IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI-2015-412-000021 [2015] NZHC 1793

BETWEEN	JING CAO
Appellant	

AND	
NEW ZEALAND POLICE Respondent	

Hearing:	27 July 2015	

Appearances:	
A Stevens for Appellant
R P Bates for Respondent	

Judgment:	
31 July 2015	

JUDGMENT OF GENDALL J

Introduction

[1]       This is an appeal  against an effective sentence of one  year, six  months’

imprisonment imposed upon the appellant Mr Cao, a Chinese national.  On 14 April

2015 the appellant pleaded guilty to one charge of driving dangerously causing death,  an  offence  against  s  36AA(a)(b)  Land  Transport  Act  1998  carrying  a maximum  penalty  of  10   years’  imprisonment,  and  five  charges  of  driving dangerously causing injury, offences against s 36(1)(b) Land Transport Act 1998 carrying maximum penalties of five years’ imprisonment.

[2]       On   9   June   2015   Judge   Phillips   in   the   District   Court   imposed   the imprisonment sentence (along with orders which are not the subject of this appeal requiring the appellant to pay $61,890 in reparation and disqualifying him from driving  for  four  years)  and  he  declined  the  appellant’s  request  to  commute the sentence to one of home detention.  Mr Cao, however, was granted bail pending the
hearing of this appeal.

CAO v NZ POLICE [2015] NZHC 1793 [31 July 2015]

[3]       This appeal is brought on two grounds:

(a)       The first ground is that the starting point of three years, six months imprisonment  adopted  by Judge Phillips  in  the District  Court  was excessive; and

(b)       The second is that in the circumstances of this case the Judge was wrong to reject home detention as the least restrictive and appropriate sentencing option.

Factual background

[4]       At the time of this offending the appellant was in New Zealand on holiday with his parents, partner and friends.  On the day in question, the appellant was on his fifth day driving in New Zealand, having obtained a rental vehicle when he arrived in Auckland and driven down to the South Island.   He was driving from Christchurch to Dunedin with his group when they stopped at Moeraki Boulders between Oamaru and Dunedin.  After spending some time there, the appellant drove the rental vehicle, with his parents and partner as passengers, back out onto State Highway 1 in the late afternoon.  He turned left to travel south to Dunedin.  It seems to be accepted that, after travelling approximately 450 metres on the correct left hand side of the State Highway, on  an uphill section of the roadway he crossed the centreline, cutting a yellow no-passing line, to drive on the incorrect right hand side of the road.  He continued to drive on that right hand side of the roadway for several hundred metres (it seems up to about 450 metres) up the hill until he reached the brow of the hill and came front on to a car occupied by the Marris family, driving north on the correct left hand side of the road.  Inevitably there was a tragic collision, the young five year old daughter of the family, Ruby Marris, was killed, four Marris family members were seriously injured, as was the appellant’s mother.  The appellant was travelling at or about 100 kilometres per hour when the collision occurred.

[5]       The appellant, who was aged 31 at the time of this incident, was said to be an experienced driver in China, and in particular in his home city of Beijing.

[6]       Before the District Court there appeared to be some debate over whether or not the appellant may have been tired at the time.  Suffice to say that the notes of Detective  Smail  taken  when  interviewing  the  appellant  which  were  before  the District Court, noted that the appellant had said, in the context of explaining why he had made a mistake by crossing into the right lane of the state highway, that he was “maybe tired”.

[7]       From Judge Phillips’ decision in the District Court the factual basis for his sentencing appeared to accept that, after the appellant had turned on to the state highway,  because  of  inattentiveness  and  tiredness  he had  become  confused  and uncertain as to which side of the road he should be driving on,  He had then driven over the yellow no passing line and mistakenly moved to and remained on the incorrect side of the road travelling uphill at or about 100 kilometres per hour and shortly before the brow of a hill.  Judge Phillips noted that the appellant had also at the time ignored the fact that his steering wheel was on the right hand side of the car and adjacent to the furthest right hand side of the road, and that he passed a sign on the left hand side of the road facing downhill, saying “Moeraki Turn Left”, all of which could have alerted him to the situation.

[8]       An issue therefore was where this placed the appellant’s culpability on the

scale of dangerous driving.

Jurisdiction to appeal

[9]       Turning now to the jurisdiction for this appeal, Mr Cao is able to appeal the sentence imposed as of right.1     This Court, as first appeal Court,2 will only disturb the sentence appealed from if the appellant can establish that there was an error in the sentence and that a different sentence should be imposed.3    The Court of Appeal has confirmed that the sentence appeal regime in the Criminal Procedure Act 2011 remains the same as that under the predecessor regimes in the Crimes Act 1961, s
385(3) and the Summary Proceedings Act 1957, s 121(3).4       Toogood J recently

1	Criminal Procedure Act 2011, s 244.
2	Section 247.
3	Section 250.
4	Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.

captured the essence of the test in Larkin v Ministry of Social Development5  in this way:

[26]      The High Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles. Whether a sentence is manifestly excessive is to be examined in terms of the sentence given, rather than the process by which the sentence is reached.

[10]     And indeed in Ripia v R, the Court of Appeal has also commented:6

On appeal, an assessment of the judge's evaluation will inevitably take place within the context of an inquiry into whether the final sentence is of an available type, and if so, whether it has been shown to be manifestly excessive. No specific rules can or should be prescribed.

[11]     I turn now to consider the two grounds advanced for this appeal as noted at paragraph [3] above.

The starting point

[12]     The starting point for sentencing arrived at by Judge Phillips was three years, six  months’ imprisonment,  although  from  this  he  gave  a  substantial  credit  for mitigating features of some 57%, totalling two years.   Nevertheless, the appellant contends that the three years, six months starting point is excessive and thus the final sentence arrived at should be reduced.  On this the appellant takes issue with various views outlined above at [7] expressed by Judge Phillips in his sentencing decision.  It is said this reasoning is flawed as it is entirely feasible that the appellant, a driver from China, a right hand driving country, when in New Zealand with the opposite rule, would think at some point that he was on the correct side of the road when he was not.   According to Mrs Stevens, counsel for Mr Cao, this resulted in a pure mistake being made on the part of Mr Cao.

[13]     Mrs Stevens notes that in the 900 metres between the appellant turning on to State Highway 1 and the fatal collision there were no directional arrows on the road, nor at the time were there any other vehicles on the road either in front of him or in
the other lane. Also, she said it cannot be suggested that Mr Cao deliberately crossed

5	Larkin v Ministry of Social Development [2015] NZHC 680, citing Ripia v R [2011] NZCA 101 at [15].
6	Ripia v R [2012] NZCA 101 at [10].

over the yellow line, nor can it be concluded that he saw or indeed ignored the sign saying  “Moeraki  Turn  Left”,  given  that  his  destination  was  Dunedin  and  not Moeraki.  Mrs Stevens maintains that the rational explanation for this tragic event is the one Mr Cao gave to Detective Smail shortly after the collision that he had made a mistake, he made the mistake maybe because he was tired, he did not know, but it was a simple mistake.

[14]     Mrs Stevens then notes that the appellant’s experience of driving in high density traffic in Beijing, China did not translate here to experience in driving in the sparsely populated stretches of rural highway found in New Zealand.  She went so far as to suggest that Mr Cao was paying attention to his driving but strong exception was taken to this claim.  Mrs Stevens concluded that Mr Cao simply made a mistake which had fatal consequences.  She noted there was no suggestion here that he was driving erratically or was distracted, nor that there was excessive speed involved or that he was alcohol or drug-affected at the time.

[15]     Finally, Mrs Stevens contended that the distance the appellant travelled on the right hand side of the road was less than 450 metres and at a speed of 100 kilometres per hour that distance would be covered in 16 seconds (or if he had only travelled 250 metres on the right hand side of the road then this period of travel would take just nine seconds).  On either calculation she argued this was a very brief period of time and, in her submission, too brief a period to conclude that Mr Cao was ignoring signs or signals that he was not on the correct side of the road.  As a result, Mrs Stevens suggests that Mr Cao’s culpability here must be seen as at a low level, contrary to the findings made by Judge Phillips in his decision.

[16]     Next, before me Mrs Stevens referred to the decision of the Court of Appeal in Gacitua v R7  where the Court at para [25] set out aggravating and mitigating factors identified by the Sentencing Advisory Panel (SAP) in Britain as guidelines for sentencing in dangerous driving causing death cases.   Of the 16 aggravating features identified there, Mrs Stevens suggested only one was applicable in this case, that in addition to the death caused to Ruby Marris there was serious injury to others.
Of the six mitigating factors however, according to Mrs Stevens, four apply – a good

7	Gacitua v R [2013] NZCA 234.

driving record, an absence of previous convictions, a timely plea of guilty, and genuine shock and remorse.

[17]     She contends therefore that taking these aggravating and mitigating factors into account places the dangerous driving here at the lower end of offending.

[18]     Mrs Stevens then referred me to two other decisions, Ko v Police8  and R v

Wang.9

[19]     In  Ko,  a  Singaporean  national  overtook  on  double  yellow  lines  in  an endeavour to pass a truck, causing a head on collision, and faced a charge of dangerous driving causing death and four charges of dangerous driving causing injury. In describing this as a “gross error of judgment” Panckhurst J in that case adopted a starting point of three years.

[20]     In Wang, a case of overtaking followed by failure to return to the correct side of the road, again on charges of dangerous driving causing death and four charges of dangerous driving causing injury, the defendant’s culpability was described as moderate and a starting point of three years was also adopted.

[21]     Here the appellant’s complaint is that Judge Phillips placed his offending at a higher level of culpability than either Ko or Wang which led to him deciding three and a half years was the correct starting point.  The appellant maintains that had a correct assessment been made, the starting point would have been two years, nine months,  slightly  lower  than  in  Ko  or  Wang.    Mrs  Stevens  contends  also  that Judge Phillips gave no principled basis for finding the appellant’s driving here more culpable than that of Mr Ko or Mr Wang.

[22]     I turn now to arguments advanced before me by Mr Bates for the Crown. There can be no doubt, as Mr Bates pointed out, that the Land Transport Act requires drivers on New Zealand roads not to be careless, dangerous or reckless in their driving.   These categorisations of driving range from factors such as momentary
inattentiveness through to deliberate risk-taking.

8	Ko v Police [2012] NZHC 3312.
9	R v Wang (DC) Dunedin CRI-2014-025-314, 2 May 2014.

[23]     There are therefore three elements involved in proving unacceptable driving:

(a)	The driver fell below the standard of care expected of a reasonable and competent driver;

(b)       The resulting situation was objectively dangerous;

(c)	The driver was aware of the potential danger and continued to act despite knowledge of the possible consequences.

[24]     If the situation involves  only the first  element  noted above, a charge of careless driving is the appropriate one.   If there is also evidence of the second element then a charge of dangerous driving can be proved.  If all three elements are made out then a conviction for reckless driving will follow.

[25]     In this case, the appellant pleaded guilty to one charge of dangerous driving causing death and five charges of dangerous driving causing injury.  It must follow that the appellant accepts the first two elements noted above were made out in all the circumstances prevailing here.

[26]     Mr Bates goes on in his submissions to suggest that Judge Phillips in his decision has correctly taken into account factors which contributed to the appellant failing to meet the standard of care expected of a reasonable and competent driver in this country,  and also  he has properly assessed  the actual dangerousness of the driving, objectively viewed.

[27]     On all of this it is useful to repeat Judge Phillips’ findings when assessing culpability  and  the  various  factors  he  outlined  at  paras  [7],  [8]  and  [9]  of  his decision:

[7]        It is on that basis that your culpability has to be considered.  I take the following matters into account in making that assessment.   You had clearly been travelling down New Zealand for a number of days, four or five by my counting.   It might very well have been that there was a degree of succumbing to boredom or ennui as you travelled down the road.  But the photographs show it very clearly here. At about the point where you crossed over onto the right-hand side of the road, there was a solid yellow line clearly depicted. There was clear visibility right up until the brow of the hill.

The Ford Ranger you were driving was a vehicle with right-hand steering wheel position.  You had crossed over to the centre line, you were travelling heading south towards a hill, positioned behind that steering wheel on the furtherest right hand side of the road.  There was a sign that you must have gone past indicating a left-hand turn into Moeraki on the left-hand side of the road.

[8]        I consider all that points, if you had been fully aware and paying attention and considering your position, to being clearly on the wrong side of the road.  You should have been fully attentive and fully aware of that fact. This was not just a quick “veer over”.   You travelled some hundreds of metres on that side of the road before impacting the Marris car.

[9]        I think when I read the submissions that have been placed before me in writing from your Auckland counsel (not Mrs Stevens who appears today, but your Auckland counsel) there has been an attempt to rationalise what happened as a base for an argument that your acts fell at the bottom level of the dangerous elements that your combined actions were.   You were being put forward in those submissions as careful and attentive.   That you must have been tired was what and how you put it to the police.   Emphasis is placed that you had had this break at Moeraki so how could you be tired? Well with due respect to that submission people can have breaks and remain tired.  It is a matter of assessment when you are behind the wheel of the car. It is argued that you were feeling rested and that you were attentive.  The indications to me, looking critically and objectively at it, with the benefit of hindsight, were that you were not. You are not an inexperienced driver and I take that into account.  You were on the wrong side of the road for a period of time.  I must take that into account as well.

Sentence in this case

[28]     As a starting point, it is useful to note that on 10 May 2011 as part of a package of reforms which were intended to promote road safety, Parliament in this country increased the maximum sentence for dangerous or reckless driving causing death from five years to 10 years’ imprisonment.   Clearly this amendment sent a message to the Courts that tougher sanctions were required at the time for dangerous
or reckless drivers who caused death.10

[29]     With this in mind, I turn now to the appellant’s criticism of the starting point adopted by Judge Phillips. As to the appropriate range for such a starting point, in R v Ellison11  a decision of the Court of Appeal given prior to the doubling of the maximum penalty, the Court found that a range of two to five years’ imprisonment
was appropriate for offences of dangerous or reckless driving causing death.

10	On this see R v Gacitua [2012] NZHC 2542 at [25] and Gacitua v R [2013] NZCA 234 (Court of
Appeal).
11	R v Ellison [2007] NZCA 549.

[30]     Turning now to the circumstances prevailing in this case, at the outset I need to say that I take issue with the contention advanced for the appellant that in the lead up to this tragic accident he was being careful and attentive and that, in making the mistake he did, his culpability here was at the lower end of this offending.  There can be no doubt in my view that this was not a case of a momentary lapse on the part of the  appellant.    He  had  made  a  fundamental  error  and,  in  my  view,  there  is  a reasonable argument that his overall behaviour had bordered on gross recklessness. As I have noted, at the time, the appellant had been in New Zealand for some five days and he had driven down from Auckland.   This entailed driving virtually the length of the North Island, and well down a significant part of the South Island, much of which would have been on the open road and probably on State Highway 1. This was not a case of a recent arrival to this country making a momentary lapse and electing to drive on the wrong side of the road soon after picking up a rental vehicle in Auckland.   Further, this was not a case of a momentary distraction causing the appellant to veer to the wrong side of the road for an instant or even for a short period of time.  Here the appellant, after joining State Highway 1, had driven on the correct left hand side of the road for some 450 metres before choosing to cut the yellow no-passing centre line and drive on the wrong side of the road for a distance which was likely to be up to another 450 metres.  This was in a situation where the open speed limit roadway was rising uphill with significantly restricted visibility into the distance.   And, this was also a situation of entirely normal daytime driving conditions on a clear road, not in any way a case where unusual roading conditions such as road works or changed or ill-defined lanes might create uncertainty and confusion for new drivers to the area like the appellant.

[31]     If, when the decision was made by the appellant to change to the right hand side of the road, as seems to be the case, he was unsure as to which was the correct side of the road to be on, certainly in one sense he was reckless in simply driving on at speed and not pulling over to the side of the road.   Pulling over would have enabled him to clarify this uncertainty and confusion, particularly given the huge risk he consciously took in driving on almost blind with entirely obscured vision ahead as the brow of the hill approached.

[32]     To consciously take these extreme risks whilst driving with restricted vision as to what lay ahead at a speed of approximately 100 kilometres per hour, not just because of a momentary lapse but for a significant period of time, during which he also  ignored  all  the  indicators  to  keep  left,  must  be  seen  here  as  putting  the appellant’s negligence and culpability at a high level.   This was an example of grossly negligent and unacceptable driving.    It had fatal and long-lasting consequences, although I do accept it is not the consequences themselves which dictate the sentence to be imposed here.  Inadvertence on the part of Mr Cao urged upon me by Mrs Stevens, was not an apt description of what occurred here.   The error was a fundamental one.  I say this, given the need for drivers on roads in this country, but particularly on major open roads, at all times to themselves drive, and to accept that other road users will also drive, on the correct side of the road, except where undertaking safe and proper passing manoeuvres.

[33]     This conclusion as to fundamental error here is supported, in my view, by other factors noted in Judge Phillips’ decision being:  first, the crossing of the solid yellow no-passing centre line, to drive on the right hand side of the road; secondly, the fact that the vehicle had a right hand steering wheel position which, after the manoeuvre would have been on the furthest right hand side of the road; thirdly, the sign on the left hand side of the road facing downhill indicating the left turn into Moeraki; and lastly, the possibility of the appellant having a degree of tiredness at the time and simply electing to ignore this and drive on.  And here, as I have noted, the appellant drove uphill for some distance on the wrong side of the road, approaching the brow of a hill with completely restricted visibility of what lay ahead, in a clear situation of uncertainty over which side of the road he should have been on.   Objectively it involved particularly dangerous driving on his part and I agree that his level of culpability here is high.

[34]     In saying this I accept that some of the other features in similar cases are not present in this case.  In Ko v Police, where a slightly lower starting point of three years  was  adopted  and  confirmed  on  appeal,  dangerous overtaking occurred  on double yellow lines causing a head on collision.  And, in Wang, a similar three year starting point was adopted where in a case of overtaking the offender had failed to return to the correct side of the road and again a fatal head on collision occurred.

The circumstances in the present case differ from those which occurred in Ko and Wang.  Here the appellant was not engaged in passing manoeuvres at the time but instead chose to take the conscious risks I have referred to above.

[35]     Whilst  I accept  that,  given  the  circumstances  in  the  present  case,  Judge Phillips was entitled to adopt the three year, six month period he did as a starting point, this being within the available range, it must be acknowledged that it was at the higher end.  But, notwithstanding that, even if I was to find that this starting point was too high and should have been reduced (for example to the two years, nine months period sought by the appellant), in my view, given the substantial credits Judge Phillips provided here, the end point arrived at of one  year, six  months’ imprisonment was well within the appropriate range.  I reach this view in light of the overall circumstances of the offending here, which it must be acknowledged resulted in the death of a child and serious injury being inflicted upon five others, all innocent victims.

[36]     For all these reasons I agree that both the starting point of three years, six months adopted by Judge Phillips and the final sentence of one year, six months were in each case within the appropriate range and have not been shown here to be manifestly excessive. This aspect of the appeal therefore must be dismissed.

Home detention

[37]     The second ground for appeal noted at [3] above is the appellant’s contention that Judge Phillips was wrong to reject his request to commute the sentence to one of home detention on the basis that this was the least restrictive and appropriate sentencing option here.

[38]     The authorities establish clearly that a decision whether or not to impose a sentence of home detention involves the exercise of a discretion.  Necessarily this means the decision may be interfered with on appeal only if there has been an error of principle, an irrelevant factor has been taken into account or there has been a failure to consider relevant factors.

[39]     In this case the appellant contends that Judge Phillips, in rejecting home detention as an option, placed too much weight on the consequences of the offending and, in particular, gave too much emphasis to the need for general denunciation and deterrence.

[40]     A decision to commute a sentence of imprisonment to one of home detention has been described as a strictly evaluative exercise, taking into account all relevant ss 7 and 8 purposes and principles.12   In addition, it has been said an assessment that focuses on only one purpose such as deterrence, to the exclusion of others, amounts to an error of law.13

[41]     It  is  clear  that  in  some  instances  in  the  past  the  Courts  have  found  it appropriate  to  impose  sentences  of  home  detention  in  dangerous  driving  cases. There have also been decisions, however, refusing home detention in cases like the present one, where it has been said the sentencing purposes of denunciation and
deterrence can be met by nothing less than a sentence of imprisonment.14   In Barnes

v Police this Court on appeal refused to convert a sentence of two years’ imprisonment to one of home detention for driving offences causing death.  There, French J noted what she described as a hardening of judicial attitudes in response to the continuing road toll, the repetition of personal tragedies and a growing sense of public outrage.  While the Court did recognise that sentences of home detention had been imposed in cases involving dangerous driving causing death, French J noted ultimately that the issue on appeal was whether the Judge erred in the exercise of a discretion – was the sentence within the range available to her or him?

[42]     Judge Phillips’ sentencing notes here, in my view, are comprehensive.  I am satisfied he had regard to all relevant matters including personal factors, and I do not accept that he has focused exclusively on general deterrence and denunciation in making his decision.  His assessment of matters was simply that considerations of deterrence and denunciation should be afforded primary weight and, as I see it, that
was a view that was clearly open to him in all the circumstances of this case.  He did

12	James v R [2010] NZCA 206.
13	Fairbrother v R [2013] NZCA 340.
14	For example, Yaxley v New Zealand Police (HC) Hamilton, 1 October 2008, CRI-2008-470-27 –
Andrews J, and Barnes v Police (HC) Timaru, 16 October 2009, CRI-2009-476-18 – French J.

not say that other factors were irrelevant, nor that a home detention sentence did not have a deterrent aspect, but, simply, that the principles and purposes of deterrence and denunciation were to take primary place here and loomed large in offending of this nature.   He noted too that this had been repeatedly held in decisions of the Courts and signalled by Parliament when it increased the maximum penalty for offences of this type from five years to 10 years’ imprisonment.

[43]     I have given careful consideration to the extensive and thorough submissions made by Mrs Stevens on behalf of the appellant.   Whilst she has endeavoured to categorise the appellant’s offending here as a “mistake”, as I have already noted, it was at least a gross and fundamental mistake, whether or not it might be categorised as occurring partly through inattentiveness, tiredness or otherwise, but, objectively, it involved particularly dangerous driving.  It was not a momentary lapse.  It involved a conscious choice with catastrophic consequences.  From the moment the appellant must have been unsure and queried which side of the road he should be driving on, and then made the foolhardy and reckless decision not to pull over and clarify this, but instead just to drive on at about 100 kilometres per hour with little vision of the road ahead, the only fair conclusion one can reach is that the degree of negligence involved in this behaviour, and thus the appellant’s culpability, was high.

[44]     I agree with Judge Phillips that in all the circumstances here clearly this was offending toward the higher end in terms of dangerousness and potential consequences.  In those circumstances, I find no error in the reasoning adopted by Judge Phillips in his decision.   He was able to conclude that a sentence short of imprisonment would not properly mark society’s condemnation of this type of offending, nor would it take into account the interests of the victims of the offending, notwithstanding the many positive features that were identified with respect to this appellant.  The Judge did not ignore any relevant factors, nor in my view did he take into account any irrelevant factors, he correctly directed himself in terms of the matters he was required to consider and the decision he reached not to commute the sentence to home detention was one open to him.

[45]     Comments made in 2013 by the Court of Appeal in Gacitua v R15 capture the grim reality of this type of offending and its subsequent consequences and, in my view, having some application here, are worth repeating.

[44]      ...having  regard  to  Parliament’s  clearly  expressed  intention  to increase sentences for reckless and dangerous driving causing death, we find the starting point adopted by Venning J in this case to be within the available range.  Parliament has moved decisively to respond to public concerns over the road toll.   While it is regrettable that a young man of unblemished character and obvious potential should face a lengthy prison term, the public interest in discouraging dangerous and grossly irresponsible driving must prevail.

[46]     I conclude that in adopting the true appellate role, which I must here, I can see no basis for intervening in Judge Phillips’ decision not to impose home detention in this case.

Outcome

[47]     Accordingly, this appeal is dismissed in its entirety.

[48]     The appellant has been on bail up to now pending the outcome of this appeal. An order is now made revoking that bail.   The sentence of one year, six months’ imprisonment imposed upon the appellant which was the subject of this appeal, (together with the unchallenged orders for payment of $61,890 reparation and his disqualification from driving for four years) are confirmed.

...................................................
Gendall J

Solicitors:
Anne Stevens, Dunedin
RPB Law, Dunedin

15	Gacitua v R [2013] NZC 234 at [44].