THE QUEEN v COREY JAMES GRANT [2002] NZCA 301 (11 December 2002)

IN THE COURT OF APPEAL OF NEW ZEALAND

ca 240/02

THE QUEEN

V

COREY JAMES GRANT

Hearing:	2 December 2002
Coram:	Blanchard J
	Panckhurst J Salmon J
Appearances:	D J Taffs for Appellant
	A Markham for Crown
Judgment:	11 December 2002

judgment of the court DELIVERED BY PANCKHURST J

[1] This is another tragic case of motor manslaughter involving a young person who caused the death of a friend by criminally reckless driving of a motor vehicle.The sentence imposed was six years imprisonment.The appellant, a young man, is aged eighteen years.It is contended on his behalf that the sentence imposed was manifestly excessive.

Background

[2] The accident occurred on 28 December 2001.By arrangement the appellant drove a two litre high performance car belonging to his friend Andrew Newton, the deceased, from Greymouth to the viaduct near Arthurs Pass.There was a third person seated in the rear of the vehicle.At the viaduct they met a second car which had come from Christchurch.In it were three occupants who were known to the appellant and his friends.

[3] A capsule of cannabis oil was produced by one of the group and shared (smoked) by them.The two cars then drove the short distance to Arthurs Pass village.There they stopped for lunch before continuing on to Christchurch.

[4] As the cars left Arthurs Pass they were stopped by the police for exceeding the 50 kilometre per hour limit.The appellant's speed was 97 kilometres per hour.He received an infringement notice for $630.In addition the officer warned both drivers concerning the risks associated with driving at such an excessive speed before they were allowed to continue on their way at about 4.55pm.

[5] Despite such warning the subsequent course of driving of the two drivers was described in the summary of facts in these terms:

On the return trip they frequently exceed the 100 kilometres per hour speed limit with speeds up to and possibly over 200 kilometres per hour, including overtaking several vehicles at a time and passing on hills and corners.

Investigations have revealed that there are about a dozen witnesses to the dangerous manner of (the appellant's) driving prior to the crash.

The accident itself occurred a short distance from Christchurch.

[6] The two vehicles approached the city along the old West Coast Road (a secondary route and shortcut, which takes motorists off the main state highway for a distance by-passing Darfield township).It is a rural road which services numerous lifestyle blocks nearer to Christchurch.On it the subject two cars attained speeds estimated to be up to 200 kilometres per hour.

[7] At Yaldhurst (on the outskirts of Christchurch) the old West Coast Road rejoins the main state highway.The two converge at a V-shaped intersection, so that motorists on the old West Coast Road must execute a slight right hand sweep, and comply with a give way sign, before turning slightly left to rejoin the state highway.

[8] The appellant approached the intersection at excessive speed, hit the left hand curb as he was endeavouring to turn to the right before the give way sign, became airborne and flew into the path of an oncoming vehicle leaving the city and heading in a westerly direction.It was a horse transport truck which was struck in the right front corner causing extensive damage.Its driver and passenger fortunately received only moderate injuries.

[9] The car driven by the appellant was destroyed.The owner, aged 18 and who was the front seat passenger, died of high energy impact injuries to the head. The appellant and the back seat passenger were also injured.The appellant was admitted to hospital where a blood sample was taken.It revealed a level of 0.9 milligrams of tetrahydrocannabinol (THC) per litre of blood, which the summary said was consistent with smoking a single cannabis cigarette between 1½ to 24 hours prior to the taking of the sample.

[10] The accident occurred at 6.00 pm.The weather conditions were described as "overcast with rain and the road surface was wet (sun showery)".However, visibility was good and the traffic flow was light.

Plea and sentence

[11] The appellant was not charged until late March 2002.After his first appearance in the District Court he made application for legal aid.Counsel was assigned but not as preferred by the appellant.Steps were taken to secure the services of preferred counsel.This, we were told, took some time.

[12] On 6 June the appellant pleaded guilty to the charge of manslaughter.He was remanded to the High Court for sentence.On 14 June he appeared for sentence by which time a pre-sentence report, victim impact statements and written sentencing submissions were available.

[13] The latter filed by the prosecutor included quite extensive extracts taken from the witness statements of three motorists who had observed the appellant's driving, of Mr Ward (the driver of the second car) and of two passengers in it. We shall return to this material shortly.

[14] In his sentencing remarks the Judge noted the salient features of the appellant's driving leading up to the accident itself.He observed that the journey from Arthurs Pass to Yaldhurst had occupied 65 minutes to cover approximately 133 kilometres, which implied an average speed of around 122 kilometres per hour.With reference to the appellant's personal circumstances the Judge noted previous convictions in August 2001 for assault, in October for possession of cannabis and in early December for driving with an excess breath alcohol concentration.He was also concerned that on 19 April 2002 the appellant was involved in a further offence of assault.This pattern of convictions suggested to the Judge that the appellant had "an anti social streak", albeit he was a talented sportsman, a good worker and had the support of many people in the community who spoke very highly of him.

[15] With reference to the death of his close friend the Judge concluded that tangible evidence of real remorse was "pretty thin on the ground".He viewed the plea of guilty as a "realistic assessment of the strength of the case against(the appellant)", but noted with concern indications that the appellant sought to minimise his culpability with reference to the issue of speed, the consumption of cannabis oil and in blaming peer pressure for his actions.

[16] In relation to aggravating features the Judge said this:

There have been worse cases than this, but this is bad enough.There are a number offeatures of the case which are of an aggravating nature.Drug use, an earlier incident which should have been taken as a warning (that is the speeding ticket at Arthurs Pass), an element of racing, a persistent and deliberate course of very bad driving and this in a context where only a few weeks before you had been stopped for a breath alcohol offence.

The sole mitigating feature was the plea of guilty, which although delayed for an "agonisingly long" period, remained a significant factor.

[17] After a starting point of eight years imprisonment was adopted, a discount of 25% was allowed for the plea and the Judge imposed a sentence of six years imprisonment coupled with eight years disqualification.

Basis of appeal

[18] In anticipation of this hearing the appellant and his father provided affidavits which described the sequence of events prior to the sentencing itself.Their emphasis seemed to be a complaint that then counsel had not sufficiently investigated aspects of the summary of facts with them in advance of the appellant's plea and that as a consequence factual elements of the case were not properly explored.

[19] Not surprisingly the Crown interpreted such affidavits as a challenge to the competence of counsel, from whom an affidavit in reply was obtained (a waiver of privilege having been given by the appellant).However, in the end result Mr Taffs did not argue the appeal on an incompetence basis.He relied upon the affidavits with reference to an explanation for the delay in the entry of the plea and as background to submissions concerning factual aspects of the case.Accordingly competence was not in issue.

[20] Mr Taffs' essential theme was that the summary of facts was unbalanced, indeed that it contained elements which he characterised as selective and extreme.This argument was developed in tandem with a complaint that the excerpts from witness statements included in the submissions of prosecuting counsel were likewise selectively unfair.

[21] With reference to the potential prejudicial effect of the witness statement excerpts Mr Taffs instanced references to the consumption of cannabis oil.The police summary simply referred to the fact that cannabis oil was consumed by the group before the two vehicles drove to Arthurs Pass.In addition there was the reference to the level of tetrahydrocannabinol (THC), which was said to be consistent with smoking a single cannabis cigarette over the preceding 24 hours.By contrast Mr Taffs referred to the excerpts provided by occupants of the other car who variously described the appellant as "dopey" and that he "looked wasted, his eyes were red as, and(he)told us he was blazed".Mr Taffs submitted that these descriptions were not to be relied upon, particularly given that the appellant was observed a short time later by a police constable who had occasion to notice his demeanour while issuing an infringement notice and a warning about the risks of excessive speed.Seemingly the constable saw nothing to indicate cannabis consumption.

[22] Other matters emphasised by Mr Taffs included whether the issue of speed was realistically assessed.In that regard he referred to other witness statements which suggested that the appellant's driving was not at excessive speed throughout the entire journey.He drew attention to an affidavit filed in support of the appeal which confirmed that the vehicle driven by the appellant had a governor, which limited its maximum speed to 185 kilometres per hour.

[23] Counsel also analysed the chronology relevant to the appellant's first appearance, the assignment of preferred counsel and the entry of the plea on 6 June 2002.Thereby he suggested the delay of about two and a half months from when the appellant was charged until plea was explained.Attention was drawn to the fact that the conviction in December 2001 for driving with excess breath alcohol involved a concentration of 252 micrograms of alcohol per litre of breath, hence was an offence by a person younger than 20 years (where the limit is 150 micrograms as opposed to the adult threshold of 400 micrograms).In light of these various points Mr Taffs contended that the sentence of six years imprisonment was harsh and invited us to characterise it as manifestly excessive in all the circumstances.

Discussion

[24] We shall first refer to the question of the prosecution amplifying the summary of facts by resort to selected extracts taken from witness statements. It is apparent that the summary of facts was drawn with some care and in reliance upon the evidence obtained from numerous sources.For instance it referred to the investigation whereby "about a dozen witnesses" supplied information concerning the dangerous manner of the appellant's driving on the day.The document is detailed and runs to five pages.With reference to cannabis, for example, it obviously steers a middle course in that its consumption is recorded, but the scientific result is preferred over and above the assessments of untrained observers.

[25] Importantly the plea of guilty was one entered with reference to this summary of facts.Thereby the appellant admitted the essential legal ingredients of the offence itself, and assumed an onus to identify any allegations of fact in the summary capable of affecting the sentencing outcome which he disputed.Such issues required identification so that they might become the subject of agreed amendment to the summary or of evidence to resolve the conflict:R v Bryant [1980] 1 NZLR 264 (CA) and Curtis v Police (1993) 10 CRNZ 28 (CA).

[26] We think it was unfortunate the excerpts were introduced in prosecuting counsel's submissions.There is nothing in the submission to indicate their inclusion was in response to some challenge to the content of the summary of facts.If that were the case the appropriate course would have been to call evidence.Unprovoked additions to the summary, as occurred in this instance, were not appropriate.The risk is that counsel for the prisoner is potentially faced with two versions, being the summary (upon the basis of which the plea was entered) and additional material subsequently selected by the prosecutor from witness statements.Where the latter materially adds to the available facts, counsel faces a difficulty in knowing the basis upon which the prisoner is to be sentenced.

[27] Likewise the sentencer may be placed in an invidious position.Although this sentencing was before it came into force, it is worth referring to s24(1)(a) of the Sentencing Act 2002 which contemplates that following a plea of guilty a court may accept "any facts agreed on by the prosecutor and the offender".If possible a common single source of such facts is obviously desirable.The more so given subsection (2) whereby if there are facts asserted by either side which may affect the sentencing outcome the Judge must indicate the weight likely to be attached to the disputed fact if it were found to exist.Where such disputed fact is one asserted by the prosecutor, (being an "aggravating fact") it must be established beyond a reasonable doubt.All of this, we think, emphasises the need for care in relation to the material placed before the sentencer.In general the prosecutor should ensure that the summary of facts sets out those matters essential to the establishment of the criminality of the offending.Supplementing the summary by resort to selected excerpts from witness statements is apt to cause confusion.

[28] That said we do not think the sentence in this case was influenced by the course adopted.We have compared the Judge's sentencing remarks against the summary of facts.It is apparent that the Judge proceeded on the basis of the summary, uninfluenced by the additional material.The question of the effect of cannabis consumption upon the appellant affords a good example.The Judge referred only to the scientific assessment contained in the summary, and not to the opinions expressed by other users of the substance.

[29] With reference to Mr Taffs' submission that aspects of the factual background were construed unfairly against the appellant's interests we are unable to agree.There is no escape from the conclusion that the journey from Arthurs Pass to the scene of the accident was undertaken at high speed. Whether the vehicle driven by the appellant attained speeds of 200 kph or a figure somewhat under that, is not of great moment.Unquestionably the appellant's course of driving over a considerable distance and at least in part on wet roads attracted the attention of other motorists essentially on account of the speeds involved.

[30] Moreover, there was objective evidence, being the speed established at Arthurs Pass township and the calculation based upon the distance travelled in 65 minutes to the point of impact, which confirmed the opinion evidence of the other motorists.But most importantly there is nothing in the sentencing remarks to suggest that the Judge adopted an inappropriate approach with respect to his assessment of the facts.

[31] We think the circumstances of the accident really speak for themselves in relation to the speed involved.The appellant approached a give way sign.He was about to rejoin a main highway.Yet his speed was such that he lost control of the vehicle, hit a curb, became airborne and hit a vehicle which was proceeding in the opposite direction on the road he was about to join.The circumstances of the accident indicate grossly excessive speed and in wet driving conditions.

[32] We have considered the submissions concerning the reasons for the delay in the entry of the plea.Clearly more information is before us than was available to the sentencing Judge.Even accepting that the delay is explicable, the fact remains that the guilty plea attracted a discount of 25% (or two years) from the starting point adopted by the Judge.It follows that despite his characterisation of the timing of the plea as "agonisingly long" a full deduction nevertheless resulted.

[33] Nor are we persuaded that any of the other factual points urged by counsel support the contention that the sentence was manifestly excessive.We have already referred to the speed involved at the time of the accident.That the appellant had been warned by a police constable about an hour earlier concerning excessive speed is a particular aggravating feature of the case.We are in general agreement with the assessment of the Judge as to the appellant's personal characteristics.

[34] It is always a matter of great concern when a young man is sentenced to a lengthy first term of imprisonment.However, as the Judge noted, it is an unfortunate fact that these cases frequently involve young men of about this age who cause deaths through criminally irresponsible acts of driving.

[35] While the sentence was a stern response we are not persuaded it was excessive.The appeal is therefore dismissed.

Solicitors

Douglas J Taffs, Westport for Appellant

Crown Law Office, Wellington