PAPAROA v NEW ZEALAND POLICE [2023] NZHC 2978

PAPAROA v NEW ZEALAND POLICE [2023] NZHC 2978 [25 October 2023]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2023-404-444[2023] NZHC 2978BETWEEN EZEKIEL NIKORA PAPAROAAppellantAND NEW ZEALAND POLICERespondentHearing: 24 October 2023Appearances: P Pati for AppellantA Al-Janabi and A Fry for RespondentJudgment: 25 October 2023JUDGMENT OF LANG J[on appeal against sentence]This judgment was delivered by Justice LangOn 25 October 2023 at 10.00 amRegistrar/Deputy RegistrarDate:Solicitors/counsel:P Pati, AucklandKayes Fletcher Walker, Auckland[1] Mr Paparoa pleaded guilty in the District Court to one charge of causing deathby being in charge of a motor vehicle whilst the proportion in his blood exceeded thestatutory maximum. He also pleaded guilty to a charge of reckless driving and threecharges of causing bodily injury by being in charge of a motor vehicle having thatlevel of alcohol in his blood.[2] On 26 July 2023, Judge J C Moses sentenced Mr Paparoa to two years fourmonths imprisonment on the charge of causing death whilst driving with excess bloodalcohol.1 He imposed concurrent sentences of imprisonment on the remainingcharges.[3] Mr Paparoa appeals against sentence on the basis that the Judge failed to giveMr Paparoa adequate discounts to reflect his remorse. He contends this resulted in anend sentence that was manifestly excessive.The charges[4] The charges were laid as a result of an incident that occurred in the early hoursof 13 August 2022. On the afternoon and evening of the previous day Mr Paparoa hadbeen drinking and socialising with the three victims. Two of them were sisters and thethird was their cousin. One of the victims was his partner.[5] Mr Paparoa and the three victims went to a beach in a rural area at about 10 pmand remained there for approximately two and a half hours drinking alcohol andlistening to music. Mr Paparoa and two of the victims were also inhaling nitrous oxideduring that period. Consumption of nitrous oxide can result in dizziness,disorientation, loss of balance, impaired memory and impaired cognition.[6] At around 12.45 am, Mr Paparoa began driving the victims back to town.Neither of the passengers in the rear seat of the vehicle was wearing a seat belt.Mr Paparoa was driving his vehicle in a dangerous manner, cutting corners andtravelling onto the wrong side of the road. Some of this activity was captured by oneof the occupants of the vehicle on her cellphone. At one stage, Mr Paparoa's vehicle1 R v Paparoa [2023] NZDC 15509.was travelling at more than 100 kilometres per hour whilst negotiating a blind corneron the wrong side of the road. He also drove for approximately 500 metres at justunder 100 kilometres per hour in a zone that had a posted limit of 50 kilometres perhour.[7] At around 12.54 am, the vehicle failed to negotiate a slight right-hand bend.At this point Mr Paparoa lost control of the vehicle, and it crossed the centre line andleft the road. The vehicle slid and travelled along a roadside ditch before striking aconcrete power pole. One of the occupants was trapped partially inside the vehicleand died at the scene. The other two occupants were able to extract themselves fromthe vehicle unassisted. Once he was out of the vehicle Mr Paparoa took cans of alcoholfrom the vehicle and threw them into a nearby paddock.[8] Mr Paparoa and the surviving victims were taken to hospital for medicalattention. A blood sample taken from him at the hospital contained a proportion of 93milligrams of alcohol per 100 millilitres of blood. The sample was also found tocontain THC, which is the active ingredient of the Class C controlled drug cannabis.[9] Mr Paparoa was 20 years of age at the time of the offending and 21 years ofage when he was sentenced.The sentence[10] The Judge noted that the offending had several aggravating features. Theseincluded the level of alcohol in Mr Paparoa's blood at the time he was driving, coupledwith the presence of THC. Mr Paparoa had told the writer of a cultural report tenderedat sentencing that he had consumed cannabis before meeting up with the victims theprevious day.[11] The Judge also noted that Mr Paparoa did not hold a licence at the time of theoffending. His licence had been suspended for speeding offences the previous yearand had never been reinstated. He had also been driving in a reckless manner and atexcessive speeds for a sustained period before he lost control of the vehicle and it leftthe road. The offending had had extremely serious consequences, resulting in thedeath of one victim and the injury of two others. It had also been devastating for themembers of the victims' families, several of whom had read victim impact statementsat sentencing. Finally, Mr Paparoa had taken steps to reduce his culpability bydiscarding the cans of alcohol that had been in the vehicle. These factors led the Judgeto select a starting point of four years six months imprisonment.2[12] The Judge did not increase the starting point to reflect the fact that Mr Paparoahad received infringement notices and demerit points for speeding offences and otherinstances of poor driving in the previous 18 months. Mr Paparoa also accepted thathe had been using cannabis for many years. These factors meant that, althoughMr Paparoa had no previous convictions, the Judge was not prepared to reduce thesentence to reflect previous good character.[13] The Judge then applied a discount of 25 per cent to reflect guilty pleas and20 per cent to reflect youth and other mitigating factors identified in a cultural reporthis counsel had tendered to the Court under s 27 of the Sentencing Act 2002. Finally,the Judge applied a discount of two months to reflect remorse. This produced the endsentence of two years four months imprisonment.The appeal[14] On Mr Paparoa's behalf, Mr Pati does not take issue with the starting point theJudge selected or the discounts given for mitigating factors other than remorse.Mr Pati submits the Judge ought to have applied a discount of at least 10 per cent toreflect Mr Paparoa's remorse. Had this been done, the end sentence would have beenone of just over two years imprisonment.[15] Mr Pati does not, however, suggest that a sentence of home detention wouldhave been appropriate. He says Mr Paparoa accepts that imprisonment is theappropriate sentence given the overall gravity of his offending.Analysis[16] As the Supreme Court observed in Hessell v R, the extent to which any discountshould be given to reflect remorse requires "a proper and robust evaluation of all the2 At [28].circumstances".3 Expressions of remorse may take many forms, but they must bedistinguished from expressions of concern or self-pity the offender may have abouthis or her predicament.[17] In the present case, Mr Paparoa had failed to attend interviews with the writerof the pre-sentence report on two separate occasions, even though his bail conditionshad been expressly varied to require him to attend an interview so that the report couldbe prepared. This meant the Judge did not have the benefit of a pre-sentence report atsentencing. That is commonly the source from which genuine expressions of remorsemay be discerned. However, the Judge did have the benefit of an affidavitMr Paparoa's counsel had prepared even though Mr Paparoa had never signed thatdocument. He also had the cultural report in which Mr Paparoa had expressed hisremorse to the report writer.[18] The Judge dealt with the issue of remorse in the following passage of hisremarks:4You have apologised here in court to the victim's family. You have expressedremorse in the unsworn affidavit, and also in the course of the cultural report.However, any steps that you have sought to take to address any issues are late.You have not started any programme whatsoever to address any of the issuesthat you say were causative of this offending, despite it being 11 months fromthe time of the accident. Furthermore, in the cultural report which has beenprepared, you say you had not taken drugs for four months. In that report yousay you had stopped drinking, yet in the unsworn affidavit provided to me yousaid that you were sometimes drinking.[19] The transcript of Mr Paparoa's remarks at sentencing reveals that Mr Paparoahad found it extremely difficult to come to terms with his offending. His repeatedfailure to attend appointments with the writer of the pre-sentence report reflects thisfact, as does his failure to sign the affidavit. Care needs to be taken in drawinginferences from these failures because inability to come to terms with seriousoffending may not be uncommon for youthful offenders. It may also be very difficultfor a youthful offender to put feelings of remorse into words or written form.3 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [64].4 R v Paparoa, above n 1, at [39].[20] An inability to properly express genuine feelings of remorse will obviously notdisqualify an offender from receiving a discount to reflect remorse if it is genuinelyheld. On the other hand, the sentencing Judge is required to make an evaluativeassessment as to the extent to which remorse is genuinely held, taking into accountany limitations suffered by the offender.[21] I consider another Judge may have given Mr Paparoa a slightly greater discountto reflect remorse given his apparent limitations and the fact that he had expressed itthrough several different means. However, this is not the test. In order for the appealto succeed Mr Paparoa must establish that the end sentence of two years four monthsimprisonment was manifestly excessive.[22] Mr Paparoa's offending involved a sustained period of reckless drivingfollowed by a very poor piece of judgement that resulted in the vehicle leaving theroad and colliding with a power pole. It caused the death of one young person and theinjury of three others. The culpability of the offending was aggravated by the fact thatMr Paparoa had been drinking alcohol for a considerable period before driving thevehicle and he had also consumed nitrous oxide and cannabis. The effect of theoffending has been catastrophic for the victims and their families. The offending alsooccurred against a background of recent driving misconduct. When the gravity of theoverall offending is taken into account I do not consider the end sentence of two yearsfour months imprisonment can realistically be said to be manifestly excessive.Result[23] The appeal against sentence is dismissed.____________________________Lang J