Tamehana v The Queen
[2019] NZHC 2850
•4 November 2019
IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE
CRI-2019-488-000027
[2019] NZHC 2850
BETWEEN RIMA TE OI TAMEHANA
Appellant
AND
THE QUEEN
Respondent
Hearing: 4 November 2019 Appearances:
C S Cull for Appellant
J M M Johnson-Aufa’i for Respondent
Judgment:
4 November 2019
(ORAL) JUDGMENT OF LANG J
[on appeal against sentence]
TAMEHANA v R [2019] NZHC 2850 [4 November 2019]
[1] Mr Tamehana pleaded guilty in the District Court to six charges of reckless driving causing injury,1 and one charge of failing to ascertain whether a person had been injured following a motor vehicle accident.2 On 19 August 2019, Judge G L Davis sentenced Mr Tamehana to two years imprisonment.3
[2] Mr Tamehana appeals against sentence solely on the ground that the Judge ought to have imposed a sentence of home detention rather than imprisonment.
Background
[3] The factual basis on which the Judge sentenced Mr Tamehana was contained in a summary of facts that Mr Tamehana accepted for the purposes of sentence. This recorded that on the Sunday of Labour weekend in 2018, Mr Tamehana was attending an unveiling in Moerewa with other members of his whanau. Late in the afternoon he began driving a BMW motor vehicle his uncle had borrowed from a friend in Auckland. He and his uncle and a 21 year old associate then drove to a farm to pick up a pig. On the way back, they stopped at a liquor store. It appears that the liquor store was shut.
[4] The summary records that Mr Tamehana then drove back to Moerewa. After passing an area known as the Three Bridges he accelerated well past the posted speed limits of 80 and 100 kilometres per hour, overtaking other vehicles as he did so without slowing down. His uncle was seated in the front seat of the vehicle and his associate noticed that it was travelling at about 200 kilometres per hour as they passed the Moerewa Freezing Works.
[5] Mr Tamehana continued to drive in a northerly direction into the Moerewa township. As he went through the township he was still travelling at speeds well in excess of the posted speed limit of 50 kilometres per hour. He then left the township and approached a moderate right hand corner. Crash analysts later calculated that he
1 Land Transport Act 1998, s 36(1)(a).
2 Land Transport Act 1998, s 36(1)(c).
3 Police v Tamehana [2019] NZDC 16502.
was travelling at a speed of between 120 kilometres per hour and 150 kilometres per hour at this time. As he went into the bend he lost control of the vehicle. The vehicle hit a concrete kerb and then slid sideways down the road, crossing the centreline as it did so. Mr Tamehana’s vehicle then collided head-on with a small Toyota motor vehicle driven by Mrs Faaaliga and occupied also by her three young children. She was returning from a family function in Kaikohe at the time of the collision.
[6] The force of the collision was such that it forced Mrs Faaaliga’s vehicle backwards and sideways approximately 27 metres from the point of impact. Her vehicle travelled through a fence and came to rest in a grassy paddock. Mr Tamehana’s vehicle continued to slide along the shoulder of the road before coming to rest and catching fire. The force of the impact was so great that Mr Tamehana’s associate was thrown through the window and landed nearby in the paddock.
[7] After the vehicles came to rest, Mr Tamehana, who had only received minor injuries, got out of his vehicle. With the assistance of members of the public he was able to remove his uncle from his vehicle and move him to a place of safety. He then left the scene.
[8] Mrs Faaaliga was trapped in her vehicle and the fire authorities were required to cut her free. Her three children were also removed from the vehicle by rescue services. Two of them were subsequently treated at Whangarei Hospital. Mrs Faaaliga and her youngest son, who was four years of age, were taken to Auckland, where they were admitted to the Auckland Hospital and Starship Hospital respectively.
[9] Mr Tamehana went to the police station the following day and acknowledged he had been driving the BMW when it collided with Mrs Faaaliga’s vehicle. He also acknowledged he had been drinking prior to driving. Given the lapse of time that had occurred, however, I infer that the police were unable to carry out testing procedures to ascertain the quantity of alcohol in his breath or blood when he was driving.
[10] The collision caused all persons other than Mr Tamehana to suffer moderate to serious injuries. His uncle suffered a broken wrist that required screws and plates to assist recovery. As at 8 January 2019, he had returned to Australia and told the police
his recovery was going slower than expected. Mr Tamehana’s 21 year old associate who was thrown from the vehicle suffered a broken toe.
[11] The most significant injuries, however, were suffered by Mrs Faaaliga and the members of her family. Mrs Faaaliga suffered numerous broken bones, including two broken legs. The damage to one of her legs was such that the doctors considered amputating it. In her victim impact statement she said it was probably easier for her to list the bones in her body that were not fractured or broken rather than those that were. Thankfully, however, there was no spinal damage.
[12] Mrs Faaaliga has required at least two sessions of surgery to rectify the injuries she suffered. At the time of sentencing she had graduated from a wheelchair to a walker and then to crutches. It is obvious that she will have significant and lasting injury.
[13] The victim impact statement says states that Mrs Faaaliga’s seven and eight year old sons suffered serious injuries, but does not detail what they were. The youngest son, however, suffered a serious brain injury and a broken skull. Surgery was required to piece his skull back together. He was required to undergo extensive rehabilitation for a considerable period following the collision and this is ongoing. I infer that it is likely that he will suffer lasting consequences as a result of the injuries he received in the accident.
[14] The collision also had wider ramifications for Mrs Faaaliga’s family because Mrs Faaaliga and two of the children were in Whangarei whilst the other two children were in Auckland. Mr Faaaliga was required to devote his time travelling between the two centres to visit members of his family. After Mrs Faaaliga and the youngest son were discharged from hospital they were both placed in separate rehabilitation facilities in Auckland. This meant Mr Faaaliga had to travel to different places to see his wife and son. All of this took a considerable toll on his employment. The Judge observed that Mrs Faaaliga had not been able to return to her previous employment following the accident.
The Judge’s decision
[15] The Judge took a starting point of three years imprisonment to reflect the overall culpability of Mr Tamehana’s offending. He then added four months to reflect the fact that between 2004 and 2008 Mr Tamehana had accumulated several previous convictions for driving with excess breath alcohol, driving in a dangerous manner and driving whilst disqualified.
[16] The Judge then applied a discount of four months to reflect issues arising out of a report prepared under s 27 of the Sentencing Act 2002. This recorded the fact that Mr Tamehana had lost his mother at a young age as a result of a traffic accident. He had then suffered various deprivations in his childhood following that occurrence.
[17] The Judge then allowed a further discount of three months to reflect the remorse Mr Tamehana had expressed to the probation officer who prepared the pre- sentence report. He also applied a discount of nine months, or 25 per cent, to reflect Mr Tamehana’s guilty pleas. This resulted in the end sentence of two years imprisonment.
[18] At sentencing as on appeal, the primary issue was whether a sentence of home detention or imprisonment should be imposed. The Judge dealt with that issue as follows:4
[45] The issue for the Court today here is whether or not that sentence should be served by way of a full-time custodial sentence or, in the alternate, can the sentence and the principles and purposes set out in the Sentencing Act be accommodated by a sentence other than imprisonment? The police say, for a number of reasons, given effectively the nature of the offending itself, the injuries, the long time that it will take for Mrs Faaaliga and for young Liam to recover, the only sentence that the Court can impose today is a full-time custodial sentence. That would send the appropriate message denouncing and deterring to the public in general.
[46] Mrs Moore says in contrast that a sentence of home detention is not an easy sentence, it will require you to be locked down and at home. You are the sole breadwinner for your family and that with five children it will have a significant effect not only on your partner, but on you.
[47] I am of the view here, Mr Tamehana, that a term of imprisonment is the only option that the Court has available to it today. This was a prolonged
4 New Zealand Police v Tamehana, above n 3.
period of poor driving, it has had significant long-lasting and ongoing consequences for Mrs Faaaliga in particular and for her young son, Liam. There have been major consequences for the Faaaliga household in a broader sense of the word and, in my view, the only appropriate sentencing response is a term of imprisonment being imposed.
The arguments
[19] On Mr Tamehana’s behalf, Mrs Cull largely reiterates the submissions made to Judge Davis at the time of sentencing. She points out that Mr Tamehana had undertaken rehabilitative efforts prior to being sentenced. She also points out that a sentence of home detention is not an easy sentence because it requires the offender to be kept effectively under house arrest. She submits that the sentencing principles of deterrence and denunciation can be adequately met by a sentence of home detention. She also says the Judge did not undertake the required analysis to determine whether or not a sentence of imprisonment was the only available option. She submits the Court should intervene on appeal and impose a sentence of home detention rather than imprisonment.
[20] For the respondent it is submitted that the Judge did not err in exercising his discretion to impose a sentence of imprisonment rather than home detention. Furthermore, the Judge undertook an analysis of the aggravating aspects of the offending and was entitled to conclude that the only appropriate sentencing response was a term of imprisonment.
Decision
[21] A decision whether or not to impose a sentence of home detention is the exercise of a judicial discretion. The discretion is not unfettered. It must be exercised, as the Judge acknowledged,5 having regard to the purposes and principles contained in the Sentencing Act 2002.6
[22] Although the Judge did not undertake an analysis of the sentencing principles and purposes that he relied on in imposing a sentence of imprisonment, it is clear from the overall tenor of his sentencing remarks that he considered the sentencing purposes
5 Police v Tamehana, above n 1, at [45].
6 Manikpersadh v R [2011] NZCA 452.
and principles of deterrence, denunciation and the need to hold the offender accountable for his actions to be to the forefront.
[23] I do not consider the Judge erred in reaching that conclusion because, as the Judge remarked, this was a prolonged period of appalling driving by Mr Tamehana. He travelled for approximately six to eight kilometres at speeds well in excess of the posted speed limit. To travel at 200 kilometres per hour is, as the Judge observed,7 to turn a motor vehicle into a heavy missile that would wreak havoc if it should collide with any other object. The prospect of Mr Tamehana losing control of his motor vehicle and colliding either with cyclists, pedestrians or another vehicle, must have been very high given the fact that this was a very busy stretch of highway.
[24] Mr Tamehana is, in my view, fortunate that he did not kill anybody as a result of his actions on 21 October 2018. That outcome cannot be credited to him, however, because it is simply a matter of good fortune that nobody was killed due to the manner in which he drove his uncle’s motor vehicle.
[25] The fact that alcohol was involved is a further aggravating factor, as is the fact that Mr Tamehana has no fewer than four previous convictions for driving with excess breath alcohol and one previous conviction for driving in a dangerous manner. Although the last of these occurred ten years prior to the present offending, it nevertheless clearly involved a serious incident because he faced charges of dangerous driving, driving whilst disqualified and failing to stop when followed by red or blue flashing lights. He initially received a sentence of home detention on those charges before ultimately being sentenced to intensive supervision and community detention.
[26] I consider these factors lead to only one conclusion, and that is the one the Judge reached. Given the circumstances of the present offending and Mr Tamehana’s previous convictions, a sentence of imprisonment was realistically the only available outcome in the present case. That is particularly so having regard to the serious injuries suffered by the persons in Mrs Faaaliga’s vehicle. That factor, of itself, took the offending to another level. Indeed, if the Judge had not imposed a sentence of
7 Police v Tamehana, above n 1, at [32].
imprisonment, the Crown would have been compelled, in my view, to lodge an appeal against that decision.
Result
[27]The appeal against sentence is accordingly dismissed.
Lang J
Solicitors:
Crown Solicitor, Whangarei