TAYLOR v NEW ZEALAND POLICE [2017] NZHC 856

TAYLOR v NEW ZEALAND POLICE [2017] NZHC 856 [2 May 2017]IN THE HIGH COURT OF NEW ZEALANDDUNEDIN REGISTRYCRI-2017-412-000018[2017] NZHC 856BETWEEN WARRICK DELANEY TAYLORAppellantAND NEW ZEALAND POLICERespondentHearing: 26 April 2017Appearances: A M Dawson for AppellantR D Smith for CrownJudgment: 2 May 2017JUDGMENT OF DUNNINGHAM J[1] This appeal addresses the limits of a sentencing Judge's discretion when theculpability of the offending appears to exceed, by some margin, the charges laid.[2] In this case, the appellant was sentenced to a total of five months imprisonment on one charge of careless driving causing death and five charges of careless driving causing injury. The charges all arose out of one driving incident, when the appellant crossed the centre line on State Highway One and collided withthe deceased victim's vehicle. The following three vehicles also became involved in the collision and injuries ensued to four occupants of those vehicles plus one occupant of the appellant's vehicle.[3] The appellant appeals his sentence on the basis that the sentence is manifestly excessive because:(a) the Judge failed to provide credit for mitigating factors (despite acknowledging that credit should be allowed); and(b) the Judge incorrectly imposed a cumulative sentence.Background[4] On 3 June 2016, the appellant, who only had a learner licence, drove an associate from Oamaru to Dunedin to attend an appointment in the city. The car he was driving was unregistered and unwarranted. Before leaving Oamaru, both the defendant and his associate smoked some cannabis. The defendant drove his unlicensed associate, and on the way they stopped at a rest area, where they shared a cannabis joint together and drank a can of premix alcohol.[5] Following the Dunedin appointment, the appellant drove his associate and hisassociate's cousin back towards Oamaru. More cannabis was smoked by the three occupants during the journey. Between Waikouaiti and Waitati, the appellant approached a moderate left-hand bend. It was dark at the time but the weather was fine and the visibility good. The appellant's vehicle went across the centrelinebefore the bend. He hit the first of several vehicles travelling in convoy and the driver of the first oncoming vehicle died as a result of injuries sustained in the crash. Four occupants in the three vehicles which were following, and the defendant'sassociate, all sustained injuries in the crash. In explanation the appellant claimed that he looked down and then up and then the accident happened.District Court decision[6] The Judge found that the appellant's driving conduct was at the highest levelof carelessness. There was sustained drug use over the day and the appellant was driving outside of the terms of his learner licence and in an unregistered and unwarranted car.[7] The Judge found that the appellant had showed some remorse by attending a restorative justice conference. However, he also noted that the appellant had stated that he was pressured into driving, which he considered did not indicate a full acceptance of responsibility. The Judge also did not consider youth to be a mitigating factor as the appellant was 22 years old. However, he noted that the appellant was entitled to full credit for his guilty plea.[8] In setting the starting point the Judge observed that there is no tariff case for assessing careless driving causing death or injury. He focused on the level of culpability rather than the consequences and took the maximum sentence available, three months, as the starting point. He determined that substitution for home detention was not appropriate because of the seriousness of the conduct.[9] While acknowledging that in cases such as this cumulative sentences are not normally imposed, the Judge did not consider that the three months imposed on the lead charge was a serious enough penalty. He therefore imposed a two month term of imprisonment on one of the careless driving causing injury charges, to be served cumulatively. He then imposed concurrent sentences of one month's imprisonment on the other four injury charges.[10] The Judge imposed standard and special release conditions. He also ordered reparation totalling around $2,300 to three of the victims and disqualified theappellant from holding a driver's licence for three years. The appellant does not challenge these orders.Principles on appeal[11] Appeals against sentence are allowed as of right by s 244 of the Criminal Procedure Act 2011, and must be determined in accordance with s 250 of that Act. An appeal against sentence may only be allowed by this Court if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.1 It is only appropriate for this Court to intervene and substituteits own views if the sentence being appealed is "manifestly excessive" and notjustified by the relevant sentencing principles.2SubmissionsThe appellant's submissions[12] The appellant submits that the sentence was manifestly excessive because the Judge:1 Criminal Procedure Act 2011, ss 250(2) and 250(3).2 Ripia v R [2011] NZCA 101 at [15].(a) failed to provide credit for mitigating factors; and(b) incorrectly imposed a cumulative sentence.[13] The charges all arose under the same provisions of the Land Transport Act 1998, where the maximum penalty for careless use of a motor vehicle causing injury or death is a three month sentence of imprisonment.3[14] The appellant argues that while his offending had a number of aggravating factors, he also had a number of personal mitigating factors for which he should have received credit. These factors were:(a) his early guilty pleas;(b) his limited previous convictions, none of which were relevant;(c) his attendance at restorative justice;(d) his demonstrated remorse;(e) his willingness to address offending factors; and(f) his willingness to work with authorities to provide education to young people about the dangers of driving under the influence of drugs.[15] Counsel for the appellant submits that the Judge was wrong to simply impose the maximum sentence available, without providing any deduction for mitigating factors, or explaining why he declined to provide such a discount, saying that this is inconsistent with the Taueki sentencing approach and that there was no reason to depart from that.4 In the present circumstances, a credit of around 35 per cent should be given in total.3 Land Transport Act 1998, ss 8 and 38.4 Taueki v R [2005] 3 NZLR 372.[16] Counsel for the appellant also submits that the Judge's cumulative imposition of the sentence for the first careless driving causing injury charge was inconsistent with the principles in s 84 Sentencing Act 2002. This section indicates that concurrent sentences are appropriate where the offending is of a similar kind, and is part of a connected series of events. In this case, the appellant's one act of careless driving caused the accident from which both the death and the various injuries occurred. All of the offences therefore occurred almost instantaneously and all of the charges were laid under the same provisions of the Land Transport Act.[17] The appellant says the Judge was in error to sentence on a cumulative basis and he appears to have adopted this approach simply because he believed that sentencing concurrently would lead to an insufficient end result, saying "I do notconsider three months imprisonment [imposed on the "causing death" charge], even though it is the maximum, is sufficient penalty". Without elaborating any more on that, he simply added two months imprisonment cumulatively on the sentence he had imposed on the "causing death" charge and then imposed concurrent sentences onthe balance of the "causing injury" charges.The respondent's submission[18] The respondent submits that the overall sentence imposed by the Judge was well within the range available and that the errors alleged by the appellant reflected an approach taken by the Judge which was justified in the particular circumstances of the case. The respondent submits that the three step Taueki approach is not mandatory, and it is open to the Court not to apply it in exceptional cases. The question, on appeal, is whether the overall sentence imposed was within range, rather than what approach was adopted.[19] The respondent submits that cumulative terms of imprisonment were appropriate to recognise the suffering of the injured victims, particularly when the lead charge was deserving of the maximum penalty. The key question when imposing cumulative sentences is whether the overall sentence properly reflects the gravity of the offending, and in this case it did.DiscussionCredit for mitigating factors[20] One of the difficulties in the present case is that the Judge clearly acknowledged the presence of mitigating factors, but did not articulate why they were not reflected in discounts in the sentencing process. For example, he said "I doacknowledge your bravery in fronting the restorative justice conference. That cannothave been an easy thing to do",5 and he went on to accept that attending therestorative justice conference was "indicative of remorse".6 The Judge also said "Iaccept what Mr Dawson says that you are entitled to a full credit for your guiltyplea".7[21] While the Judge also pointed to factors which limited the extent of remorse shown, it was clear the Judge did accept that remorse and the guilty plea were mitigating factors. Having recognised that, it would seem he did not take account of them in sentencing the appellant. That is contrary to the approach recommended inTaueki which says, that once a starting point has been determined, it is:8then necessary to determine whether the aggravating or mitigating factorsrelating to the offender's particular personal circumstances require that the actual sentence should be higher or lower than the starting point The mostsignificant mitigating factor will normally be an early guilty plea, for which a substantial reduction from the starting point will normally be justified.[22] That said, the Court of Appeal in Hughes v R held that:9 the general approach to sentencing described by this Court in Tauekishould be applied, although a busy District Court Judge sentencing in cases of this kind need not carry out this exercise with the degree of rigour called for in more serious cases. On appeal, it is the appropriateness of the final sentence that counts, not how it is made up.[23] Thus, even if the approach taken by the District Court Judge was in error, this Court must uphold the sentence reached if it is within an appropriate range.5 Police v Taylor [2017] NZDC 7112 at [12].6 At [16].7 At [16].8 At [44].9 Hughes v R [2012] NZCA 388 at [29].[24] The Supreme Court in Hessell v R cautioned against allowing full credit for a guilty plea in circumstances where the prosecution and the offender have reached an understanding on the charges faced and the facts admitted, as to do so can amount to giving a double benefit.10 The Court also indicated that where a defendant pleads guilty in the face of a very strong prosecution case, the full discount is not necessarily appropriate.11[25] The respondent submits that the appellant had already benefited from the selection of the charges. Furthermore, there was clear evidence that the appellant drove carelessly and caused the crash and it may well have been that these factors were sufficient to negate the need for a discount to be applied for the guilty plea.[26] In my view, it was important, in this case, to articulate why a particular discount was given or not given. This was particularly so when the Judge, quite reasonably, selected the maximum sentence as the starting point to reflect theoffender's culpability. While the decision to impose a maximum sentence is consistent with s 8(c), which requires the maximum penalty to be imposed if the offending is within the most serious of cases for which that penalty is prescribed, s 8(c) still requires the circumstances of the offender to be taken into account in that decision, which may include the acknowledgment of responsibility through an early guilty plea.[27] In this case, it was within the Judge's discretion to consider that any remorse shown was not at a level over and above that shown by a guilty plea and did not require a separate discount. Equally, as the appellant was 22, it was open to the Judge to consider he did not qualify for a discount for youth. However, I considerthere was no reason to ignore the appellant's early guilty pleas. There is nosuggestion that the defendant had initially faced more serious charges which had been reduced in light of the guilty plea. I accept, however, that the force of the guilty plea was lessened by the overwhelming strength of the prosecution case and the fact he could have faced more serious charges, so that only a modest discount was warranted. The Judge was therefore in error in not reflecting some credit for10 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [62].11 At [60].that in sentencing the appellant. However, I return to where and how that should be reflected after considering the next ground of appeal.Cumulative sentences[28] The primary issue which has a bearing on the sentence imposed in this case is whether it was open to the Judge to impose cumulative sentences in respect of the charge involving causing death and the first charge involving causing injury, in light of the guidance provided in s 84 of the Sentencing Act. Section 84 provides:84 Guidance on use of cumulative and concurrent sentences of imprisonment(1) Cumulative sentences of imprisonment are generally appropriate if the offences for which an offender is being sentenced are different in kind, whether or not they are a connected series of offences.(2) Concurrent sentences of imprisonment are generally appropriate if the offences for which an offender is being sentenced are of a similar kind and are a connected series of offences.(3) In determining for the purpose of this section whether 2 or more offences committed by 1 offender are a connected series of offences, the court may consider—(a) the time at which they occurred; or(b) the overall nature of the offending; or(c) any other relationship between the offences that the court considers relevant.[29] As already noted, the appellant argues that this guidance constrains the Judge to imposing the sentences on the charges concurrently as they both arise out of the same act of careless driving and because they are of a similar kind, being imposed under the identified sections of the Land Transport Act.[30] The question therefore is whether the guidance in s 84 directs the imposition of concurrent sentences in the present case, or whether it leaves open the possibility of a cumulative sentence.[31] The Court of Appeal emphasised in Hughes v R that while s 84 provides general guidance on cumulative and concurrent sentences, the Court must keep in mind the key sentencing principles endorsed by R v Xie.12 R v Xie held that:13(a) With multiple offences, the sentence must reflect the totality of the offending;(b) In respect of multiple offences, this Court will not insist that the total sentence be arrived at in any particular way; and(c) The total sentence must represent the overall criminality of the offending and the offender.[32] The Court in Hughes reiterated that the third principle is the central one and is not trumped by ss 84 and 85.14[33] In Hughes, the sentencing Judge applied cumulative sentences for charges of driving with excess breath alcohol and driving while disqualified. The charges both arose from one driving incident. On appeal, the Court of Appeal found that the Judge:15was entitled to impose cumulative sentences in the circumstances. The appellant's recidivism in relation to similar offending was a factor the Judge was entitled to take into account as an aggravating circumstance calling for a deterrent sentence. It was open for the Judge to conclude that the appellant's case was within (or at least near to) the most serious of that kind and that the combination of offences was such that concurrent sentences would not adequately reflect the overall culpability of the offender. If he considered a sentence of more than the maximum sentence available was appropriate, he could only have achieved that outcome by imposing cumulative sentences. Since the two offences were different in kind, it was appropriate for the Judge to impose cumulative sentences in accordance with the general guidelines in s 84(1) of the Sentencing Act.[34] However, in that case, the Court still placed reliance on the fact that the two offences were "different in kind" in order to say it was appropriate to imposecumulative sentences in accordance with the general guidelines in s 84(1) of the Sentencing Act.12 R v Hughes, above n 9 at [27]; R v Xie [2007] 2 NZLR 240 (CA).13 At [17], endorsing R v Williams CA91/00, 31 May 2000 (CA) and R v Barker CA57/01, 30 July 2001 (CA).14 At [28].15 At [34] – [35].[35] R v Xie involved a somewhat different set of circumstances, where the defendant was sentenced for three charges of importing a controlled drug relating to three separate shipments, and a fourth charge for a related drug offence. The maximum penalty for this offence was eight years imprisonment. The sentencing Judge felt constrained from adopting a cumulative approach to sentencing because of the guidelines in s 84. The Solicitor-General appealed the decision on the basis that the overall sentence did not reflect the totality of the offending and was manifestly inadequate.[36] The Court of Appeal held that concurrent sentencing would usually be appropriate in cases involving these charges, if it would lead to an appropriate total sentence. However, it found that concurrent sentences were not sufficient in the case before it. It held that:16In circumstances where the total sentence appropriate for the totality of the offending exceeds the maximum penalty for any one offence, cumulative sentencing must be used. This is a circumstance where concurrent sentencing is not appropriate because it prevents the implementation of the fundamental tenants of sentencing from multiple offending.[37] In determining the appropriate sentence, the Court of Appeal took a starting point of 11 years, three years above the maximum penalty for the offence. It then applied the relevant mitigating factors. This resulted in an end sentence of eight years and nine months imprisonment. Having established the appropriate sentence, the Court then considered how it should be distributed among the charges. It applied eight years to each of the three main charges, to be served concurrently, and nine months for the fourth charge, to be served cumulatively. The Court stressed that:17the individual sentences allocated are not terribly important. What is important is correctly working out the sentence appropriate for the totality of the offending. It would be quite wrong in future for this judgment to be cited as authority with respect to any particular sentence. Its usefulness will be limited to the approach adopted and starting point adopted with respect to the overall offending.16 At [19].17 At [38].[38] In my view, R v Xie supports the availability of cumulative sentences in thepresent case where "the total sentence appropriate for the totality of the offending exceeds the maximum penalty for any one offence". Section 84 only describes whatis generally appropriate, and does not prevent a Judge from applying the penalty needed to reflect the totality of the offending.[39] However, it must be emphasised that the circumstances of the present offending are unusual and reflects the fact that the incident gave rise to multiple charges and multiple victims. It does not alter the fact that generally, where the offences are of the same nature and arise out of one driving incident, it would be appropriate to impose concurrent sentences.18Application to the present case[40] In the present case, not all facets of the Judge's reasoning were articulated.However, it is plain that he:(a) considered more serious charges could have been laid;(b) it was unrealistic to also impose a fine because Mr Taylor already owed fines to the Court;(c) the impact on his victims was "immense and tragic";(d) the appellant's driving conduct was "to the level of the highest degree of carelessness", given he was driving on a learner licence, was notbeing instructed by a licensed driver and had partaken of drugs;(e) even in respect of the injuries, they were not just minor;18 See for example Crichton v Police HC Auckland A05/03, 28 March 2003, where Laureson J agreed that concurrent sentences had been appropriately imposed for five charges of aggravated careless use of a motor vehicle causing death or injury, and where the maximum penalty was three years imprisonment.(f) untrammelled by the charges laid, he considered a starting point of somewhere in the vicinity of 18 months imprisonment would be appropriate; and(g) he did not consider three months imprisonment was sufficient to reflect.[41] I consider therefore, as the Judge did, that this was a particularly unusual set of circumstances. While there is a strong presumption that concurrent sentences should be applied for multiple charges of careless driving causing death or injury out of the same driving act, that must yield to the principle that the end sentence imposed should reflect the totality of the offending.[42] I accept, entirely, the Judge's view that the culpability of the offending was sogreat that it warranted a starting point at the maximum penalty available for that offence. That appropriately reflected the sentencing principle that the Court must impose the maximum penalty prescribed for the offence if the offending is within the most serious of cases for which that penalty is prescribed, unless circumstances relating to the offender make that inappropriate.19[43] It is clear from the judgment that, taking into account the seriousness of the offending, the number of charges and the number of victims, concurrent sentences on all fives charges would not be adequate. Furthermore, this offending was considered by the Judge to be the most serious possible for this charge. He reflected this by sentencing cumulatively on the careless driving causing death and the first careless driving causing injury charge, but then acknowledging s 84 by imposing the sentences for the balance of the careless driving causing injury charges concurrently.[44] In my view, it was open to him to impose the maximum charge on both the careless driving causing death and the careless driving causing injury charges, which would have reached a sentence of six months. From this, the Judge accepted that a credit should be available for the early guilty plea, which he acknowledged reflected a degree of genuine remorse. However, he did not expressly reflect that in the19 Sentencing Act, s 8(c).sentencing process. If a 20 per cent deduction was made from a cumulative sentence of six months, an end sentence of just under five months imprisonment would be reached. That is only marginally less than the end sentence reached of five months imprisonment. In my view, calculating the sentence in that way arrives at a sentence which is not dissimilar to that reached by the sentencing Judge, and which better reflects the totality of the offending than if the sentences had been imposed concurrently, but still gives credit for the mitigating factor of early guilty pleas.[45] I therefore consider that, while the Judge did not clearly articulate how he reached his end sentence in terms of the applicable sentencing principles, the sentence can be supported having regard to the totality of the offending and cannot be said to be manifestly excessive.[46] Accordingly, the appeal is dismissed.Solicitors:Public Defence Service, DunedinRPB Law, Dunedin