Te Amo v R

[2010] NZCA 307

IN THE COURT OF APPEAL OF NEW ZEALAND

CA230/2010
[2010] NZCA 307

BETWEENPEARL JANINE WIKI TE AMO

Appellant

ANDTHE QUEEN

Respondent

Hearing:6 July 2010

Court:Ellen France, Stevens and Wild JJ

Counsel:N Levy for Appellant

F Sinclair for Respondent

Judgment:20 July 2010 at 10.30 am 

JUDGMENT OF THE COURT

The appeal against sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Stevens J)

Introduction

[1]        Shortly after being charged with one count of driving with excess breath alcohol causing death, the appellant pleaded guilty.  To a second charge of failing to stop and ascertain injury after an accident in which a person had been killed, the appellant entered a plea of not guilty but changed the plea to guilty on the eve of the trial.  Subsequently, she was sentenced by Judge Phillips in the District Court at Invercargill to two years and four months’ imprisonment.[1]  The appellant appeals against that sentence.  The Judge also ordered the appellant to make an emotional harm reparation payment of $20,000 to the family of the person killed in the accident, the $20,000 having been offered by the appellant.  The Judge disqualified the appellant from driving for a period of three years.  These aspects of the sentencing are not appealed.

Factual background

[1]      R v Te Amo DC Invercargill CRI-2009-025-2206, 30 March 2010.

[2]        On 15 May 2009, the appellant and her partner attended a work function at a local hotel.  They arrived at around 4.30pm.  They consumed a considerable amount of alcohol.  At around 10pm the appellant’s intoxicated partner was asked to leave.  The function was shut down.  The appellant continued consuming alcohol in the public bar.  The appellant’s partner returned and was again asked to leave.  The appellant and her partner became abusive.  Both were asked to leave.

[3]        Notwithstanding that the hotel operated a free courtesy coach, the appellant decided to drive home.  Her partner travelled in the passenger’s seat.  At a nearby intersection, the appellant drove through a red light and collided with another car.  The sole occupant of that car suffered fatal head injuries on impact.  The impact caused the appellant’s vehicle to spin and collide with a traffic light.  The appellant drove off.  After some 200 metres the appellant stopped.  The appellant’s partner went to the driver’s door and the appellant moved over to the passenger’s seat.  The appellant’s partner drove the vehicle to their home.

[4]        Police arrived at the home shortly afterwards.  Evidential breath tests showed the appellant’s breath alcohol level was 938 micrograms per litre, and her partner’s was 481 micrograms (the legal limit for driving being 400).  The appellant initially denied having been in the vehicle.  She claimed that she and her partner had walked home.  Only later did she admit to having driven.

Sentencing

[5]        In assessing the appellant’s culpability, Judge Phillips took into account her “extremely high” level of breath alcohol, the death of the victim and her failure to stop and ascertain injury.  These were described as “majorly aggravating” factors as a result of which the Judge adopted an initial starting point of three years and four months’ imprisonment.

[6]        The Judge then identified two aggravating factors personal to the appellant.  First, that the appellant had a prior conviction for driving with excess breath alcohol in 2006.  This involved the “alarmingly high” breath alcohol level of 887 micrograms per litre.  Secondly, that the appellant only held a learner driver’s licence and was driving in breach of its terms.  The Judge increased the starting point by six months to reflect these factors, resulting in a final starting point of three years and ten months’ imprisonment.

[7]        The Judge identified two mitigating factors personal to the appellant.  First, the appellant’s guilty pleas.  One occurred within a short time of being charged.  The other was entered on the eve of trial.  The Judge noted the impact of the latter delay on the family of the deceased as described in the victim impact statements.  Nevertheless, he made an allowance of 15 months’ imprisonment.  The second mitigating factor was the emotional harm reparation payment of $20,000.  The Judge allowed a further reduction of three months’ imprisonment to reflect this.

[8]        The Judge imposed a final sentence of two years and four months’ imprisonment.  The appellant was disqualified from driving for three years.  The vehicle was confiscated.  The appellant was sentenced to a term of imprisonment of six months on the charge of failing to stop and ascertain injury after an accident in which a person had been killed, to be served concurrently.

Appeal

[9]        Counsel for the appellant submitted that the sentencing Judge erred in the following critical respects:

(a)The Judge incorrectly assessed the appellant’s culpability in setting a starting point for sentence.  First, the Judge wrongly rejected the appellant’s assertion of fact that she was pressured into driving by her partner.  Counsel submitted that this rejection was contrary to the procedure for the resolution of disputed facts for the purposes of sentencing prescribed by s 24 of the Sentencing Act 2002.  Secondly, the Judge determined that the appellant made “a conscious decision to drive the vehicle”.  Counsel submitted there was no evidence on which the Judge could make this determination, given her gross intoxication.

(b)The Judge’s imposition of an uplift of six months for a prior conviction of driving with excess breath alcohol was excessive.  The conviction did not call for an uplift, but rather prevented the appellant from invoking her previous good character in mitigation.

(c)The Judge should have made a greater allowance than three months to reflect the appellant’s significant emotional harm reparation payment.

(d)The Judge should have imposed a sentence more consistent with that imposed on her partner.

[10]       Counsel submitted that a starting point of three years’ imprisonment would appropriately reflect the high level of breath alcohol but account for the absence of other aggravating factors.  A one-third reduction to reflect her guilty pleas and a further reduction for the emotional harm reparation payment would bring her final sentence to one below two years, a sentence for which home detention may be considered. 

Discussion

[11]       We deal first with the final starting point of three years and ten months’ imprisonment.  Counsel for the appellant submitted that the driving covered only a short distance and, prior to entering the intersection against the red light, was otherwise unremarkable.  Counsel also emphasised the age of the previous conviction being four years previously.

[12]       Having regard to the previous conviction, which was relevant to the present offending, and the other aggravating factors identified by the Judge, we are satisfied that the final starting point adopted was within range.  The second charge of failing to stop also needs to be considered in assessing the totality of the offending.

[13]       There is no merit in the appellant’s point regarding failure to hold a disputed facts hearing under s 24 of the Sentencing Act.  None was asked for; none was needed.  If there was any pressure on the appellant to drive, it was not an operative factor on the facts of this case.  The appellant chose not to take the courtesy coach offered by the hotel, she turned the key and operated the vehicle that caused the accident.  Likewise, there is nothing in the point that the appellant did not make a conscious decision to drive.

[14]       The emotional harm payment of $20,000 was undoubtedly significant.  Particularly in this case, the appellant is of modest means and her family made financial sacrifices to provide funding for the payment.  Counsel for the respondent correctly submitted that the amount of discount earned by such a payment was a matter for the discretion of the sentencing Judge.  By way of an example of a payment being taken into account in this Court, he cited R v Johnson.[2]

[2]      R v Johnson [2010] NZCA 168; see also R v ABM [2008] NZCA 112.

[15]       We consider that the amount of discount for an emotional harm payment will always depend on the facts of the case, the particular circumstances in which the payment is made, and the impact on the victim.  Whilst the allowance in the present case might have been greater, we do not consider it was inappropriately low.  We agree with the submission of counsel for the respondent that the allowance should be considered in the context of the sentence as a whole.  Here, the final sentence was reached after allowing a significant discount of 15 months’ imprisonment, even though the plea on the second charge was only entered on the eve of trial.  Thus, the victim’s family would have had no closure until some nine months after the accident.  Yet a full discount in terms of R v Hessell[3] was allowed.

[3]      R v Hessell [2009] NZCA 450, [2010] 2 NZLR 298.

[16]       The appellant’s partner was sentenced to nine months’ home detention.  His offending involved a charge of driving with excess breath alcohol, but more importantly, a charge under s 312 and s 71 of the Crimes Act 1961 that knowing that his partner had committed a crime he assisted her in order to enable her to avoid arrest.  That offending, whilst serious, is of a quite different order.  We are satisfied that there is nothing in terms of inconsistency with that sentence which assists the appellant.

Result

[17]       The appeal against sentence is dismissed.

Solicitors:

Southern Law, Invercargill for Appellant

Crown Law Office, Wellington for Respondent