R v Megchelse [2019] NZDC 5900 (29 March 2019)

Last Updated: 5 September 2019

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

IN THE DISTRICT COURT AT WHANGAREI I TE KŌTI-Ā-ROHE KI WHANGĀREI-TERENGA-PARĀOA

CRI-2018-088-003680

[2019] NZDC 5900

THE QUEEN

v

FREDERICK MEGCHELSE

Hearing:	29 March 2019
Appearances:	R Annandale for the Crown J Young for the Defendant
Judgment:	29 March 2019

NOTES OF JUDGE G T WINTER ON SENTENCING

[1] These are without doubt the most difficult sentences a Judge ever has to consider. There is nothing I can do today that can bring back [the victim], there is nothing I can restore today to her father and whānau, there is no real comfort I can provide her children, there is nothing that the Court by way of its sentence can undo. What has happened has happened.

[2] What I must do is sentence you for driving contrary to your zero-alcohol licence and a very aggravated driving with excess breath alcohol causing the death of [the victim]. I do in a minor way here acknowledge that at the time, you were awaiting sentence on a relatively serious receiving charge where you recklessly received some beehives to the value of $8000.

R v FREDERICK MEGCHELSE [2019] NZDC 5900 [29 March 2019]

[3] What never ceases to impress the Court is that despite such tragedy, families with big hearts come together. That is evidenced from the restorative justice conference that you all participated in. Apologies were given and accepted. The entire family was involved. There was an opportunity for an explanation of the impact of your actions upon yourself, your wife, your daughters, your children, and an impact also in respect of the deceased’s father. The apologies having been given and accepted, an important agreement was reached at the restorative justice conference that saw an agreement that would see you, on release, picked up and taken to the wāhi tapu as your first stop. I have no doubt that will be a significant journey.

[4] The whānau expressed their support for you in prison, particularly around grieving, and they have made some sensible recommendations that I trust the Parole Board will take on board concerning your need for support around alcohol and drug counselling and supports concerning not only that but also the sense of grieving that you will carry with you. It is that restorative justice process that gives the sentencing today a real human face.

[5] On 20 September at around 3.50 pm, you were driving your car on Whareora Road which has an open speed limit of 100 kilometres per hour. It was a fine day; the road surface was dry. It is an important rural road in this area connecting the east coast and Pataua North to Whangarei.

[6] The vehicle you were driving was a small single cab flat deck truck. It was not in good condition. On the flat deck truck were a number of household items covering the flat deck area. The items were level with the top of the cab of the vehicle. Directly behind the cab was a wooden box. The top of the wooden box was about 400 millimetres from the top of the cab. Inside the cab of the vehicle were two young female passengers, about eight and 15 years old. Travelling on the flat deck of the vehicle was the victim, [the victim], and another young female aged 11. During the journey, some items fell off the back of the deck and onto the road. The 11-year-old travelling on the back became scared and wanted to get off and travel in the cab. You stopped, and she got into the cab with you and two other passengers. At this point, there were four travelling in the cab designed to carry only three.

[7] You carried on your journey along Whareora Road, the victim still on the flat deck behind the cab. There was little or no room there for her. She sat on the roof of the cab facing the rear of the vehicle. She then lay on the roof of the vehicle and leant over towards the front, leaning over the windscreen looking into the cab. You did not stop your journey. You continued to drive at speeds estimated at 70 kilometres an hour. You approached a medium right-hand bend that had an advisory speed limit of 55 kilometres an hour. You drove around that bend at an estimated 60 kilometres an hour. The victim slid off the left side of the roof and collided head first into a steel Armco barrier on the left-hand side of the road. As a result, she sustained unsurvivable head injuries. She died at the scene. You were breath tested and it was found that you had 600 micrograms of alcohol per litre of breath. At the time, it was clear that you could only drive under a zero-alcohol licence.

[8] The purposes and principles of sentencing then are to hold you to account for that driving, for that death, for that breach of the breath alcohol legislation that keeps us all safe on New Zealand roads. I must keep in mind the need to not just hold you to account but by the sentence I impose to deter you and others from such dangerous driving under the influence of alcohol. When sentencing you, I also must keep in mind the need to impose a sentence that is consistent. That is, a sentence that reflects some pattern of punishment that is similar as between offenders that appear for similar types of offending. I must keep in mind the need, however, to impose a sentence that respects the least restrictive option, respects totality and acknowledges, where appropriate, rehabilitative purposes. I do consider in that regard also your remorse, underscored by your very sincere participation in the restorative justice conference.

[9] You have a criminal history. It is described in your pre-sentence report dated 27 March in this way. Over the past 16 years, you have accumulated over 40 convictions, including seven from the Youth Court. They range across offence types reflecting a criminal versatility and a continuation of violence; eight drink driving, seven dishonesties, four driving, eight nuisance, six non-compliance, nine other offending. You have had seven previous convictions for driving offences in 2013, 2014, 2008, 2009, 2004 and two in 2003. I must keep in mind that history, I have to keep in mind that that history displays someone who has a certain attitude

towards entitlement to drink and drive and someone who does not respect the privilege of having a licence to drive on our roads.

[10] I come to look at the various submissions that have been filed and I am grateful to both learned counsel for the Crown and defence for the professional way in which they have addressed the relevant issues. The aggravating features are these. There is the consumption of alcohol; you were found with breath that contained 600 micrograms of alcohol per litre of breath. There is the fact that you drove with such a reading in contravention of a zero-alcohol licence. There is the inherent danger that you engaged in with this heavily laden vehicle, at one stage with both the deceased and one of her children on the back tray. You stopped to allow that young person into the cab, but your deliberate course of very bad driving continued when you resumed your journey and there was, I find, a prolonged, persistent and deliberate risk taking. You were driving whilst you were avoidably distracted. You could have stopped but you did not. You oversaw a vehicle that was heavily laden with too many passengers, including young children. You elected to continue to drive even although the victim was on top of the cab. These matters of aggravation clearly point to offending which in any sense of it is near the higher end of the scale.

[11] I have considered the comparator cases provided by the Crown and the defence. I find some consistent relevance in the decision of Walker v R where the appellant had pleaded guilty to one charge of driving with excess blood alcohol causing death, two charges of driving with excess blood alcohol causing injury and one of dangerous driving.1 His offending involved a display of dangerous speed and dangerous driving in a suburban area where he lost control on a corner and collided with a line of trees causing the death of a passenger from head injuries and serious injuries to other passengers. A blood test revealed that he had four times the legal limit of alcohol in his system. In those circumstances, a starting point of five years’ imprisonment was adopted before being uplifted by six months to take into account previous excess breath alcohol convictions.

1 Walker v R [2016] NZHC 1963

[12] You heard me discuss with your learned defence counsel the cases that the defence raised by way of comparison. In that regard, I repeat my remarks and questions with counsel for the benefit of the record concerning the Thomas decision where a 34 year old was sentenced in respect of manslaughter, two charges of reckless driving causing injury and failing to render assistance. In that case which was more serious, there were more serious charges than you are presently facing, the Court, said that from the cases, it is plain that starting points for motor manslaughter arising out of reckless driving, typically where the driver has been drinking, tend to be around the seven year mark. In that case, the Court eventually elected the starting point of eight years’ imprisonment. I observe that that was on more serious charges, but by comparison, the Crown seek a starting point of half of that approximately, four years to four years and six months. I am satisfied that that starting point submitted by the Crown is accordingly a consistent one and one that is appropriate, so in respect of the lead offending, I elect a starting point of four years and two months which is 50 months. That includes a discrete uplift of two months for CRN-51130.

[13] As to your previous, it is significant as the Crown and the report writer of your pre-sentence report has noted. In 2003, 2004 and 2004 again, just on excess breath alcohol charges, you received Youth Court notations and supervision. In 2005, with a level of 801, you were fined. In 2010, there were two offences; the first, a refusal, saw you get community work and the second, with a level of 735, saw you get community work and supervision. Then in 2013, with a level of 814, you received a jail sentence of some nine months and in 2014, with a blood level of 192, a concurrent sentence of one year was imposed. That, in combination with the other driving offences, to my mind must mean there has to be an uplift. For that previous offending, I uplift the starting point by 10 months, taking the total to 60 months’ imprisonment.

[14] There is then, of course, the need to look at the discrete and separate offending of receiving. If I was dealing with that on its own, it might, because of the value of the hives taken, have attracted a starting point of some eight months, but adjusted on the totality basis, half of that is appropriate, four months, taking the total to 64 months.

[15] Then there are the things that can be said about mitigation for you, firstly by way of your efforts at restorative justice and remorse. Now, I would deduct four months, taking the total to 60 months’ imprisonment, then a full discount for your early plea of 15 months, ending with a sentence of 45 months in prison. I then step back and say, is that a sentence that respects those two final principles of being the least restrictive option and respecting the principles of totality? I am satisfied that it is and the sentence of the Court in terms of imprisonment will be three years and nine months’ imprisonment.

[16] A lengthy period of disqualification is required. I accept in part the Crown’s submission that that must bear some comparison to the Walker decision where a seven- year disqualification period was looked at on the basis that the Court considered that any period of disqualification had to be lengthy to serve as a protection for the community. You have a very bad previous driving and excess breath alcohol history. The Court must disqualify you for a period of six years.

[17] I am also persuaded that the suggestion from the Crown that I use my discretion to impose an alcohol interlock sentence is also appropriate. Section 65AC Land Transport Act 1998 and 65AB of that Act set out the circumstances in which a person will qualify for an alcohol interlock sentence. I accept that you have been convicted of an offence against s 61(1), I accept that you have been previously convicted of driving with excess breath alcohol under s 56 Land Transport Act in the five years before the date of the offending and, accordingly, I impose such an order. You will be authorised to apply only for an alcohol interlock licence at the end of the disqualification period. That in and of itself will again serve to break your habit of drinking and driving.

[18] In summary, the sentence of the Court is three years and nine months’ imprisonment, six years’ disqualification and an alcohol interlock order.

Judge G T Winter

District Court Judge

Date of authentication: 09/04/2019

In an electronic form, authenticated pursuant to Rule 2.2(2)(b) Criminal Procedure Rules 2012.