The Queen v Hodgson and Yousif [2008] NZCA 132 (22 May 2008)

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The Queen v Hodgson and Yousif [2008] NZCA 132 (22 May 2008)

Last Updated: 30 May 2008

IN THE COURT OF APPEAL OF NEW ZEALAND

CA613/2007CA622/2007

[2008] NZCA 132

THE QUEEN

v

DAVID JOHN HODGSONNEOTON YOUSIF

Hearing: 19 May 2008

Court: Robertson, Wild and Cooper JJ

Counsel: G J King for Appellant Hodgson
V C Nisbett for Appellant Yousif
S B Edwards for Crown

Judgment: 22 May 2008 at 2 pm

JUDGMENT OF THE COURT

A The appeals are allowed.

B The four year disqualification is quashed.

100. Each appellant is disqualified from holding or obtaining a driver’s licence for three years from 23 October 2007.
     

____________________________________________________________________

REASONS OF THE COURT

(Given by Robertson J)

Introduction

[1] The appeals by these two men relate solely to the length of the disqualification from driving imposed upon them by Ronald Young J as part of their sentencing after they had each entered pleas of guilty to charges of dangerous driving causing death under s 36(1)(b) of the Land Transport Act 1998. There is a minimum mandatory disqualification of one year, but no maximum is prescribed.
[2] Both appellants and another were charged with manslaughter following a driving incident in the early hours of the morning of Sunday 20 August 2006.
[3] After deposition, these two appellants pleaded guilty to the alternative charge. A sentencing indication (which was addressed only to other aspects of sentence) was that, on conviction for this offence, home detention would be appropriate. They were also told that, if the matter proceeded to trial and a conviction was entered for manslaughter, there would inevitably be a term of imprisonment imposed.
[4] It was common ground that the length of disqualification was not addressed in any manner prior to the Judge imposing a four year term. The Judge gave no reasons as to why he fixed on four years and consequently we are forced to analyse and assess the circumstances in greater depth than would be necessary if we were confined to the formal appellate role of evaluating an exercise of judicial discretion.
[5] Both appellants contend that this disqualification was manifestly excessive having regard to the circumstances of the offending and their personal circumstances. Also, it was submitted to be disproportionate when compared with the length of disqualification orders imposed for similar offending.
[6] It is common ground that the total package of sentencing must be assessed and that its separate factors cannot be viewed in isolation.
[7] The Judge did not differentiate between the appellants and sentenced each to ten months’ home detention, subject to appropriate conditions. The Judge did not order confiscation of the motor vehicles involved, but required that they be sold and that each appellant pay a fine of $3,000.

Background

[8] The factual situation was described by the sentencing Judge thus at [2]:

On 20 August last year you were at the lights at the intersection of Cambridge Terrace and Vivian Street. The lights were red. When they turned green you both accelerated in your high performance cars away from the lights. At about that same time the deceased stepped onto Cambridge Terrace about 40 metres away from those lights. You accelerated up to and beyond 50 kilometres an hour, perhaps 60 kilometres an hour, maybe slightly more. The exact speed may be difficult to calculate. The deceased, who it must be acknowledged had a high blood alcohol level, was talking on her cellphone as she crossed the road. It seems clear she did not see your two vehicles until the last moment when she began to run, but she did not get completely across the road and ran into the third lane where you, Mr Yousif, hit her. It is clear from the background that the two of you had previously, that evening, been involved in similar races from other sets of lights in the Wellington area.

[9] This summary, of a lengthy statement of facts which was presented to the Court, has not been challenged.

The Judge’s assessment

[10] The Judge’s response to the matter before him is encapsulated where he said:

[8] There is no disguising the fact that you two in combination have taken the life of a young woman. Car racing in any form is not for public streets. One mistake, as you have found out, even at the relatively modest – and I say relatively modest – speeds you were driving could easily kill. This is the second such sentencing I have had in a week. While the driving in the other case was much worse than this, the result is the same, the death of a young person. I repeat now what I said the, how many deaths of young people, young men and women, are needed before this madness of racing cars in public streets stops. You now understand the danger, but the reality is that when you raced off from these lights on that day you knew that other people had been hurt, killed and injured in other similar occasions around New Zealand, but it did not stop you. The two of you will carry this on your conscience for the rest of your lives, and so you should. You have heard today of the heartache that you have caused this young woman’s family.

[9] I accept the facts of this case place it in the lower end of such serious offending. I treat you both in the same way, although you Mr Yousif actually struck the young woman both of you played a part and are, in my mind, therefore, equally responsible. You are both entitled to a significant discount for your guilty plea and acceptance of your responsibility. Your youth and good character I have also taken into account. Ordinarily, a sentence of two and a half years imprisonment would be an appropriate starting point. I accept that the mitigating factors would reduce your sentence below two years imprisonment. That means I can consider imposing a sentence of home detention which the Crown accept is appropriate and which counsel have urged on me. As I have said, in imposing a sentence of home detention I am mostly influenced by the facts in this case which are at a low end of dangerous driving causing death.

[11] The Crown placed substantial emphasis on the Judge’s implied concern for deterrence in [8], whereas counsel for the appellants focused upon the Judge’s assessment of culpability in the first and last sentence of [9].

The appeal setting

[12] The principles governing sentences in cases of dangerous or reckless driving causing injury or death (as well as those where manslaughter is charged) have been developed by this Court. The issue was considered in R v Skerrett CA236/86 9 December 1986 and the governing principles were elucidated upon in R v Yatri CA72/92 13 July 1992 and R v Fallowfield [1996] 3 NZLR 657 (CA).
[13] They have been reiterated recently in R v Ellison [2007] NZCA 549. It is clear that each case must be dealt with having regard to its own particular circumstances. In many cases full time immediate custodial sentences have been imposed, some at or below two years, so the pattern may change with the new sentence of home detention under s 80A of the Sentencing Act 2002.
[14] There has been a substantial variance in the periods of disqualification imposed.
[15] Although it was Mr Yousif’s vehicle which actually struck the victim, the Judge did not differentiate between the two men, on the basis that he was dealing with car racing which necessarily is a collaborative activity. There was some discussion as to whether what occurred was “launching” rather than “racing”. Both terms were employed in the summary of facts. For the purposes of this appeal, the terms involve a distinction without a difference.
[16] In this sort of case it can be difficult to differentiate the consequences of an offender’s actions from the degree of culpability involved. Ronald Young J specifically found, notwithstanding that both men had been involved in some reprehensible driving early in the evening, that the facts of this case placed it at the lower end of this type of offending.
[17] At the time Mr Hodgson was just days short of 18 and Mr Yousif was 19. Neither had any previous convictions. Apart from their involvement in this incident, they presented as responsible and well motivated young men.
[18] A distinguishing feature in this case was that neither alcohol impairment, very high speed nor disqualified driving were a factor. There were serious lapses, but those other frequently present aggravating features did not exist.
[19] The Crown has submitted that the Judge was entitled to conclude that there was a need for specific and general deterrence and denunciation and that, in light of the fact that he has extended mercy by the imposition of home detention (which we note was submitted as being appropriate by the Crown in the High Court) the lengthy disqualification had an appropriately ongoing punitive effect.
[20] It is not clear whether that is what the Judge intended as he does not specifically articulate the reasons for the length of the disqualification. Clearly the Judge was alert to and concerned about the problems of car racing behaviour in general. But it is the actual circumstances of the particular case which had to be evaluated.
[21] We are forced to conclude that a four year disqualification is not consistent with previous decisions. This was a serious matter with tragic consequences. In assessing culpability, however, there were not additional aggravating factors, but involvement in a hazardous and foolhardy activity.
[22] We have weighed the Crown’s submission which, while recognising the punitive and potentially counter-productive effects of lengthy disqualification periods particularly on young offenders, noted such amelioration was available. In striking the appropriate balance between public safety and the public interest in rehabilitation, regard can be had to the ability to apply for limited licences under s 103 of the Land Transport Act 1998 and the more general ability of the Court to reduce disqualification under s 99 of that Act two years after it is imposed.
[23] These possibilities for limited licences and reduced disqualification periods are indeed available to the two appellants, but such possibilities are equally available to disqualified drivers generally, and therefore do not inform the appropriate period of disqualification.
[24] Consistency of approach on the basis of the established culpability is an essential part of the administration of justice. There are no cases without serious aggravating factors which have attracted disqualifications as long as this.
[25] Although there is a strong argument that those who involve themselves in racing on public streets forfeit the right to be permitted to drive, proportionality must be maintained.
[26] In making an assessment, without the benefit of the sentencing Judge’s reasoning, because of the absence of other aggravating factors we are persuaded that a period of disqualification of three years is in conformity with previous decisions. From the perspective of two young men with a particular interest in motor vehicles, that is a substantial timeframe. It leaves the total consequences following conviction commensurate with the culpability which they admitted was involved in their acts and omissions on the night and does not interfere with the essential integrity of the sentence as a whole.

Result

[27] The appeals are allowed. The four year disqualification is quashed. Each appellant is disqualified from holding or obtaining a driver’s licence for three years from 23 October 2007.

Solicitors:
Crown Law Office, Wellington