Tredo v New Zealand Police HC Auckland CRI 2008-404-116

[2008] NZHC 2396

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2008-404-116

BETWEEN  DUANE LEON TREDO Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         30 June 2008

Counsel:         AJ Holland for Appellant

P Singh for the Respondent

Judgment:      30 June 2008

ORAL JUDGMENT OF POTTER J

on sentence appeal

Solicitors:           Public Defence Service, P O Box 76715, Manukau 1702 for Appellant

Meredith Connell, P O Box 2213, Auckland for Respondent

TREDO V NEW ZEALAND POLICE HC AK CRI 2008-404-116  30 June 2008

Introduction

[1]      Duane Tredo appeals against a sentence of 18 months imprisonment imposed by District  Court  Judge  Clapham  on  28  March  2008.    The  appellant  was  also disqualified from driving for three years.  That aspect of the sentence is not appealed.

[2]      Mr Tredo entered early guilty pleas to charges of dangerous driving causing the death of Diana Nichols and dangerous driving causing injury to Danica Massey. These charges followed from a very serious motorcar collision on Friday, 27 July

2007 in which the driver of an oncoming car, Ms Nichols, was killed and Mr Tredo and his partner, Ms Massey who was the passenger in the car he was driving, were seriously injured.

[3]      The basis of the appeal is that the sentence of 18 months imprisonment imposed was manifestly excessive.  The focus of the appeal is the Judge’s failure to give proper consideration to a sentence of home detention.  The Crown opposes the appeal contending that, in the circumstances of this case, the sentence is not manifestly excessive and that a sentence of imprisonment was appropriate.

Factual background

[4]      On 27 July, about 7.05 p.m., the appellant was driving his Mitsubish Lancer on the Whitford/Maraetai Road.   His partner, Ms Massey, was in the passenger’s seat.  As he approached a moderate, right hand, uphill bend, the appellant accelerated heavily and began overtaking two vehicles – a Holden utility and a Toyota van.  He was driving at 130-135 kph in a 100 kph speed limit zone.  One oncoming vehicle swerved and managed to avoid a collision with the appellant’s vehicle.  The second oncoming vehicle was that driven by Ms Nichols which collided head-on with the appellant.

[5]      The summary of facts, which was accepted by the appellant for sentencing purposes, recorded the results of police analysis which showed that the collision

occurred when the appellant’s car was 147 metres past the start of yellow no passing warning lines.   It occurred when the appellant’s car was 66 metres past the commencement of double yellow no passing lines.  The appellant’s car was at the time of the collision on the wrong side of the road, adjacent to the Toyota van which he was still trying to pass.  Ms Nichols braked heavily and swerved to the left prior to the collision occurring but was unable to avoid the impact.  The appellant made no attempt to brake prior to the collision.  Ms Nichols died at the scene of the collision after receiving extensive injuries.   The appellant and Ms Massey suffered serious injuries.

Judge’s decision

[6]      In sentencing, the Judge referred to the difficulty in sentencing in cases such as this, referring to the loss, grief and anger experienced by the families of the victim and also to the suffering of the family of the offender.   He referred also to the offender’s own situation, acknowledging the genuine remorse that Mr Tredo felt as the result of this horrific collision.

[7]      The Judge referred to the purposes of sentencing in s 7 of the Sentencing Act, stating that deterrence and denunciation were paramount in this case.  He referred to the need for protection of the community and to providing for the victim’s interests. He referred to the principles of sentencing in s 8, the gravity of the offending, the need for consistency in sentencing and the requirement to impose the least restrictive outcome, having regard to the hierarchy of sentencing in s 10A of the Sentencing Act.

[8]      He referred to aggravating factors.  Firstly, the driving in question; that the appellant was on the wrong side of the road; he was travelling at speed and that he proceeded with the ultimately fatal overtaking manoeuvre, despite double yellow no passing lines and there being no visibility over the brow of the hill.  He noted that a vehicle approaching had taken evasive action to avoid a head-on collision and that the appellant elected to proceed with overtaking in what was clearly a dangerous situation.  He referred to that as a major aggravating feature of the driving.

[9]      He noted that the appellant had convictions for driving while disqualified and driving while his licence was suspended in 2006 but no convictions for dangerous or reckless driving.   He set to one side a conviction in 2005 for assault with a blunt instrument.

[10]     As to mitigating factors, he noted genuine remorse; the early guilty pleas; that the appellant was 20; and the absence of any previous convictions for dangerous or reckless driving.   He referred to the restorative justice process undertaken by the appellant and noted that the appellant had himself suffered what the Judge described as horrendous injuries.

[11]     The  Judge  then  referred  to  the  hierarchy  of  sentences  in  s  10A  of  the Sentencing Act.  He noted that the recommendation for community detention in the pre-sentence report was option (d) in s 10A.  At [27] of his sentencing notes he said that recommendation was inappropriate for what he described as “appalling driving”.

[12]     The Judge referred to the maximum available sentence of five years and referred to case law that had been the subject of submissions, particularly the case of R v Tanirau [2008] NZCA 9.

[13]     The Judge said at [30]:

It should be made clear that those who elect to depart from their correct side of the road and continue to drive and being given an opportunity to desist and continue to do so and thus have a head-on collision causing loss of life, in my view a term of imprisonment is the only appropriate penalty to reflect society’s concern of those of us who choose to use the roads.

[14]     He took a starting point of two and a half years.  He allowed a discount of 12 months (which is approximately 40%), for the mitigating factors.  In doing so, the Judge emphasised the personal difficulties Mr Tredo has suffered as the result of the accident.   The end sentence was therefore 18 months and the period of disqualification three years.  On the charge of dangerous driving causing injury, the sentence imposed was three months with the same period of disqualification.

Counsel’s submissions

[15]     I have been considerably assisted by comprehensive and responsible written submissions filed on behalf of the appellant and the Crown and by further oral submissions today.

[16]     Mr Holland, for the appellant, emphasised that the focus of the appellant’s submissions was the failure of the Judge specifically to address or consider the option of home detention as an alternative to prison.  He referred to the case of R v Hill [2008] NZCA 41, as confirming the jurisdiction of the Judge to impose a sentence of home detention.

[17]     The  Crown  acknowledges  that  jurisdiction  existed  in  this  case.     The offending occurred before 1 October 2007 and sentencing is therefore governed by s 57 of the Sentencing Amendment Act so that the jurisdiction to impose home detention arises simply from the existence of a power to imprison.  However, given that the sentence imposed was 18 months, it seems that reliance would not need to be placed on the transitional provisions in any event.

[18]     Mr Holland submitted that the Judge was wrong, as a matter of principle, not to have properly considered or exercised the jurisdiction to impose home detention. He said that the Judge made a leap from rejecting the sentence proposed by the probation officer of community detention, to the conclusion that the appropriate sentence in this case was imprisonment.  Mr Holland submitted by taking that leap the Judge overlooked both the availability of the sentence of home detention and its applicability in the circumstances of this case and also the requirement of s 8(g) of the Sentencing Act to impose a sentence which is the least restrictive in the circumstances.

[19]     He supported his submissions by reference to some recent authorities: Police v Bracken HC WHA CRI 2007-488-00051 7 September 2007 Andrews J; R v Moana and anor HC GIS CRI 2007-016-102 7 December 2007 Priestley J and R v Hodgson and Yousif [2008] NZCA 132.

[20]     In Bracken, a sentence of ten months imprisonment with leave being granted to apply for home detention, was upheld on appeal in this Court.  However, Andrews J in upholding the appeal referred to the unique circumstances of that case.

[21]     Moana was a case involving streetcar racing with the drivers racing cars at speeds of 165 kph.   Mr Moana’s vehicle crashed during the race, killing his passenger.  In that case there was the aggravating feature of alcohol.  Priestley J took a starting point of three years, took account of mitigating factors and reached a resultant sentence of 18 months.  After considering all relevant matters, he imposed a sentence of 12 months home detention.   Mr Bellingham, who was driving while disqualified, was sentenced to two years imprisonment.

[22]     Hodgson and Yousif also involved street racing.  The sentencing Judge took a starting point of two and a half years and considered that, with the mitigating factors, a final sentence could be below two years and that therefore home detention could be considered.    The  sentence  imposed  on  both  offenders  was  ten  months  home detention.  They were disqualified from driving for four years, which was reduced on appeal to three years, that being the only aspect of the sentence appealed.   The sentencing Judge described the drivers’ conduct as at the low end of dangerous driving.

[23]     Mr  Holland  submitted  that  these  cases  supported  his  submission  the appropriate sentence in this case was home detention and that by failing to give proper consideration to the availability and appropriateness of that sentence, the Judge had imposed a sentence that was manifestly excessive.  He submitted that the driving here, which had such tragic consequences, was predicated more on a lack of experience and extremely poor judgment in the heat of the moment, than any premeditated dangerous act.

[24]     The Crown submitted that implicitly, if not explicitly, the Judge did give consideration to the jurisdiction, which the Crown accepts he had, to  impose  a sentence of home detention.  Ms Singh submitted that the references by the Judge to s 10A in at least two parts of his sentencing notes were implicit acknowledgements

of the hierarchy of sentencing, including the availability of the sentence of home detention immediately below the level of seriousness of a sentence of imprisonment.

[25]     But  the  Crown  submitted  that  even  if  the  Judge  was  found  not  to  have properly given consideration to the sentence of home detention, the ultimate issue for the Court on appeal is whether the sentence imposed is manifestly excessive.   In referring to the decision in Hill, Ms Singh emphasised that the Court there was dealing with low level drug offending, not serious offending such as dangerous driving resulting in loss of life.

[26]     While the Crown acknowledged the authority of Hill and accepted that the sentence of home detention was an option aimed at reducing the prison population, Ms Singh said that the sentence still had to be consistent with the principles and purposes of sentencing.  In applying those principles, the Crown emphasised that the various decisions turn on their particular facts and, in that respect, Hill has limited application.

[27]     In relation to the cases cited by the appellant, Ms Singh emphasised that in each of those cases the facts were important in relation to the ultimate sentence imposed.  Ms Singh referred to the unique circumstances that pertained in Bracken, the statement of Priestley J in Moana that Mr Moana had been extended a degree of leniency which he would probably not be entitled to once an anomaly in the Sentencing Act was cleared up, and that in Hodgson and Yousif the deceased person had been intoxicated, was talking on her phone and had stepped onto the road 40 metres in front of the traffic lights.  Neither offender had previous convictions.

[28]     The Crown referred to Anderson v Police HC AK CRI 2008-404-000080

10 April 2008, a very recent decision of this Court, and the observation by Venning J

at [19]:

From my review of the relevant authorities, I detect a general hardening of the Court’s attitude to such offending over the last two to three years.  The number of authorities referred to disclose that reckless and or dangerous driving  leading  to  death  remains  a  major  social  problem,  particularly amongst young offenders.

[29]     In that judgment Venning J referred to a list of cases where sentences of imprisonment for dangerous driving causing death were imposed, and in conclusion referred to R v Ellison CA390/07 29 November 2007, where the Court of Appeal observed that more  recent cases  revealed  a  starting point  range  for  offences  of dangerous or reckless driving causing death of between two and five years, stressing that motoring offences causing death or injury turn very much on their own facts.  In the case of Ellison which involved a charge of reckless driving causing death, and there were considerable aggravating factors, a sentence of two and a half years was upheld on appeal.

Discussion

[30]     I must determine whether the sentence of 18 months imprisonment imposed in this case was manifestly excessive, that is, beyond the bounds of the sentencing range available to the sentencing Judge.   As has often been observed, while the principles applicable to this type of sentencing are reasonably well settled, the application of the circumstances of a particular case, often causes difficulty.   As Judge Clapham said, “the law is a blunt instrument to reflect the anguish both of the victims’ families and of the offender and his family”.

[31]     I  find  it  difficult  to  be  assured  by  the  Crown’s  submissions,  that  the sentencing Judge adequately turned his mind to the sentence of home detention. Rather, he appears to have rejected the sentence suggested in the pre-sentence report and, referring to the case of Tanirau where there was a starting point of four years imprisonment adopted, he went straight to consider the appropriate starting point for the offending in this case. He stated, as I have cited above at [13], that he considered a term of imprisonment was the only appropriate penalty in cases of dangerous driving such as that involving the appellant.

[32]     Having said that, when I turn to consider whether the end sentence was manifestly excessive, I have reached the conclusion that it was not.   I do so after consideration  of  the  availability  of  the  option  of  home  detention,  which  is categorised by the Department of Corrections as a high severity community option. It sits in the hierarchy of s 10A just below the threshold of imprisonment.   It is a

sentence that, in some  circumstances, the  Court  has  found  to  be  appropriate  in dangerous driving cases.

[33]     I have taken into consideration the submission of Mr Holland that those factors which persuaded the Judge that a generous discount of 40% for mitigating factors should also have led the Judge to  a sentence of home detention on the authority of Hill at [36]. But while those factors are indeed relevant, they do not ultimately determine the outcome in the final sentence. This was, as the Judge said, an example of appalling driving. It had fatal consequences, although it is not the consequences themselves which dictate the sentence to be imposed. It was serious offending which, on the basis of the authorities, could properly be met by a sentence of imprisonment of 18 months.

Result

[34]     The sentence imposed was not manifestly excessive.   The appeal must be dismissed.