The Queen v Brent Douglas Emerson
[2002] NZCA 235
•9 September 2002
| IN THE COURT OF APPEAL OF NEW ZEALAND | CA203/02 |
THE QUEEN
V
BRENT DOUGLAS EMERSON
| Hearing: | 22 August 2002 |
| Coram: | Gault P Paterson J Randerson J |
| Appearances: | M A Woolford for the Solicitor-General A J S Snell for the Respondent |
| Judgment: | 9 September 2002 |
| JUDGMENT OF THE COURT DELIVERED BY PATERSON J |
Introduction
Mr Emerson was found guilty on two charges, namely, manslaughter and causing injury as a result of careless driving while under the influence of alcohol. On 31 May 2002, he was sentenced to concurrent terms of imprisonment of 18 months and given leave to apply for home detention. The Solicitor-General now seeks leave to appeal against the sentences on the grounds that they were manifestly inadequate and wrong in principle.
Background facts
Both charges arose out of an incident at the Gisborne airport in the early hours of 22 September 2001. Mr Emerson lived in premises within the restricted area of the airport. He and three friends had been to Gisborne for a meal and had spent some time at a local hotel. Mr Emerson arranged for a Dial-a-Driver to drive his car back to his home. On reaching the airport, Mr Emerson took control of his vehicle and proceeded to carry out a series of “wheelies.” The manoeuvres were so violent that the two back seat passengers fastened their seat belts. Mr Emerson then drove to the northern end of the runway and accelerated violently down the length of the runway. The reconstruction evidence suggested he reached speeds of between 169 and 177 kilometres per hour. Just short of the end of the tarmac, Mr Emerson applied the brakes, but because of the speed at which he was travelling, it was impossible to stop the car within the confines of the airport. The car skidded from the tarmac on to the grassed area of the airport, shot over the top of an embankment, clipped a perimeter fence, impacted on the road below and then tumbled through another fence into a paddock on the other side of the road. The total distance from the point where the brakes started to impact to the final resting place was 239 m. A blood sample taken from Mr Emerson indicated a level of 145 mgms of alcohol per 100 mls of blood against the legal limit of 80 mgms of alcohol. It is reasonable to assume that this blood sample was taken some little time after the accident, and the level of alcohol in Mr Emerson’s blood at the time of the accident was probably twice the legal limit.
Mr Burgess, a close friend of Mr Emerson, was killed in the crash. Mrs Burgess suffered serious injuries. Mr Emerson suffered comparatively minor injuries and the fourth occupant escaped virtually unscathed.
When sentencing, the Judge noted that the jury agreed with the Crown’s contention that the whole escapade had been engendered from the start by Mr Emerson’s consumption of alcohol, and that the actions of driving his car whilst in this condition, at the speed at which it was driven, and in the circumstances prevailing, amounted to a major departure from the level of care expected of a reasonable driver.
The Judge noted that the pre-sentence report indicated that while Mr Emerson had said he was motivated to address the factors contributing to the offence, the level of motivation was considered to be lowered somewhat by statements he made at an interview endeavouring to “normalise” his actions. Mr Emerson had felt considerable remorse, was aged 38 years of age, and was separated from his wife who has the care of his three children. The report noted that Mr Emerson maintained a regular positive contact with his family since separation. He ran his own engineering business which was evidently successful and profitable. There was considerable support from the community for him.
The aggravating factors which the Crown identified and which His Honour accepted were grossly dangerous driving involving very high speeds when affected by alcohol; driving in an unlit area which Mr Emerson had been expressly forbidden to enter, and the resultant death and injury with the consequent traumatic effects on the victim’s surviving family and friends. His Honour also noted that at one point Mr Emerson sought to disclaim responsibility, (although he did not pursue this point); he failed to acknowledge he was affected by the consumption of alcohol, and there was an element of showing off. The Judge also referred to the terrible impact the tragedy had on Mr Burgess’s widow and mother.
The mitigating factors identified by the sentencing Judge were that the offending was not on the road, and that Mr Emerson had deliberately elected not to drive on a road. Most of the mitigating factors related to the car being in good condition and other matters relating to the incident itself. Similar submissions were made to us and will be commented on later. The Judge accepted that Mr Emerson’s remorse was genuine, but noted in respect of the mitigating factors, that the Court also needed to consider the deterrent aspect when sentencing. Relying on R v Fallowfield (1996) 14 CRNZ 87, a decision of this Court, the Judge observed that it was necessary to seek to place the offending in its proper position in the scale of offending with the consequences for the victim being only one factor to be considered. In other words, the primary emphasis was on the driving in question. The consequences were but one element of that.
The Judge considered it inappropriate to regard the case as being solely within the confines of the so-called motor manslaughter cases which occurred on the highway where first, other road users were at risk and secondly, dangerous situations can occur by reason of the presence of other road users. His view was that it was more appropriate to consider this offending alongside cases where the essential element is the misuse of a dangerous object referring to R v Cserepanyi (CA92/84, 18 June 1984 and R v M (High Court, Christchurch, T91/95, 15 June 1995). The essential elements which His Honour took into account were:
(a) Mr Emerson was a skilled driver;
(b)It could be assumed he knew both the capabilities of and the dangers inherent in his car;
(c)He elected quite deliberately to drive the car very fast on a limited pathway which was unlit except for the headlights;
(d)Despite Mr Emerson’s denials he must have known when he set off that he was embarking on a dangerous action – he was seeking a thrill. He wanted to go fast and knew he had only a limited pathway;
(e)The action required real skill and full possession of Mr Emerson’s faculties but he elected to set off knowing just how much alcohol he had drunk, and that he was not fit to drive on the roadway.
Grounds of appeal
The Crown’s position is that the sentence imposed was manifestly inadequate and, in particular, the Judge had erred in failing to sentence Mr Emerson in accordance with sentencing levels established in motor manslaughter cases. In particular, it was submitted that the Judge was wrong in principle to distinguish between the misuse of dangerous object cases and motor manslaughter. In most motor manslaughter cases, a motor vehicle, which can be a dangerous object, is misused. The particular error in respect of the two cases relied upon was that the degree of culpability in those cases was at a far lesser level than in the present case. In the Crown’s view there is no difference in principle between a motor manslaughter case and this case. Counsel submitted that a sentence of at least three years imprisonment was required.
The sentencing Judge had placed some emphasis on the fact that the law clearly distinguishes between cases of offending on the highway and those where the offence occurs off the road. Under the Land Transport Act 1998, the maximum sentence for a person who causes death by driving a motor vehicle on a road after having consumed alcohol is greater than is the case where the driving is not on a road. The Crown’s response on appeal was that the danger which the driving poses to other road users is only one of a number of circumstances to be taken into account in assessing the total level of culpability.
Further, there was a suggestion from Mr Emerson’s counsel that a charge of manslaughter was brought in this case because the lesser penalty available for offences not on a road would not have been adequate. The Crown’s response was that the Crown charged manslaughter and had proven the required elements. All the factors of the case should then be taken into account in assessing the degree of culpability and the circumstances in several motor manslaughter cases were relevant in assessing the culpability in this case. These included: R v Pentecost (High Court, Christchurch, T12/98, 2 July 1998, Panckhurst J); R v Guest (CA111/94, 20 July 1994); and R v Goodwin-Lomax (CA215/95, 20 July 1995).
The Crown also pointed to prior convictions of Mr Emerson, one for operating a vehicle carelessly and one for driving with excess alcohol. It was conceded, however, that these were some time ago. Counsel submitted that the starting point in this case was in the range of four to five years and a generous allowance for mitigating factors was needed to bring the sentence down to three years imprisonment. A sentence of 18 months imprisonment was therefore manifestly inadequate.
Respondent’s submissions
Counsel for Mr Emerson submitted that His Honour was not wrong in principle, nor was the sentence manifestly inadequate. He accepted that the seriousness of the offending was the governing factor. The primary emphasis must be on the act of driving in question. There were, however, a range of factors to be looked at, and as noted by this Court in R v McKelvey (CA372/97 of 25.11.97), the nature of the driving and the degree of danger it poses to other road users is an important circumstance to be taken into account. In counsel’s submission, the Judge had correctly assessed the culpability of Mr Emerson, a skilful driver, who had driven accurately down the centre line of the runway with an appropriate reaction time. The only reason for the accident, in counsel’s submission, was that Mr Emerson did not appreciate that the car’s headlights would not show the end of the runway. This was because the end of the runway sloped up and the grassed area beyond sloped away from it so the end of the runway was not obvious until the car was at the end of the runway. Counsel sought to highlight the more serious aggravating factors in the motor manslaughter cases on which the Crown relied.
Decision
We place no weight on the submission that the Crown had no alternative but to bring a manslaughter charge because the lesser charges of reckless or dangerous driving causing death, or being a person in charge of a motor vehicle causing injury or death, only relate to driving on the road. This was a charge where it was necessary for the Crown to establish that the neglect was a major departure from the standard of care expected of a reasonable person to whom the legal duty applied in the circumstances. His Honour accepted that the jury determined there was a major departure from the level of care expected of a reasonable driver arising from Mr Emerson’s consumption of alcohol, driving his car while in that condition at an excessive speed, and in doing so in unlit conditions. We place no great significance on the fact that it was not possible to lay a more serious alternative charge because the driving was not on the road.
The primary consideration in a sentencing of this type is the degree of culpability. The fact that the driving was not on the road means that one of the sentencing factors often taken into account was not present here. However, there was an important factor which is sometimes not present in a road offence, namely, the extreme danger to three passengers who had limited or no ability to prevent what was happening.
We do not see any difference in principle in sentencing on motor manslaughter cases and those relating to the use of dangerous weapons. The degree of culpability should be the guiding principle applied in all such cases.
In this case, we are of the view that the degree of culpability was high. Mr Emerson had consumed alcohol and took the precaution of hiring a Dial-a-Driver. This was an acknowledgement that he was not prepared to take the risk of driving on a highway. In such circumstances, Mr Emerson took over the driving of a very powerful motor vehicle late at night and proceeded at very high speeds in circumstances where he was required to rely only upon his headlights. He drove in an area in which he was forbidden to drive, namely, private airport land. In such circumstances the culpability was far higher than in those two cases referred to by His Honour where death was caused by the misuse of a dangerous weapon. As R v Fallowfield notes, the consequences for the victims are a factor only but they were severe in this case. The victims in our view would have been powerless to have prevented the driving. Their position is one element in the assessment of overall culpability, the primary consideration being the driving itself in the circumstances pertaining.
While it is difficult to draw comparisons between various cases, there is, in our view, strength in the Crown submission that the appropriate starting point before allowances for mitigation, was in the range of four to five years imprisonment, and that a very generous allowance for the mitigating factors would be needed to bring the sentence to less than three years imprisonment. Those mitigating factors are Mr Emerson’s remorse and his otherwise good character. It is our view that in the circumstances the sentence was manifestly inadequate and that an appropriate sentence for this offending, after making an allowance for mitigating factors, is in the range of three to four years. As this is a Solicitor-General appeal, a sentence of three years imprisonment will be substituted.
Result
Leave is given to the Solicitor-General to appeal and the sentence imposed is quashed and a sentence of three years imprisonment is imposed in lieu thereof.
Solicitors
The Crown Solicitor, Auckland
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