IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2014-092-012273 [2015] NZHC 1104

THE QUEEN

v

ROBERT PORA

Hearings:	27 February and 21 May 2015	

Counsel:	
J Murdoch and N E Copeland for the Crown
L Freyer for the Prisoner	

Sentence:	
21 May 2015	

SENTENCE OF DUFFY J

Solicitors:	Meredith Connell, Auckland
Ministry of Justice (Public Defence Service), Auckland

R v PORA [2015] NZHC 1104 [21 May 2015]

[1]       Mr Pora, while I read out the reasons for the sentencing, you may be seated. When I come to the time of formally passing sentence, I will ask you to stand.

Summary

[2]       You appear for sentence, having pleaded guilty to charges in relation to a motor vehicle crash in which the passenger of the vehicle you were driving was killed, and the driver of another vehicle was injured.

[3]       On  27  February  2015,  I  gave  a  sentencing  indication,  which  adopted  a starting point of seven years, four months’ imprisonment and a period of three years’ disqualification from driving.  The reasons for doing so are set out in the indication, which will be attached to, and form part of the sentencing notes.  I said that if you pleaded guilty following the sentencing indication, this would warrant a 25 per cent discount.   I left the question of any personal mitigating factors for the sentencing Judge, as I did not have the pre-sentence report.

[4]       It remains, therefore, for me to determine the allowance to be given for mitigating factors and then to impose the end sentence upon you.  Before doing so, I will briefly traverse the facts of the offending.

Background

Offences

[5]       I have already read out the offences to which you pleaded guilty.

Facts

[6]       The charges arose out of an incident on the evening of Friday, 15 August

2014.

[7]       At  about  9.30  pm,  you  were  the  driver  of  a  motor  vehicle  driving  on Puhinui Road, Manukau.  Steven Te Pania was sitting in the front passenger seat of the vehicle.

[8]       The police observed you overtake another vehicle at speed, and engaged red and blue lights and a siren.  You accelerated and drove through an intersection.  You continued driving at an estimated speed of between 80 to 100 kilometres per hour. The relevant speed limit is 50 kilometres per hour.

[9]       You approached an intersection where a number of cars were stationary at a red light.  You veered into the right hand lane and sped through the intersection and continued driving. At some point, you turned your headlights off.

[10]     You  attempted  to  overtake  another  vehicle,  crossing  the  centre  line  and striking a raised centre island which marked a pedestrian crossing.  You lost control of the vehicle, which travelled down the wrong side of the road before colliding with an oncoming vehicle. The car flipped on its side, trapping both occupants.

[11]     Police and ambulance staff arrived.  You were extracted from the vehicle and transported to hospital with life-threatening injuries.  Mr Te Pania was found to have died as a result of the injuries sustained in the crash.

[12]     The  driver  of  the  oncoming  vehicle  was  taken  to  hospital  and  treated overnight for a shoulder injury.

[13]     An analysis of your blood taken at the hospital returned a blood alcohol level of between 115 and 127 milligrams of alcohol per 100 millilitres of blood.  A scene examination revealed the vehicle was travelling at a speed of approximately 85 to
95 kilometres per hour immediately prior to striking the centre island.   It had no warrant of fitness and its registration had expired.

[14]     You were 26 at the time of the offending.

Sentence indication

[15]     At  the  sentence  indication,  I  adopted  a  starting  point  of  seven  years’

imprisonment for the lead offence of manslaughter.

[16]     I then gave a four month uplift for your previous convictions and that you knew  that  you  were  forbidden  from  driving.    You  have  previous  convictions extending back to 2004. You have a conviction from 2004 of driving a motor vehicle in a dangerous manner, a conviction for failing to stop when followed by red/blue flashing lights, and operating a motor vehicle causing sustained loss of traction, as well as an offence from August 2014 of being an unlicensed driver and failing to comply with the prohibition.   Additionally, in July 2006, you were stopped while driving and were informed by way of a traffic offence notice that you were forbidden from driving until you obtained an appropriate driver’s licence.

[17]     Accordingly, I adjusted the starting point by four months’ imprisonment to

take account of those aggravating features.1

[18]     As the Judge who gave the sentence indication, that is binding on me.2

Pre-sentence report

[19]     A pre-sentence report was obtained on 29 April 2015.  The report notes that you accepted that you should not have been driving and expressed disappointment that you had not been able to meet the victims’ families in person.  Based on your conviction record, you were assessed as having a medium to high likelihood of re- offending and a medium risk of harm to others.   The report notes that you would benefit from participating in an alcohol abuse counselling programme and a driver training programme.

[20]     In summary, the report states:

Mr Pora has acknowledged his fault in a series of driving offences which culminated in the death of a friend and injury to another.  He does not seek to minimise his behaviour or apportion blame.   His remorse appears to be genuine and not generated through his custodial status.   Nevertheless, this present list of matters for which he is now to be sentenced represents a continuing and escalating pattern of offending behaviour.

1           This starting point was reached on the basis of those adopted in similar cases, namely, R v Murcott [2014] NZHC 971; R v Mika [2013] NZHC 2357; Ormsby v R [2013] NZCA 578; and R  v McGrath [2014] NZHC 1583.
2	Criminal Procedure Act 2011, s 116(2).

Additional material provided to the Court

[21]     You have provided a number of letters to the Court.  I will briefly summarise each of them.

[22]     The first letter is a handwritten letter by you, which you say is an apology letter to the victim and his family and friends.  You say that you are truly sorry, have learnt from your mistake, accept that your actions were against the law and you regret what you have done.

[23]     A second letter from you is directed to the Court.   In it you express your sincere remorse for your irresponsible and dangerous actions.   You state that you have three young children and realise that you have been a bad influence on them. You have vowed to never again engage in such dangerous conduct.  You hope that your apology will help to make things better.

[24]     Today, I have been given a third letter, which is addressed to the victim, who was sitting in the other car, Mr Sekene.  This expresses your remorse for the injury that he suffered, and also for the damage and financial loss that both he and his family suffered through their vehicle being written off, as they are a family who are not easily in a position to replace something like a motor vehicle.

[25]     A letter has also been provided from your partner.  She says you are the sole provider for her and your eight month old son.   She says you are of good moral character, and that you know you have made mistakes and you are incredibly remorseful for them.

[26]     Your aunt has also provided a letter in support.   She says that she believes that you are remorseful and you will have to deal with the mistake you have made for the rest of your life.  She says you have family support, and states the punishment you are given will not compare with having to live with the mistake for the rest of your life.

[27]     Your cousin states that you have expressed sorrow for the pain that you have

caused to the victim’s family.

[28]     And finally, a family friend says you have grown up from a troubled teenager to a loving mature family man.  She acknowledges that you have made a mistake, but has sought leniency for the sake of your partner and your children.

Victim impact statements

[29]     Victim impact statements have been read out in Court today.  They have been received from Mr Te Pania’s mother, his partner, his sister, as well as the driver of the other car.

[30]     His partner, his mother and his sister’s victim impact statements show the devastating impact that his death has had on them.

[31]     The driver of the other car has said that he has had to pay for a new car, lost wages, as he took time off work to recover, says that he is now frightened of driving, and that he too has suffered greatly as a result of your offending.

Submissions

Defendant’s submissions

[32]     Your  counsel  has  filed  submissions  today  to  deal  with  addressing  your personal mitigating factors.  Your counsel submits that total discounts ought to be at least 28 months, allowing for an end sentence of no more than five years’ imprisonment.

[33]     Your  counsel  submits  that  you  have  accepted  full  responsibility  for  the offending and are genuinely remorseful.   She requests that I recognise this by a discrete discount for genuine remorse.  She also points to your wish to participate in a restorative justice meeting; and the Crown has emphasised today the legal requirements as to when it would have been open to you to participate in such a meeting.

[34]     Your counsel has also sought to have me take into account the injuries that you suffered as a result of the car accident.  In this regard, you were in hospital for
10 days, seven of which were spent in the intensive care unit.   You sustained a number of injuries,  including fractures  of four  upper ribs,  laceration  of a lung, cardiac contusions, and an anterior mandible fracture, requiring surgery.

[35]     Additionally, it is submitted that the support of your family and friends, whose letters attest to your good qualities and confirm your remorse, will assist your rehabilitation and help to minimise your risk of re-offending.

[36]     Finally, it is noted that you are not in a position to pay reparation to the victims.

[37]     Your counsel has pointed to the decision in R v McGrath where a starting point of seven years, five months’ imprisonment for very similar offending was adopted.   Mander J gave a discount of nine months for the defendant’s personal circumstances,   which   he   identified   as   participating   in   a   restorative   justice conference, genuine remorse, sustaining serious injuries and that the defendant had
lost a friend.3

[38]     It is submitted that a deduction of at least eight months be allowed for your personal circumstances, and that this should be added to the further discount of
25 per cent discount for the early guilty plea.

Discussion

[39]     In Gacitua v R, the Court of Appeal set out a list of relevant mitigating factors. These were:4

Mitigating factors

(a)	A good driving record;

(b)	The absence of previous convictions;

3	R v McGrath, above n 1, at [27]-[30].
4	Gacitua v R [2013] NZCA 234 at [26], citing R v Cooksley [2003] 3 All ER 40 (Crim App) at
[17].

(c)	A timely plea of guilty;

(d)	Genuine shock or remorse (which may be greater if the victim is either a close relation or a friend);

(e)	The  offender’s  age  (but  only  in  cases  where  lack  of  driving
experience has contributed to the commission of the offence); and

(f)	The fact that the offender has also been seriously injured as a result of the accident caused by the dangerous driving.

[40]     The Court said that these factors were useful for identifying relevant factors in sentencing in cases of motor manslaughter.5   These must be applied in accordance with the provisions of the Sentencing Act 2002.  In that regard, I remind myself of ss 7 and 8 of that Act.

[41]     In Hessell v R, the Supreme Court said that where, on a proper and robust evaluation of all the circumstances, the defendant’s genuine remorse was demonstrated, credit separate to that given for a guilty plea should be made.6

[42]     In my view, you have demonstrated genuine remorse.  There are the letters that you have sent to the Court.  There is the early admission that you made to the police.  You have offered to participate in a restorative justice programme.  The pre- sentence report also records your remorse, and you impressed the pre-sentence report writer, who interviewed you, as being genuine.  You are responsible for the death of your friend, and will have to bear that responsibility for the rest of your life.

[43]     However,  I  do  not  consider  that  the  injuries  suffered  by  you  warrant  a separate discount.  In R v McGrath, the defendant was a sickness beneficiary.  The Judge found that the injuries he had suffered as a result of the crash had significantly exacerbated the congenital spinal conditions which prevented him from engaging in
employment work.7     By contrast, there is no evidence that your injuries, whilst
relatively  serious,   have   had   any  lasting   impact.     Accordingly,   I  see   your circumstances as distinguishable from the offender in R v McGrath.

5	At [29].
6	Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [634].
7           R v McGrath, above n 1, at [27].  See also Paikea v Police [2014] NZHC 2609 where Toogood J allowed a modest reduction for the offender’s long lasting injuries.  The offender was charged with driving with excess blood alcohol.

[44]     In the circumstances, I consider that a five per cent discount for remorse should be made.8     In view of the starting point that I have already indicated, I consider that the five per cent discount – rounding figures – brings the result to one of seven years’ imprisonment.  There is then the 25 per cent discount for the early guilty plea.   Again, rounding matters down, I come to a sentence of five years’ imprisonment, which I consider to be the appropriate end sentence.

[45]     There is also the disqualification from driving, which must be imposed.   I consider that three years’ disqualification from driving is appropriate.  I also consider that that disqualification should not take effect until the time of your release from prison.  I accept that you do not have the means to pay reparation and, accordingly, I will make no order as to reparation.

[46]     Mr Pora, would you please stand.

[47]     On   the   charge   of   manslaughter,   you   are   sentenced   to   five   years’ imprisonment.  On the charge of driving recklessly, causing injury, you are sentenced to three years’ imprisonment.   On the charge of driving under the influence of alcohol, you are sentenced to two months’ imprisonment. All terms of imprisonment are to be served concurrently.   This means, Mr Pora, that the total term of imprisonment will be no more than five years’ imprisonment.

[48]     On the charge of failing to stop when followed by red/blue flashing lights, you are convicted and discharged.  On the charge of being an unlicensed driver, and failing to comply with a prohibition, you are convicted and discharged.

[49]   You are disqualified from driving for a period of three years.   That disqualification is to commence on the date of your release from prison.

[50]     Stand down please.

Duffy J

8	For example, in  Ormsby v  R, above n 1,  the  Court of Appeal upheld a  total discount of
36 per cent for remorse and an early guilty plea on a charge of manslaughter.

NOTE: PUBLICATION OF THE JUDGMENT AND OF THE REQUEST FOR A SENTENCING INDICATION IN ANY NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE IS PROHIBITED BY S 63 OF THE CRIMINAL PROCEDURE ACT 2011 UNTIL THE DEFENDANT HAS BEEN SENTENCED OR THE CHARGES DISMISSED.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2014-092-012273 [2015] NZHC 325

THE QUEEN

v

ROBERT PORA

Hearing:	27 February 2015	

Counsel:	
J Murdoch and N E Copeland for the Crown
L Freyer for the Defendant	

Judgment:	
27 February 2015	

(ORAL) JUDGMENT OF DUFFY J

Solicitors:	Meredith Connell, Auckland
Ministry of Justice (Public Defence Service), Auckland

[1]       The defendant, Mr Pora, is seeking a sentencing indication under Part 4 of the Criminal Procedure Act 2011.  An agreed summary of facts and information as to Mr Pora’s criminal history have been provided.  Victim impact statements have also been provided.  I do not, however, have a pre-sentence report or any other material that would go to substantiate any personal mitigating factors, and accordingly, I have not factored those into the sentencing indication.

[2]       Mr Pora faces several charges in relation to a motor vehicle crash in which the  passenger  of  the  vehicle  Mr  Pora  was  driving  was  killed  and  in  which  a passenger in another vehicle was injured.

Sentencing indications generally

[3]       The Court may give a sentence indication when requested to do so by the defendant before the start of the trial provided that the Court is satisfied that the information available at the time is sufficient to do so and the Court has before it an agreed summary of facts, information on the defendant’s previous criminal history and a copy of any victim impact statement.9

[4]       It  is  an  offence  to  publish  information  about  the  fact  that  a  sentence indication has been sought or what indication has been given until the charge has been dismissed or the defendant has been sentenced.10     A sentencing indication remains open until the close of the date specified by the Court, or, if no date is specified, the expiry of five working days after the date on which the sentencing indication was given.11   Here, I do not propose to specify a date and so it will be the default five-day period.

Offence

[5]       Mr Pora is charged with:

9	Criminal Procedure Act 2011, s 61.
10	Section 63(1).
11	Section 64.

(a)	Manslaughter under ss 171, 160(2)(a) and 177  of the Crimes Act

1961. The maximum penalty for this offence is life imprisonment;

(b)	Driving	recklessly	causing	injury	under	s	36(1)(a)	of	the

Land Transport Act 1998.  The maximum penalty for this offence is a

$20,000 fine or five years’ imprisonment and a minimum one year disqualification from holding or obtaining a driver’s licence;

(c)	Driving  under  the  influence  of  drink  under  s  58(1)(a)  of  the

Land Transport Act.	The  maximum  penalty  for  this  offence  is  a

$4,500  fine  or  three  months’  imprisonment  and  a  minimum  six months’ disqualification;

(d)	Failing to stop when followed by red/blue flashing lights contrary to s 52(1)(c) of the Land Transport Act.	The maximum penalty is a
$10,000 fine; and

(e)	Unlicensed  driver  failed  to  comply  with  prohibition  pursuant  to s 52(1)(c) of the Land Transport Act, the maximum penalty for which
is also a $10,000 fine.

Facts

[6]       The facts of the alleged offending are as follows.   At about 9:30 pm on Friday, 15 August 2014, Mr Pora was the driver of a motor vehicle travelling east on Puhinui Road, Manukau.  Steven Henare Te Pania was seated in the front passenger seat of the vehicle.

[7]       Police observed Mr Pora overtake another vehicle at speed.  Police engaged the red and blue lights and siren and began to pursue Mr Pora.  Mr Pora accelerated and drove through an intersection.  He continued driving at a speed estimated to be between 80 and 100 kilometres an hour along Puhinui Road.  The speed limit on this road is 50 kilometres per hour.

[8]       The car approached an intersection where a number of cars were stationary at a red light.  Mr Pora veered into the right hand lane and continued to speed through the intersection onto Reagan Road.  He then turned south onto Boundary Road.  The speed limit on both of these roads is 50 kilometres per hour.  At some point whilst driving along Boundary Road, Mr Pora turned his headlights off.

[9]       Mr Pora then attempted to overtake another vehicle.  He crossed the centre line and struck a raised centre island which was marking a pedestrian crossing. Mr Pora lost control of the vehicle and the vehicle travelled down the wrong side of the road before colliding with an oncoming vehicle.  The impact caused Mr Pora’s car to flip on to its side, trapping both occupants.

[10]     Police and ambulance staff arrived at the scene and extracted Mr Pora from the  vehicle  and  transported  him  to  Middlemore  Hospital  with  life-threatening injuries.  Steven Te Pania, the front seat passenger, was found to have died as a result of injuries sustained from the crash.

[11]     The driver of the oncoming vehicle, Pateine Sekene, was taken to hospital overnight and treated for an injury to his shoulder.  He was discharged the following day.

[12]     An analysis of Mr Pora’s blood taken upon his admission to hospital revealed that his blood alcohol level was between 115 and 127 milligrams of alcohol per 100 millilitres of blood.   A subsequent scene examination revealed that the car was travelling between an estimated 85 and 93 kilometres per hour immediately prior to striking the centre island.  The car had no warrant of fitness and the registration had expired.

[13]     Mr Pora admitted being the driver of the car and accepted responsibility for the crash.  He admitted consuming beer prior to the incident and conceded that he was driving far over the speed limit.  He acknowledged that he was aware that the car had deficiencies in relation to the tyres and the engine, and that it did not have a current warrant of fitness.  Mr Pora acknowledged that he was not allowed to drive, and that he knew the police were pursuing him and he was required to stop.  Mr Pora

claimed that Mr Te Pania had initially encouraged him to drive off at speed to avoid the police.

[14]     Mr Pora was 26 at the time of the alleged offending.

Personal circumstances

Prior convictions

[15]     In terms of Mr Pora’s criminal history, he has previous convictions extending back to 2004.  These include an offence from 2004 of driving a motor vehicle in a dangerous manner, offences from 2008 of failure to stop when followed by red/blue flashing lights, and operating a motor vehicle causing sustained loss of traction, and an offence from August 2014 of being an unlicensed driver and failing to comply with the prohibition.

[16]     The summary of the alleged facts also states that on 15 July 2006, Mr Pora was stopped by police while driving.  It was revealed that he did not have a driver’s licence, and he was informed by way of a traffic notice offence that he was forbidden from driving until he obtained an appropriate driver’s licence.

Submissions

Crown submissions

[17]     Against this background, the Crown submits that concurrent sentences should be imposed, with the charge of manslaughter taken as the lead offence.  The Crown submits that a starting point, representing the total offending, of seven to eight years’ imprisonment is appropriate, with an uplift of six months’ imprisonment to reflect Mr Pora’s previous convictions and that he was prohibited from driving at the time of the offence.   The Crown had initially submitted that a discount of 20 to 25 per cent would be appropriate in the event that Mr Pora pleads guilty.  But today, at the hearing, the Crown has accepted that if a guilty plea were entered as a result of this sentencing indication, that a 25 per cent discount for the guilty plea would be appropriate.

Defendant’s submissions

[18]     In terms of the defendant’s submissions, Mr Pora submits that the appropriate starting point is no more than seven years’ imprisonment.   He accepts that there should be a small uplift for previous convictions.  He further submits that a discount of nine months should be given for his family support, remorse, restorative justice,12 and the fact that he sustained serious injuries at the crash. Those comments are made in written submissions.  However, I have pointed out to the defendant today that, at present,  I do  not  have  material  before  me  that  would  substantiate  the  personal mitigating factors that he seeks to rely upon.  Accordingly, without that information,
I do not propose to give any indication of what the discount might be for personal mitigating factors, other than the discount for an early guilty plea.  What account is taken of Mr Pora’s remorse, any restorative justice attempts, or any other personal mitigating factors is something that will have to be raised before the sentencing Judge.

Analysis

Applicable law

[19]     Here, the Crown relies on the approach to manslaughter involving motor vehicles taken by the Court of Appeal in Gacitua v R.  In that case, the Court said that the guidelines laid out in the United Kingdom case in R v Cooksley were useful for identifying some of the aggravating and mitigating factors relevant to sentencing in this type of case.  The Court reiterated that the weight to be attached to each factor
was a matter for assessment in the particular circumstances.13   The factors as set out

in R v Cooksley are:14

Highly culpable standard of driving at time of offence

(a)	The consumption of drugs (including legal medication known to cause drowsiness) or of alcohol, ranging from a couple of drinks to a
‘motorised pub crawl’.

12         Should  the  pre-sentence  report  show  that  Mr  Pora  is  genuinely  remorseful.    The  written submissions for Mr Pora note that if  he does enter a guilty plea, he has indicated a desire to participate in restorative justice.
13	At [28].
14	R v Cooksey [2003] 3 All ER 40 (Crim App) at [25]-[26].

(b)	Greatly excessive speed; racing; competitive driving against another
vehicle; ‘showing off’.

(c)	Disregard of warnings from fellow passengers.

(d)	A prolonged, persistent and deliberate course of very bad driving.

(e)        Aggressive driving (such as driving much too close to the vehicle in front, persistent inappropriate attempts to overtake, or cutting in after overtaking).

(f)	Driving while the driver’s attention is avoidably distracted, e.g. by
reading or by use of a mobile phone (especially if hand-held).

(g)        Driving when knowingly suffering from a medical condition which significantly impairs the offender’s driving skills.

(h)	Driving when knowingly deprived of adequate sleep or rest.

(i)         Driving   a   poorly   maintained   or   dangerously   loaded   vehicle, especially where this has been motivated by commercial concerns.

Driving habitually below acceptable standard

(j)         Other offences committed at the same time, such as driving without ever  having  held  a  licence;  driving  while  disqualified;  driving without  insurance;  driving  while  a  learner  without  supervision; taking a vehicle without consent; driving a stolen vehicle.

(k)        Previous  convictions  for  motoring  offences,  particularly  offences which involve bad driving or the consumption of excessive alcohol before driving.

Outcome of offence

(l)         More than one person killed as a result of the offence (especially if the offender knowingly put more than one person at risk or the occurrence of multiple deaths was foreseeable).

(m)	Serious injury to one or more victims, in addition to the death(s).

Irresponsible behaviour at time of offence

(n)        Behaviour at the time of the offence, such as failing to stop, falsely claiming that one of the victims was responsible for the crash, or trying to throw the victim off the bonnet of the car by swerving in order to escape.

(o)        Causing death in the course of dangerous driving in an attempt to avoid detection or apprehension.

(p)	Offence committed while the offender was on bail.

Mitigating factors

(a)	A good driving record.

(b)	The absence of previous convictions. (c)	A timely plea of guilty.
(d)	Genuine shock or remorse (which may be greater if the victim is either a close relation or a friend).

(e)	The  offender’s  age  (but  only  in  cases  where  lack  of  driving
experience has contributed to the commission of the offence); and

(f)	The fact that the offender has also been seriously injured as a result of the accident caused by the dangerous driving.

[20]     Here, both the Crown and the defendant rely on R v McGrath.15   In that case, Mander J adopted a seven year starting point, with reference to Gacitua v R.16   The offender was travelling at 100 kilometres per hour in a limited speed zone when he passed a police patrol car.  The police car followed the offender with its sirens on,
and the offender accelerated, reaching a speed of 142 kilometres per hour.  He lost control of the vehicle at a left hand curve: the vehicle slid into the oncoming lane, crossed the grass verge,  travelled through the air and crashed into a residential dwelling.   The force of the impact destroyed the front of the house.   One of the passengers  of  the  vehicle  died,  and  the  other  suffered  extensive  rib  and  spine injuries.   The offender was also seriously injured.   His blood alcohol levels were estimated to be between 130 and 160 milligrams per 100 millilitres of blood at the time of the crash.  The offender pleaded guilty to manslaughter, dangerous driving causing injury, and driving with excess blood alcohol.

[21]     Mander J uplifted the starting point by five months, due to two previous convictions for driving with excess breath alcohol.   A nine month deduction was given  to  take  into  account  the  fact  the  offender  was  a  29  year-old  sickness beneficiary, had suffered significant injuries as a result of the crash, had accepted full responsibility for the victim’s death, participated in a restorative justice conference,
and appeared genuinely remorseful.17    The full 25 per cent discount was given for
the early guilty plea, and a minimum period of imprisonment of two years was imposed.18

15	R v McGrath [2014] NZHC 1583.
16	At [25].
17	At [26]-[30].
18	At [34]-[35].

[22]     The  Crown  also  relies  on  R  v  Mika.19      In  that  case,  the  offender  was sentenced for one charge of manslaughter, one charge of being an unlicensed driver failed to comply with the prohibition, one charge of failing to stop when followed by red/blue flashing lights, and one charge of failing to stop to ascertain injury or death after a crash.   The offender was observed speeding by police, who activated their lights and siren.  The offender accelerated, reaching speeds of 90 kilometres per hour in a 50 kilometre per hour zone, where some sections of the road had been further reduced to 30 kilometres per hour.  The offender reached speeds over 100 kilometres per hour.  He lost control of the car at a section of road-works, hit the road barriers, causing the vehicle to roll.  He then ran from the scene.  One of the passengers of the car was killed.  The offender was affected by drugs and alcohol at the time of the crash and had ignored the passengers’ pleas to slow down.  He had previously been convicted of driving while forbidden or disqualified 11 times, careless driving, reckless driving and refusing an officer’s request for a blood specimen.

[23]     The Judge adopted a starting point of eight years’ imprisonment, and uplifted this by one year to reflect the offender’s previous convictions.20    The Judge gave a
20 per cent discount for the offender’s guilty plea and a further five per cent to reflect remorse and the offender’s background, resulting in an end sentence of six years, nine months’ imprisonment.21

[24]     In Ormsby v R, the Court of Appeal dismissed an appeal against a sentence of four  years,  two  months’  imprisonment.22       The  starting  point  adopted  in  the High Court was six years, six months’ imprisonment. The offender was 18 years old, drove at high speed over some distance and ignored the requests of his passengers asking him to slow down.  The car crashed and the victim was thrown from the car and died.  The offender’s blood alcohol level was 117 milligrams per 100 millilitres of blood.  The Court of Appeal held that the High Court had correctly identified the aggravating features of the offending as: alcohol, excessive speed, ignoring repeated
warnings from passengers, poor and aggressive driving, and the fact that the offender

19	R v Mika [2013] NZHC 2357.
20	At [53].
21	At [70].
22	Ormsby v R [2013] NZCA 578.

had been stopped by police and prohibited from driving nine days earlier.23   A total discount of 36 per cent for an early guilty plea and the offender’s remorse was also considered within the range.24

[25]     Finally, R v Murcott is also comparable.25     In that case, the offender had pleaded guilty to two charges of driving with excess breath alcohol, two charges of reckless driving causing injury, one charge of failing to stop or ascertain injury or death after an accident, and one charge of manslaughter. The offender accelerated on a gravel road, performing a skid while driving up a hill, he then turned and sped back down the road through the dust and accelerated to a speed estimated to be between
90 kilometres per hour and 110 kilometres per hour.  The offender then applied the hand-brake to send the car into a slide.  He lost control of the car, which drifted off the road before striking a small fence and slamming sideways into a large tree.  The offender ran off, asking one of the passengers, who ran to get help, to take the rap. He did not check on the other two occupants of the car.  One of these passengers was pulled by the other remaining passenger from the car, but died before the emergency services reached the car.  It was estimated that the offender’s blood alcohol level at the time of the crash was 190 milligrams per 100 millilitres of blood.

[26]     The Judge identified the relevant factors as alcohol consumption, excessive speed, disregard of warnings, driving in breach of licence conditions, and serious injury to other passengers.   The Judge adopted a starting point of six years’ imprisonment and uplifted this by six months to reflect the fact that the offender had fled the scene of the crash.  A discount of 35 per cent was given for the offender’s
youth, good character, and remorse.26

23	At [3]. The Court said the fact that he had never held a drivers’ licence could also be added to this.
24	At [11]. “Remorse” included the offender’s offers of reparation, to engage in restorative justice and
his rehabilitative prospects.
25	R v Murcott [2014] NZHC 971.
26	At [46]-[47]. The offender was 19 at the time of the crash. The victim was his 16 year old step- brother – the court noted that remorse might be greater in cases where the victim is a close relation.

Application

[27]     Applying the principles I have just outlined to the alleged facts, all charges arose out of the same incident and, therefore, concurrent sentences should be imposed. The charge of manslaughter is the lead offence.

[28]     The Crown submits that the factors relevant to the offending itself as taken from R v Cooksley are:

(a)	The consumption of drugs; (b)	Greatly excessive speed;
(c)	A prolonged, persistent and deliberate course of very bad driving; (d)	Driving a poorly maintained vehicle;
(e)	Other motor transport offences committed at the same time; (f)	Serious injury to others; and
(g)	Causing death in the course of dangerous driving in an attempt to avoid apprehension.

[29]     I  agree  that  those  factors  were  present  in  the  offending.    Mr  Pora  had consumed alcohol, was driving far over the speed limit and before the crash had inappropriately overtaken other cars and driven through a red light.   He was an unlicensed driver and his car did not have a warrant of fitness.  The driver of the other car was injured, Mr Te Pania lost his life and this all occurred while Mr Pora was attempting to evade police.

[30]     The offending, in my view, is very similar to that in R v McGrath – both incidents  followed  periods  of  bad  driving  where  the  offender  inappropriately overtook other vehicles.  In McGrath’s case, the offender was not separately charged with failing to stop when followed by flashing red/blue lights and he was not an

unlicensed driver.   On the other hand, the offender was charged with dangerous rather than reckless driving causing injury.   He was also driving faster and had a higher blood alcohol level.

[31]     With reference to McGrath and the other cases that I have cited, I consider that a seven year starting point is appropriate.

Aggravating and mitigating factors

[32]     I consider there should be an uplift, given that Mr Pora had previous driving convictions. He had been unlicensed since 2006.   He knew he was forbidden to drive.   I consider that the uplift should be four months, given that the charge for dangerous driving occurred 10 years ago.  I consider that the charge of driving while unlicensed, which is an aggravating factor, is something that has been taken into account in setting the starting point and does not require a further uplift.  This brings the sentence to one of seven years, four months’ imprisonment.

[33]     Mr Pora may be entitled to a discount for remorse, but as I have said that, and other personal mitigating factors are outside the scope of this sentence recommendation and I leave that open to the sentencing Judge.

[34]     The only other matter for me to cover in the sentencing indication is the fact that if there is a guilty plea following this sentencing indication, then that will warrant a 25 per cent discount.

[35]     There  is  also  the  question  of  disqualification.    It  seems  to  me,  given Mr Pora’s criminal history in terms of motor transport offences and the nature of this offending, that he should be disqualified from driving for a period of at least three years.

[36]     There is the fact of reparation.  The victim impact reports have made it very clear the damaging emotional impact this offending had, first on Mr Sekene, who was the person in the other vehicle.   It has certainly affected his life.   He has described suffering more pain than what might be first thought, given that he was

released from hospital shortly after admission.  He has suffered the fact that his car was a write-off.  It was not insured.  Therefore, he has had to borrow more money to buy a new car, while still paying off the wrecked car.

[37]     There are also the victim impact reports from Steven Te Pania’s mother and his partner, Ms Slater.   These show the serious emotional harm both victims have suffered.  They also show that there is serious financial harm also associated with Mr Te Pania’s death, particularly in regard to the headstone.

[38]     I have canvassed with Mr Pora’s counsel whether he is in a position to make reparation.  She says, given his personal circumstances, he is not.  Nonetheless, the question of whether some contribution could be made is something that seems to me to be relevant to any expression of remorse and, again, is a matter that I leave open for the sentencing Judge.

[39]     That is the sentence indication.

Duffy J