RAKETE v NEW ZEALAND POLICE [2017] NZHC 2915

RAKETE v NEW ZEALAND POLICE [2017] NZHC 2915 [27 November 2017]IN THE HIGH COURT OF NEW ZEALANDNAPIER REGISTRYI TE KŌTI MATUA O AOTEAROAAHURIRI ROHECRI-2017-441-34[2017] NZHC 2915BETWEEN SAM BLAIR RAKETEAppellantAND NEW ZEALAND POLICERespondentHearing: 1 November 2017Appearances: W Hawkins and A V Bryant for the appellantC R Stuart for the respondentJudgment: 27 November 2017JUDGMENT OF CULL J[1] On 31 August 2017, Mr Rakete was convicted of one charge of ill-treatment orneglect of a child1 and one charge of dangerous driving,2 following a judge-alone trialbefore Judge Adeane.3[2] Mr Rakete appeals the two convictions on the basis that the Judge erred infinding the charges proved. He contests the Judge's finding that his driving wasdangerous in all the circumstances and on the charge of ill-treatment of a child, he saysthe Judge failed to apply the "major departure test", under s 195 of the Crimes Act1961. He submits a miscarriage of justice has occurred.1 Crimes Act 1961, ss 195(1) and 195(2)(a). Maximum penalty is 10 years' imprisonment.2 Land Transport Act 1998, s 35(1)(b). Maximum penalty is three months' imprisonment, or a finenot exceeding $4,500, and disqualification from holding or obtaining a driver's licence for sixmonths or more.3 New Zealand Police v Rakete [2017] NZDC 22700.[3] The Crown opposes this appeal and submits there has been no miscarriage ofjustice. Mr Rakete's speed and manner of driving was objectively dangerous andintentional. The driving and the crash were likely to cause suffering or injury to thechild and is appropriately described as a major departure from the standard of careexpected of a reasonable person.Factual background[4] On the morning of 2 April 2017, Mr Rakete was driving in a residential areawith a 50 km per hour speed restriction. At the time, Mr Rakete had his one year oldson in a child restraint chair in the front seat of the vehicle.[5] A police car passed Mr Rakete and noticed he was not wearing a seat belt. Thepolice car made a U-turn and activated their lights pulling in behind Mr Rakete'svehicle. At this point, Mr Rakete increased his speed dramatically and continued toignore the sirens behind him. Mr Rakete drove straight over the front lawn of aresidential property, which belonged to one of his relatives, before hitting the side ofthe house on the passenger side of the vehicle. Mr Rakete jumped out of the vehicleand left the property by climbing over the back fence.[6] Mr Rakete's son was on the side of the vehicle that hit the house and was leftalone in the vehicle when the defendant ran from police. The summary of facts statesthat Mr Rakete showed no regard for the safety of his child in the vehicle while failingto stop for police and did not stop to care for the child when he left the vehicle.District Court decision[7] The two issues identified by the Judge for determination were:(a) whether Mr Rakete's driving was dangerous; and(b) whether it constituted the offence of child neglect.[8] The Judge was satisfied that the evidence given by the Constable, who pursuedMr Rakete, was reliable, as she was in "an optimum position to make the observationswhich she described."4 The Judge observed:5With every incentive to do so she was on road enforcement duties and whatunfolded in front of her was the sort of impulsive, thoughtless and inherentlydangerous conduct which the police report to the Courts day in and day out.[9] The Judge concluded that in the circumstances of a police pursuit, whereMr Rakete was forewarned by both police lights and a siren, his behaviour in failingto stop "carried with it the obvious inference that he was aware that he was beingchased."6 He had deliberately ignored the implicit instruction to stop. He left the roadin a way "which must have been dangerous to anybody in the vicinity" and inparticular to the child in the vehicle.7[10] In one paragraph, the Judge concluded that both charges were proved. He saidof both charges:8[7] The charge of dangerous driving, that is deliberately driving a motorvehicle in a manner falling short of the standard of a reasonable and prudentmotorist, is manifestly proved on the evidence before the Court. Given thepresence of a child of about one year of age in the same vehicle, so too isthe further charge of departure from the standard of care expected of areasonable person, a reasonable driver having the care of a child of that age.Both charges are proved.[11] The Judge later imposed a sentence of nine months' imprisonment on thecharge of ill-treatment of a child and one month's imprisonment on the charge ofdangerous driving.9 Mr Rakete was also disqualified from driving for six months.Approach to appeal[12] An appeal against conviction in a Judge-alone trial is a general appeal. Thisappeal is governed by s 232 of the Criminal Procedure Act 2011. Therefore theappellant must satisfy the Court that a miscarriage of justice has occurred, either4 Rakete, above n 3, at [5].5 At [5].6 At [6].7 At [6].8 Emphasis added.9 New Zealand Police v Rakete [2017] NZDC 22532.because "the Judge erred in his or her assessment of the evidence to such an extentthat a miscarriage of justice has occurred" or for any other reason.10 A miscarriage ofjustice is "any error, irregularity, or occurrence" that "has created a real risk that theoutcome of the trial was affected" or "has resulted in an unfair trial or a trial that wasa nullity."11 As s 232 makes clear, not every "error or irregularity" causes amiscarriage of justice.12[13] An unfair trial exists when the errors are prejudicial or unacceptably give riseto the appearance of unfairness. In Condon v R, the Supreme Court stated that it "isnot every departure from good practice which renders a trial unfair."13 Instead, theerrors or irregularities must depart from good practice in a manner that is "so gross, orso persistent, or so prejudicial, or so irremediable" that the court must quash thedecision.14Mr Rakete's position[14] Mr Rakete says that the Judge erred in finding the charges proved and thereforea miscarriage of justice has occurred which has affected the outcome of the trial. MrHawkins for Mr Rakete makes two key submissions:(a) the Judge erred in finding the driving was dangerous; and(b) the Judge erred in failing to apply the major departure test pursuant tos 195 of the Crimes Act in relation to the charge of neglect of a child.Error in finding the driving was dangerous[15] While Mr Rakete accepts he did not stop upon seeing the flashing lights,counsel submits there was insufficient evidence to conclude beyond reasonable doubtthat the driving was dangerous in all the circumstances. Even if Mr Rakete is said to10 Criminal Procedure Act 2011, s 232(2).11 Section 232(4).12 "A miscarriage is more than an inconsequential or immaterial mistake or irregularity": Matenga vR [2009] NZSC 18, [2009] 3 NZLR 145 at [30].13 Condon v R [2006] NZSC 62, [2007] 1 NZLR 300 at [78].14 Randall v R [2002] 1 WLR 2237 (PC) at [28] per Lord Bingham, cited with approval by theSupreme Court in Condon v R, above n 4, at [78].have veered off the side of the road onto the residential property, counsel says, itcannot be inferred that this was, in all the circumstances, an episode of dangerousdriving. It may have fallen below the standard expected of a reasonable and prudentdriver and considered careless, but nothing more.[16] No evidence was adduced at the trial about the speed that the vehicle wastravelling and whether this was excessive. Mr Hawkins submits Constable Jamiesonsaid she had to travel up to 80 km per hour and she was closing in on Mr Rakete'svehicle at that speed but there was no suggestion that apart from Mr Rakete failing tostop for the police car, that the manner in which he drove was erratic or dangerous toother members of the public. Where a member of the public fails to stop for flashinglights, in the present circumstances, Mr Hawkins submits this does not necessarilycreate a potentially dangerous situation for other members of the public.[17] The duration of the pursuit was approximately 500 metres. Counsel submitsthere is no suggestion that Mr Rakete was fleeing the police; it was simply a failure tostop. The damage caused to the house was so minor to the extent it was repairable bythe occupants within the same day. No damage was caused to the car.[18] It is also submitted that the finding that the driving was dangerous toMr Rakete's child was not supported by the evidence. The child was correctlyrestrained in a car seat and there was no evidence led that the child was injured ordistressed as a result of Mr Rakete's vehicle stopping in the manner that it did.[19] Counsel relies on the decision in Stratford v Ministry of Transport for theproposition that the elements of dangerous driving can be an accumulated series ofevents or a single action of driving that in itself creates a situation of danger.15 In thiscase, the Judge found the driving proved on the basis of a series of events as opposedto a single specific act amounting to dangerous driving. However, counsel submitsthe series of events including the failure to stop, leaving the road and clipping the sideof the house could not be considered dangerous to the public or Mr Rakete's son.15 Stratford v Ministry of Transport [1992] 1 NZLR 486 (HC).Error in failing to apply the major departure test[20] Mr Rakete submits the Judge did not correctly apply the test in s 195 of theCrimes Act in this case. This test is known as the "major departure test", where aperson intentionally engages in conduct that is a major departure from the standard ofcare to be expected of a reasonable person.[21] In relation to the four elements that need to be proved under s 195 of the CrimesAct, counsel submits:(a) it is not disputed Mr Rakete had actual care or charge of the child;(b) Mr Rakete's driving did not amount to a positive course of action akinto intentionally engaging in conduct or a conscious appreciation as hisdecision not to stop for the police car was not directed towards the childspecifically;(c) there was no evidence that the child was distressed or injured andMr Rakete's driving cannot be considered as likely to have caused anysuffering or injury to the child; and(d) while Mr Rakete's driving amounts to a departure from the standard ofcare expected from a reasonable person it was not a major departure –it was simply a failure to exercise a reasonable standard of care asopposed to an episode of gross negligence.[22] Counsel submits that this is not the type of case that Parliament intended aprosecution under s 195 to take place and it was not necessary to charge Mr Raketewith such a serious offence. Counsel references the case of JF v New Zealand Police,where it was observed that the major departure test implied that prosecutions underthis section should be confined to serious cases and not be resorted to for everyoccasion where a person responsible for the care of a child fails to exercise areasonable standard of care.1616 JF v New Zealand Police [2013] NZHC 2729 at [13].[23] Counsel points to the legislative record to examine Parliament's intent inamending s 195 to its current form. It is clear from the Explanatory Note of the CrimesAmendment Bill No 2 that the Bill's intent was to implement the Law Commission'srecommendations in this area.17 The relevant Law Commission report identifies thatthe primary objective was to redress deficiencies and gaps in the Crimes Act whichwere perceived as not attaching sufficient weight to the importance of childprotection.18 The Law Commission noted that the mens rea required any ill-treatmentor neglect to be "wilful" or "deliberate".19Crown's position[24] The Crown opposes this appeal and submits there has been no miscarriage ofjustice. The Crown submits Mr Rakete's speed and manner of driving was objectivelydangerous and intentional.[25] The Crown disagrees that this driving is better characterised as careless.Mr Rakete was fleeing the police at speed. Driving in this way at this time and in thisarea was or could have been dangerous for other road users, pedestrians, residents andhis son. The Judge was correct in finding a conviction on this charge.[26] On the second charge, the Crown submits the driving and the crash were likelyto cause suffering or injury to the child and is appropriately described as a majordeparture from the standard of care expected of a reasonable person. The Crownsubmits the standard in s 195 of "intentionally engaging in conduct" can and shouldbe interpreted as requiring conduct to be non-accidental and voluntary. There shouldnot be a subjective form of intent as was the case prior to the amendment of s 195.[27] The Crown submits that driving at speed, mounting a curb, driving towardsand striking the side of a house was likely to cause suffering or injury to Mr Rakete'sson. The Constable described the child as being in shock, which is unsurprisingconsidering it was the child's door that impacted the house.17 Crimes Amendment Bill (No 2) (284–1) (explanatory note).18 Law Commission Review of Part 8 of the Crimes Act 1961: Crimes Against the Person (NZLCR111, 2009).19 At [5.17].[28] The major departure test is wholly objective, a matter of degree and requires avalue judgment. The Crown submits that the conduct of deliberately driving off theroad during a police pursuit with a child in a front seat, albeit restrained, constitutes amajor departure. This conduct was aggravated by Mr Rakete running away from thescene after the impact with the house and leaving his child alone in the running car.Relevant lawDangerous driving[29] Mr Rakete was first charged under s 35(1)(b) of the Land Transport Act 1998.Section 35 of that Act provides:35 Contravention of section 7, or section 22 where no injury or deathinvolved(1) A person commits an offence if the person—(a) operates a motor vehicle recklessly on a road; or(b) drives or causes a motor vehicle to be driven on a road at aspeed or in a manner which, having regard to all thecircumstances, is or might be dangerous to the public or to aperson; or(c) without reasonable excuse, contravenes section 22 by failingto stop and ascertain whether any person has been injured,after an accident where no other person has been injured orkilled.(2) If a person is convicted of an offence against subsection (1),—(a) the maximum penalty is imprisonment for a term notexceeding 3 months or a fine not exceeding $4,500; and(b) the court must order the person to be disqualified fromholding or obtaining a driver licence for 6 months or more.(3) The imposition of a mandatory disqualification under this section issubject to section 81.[30] Dangerousness is assessed objectively, however, it must be shown that thedriver failed to meet the standard of care expected of a reasonable and competentdriver.2020 R v Jones [1986] 1 NZLR 1 (CA), cited in Stratford, above n 15, at 490.Neglect of a child[31] Mr Rakete was secondly charged under s 195 of the Crimes Act. That sectionprovides:195 Ill-treatment or neglect of child or vulnerable adult(1) Every one is liable to imprisonment for a term not exceeding 10 yearswho, being a person described in subsection (2), intentionally engagesin conduct that, or omits to discharge or perform any legal duty theomission of which, is likely to cause suffering, injury, adverse effectsto health, or any mental disorder or disability to a child or vulnerableadult (the victim) if the conduct engaged in, or the omission toperform the legal duty, is a major departure from the standard of careto be expected of a reasonable person.(2) The persons are—(a) a person who has actual care or charge of the victim; or(b) a person who is a staff member of any hospital, institution, orresidence where the victim resides.(3) For the purposes of this section and section 195A, a child is a personunder the age of 18 years.[32] Actual suffering or injury does not need to be proved, only its likelihood. Thisrequires a real or substantial risk of one or more the proscribed harms taking place,rather than any assessment or balancing of the probabilities.21[33] The authors of Adams on Criminal Law comment that against the backgroundof the Law Commission's report, it would appear that the requirement that thedefendant "intentionally" engage in conduct or omit to discharge or perform any legalduty, must be read as meaning "simply that the conduct or failure to act must be morethan merely accidental."22[34] As Toogood J held in JF v New Zealand Police, in order to determine whetherthere has been a "major departure" requires a two-step process:2321 R v Hende [1996] 1 NZLR 153 (CA) at 156.22 Simon France (ed) Adams on Criminal Law (online looseleaf ed, Thomson Reuters) at[CA195.07].23 JF, above n 16, at [39].(a) whether there has been a departure from the standard of care expectedfrom a reasonable person; and(b) whether such a departure was "major" by reference to communitystandards. The seriousness of the conduct and the circumstances theoffender was in when it occurred are highly relevant.[35] Toogood J commented that when viewed as a whole "the conduct must be sobad as to justifiably be considered criminal."24Discussion[36] I propose to deal with each of the offences under their respective headings.Dangerous driving[37] It is clear from the evidence adduced at trial, that Mr Rakete was travelling atan excessive speed to get away from a police pursuit.[38] I accept the Crown's submission that Mr Rakete's speed and manner of drivingwas objectively dangerous and intentional because:(a) the driving occurred in a residential area on a Sunday morning;(b) the Constable reached a speed of 80 km per hour to close in onMr Rakete;(c) Mr Rakete did not stop for the patrol car's flashing lights or siren,dramatically increased his speed when the pursuit began and took threeturns into residential roads;(d) the pursuit ended when Mr Rakete drove off the road, across a footpathand then diagonally over the front lawn of a residential property; and24 At [39].(e) the passenger door of the vehicle impacted the corner of the housebefore the vehicle came to a stop.[39] Mr Rakete's behaviour in the circumstances goes beyond carelessness, as hewas intentionally speeding to escape the police. The Judge found that Mr Rakete'sdriving fell short of the standard of a reasonable and prudent motorist, which is theappropriate legal test. A reasonable and prudent driver would have stopped when firstalerted by a police patrol car's flashing lights or siren.[40] I consider there is no error and not one that can be said to have led to amiscarriage of justice. The appeal against conviction for dangerous driving istherefore dismissed.Ill-treatment or neglect of a child[41] The principal question in relation to the charge of ill-treatment of a child iswhether Mr Rakete's conduct was a major departure from the standard of careexpected from a reasonable person. The Crown submits that the ill-treatment of achild charge can be satisfied by virtue of Mr Rakete's driving. The Judge appears tohave accepted such a submission, by finding the charge proved, because of thepresence of a child in the same vehicle, which the driver was driving dangerously. TheJudge said that it was a "further charge of departure from the standard of care expectedof a reasonable person" because the driver had the care of a child aged one year.25 Onthat basis, he found the charge of ill-treatment or neglect of a child proved.[42] This event occurred mid-morning, in a residential area, where police wereevidently present. The child was strapped into an age-appropriate child restraint in thefront seat of the car. It is unclear, from the one paragraph finding in the Judge'sdecision, what constituted ill-treatment or neglect. The Judge has drawn the inferencethat because a reasonable person should not be driving dangerously and because thechild was present in the car, that was sufficient to satisfy the test under s 195 of theCrimes Act.25 Rakete, above n 3, at [7].[43] Recently, the Court of Appeal in M (CA522/2016) v R identified the elementsthat need to be proved beyond reasonable doubt for a conviction under s 195.26 Inrelation to Mr Rakete, these elements are:(a) Mr Rakete had actual care or charge of his son, a child under 18;(b) Mr Rakete intentionally engaged in conduct towards his son;(c) the conduct was likely to cause suffering or injury; and(d) the conduct was a major departure from the standard of care to beexpected of a reasonable person.[44] Applying the two-step process to the "major departure" test, as in JF v NewZealand Police, the departure must be a departure from the standard of care expectedfrom a reasonable person and the departure must be "major" by reference tocommunity standards.27[45] The seriousness of the conduct and the circumstances are highly relevant.Here, Mr Rakete foolishly sped away from the police, when the Constable put on herflashing light. Mr Rakete drove 500 metres and turned into a residential property,which belonged to one of his relatives. In vacating the vehicle when it collided withthe side of the house, Mr Rakete was apprehended a matter of seconds later. Hisrelatives came to the child's aid, also in a matter of seconds. The child was left for aminimal time in the vehicle, although it appears this did not feature in the Judge'sreasoning.[46] I consider that Mr Rakete's behaviour, whilst unwise in respect of his driving,falls short of "intentionally" engaging in conduct or omitting to perform any legal dutyas a parent, in relation to his child. The fact that the child was travelling with him inthe vehicle was incidental to the 500 metre police pursuit. I uphold the defencesubmission that the Judge did not correctly apply the test in s 195 of the Crimes Act26 M (CA522/2016) v R [2017] NZCA 274 at [14].27 JF, above n 16, at [39].in this case, applying a lesser test of a departure from the standard of care expected ofa reasonable person, rather than the major departure test as the authorities require.[47] The major departure test reinforces the purpose of the legislation as discussedin the Law Commission's report, which appears to be targeted at instances of grossneglect or abuse, rather than simply carelessness or careless parenting.28[48] I find that the Judge has erred in finding the charge of ill-treatment or neglectof a child proved in the circumstances and a miscarriage of justice has occurred. Theappeal is therefore allowed in part.Sentence[49] The Judge imposed concurrent sentences of nine months' imprisonment on theill-treatment or neglect of a child charge and one month's imprisonment on the chargeof dangerous driving. In upholding the appeal against conviction for the ill-treatmentof a child charge, the concurrent sentences of nine months' imprisonment in total ismanifestly excessive.[50] The Crown, subsequent to the hearing, invited the Court to re-sentenceMr Rakete on the dangerous driving charge, treating the presence of the child in thevehicle as an aggravating factor.[51] I have given this request careful consideration but I consider the one month'simprisonment and six months' disqualification from driving for the dangerous drivingcharge, given the relatively short pursuit and distance, was adequate to mark society'scondemnation of such driving. Although the presence of the child in the car is morerelevant to the assessment of dangerous driving, I do not consider that a furtherpenalty, other than one month imprisonment and disqualification, should be imposed.[52] At the time of hearing this appeal against conviction, Mr Rakete had alreadyserved his sentence in full.28 Law Commission, above n 18, at [5.17].Result[53] The appeal is allowed in part. The conviction for ill-treatment or neglect of achild is quashed.Cull JSolicitors:Public Defence ServiceElvidges