R V DRINNAN HC NWP CRI 2008-021-838 [2009] NZHC 250 (4 March 2009)

IN THE HIGH COURT OF NEW ZEALAND
NEW PLYMOUTH REGISTRY
                                                                 CRI 2008-021-838



                                    THE QUEEN



                                           v



                           PETER
RICHARD DRINNAN



Charge:        Manslaughter

Plea:          Guilty

Appearances: Timothy Walls for Crown
             Julian Hannam
for Prisoner

Sentenced:     4 March 2009
               6 years imprisonment; disqualified from driving for 5 years



        
           SENTENCING NOTES OF HARRISON J




_________________________________________________________________________________

SOLICITORS
Auld Brewer Mazengarb & McEwen (New Plymouth) for Crown
Julian Hannam (New Plymouth) for Prisoner


R V DRINNAN HC NWP
CRI 2008-021-838 4 March 2009

Introduction


[1]      Mr Drinnan, you have pleaded guilty to one charge of manslaughter by the
unlawful act of driving in a dangerous manner while under the influence of a drug.


[2]      This is a very sad day, Mr Drinnan.
The indirect victims of your crime are
behind you ­ on the one side are the members of Mr Luscombe's family who have
travelled to
the Court from both within and outside Taranaki; on the other side is
your mother, a sibling, your partner and others. I treat their
presence today both as
support for you and as respect for the family of Mr Luscombe. They suffer the real
pain of your crime.


[3]
     Also I acknowledge the presence in Court today of Mr Peter Scott, your
probation officer, who has provided you with enormous
assistance. Also I recognise
today the officer-in-charge and the two lawyers who have provided written and oral
arguments of the
highest quality. As a result I am very well placed to sentence you.


Facts


[4]      I must deal first with the facts. They will
primarily determine the length of
your prison sentence.


[5]      On 31 January 2008 you spent the day in Hawera. You are on a methadone
programme. It is administered from New Plymouth. Mr Hannam advises that you
went to two separate pharmacies in Hawera in an attempt
to obtain your methadone
doses.    At some stage in the afternoon you found yourself in police custody.
Mr Hannam has pointed out,
as has Mr Scott, that it must have been obvious to the
police officer who questioned you that your condition was poor. Nevertheless,
he or
she released you and you left the Police Station. While that decision to release you
may be open to question, and I am not
here to determine its wisdom today, it
nevertheless was the first in a series of unfortunate acts that led to Mr Luscombe's
death.

[6]      At about 4 pm on 31 January you were seen to be driving your motor vehicle
along Glover Road in Hawera. You crossed the
centre line in the face of oncoming
traffic. You narrowly avoided a head on collision. At one stage, whether before or
after you
had joined State Highway 3 to travel north, you veered off the road and
drove about 100 metres along the left hand grass verge before
regaining the roadway.
Then you narrowly avoided collisions with three more vehicles travelling in the
opposite direction. A number
of complaints were made to police officers.


[7]      On approaching the Normanby over-bridge at about 4.15 pm you lost control
of your car. You collided with a crash barrier. The vehicle then spun backwards and
did a 180º turn before coming to a stop. It was
facing in a southerly direction in the
northbound lane. Several people spoke to you when they stopped to check. You
knew then that
you should not be driving. Nevertheless you resumed your journey
north.


[8]      At a later stage you crossed the centre line of
State Highway 3 into the
southbound lane. You had a head on collision with a southbound vehicle driven by
an 83 year old man, Mr
Norman Luscombe. He suffered severe multiple injuries.
He died as a result five days later. You also suffered serious injuries. It
is not to
your credit, though, Mr Drinnan, that you behaved afterwards in a violent and
aggressive manner towards medical staff who were attempting to help you and your
victim. You had to
be forcibly restrained.


[9]      A police search of your vehicle revealed a number of Ativan tablets
containing Lorazepam. That
is a Class C drug. A blood test revealed its presence.
You know, or should know, that Lorazepam can cause dizziness or drowsiness.
You
know, or should know, that patients should not drive until they are fully familiar
with its effects. Expert opinion is that the
amount of Lorazepam plus the methadone
would have bought you under the significant influence of drugs to such an extent that
you
were incapable of driving a motor vehicle. All of this was known to you.

Starting Point


[10]    These facts, Mr Drinnan, are
decisive in fixing the starting point for your
sentence. The starting point is the term of imprisonment which is appropriate to
reflect
the culpability or wrongdoing of the circumstances of the offence before
account is taken of any adverse or favourable personal features.


[11]    A term of imprisonment is inevitable.       The only question is its length.
Mr Hannam, on your behalf, submits a starting
point of between five and six years.
He acknowledges this morning that that figure may now be unrealistic. Both lawyers
have referred
to a number of cases in the Court of Appeal and the High Court. There
is no sentencing tariff or benchmark for motor manslaughter
where the maximum
possible is life imprisonment.


[12]    Both counsel have called in aid various decisions. Mr Walls relies on
the
decision of Gendall J in R v Peneha HC WN CRI 2006-078-872 1 August 2006. In
that case a term of six-and-a-half years imprisonment
was imposed following the
adoption of a starting point of eight years. The offender was a 19 year old. She had
a difficult upbringing.
She was a disqualified driver. She had previous convictions.
She drove at 100 kph before colliding with another vehicle. The driver
of that car
and a 13 year old passenger in the rear of her vehicle were killed.


[13]    Mr Hannam says that I should not be influenced
by that decision. That was a
multiple fatality. Here he points out one person died. Also he says that in Peneha
the driving was deliberate.
He says yours was not. Mr Drinnan, his analysis of that
decision just shows how fact specific sentencing is in this area.       
 Aggravating
features, by comparison with you, are your age ­ 39 years; the sustained nature of
your bad driving; and your deliberate
decision to continue on after it must have been
obvious to you that you were in no state to drive. All of these cases, as I say,
depend
on their facts.


[14]    Some principles have emerged from the decisions of the Court of Appeal. In
the worst instances a
starting point of 10 years or more is appropriate. That length is

normally reserved for cases of multiple fatalities and where
the driving is at a speed
which is grossly excessive.


[15]   At the heart of sentencing in this area is the acknowledgement that
a motor
vehicle is a potentially lethal object. In wrong or irresponsible hands where it is
driven in a deliberate or reckless manner
it acts as a weapon, as you know. The use
of motor vehicles, Mr Drinnan, is ingrained into our lives. It is a form of transport
on
which the community totally depends. All drivers are subject to an obligation to
drive safely, to respect the rights and the lives
of others. Lengthy prison sentences
are necessary to mark out society's denunciation for those who breach this rather
basic tenet.
  Your driving, as you know, was grossly irresponsible.            It was
compounded by your consumption of drugs.            Its
nature, as I have said, was
sustained. You knew the risks to which you were exposing other road users.


[16]   Of particular relevance,
Mr Drinnan, is the effect of your crime on the
Luscombe family. You have read the victim impact reports. They are moving
documents.
They speak of a special man. He lived by truly Christian principles. He
respected the rights and lives of others. He was loved by his family, by his children,
his grandchildren, and his two dependent elderly sisters. At 83 years of age he was
still fit and active and living a full and rewarding
life. He suffered terribly for five
days after the accident before making his own decision to cut off life support. He
did not want
to live the rest of his time as a tetriplegic. You know also, from reading
the victim impact statements, how his family have suffered.
Mr Luscombe lived a
life which was characterised by his love of and concern for the wellbeing of others.
It is a sad irony that he
met his death at the hands of someone who that day did not
share those values.


[17]   Against that background, Mr Drinnan, I am
satisfied that the appropriate
starting point is eight years imprisonment. However, it must be increased to reflect
your criminal
propensity for this type of offending.         You have a lifetime of
criminality. You have over 40 previous convictions. Of particular
relevance are at
least four convictions for driving with excess breath alcohol, driving while
disqualified, and driving while not
holding a driver's licence. Those factors justify
an uplift or an adjustment to the end starting point of one year to make it nine
years.

That starting point, Mr Drinnan, reflects society's needs for protection from you.
Mr Scott, whose experience and support
are beyond question, has assessed you as
remaining at high risk of re-offending. The longer that you are in custody, the longer
you
have to take steps to address the appropriate means of rehabilitation.


Mitigation


[18]   I now come to mitigating factors. Principally
there is your plea of guilty. It
is most important. Initially I was concerned that it was not entered until after
October 2008 when
there was a preliminary hearing in the District Court. However,
Mr Hannam has explained that the charge was not laid until June 2008.
It was
responsible of him to obtain access to all prosecution evidence before advising you
on a plea. Significantly also the preliminary
hearing did not involve any witnesses
appearing to give evidence for the prosecution.


[19]   Mr Scott says that you want to make
changes in your life. He says that you
want to lead a drug free life following your release from prison. As I have said, in a
way
a long term of custody may help in ridding yourself of your drug addiction. If
nothing else, Mr Drinnan, I trust that the prison
authorities act promptly to end your
dependence on methadone.


[20]   As I have said, your mother is here today. She feels a mother's
pain for your
crime; so do your family. You have hurt them. Your mother's letter has moved me.
She has written that she feels empty
and sad for the Luscombe family.             She
acknowledges that they have been torn apart, but she reaffirms a mother's love for
her son. She says she will always be there. That tells me, Mr Drinnan, that you have
many good qualities. I hope that one day you
come to appreciate them and let them
guide your life.


[21]   In the end you are sentenced to a term of six years imprisonment on
the
charge of manslaughter. You are disqualified from holding or obtaining a driver's
licence for a term of five years. That disqualification
is to commence on the date of
your actual release from prison.

[22]   Mr Walls has sought the imposition of a minimum term of imprisonment.
I
do not intend to impose one. The prison authorities will decide when you are ready
for release on parole. It is within your power,
Mr Drinnan, to persuade them that
you are drug free and at some time ready to live a responsible life in the community.
If you do
that I wish you well. Please stand down.




                                     ______________________________________
       
                             Rhys Harrison J