LARRY RIMA HATI V NEW ZEALAND POLICE HC PMN CRI 2009-454-35 [2009] NZHC 1393 (8 October 2009)

IN THE HIGH COURT OF NEW ZEALAND
PALMERSTON NORTH REGISTRY
                                                                   CRI
2009-454-35



                               LARRY RIMA HATI



                                          v



                
           NEW ZEALAND POLICE



Hearing:      7 October 2009

Counsel:      P S Coles for Appellant
              P Murray for Respondent

Judgment:     8 October 2009


                      JUDGMENT OF RONALD YOUNG J
                          (Appeal against sentence)



[1]    In August 2008 Mr Hati was disqualified from driving for six months. In
early January 2009 while still disqualified he
overtook another vehicle on a bend,
lost control and killed one of his passengers. He had also been drinking. In late
March 2009
the appellant assaulted a man and then unlawfully got into the victim's
car.


[2]    Mr Hati, in support of this appeal, says the
Judge's sentence of two years and
four months' imprisonment was manifestly excessive.


[3]    Firstly, the facts of the driving
incident.       In the early morning of
25 August 2008 the appellant, with a friend who ultimately died in the accident, left


LARRY
RIMA HATI V NEW ZEALAND POLICE HC PMN CRI 2009-454-35 8 October 2009

an address in Ashhurst and            travelled   west   on
  Napier   Road   towards
Palmerston North. The roads were wet it having rained during the evening.


[4]      Mr Hati had consumed
alcohol. As the appellant drove he overtook a vehicle
containing some of his friends on a moderate corner. That vehicle was travelling
at
100 km/hr. Mr Hati's vehicle, therefore, must have been travelling beyond that. His
vehicle crossed the centre line into the path
of oncoming traffic. Mr Hati was forced
to swerve in front of his friend's vehicle. As he did so he lost control of the vehicle
he
was driving. The vehicle spun, hitting a palm tree on the left side of the road. His
friend was ejected out of the rear seat across
the road and into some shrubs 20 metres
away.


[5]      The appellant's vehicle spun down the road and stopped on the left hand
side
of the road. The appellant was injured and was taken quickly to the hospital in the
associate's vehicle. A passenger from that
vehicle stayed at the scene until the
police arrived. It seems that the victim was seriously injured and died some hours
later.


[6]      The Sentencing Judge thought the aggravating features of the driving
justified a starting point of three years' imprisonment.
He increased that starting
point by four months to reflect the appellant's poor driving record and the fact that
the appellant was
subject to a sentence of community work at the time of his
offending. He deducted fifteen months for remorse and a plea of guilty
leaving a
sentence of two years and one month imprisonment.


[7]      As to the assault and the unlawful getting into the vehicle
and an additional
charge apparently for breach of community work, he added a further three months'
imprisonment resulting in a final
sentence of two years and four months.


[8]      The appellant in support of this appeal said that it is based solely on a
challenge
to the sentence imposed on the dangerous driving causing death.
However, I note that the ultimate sentence in the District Court
was based, as it must
be, on the overall offending. It is not the correct approach to simply take one

sentence out of a collection
of sentences and appeal that. The proper course for me
is to consider the overall offending and the overall sentence.


[9]    In
any event the appellant submits the Judge was wrong to criticise the
appellant for leaving the scene of the accident before the deceased
was found. As to
this the Judge said:

       [7]     Your counsel has been at some pains to explain to me the
       circumstances
of what might have seen to be an obvious further charge that
       might have been faced, a failure to stop and ascertain injury,
but that charge
       does not come before the Court and there are good reasons why that should
       be so in the present case. Nonetheless, it meant that the victim was
still left
       at the scene of the accident and when he was located some time later and
       then subsequently and sadly died
as a result of his injuries.

       ...

       [16]    In these circumstances then the other factor which is an aggravating
  
    feature of the driving itself and the consequences of your driving are the
       matters which have been referred to by counsel
as not being the subject of a
       charge at the present time. This involves the non-attending to the deceased
       and leaving
the scene with your friends. You knew that he was in the
       vehicle. It appears that persons in the other vehicle knew also that
he was in
       the vehicle and by the time that you and the car owner were picked up by the
       others he was apparently not
taken into account by them or by yourself. This
       it seems to me is an aggravating feature under the Skerret decision, though
       not the subject of a charge in itself. Though it is at least partly on your
       conscience that there was it seems to me,
a breach of your duty to attend to
       and take care for him. That breach is shared by others in the particular
       circumstances
who were there at the time and took no steps in relation to the
       deceased either. But your breach is mitigated to the extent
of their failure,
       and, as your counsel has pointed out, by the significant injuries which you
       yourself suffered as
a result of the accident.

[10]   Although this passage was critical of the appellant's actions the criticism is
somewhat muted and
there was an acceptance by the Judge that the appellant himself
had significant injuries. However, in my view, overall, it is possible
to criticise the
Judge's observations that it was an aggravating feature that the appellant left the
scene of the accident immediately
afterwards. The appellant had no choice, he had a
punctured lung, he was seriously injured and he was taken to hospital by his friends.
The question is whether or not that error affected the overall sentence and resulted in
a manifestly excessive sentence. I will return
to that question at the end of my
decision.

[11]   The second criticism of the Judge's remarks relates to the appellant's
awareness
of the lack of roadworthiness of the vehicle. The appellant's case was
that the defects in the vehicle that the appellant drove lessened
his culpability for the
accident because they contributed to the accident. As to this the Judge said:

       [11]     The second,
which is sought to be raised as some mitigation so far as
       your ability to actually control the vehicle is concerned, is that
the vehicle
       had one rear tyre in particular which was significantly worn and the vehicle
       had been written off the road
as being in unwarrantable condition sometime
       prior to the accident itself.

       [12]     My answer to that to you is that
that is part of the pre-existing
       condition of the vehicle and you took over driving and you took the risk. If
       you did
not stop to check the position so far as the vehicle was concerned as
       to its suitability for you to drive, in that all other
things being equal, in those
       conditions and in that manner. That means that if it is a hidden problem and
       a bald tyre
is scarcely in that category, then you took the risk in driving in
       those conditions, if you did not make the necessary checks
prior. That is
       part of the casual manner in which young people involve themselves with
       motor vehicles these days without
taking all proper pre-driving care in
       respect of vehicles which they might drive.

[12]   The Judge's comments were appropriate
and relevant. The appellant could
easily have ascertained the condition of the car. The bald tyre would have been self
evident. The
appellant, therefore, can hardly claim that his culpability was lessened
by the unknown condition of the car. In any event I note there appears to
be no
evidence that the condition of the car was directly relevant to the accident, caused
obviously by speed and passing on a corner.


[13]   Given the error of the Judge as to the appellant leaving the scene the
appropriate course for me is to undertake a sentencing
analysis and to identify
whether as a result of that I consider the ultimate sentence was manifestly excessive.


[14]   To turn
to the facts of the dangerous driving causing death. Firstly, the
appellant should not have been driving at all. He was disqualified.
Secondly, this
was a moderately serious dangerous driving case. It occurred on the open road
where speeds are that much higher and
any collision will be that much more serious.
The road conditions were wet requiring additional care.                    The appellant
had
consumed alcohol before driving, the extent of which is not known, but this is an
aggravating feature.

[15]    The particular
dangerousness involved overtaking on a bend above the speed
limit where vision around the bend was obscured. Such an action is inherently
dangerous. As a result the appellant crossed onto the wrong side of the road and to
avoid a collision had to swerve back onto the
correct side.           This potentially
endangered not only those in his car but also those in the oncoming car and the car
he pulled
immediately in front of.


[16]    Then there was the appellant's past record. This was the fourth occasion in
which he had driven
while he was prohibited from doing so. Most recently in
April 2008, May 2008 and with this offending in January 2009. Further, when
he
committed this offending he was still subject to a sentence of community work
imposed for violent offending and for driving when
he was prohibited from doing so.
At the time of this offending he was also in breach of that community work order.


[17]    Secondly,
as to the assault. The assault occurred after the appellant knew he
had driven his car and killed another. It was not a minor assault
at all. He assaulted
another man causing him bruising, indeed significant bruising was suffered. The
assault occurred when the appellant
was already serving a sentence for assault. In
addition the appellant has convictions for possession of offensive weapon,
aggravating
robbery, injuring with intent to injure, all in 2006.


[18]    I am satisfied dealing solely with the driving offence, given the
aggravating
features of the driving, a starting point of two and a half years was justified. To this
must be added a cumulative sentence
for the assault and the unlawful getting into the
vehicle. The assault occurred after the appellant had already killed through his
dangerous driving. An additional sentence of four months' imprisonment is easily
justified.


[19]    Further, a significant uplift
to the starting sentences was justified to reflect
the appellant's record of driving when prohibited and violence and the fact that
both
of these offences were committed when he was subject to an existing sentence for
similar offending and failing to comply with
that sentence. I consider an uplift of six
to eight months could easily be justified for these factors. This results in an overall

sentence based on aggravating features of the offending and of the offender in a
range of three years, four months to three years,
six months.


[20]    As to mitigation. There is only one mitigating factor, the appellant's early
guilty plea. There are no others.
The appellant, as the Judge recognised, had
pleaded guilty at the first reasonable opportunity, was therefore entitled to a full
one
third discount. It can be seen therefore that the ultimate sentence of the Judge here,
of two years and four months' imprisonment,
was well within the discretion
available to him and could not be said to be manifestly excessive.


[21]    I agree with the Judge
that even if the final sentence had been reduced to two
years or less this was clearly not a case where it would have been appropriate for
home
detention. The appellant has shown little respect for the law. He ignores
Court orders as he chooses. He offends while subject to
Court sentences and he
breached his bail. That is hardly the profile of an offender who could get home
detention.


[22]    For the
reasons given, therefore, the appeal will be dismissed.




                                                 _________________________________
                                                                     Ronald Young J

Solicitors:
P S Coles, Principal, 97 Broadway
Avenue, Palmerston North, email: [e-mail]
P Murray, Vanderkolk & Associates, PO Box 31, Palmerston North, email:
[e-mail]