Skipper v R
[2017] NZCA 399
•5 September 2017 at 10.00 am
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA240/2017 [2017] NZCA 399 |
| BETWEEN | VALENCIA MARIE SKIPPER |
| AND | THE QUEEN |
| Hearing: | 31 August 2017 |
Court: | Miller, Courtney and Gendall JJ |
Counsel: | M F Laracy and W R Hawkins for Appellant |
Judgment: | 5 September 2017 at 10.00 am |
Reasons: | 13 September 2017 |
JUDGMENT OF THE COURT
AThe appeal against conviction is dismissed.
BThe appeal against sentence is allowed. We quash the sentence and remit the proceeding to the District Court under s 251(2)(c) of the Criminal Procedure Act 2011 for re-sentencing in accordance with our reasons. We direct that a home detention appendix be prepared. The appellant should be brought before the District Court as soon as possible to decide bail in the interim.
____________________________________________________________________
REASONS OF THE COURT
(Given by Miller J)
On 13 January 2016, the appellant was driving a relative’s car south on the Hawke’s Bay expressway. Her daughter Saphire, aged two, was seated in a child seat in the left rear of the vehicle, and her 11 year old sister was in the front passenger seat. It appears that the appellant had buckled Saphire into the seat but Saphire had undone the buckle during the journey.
The appellant lost control of the car, causing it to veer right across the centre line toward oncoming traffic. It left the road and struck a dirt bank. Saphire was thrown from the car and killed.
A drug test taken from the appellant showed that she had the Class A drug methamphetamine in her blood. She had smoked it the previous evening. The level was 0.01mg per litre of blood, which was described as lying at the lower end of recreational usage of the drug. She was not required to undergo impairment tests.
The appellant was an unlicensed driver, and two years earlier she had been prohibited from driving until she obtained a licence.
The appellant could offer no explanation for the crash. Nothing about the road or driving conditions contributed to it. A police report suggested that she may have been distracted by her daughter or something else in the car. An ESR report stated that methamphetamine adversely affects driving skills and recorded that recreational levels had been detected in 26 people involved in accidents or arrested for erratic driving, but it did not offer an opinion about the appellant’s fitness to drive.
The appellant could have been charged under two provisions of the Land Transport Act 1998 (the Act), s 61(1)(2)(b), or s 62(1)(b):
(a)Under s 61(2)(b) it is an offence for a person, while in charge of a motor vehicle, to cause death or bodily injury if their blood “contains evidence of the use of a controlled drug specified in Sch 1 of the Misuse of Drugs Act 1975”. Schedule 1 lists Class A drugs. The maximum penalty is five years’ imprisonment where bodily injury results, and 10 years’ imprisonment where death results.
(b)In contrast, s 62(1)(b) applies when a person carelessly drives a vehicle “in a manner that is not an offence under section 61”. It creates an offence to cause death or bodily injury by carelessly driving a motor vehicle if the driver’s blood “contains evidence of the use of a controlled drug specified in Sch 1 of the Misuse of Drugs Act 1975”. The maximum penalty is three years’ imprisonment where either bodily injury or death results.
The Crown chose to proceed under s 61(2)(b). The appellant did not dispute the facts, but she asserted that she ought to have been charged under s 62(1)(b). It is not in dispute that her driving was careless.
The District Court refused to decide this issue pre-trial, so the application was renewed at trial before a judge alone[1]. The facts were before the Court in an agreed statement, and there was no oral evidence. Judge Adeane was invited to exercise his discretion under s 133 of the Criminal Procedure Act 2011 (CPA) to amend the charging document by substituting the lesser offence. He declined to do so, and a conviction was entered under s 61(2)(b). He sentenced the appellant to two and a half years’ imprisonment, having taken a starting point of three years.[2]
[1]R v Skipper [2017] NZDC 5214.
[2]R v Skipper [2017] NZDC 7522.
This appeal challenges the Judge’s decision not to substitute the lesser charge, but it is in substance an appeal against sentence. It requires that we examine what counsel agree is an anomaly in the Act’s offence provisions, which permit both a maximum sentence of three years’ imprisonment for causing death by driving carelessly having used a Class A drug, and a maximum sentence of 10 years’ imprisonment for causing death while in charge of a vehicle having used the same drug, with the latter case also not having an additional requirement of driving fault, or impairment, or a minimum blood-drug level.
The Act
The provisions that concern us were inserted in a suite of amendments passed in 2009.[3] The first section of interest is s 11A, which inserted a duty not to drive under the influence of a qualifying drug, meaning any Class A, B or C drug in the Misuse of Drugs Act or one of a list of specified medicinal drugs:[4]
11APersons may not drive or attempt to drive while impaired and their blood contains evidence of use of qualifying drug
A person may not drive or attempt to drive a motor vehicle while—
(a) impaired; and
(b)that person’s blood contains evidence of the use of a qualifying drug.
[3]Land Transport Amendment Act 2009.
[4]See Land Transport Act 1998, s 2 definition of “qualifying drug”.
Part 6 of the Act creates driving offences involving drink or drugs. For example, s 56 makes it an offence to drive with more than a specified amount of alcohol in one’s breath or blood. Section 57A, part of the 2009 amendments, makes it an offence to drive if the person does not satisfactorily complete a compulsory impairment test and his or her blood contains evidence of the use of a qualifying drug:
57ADriving while impaired and with blood that contains evidence of use of qualifying drug
(1)A person who drives or attempts to drive a motor vehicle on a road commits an offence if—
(a)the person does not complete a compulsory impairment test in a manner satisfactory to an enforcement officer, who is trained to give the test, when required to do so by an enforcement officer under section 71A; and
(b)the person’s blood, as ascertained from an analysis of a blood specimen subsequently taken under section 72 or 73, contains evidence of the use of a qualifying drug.
…
Section 58 was amended in 2009, making it an offence to drive while under the influence of drink or drug so as to be incapable of proper control of the vehicle, or if the person’s blood contains evidence of the use of a class A drug:
58 Contravention of section 12
(1)A person commits an offence if the person drives or attempts to drive a motor vehicle on a road—
(a)while under the influence of drink or a drug, or both, to such an extent as to be incapable of having proper control of the vehicle; or
(b)if the person’s blood, as ascertained from an analysis of a blood specimen subsequently taken under section 73, contains evidence of the use of a controlled drug specified in Schedule 1 of the Misuse of Drugs Act 1975.
(1A) To avoid doubt, subsection (1)(b) does not limit subsection (1)(a).
…
It will be seen that for purposes of this offence, use of a class A drug is deemed equivalent to being so impaired by drink or drug as to be incapable of proper control. The maximum penalty is three months’ imprisonment (this is for a first or second offence, and we put fines to one side for purposes of this discussion).[5]
[5]Land Transport Act, s 58(2).
Section 61 creates offences of causing death or bodily injury while in charge of a vehicle:
61 Person in charge of motor vehicle causing injury or death
(1)A person commits an offence if the person is in charge of a motor vehicle and causes bodily injury to or the death of a person while—
(a)the proportion of alcohol in the breath of the person in charge, as ascertained by an evidential breath test subsequently undergone by that person under section 69, exceeds 400 micrograms of alcohol per litre of breath; or
(b)the proportion of alcohol in the blood of the person in charge, as ascertained from an analysis of a blood specimen subsequently taken from that person under section 72 or section 73, exceeds 80 milligrams of alcohol per 100 millilitres of blood.
(2)A person commits an offence if the person is in charge of a motor vehicle and causes bodily injury to, or the death of, a person—
(a)while under the influence of drink or a drug, or both, to such an extent as to be incapable of having proper control of the vehicle; or
(b)if the blood of the person in charge, as ascertained from an analysis of a blood specimen subsequently taken under section 73, contains evidence of the use of a controlled drug specified in Schedule 1 of the Misuse of Drugs Act 1975; or
(c) if—
(i)the person does not complete a compulsory impairment test in a manner satisfactory to an enforcement officer, who is trained to give the test, when required to do so by an enforcement officer under section 71A; and
(ii)the person’s blood, as ascertained from an analysis of a blood specimen subsequently taken under section 72 or 73, contains evidence of the use of a qualifying drug.
(2A)To avoid doubt, subsection (2) (b) or (2) (c) does not limit subsection (2)(a).
(3)If a person is convicted of an offence against subsection (1) or (2) that causes bodily injury to another person,—
(a)the maximum penalty is imprisonment for a term not exceeding 5 years or a fine not exceeding $20,000; and
(b)the court must order the person to be disqualified from holding or obtaining a driver licence for 1 year or more in the case of a first or second offence against this section or section 56(1) or (2), or section 58(1), or section 60(1).
(3AA)If a person is convicted of an offence against subsection (1) or (2) that causes the death of another person,—
(a)the maximum penalty is imprisonment for a term not exceeding 10 years or a fine not exceeding $20,000; and
(b)the court must order the person to be disqualified from holding or obtaining a driver licence for 1 year or more in the case of a first or second offence against this section or section 56(1) or (2), 58(1), or 60(1).
Subsection (2) was substituted, and subs (2A) inserted, as part of the 2009 amendments.[6] Previously the subsection simply stated what is now recorded in para (a): that it was an offence to cause death or bodily injury while in charge of a vehicle and intoxicated to an “incapable of having proper control of the vehicle” standard.[7]
[6]Land Transport Amendment Act, s 11.
[7]Section 11. Section 61(2)(c) created a new offence, but was added as part of a different set of amendments: Land Transport (Road Safety and Other Matters) Amendment Act 2011, s 27(1).
It will be seen that s 61 treats the act of causing death while in charge of a vehicle equivalently when it is done with an alcohol level exceeding prescribed limits, or while so affected by drink or drug as to be incapable of having proper control of the vehicle, or while the person’s blood “contains evidence of the use of” a Class A drug. Where death results the maximum penalty is 10 years’ imprisonment. Where bodily injury results it is five years’ imprisonment.
The headnote to s 62 is “causing injury or death in circumstances to which s 61 does not apply”. The section provides:
62Causing injury or death in circumstances to which section 61 does not apply
(1)A person commits an offence if the person causes bodily injury to or the death of a person by carelessly driving a motor vehicle (in a manner that is not an offence against section 61)—
(a) while under the influence of drink or a drug, or both; or
(b)if the blood of the person driving, as ascertained from an analysis of a blood specimen subsequently taken under section 73, contains evidence of the use of a controlled drug specified in Schedule 1 of the Misuse of Drugs Act 1975.
(1A) To avoid doubt, subsection (1)(b) does not limit subsection (1)(a).
(1B) A person commits an offence if—
(a)the person causes bodily injury to, or the death of, a person by driving or attempting to drive a motor vehicle; and
(b)the person does not complete a compulsory impairment test in a manner satisfactory to an enforcement officer, who is trained to give the test, when required to do so by an enforcement officer under section 71A; and
(c)the person’s blood, as ascertained from an analysis of a blood specimen subsequently taken under section 72 or 73, contains evidence of the use of a qualifying drug.
(2) If a person commits an offence against subsection (1) or (1B),—
(a)the maximum penalty is imprisonment for a term not exceeding 3 years or a fine not exceeding $10,000; and
(b)the court must order the person to be disqualified from holding or obtaining a driver licence for 1 year or more.
(3)The imposition of a mandatory disqualification under this section is subject to section 81.
Section 62(1) was substituted, and subs (1A) inserted, in the 2009 amendments.[8] Similarly to s 61(2), prior to the amendments s 62(1) simply recorded what is now recorded in para (a): that it was an offence to drive carelessly and cause death or bodily injury while under the influence of drink, drug or both (and with the same rider it applied only when s 61 did not). Subsection (1B) was also inserted at that time, and subs (2) was amended to include a reference to this new subsection.[9]
[8]Section 12(1).
[9]Section 12(2).
It will be seen that:
(a)The drafter has recognised that ss 61(2) and 62(1) overlap. That must be so, because a person who drives carelessly is also in charge of the vehicle and both sections address bodily injury or death caused while the offender was under the influence of drink or drug.
(b)The drafter intended that s 62(1) should address behaviour that would not also be an offence under s 61, and fixed a lesser maximum penalty (three years’ imprisonment) for it.
(c)Subsection 62(1)(a) reflects that policy. It applies where the driver was under the influence of drink or drug. There is a corresponding offence in s 61(2)(a), but it requires that the person be so affected as to be incapable of proper control of the vehicle.
(d)Section 62(1)(b) is however identical to s 61(2)(b). Both suggest that the legislature targeted offences committed while under the influence of Class A drugs.
It will also be seen that in s 62(1B) the legislature has created an offence of causing bodily injury or death by driving when the person’s blood contains evidence of the use of a qualifying drug. This offence is not confined to class A drugs, and it does not require driving fault or impairment. The maximum penalty — three years’ imprisonment — is the same as for the s 62(1)(b) offence.
As Ms Wong (who appeared for the Crown) pointed out, s 61 is not internally anomalous. Read alone, it indicates that Parliament regarded causing death while driving after use of a class A drug as a serious offence, equivalent to driving with excess alcohol or driving while incapable of control. The legislature has limited the offence to class A drugs, excluding other controlled or qualifying drugs, and it has chosen not to fix a blood-drug level above which the law presumes that the driver is impaired.
Consistent with that, the legislation evidences an intention to single out Class A drugs in other respects:
(a)s 61 also captures a person who causes bodily injury or death while their blood evidences use of a qualifying drug, but in that case the person must also fail an impairment test (s 61(2)(c)); and
(b)it is an offence for a person to drive while their blood contains evidence of a class A drug (s 58), but where a blood test discloses a qualifying drug the person must also fail an impairment test (s 57A).
But when ss 61 and 62 are read together the inference is irresistible that something is missing or redundant. Counsel could point to no circumstance in which an offence under s 62(1)(b) would not also be an offence under s 61(2)(b). Further, s 62(1B) captures causing death while driving (with or without fault) after use of any qualifying drug.
Ms Laracy (who appeared for the appellant) submitted that perhaps the legislature meant to require driving fault or impairment for the offence in s 61(2)(b). She argued that would be consistent with the other offences in that section; they require a high level of alcohol, incapability, or failure to complete an impairment test.[10] It is also broadly consistent with the subordinate status of s 62 in the offence provisions. An alternative possibility is that s 62(1)(b) is otiose and should be treated as redundant.
[10]Land Transport Act, ss 61(1), 61(2)(a) and 61(2)(c).
A court would require clear evidence of legislative purpose before reading additional words into these provisions or discarding one of them as an apparent mistake in the legislative scheme. Such specific purpose is not apparent in the legislation itself. It creates a hierarchy of offences, but the qualifying criteria do not allow us to draw any firm conclusions about the purpose of s 62(1)(b).
Counsel sought assistance in the legislative record, but on close examination it is uninformative. The specific amendments with which we are concerned appeared at a very late stage in the legislative process, and they are not mentioned in the Select Committee Report or the debates. We are unable to say what was Parliament’s purpose.
As we go on to explain below, this conclusion does not mean that s 62(1)(b) can be ignored. So long as it remains in its current form, it will have consequences for sentencings under s 61(2)(b).
Should the prosecutor have charged the lesser offence, or should the Judge have substituted it?
Ms Laracy properly disclaimed any suggestion that prosecutorial discretion was abused by opting for the more serious offence. The prosecutor cannot be faulted, because the legislation itself states that s 62 applies when s 61 does not. Her point rather was that the prosecutor might have charged the lesser offence, and should have done in the absence of evidence of impairment or serious driving fault. That being so, she suggested, the Court ought to have been willing to substitute the lesser charge in exercise of its power under s 133 of the CPA.
This is not the case in which to review existing authority on judicial control of prosecutorial discretion, or to take the opportunity presented by the enactment of s 133 to examine whether courts ought to change their approach to substituting charges. This is an unusual case, explicable by the language of the Land Transport Act. On existing authority, the Judge was not wrong to refuse the appellant’s application.[11]
The sentence appeal
[11]The general approach to prosecutorial discretion was discussed by this Court in Fox v Attorney‑General [2002] 3 NZLR 62 (CA) at [28]–[31], and the Supreme Court in Wilson v R [2015] NZSC 189, [2016] 1 NZLR 705 at [43]–[50].
As noted, Judge Adeane took a starting point of three years’ imprisonment and deducted six months, or a little more than 15 per cent, for mitigating factors. Three years would have been the maximum penalty had the appellant been charged under s 62(1)(b).
Driving fault is an element of the offence, but the prosecutor accepted that it was a neutral factor for sentencing purposes. As noted, a police report suggested that the appellant may have been distracted by the child.
The Judge inferred that the appellant was impaired by methamphetamine. Methamphetamine does impair driving ability, but as Ms Laracy submitted, it is not possible to infer that it did so on the facts of this case. The level of the drug in the appellant’s blood was low, at the bottom end of the recreational range. The ESR report did not support an inference that she was impaired; it established only that a correlation has been observed between methamphetamine use and bad driving. As noted, it was common ground that distraction is an available explanation for the appellant’s driving fault.
In these circumstances, we consider that the Judge ought to have been guided more closely than he was by the maximum penalty provided in s 62. That is so because the maximum penalty is a guide to the seriousness the community attaches to the proscribed behaviour, in this case careless driving causing death by a driver whose blood evidences methamphetamine use. Section 62(1)(b) accordingly limits the significance that can be attached to the maximum penalty in s 61(2)(b). The ten‑year maximum is a reliable guide where the offence is characterised by impairment, or serious driving fault, or other serious aggravating features. This is not such a case.
We have considered the authorities cited by counsel. We note that as this Court held in R v Gacitua, sentencing in this area is highly fact-specific.[12] That said, the authorities suggest that the sentence in this case was excessive. It lacks most of the aggravating features catalogued in R v Cookesley.[13] In much worse cases, featuring serious impairment, very bad driving or multiple victims, end sentences of about three to four years’ imprisonment have resulted.[14]
[12]R v Gacitua [2013] NZCA 234 at [22].
[13]R v Cookesley [2003] EWCA Crim 996, [2003] 3 All ER 40 at [15]; endorsed in R v Gacitua, above n 10, at [29].
[14]R v Gacitua, above n 10; R v Reynolds [2017] NZDC 6390; and R v Carter [2016] NZDC 3792.
In our opinion a starting point of two years’ imprisonment was appropriate, to reflect the appellant’s moderate culpability on the one hand and the grave consequence (death of a child) on the other.
Turning to personal circumstances, the appellant is an unlicensed driver and she had been prohibited from driving. This is a minor aggravating factor in the circumstances. The Crown does not allege that it contributed to the crash.
On the other side of the ledger, the allowance of 15 per cent for mitigating factors, principally the personal tragedy of losing her child, was not adequate. The Judge discounted remorse, noting that the appellant went to trial and stating that her drug use and unlicensed driving evidenced a sense of entitlement. However, it is not disputed that she went to trial only because the Court declined to deal with her
pre-trial application. The facts were not disputed at trial. She accepted throughout that she was guilty of careless driving with methamphetamine in her blood. She was also assessed by the probation officer as genuinely remorseful. Importantly, she had lost her child (which the Judge did recognise). She is pregnant. Although unlicensed she has no history of driving offences. We consider that an allowance of at least 30 per cent ought to have been made for these matters.For these reasons we are satisfied that the sentence imposed was manifestly excessive. A sentence of around 17 months’ imprisonment was appropriate.
The appellant would be eligible for an alternative sentence in that case, and we are told that she now has a suitable address. But we do not have before us the information we would need to assess the address or her own suitability for a community-based sentence. There are some indications that she may have difficulty complying with conditions of sentence, including prohibitions on drug use, and if so there may well be no alternative to imprisonment. Accordingly, we will remit the proceeding to the District Court for re-sentencing.
Result
The appeal against conviction is dismissed.
The appeal against sentence is allowed. We quash the sentence and remit the proceeding to the District Court under s 251(2)(c) of the CPA for re-sentencing in accordance with our reasons. We direct that a home detention appendix be prepared. The appellant should be brought before the District Court as soon as possible to decide bail in the interim.
Solicitors:
Crown Law Office, Wellington for Respondent
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