SIDHU v POLICE [2019] NZHC 1168

SIDHU v POLICE [2019] NZHC 1168 [27 May 2019]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2019-404-124[2019] NZHC 1168BETWEEN AVTAR SINGH SIDHUAppellantAND NEW ZEALAND POLICERespondentHearing: 27 May 2019Appearances: A P Comeskey for the AppellantJ E Bragg for the RespondentJudgment: 27 May 2019ORAL JUDGMENT OF PALMER JSolicitors: Crown Solicitor, AucklandCounsel: A P Comeskey, AucklandWhat happened?[1] On the morning of 13 February 2018, Mr Avtar Sidhu was driving a light trucknorth along the Cape Hill Road in Pukekohe when he approached a moderate bend inthe road. He saw a Mitsubishi van coming in the opposite direction but subsequentlytold the Police he thought it was on the wrong side of the road. If so, he was wrong.He crossed the centre line and collided head on with the van. The driver of the van,Mr Zachary Duncan, died from his injuries.[2] Mr Sidhu pleaded guilty to careless driving causing death on a secondappearance. The maximum penalty is three months' imprisonment or a fine notexceeding $4,500 and disqualification from holding or obtaining a driver's licence forat least six months is required.1[3] On 15 March 2019, in the Manukau District Court, Judge G T Winter foundthe accident was unnecessary and completely avoidable, caused by Mr Sidhu's"misjudgement, inattention and then last-minute failure to take appropriate evasiveaction".2 He noted Mr Sidhu was a professional driver, holding class 3, 4 and 5 heavytraffic and professional licences and stated the licences are a privilege beyond that ofthe ordinary motorist and accordingly his driving skill and prudence must be of ahigher standard.3 He found Mr Sidhu's culpability was moderate to high although inan earlier decision on discharge without conviction he described it as being of"moderate" gravity.4 He set a starting point of 360 hours' community work, madedeductions for his overall otherwise good character and remorse, his early guilty pleaand cooperation, resulting in 250 hours. He also sentenced Mr Sidhu to a "moderateperiod" of three months' community detention, ordered him to pay $10,000 foremotional harm and disqualified him from holding a driver's licence for 14 months.Mr Sidhu appeals the sentence.1 Land Transport Act 1998, s 38(2).2 New Zealand Police v Sidhu [2019] NZDC 4798 at [8].3 At [19]-[20].4 At [25] and New Zealand Police v Sidhu [2018] NZDC 24614.Law[4] Under s 250 of the Criminal Procedure Act 2011, I must allow the appeal if Iam satisfied there is a material error in the sentence and a different sentence should beimposed. Otherwise the appeal must be dismissed. My focus is on whether the endsentence is within the available range.[5] In Bassett v New Zealand Police, a driver of a ute fell asleep at the wheel afterseven to 10 unheeded warnings, crossed the centre line and killed another driver.5 Hissentence of 300 hours' community work, 12 months' disqualification and $7,500reparation was upheld on appeal. In Hodgins v Police, a driver of a long-haul transporttruck turned left at a roundabout and struck and killed a cyclist in a high-vis vest heshould have been able to see but he did not look.6 His sentence of three months'community detention, 180 hours' community work, $10,000 reparation for emotionalharm and 12 months' disqualification was upheld on appeal.Submissions[6] Mr Comeskey, for Mr Sidhu, submits the imposition of community detentionand the period of licence disqualification means the sentence is manifestly excessive.He submits Mr Sidhu's culpability should not be greater because he is a professionaldriver. He submits Mr Sidhu deserves a greater discount for significant mitigatingfactors of: extraordinary remorse; emotional harm payment; good character;completion of a defensive driving course; and an early guilty plea. He submits theoffending here was less serious than that in Bassett and Hodgins but Mr Sidhu'ssentence was greater than each.[7] Ms Bragg, for the Crown, submits that Mr Sidhu was more culpable as aprofessional driver. She acknowledges the imposition of community detentionapparently as an uplift on community work "may be considered unusual". But shesubmits the periods of community detention and disqualification are consistent withcase law, particularly Hodgins, given the wide range of possible facts. She submitsthe range of disqualification periods in cases of this nature appears to be between nine5 Bassett v New Zealand Police [2014] NZHC 2188.6 Hodgins v New Zealand Police [2018] NZHC 1644.and 18 months, so 14 months was well within the range available to the Judge even ifit might be considered "stern".7Should the sentence be overturned?[8] I agree with Judge Winter that the culpability of a professional truck drivermay be greater than that of a non-professional driver for the same actions constitutingcareless driving causing death. A professional truck driver can be expected to havemore experience and skill in avoiding being careless and the consequences ofcarelessness are greater with a large vehicle. These are reasons why larger vehicleshave more rigorous licencing requirements. I also agree with Judge Winter that MrSidhu's crossing of the centre-line into the opposing lane, whatever the reason, meantMr Sidhu's culpability was relatively high, which is how the Judge treated it if nothow he described it. It was more than momentary inattention.[9] The sentence is fairly described as stern. But I do not consider the sentenceimposed was out of line with the other relevant cases. As a professional driver,Mr Sidhu's offending can be considered more serious than in the Bassett case. It iscomparable to that in Hodgins which attracted a comparable sentence. The discountsare reasonable. I do not consider Judge Winter erred in his sentencing. The sentenceis not manifestly excessive and was within the range available to him. I would notimpose a different sentence. I dismiss the appeal.Palmer J7 Barr v New Zealand Police HC Rotorua, CRI-2011-463-42, 28 November 2011 at [30].