RICHARDS v R [2017] NZCA 232

RICHARDS v R [2017] NZCA 232 [1 June 2017]IN THE COURT OF APPEAL OF NEW ZEALANDCA70/2017[2017] NZCA 232BETWEEN SHAY ROBERT RICHARDSAppellantAND THE QUEENRespondentHearing: 3 May 2017Court: French, Mallon and Wylie JJCounsel: M A Stevens for AppellantK S Grau for RespondentJudgment: 1 June 2017 at 4.00 pmJUDGMENT OF THE COURTThe appeal against sentence is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Wylie J)Introduction[1] On 14 November 2016, the appellant, Mr Richards, pleaded guilty to four charges — one of reckless driving causing death and three of reckless driving causing injury. He had earlier pleaded guilty to a charge of theft. On 3 September 2017, he was sentenced by Gendall J in the High Court at Dunedin onall five charges to three years and three months' imprisonment. In addition, he wasdisqualified from driving for four years.1[2] Mr Richards appeals his sentence on the ground it is manifestly excessive.Background facts[3] On 29 July 2015, the deceased, Nakita Strange, and three young men had set out from Invercargill to drive to Christchurch. As they neared Dunedin, they realised they needed petrol. They did not have enough money to buy it. Ms Strange, who knew Mr Richards, contacted him and asked for assistance. The group picked up Mr Richards and a female friend of his, KH. Either Mr Richards or KH offered to doa petrol "drive off" for the group.[4] Mr Richards only had a learner licence but he took over the driving. At 2.05 am he pulled into a service station near central Dunedin. The car was filled with petrol valued at $75.54. Mr Richards then drove off at speed, squealing thevehicle's tyres, without paying.[5] One member of the group was seated in the front passenger seat. The other four, including Ms Strange, were seated in the back seat. They were not wearing seatbelts.[6] Mr Richards drove a short distance down one leg of State Highway 1, then turned right and drove the wrong way down a one way street for a distance of 150 metres. He then turned right again and drove approximately 350 metres in a northerly direction. Mr Richards turned left into yet another street, then a short distance across a major road before veering off to the left. He went through an intersection without slowing down, despite being obliged to give way. He continued on to a second intersection. Again he did not slow down or give way. Another vehicle, which had right of way, collided with the car being driven by Mr Richards. The front of that vehicle hit the rear right side of the car being driven by Mr Richards, causing it to spin. It crashed into a parked car and then hit a wall. The1 R v Richards [2017] NZHC 74.total distance covered between the service station and the crash site was approximately 1.24 km.[7] One of the passengers estimated his speed as being up to 80 km/h at times; Mr Richards told the police he was travelling at around 60 km/h which on the basis of an expert report would appear to be the speed at the time of the collision. During the driving, the front seat passenger told Mr Richards to slow down, and KH, who was sitting with the other three passengers in the back seat, told him to stop driving like an idiot. Mr Richards did not respond to either request.[8] Following the crash, Mr Richards forced the driver's door open and got out ofthe car. He helped KH get out of the vehicle. He noticed that Ms Strange was not moving. He and the front seat passenger got another of the back seat passengers out of the vehicle. Mr Richards and KH then walked away from the scene of the crash. Mr Richards was heard to say he was going to get a taxi. They stopped in a driveway and Mr Richards sent text messages to four different people, asking them to call him. The police located Mr Richards and KH about 60 metres from the crash scene.[9] Meanwhile, the driver of the other vehicle was performing CPR on Ms Strange. Emergency services were summoned by members of the public. When they arrived they assisted in removing Ms Strange from the vehicle. They also continued CPR on her.[10] Mr Richards, the five passengers and the other driver were taken to Dunedin Hospital. Ms Strange was pronounced dead shortly thereafter. One of the passengers had received a broken rib, a spleen injury, and pulmonary contusions. Another passenger had a ruptured bladder, a fractured jaw, a fractured pelvis and a spinal injury. The front seat passenger suffered pain to his neck and upper chest and tenderness to his ribcage. The driver of the other vehicle received minor injuries. KH suffered only minor discomfort. Mr Richards suffered no significant injuries.[11] Analysis of a blood sample taken from Mr Richards at the time showed 0.3 micrograms of THC2 per litre of blood. This was consistent with the consumption of a single cannabis cigarette between one to 12 hours prior to the sample being taken.[12] In January 2016, Mr Richards was charged with manslaughter, three charges of reckless driving causing injury, failing to render assistance and theft. As noted, he pleaded guilty to one charge of reckless driving causing death, three charges of reckless driving causing injury, and one charge of theft. The Crown withdrew the charge of manslaughter and the charge of failing to render assistance.Analysis[13] Justice Gendall considered the offending was "at the higher end of culpability".3 He adopted a starting point of five years' imprisonment. He allowedMr Richards a 10 per cent discount for his age (18 years) and a 25 per cent discount for his guilty pleas. He added those two discounts together and deducted 35 per centfrom his starting point to reach an end sentence of three years and three months'imprisonment.[14] Mrs Stevens, for Mr Richards, submitted Gendall J's assessment of theculpability involved was unfair to Mr Richards, the starting point was too high, theJudge's decision not to give a discount for remorse was wrong in principle and thediscount for youth was too low.Tariff — aggravating/mitigating features[15] There is no guideline or tariff decision for sentencing in respect of the offence of dangerous driving causing death. Sentencing in such cases is highly fact specific.[16] The most helpful decision is the decision of this Court in Gacitua v R.4 The Court there observed that, in the United Kingdom, the courts have adopted2 Tetrahydrocannabinol — the principal psychoactive component in cannabis.3 R v Richards, above n 1, at [24].4 Gacitua v R [2013] NZCA 234 [Gacitua (CA)].sentencing bands based on various aggravating and mitigating features.5 The Court considered there may be a case for establishing tariffs in this country for offending at different levels of culpability. The Court observed that the categories adopted in the United Kingdom will have to be adapted for the New Zealand context. It considered it was preferable to leave the issue for a permanent court in an appropriate case.6[17] Notwithstanding these reservations the Court cited the various aggravating and mitigating features identified in the United Kingdom as follows:7[25] Aggravating factors, in four categories, were as follows:Highly culpable standard of driving at time of offence(a) The consumption of drugs (including legal medication known to cause drowsiness) or of alcohol, ranging from a couple of drinks to a'motorised pub crawl'.(b) Greatly excessive speed; racing; competitive driving against another vehicle; 'showing off'.(c) Disregard of warnings from fellow passengers.(d) A prolonged, persistent and deliberate course of very bad driving.(e) Aggressive driving (such as driving much too close to the vehicle in front, persistent inappropriate attempts to overtake, or cutting in after overtaking).(f) Driving while the driver's attention is avoidably distracted, e.g. by reading or by use of a mobile phone (especially if hand-held).(g) Driving when knowingly suffering from a medical condition which significantly impairs the offender's driving skills.(h) Driving when knowingly deprived of adequate sleep or rest.(i) Driving a poorly maintained or dangerously loaded vehicle, especially where this has been motivated by commercial concerns.5 At [22]–[25]; citing R v Cooksley [2003] EWCA Crim 996, [2003] All ER 40.6 At [28].7 Footnotes omitted; quoting R v Cooksley, above n 5, at [15].Driving habitually below acceptable standard(j) Other offences committed at the same time, such as driving without ever having held a licence; driving while disqualified; driving without insurance; driving while a learner without supervision; taking a vehicle without consent; driving a stolen vehicle.(k) Previous convictions for motoring offences, particularly offences which involve bad driving or the consumption of excessive alcohol before driving.Outcome of offence(l) More than one person killed as a result of the offence (especially if the offender knowingly put more than one person at risk or the occurrence of multiple deaths was foreseeable).(m) Serious injury to one or more victims, in addition to the death(s).Irresponsible behaviour at time of offence(n) Behaviour at the time of the offence, such as failing to stop, falsely claiming that one of the victims was responsible for the crash, or trying to throw the victim off the bonnet of the car by swerving in order to escape.(o) Causing death in the course of dangerous driving in an attempt to avoid detection or apprehension.(p) Offence committed while the offender was on bail.[26] Mitigating factors were as follows:(a) A good driving record;(b) The absence of previous convictions;(c) A timely plea of guilty;(d) Genuine shock or remorse (which may be greater if the victim is either a close relation or a friend);(e) The offender's age (but only in cases where lack of driving experience has contributed to the commission of the offence), and(f) The fact that the offender has also been seriously injured as a result of the accident caused by the dangerous driving.[18] The Court in Gacitua v R observed these "guidelines are useful in identifyingsome of the aggravating and mitigating factors relevant to sentencing in cases of thiskind".8[19] Against this background, we turn to consider the various matters raised by Mrs Stevens for Mr Richards.Assessment of culpability[20] The first aggravating factor identified by Gendall J in his sentencing notes was the presence of THC in Mr Richards' blood.9 Mr Richards denied using cannabis in the hours prior to driving on the night in question. Mrs Stevens asserted the time of consumption of the cannabis is conjecture at best and blood levels of THC are a poor indicator of cannabis consumption. Further, it was submitted the use of cannabis was not necessarily linked to the offending in this case, and the presenceof THC in Mr Richards' blood should not have been considered as an aggravatingfactor.[21] In Gacitua v R this Court accepted as a general rule that the consumption of alcohol or drugs should be treated as an aggravating factor — even if, in the case of alcohol, blood or breath readings are within legal limits. The Court considered when bad driving follows alcohol consumption, a causal link can generally be assumed.10[22] Here Mr Richards tested positive for the consumption of cannabis. The amount of THC found in his blood was consistent with the smoking of a single cannabis cigarette within a period of up to 12 hours prior to the sample being taken.The formal statement of the ESR scientist who analysed Mr Richards' bloodrecorded that it was not possible to determine whether Mr Richards was intoxicated when the sample was collected, and observed that cannabis cannot be classified as a sedative or stimulant since it can have different effects in different people andbecause its effects generally vary over time. She stated the "subjective" symptoms8 At [29]; and see Scott v R [2014] NZHC 1598 at [29].9 R v Richards, above n 1, at [24(a)].10 Gacitua (CA), above n 4, at [40].of cannabis intoxication usually peak 10 to 15 minutes after smoking cannabis and last about 1.5 to four hours.[23] Given these observations, it cannot be said there was necessarily a causal link between the consumption of cannabis by Mr Richards and his poor driving. He may have consumed the cannabis more than four hours before taking the wheel and therefore cannabis may not have affected his driving at all. Mr Richards was entitled to be sentenced on the view of the facts most favourable to him. In our view, the prior consumption of cannabis should not have been treated as an aggravating feature of Mr Richards' offending given the facts of this case.[24] Another factor considered by the Judge in his assessment of culpability was that two of the passengers in the car pleaded with Mr Richards to slow down.11Mrs Stevens submitted this factor should be given little weight in the circumstances. She argued that what the passengers claim they said should be treated with caution, given that everyone in the car had an interest in getting away from the service station after the theft of petrol. She further submitted Mr Richards did not hear any warnings.[25] We do not accept this submission. Whether or not the passengers wanted to get away from the petrol station is irrelevant. It does not follow they wanted Mr Richards to speed or drive recklessly or that they did not care how he was driving. Further, the submission invites us to disbelieve the passengers. That submission is not open to Mr Richards. He pleaded guilty to a summary of facts which referred to the pleas made by the passengers. If he disputed that the pleas were made, or wished to assert he did not hear them, he could and should have sought to alter the summary of facts before entering his plea and if necessary requested a disputed facts hearing.[26] Justice Gendall noted Mr Richards' driving was "prolonged, persistent anddeliberate".12 Mrs Stevens submitted this factor was weighed too heavily. She argued the bad driving was only over a relatively brief period, perhaps a few11 R v Richards, above n 1, at [24(b)].12 At [24(c)].minutes, and while Mr Richards did drive over the legal speed limit, he did not exceed the speed limit to any significant extent. She also suggested there was no other traffic on the roads.[27] Again, we do not accept Mrs Stevens' submissions on this matter.Mr Richards, before the crash, sped off from the petrol station. He drove at speeds above the speed limit. He went the wrong way down a one way road. The crash occurred when he was driving through an intersection without slowing down and when he should have given way. As this Court noted in Gacitua v R, it is artificial to divorce the accident from the driving that preceded it.13 From the theft of the petrol onwards, Mr Richards drove recklessly. While there may have been little traffic on the roads, that does not excuse reckless driving. In any event there was at least one vehicle on the road — the vehicle that hit the car being driven by Mr Richards. The death resulted from a short but sustained episode of reckless driving, and not from an isolated error in judgment.[28] Mrs Stevens submitted the fact Mr Richards drove an overloaded vehicle was not relevant, because the fact the vehicle was overloaded was not material to the collision which occurred. She noted everybody had a seat, and there was nosuggestion the resulting death or injuries were "contributed to by the lack of use ofseatbelts".[29] Again we disagree. The overloading increased Mr Richards' culpability,because it added to the peril of the situation. Mr Richards knowingly placed all in the vehicle at risk. There were four persons in the back seat. There were two full seatbelts in the back seat and a third lap-belt in the centre. Mr Richards must be taken to have known one passenger would not have a seatbelt of their own. It does not matter whether the fact none of the back passengers was wearing a seatbelt contributed to the death or injuries. All were at risk because of Mr Richards'reckless driving.13 Gacitua (CA), above n 4, at [41]. In Gacitua (CA), the dangerous driving took place over a period of some 10 minutes. The speed was not excessive — although it was at least 20 km/h over the speed limit. This situation is not dissimilar to that in the present case.[30] Mrs Stevens accepted that other features identified by Gendall J —Mr Richards was driving in breach of the conditions attaching to his licence, his prior driving history and the injuries the passengers other than Ms Strange received— were aggravating features. However, she submitted that nevertheless Mr Richard's overall culpability was moderate.[31] Except as noted,14 we do not consider Gendall J erred in his assessment of theaggravating features, or in his conclusion that Mr Richards' culpability was at a highlevel. Indeed in our view there was one additional aggravating factor not noted by the Judge — namely causing Ms Strange's death in the course of reckless driving in an attempt to escape following the theft of the petrol from the service station. The aggravating features — in our judgment seven in total — were such that Mr Richards' culpability was either similar, or arguably greater, than the culpability of the offender in Gacitua v R (three aggravating factors). We do not consider the Judge erred by adopting the same starting point as was approved in R v Gacitua — five years' imprisonment.15 This Court accepted a starting point of four to five years is appropriate when culpability is assessed as high but not at the most serious level.16Remorse[32] Mrs Stevens contended there should have been a discount for remorse. In her submission, Gendall J was wrong when assessing remorse to take into account Mr Richards' driving history, and the fact he was driving in breach of his learner's licence. Mrs Stevens argued the Judge had already considered Mr Richards' driving history in fixing the starting point, and that Mr Richards' driving after the crashoccurred before he was charged. She told us once he was charged, Mr Richards ceased driving.[33] Mrs Stevens accepted Mr Richards only wrote his letter of apology shortly before sentencing. She argued the reason the letter was late and Mr Richards did not attend a restorative justice conference was because he was frightened of thedeceased's relatives and friends and did not want to upset them further. She referred14 See above at [23].15 R v Gacitua [2012] NZHC 2542 [Gacitua (HC)] at [35].16 Gacitua (CA), above n 4, at [43] and [45].to the pre-sentence report, where it was noted Mr Richards said he had experienced"considerable angst" over his poor choices on the night of the crash, and "his feelings of guilt continue to overwhelm him".[34] The rationale for a separate discount for remorse was discussed by the Supreme Court in Hessell v R.17 The Court there noted as follows:18Remorse is not necessarily shown simply by pleading guilty. Sentencing judges are very much aware that remorse may well be no more than self pity of an accused for his or her predicament and will properly be sceptical about unsubstantiated claims that an offender is genuinely remorseful. But a proper and robust evaluation of all the circumstances may demonstrate a defendant's remorse. Where remorse is shown by the defendant in such a way, sentencing credit should properly be given separately from that for the plea.[35] In our judgment, the Judge was correct in his evaluation of Mr Richards'circumstances, and in his decision not to give a separate credit for remorse. We note the following:(a) There was no evidence of remorse at the time of the crash, for example, by attempting to assist Ms Strange or to contact emergency services. Rather Mr Richards walked away from the scene, and was heard to say that he intended to call a taxi.(b) While Mr Richards did write a letter of apology, its timing, close to sentencing and long after the crash, meant Gendall J was entitled to besceptical about Mr Richards' motivation in writing the letter.(c) Mr Richards declined to participate in a restorative justice conference.It may be he had good reason to fear the anger of the deceased'sfamily. Nevertheless, if he had agreed to participate, despite such fear, that may well have evidenced genuine remorse warranting recognition.17 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.18 At [64].(d) Many of Mr Richards' comments to the probation officer wereself serving — for example his assertion that he offered to drive the vehicle because it smelt as though it had a burning clutch, and that it may have been driven badly by others. Similarly, his belated denial that he heard the passengers telling him to slow down and to stop driving like an idiot. He also claimed he saw the give way signs at the intersections, and slowed down, but simply failed to see the headlights of the approaching vehicle. This assertion is contrary to the summary of facts to which Mr Richards pleaded guilty, the witness statements and the expert crash analysis which was undertaken. It is also noteworthy that Mr Richards sought to place the blame for his failure to apologise on the family of the deceased.(e) Mr Richards' self reported and belated feelings of guilt expressed tothe probation officer, are consistent with self pity for the predicament he found himself in.(f) Perhaps the most telling factor against any claim of genuine remorse is the fact that Mr Richards continued to drive in breach of his licence conditions after the crash, but before he was charged. As noted by Gendall J, he accumulated four further infringements for being a learner driver and driving without appropriate supervision, and he incurred sufficient demerit points to again have his licence suspended. While Mrs Stevens submitted Mr Richards did not drive after he was charged, we note that he was then on bail. It was a condition of his bail that he did not drive.[36] In our judgment, Gendall J was correct not to allow a separate discount for remorse. A robust evaluation of all of the relevant circumstances did not demonstrate any genuine remorse by Mr Richards.Youth discount[37] Finally, Mrs Stevens argued the 10 per cent discount given by the Judge for youth and personal circumstances was inadequate. It was noted Mr Richards wasonly 18 at the time of his offending, and that his offending bore all the hallmarks of immaturity, common amongst young males. It was noted Mr Richards had not had a stable home life, and in R v Gacitua, a discount of 20 per cent was allowed for age notwithstanding the offender in that case was 25 years old.[38] We do not accept the submission the offender in R v Gacitua received a 20 per cent discount for youth alone. It is clear from the judgment that the 20 per cent discount allowed was for Mr Gacitua's relative youth, genuine remorse and hisprevious good record.19[39] The discount Mr Richards received for youth was, in effect, 13.3 per cent.20We are not persuaded this discount was insufficient. Justice Gendall correctly balanced the rationale for a youth related discount with the need to denounce and deter offending of this kind. Where offending is grave, the scope to allow a discount for youth will often be circumscribed, because the very factors that can lead young people to offend can also cause concern about public safety.21[40] Offending of this kind is most commonly carried out by young, immature, male drivers. While that does not mean a discount for youth can never be appropriate in such cases, it is noteworthy Parliament increased the sanction for this kind of offending.22 As this Court noted in Gacitua v R, while it is regrettable that young men of unblemished character and obvious potential can face lengthy prisonterms, "the public interest in discouraging dangerous and grossly irresponsibledriving must prevail".2319 Gacitua (HC), above n 15, at [36]; and see Gacitua (CA), above n 4, at [13].20 As noted above at [13], Gendall J added the youth discount and the guilty pleas discount together and deducted the total from his starting point. This is unusual, and contrary to the approach discussed by the Supreme Court in Hessell v R, above n 17, at [73]. Applying the 10 per cent discount for youth gives a provisional sentence of four years six months. Applying the 25 per cent discount for the guilty pleas to this provisional sentence should have resulted in an end sentence of three years, four months and two weeks' imprisonment. In effect,Mr Richards received a discount of 13.3 per cent for youth.21 Churchward v R [2011] NZCA 531, (2011) 25 CRNZ 446 at [84]; and R v Rapira [2003] 3 NZLR 794 (CA) at [122].22 Land Transport (Road Safety and Other Matters) Amendment Act 2011, ss 19 and 20; and Land Transport Act 1998, ss 36 and 36AA.23 Gacitua (CA), above n 4, at [44].Result[41] We are not persuaded any of the grounds advanced in support of the appeal are made out. In our judgment the end sentence imposed was within the available range for the offending, and there was no error of principle. The appeal against sentence is dismissed.Solicitors:Crown Law Office, Wellington for Respondent