ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS,
OCCUPATION OR IDENTIFYING PARTICULARS OF APPELLANT PURSUANT TO S 200 CRIMINAL PROCEDURE ACT 2011. SEE
http://www.legislation.govt.nz/act/public/2011/0081/latest/DLM3360346.html	
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA
TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE	
CRI-2019-463-58
[2019] NZHC 2083	

BETWEEN	N
Appellant	
AND	THE QUEEN
Respondent	

Hearing:	22 August 2019	
Counsel:	N Tahana for Appellant
A McConachy for Respondent	
Judgment:	23 August 2019	

JUDGMENT OF BREWER J

This judgment was delivered by me on 23 August 2019 at 11:30 am

Registrar/Deputy Registrar

Solicitors:
Kahui Legal (Rotorua) for Appellant Gordon Pilditch (Rotorua) for Respondent

N v R [2019] NZHC 2083 [23 August 2019]

Introduction

[1]	Mr N pleaded guilty to one charge of causing death while in charge of a motor vehicle when his blood contained evidence of the use of methamphetamine.1 Judge Cooper sentenced Mr N to three years’ imprisonment.2 Mr N now appeals that sentence as being manifestly excessive.

Background

[2]	On Sunday, 6 January 2019, at approximately 4:00 pm, Mr N was driving his motor vehicle on Broadlands Road, Reporoa. He was the only occupant.

[3]	Mr N was driving erratically and dangerously. A witness saw his vehicle weave to the left onto the grass verge and then back to the right, crossing the centre line into the opposing lane. This occurred about three times. Another witness described Mr N’s driving as “moving all over the road, from one side to the other, completely in the opposite lane”.

[4]	On the final occasion Mr N completely crossed the centre line into the opposing lane he collided head-on with a  vehicle  being  driven  by Mr Gladding. Mr Gladding died at the scene.

[5]	Mr N’s blood was tested. His blood alcohol reading was 61 milligrams of alcohol per 100 millilitres of blood. His blood also contained methamphetamine and the active constituent of cannabis, tetrahydrocannabinol.

[6]	Mr N said he had probably used methamphetamine and cannabis “one or two” evenings prior to the accident.

[7]	Mr N was himself injured in the crash. He sustained injuries to his legs and spent about a month in hospital.

1	Land Transport Act 1998, s 61(2)(b).
2	R v [N] [2019] NZDC 12051.

[8]	Mr N was 27 years old at the time and had been convicted on 4 May 2017 of driving with a breath alcohol level over 400 micrograms per litre of breath (his level was 748).

Sentencing

[9]	The Judge reviewed the facts of the offending and the factors personal to Mr N. There was a psychologist’s report describing what the Judge called Mr N’s “fragile mental state”. He acknowledged Mr N feels an acute sense of guilt and remorse. The Judge analysed the factors going to the starting point as follows:

[11]	In this case, the first factor that I take into account is the consumption of drugs and alcohol. There was evidence of both in your blood. Your statement to the police said that you did not feel sleepy when you left to drive home, although you felt a little sleepy getting closer to home. The inference that I draw from all of that, and particularly from the nature of your driving prior to the crash, is that there was a combination of circumstances involved here; drugs, alcohol and to some degree tiredness. I do not accept your counsel’s submissions that fatigue alone was the only factor involved in this crash. My view is that drugs and alcohol also played their part.

[12]	The next feature I take into account, and this is the standout aggravating feature of the case, is the death of Mr Gladding and the impact on his whole family as a result of that.

[13]	There was not a persistent course of bad driving in the sense of bad driving over a lengthy period of time, but the driving that I have already described that happened prior to the accident was extremely dangerous; lurching from one side of the road to the other and this did not happen just once but on a number of occasions. So that extremely dangerous driving is something I also take into account.

[10]	Judge Cooper set the starting point as four-and-a-half years’ imprisonment. He increased the starting point by four months (7.4 percent) to account for the previous conviction. As to mitigating factors, the Judge reduced the starting point by four months to acknowledge Mr N’s remorse, and by a further four months to account for Mr N’s mental health which might make serving a prison sentence disproportionately severe.

[11]	Judge Cooper then demonstrated mathematical inexactitude by calculating the adjusted starting point as four years’ imprisonment. In fact, on the Judge’s figures the adjusted starting point was four years and two months’ imprisonment.

[12]	The final sentence of three years’ imprisonment was achieved by applying a reduction of 25 percent for Mr N’s plea of guilty to the adjusted starting point of four years’ imprisonment.

The appeal

Mr N’s submissions

[13]	Ms Tahana develops her argument that Judge Cooper adopted a starting point which was too high and then erred further by applying an excessive uplift for Mr N’s previous conviction while failing to provide adequate credit for mitigating factors. In Ms Tahana’s submission, the end sentence should have been within the range for commutation to home detention, and home detention should have been the end sentence.

[14]	As to the starting point, Ms Tahana submits the Judge should have concluded that fatigue was the operative causative factor but instead over-emphasised the consumption of drugs and alcohol. Mr N’s blood alcohol level was at the infringement offence level and there was no evidence of the level of drugs in his blood. There is no causal link established between Mr N’s drug and alcohol consumption and his poor driving.

[15]	Ms Tahana submits that, having regard to Skipper v R3 and McCullough v Police,4 the proper starting point was in the three to four years range.

[16]	Ms Tahana submits that increasing the starting point by four months to account for Mr N’s previous conviction is excessive when considering comparable cases.   Ms Tahana cited two District Court cases where similar levels of uplift reflected far greater criminal histories.

[17]	When turning to the discounts allowed by Judge Cooper, Ms Tahana focused particularly on the four months discount for Mr N’s mental health. Ms Tahana submitted the Judge should have taken greater notice of the psychologist’s report in

3	Skipper v R [2017] NZCA 399.
4	McCullough v Police [2013] NZHC 279.

which the opinion was given that Mr N is currently at high risk of potential suicide. Ms Tahana’s submission is the Judge should have responded to this report by concluding, pursuant to s 8(h) of the Sentencing Act 2002, that a sentence of imprisonment would be disproportionately severe and then given a discount which would have driven the end sentence into the home detention range.

[18]	Similarly, Ms Tahana submitted the Judge should have given a greater discount than four months for Mr N’s evident remorse which included an offer to participate in a restorative justice process.

[19]	Ms Tahana referred to the serious injuries suffered by Mr N in the crash. Her submission is that this factor by itself required a discount.

[20]	Another mitigating factor which Ms Tahana submits Judge Cooper failed to recognise, and should have, is Mr N’s youth. In McCullough, a 20 percent discount was allowed for remorse and youth where the offender was 23 years old and, in Gacitua v R,5 the starting point of five years’ imprisonment was reduced by 20 percent by the sentencing Judge to take account of the offender’s relative youth (he was 25), the fact he had no previous criminal convictions and that he was genuinely remorseful.

[21]	Ms Tahana’s concluding submission is that with a lower starting point, and a collective discount of, say, 35 percent for mitigating factors, a sentence of home detention is available.

Discussion

[22]	I start by observing there is no tariff case in this area. Cases are highly fact- specific. A sentencing Judge must apply the recognised sentencing principles to the particular facts of the case.

[23]	In Skipper, the Court of Appeal reviewed the legislative history of offences where the driving of motor vehicles has resulted in injury or death. Mr N was charged under s 61 of the Land Transport Act 1998. The Court of Appeal observed:

5	Gacitua v R [2013] NZCA 234.

[14]   It will be seen that s 61 treats the act of causing death while in charge of a vehicle equivalently when it is done with an alcohol level exceeding prescribed limits, or while so affected by drink or drug as to be incapable of having proper control of the vehicle, or while the person’s blood “contains evidence of the use of” a Class A drug. Where death results the maximum penalty is 10 years’ imprisonment. Where bodily injury results it is five years’ imprisonment.

Starting point

[24]	The starting point assessed by Judge Cooper of four-and-a-half years is just under the halfway mark for culpability for this charge. I think the Judge was correct:

(a)	The charge does not require proof of causation due to impairment by drugs or alcohol. Parliament has legislated for a 10 years maximum sentence because of the danger inherent in driving with a Class A controlled drug in the driver’s blood. Of course, in assessing where on the range of culpability a particular case fits, causation has to be taken into account. Here, the Judge properly assessed that causation was due to a combination of fatigue, alcohol and drug consumption. That was  a conclusion clearly open to him. Mr N was driving with an unlawful level of alcohol in his blood. He also had methamphetamine and tetrahydrocannabinol in his blood. It would be against all common sense for the Judge to conclude that the only causative factor was simple driver fatigue. I note that in Gacitua v R the Court of Appeal commented:6
When bad driving follows alcohol consumption, a causal link can generally be assumed, even if the driver is within legal limits

(b)	However, the main aggravating factor, and the one which justifies the starting point, was the course of dangerous driving exhibited by Mr N prior to the crash. Further, the crash involved another vehicle and the death occurred in that other vehicle. This can be contrasted with the situation in Skipper where there was no dangerous driving, causation was probably distraction within the vehicle, no other vehicle was

6	At [40].

involved, and the infant daughter of the driver was the person killed. In that case the Court of Appeal considered a starting point of two years’ imprisonment was appropriate, to reflect moderate culpability resulting in the death of a child.

Previous conviction

[25]	Likewise, I assess the uplift of four months to recognise Mr N’s previous conviction as being clearly open to the Judge. It was a highly relevant conviction and it was recent. The breath alcohol level was high and the six months disqualification from driving had expired only two months or so before the current offending.

Mental health

[26]	Mr N’s mental health problems, and the resulting difficulty it would cause  Mr N in serving a prison sentence, were recognised by Judge Cooper. The Judge did not consider the risk of suicide identified justified anything more than what he called “a fairly modest reduction”. The Judge said:

[18] I accept that your mental health issues may make a prison sentence difficult for you. That is simply something that the prison authorities will have to manage.

[27]	I can conclude that Judge Cooper carefully assessed Mr N’s mental fragility. In a separate decision the Judge granted Mr N permanent name suppression because of it.

[28]	I cannot accept Ms Tahana’s submission that the Judge should have decided a prison sentence would be so disproportionately severe for Mr N that a sentence of home detention must be achieved. Not only would that be wrong in principle given the starting point, but Mr N’s mental health difficulties are of the sort the prison authorities are well used to.

[29]	The four months discount was within the range available to the Judge.

Remorse

[30]	I do not accept Ms Tahana’s criticism of the four months discount for remorse. A more substantial discount for remorse would require actions on the part of Mr N well out of the ordinary. Mr N killed a man. He has a natural human reaction of sorrow and guilt for what he did. He has apologised. There is no basis for a large discount for this normal reaction.

[31]	Ms McConachy for the Crown pointed out that when the arithmetical error is taken into account, Judge Cooper gave a total discount of 10 months for the personal factors of mental health and remorse. That is about an overall 18.5 percent discount. Ms McConachy submits there is nothing in Mr N’s personal factors which would justify a significantly greater discount. I agree.

Injuries

[32]	Ms Tahana is correct that Judge Cooper, although he referred to them, did not give a separate discount for the injuries suffered by Mr N in the accident. In Gacitua, the Court of Appeal was influenced by the English decision of R v Cooksley.7 In that case, one of the mitigating factors cited was serious injuries to the offender resulting from the accident.

[33]	At sentencing, Judge Cooper had Mr N’s affidavit sworn on 31 May 2019 in support of his application for permanent name suppression. In it he described his injuries as a broken left tibia, a smashed right heel and a broken rib. The former two injuries required orthopaedic surgery.  He  does  not  describe  ongoing  disability. Ms Tahana advised me he continues to experience pain.

[34]	In my view, serious injuries incurred by an offender in the course of offending primarily qualify for a reduction in what would otherwise be an appropriate sentence of imprisonment if they make a sentence of imprisonment disproportionately severe. For example, an offender with resultant paraplegia might well qualify. Mr N’s injuries do not cross this threshold.

7	R v Cooksley [2003] 3 All ER 40 (Crim App).

[35]	I do not find Judge Cooper erred in failing to discount Mr N’s sentence because of his injuries.

Youth

[36]	I disagree with Ms Tahana that Mr N’s age of 27 years qualified him for a youth discount. Mr N was not a first offender and there is no indication his offending on this occasion could be attributed to biological or experiential lack of maturity. Further, the Court in Cooksley qualified its inclusion of youth as a mitigating factor by stipulating it had to be relevant to a lack of driving experience. Ms Tahana accepts there is no such relevance here.

Result

[37]	My task is to examine Judge Cooper’s sentencing decision to see whether there is any error which should result in a different sentence. I have found no error. Further, I have stood back and looked at the end sentence of three years “in the round” to see whether it is a reasonable judicial response to the overall circumstances of Mr N’s offending. I have concluded that it is.

[38]	In summary, Mr N, a 27-year-old with a recent conviction for quite serious drink-driving, drove having consumed alcohol beyond the lawful limit, and with methamphetamine and tetrahydrocannabinol in his blood. His driving became dangerous. He repeatedly swerved into the road verge on the left and across the centre line into the opposing lane. On the final time he crossed the centre line fully into the opposing lane he crashed head-on into Mr Gladding’s car and killed him. Having taken into account Mr N’s natural remorse, his mental fragility and his early guilty plea, the end sentence of three year’s imprisonment represents 30 percent of the maximum sentence available for this type of offending. That is within the range available to Judge Cooper.

[39]	The appeal is dismissed.

Brewer J