Simon v Police
[2019] NZHC 2869
•5 November 2019
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 at the time of the crash. Nor does Mr Simon have a history of driving offences. He has only one prior driving conviction, being a historic conviction for operating a motor vehicle with excess breath alcohol in 2008.
District Court decision
[7] The Judge acknowledged that the victim’s family have been profoundly impacted by the loss of their beloved wife and mother.
[8] The Judge noted Mr Simon’s willingness to engage in restorative justice with the victim’s family, albeit that had not taken place prior to sentencing. (I was informed that the logistics of arranging a restorative justice process ultimately proved too difficult, because Mr Simon is based at Ngawha Prison, in Northland).
[9] Three months imprisonment is the maximum sentence available for careless driving causing death. In adopting that as her starting point,3 the Judge said that she considered Mr Simon to have displayed significant driver error when crossing the centreline. The Judge acknowledged that the reason Mr Simon crossed the centreline was not known to the Court. She said, however, that driving a vehicle on the correct side of the road is a fundamental requirement for any road user, and crossing the centreline is therefore indicative of a high level of carelessness.4
3 Police v Simon [2019] NZDC 13897 at [21].
4 At [19].
[10] The Judge gave Mr Simon a discount of approximately 20 per cent for his guilty plea, acknowledging that he entered that plea as soon as he had all information available to him so that he was able to be properly advised by counsel.5 The end sentence reached was one of 70 days’ imprisonment, which the Judge imposed cumulatively on the period Mr Simon was already for serving for unrelated offending.6 The Judge did not think that any adjustment was necessary having regard to the totality principle.7
[11] The Judge also ordered that Mr Simon be disqualified from driving for a period of 18 months, commencing on his release from prison.8
[12] The Judge remitted a small sum in fines outstanding by Mr Simon and in lieu imposed five days’ imprisonment to be served concurrently.9 She noted that he owed
$590 in outstanding reparations but directed the Registrar to make inquiries under s 38A of the Sentencing Act 2002, as he did not appear to have the ability to pay.10
[13] Mr Haydn, on behalf of Mr Simon, submitted that both the sentence of imprisonment imposed and the period of disqualification were manifestly excessive. I will address each issue in turn.
Was the sentence of imprisonment manifestly excessive?
Previous case law
[14] Mr Haydn relied on four prior decisions of the High Court where the appellant, having operated a vehicle carelessly, had caused the death of either passengers in their own vehicle, passengers in another vehicle, or a pedestrian:
(a)In Eades v Police11 Mr Eades had travelled to New Zealand from the UK to visit his dying mother two days prior to the accident and was suffering from jetlag. When driving home from the hospital after
5 At [22]–[23].
6 At [23]–[24].
7 At [25].
8 At [26].
9 At [27].
10 At [28].
11 Eades v Police HC Christchurch CRI-2009-409-135, 3 December 2009.
visiting his mother, Mr Eades realised that he was fatigued. He decided to continue driving, however, as he was only 1.5 kilometres from his destination. He fell asleep at the wheel and collided with a lamp post. His three passengers (Mr Eades’ wife, cousin, and granddaughter) died as a result of the impact. Pankhurst J, holding that his carelessness was at the lower end of the spectrum, substituted the sentence of 150 hours’ community service imposed in the District Court with a period of 60 hours. He upheld the disqualification from driving for 12 months.12
(b)In Barr v Police13 Ms Barr had driven her vehicle out of her driveway onto State Highway 30, moving into the path of an oncoming motorcyclist, who collided with her vehicle and subsequently died from his injuries. On appeal, Asher J held that the District Court Judge had been harsh in assessing Ms Barr’s carelessness as being at the upper end, noting that careless driving “encompasses more serious carelessness” than was exhibited by Ms Barr. He accepted, however, that she had made a serious error in failing to check for oncoming traffic with adequate care.14 It was too late to change the sentence of 220 hours’ community work,15 but his Honour noted that it was at the absolute top of the range, if not beyond it.16 A disqualification period of nine months was substituted for the two and a half years imposed in the District Court.17 An amount of reparation of $8,000 was upheld.18
(c)In Ramsay v Police19 Ms Ramsay had turned her head to wave to an acquaintance while approaching a pedestrian crossing. Ms Ramsay struck an elderly man crossing on his mobility scooter. He later died from his injuries. Justice French upheld a sentence of 200 hours’ community work20 and a reparation award of $3,000. The
12 At [13] –[14].
13 Barr v Police HC Rotorua CRI-2011-463-042, 29 November 2011.
14 At [21].
15 At [34].
16 At [33].
17 At [33]–[35].
18 At [33].
19 Ramsay v Police HC Timaru CRI-2008-476-023, 10 September 2008.
20 At [13].
disqualification period, however, was reduced from 15 months to 11 months on the basis that 15 months was manifestly excessive given the appellant’s level of culpability and her early guilty plea.21
(d)In Bassett v Police22 Mr Bassett fell asleep at the wheel. His vehicle crossed the centreline in a 100 km/h zone at a sweeping left turn and crashed into two oncoming cars. Road conditions were good. The driver of the second car was killed. A sentence of 300 hours’ community work, 12 months disqualification from driving and $7,500 in reparation was upheld on appeal. 23 Mr Bassett had been driving for some time while he was too tired, having drifted off the road several times prior, and having to then correct. Mr Bassett was found to have had consciously taken the unacceptable risk of continuing to drive while fatigued.24 Williams J assessed his carelessness as particularly serious,25 noting that he would have had approximately seven to 10 warnings that he was excessively fatigued.26
[15] Counsel for the respondent, Mr Becker, referred to one further case, Lee v Police.27 In that case, Mr Lee pleaded guilty to one charge of careless driving causing death, two charges of careless driving causing injury, and one charge of driving on a suspended licence. Mr Lee was travelling at between 80-100 km/h in a 70 km/h zone, in an unregistered and unwarranted car. When navigating a gentle corner Mr Lee crossed the centreline straight into oncoming traffic. He sideswiped one vehicle and then had a head on collision with another vehicle, which spun out of control and killed a pedestrian. Mr Lee paid reparation to the victims, was remorseful, had engaged in restorative justice and was aged only 22.28 In the District Court, Mr Lee’s culpability was assessed as high and two cumulative periods of nine weeks’ imprisonment were imposed for careless driving and driving while suspended, resulting in a total end sentence of 18 weeks’ imprisonment. Leave to apply for home
21 At [16]–[17].
22 Bassett v Police [2014] NZHC 2188.
23 At [40].
24 At [31].
25 At [36].
26 At [35] and [36].
27 Lee v Police HC Hamilton CRI-2006-419-62, 11 May 2006.
28 At [10].
detention was granted. Disqualification from holding a licence for three and a half years was also imposed.
[16] On appeal, French J overturned the cumulative sentences and imposed them concurrently, effectively reducing the sentence to a period of nine weeks’ imprisonment (63 days), in order to achieve a fair outcome.29 The period of three and a half years’ disqualification was quashed as manifestly excessive and replaced with a period of two years’ disqualification.30
What is the level of Mr Simon’s culpability?
[17] Most drivers, at some stage during their lives, will experience moments of distraction, inattention or carelessness while driving. In the vast majority of such cases there will be no adverse consequences. In a few rare cases, however, the consequences of momentary driver carelessness can be catastrophic, including the death of innocent third parties. Because of these factors, cases involving careless driving causing death are some of the most difficult sentencing decisions to come before the Court.31 As Williams J observed in Bassett v Police, sentences in these types of cases will often be seen by victims as hopelessly inadequate at recognising the damage caused, while the offender will often see them as greatly overstating his or her actual culpability.32
[18] For the Crown, Mr Becker accepted that the term of imprisonment imposed was at the upper end of the available sentencing range. He submitted, however, that it was within range. He submitted that Mr Simon’s level of carelessness must be assessed as high, given that the road conditions were good, but Mr Simon nevertheless crossed over the centreline by a significant margin (1.3 to 1.5 metres).
[19] The Judge adopted the maximum starting point for Mr Simon’s sentence suggesting that, in her view, his offending was within the most serious category of careless driving causing death cases.33 In my view, however, such an approach
29 At [22] and [25].
30 At [24] and [26].
31 See Bassett v Police [2014] NZHC 2188 at [4].
32 At [5].
33 Section 8(d) of the Sentencing Act 2002 provides that the court must impose a penalty near to the maximum prescribed for the offence if the offending is near to the most serious of cases for which that penalty is prescribed, unless circumstances relating to the offender make that inappropriate.
significantly over-states Mr Simon’s level of carelessness. Relative to the other careless driving cases I have summarised above, I assess Mr Simon’s level of carelessness as being in the low to moderate range.
[20] While crossing the centreline is certainly indicative of carelessness, without more information as to why a vehicle crossed the centreline it is not possible to infer, from this fact alone, that a high degree of carelessness must have been involved. There may be incidents where a driver crosses the centreline while momentarily distracted by something as mundane as a crying child in the backseat or a dog running out from the side of the road. In other, more serious, cases a driver may cross the centreline while engaging in a prolonged course of texting, or after making a conscious decision to continue driving when extremely fatigued.
[21] Although the precise reasons for Mr Simon crossing the centreline will never be known, neither the summary of facts nor the accident investigation report support an inference that what occurred was anything more than a momentary lapse of attention. There is nothing to suggest that Mr Simon had made a conscious decision to drive while fatigued (as in Eades) or had engaged in a prolonged course of careless driving similar to that in Bassett. Nor was he speeding, suspended from driving, or driving an unregistered and unwarranted vehicle as the defendant was in Lee. He did not have a history of driving offences. There is nothing to suggest that Mr Simon’s culpability can properly be assessed as being within the most serious of careless driving cases. I assess his carelessness as being in the low to moderate range.
[22] I reject, however, Mr Haydn’s submission that Mr Simon’s culpability is reduced because it appears that the victim may not have been wearing a seatbelt. The respondent does not accept that it has been definitively established that the victim was definitely not wearing a seatbelt. Nor, Mr Becker submitted, is there any evidence that she would have survived the crash if she had been wearing a seatbelt (assuming that she was not). I put this issue to one side.
[23] Taking the various matters I have outlined into account, and having regard to the cases I have summarised above, it is my view that the appropriate starting point is 50 days’ imprisonment. Applying the 20 per cent guilty plea discount afforded by the
Judge (which the appellant did not challenge on appeal) reduces the sentence to 40 days’ imprisonment.
Was the period of disqualification manifestly excessive?
[24] The Crown submitted that the period of disqualification was at the very upper end of the range of appropriate disqualification periods, but not outside of range. I accept Mr Haydn’s submission, however, that the period of disqualification was out of range.
[25] Mr Simon does not have a history of careless or dangerous driving. His only previous driving conviction is for operating a motor vehicle with excess breath alcohol in 2008, more than ten years ago.
[26] In my view, Mr Simon’s culpability is in the same broad range the offenders in Eades, Barr, and Ramsay. In none of those cases was a period of disqualification greater than 12 months imposed. Indeed, even in Bassett, which involved a materially higher degree of culpability, the disqualification period imposed was only 12 months.
[27] I consider that in light of my reassessment of Mr Simon’s level of carelessness as low to moderate, a period of 18 months’ disqualification is outside the range available to the sentencing judge on the authorities cited to me. I propose to replace it with a period of 12 months’ disqualification.
Result
[28] The appeal is allowed. The sentence of 70 days’ imprisonment imposed in the District Court is quashed and a sentence of 40 days’ imprisonment substituted. The period of 18 months’ disqualification is 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 (as set out at [27] of the District Court decision) remains in force.
Katz J