IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE	
CRI-2019-404-012
[2019] NZHC 905	

BETWEEN	DAVID SAVIETI
Appellant	
AND	NEW ZEALAND POLICE
Respondent	

Hearing:	15 April 2019	
Appearances:	M Pitch for Appellant D Dow for Respondent	
Judgment:	29 April 2019	

JUDGMENT OF LANG J
[on appeal against conviction and sentence]

This judgment was delivered by me on 29 April 2019 at 3.30 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date……………

SAVIETI v NEW ZEALAND POLICE [2019] NZHC 905 [29 April 2019]

[1]	Mr Savieti faced a charge of careless driving causing injury.1 He defended the charge but, in a reserved decision delivered on 13 September 2018, Judge Henwood found the charge proved beyond reasonable doubt.2

[2]	On 12 December 2018, the Judge sentenced Mr Savieti to 80 hours community work and ordered him to pay reparation to the victim of his offending in the sum of
$665.50.3 The Judge also ordered Mr Savieti to make an emotional harm payment to
the victim in the sum of $500. Finally, she disqualified Mr Savieti from holding or obtaining a driver’s licence for a period of six months.

[3]	Mr Savieti appeals against both conviction and sentence. He contends the Judge wrongly found that he had driven in circumstances that rendered his driving careless as required by the charge that he faced. On the issue of sentence, Mr Savieti contends the Judge erred in imposing a sentence of community work. He says the Judge should not have imposed such a sentence or, if it was warranted, the sentence should have been at the minimum level of 40 hours.

A	The appeal against conviction The prosecution case
[4]	There was no dispute regarding much of the factual background to the alleged offending. The prosecution case therefore consisted of formal admissions under s 9 of the Evidence Act 2006 together with briefs of evidence tendered to the Court by consent.

[5]	Mr Savieti is employed as a stores supervisor in the kitchens at Auckland Hospital. The prosecution alleged that at some time after 4 pm on 15 November 2016 Mr Savieti finished work and began driving his vehicle home. His route took him through Mount Roskill. At this point a motorist travelling behind Mr Savieti’s vehicle in May Road said he saw Mr Savieti’s vehicle drawing away slowly from his vehicle.

1	Land Transport Act 1998, s 38(1).
2	New Zealand Police v Savieti [2018] NZDC 18395.
3	New Zealand Police v Savieti [2019] NZDC 27284.

Mr Savieti’s vehicle then crossed the centreline and collided with an oncoming vehicle. The collision injured the drivers of both vehicles.

[6]	The prosecution contended Mr Savieti had decided to drive in circumstances where he was very tired after working later than he usually did. This resulted in him falling asleep and losing control of his vehicle. The resulting collision left the occupant of the other vehicle with significant injuries. The prosecution alleged that Mr Savieti’s conduct in driving whilst tired meant that he failed to exercise the care that would have been exercised by a reasonably skilful driver in the circumstances.4 He was accordingly guilty of careless driving that caused injury to the driver of the other vehicle.

The defence case

[7]	The defence case was based on matters that came to light after Mr Savieti was admitted to hospital following the collision. There he suffered a cardiac arrest after being given drugs to combat the pain he was suffering as a result of his injuries. This led to an investigation that concluded Mr Savieti was suffering from severe obstructive sleep apnoea.

[8]	Mr Savieti gave evidence at trial and he also called evidence from Dr Andrew Veale, a registered medical practitioner who is a specialist respiratory and sleep physician. Mr Savieti said that, in common with other members of his family, he has always snored when asleep. Until he was admitted to hospital following the collision, however, he was not aware that he suffered from obstructive sleep apnoea.

[9]	Mr Savieti said that on the day of the collision he had got up as usual at about
4.30 or 5 am and began work at 6 am. He says his work in the kitchen area of the hospital follows a reasonably predictable routine. The first two to three hours involve the lifting and storage of heavy containers of food products. He then spends the balance of the day carrying out administrative tasks, including data entry into a computer. He generally finishes work at around 2.30 pm but on the day of the collision

4	New Zealand Police v Vialle [1989] 1 NZLR 521 (CA) at 523.

he finished later at around 3.30 pm. He believes this may have been because staff shortages meant he was required to spend some time working in the kitchen.

[10]	Mr Savieti said that he is often physically tired when driving home but not “brain tired”. He said he deals with the physical tiredness by turning up the volume on his music and by opening the car window to refresh himself. Mr Savieti said he had no memory of feeling sleepy on the journey home on the day of the collision. He said he remembered turning into May Road in Mount Roskill. Thereafter he has no memory of the next 20 seconds leading up to the collision. He remembered waking up with his head rammed against the steering column. He was then freed from the vehicle and taken to hospital.

[11]	While Mr Savieti was in hospital his sleep patterns were measured overnight. This revealed that he suffered from either partial or complete respiratory obstruction on no fewer than 114 occasions each night. He was then given the use of an air flow generator known as a CPAP device. This requires Mr Savieti to wear a face mask whilst asleep. The face mask creates a pressure seal that holds Mr Savieti’s upper airway open, thereby preventing his airway from collapsing and obstructing his efforts to breathe.

[12]	Dr Veale said that obstructive sleep apnoea can manifest itself in a variety of ways on a day to day basis. Some persons have no symptoms at all whereas others may be severely affected. Some may be prone to marked daytime sleepiness at times of low stimulation, and in extreme cases sufferers may fall asleep without warning whilst driving a motor vehicle or in the midst of conversation.

[13]	Dr Veale said that persons who suffer from obstructive sleep apnoea may know they are tired, but in the absence of prior experience they may not know they are about to fall asleep. Furthermore, although the transition from wakefulness to feeling sleepy will generally be slow, the transition from feeling sleepy to falling asleep may be instantaneous.

[14]	In cross-examination Dr Veale confirmed that sleepiness depends on two factors. The first is sleep pressure, which is based on the quality and quantity of

preceding sleep. The second is motivation, or state of arousal. Dr Veale said that driving a motor vehicle is a low stimulant activity. Dr Veale also said that Mr Savieti’s lack of memory of the period immediately preceding the crash is not unusual in sleepiness associated with sleep apnoea or any other form of sleepiness. In addition, he said the effects of tiredness from a long day at work and a poor night’s sleep the previous evening may be cumulative and render a person particularly vulnerable to going to sleep. Finally, he said that most people would get some forewarning that they were at risk of falling asleep but whether they understood that sleep was likely to follow those signals depended on historical context. By this I take him to mean that a person is more likely to recognise the risk if they have fallen asleep in a similar situation on one or more previous occasions. Mr Savieti denies having fallen asleep whilst driving in the past.

[15]	Based on Mr Savieti’s self-described history, Dr Veale concluded this may have been “a very unfortunate first presentation of a recognisable symptom and sign of this very serious condition”. The defence was therefore that Mr Savieti had fallen asleep through no fault of his own, and his conduct did not fall below that of a prudent and reasonable driver.

The Judge’s decision

[16]	After traversing the evidence, the Judge expressed her conclusion succinctly in the following paragraphs of her decision:5

[19]	The key point is however, [Mr Savieti] did not have a nap at work before choosing to drive. He would have been having a nap between 3.00 and
4.00 pm is what he reported to the doctor. He would have two to three hours sleep which would be quite significant. This is understandable of course because of the long shifts he works, often waking probably before 5.00 am in order to set off to work at 5.00 am.

[20]	So while sleep apnoea was undiagnosed and the Court accepts that he suffers from sleep apnoea, the fact of having sleep apnoea was a cause of his falling to sleep or one of the causes. However, the defendant was clearly tired having done a longer shift and been awake for nearly 11 hours and he made the conscious decision to drive at a time knowing he had not had his usual daily nap. Had he been acting prudently he would have had a sleep at work before heading off in his car to drive home. The Defendant is guilty of driving his vehicle when he was tired and knowing that he would be driving at a time

5	New Zealand Police v Savieti, above n 2.

when he would normally be sleeping. He lost control of his vehicle due to fatigue, inattention, of falling asleep at the wheel, driving over the centre line and colliding with the complainant’s vehicle. The standard of his driving fell below that of a prudent and careful driver. He did not take a nap at his work place before commencing to drive thereby not being a reasonable and prudent driver.

Grounds of appeal

[17]	On Mr Savieti’s behalf Ms Pitch contends that the Judge was wrong to find the charge proved because the collision was effectively caused by events that were outside Mr Savieti’s control. She says Mr Savieti’s obstructive sleep apnoea caused him to fall asleep with no warning, and that he had no real opportunity to stop and take stock of the situation. Furthermore, Ms Pitch relies on the fact that Mr Savieti says he has never fallen asleep whilst driving in the past, and there was nothing to alert him to the fact that he was at risk of falling asleep on this particular day. Given that background Ms Pitch contends the Judge erred in finding that Mr Savieti failed to meet the standard of care required of a reasonable and prudent driver.

The cases

[18]	It is generally no defence to a charge of careless driving that the driver had fallen asleep.6 This recognises the principle that a person who chooses to drive a motor vehicle whilst at risk of falling asleep will thereby fall below the standard of care and attention expected of a prudent and reasonable motorist. In Kay v Butterworth, Humphries J observed:7
If a driver allows himself to drive while he is asleep, he is at least guilty of driving without due care and attention because it is his business to keep awake. If drowsiness overtakes a driver while he is at the wheel, he should stop and wait until he shakes it off and is wide awake again. A person, however, who, through no fault of his own, becomes unconscious while driving, for example, by being struck by a stone, or by being taken ill, ought to not be liable at criminal law.

[19]	As the passage set out above demonstrates, the law recognises that a person should not be made criminally liable for the consequences that follow where he or she has been rendered unconscious whilst driving a motor vehicle through no fault of his

6	Hill v Baxter [1958] 1 QB 277 at 282.
7	Kay v Butterworth (1945) 61 TLR 452.

or her own. The examples given in that passage demonstrate the types of situation that will not lead to criminal consequences.

[20]	In New Zealand Police v Vialle, a soldier was driving a vehicle in night-time endurance exercises on the orders of a superior officer and in circumstances where he had had little sleep over preceding days.8 He was convicted in the District Court of careless driving causing injury after several occupants of his vehicle were injured when he fell asleep at the wheel and the vehicle veered off the road and down a bank. The defendant said he was aware of the risk that he might become drowsy but believed that he was fit to drive. The Judge at first instance found the defendant to be a truthful witness but held that a person who falls asleep whilst driving is careless in driving.

[21]	The High Court quashed the conviction on the basis that the defendant had been ordered to drive by a military superior but subsequently gave the informant leave to appeal to the Court of Appeal on questions of law. These related to the effect of the fact that the defendant had been driving whilst ordered to do so by a superior officer. The discussion by the Court of Appeal of that issue is obviously not relevant for present purposes. Relevantly, however, the Court of Appeal observed that a driver will normally be careless if he does not stop when he finds he is becoming sleepy.9 Whether there has been negligence or carelessness is a question of fact to be determined in each case. There had been no finding at first instance that the defendant had formed an unreasonable belief that he was fit to drive. In those circumstances he should not be convicted. The appeal was accordingly dismissed.

[22]	In Hoeta v Ministry of Transport the appellant had killed the occupant of another motor vehicle after losing consciousness whilst driving her vehicle.10 The evidence revealed, however, that this was not an isolated occurrence and that she had fainted on previous occasions in similar circumstances. Thomas J had no hesitation in concluding the appellant must have been aware of the possibility that she might faint whilst she was driving and therefore should not have been driving at the time of the incident giving rise to the charge.

8	New Zealand Police v Vialle above n 4.
9	New Zealand Police v Vialle, above n 4, at 524.
10	Hoeta v Ministry of Transport HC Auckland AP29/91, 19 April 1991.

[23]	In Sweeney v Police, the appellant had fallen asleep at the wheel of his vehicle.11 His vehicle then crossed the centreline and collided with an oncoming vehicle, badly injuring the driver. Prior to the collision the appellant had taken a prescribed medication, the container of which had a label that stated: “May cause sleepiness: limit alcohol”. It also transpired that the appellant had taken significantly more than the prescribed dose before driving his vehicle.

[24]	The Judge who convicted the appellant at first instance took into account the fact that the appellant had exceeded the stated dose without seeking medical advice about the consequences of doing so, and that the label placed him on notice that the medication could lead to drowsiness. The appellant had also slept for a relatively short period after taking the last dose of the medication. On appeal, Venning J observed:

[23] There may have been more force in Mr Mansfield’s submission if the appellant had complied with the prescription advice and had been taking the medication in accordance with the prescription for a week or so without any adverse side effects during the day. In other words, if there had been an established pattern of taking the medication regularly at night, sleeping for say between seven and nine hours but being able to operate normally during the day without any adverse side effects, but that was not the case here. The reasonableness of Mr Sweeney’s asserted belief that when he woke in the morning he felt fine and thus was fit to drive is frankly more than answered by the factors referred to by the Judge and identified above.

[25]	In Earl v Police, the appellant had been convicted of careless use of a motor vehicle causing death and injury.12 The prosecution alleged he had fallen asleep at the wheel of his vehicle on a straight stretch of road, thereby allowing his vehicle to cross the centreline and collide with an oncoming vehicle. The driver of the oncoming vehicle was injured and the passenger, her husband, was killed in the collision. A short time earlier another motorist travelling in front of the appellant’s vehicle had seen it travelling in an erratic manner. On one occasion it had crossed the centreline whilst negotiating a bend. The appellant himself had no memory of the collision or what had caused it.

[26]	The Judge at first instance found that the appellant must have fallen asleep, and that his lack of memory of the events that led to the collision was consistent with this

11	Sweeney v New Zealand Police HC Hamilton CRI 2006-419-143, 4 May 2007.
12	Earl v New Zealand Police [2014] NZHC 911.

occurring. One of the grounds of his appeal against conviction was that the Judge ought to have found it was reasonably possible that the oncoming car had crossed the road first, and the collision occurred when the appellant endeavoured to take evasive action. Dunningham J observed that the Judge was required to assess the evidence in totality, and that the cumulative effect of the matters relied on by the prosecution supported the prosecution scenario.13

[27]	I take these cases to establish that the prudent and reasonable driver will recognise when he or she is at risk of falling asleep. Any decision to continue driving once that risk is known will breach the duty of care imposed on all motorists. Situations may arise, however, where the driver falls asleep or is rendered otherwise unconscious through some unanticipated event such as sudden illness or external force. Provided there is no forewarning of this possibility the driver will not be criminally liable for the consequences that follow.

Decision

[28]	The starting point in this case is the fact that Mr Savieti’s obstructive sleep apnoea did not cause him to fall asleep. Rather, it was one of the factors that contributed to the state of fatigue that he must have been experiencing when he elected to drive his vehicle home from work. It cannot be equated with an illness that suddenly caused Mr Savieti to lose consciousness after he had begun driving.

[29]	I consider that several aspects of Mr Savieti’s lifestyle and physiological makeup made him particularly vulnerable to falling asleep on his way home from work on 15 November 2016. The first and most obvious flows from the undoubted fact that he suffers from obstructive sleep apnoea. This detracts significantly from the quality of his sleep each night, and means that he does not wake up refreshed each morning. It also means he becomes progressively more tired during the day.

[30]	The second is that, having risen at an early hour and driven to work, Mr Savieti begins his work day with two to three hours of heavy manual labour. This is obviously likely to add to his tiredness. The hours that he then spends undertaking administrative

13	Earl v New Zealand Police, above n 12, at [41]-[42].

or clerical work would not result in any reduction in fatigue, and indeed may serve to increase his tiredness given that it extends into the early afternoon. Dr Veale said that circadian rhythms are at their lowest between 1pm and 3 pm.

[31]	These factors mean that Mr Savieti will inevitably be very tired by the end of each work day. Mr Savieti acknowledges this because he says he turns his music up and opens the window of the vehicle to refresh himself whilst driving home from work. He also usually sleeps for two to three hours when he arrives home. That is a reasonably significant period of time to sleep in the middle of the day. It confirms he must generally be very tired when he arrives home.

[32]	I therefore consider it likely that Mr Savieti was regularly driving home from work in a state of fatigue that left him at risk of falling asleep at the wheel. Mr Savieti may not have recognised that he faced this risk, but the warning signs must have been there. The fact that he was obliged on occasions to take active measures to combat his tiredness whilst driving is testament to that fact.

[33]	It is possible, as the Judge found, that Mr Savieti’s later than usual departure from work on the day of the collision also played a significant part in the events that followed. By about 4 pm Mr Savieti would usually be at home asleep, and his body may have come to anticipate or depend on that period of rest. Whatever the immediate cause or causes of his sleepiness may have been, I consider the warning signs would have been there for Mr Savieti to see if he had been prepared to recognise them. I therefore do not consider that this is a case where a sudden illness or unforeseen event has rendered Mr Savieti unconscious at the wheel of his vehicle. Rather, he ignored signs that he was becoming sleepy and continued to drive when a prudent and reasonable motorist would have pulled off the road to rest.

[34]	It follows that the Judge was correct to find Mr Savieti guilty of driving carelessly and thereby causing injury. The appeal against conviction must therefore fail.

B	The appeal against sentence

[35]	Ms Pitch does not take issue with the orders requiring Mr Savieti to make payments to the victim by way of reparation and for the emotional harm the offending has caused her. The only aspect of the sentence that Ms Pitch challenges is the imposition of the sentence of community work. She submits that this was unnecessary given the low level of Mr Savieti’s culpability and the fact that Mr Savieti was not aware that he suffered from obstructive sleep apnoea prior to the date of the collision. Mr Savieti also attended a restorative justice conference with the victim of his offending and this ended  with the  parties being  on  amicable terms.  In  addition,  M Pitch points out that Mr Savieti has now taken steps to address the underlying issue that led to his offending, and that a punitive sentence of community work was not warranted.

[36]	Mr Dow for the respondent points out that the collision was serious and left the driver of the other vehicle with significant injuries that will have long lasting consequences. He contends the sentence therefore needed to contain a punitive element as well as a compensatory element.

[37]	On this point I accept the submissions for the respondent. A sentence having an element of deterrence was required. The sentence was at the lower end of the available range having regard to the damage caused by Mr Savieti’s offending. Furthermore, the Judge elected not to impose a fine in addition to the reparation and emotional harm payments that she required Mr Savieti to make. Given those factors I do not consider the Judge erred in principle by imposing the sentence of community work.

Result

[38]	The appeal against conviction and sentence is dismissed.

Lang J
Solicitors:
Crown Solicitor, Auckland