T v Police HC Auckland CRI 2010-404-276

[2010] NZHC 2017

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2010-404-276

T

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         15 November 2010

Counsel:         M Harte for Appellant

R Savage for Respondent

Judgment:      15 November 2010

JUDGMENT OF RONALD YOUNG J (Appeal against sentence)

Introduction

[1]      Mr T   was a Transport Auckland Corporation bus driver in July 2009.  On the 21st of that month he was driving north on Penrose Road, Mt Wellington.  As he approached the lights at Barrock Road they changed to red. At the same time a young girl, 16 years of age, stepped onto the crossing at the intersection as the pedestrian “green man” signal allowed her to.  Mr T   did not stop for the red light. The bus went through the intersection and hit the young girl.  She suffered serious

injuries.

T V NEW ZEALAND POLICE HC AK CRI 2010-404-276  15 November 2010

[2]      In the District Court the Judge sentenced the appellant to four months’ community  detention,  200 hours  community  work,  reparation  of  $4,000  and disqualified him from driving for nine months.

[3]      The appellant says the sentence was manifestly excessive because:

a)       once the  charge was amended from dangerous driving to  careless driving causing injury he pleaded guilty at the earliest opportunity but that was not reflected in any discount for his guilty plea;

b)        the degree of carelessness was at the lower end;

c)        a fine of $500 should have been ordered instead of reparation;

d)       the sentence of community detention was unnecessary.

[4]      The appellant was sentenced almost a year after the accident occurred.  The Judge at sentencing took into account the circumstances of the accident and the fact that the appellant had two previous convictions for careless driving, one in 1985 and one in 2007.  He stressed the importance of those driving public transport vehicles to take the greatest care.   He considered failing to stop at a red light was a serious failure.

[5]      The Judge said that community detention, which had been recommended by the probation officer, was appropriate together with community work.  He assessed the emotional harm at $4,000 taking into account that it was difficult to work out the physical loss which had occurred.

Discussion

[6]      This was a bad case of careless driving causing injury.  I agree with the Judge in the District Court that those driving public transport vehicles have a special need to keep a look out and take care although I do not intend to suggest by this that there is a special category of drivers which must achieve a higher level of care than others.

All depends upon the circumstances.  The need to take care arises from the fact that public transport vehicles are often large.   It can be difficult for drivers to see adequately and because they are large when they strike a person or another vehicle significantly damage is likely to be done.

[7]      To fail to stop for a red light is a serious failure.  The reason is illustrated in the facts of this case.  Pedestrians are entitled to assume that vehicles will obey the direction from lights.  Pedestrians therefore place themselves in physical danger by crossing the road but do so on the appropriate assumption that motor vehicles will obey the direction of the lights.  However I accept in this case the failure arose from a moments inattention.

[8]      I now turn to victim impact.  It is clear that the injuries caused here were very serious.  As the victim described she had the following:

a)        traumatic brain injury weighted as severe;

b)        bleeding and swelling to the area around the brain;

c)        multiple fractures of her face including cheek bone, nose and jaw;

d)       partial loss of hearing in her left ear; and

e)        bruising and scratching throughout her body.

[9]      As a result for three weeks she had injections to her stomach to avoid blood clots from lying in bed.  She was in a coma for ten days after the crash.  She had metal plates inserted in her jaw and wires in her mouth for one to two months.  She has also had long term emotional effect.   She said she now gets angry over the slightest thing and finds it difficult to cope emotionally.   She has gone through rehabilitation at a rehabilitation centre and was still receiving rehabilitation at home when the accused was sentenced.

[10]     The family has suffered significant financially.  The direct loss arising from the accident was approximately $1,500.  The family had to take significant time off work to look after their daughter and have suffered a significant loss of wages into the many thousands of dollars.

[11]     The pre-sentence report described the appellant as remorseful and taking full responsibility for his behaviour.  It is clear he is remorseful.

[12]     The Judge in sentencing did not nominate a starting point or give an express discount for the guilty plea.  I accept that it is relatively uncommon to do so in the District Court for non-imprisonable offences.   What is clear, however, is that the Judge did take into account the appellant’s guilty plea immediately after the charge was reduced from dangerous to careless driving.

[13]     The key question is, however, whether the sentence at the end was manifestly excessive.  I am satisfied it was.

[14]     The reparation order was more than justified.   The loss to the family is thousands of dollars more than the reparation paid.   By itself however a financial penalty of $4,000 will be a particular burden to the appellant who has very limited financial resources.  There had to be a punitive element in the sentencing given the factors  I  have  mentioned  above.     A  substantial  period  of  community  work sufficiently fitted that requirement.  To then impose a further penalty of community detention on top of the community work and reparation I consider turned a proper sentence into a manifestly excessive penalty.   For two broadly similar cases see Bateman v Police Auckland High Court AP 169/97, 25 August 1997 Cartwright J, Ramsay      v      Police      Christchurch      High      Court      CRI 2008-476-000023,

10 September 2008, French J.

[15]     For  the  reasons  given  the  appeal  will  be  allowed  and  the  sentence  of community  detention  quashed.  Otherwise  the  sentences  of  community  work,

reparation and disqualification remain unaffected.

Ronald Young J

Solicitors:

M Harte, Barrister, PO Box 105 720, Auckland
R Savage, Meredith Connell, PO Box 2213, Auckland