Simon v Police - [2019] NZHC 2869

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2019-404-360

[2019] NZHC 2869

BETWEEN
DANIEL SIMON

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 4 November 2019

Counsel:

G Haydn for appellant D Becker for respondent

Judgment:

5 November 2019

JUDGMENT OF KATZ J

This judgment was delivered by me on 5 November 2019 at 4:00pm

Registrar/Deputy Registrar

Solicitors:Meredith Connell, Office of the Crown Solicitor, Auckland Public Defence Service, Auckland

SIMON v NEW ZEALAND POLICE [2019] NZHC 2869 [5 November 2019]

Introduction

[1] Mr Simon appeals against a sentence of 70 days’ imprisonment and 18 months’ disqualification from driving, imposed by Judge Jelas in the District Court,1 on a charge of driving a vehicle carelessly and thereby causing the death of another person.2

[2] Although the maximum penalty available for careless driving causing death, the sentence most commonly imposed appears to be community work (sometimes combined with reparation). Disqualification for a period of at least six months is also mandatory. A community-based sentence was not available in this case, however, because Mr Simon was in prison on another matter at the time of sentencing. Judge Jelas accordingly imposed a sentence of 70 days’ imprisonment, to be served cumulatively on the sentence of imprisonment Mr Simon is currently serving. He was also disqualified from driving for 18 months.

[3] Mr Haydn submitted, on behalf of Mr Simon, that the Judge erred when imposing sentence in the following key respects:

(a)setting a sentence starting point that was too high, as a result of:

(i)incorrectly assessing Ms Simon’s level of carelessness as high;

(ii)failing to take into account that the victim’s failure to wear a seatbelt likely contributed to the tragic consequences; and

(b)imposing a period of disqualification that is “out of range”.

The offending

[4] At about 4:00 pm on Tuesday 11 September 2018, Mr Simon was driving his Lexus vehicle northbound on Waitakere Road. At the same time, the victim, Susan Kloet, was driving her Suzuki vehicle southbound on Waitakere Road.

1 Police v Simon [2019] NZDC 13897.
2 Land Transport Act 1998, s 38

[5] Waitakere Road is sealed and has a posted speed limit of 80 km/h. The weather was fine, the road was dry and both vehicles were travelling within the speed limit. Mr Simon attempted to negotiate an easy to moderate left hand turn. As he did so, his vehicle crossed the centreline by a distance of between 1.3 to 1.5 metres, entering the southbound lane. As his vehicle crossed into the southbound lane it collided head on with the victim’s vehicle. The victim suffered severe head injuries and died as a result.

[6] Mr Simon has no memory of the accident. He originally pleaded not guilty to the charge of careless driving causing death. However, after he reviewed the accident investigator’s report, he accepted that he was the driver at fault and changed his plea to guilty. Mr Simon was not under the influence of drugs or alcohol…

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.

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Details

Case: [2019] NZHC 2869
Decision Date: 5 November 2019

CaseChat Overview and Summary

In the High Court of New Zealand, Daniel Simon appeals against a sentence of 70 days’ imprisonment and 18 months’ disqualification from driving, imposed by Judge Jelas in the District Court, on a charge of driving a vehicle carelessly and thereby causing the death of another person. Simon argues that the sentence is excessive in two respects: first, the starting point for the sentence of imprisonment was too high, and second, the period of disqualification is "out of range". The appeal hinges on whether the District Court correctly assessed Simon's level of carelessness, and whether the period of disqualification imposed was appropriate.

The court first considered whether the sentence of imprisonment was manifestly excessive. The court compared Simon’s case with several other cases where the appellant had caused the death of another person while driving carelessly. The court found that Simon’s level of carelessness was in the low to moderate range, and not at the most serious end of the spectrum. The court assessed Simon’s culpability relative to the other cases and concluded that the appropriate starting point was 50 days’ imprisonment, reduced to 40 days’ imprisonment after applying the 20 per cent guilty plea discount. The court held that the sentence of 70 days’ imprisonment was manifestly excessive.

Secondly, the court examined whether the period of disqualification was manifestly excessive. The court noted that Simon did not have a history of careless or dangerous driving. The court found that Simon’s culpability was in the same broad range as the offenders in the other cases, and that a period of 18 months’ disqualification was outside the range available to the sentencing judge. The court proposed to replace it with a period of 12 months’ disqualification.

The appeal was allowed. The sentence of 70 days’ imprisonment imposed in the District Court was quashed and a sentence of 40 days’ imprisonment substituted. The period of 18 months’ disqualification was quashed and a period of 12 months’ disqualification substituted. The District Court’s remission of fines and the substitution of five days imprisonment in lieu remained in force.

Orders