[1] The appellant appeals against a sentence of four years and ten months imprisonment imposed by Fogarty J in the High Court at Invercargill following her guilty plea to a charge of manslaughter.

Factual background

[2] This is truly a tragic case. The deceased, a widow with two grown children, lived at Myross Bush near Invercargill. On Saturday 13 September 2008, her teenage son, who lived at home with her, had gone to visit a friend in Invercargill, to celebrate the son’s 19th birthday. He had arranged with his mother that when he was ready to come home he would call her and she would collect him. He telephoned her shortly after 3am on 14 September. The deceased drove in her Mitsubishi FTO car to collect him, by a route which involved her travelling westward on St Andrew Street.
[3] On that evening, the appellant and her partner, who lived on a street not far from St Andrew Street, had visited and socialised with friends a short distance away. They returned home at about 3am. Soon after, an argument developed between the appellant and her partner in which the appellant was hit on the face, receiving a bleeding nose. She became angry and upset and smashed three windows in the house before leaving in her car and returning to the address where they had socialised. There, she was assisted in cleaning up her bloodied nose and it was suggested that she stay for the night. However, after about 10 minutes the appellant left and returned home in her car. On returning home she found her partner’s dog in the street, put it in the car, then left briefly before deciding to return the dog home. She spoke with two pedestrians and told them what had happened with her partner. She initially asked them to ring the Police but then told them not to worry and got back into her car. She was reversing out of the driveway when her partner appeared and spread-eagled himself on the bonnet of the car. She reversed at speed onto the street causing her partner to be thrown from the bonnet onto the road. She then drove into an adjoining street before returning to check that her partner was alright, but did not locate him. She then drove off.
[4] At this point, the narratives of the actions of these two women tragically coincide. The appellant turned into St Andrew Street, immediately behind the victim’s car. The appellant was seen by the two pedestrians she had spoken to a short time earlier. They saw her ram the rear of the victim’s car, on at least two occasions. The victim was seen to try to accelerate away from the appellant’s car. The appellant tailgated the victim’s car, travelling approximately half to one metre behind it. Both vehicles drove west on St Andrew Street at high speed, estimated by the two witnesses to be well in excess of 100kph.
[5] St Andrew Street terminates at an angled “T” intersection with Queens Drive. The speed of the vehicles was such that neither was able to make a successful turn at the intersection. Both vehicles travelled, at speed but braking, across the intersection towards Queens Park. The victim’s vehicle hit the kerb on Queens Drive, became airborne and impacted at high speed with a tree. The victim was killed instantly. The appellant was more fortunate. Her car struck a glancing blow to a street light pole before coming to rest. She was examined and released by ambulance staff at the scene. Police Serious Crash Unit analysis indicated that the victim’s vehicle was travelling at approximately 101kph, and the appellant’s at approximately 103kph, when they braked at the intersection. The appellant was given an evidential breath test which she passed, but with a “failed youth” result.

The sentence imposed

[6] In sentencing, Fogarty J adopted a starting point of seven years. He noted personal mitigating factors for which he allowed a deduction of one year. Finally, he allowed a 20 per cent reduction for the guilty plea. That led to an end sentence of four years ten months imprisonment. The appellant submits that this sentence was manifestly excessive.

Sentencing levels for motor manslaughter

[7] Mr Eagles submits that “the main issue on appeal is whether the starting point was too high in this difficult area of sentencing for motor manslaughter having regard to the parallel and lesser sentences imposed for dangerous driving and reckless driving causing death cases”. It is desirable first to address the suggestion inherent in that submission that there should be a degree of relativity between sentences for motor manslaughter and sentences for dangerous or reckless driving causing death. The inter-relationship between sentencing for these different offences was discussed by this Court in R v Skerrett.[1] The Court observed that the separate offences of reckless or dangerous driving causing death, or careless driving causing death, were created because of an aversion by juries to convicting persons of manslaughter by driving offences. That had been explicitly noted in R v Storey.[2] It appears that, at the time Skerrett was decided, there was a broad parity of sentencing levels across these different categories of offences. The Court there said:[3]

... There seems little point in prosecuting cases of reckless or dangerous driving causing death as cases of manslaughter except where the maximum sentence available for these offences is regarded as inadequate in all the circumstances. That is not the case here where the sentence imposed was three and a half years short of the maximum. In our view, nothing turns for sentencing purposes on the fact that Skerrett entered a plea of guilty to manslaughter rather than reckless driving causing death.

[8] As this Court has frequently noted, for example in R v Grey,[4] and R v Popo,[5] there has been a hardening of the attitude of the Courts to this type of offending since Skerrett. While Skerrett remains a helpful guide, particularly to the features of motor manslaughter offending which are to be taken into account in assessing the starting point, the actual levels of sentence have increased very markedly in the quarter century since Skerrett was decided. There has been no corresponding increase in the maximum penalties for offences under the Land Transport Act provisions. The maximum penalty for reckless or dangerous driving causing death is five years imprisonment. A further relevant factor is that the degree of lack of care necessary to support a conviction for manslaughter has been altered, by the enactment in 1997 of s 150A of the Crimes Act 1961, so that a major departure from the requisite standard of care must be proven. As this Court said in R v Hape, a sentence for motor manslaughter should not in all cases be the same as that for offences under the Land Transport Act provisions.[6]
[9] In support of his submission that the sentence was manifestly excessive, Mr Eagles produced a schedule of recent sentences for dangerous or reckless driving causing death. For the reasons we have given we have not found those sentences of assistance. There is no broad comparability between the sentences routinely imposed for cases of motor manslaughter and the penalties for the Land Transport Act offences. Mr Eagles also collated recent sentences in motor manslaughter cases. It is to those sentences that regard must be paid when considering the appropriate starting point, while recognising that there is no guideline judgment in this area.

The starting point

[10] In fixing the starting point of seven years, the Judge carefully considered the features of the offending. He described his view of the essential facts in these terms:

[3] You then drove north on Lyon Street towards St Andrew Street and turned west into St Andrew Street. At the same time Mrs Carr, who had been called out by her son to pick him up, was driving down St Andrew Street. It is not entirely clear to me how the first ramming of her car took place but it is quite clear there were two rammings of the car. The second one seems to have taken place, judging from my inspection of the police evidence, some time later, and deliberately. Then, the most aggravating feature is that you tailgated Mrs Carr, who was obviously panicked, by two rear end collisions to her car. She was speeding and you were speeding right behind her, right down St Andrew Street, both cars continuing at high speed at about 100 kilometres per hour until approaching a T intersection with Queens Drive. Due to the speed of both the vehicles neither was able to negotiate the intersection. Both vehicles crashed and Mrs Carr died.

[11] The Judge described the aggravating features of the offending in these terms:

[11] What I am guided to do by the Court of Appeal in the case of Skerrett is run through a check list of aggravating features. This has also been done for me by the Crown. As I have recorded, you did consume alcohol in that evening. This is not a case where you were racing but you were using grossly excessive speed. This is not a case where you were disregarding warnings from passengers, but it is a case of persistent and deliberate course of very bad driving. As I have said in the earlier hearing, well I think I said in earlier exchanges with counsel, to me, the most aggravating feature of this is that after the two rear end collisions, after that, then for about one and a half kilometres, you tailgated Mrs Carr, obviously terrifying her and leading to her tragic death at the T intersection.

[12] Mr Eagles submits that a starting point of five and a half or six years would have been more reasonable. He submits that that would be more in accord with the lower starting point adopted in R v Matagi[7], R v Paikea,[8] R v Luke,[9] R v Copping,[10] and R v Edgcombe.[11] All except Edgcombe were specifically referred to by the sentencing Judge, along with R v Connon,[12] and R v Jameson.[13] The Judge considered that those cases did not apply here as none of them have the aggravating features present in this case. The Judge considered that more help was to be obtained from two recent sentencings of his own, R v Brook,[14] and R v Lynch,[15] and from the decision of this Court in R v Whiu.[16]
[13] Counsel for the Crown submits that this Court should bear in mind the danger in substituting an appellate view of the facts for the sentencing Judge’s discretion and assessment; that relative culpability and seriousness can never be exactly matched across cases; and that it is the nature, not the number, of the aggravating features which should determine the starting point. Ms Laracy submits that this case does not fall in the most serious band of cases which attract starting points generally at the nine to ten year level. She submits that it does fall towards the top of the next category down. She submits that the starting point of seven years is within range, having regard to the two collisions, described in the summary of facts as “ramming”, and the subsequent tailgating.
[14] Whiu has some factual similarity to this case, particularly in that in both cases the offender was a woman, in a violent relationship. The Judge described Whiu in these terms:

[23] The Crown relied on Lynch, the case I have just referred to, and another case R v Whiu [2007] NZCA 591 20 December 2007. Now Whiu was the case of a woman driving at extremely dangerous speeds at night. She hit one car but she kept going eventually hitting another car and killing the driver of that car. The Judge adopted an initial starting point of eight to nine years. Whiu is a case where the woman had also been assaulted by her partner. In Whiu’s case she had actually been assaulted by her partner while in the car, on the first part of the journey. But he left the car and she kept going. The whole journey took about nine kilometres. She kept going for several kilometres after her partner had left and as I have already mentioned the death occurred in the second collision. In that case the Court of Appeal would have sentenced her to seven years but in the end they did not disturb the Judge’s sentence of seven and a half years. An important distinguishing fact between Whiu and you is that the driver in Whiu had previous convictions, which you do not. No case is the same.

[24] But I am satisfied that Mr Young’s suggestion of a starting point of six to seven years in this case is correct, as correct as one can be in these situations. This is because Miss Anderson, to my mind, the principal aggravating feature is your pursuit of this car after the two rear end collisions. You had plenty of time to calm down and reconsider your conduct. For this reason I do take as a starting point, for imprisonment for this offending, seven years.

[15] The Judge was clearly correct in his identification of the principal aggravating feature. The victim, alone in her car in the early hours of the morning, was hit from behind twice and then closely pursued when she sought to escape from the situation in which she found herself. She was terrified to the point of driving at a speed in which the loss of control which caused her death was inevitable. In assessing the aggravating features of the offending, those actions must be viewed as conscious and deliberate. That is a unique feature which distinguishes this case from any of those which were relied upon by counsel for the appellant.
[16] Counsel for the appellant submits that the starting point of seven years here would put the case on the same basis as Whiu and that that case was more serious than this. The appropriate comparison is between the starting point of seven years in this case, and the view of this Court in Whiu that a starting point of nine years was justifiable, albeit at the upper end of the range. When that comparison is made bearing in mind the different aggravating features of each case, we do not think that the starting point is out of line with that in Whiu. In those circumstances we consider that the starting point of seven years was within the available range.

Discount for mitigating factors

[17] The next issue is the extent of the discount for personal mitigating factors (apart from the guilty plea). The Judge allowed one year. Counsel for the appellant submits that a greater allowance should have been made. He submits that in determining the appellant’s culpability, having regard to the irrationality of her actions, a closer examination of her personal circumstances is needed. He seeks leave to adduce on this appeal a psychological report on the appellant. Counsel for the respondent does not oppose that course, noting that the probation officer preparing the pre-sentence report had requested a mental health assessment which had not been undertaken at the time of sentencing.
[18] The psychologist, Mr Nielsen, described test results indicating a profile tending to low self esteem with themes of disconnection, rejection and the expectation that her needs for security, safety and stability, empathy and respect, will not be met in a predictable manner. He noted the appellant appears to have been a victim of domestic violence and the relatively negative self views observed in such victims which may cause ambivalence in help seeking behaviours. Test results on the Beck Depression Inventory based on her self report of her mood at the time of the accident would place her in the severe level of depression. Mr Nielsen could find no evidence of an anti-social road rage scenario in the appellant’s behaviour. He expressed the view that her lack of recollection for events preceding the crash may be due in part to a possible disassociative type experience relating to a number of mounting stressors. He noted her claim in the summary of facts that she did not know where she was going when she came onto the particular street, which would have been well known to her. He opined that one explanation for this is some form of altered perceptual state as a response to acute and chronic trauma experienced. Mr Nielsen’s opinion is that the appellant at the time of the accident may have been under a degree of emotional distress appearing to meet the criteria for a diagnosis of post traumatic stress disorder. He said:

Thus it is argued as above that there is good reason to believe that for Ms Anderson at the time of the vehicle offence, she was suffering from some degree of diminished cognitive capacity and impairment of understanding of what she was doing in terms of driving her car aggressively that resulted in the death of a woman.

[19] We have earlier observed that, in considering the aggravating features of the offending, the appellant’s actions must be assessed as deliberate. When it comes to evaluating mitigating personal circumstances, psychological factors which may have contributed to what appears on the available information to be quite out of character behaviour may be taken into account as reducing the appellant’s culpability for those actions. Mr Nielsen’s evidence is helpful in giving additional insights into these factors. Mr Eagles accepts that the Judge did have evidence to show the disturbed state of mind of the appellant at the time, but submits that this evidence indicates a more disturbed state, on that continuum. Ms Laracy submits that it is clear that the appellant was very upset and not thinking clearly, but disputes the assessment of a dissociative state.
[20] The essential issue for us, as to this additional evidence, is whether it is such as to justify this Court in departing from the sentencing Judge’s assessment of the appellant’s psychological condition as a mitigating factor. The sentencing Judge described mitigating features in these terms:

[25] The Crown acknowledged that there were some mitigating features that should be taken into account. First, you do not have any previous driving convictions. Second, that it was a one-off piece of driving. Now the way I approach that is that I do think it is appropriate to take into account that you had been assaulted by your partner. As I explained before, you had gone back to your partner, there had been a further domestic incident. You had been backing away. He had been jumping on to the bonnet. You were obviously in a distressed and angry state of mind because of this domestic row and that is probably inasmuch, as there is any explanation as to how this dreadful event occurred, one of the main causes of that.

[26] You have also clearly shown remorse throughout, as I have explained, and as I have quoted from the Department of Corrections’ probation officer’s report. You have faced up to the fact that your behaviour has been like a monster. You have no previous convictions. You have had a rough upbringing. I am not, in the interests of privacy, going to go into that. But you have in fact made considerable efforts, notwithstanding a very tough upbringing, to get qualifications, to get a job, and to live a productive life in the community. All that has come to an end by this crime that you have committed. I will come to your guilty plea in a moment. But taking those factors into account I am prepared to recognise them and from the starting point allow one year in deduction for those mitigating factors, taking it down to six years.

[21] On this aspect, we have the benefit of the report from Mr Nielsen, which was not available to Fogarty J. That additional information is helpful. However, we do not consider that there is anything in that material which suggests that Fogarty J’s view of the contribution of the appellant’s personality issues and difficult personal circumstances did not make proper allowance for those aspects. We do not think that it is appropriate, even with the benefit of the additional material, to depart from Fogarty J’s assessment of the relevance of those factors.
[22] The issue is whether the discount of one year from the starting point was sufficient to recognise those factors. A comparison with Whiu is of assistance.[17] There, the sentencing Judge had allowed a discount of between 20 and 30 per cent from a starting point of between nine and ten years to reflect Ms Whiu’s expression of remorse and her personal circumstances, principally the abuse which she had suffered at the hands of her partner. This Court considered that the appellant’s condition at the time of the offending justified a discount of 20 to 25 per cent. That, with a discount in the order of five to ten per cent to reflect a late guilty plea and expressions of remorse, gave a total discount of 30 per cent. The one year discount allowed in the present case for factors other than remorse and guilty plea amounted to 14 per cent. The quantification inevitably involves a value judgment. No exact comparison is possible. On our assessment, Ms Whiu’s experiences as a battered woman were somewhat more serious, and her partner’s conduct more directly related to the driving, than in this case. We do not consider that the Judge’s assessment here can be said to fall outside the available range.
[23] The final discount was for the guilty plea, including the remorse inherent in the entry of the plea. The plea was entered after depositions. The Judge allowed a 20 per cent reduction. That discount was in accordance with the discount prescribed in R v Hessell,[18] for a plea entered at first call over after committal. It is not clear from the case on appeal how soon after committal the plea was entered. The Judge noted that the appellant’s counsel had been endeavouring to persuade the Crown that the more appropriate charge would be reckless driving causing death. No issue could properly be taken by the appellant with the discount of 14 months, or 20 per cent.

Result

[24] That consideration of the components of the Judge’s sentence leads to the conclusion that the end sentence of four years ten months was within the available range. Standing back and viewing the end sentence in the round, we reach the same conclusion. For these reasons, we consider that the sentence was not manifestly excessive. The appeal against sentence is dismissed.

Solicitors:
Eagles Eagles & Redpath, Invercargill for Appellant
Crown Law Office, Wellington for Respondent

[1] R v Skerrett CA236/86, 9 December 1986.
[2] R v Storey [1930] NZCA 25; [1931] NZLR 417 (CA) at 437 - 438.
[3] R v Skerrett, above n 1, at 10.
[4] R v Grey (1992) 8 CRNZ 523 (CA).
[5] R v Popo [2009] NZCA 447.
[6] R v Hape [1994] 1 NZLR 167 at 170.
[7] R v Matagi HC Christchurch CRI-2008-009-12096, 1 October 2009.
[8] R v Paikea HC Tauranga CRI-2009-019-5625, 29 September 2009.
[9] R v Luke HC Rotorua CRI-2007-070-3532, 19 October 2007.
[10] R v Copping HC Tauranga CRI-2007-270-104, 26 September 2008.
[11] R v Edgcombe HC New Plymouth CRI-2006-043-3868, 23 October 2007.
[12] R v Connon HC Wellington CRI 2008-035-1330, 24 September 2009.
[13] R v Jameson HC Nelson CRI-2007-042-4326, 13 March 2008.
[14] R v Brook HC Timaru CRI-2008-076-988, 3 November 2009.
[15] R v Lynch HC Invercargill CRI-2004-025-1691, 11 August 2004.
[16] R v Whiu [2007] NZCA 591.
[17] R v Whiu, above n 16.
[18] R v Hessell [2009] NZCA 450, 2 October 2009.

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