals the sentence.

1      Land Transport Act 1998, s 38(2).

2      New Zealand Police v Sidhu [2019] NZDC 4798 at [8].

3      At [19]-[20].

4      At [25] and New Zealand Police v Sidhu [2018] NZDC 24614.

Law

[4]                  Under s 250 of the Criminal Procedure Act 2011, I must allow the appeal if I am satisfied there is a material error in the sentence and a different sentence should be imposed. Otherwise the appeal must be dismissed. My focus is on whether the end sentence is within the available range.

[5]                  In Bassett v New Zealand Police, a driver of a ute fell asleep at the wheel after seven to 10 unheeded warnings, crossed the centre line and killed another driver.5 His sentence of 300 hours’ community work, 12 months’ disqualification and $7,500 reparation was upheld on appeal. In Hodgins v Police, a driver of a long-haul transport truck turned left at a roundabout and struck and killed a cyclist in a high-vis vest he should have been able to see but he did not look.6 His sentence of three months’ community detention, 180 hours’ community work, $10,000 reparation for emotional harm and 12 months’ disqualification was upheld on appeal.

Submissions

[6]                  Mr Comeskey, for Mr Sidhu, submits the imposition of community detention and the period of licence disqualification means the sentence is manifestly excessive. He submits Mr Sidhu’s culpability should not be greater because he is a professional driver. He submits Mr Sidhu deserves a greater discount for significant mitigating factors of: extraordinary remorse; emotional harm payment; good character; completion of a defensive driving course; and an early guilty plea. He submits the offending here was less serious than that in Bassett and Hodgins but Mr Sidhu’s sentence was greater than each.

[7]                  Ms Bragg, for the Crown, submits that Mr Sidhu was more culpable as a professional driver. She acknowledges the imposition of community detention apparently as an uplift on community work “may be considered unusual”. But she submits the periods of community detention and disqualification are consistent with case law, particularly Hodgins, given the wide range of possible facts. She submits the range of disqualification periods in cases of this nature appears to be between nine

5      Bassett v New Zealand Police [2014] NZHC 2188.

6      Hodgins v New Zealand Police [2018] NZHC 1644.

and 18 months, so 14 months was well within the range available to the Judge even if it might be considered “stern”.7

Should the sentence be overturned?

[8]                  I agree with Judge Winter that the culpability of a professional truck driver may be greater than that of a non-professional driver for the same actions constituting careless driving causing death. A professional truck driver can be expected to have more experience and skill in avoiding being careless and the consequences of carelessness are greater with a large vehicle. These are reasons why larger vehicles have more rigorous licencing requirements. I also agree with Judge Winter that Mr Sidhu’s crossing of the centre-line into the opposing lane, whatever the reason, meant Mr Sidhu’s culpability was relatively high, which is how the Judge treated it if not how he described it. It was more than momentary inattention.

[9]                  The sentence is fairly described as stern. But I do not consider the sentence imposed was out of line with the other relevant cases.   As a professional driver,    Mr Sidhu’s offending can be considered more serious than in the Bassett case. It is comparable to that in Hodgins which attracted a comparable sentence. The discounts are reasonable. I do not consider Judge Winter erred in his sentencing. The sentence is not manifestly excessive and was within the range available to him. I would not impose a different sentence. I dismiss the appeal.

Palmer J

7      Barr v New Zealand Police HC Rotorua, CRI-2011-463-42, 28 November 2011 at [30].