R v James HC Palmerston North CRI-2010-031-1812 [2011] NZHC 129 (22 February 2011)

Last Updated: 25 May 2011

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

_{CRI-2010-031-1812}

THE QUEEN

v

KYLE RICHARD JAMES

Hearing: 22 February 2011

Counsel: C J Shannon for Crown

S N Hewson for Defendant

Judgment: 22 February 2011

_{SENTENCING NOTES OF MACKENZIE J}

[1] Kyle Richard James you appear for sentence on one count of manslaughter and one count of driving with excess breath alcohol causing injury. You have pleaded guilty to those charges.

[2] On the evening of Friday 29 October 2010 you left your home in Upper Hutt to drive to Wellington. Before leaving you had consumed three bottles of beer. You arranged to park your car at a friend’s apartment and to stay there overnight before travelling to a family celebration in Waikanae the next day. You and a group of friends socialised and then went to several Wellington bars. Over the course of the night you consumed a significant amount of alcohol. You were taken back to the apartment, severely affected by alcohol, at about 3.45am on Saturday, 30 October. You left shortly afterwards and returned, again assisted by a friend because of your condition, at about 7.30am. You then collected your car, intending to travel to your

_{mother’s address in Te Horo. Your counsel says you have no recollection of these}

R V JAMES HC PMN CRI-2010-031-1812 22 February 2011

events. In Paraparaumu you picked up a hitchhiker. He described your driving as aggressive, erratic and excessively fast. You reached speeds of up to 160kph. Your driving was such that the hitchhiker asked to be let out of the vehicle just before Otaki. Your driving in that journey was also such as to cause two motorists to report it to police. You stopped in Otaki for some time. While there, you consumed a pint of beer before driving into Otaki Gorge Road to return to your mother’s address in Old Hautere Road.

[3] At about 11.30am Mrs Cotter and Mrs Jeffery were in Old Hautere Road at Te Horo. Both keen gardeners, they were visiting local gardens as part of a garden tour, travelling in Mrs Cotter’s car. After visiting several gardens they parked on the right side of the road to have a picnic before visiting more gardens. Mrs Cotter had a picnic basket and sat in the driver’s seat with her feet out on the grass. Mrs Jeffery sat on the grass towards the rear of the vehicle. Shortly after they had settled for their picnic you approached from the direction of Otaki Gorge Road. You tried to negotiate a bend in the road, with a posted advisory speed of 55, at a speed of approximately 100kph. You lost control and the vehicle slid sideways. As it came round the corner onto the grass verge on the opposite side of the road it slid approximately 100 metres before coming back onto the road and towards the victims’ and their vehicle. The front of your vehicle collided with the rear of Mrs Cotter’s vehicle, with sufficient force to shunt her vehicle forward approximately four metres into a power pole, impacting another parked vehicle. Mrs Cotter’s and your vehicles were damaged beyond repair. The third vehicle suffered minor damage.

[4] Mrs Cotter was thrown out of the car and approximately ten metres into a neighbouring paddock. Mrs Jeffery was hit by the rear of the vehicle and thrown to the ground unconscious. You got out of your vehicle and were described as wandering around and not rendering assistance. Several witnesses came from nearby gardens to attend Mrs Cotter, who was unconscious and unresponsive. She was flown to Palmerston North hospital where she was diagnosed with severe head trauma, which was unsurvivable. Her life support was turned off later that evening. Mrs Jeffery regained consciousness at the scene and was treated in Palmerston North

hospital for severe bruising, lacerations, and a cracked sternum. She was discharged later that evening.

[5] You suffered only a cut to the forehead which was treated at the scene. Breath testing procedures were undertaken resulting in an evidential breath test reading of 949 micrograms of alcohol per litre of breath, over twice the legal limit.

[6] The consequences for Mrs Cotter’s family have been catastrophic. Your actions have shattered their lives. Mr Cotter has, with great courage, read his victim impact statement in Court this morning. He has understandably decided that he could not remain for the rest of the process and to hear these remarks. His very eloquent description of the life which they shared and of his love for his wife is heart wrenching. The depth of his loss and the intensity of his suffering are palpable. Mr Reece, who is Mrs Cotter’s son-in-law, has also read his statement. He has described in very moving terms the effect which this has had on Mr Cotter, on himself and on his wife who is Mrs Cotter’s only daughter, and on their nine year old son who is Mrs Cotter’s only grandchild. He has painted a wonderful word picture of a much loved lady. Mrs Jeffery has also read her victim impact statement. She has described the trauma of that day and the physical and emotional effects of these events. Through her training and experience, she has an understanding of the psychological consequences for victims of trauma. She recognised that she suffered from survivor guilt. That is a very strong and understandable reaction, which, even with her knowledge, she has been unable to escape.

[7] To all of Mrs Cotter’s family, and to Mrs Jeffery, I want to say that nothing that I can do today can relieve your sense of loss. My function is not to compensate you for that loss. That would be impossible. I can only express to you the hope that time will dull your pain even though I know that it will not completely heal it.

[8] Every road death sees many lives shattered in a few seconds. But the effects on those who must pick up their shattered lives is worse when the cause of the death is wanton and irresponsible conduct such as yours which could and should have been avoided. What happened that morning was not simply a road accident. It was a consequence of deliberate and reckless decisions and actions on your part.

[9] I come to discuss your personal circumstances. You are 37 years of age. You have been involved in two long term relationships over the last 12 years but are not currently in a relationship. You have the care of your two children from your first relationship, now aged 10 and eight years. You have a further two children from your second relationship. They are in the custody of your former partner. You have been in employment. You lost your job as a sales consultant as a result of your offending. You are now on a domestic purposes benefit.

[10] You have a weakness for alcohol. A test returned results that indicate a harmful pattern of alcohol use. Prior to the offending you were regularly drinking to excess with associates once a week. You had grown up in an environment where this behaviour was normal. To your credit you have taken steps to address your alcohol problem. Within days of these events you were accepted into a residential treatment centre and spent a month as an inpatient addressing your alcohol problem. Staff have confirmed that you benefited from this intervention. Since completing the programme you have involved yourself in ongoing counselling including attendance at Alcoholics Anonymous. Your probation officer says that it is to your credit that you acknowledged your alcohol use and that the culture in which you were involved were directly causative of your offending and that you have taken steps before being directed to do so. I say to you also that it is considerably to your credit that you have taken these steps. Sadly these have been too late to prevent these tragic events but it is to your credit that you have recognised belatedly the need to address this issue. If you continue to abstain from alcohol use you are assessed at being at low risk of reoffending.

[11] Apart from your alcohol problem, it is clear that you have been, and are capable of being, a valuable member of society. You have been a good father to your children. You have been a conscientious and industrious worker. I have the benefit of a number of character references from people who know you well who speak very highly of your personal qualities.

[12] My first task in deciding the appropriate sentence is to fix a starting point for your offending, having regard to the circumstances of your offending. As your counsel recognises the prospect of any alternative to imprisonment is out of the

question. Your offending is too serious for that. There is no guideline judgment for sentencing for motor manslaughter cases because the circumstances can vary widely.

[13] The Court of Appeal in the case of R v Skerrett[1] identified a number of potential aggravating factors that need to be taken into account. Several of those are present in your case. First is the consumption of alcohol or drugs. You had been drinking all night before you set out on this fatal journey. You even consumed alcohol during the course of the journey. You were over twice the legal limit. Next there is excessive speed. Your loss of control was a direct result of excessive speed in that you took a corner with a recommended speed of 55 at 100kph. You had earlier been travelling at speeds well in excess of the speed limit. A third factor is disregard by the driver of warnings from passengers. While you had no passengers at the time of the impact, the hitchhiker who you had picked up had asked to be let out of the car because of your driving. Even that did not bring you to your senses sufficiently to cause you to modify your conduct. Fourth is a persistent and deliberate course of very bad driving. In your case, there had been persistently bad driving from the time you left Wellington. I acknowledge however that there was a distinct break between the earlier driving and the fatal journey. There are two other relevant aggravating factors listed in Skerret, which the modern approach to sentencing might more naturally regard as personal aggravating factors rather than as aggravating features of the offending itself. However, I deal with them here. The first is previous convictions for relevant offences. You have three previous relevant convictions. These relate to a single incident in 1992. You failed to stop after a non- injury crash, failed to surrender your keys and refused a request for a breath specimen. The charges, and the penalties imposed, suggest that that incident may not have had serious consequences. But it should have operated as a warning to you. It is disturbing that this has not caused you to modify your behaviour. Clearly, you did not heed the lesson from that incident. The final matter is your behaviour after the crash. Your lack of concern for your victims’ welfare at the time has added to their distress. Your own injuries were slight and should not have disabled you from assisting them. However, I take into account that other assistance was available and

_{they were not left unattended.}

[14] I must assess the circumstances here, having regard to those aggravating factors of the offending, against those in comparable cases. There is a regrettably large number of comparable cases as death from irresponsible driving of a seriousness to be classified as manslaughter is all too common. Counsel have referred to a number of cases. I have given anxious consideration to those cases and also to a number of other cases that I have considered which may be regarded as

broadly comparable.[2] I do not intend to lengthen these remarks by discussing them

here and they will be set out in the written record of these remarks. Taking all those matters into account I have reached the view that the appropriate starting point in your case is seven years.

[15] The next step is for me to consider personal factors, both aggravating and mitigating, to determine the appropriate adjustment to the starting point to reflect your personal factors. There are no aggravating factors apart from your previous convictions, which I have already taken into account as a feature of the offending.

[16] As to your personal mitigating factors, you are entitled to a credit for your guilty plea. This was entered at a very early stage and you are entitled to a full credit for it. Also, you have shown a considerable degree of remorse. Your initiatives to address your alcohol problem are an indication of that and those also entitle you to some credit. You have also expressed remorse direct to your victims in letters. Their wounds are too raw at this stage to permit you to carry your expression of remorse to them any further than you have done.

[17] To reflect your guilty plea and your otherwise good character, your remorse and your efforts at rehabilitation, I consider that a discount of two and a half years

from the starting point which I had identified is appropriate. That leads to a final sentence of four and a half years.

[18] Counsel for the Crown submits that a minimum non-parole period should be imposed. I may impose such a period if satisfied that the period otherwise applicable would be insufficient for the purposes of holding you accountable for the harm done to the victim and the community, denouncing your conduct, deterring you or others from similar conduct and protecting the community from you. This is not a case where a minimum period is required for that latter purpose of protection of the community from you. In the similar cases to which I have referred the imposition of a minimum period of imprisonment has not generally been seen as required for the purposes of accountability, denunciation and deterrence, except in the very worst cases. In your case, I do not consider that a minimum non-parole period is required.

[19] I must also disqualify you from driving for an appropriate period. It is to be hoped that if you can continue your efforts to address your alcohol problem you may again, at some point, become a responsible driver but it is too early yet to say that. When you are released, you should not be permitted to drive for a substantial period. I consider that three years after release is the appropriate period of disqualification.

[20] Reparation reports have been obtained. Counsel for the Crown accepts that realistically you are not in a position to make reparation. I consider that is a realistic view. Any order for reparation may well have adverse effect on your own family, in particular your children. I do not consider that an order for reparation should be made.

[21] Because manslaughter is within the definition of a serious violent offence in s 86A of the Sentencing Act 2002, I am required to give you a first warning under that provision. If you are convicted of any serious violent offence (except murder) committed after today you will receive a final warning. In addition, if the Judge imposes a sentence of imprisonment for that offence (other than life imprisonment for manslaughter, or preventive detention) then you will serve that sentence without parole or early release. If you are convicted of a murder committed after today, you will be sentenced to imprisonment for life. You must serve the life sentence without

parole unless it would be manifestly unjust to do so. If you receive a life sentence without parole, you will not be released from prison. If serving the sentence without parole would be manifestly unjust, the Judge must specify the minimum term of imprisonment you will serve.

[22] That is the warning that I am required to give to you. It is my earnest and fervent hope that your prospects of rehabilitation are such that it will not be necessary for you to suffer the consequences of that warning.

[23] So I come then finally to impose the sentence. You are sentenced as follows:

(a) On the court of manslaughter you are sentenced to four and a half years imprisonment.

(b) On the court of driving with excess breath alcohol causing injury you are sentenced to one years imprisonment. That sentence is to be served concurrently with the sentence on the manslaughter count.

(c) You are disqualified from driving for a period of three years. That period is to commence from and including the date of your release from prison.

“A D MacKenzie J”

---

[1] R v Skerrett CA236/86, 9 December 1986.

[2] Counsel for the Crown refers to: Anderson v R CA15/10, 2 August 2010; R v Popo CA357/09, 30 September 2009; R v Skerrett CA236/86, 9 December 1986; R v Barclay HC Nelson CRI-2006-042-4085, 31 May 2007; R v Whiu CA195/07, 20 December 2007; R v Herewini HC Hamilton CRI-2007-019-010174, 14 May 2009; R v Drinnan HC New Plymouth CRI-2008-021-838, 4 March 2009. Counsel for the defence refers to: R v Emerson CA203/02, 9 September 2002; R v Ah Chong HC Auckland CRI-2004-004-010735, 9 August 2007. I have also referred to: R v Tu HC Gisborne S 3/2001, 21 February 2001; R v Aiomanu HC Christchurch CRI-2004-009-6616, 7 October 2004; R v Douglas HC Hamilton CRI-2004-079-946, 13 July 2004; R v Guest CA111/94, 20 July 1994; R v Rutene HC Rotorua CRI-2006-069-1183, 26 September 2006; R v Prescott HC Auckland CRI 2004-004-19706, 15 July 2005; R v Tozer HC Palmerston North CRI-2004-054-2221, 18 August 2004; R v Singh HC Auckland CRI-2005-092-163, 23 June 2006