Police v Botting [2017] NZDC 19385 (25 August 2017)

Last Updated: 27 February 2018

EDITORIAL NOTE: CHANGES MADE TO THIS JUDGMENT APPEAR IN [SQUARE BRACKETS].

IN THE DISTRICT COURT AT DUNEDIN

CRI-2016-012-003068 [2017] NZDC 19385

NEW ZEALAND POLICE

Prosecutor v

JAMES DESMOND BOTTING

_Defendant

Hearing:	25 August 2017
Appearances:	R P Bates for the Prosecutor W Dawkins for the Defendant
Judgment:	25 August 2017

_{NOTES OF JUDGE K J PHILLIPS ON SENTENCING}

[1] Mr Botting, at 20 years of age, you face today sentence in relation to acts on your part that resulted in your driving conduct falling below the standard required of a reasonable, prudent driver and, as a result of that failure, causing the death of the late Mr Sinclair.

[2] You are charged with carelessness. That is, falling below the degree of care and attention that a reasonable and prudent motorist would exercise in the circumstances. As a very learned Judge in our New Zealand legal history said in the

_{case of O’Neill v Ministry of Transport}1 _{the question for the Court on a charge of}

1_{O'Neill v Ministry of Transport (1986) 2 CRNZ 59}

POLICE v BOTTING [2017] NZDC 19385 [25 August 2017]

careless use is whether you, the defendant, was exercising the degree of care which a normal, reasonable prudent driver would exercise in the circumstances; the test to be applied is an objective one; and if the defendant has failed to exercise that degree of care, he or she is guilty, whether the failure was deliberate or was caused by an error of judgment. What we are talking about here is an error of judgment on your part. In Police v Vialle2, the Court held the question of carelessness is whether a person failed to exercise the care that would be taken by a reasonably skilled driver in all the circumstances.

[3] On this particular day, 28 June last year, on Moffat Road, an unsealed gravel road, the type of road that you were accustomed to driving on; (as I would understand it, you in fact lived on it or nearby) a straight but undulating between ridges road; the terrain reducing visibility; and with an open road speed limit of 100 kilometres per hour. It is one of those gravel roads where 100 kilometres per hour as the maximum speed limit could be seen to be ludicrous, because it is a single lane road which has two distinct wheel tracks in the gravel surface which have been created by traffic travelling in both directions because all traffic uses the same path. The difficulty for you was this: the very nature of that road called for the exercising of specific and great care; and judgment; an awareness of oncoming traffic; because you would know that vehicles travelling towards you would be travelling in the same set of wheel marks as you were. I put to one side the condition of your vehicle - I do not see it (and it was accepted by the experts called at a hearing that we had in relation to the question of speed) as relevant to the issue of your carelessness. You were taking sheep on this utility truck thing. Six of them. You were travelling at somewhere in the vicinity of

70 kilometres per hour. As you travelled over a crest on the road right in front of you was Mr Sinclair who was travelling in the opposite direction on Moffat Road. The simple fact is that you were travelling at such a speed that it did not allow any time for you to anticipate, then brake and avoid the oncoming vehicle; nor to evade the oncoming vehicle; or to stop in half the clear distance of roadway ahead of you. In the Summary of Facts, it is accepted that the deceased’s vehicle was travelling at

50 kilometres per hour. You were travelling directly at each other. There was some

_{movement or deviation but, in the end, the two vehicles came into contact. The deck}

2Police v Vialle [1989] 1 NZLR 521, (1988) 4 CRNZ 82

of your truck struck the deceased’s vehicle at such a position in such a place that the drivers side door pillar holding the roof was taken away. As a result, the roof of the vehicle came down. Mr Sinclair suffered grievous injury and death.

[4] You knew the road, that road surface, and its nature. You, I infer from that, would have also known and been aware of the need to keep close attention to, and always be aware of, oncoming traffic. The evidence that I heard, called in front of you, was that the road is undulating but that you can, by paying attention, by looking along the road, see if traffic is coming towards you, albeit some distance away from you. You could see down the road “...in patches”, I think, is what the witness was saying. At 70 kilometres per hour, in my view, you could never have stopped in half the clear distance of roadway ahead of you. But I cannot say that that was travelling at an excessive speed, as I said at the start. I think to a degree here, the saying that

‘familiarity breeds contempt’. You were not paying specific attention to the risks. In the end, you did not anticipate the oncoming vehicle and you did not carry out your duties as a driver to the appropriate level.

[5] It was impossible for you to avoid the vehicle. The tragedy unfolded. The impact. The death of Mr Sinclair.

[6] I have read the victim impact statements. I think as does Mr Dawkins, your counsel, when he alluded to it, the ‘graphic writing’ of [the son of the deceased] and the passenger in the car, paints the whole picture; the catastrophic end result, the loss of a husband; a father; a friend; and a farmer, gone from the family forever, is clearly and starkly set out in that information. It makes harrowing reading. It brings all the emotions to the forefront. Again, as Mr Dawkins points out, that is why they call such reports a ‘victim impact statement’. It was just made so stark to me in reading those statements. The feelings of total devastation were clearly understood by me.

[7] But I am sitting as a Judge. I cannot bring back to life those that are killed. He is dead, Mr Sinclair, and that is final and irreversible. No punishment that I can place upon you can restore that loss. That grave loss you caused to the family of Mr Sinclair. I cannot, by imposing a sentence on you, impose or give any panacea or cure to their grief and loss. I sit here as a Judge, as an instrument of the community, but I am

impotent, powerless to do real justice. Just like people attending funerals and tangis, I can only express my personal deep sympathy to the family and friends of the deceased. Sometimes people feel, Mr Botting, that there should perhaps be a direct link between that loss of life and the length of the sentence. Some persons cry out because they are in mourning and they say “An eye for an eye.” But I have to exercise a civilised, careful and reasonable response to your actions and assess them accordingly. I must look at what happened. I must assess the degree of your responsibility and blame, and that is why I need to have regard to the various circumstances.

[8] I begin by saying I have no doubt whatsoever that you are totally horrified and impacted upon by the fact that your negligence, your carelessness has killed someone. I have no doubt of the truth of what you say is the impact, I think, and hopefully it has some degree of acceptance by the family of Mr Sinclair, of what you wrote and how it was expressed on your behalf by your mother. I do not think you are just the defendant in this matter. You could clearly be described as a victim of your own actions, in my view.

[9] I must say, and I am saying it for your benefit as well as for the persons seated in the public gallery, there is absolutely no presumption that because death is caused, imprisonment must follow. Indeed, here, the maximum penalty available to me by law is a term of imprisonment of three months or a $4,500 fine, and a minimum period of disqualification. It is the maximum the law would allow me to impose. As Mr Bates, the Crown solicitor representing the police here today says, to send you to prison for this charge I could not do so for the maximum, in any event. To put you on home detention would be a three or four week sentence and community detention would be less than that. That just does not fit, in my view, in these circumstances.

[10] I must look at the level of your carelessness. There is no independent aggravating factor relevant to your actions, other than you putting your vehicle at that speed at that crest of the hill in those wheel ruts. Speed was a factor, as I have said, because you could not stop in half the distance of the roadway ahead of you, but it was not in excess of the speed limit. Once your vehicle was there and Mr Sinclair’s vehicle was there; the collision was always going to happen. The nature or the way in which

the two vehicles came together, at that last split second in time, and the impact and where it was and how it happened resulted in the tragedy caused by the tray of your vehicle tearing the pillar away and pulling the roof of the deceased’s car down.

[11] I have carefully analysed all those factors. I have reached the decision that your ‘responsibility’, I call it ‘culpability’ (I think Mr Dawkins would call it your

‘blameworthiness’) is at a low to moderate level. It cannot be seen as carelessness of any persistent, deliberate or bad kind or level.

[12] As Lord Lane, in England, said in a decision of R v Kravic3, the unforeseen and unexpected results of the carelessness are not in themselves relevant to penalty. The primary considerations are the quality of the driving; the extent to which you, on the particular occasion, fell below the standard of the reasonable competent driver. In other words the degree of carelessness and culpability.

[13] This was a one-off error of judgment resulting in a total tragedy. You were 19 at the time, 20 now as I understand it. You have no prior convictions whatsoever. I have read the references Mr Dawkins has placed in front of me about your background. You are highly recommended; hard working; a person really a stranger to the people who normally sit in that dock. A person with strong family support, abilities, and dedication to the pursuit of the profession of farming. You have no issues with your life. No substance issues or anything of that kind. I accept at once, as I have said already, you are highly remorseful. You have always accepted responsibility for your actions, right at the time of the incident happening and thereafter. A guilty plea was entered very quickly.

[14] There were issues about the actual speed, but they do not impact, in my view, here at all. I am required to take those personal circumstances that are detailed in the pre-sentence report into account. “Hard working young man...”, says the probation officer, “...a tragic accident, to the young man struggling emotionally with the impact upon the victim’s family, on his neighbour...”. Not thinking about yourself but

_{thinking about your neighbours.}

3R v Kravic RTR 1,3 per Lord Lane CJ

[15] When I have regard to the matters that I have take into account in the Sentencing Act 2002; the purposes of sentencing in holding your accountable and promoting a sense of responsibility, I have to also consider and bring home to people, when they are driving motor vehicles on any roads but on country roads particularly, a high degree of awareness, a high degree of concentration on their actions at all times. I have to bring all that home to you. But there are no issues here, really, of any greater significance than the interests of the victims. The deceased’s family. I have already discussed in relation to principles of sentencing where I place your culpability. Again, section 8(f) Sentencing Act, is the factor that I give weight to here; the effect of your offending on the victim. I note that in the terms of s 10 Sentencing Act, I must take into account any offer that you make in relation to amends. Whilst that has not been encased in a written agreement, I note Mr Bates has very briefly spoken with members of the deceased’s family. The offer that you make is to provide services to the family. That offer being made after you took due notice of the matters detailed in the victim impact statements. Through Mr Dawkins, you offer 200 hours. I am quite sure, when I look at you, that if the family wanted 500 hours you would put it in. But that is not something that I can say or order as a part of your sentence. That is the offer that is made. It is recorded. It has been made by Mr Dawkins in your presence. It has been discussed by Mr Bates with the family. I take into account in sentencing you that you have agreed to provide amends to the Sinclair family by undertaking such tasks as they may wish to instruct you to undertake, as part of the overall responsibility and remorse that you have said you hold. Therefore, I do not impose any community work, as such. I put it in your hands to provide for those amends as you have promised. I take into account, in the terms of section 10(2) Sentencing Act, that, in my view the offer was genuine and that it is entirely capable of fulfilment. I think that, in the end, when the Sinclair family perhaps has had some time to come to ‘grips’ with it all, they can make contact, whether it is through your family or through another means, and state what they would like you to do. I take that into account.

[16] Mr Dawkins has discussed with you and has discussed with me issues of how to hold you accountable. You are clearly a young man who can work and who can look after and save his money. You, through Mr Dawkins, have offered a sum in excess of what I was considering ordering as an Emotional Harm Reparation payment. The offer that Mr Dawkins has made on your behalf will become an order of the Court.

[17] Having said all of that, having considered all of the issues, understanding that, I suppose, it is the end of the beginning for the Sinclair family, you are to make an emotional harm reparation payment to the family of the victim. That is in a lump sum of $25,000. You are to make that payment within seven days of today.

[18] I accept what Mr Dawkins says about the question of disqualification. I note that you live in a country area and you work in a country environment. I note that you have been on bail terms since this charge was first laid against you, and you appeared in Court in relation to it. Mr Dawkins says that, from your plea of guilty on 10

February of this year before me, I put you on bail - you had been remanded at large for two months before that. One of the conditions of bail was that you were not to drive any motor vehicle. You have complied to the best of my knowledge with that condition of bail. I accept what Mr Dawkins says in that regard.

[19] I am going to disqualify you for a period of six months from today because that will make in all that you are disqualified from driving for a year in total. I consider, when I bring again to the table the level of your carelessness, that that is appropriate.

K J Phillips

District Court Judge