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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Sidhu v Police and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2019] NZHC 1168
Decision Date: 27 May 2019

CaseChat Overview and Summary

Avtar Singh Sidhu appealed against the sentence imposed on him by the Manukau District Court for careless driving causing death. The incident occurred when Mr. Sidhu crossed the center line and collided head-on with a Mitsubishi van, resulting in the death of the van's driver, Mr. Zachary Duncan. Sidhu pleaded guilty to the charge, which carries a maximum penalty of three months' imprisonment, a fine not exceeding $4,500, and a mandatory disqualification from holding or obtaining a driver’s licence for at least six months. The court needed to determine whether there was a material error in the sentence that warranted a different sentence under s 250 of the Criminal Procedure Act 2011. The appeal hinged on whether the sentence was within the available range, considering the circumstances and Sidhu's culpability as a professional driver.

The primary legal issue was whether the sentence imposed by the District Court was within the range available to the judge and whether there was a material error in the sentence. Sidhu argued that the sentence was manifestly excessive, particularly the imposition of community detention and the period of license disqualification. He contended that his culpability should not be greater due to his status as a professional driver and that he deserved greater discounts for significant mitigating factors such as remorse, an emotional harm payment, good character, completion of a defensive driving course, and an early guilty plea. The Crown argued that Sidhu's culpability was higher due to his professional status and that the sentence was consistent with case law, particularly in cases like Hodgins v Police, where a comparable sentence was imposed for similar offenses.

The court found that Sidhu’s culpability as a professional driver was indeed greater than that of a non-professional driver for the same actions. Sidhu’s crossing of the center line, which was more than momentary inattention, made his culpability relatively high. The sentence, though stern, was not out of line with other relevant cases. The court considered the discounts made for mitigating factors and concluded that the sentence was within the range available to the District Court judge. Therefore, the appeal was dismissed, and the original sentence was upheld as appropriate and within the permissible range.

Orders