IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE	
CRI-2019-025-000796
[2019] NZHC 2622	

THE QUEEN	

v	

DEJAY RAWIRI KANE	

Hearing:	15 October 2019	
Appearances:	R W Donnelly for Crown
W N Dawkins for Defendant	
Judgment:	15 October 2019	

SENTENCING REMARKS OF GENDALL J

R v KANE [2019] NZHC 2622 [15 October 2019]

Introduction

[1]	Mr Kane, would you stand now please. Before I begin my sentencing remarks I am required to give you a Three-Strikes Warning.

[2]	Dejay Rawiri Kane, given your conviction for one charge of manslaughter and four charges of reckless driving causing injury, you are now subject to the Three- Strikes law. I am now going to give you a warning of the consequences of another serious violence conviction. You will also be given a written notice outlining these consequences which lists the serious violent offence.

[3]	First, if you are convicted of any serious violent offences, other than murder, committed after this warning, and if a Judge imposes a sentence of imprisonment, then you will serve that sentence without parole or early release.

[4]	Secondly, if you are convicted of murder, committed after this warning, then you must be sentenced to life imprisonment. That will be served without parole unless it would be manifestly unjust. In that event, a Judge must sentence you to a minimum term of imprisonment. So that is the Three-Strikes Warning I am required to give you.

[5]	Mr Kane, you may be seated again for a moment. I will ask you to stand at the conclusion of my sentencing remarks. Thank you.

[6]	Mr Kane, you have pleaded guilty to one charge of manslaughter and four charges of reckless driving causing injury. You are now before this Court for sentence.

Facts

[7]	Turning now, first, to the factual background in this matter, on 7 December 2018, you were driving your Subaru motor vehicle in Invercargill with a passenger, one of your associates. At about 7.30 pm, the Subaru was observed by members of the public driving at high speed, weaving in and out of traffic along the Queens Drive area in Invercargill. It was also witnessed driving on the wrong side of the road in the suburb of Windsor.

[8]	A member of the public whose vehicle was almost sideswiped by your Subaru, Mr Kane, on Queens Drive contacted police and followed the car to the Northern Tavern Bottle Store. The witness observed you, Mr Kane, as the driver, get out of the vehicle and go into the bottle store, and then return carrying alcohol.

[9]	You then drove off and accelerated the Subaru at high speed between two vehicles that were driving around the roundabout at Queens Drive and Herbert Street. The Subaru nearly collided with them, fishtailed, and you appeared to lose control, Again you accelerated your Subaru onto Layard Street, tailgating vehicles before passing them inside at speed on the left side of the road. The Subaru was again seen to accelerate at speed south on Queens Drive.

[10]	At about 7.50 pm, your Subaru, Mr Kane, passed another  vehicle  on  Queens Drive at speed before you pulled into the car park area on that street. Another associate got into the car, who had been playing golf with you and a colleague earlier that day. You, Mr Kane, then went to an address and consumed more beer.

[11]	At around 9 pm, your Subaru, Mr Kane, was again observed travelling at speed in the Newcastle Street area. At the same time, a Kia vehicle was travelling north on Clifton Street. The Kia was being driven by Emma Bagley, with her husband Leonard in the passenger seat and their two young children in the back. As the Kia drove through the intersection at Newcastle and Clifton Street, your Subaru, Mr Kane, came through the intersection from the side, through a give way sign, and collided with the Kia, T-boning it at a very high speed. The Kia was pushed through the intersection against a tree, rolling onto its roof and sliding to a rest on the driveway of an adjacent property.

[12]	You, Mr Kane, and your passenger were trapped in the Subaru vehicle. The victims in the Kia were trapped in the upside down vehicle. Members of the public assisted until emergency services arrived and transported all the victims to Southland Hospital.

[13]	Emma Bagley underwent several hours of surgery but sadly she died as a result of her injuries.

[14]	Leonard Bagley was stabilised before being flown to Christchurch Hospital in an induced coma with life threatening injuries. He underwent several medical procedures there before being transferred back to Southland Hospital.

[15]	The Bagley’s two children were admitted to Southland Hospital after being treated for their injuries. Your associate who was in your Subaru at the time suffered a broken arm.

[16]	Mr Kane, your blood alcohol level at the time was analysed at around 155 mg per 100 ml of blood. A Serious Crash Analysist estimated your Subaru was travelling at approximately 121 km/h at the time in the 50 km/h residential area, while the Kia was travelling at approximately 44 km/h. At the time of the crash, Mr Kane, you were 19 years old and you were disqualified from driving.

Law

[17]	I turn now to address briefly the law in respect to this matter. The charge of manslaughter, pursuant to ss 156, 171, 160(2)(b) and 177 of the Crimes Act 1961, carries a maximum penalty of life imprisonment.

[18]	The charges of recklessly causing injury, pursuant to s 36(1)(a) of the Land Transport Act 1998, carry maximum penalties of five years’ imprisonment. Mr Kane, as part of this sentencing, the Court must also disqualify you from driving for a minimum period of 12 months or more.

Submissions

Crown submissions

[19]	I turn now to the submissions that I have received, the first being the Crown submissions. Mr Donnelly, for the Crown, notes particularly here that the relevant purposes of sentencing under s 7 Sentencing Act 2002 are denunciation, deterrence, accountability and promoting responsibility. He says that the aggravating features of your present offending, Mr Kane, are:

(a)	the loss of life and serious injury that occurred;

(b)	your prolonged, persistent and deliberate reckless driving;

(c)	the fact that you were suspended at the time from driving;

(d)	your excessive speed; and

(e)	your premeditation, given the crash was all but inevitable due to the manner in which you, Mr Kane, were driving largely in residential areas and your level of intoxication.

[20]	The Crown submits there are no mitigating factors of your offending, as we have heard.

[21]	With regard to a starting point, Mr Donnelly notes there is no tariff for manslaughter as it “covers a myriad of situations which are all but impossible to categorise” and I take those words from the decision of R v Thomas.1 He nevertheless refers the Court to two cases which he says are of assistance.

[22]	The first, R v Thomas, involved a defendant who drove with a breath alcohol level approximately twice the legal limit.2 A police officer observed the defendant attempt a corner at excessive speed, and then accelerate at a speed of roughly 130 km/h and swerve into the opposite lane. Police started to pursue the defendant, and his passengers asked him to pull over. He accelerated further, drove through two give way signs, eventually lost control and hit a parked car. One of the passengers was killed, while the others were seriously injured. The defendant attempted to flee the scene. In his sentencing remarks in this Court, Moore J noted that starting points for motor manslaughter arising out of reckless driving and excess alcohol tend to be around the seven year mark, with sterner starting points taken for additional aggravating factors. He adopted a starting point there in that case of eight years.

[23]	In a second decision, R v Guest, Venning J in this Court adopted a starting point of eight years and nine months for a charge of manslaughter and five charges of being

1	R v Thomas [2018] NZHC 819 at [49].
2	R v Thomas, above n 1.

in charge of a vehicle causing injury.3 The defendant in that case drove at speeds up to 180 km/h and took several bends at high speed. He also ignored requests from his passengers to slow down. The defendant travelled through an S bend corner at approximately 129 km/h, lost control and crashed. One of the victims died at the scene, and other passengers were seriously injured. In adopting his starting point of eight years and nine months, Venning J held the offending was particularly aggravated by the high alcohol reading (192 mg per 100 ml of blood), excessive speed, the disregard for warnings from passengers and the prolonged, persistent and deliberate course of dangerous driving which led to the inevitable crash.

[24]	In your case, Mr Kane, the Crown says the seriousness of your offending is at the highest end of the spectrum of motor manslaughter cases due to the associated aggravating factors. Mr Donnelly says your reckless driving, Mr Kane, was more deliberate than that in the cases of Thomas and Guest, given you drove through a give way sign, as opposed to simply losing control. You were also two times over the legal alcohol limit, and you were travelling at 70 km/h over the speed limit. Mr Donnelly contends your offending, Mr Kane, is also more serious given the victims here were in a different vehicle, so had no knowledge of your intoxication, unlike the victims in Thomas and Guest. He suggests a starting point of nine years and six months would be appropriate in this case.

[25]	With regard to personal aggravating factors, Mr Donnelly accepts that your criminal history, Mr Kane, is modest, but notes you have convictions for careless driving, driving  with  excessive  breath  alcohol  and  driving  whilst  suspended.  Mr Donnelly submits this warrants an uplift of six months.

[26]	Mr Donnelly suggests you are entitled to a 10 per cent discount for your youth, Mr Kane, and the full 25 per cent discount for your guilty plea. This would result in an end sentence of six years and nine months’ imprisonment.

[27]	The Crown also maintains that the standard non-parole period would be insufficient to meet the purposes of sentencing in your case. Mr Donnelly argues a

3	R v Guest [2013] NZHC 2432.

minimum period of imprisonment (MPI) of not less than half of the end sentence should be imposed now.

[28]	Finally, Mr Donnelly referred me to the licence disqualification periods imposed in the cases of Guest and Thomas of four years and 10 years respectively. Mr Donnelly suggests that, taking into account your criminal history, Mr Kane, and the seriousness of the offending here, you should be disqualified from driving for at least eight years.

Defence submissions

[29]	I turn now to the defence submissions which have been advanced. In this your counsel, Mr Dawkins, accepts the relevant sentencing purposes as submitted to me by the Crown. He also accepts the aggravating features of your offending here being the loss of a precious life, and serious injury to others; your prolonged, persistent and deliberate  reckless  driving;  your  excessive  speed;  and  alcohol  consumption.   Mr Dawkins notes that in fact, Mr Kane, you had been disqualified from driving at the time, rather than simply being suspended. Mr Dawkins does not accept, however, that there was an element of premeditation in your offending, Mr Kane.

[30]	Mr Dawkins goes on to suggest that your present offending was less serious than that which occurred in Thomas, the case cited by the Crown, because a number of aggravating features in that case were not present here, namely:

(a)	your not heeding the calls of victims to slow down or stop;

(b)	there was no failing to stop for the police;

(c)	driving recklessly to avoid being caught; and

(d)	there was no failure on your part to give proper assistance to injured victims.

Furthermore, the offending in the case of Thomas occurred the day the defendant in that case had been released from prison, and it involved the defendant deceiving one

of his friends in obtaining permission to drive.

[31]	Mr Dawkins has referred me here to three other motor manslaughter cases:

(a)	The first, R v Pomare, involved a defendant who had a blood alcohol level of 202 mg of alcohol per 100 ml of blood, he had been smoking cannabis, and he was travelling at 150 km/h in a 50 km/h area.4 The defendant was disqualified from driving at the time. He was pursued by a police officer, causing him to increase his speed and crash the vehicle. The passenger in the defendant’s vehicle died. A starting point of seven years was adopted.

(b)	The second case Mr Dawkins referred me to is R v Stewart. There, the Court found the following aggravating features to be present: the defendant was intoxicated and had been smoking cannabis; he accelerated from police when they attempted to pull him over; he was unlicensed; he drove at excessively great speed; he disregarded warnings from fellow passengers; he engaged in persistent and deliberate bad driving and was driving a poorly maintained vehicle; he caused serious physical injuries; and he fled the scene.5 There the Court adopted a seven year starting point.

(c)	The  third,  a  case  only  drawn  to  my  attention  this  morning,  is   R v Millar.6 That case involved a defendant aged 19 at the time who had a blood alcohol level of 142 mg per 100 ml of blood, he was driving at excessive speeds and went off the road at somewhere between 80 and 100 km/h down a steep bank where the vehicle rolled and the roof collided with a large tree. One of the defendant’s passengers was killed and the other passenger injured. Both passengers had asked the defendant to slow down because of his excessive speed, which he ignored. No other vehicles or vehicle occupants were involved,

4	R v Pomare [2017] NZHC 3193.
5	R v Stewart [2019] NZHC 1797.
6	R v Millar [2018] NZHC 625.

however. The defendant in that case was remorseful and through his family made a substantial reparation payment of $20,000. There the Crown and defence agreed a starting point of between six and six and a half years should be adopted, and the Court fixed the starting point at six and a half years. For his remorse, youth and good character the defendant in that case was given a 25 per cent discount with a further 20 per cent allowed for his guilty plea which resulted in an end sentence of three years and 10 months’ imprisonment.

[32]	Mr Dawkins suggests, Mr Kane, that your offending was not as serious as these cases, given it did not involve as many aggravating features. He contends that in your case, a starting point of six years would be appropriate.

[33]	And, with regard to your previous relevant convictions, Mr Dawkins contends an uplift of three months would be sufficient. He submits the six months proposed by the Crown would be excessive given the recent case of Stewart, where an uplift of six months was imposed for what Mr Dawkins suggests involved more serious prior convictions.7

[34]	Mr Dawkins does agree with the Crown’s concession, however, that a reasonable discount should be awarded for your youth, Mr Kane, and adds that a further discount should be given for your genuine remorse. You have written letters to the Bagley family and others, which are attached to defence submissions, and I have received and carefully read a further letter you have written to the Court. The pre- sentence report contains a number of references to your remorse, Mr Kane, and suggests several times that you are genuinely taking full responsibility here and that you wish to help the victims  financially  once  you  are  in  a  position  to  do  so.  Mr Dawkins notes that you also have been willing to engage in restorative justice, but the victims, perhaps understandably, do not wish to do so. Mr Kane, you are currently participating in a Positive Lifestyle Programme and you have expressed willingness to participate in an alcohol programme or counselling both in custody and after your

7	R v Stewart, above n 5, at [15].

release. In light of this, Mr Dawkins submits that the Court should allow a combined discount of 20-25 per cent for your youth and remorse.

[35]	Next, Mr Dawkins agrees with the Crown that  you are entitled to the full    25 per cent discount for your guilty plea.

[36]	Mr Dawkins does argue, however, as we have heard, that a minimum period of imprisonment is unnecessary in this case, given your limited previous convictions, your youth, Mr Kane, your genuine remorse, your fully supportive partner and your infant child, and the steps you are already taking to rehabilitate yourself.

[37]	Finally, Mr Dawkins suggests a licence disqualification for between four and five years would be appropriate in comparison with other cases.8

Analysis

[38]	I turn now to my analysis in this matter. At the outset I wish to confirm I have carefully read the very sad impact statements provided here and we have all heard today Mr Duncan bravely and carefully read to the Court his compelling victim impact statement.

[39]	Mr Kane, the leading charge for the purpose of sentencing here is the charge of manslaughter.

[40]	I accept the aggravating factors as outlined by the Crown, with one amendment. This is that as Mr Dawkins has pointed out, you Mr Kane, were disqualified rather than simply suspended from driving at the time of your offending. It is fair to say, however, despite Mr Dawkins’ suggestion to the contrary, that there was some level of premeditation in your offending here, given that you, Mr Kane, knew that you should not have been driving, but chose to do so anyway, and your driving occurred over an extended and broken period of time and was alcohol affected.9

8	Specifically, R v Guest, above n 3 (four years’ disqualification), and R v Stewart, above n 5 (five years’ disqualification).
9	R v Stewart, above n 5, at [11].

[41]	I do agree with Mr Dawkins, however, that the present case had one or two slightly less serious features than some of the authorities that have been referred to me, given, Mr Kane, it did not involve you seeking to escape the police or refusing to heed the warnings of your passengers. However, the prolonged and persistent nature of your reckless and highly dangerous driving, particularly in residential areas of Invercargill city, must not be taken lightly. This was not a case where, Mr Kane, you made a spur of the moment decision for a particular reason, such as those cases involving efforts by a driver to escape police. You had been consistently driving in a dangerous manner throughout the evening, and continued to do so after consuming more alcohol. The consequences of your actions were grave. I consider this case warrants a starting point of seven years and six months’ imprisonment.

[42]	A four month uplift for your previous driving-related convictions, Mr Kane, is appropriate here. They are clearly relevant to the charges you now face, but I accept your criminal record is somewhat less serious than in Stewart, where an uplift of six months was imposed.

[43]	In all the circumstances here, Mr Dawkins is correct, in my view, to seek a discount for your remorse, Mr Kane, as well as your youth. I accept you are genuinely remorseful for your actions and for the consequences to your victims. You will have heard Mr Donnelly for the Crown today accept the fact that you are remorseful. The pre-sentence report writer emphasises a number of times that you, Mr Kane, were genuinely concerned not to apportion blame to anyone other than yourself, which I consider from the writer are comments confirming you are taking responsibility for what happened rather than simply an attempt to avoid a higher sentence. Mr Kane, you are also still a young man. If you remain committed to bettering yourself and making amends then I consider you have reasonable prospects of rehabilitation. With this in mind, it is appropriate, in my view, to allow a 20 per cent discount for your youth and your genuine remorse.

[44]	Mr Kane, you are also entitled to a further 25 per cent discount for your prompt guilty plea. This would bring your end sentence on the charge of manslaughter to one of four years and eight months’ imprisonment.

[45]	The Sentencing Act 2002 provides that the Court must impose an MPI, a minimum period of imprisonment, where an offender is sentenced to a determinate sentence of two years’ imprisonment or more and the Court is satisfied the period otherwise applicable is insufficient for holding the offender accountable, denouncing the conduct, deterring the offender and others and protecting the community.10 The standard non-parole period would be one third of the length of the sentence.11 I agree with the Crown that this is insufficient to achieve the purposes and principles of sentencing in your case, Mr Kane. You have caused the death of one person and the serious injury of four others. The consequences to the victims are immeasurable, as outlined in the victim impact statements. I find that an MPI of one half of your sentence, Mr Kane, is appropriate here.

[46]	With regard to licence disqualification, I take into account the gravity of your offending and the number of your relevant previous convictions. Disqualification for a period of six years, in my view, is appropriate.

[47]	Mr Kane, in your case I am satisfied that concurrent sentences should be imposed for each of the charges of reckless driving causing injury you face. In comparison with other cases, two years’ imprisonment on each of those charges, concurrent with the sentence for manslaughter, is appropriate.12

Conclusion

[48]	Mr Kane, would you please stand. Mr Kane, on the lead charge of manslaughter I adopt a starting point of seven years six months’ imprisonment with a four month uplift for previous convictions. A 20 per cent discount for youth and remorse and a 25 per cent discount for your guilty plea are to be allowed.

(a)	The final sentence on this formulation is one of four years eight months’ imprisonment on the charge of manslaughter and I now impose this sentence on that charge.

10	Section 86(2).
11	Section 84(1).
12	R v Thomas, above n 1, at [85]; R v Stewart, above n 5, at [25]

(b)	A minimum period of imprisonment of two years and four months is to be served.

(c)	I also impose a sentence of two years’ imprisonment on each of the charges of reckless driving causing injury, imposed concurrently.

(d)	I also disqualify you from driving for a period of six years.

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

Solicitors:
Preston Russell Law, Invercargill Bill Dawkins Law, Invercargill