R v Te Maari HC Nelson CRI-2011-042-001451 [2011] NZHC 1557 (22 June 2011)

Last Updated: 19 November 2011

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

CRI-2011-042-001451
_{CRI-2011-442-000017}

THE QUEEN

v

_{DAVID ALAN TE MAARI}

Hearing: 22 June 2011

Counsel: M A O'Donoghue and S K O'Donoghue for Crown

M G Dollimore for Prisoner

Judgment: 22 June 2011

_{NOTES ON SENTENCING OF GENDALL J}

[1] David Alan Te Maari, you appear for sentence having pleaded guilty to the crimes of manslaughter, dangerous driving causing injury, two charges of driving whilst disqualified, being third or subsequent offences and driving with excess blood alcohol. You entered guilty pleas on 20 April 2011 and were remanded to the High Court for sentence. The facts upon which I sentence you are as follows.

Background

[2] It is necessary to go back to 20 January 2009 when you were convicted of driving whilst disqualified. And you were further disqualified from driving for one year from 27 May 2010 and a “final warning” was given. Up until then you had five previous convictions for driving whilst disqualified. So that was your sixth

_{conviction for such an offence. But you knew better and were not going to learn.}

R V TE MAARI HC NEL CRI-2011-042-001451 22 June 2011

So, undeterred, on 19 October 2010 you were stopped against whilst driving a motor vehicle in Richmond. You initially supplied a false name and address in order to avoid apprehension. That was your seventh offence of disqualified driving. You were summonsed to appear in the Nelson District Court on 29 November 2010. You pleaded not guilty and maintained that stance over the next two months. But in the meantime, however, you continued to drive, whilst disqualified, whilst on bail, awaiting determination of that most recent offence.

[3] As I have said, you were not going to learn until tragedy occurred. It did when you committed culpable homicide, that is the unlawful killing of another person.

[4] On 16 April 2011 you were driving again with a front seat passenger at about

7.00pm in the Stoke area. As I have said you were disqualified then and on bail. Your front seat passenger was Travis Russ, a good friend of yours. You had drunk alcohol and you drove on the main road in Stoke at an excessive speed in a 50kmph controlled area, travelling north towards Nelson. It was dark, the road was wet and there were other motorists using the busy highway. You began manoeuvres which, I am told are known as “drifting”, where a vehicle is deliberately made to slide sideways under power. This was “hooning” behaviour, and you did it to show off as a form of bravado.

[5] You had no thought of the danger you posed not just to your passengers but to other road users. No doubt you thought you were invincible, or perhaps you gave no thought at all. Your vehicle slid sideways into the path of oncoming traffic, colliding head-on with a vehicle containing the driver and a passenger. The passenger’s side of your vehicle took the full impact of the collision and Travis Russ, the front seat passenger, was killed almost instantly. The passenger in the other vehicle received very serious injuries consisting of fractures and lacerations and was admitted to Nelson Hospital. Thankfully, it was the deployment of an airbag which protected the driver of that vehicle from lasting serious injury.

[6] You were uninjured and when interviewed by the police admitted being disqualified and what you had been doing and had consumed alcohol. You said you

were deliberately carrying out drifts with the vehicle which led you to lose control, to crash into the oncoming vehicle.

[7] Later blood alcohol analysis showed that you were in excess of the legal limit. You had 93 milligrams of alcohol per 100 millilitres of blood.

[8] You are currently aged 21, employed as a roofer and have 31 previous convictions. One of those was for driving with excess breath alcohol on

17 December 2005, when you were aged 16. Six of the convictions involve driving whilst disqualified, three for dangerous or reckless driving, one for careless driving, one for driving with excess breath alcohol and you have multiple convictions for dishonesty offences.

[9] A probation sentence report for the charge of driving whilst disqualified (that is the first of such charges on which you are to be sentenced today) took place only four days before you killed Travis Russ. That report states that you are a recidivist offender for driving whilst disqualified, showed no remorse then and were at high risk of offending, being a risk to the safety of the community. That was an ominous and accurate prediction, as you were to go ahead four days later and kill one person and gravely injure another. I regard that as seriously aggravating.

[10] A more recent probation officer’s report describes you as living with a partner and her mother and you have a young daughter. I have impressive references from members of your family employers and there will be hope for you. And of course you are upset at the death of your best friend, Travis Russ. It is said you now accept responsibility and carry a heavy sense of guilt and remorse. But the probation officer assesses you still at a high risk of reoffending because of your multiple offences.

[11] Over the past year I have had to sentence five young men for the crime of manslaughter whilst driving motor vehicles. They have killed their friends. They have killed innocent other drivers and it often is just a lottery who, and how many, are killed. And yours is another tragic example of the loss of a life and another person being grievously injured through the irresponsible driving of young men

defying court orders of disqualification, drinking before driving, engaging in reckless manoeuvres, ignoring wide publicity aimed at preventing or deterring these crimes. But such crimes are occurring at alarming proportions and the Courts ask when will young people ever come to realise that these are not accidents. These are the inevitable consequences of a combination of motor vehicles, irresponsible behaviour, consumption of alcohol, showing off, behaving like “hoons”, all being a lethal mix inevitably leading to tragedy as was the case here.

Victim impact reports

[12] You have heard the victim impact reports read by two of the victims and there are others. The death of your friend is a tragedy, to his family and his young daughter and infant son, born nine hours after you killed his father. The family has lost a much loved son, brother, partner, and father. Other road users were seriously injured with lasting effects.

[13] I accept that you are distressed and it will take time for you to heal. But Mr Russ’ partner, family and children, carry the enormous life sentence of grief. They will never get over the loss of your friend. They will simply get used to it. No sentence the Court passes can make a difference to the victims and the family and you I know that you would like to turn the clock back but that is the case of countless people in the same situations. Given your raft of convictions for driving whilst disqualified it is hard to see any mitigating circumstances, because you seemed determined to continue to drive unlawfully.

[14] A significant prison sentence must be imposed in order to protect the community, and in the hope that it may deter others who are young, and not so young, from behaving in similar ways.

[15] The general sentencing principles for motor manslaughter are well known. I am required to hold you accountable for the harm you have caused to the families of your victim and the surviving victim, to denounce your behaviour and deter drivers who endanger other citizens by this behaviour so as to perhaps try to deter repetition, although that seems to be a faint hope. But repetition which leads to such

catastrophic consequences. It is, as I have said, reaching alarming proportions and if stern sentences are necessary then so be it.

[16] The starting point is the somewhat historic case of the Court of Appeal in R v Skerrett[1] although sentences for motor manslaughter have hardened and increased considerably in intervening years. Skerrett lists a number of aggravating features which are relevant in fixing sentences for this type of manslaughter. The Crown says there are a number in your case. First, the consumption of alcohol; second, excessive speed; third, deliberate bad driving, showing off; fourth, you were a

disqualified driver with multiple previous driving convictions; fifth, you were on bail on a prior charge of disqualified driving and, apart from the one death, there was serious injuries inflicted on a passenger in another motor vehicle.

[17] Regrettably, there are a large number of cases involving sentences imposed for manslaughter through driving whilst intoxicated or excessive speed or in serious dereliction of a driver’s duty. All are different, all depend on their own facts. They can range between two years to nine years. Simply by way of example, in R v

Whiu,[2] the Court upheld a starting point of nine years’ imprisonment, where the

offender caused the death of a 16 year old driver of another car and seriously injured a passenger. In R v Douglas,[3] a starting point of nine years’ imprisonment was adopted but that was reduced by three years because of a guilty plea. In R v Aiomanu,[4] a starting point of eight years’ imprisonment was adopted but reduced to six years to take account of guilty plea and mitigating factors. In R v Tu,[5] a starting point of seven years would have been adopted but two persons were killed, so eight years was taken but a significant discount given for a guilty plea. There are similar cases such as R v Rutene, R v Prescott, R v Singh and R v Guest where starting points of seven years’ imprisonment were adopted and also the same in R v MacSwain and

_{R v Jagger.}[6]

_.

[18] In fixing the starting point I will incorporate the other offences for which you are being sentenced. A criminal such as you cannot expect discounts for multiple offending. That is, you cannot expect a concurrent sentence fixed at a level which ignores the other crimes. So the starting point must reflect the overall and total culpability of your offences of manslaughter, dangerous driving causing injury, driving with excess blood alcohol and disqualified driving. I fix the starting point, that is the sentence you would get before taking into account personal mitigating and aggravating features, at seven years six months’ imprisonment. So I turn now to the aggravating and mitigating circumstances that are personal to you.

Aggravating features

[19] It is aggravating that you were on bail awaiting a hearing on the earlier charge. It is further aggravating that you had multiple serious convictions, including six for driving whilst disqualified. That could require an uplift of at least a year but I fix it at nine months as an act of mercy. That leaves a sentence of eight years three months’ imprisonment before I take into account the mitigating personal features.

[20] You are a loved son and partner. Your family need you. It is time that you woke up (and you will have time to wake up) so that you can share that which is good with them. But the only mitigating feature is your early guilty plea, which incorporate an allowance for the remorse that you express. But I note, somewhat ironically, if you had pleaded guilty early on to the first charge of driving whilst disqualified instead of pleading not guilty in the hope of avoiding the consequences, you would have been sent to prison well before you ever had the chance to drive on this fateful night and kill your friend.

[21] The total discount I fix is a generous one and it is 25 per cent, bearing in mind the comments of the Supreme Court in Hessell v R.[7] That leads to a final sentence of six years two months’ imprisonment on the charge of manslaughter. On the count of dangerous driving causing injury, from a starting point of three years’ imprisonment I allow a discount of 20 per cent resulting in a sentence of two years

_{four months’ imprisonment. On each of the two charges of driving whilst}

disqualified for a third or subsequent offence, a sentence of 18 months’ imprisonment would have been imposed but with a similar concession of 20 per cent, results in concurrent sentences in respect of each of those charges of one year two months’ imprisonment. On the charge of driving with excess blood alcohol you are sentenced to six months’ imprisonment. All of those sentences are concurrent.

[22] So that means the effective sentence is six years two months’ imprisonment being the lead sentence on the charge of manslaughter. You are disqualified from holding or obtaining a driver’s licence for a period of five years. Such period is to commence from the time of your release from prison. You are, in addition, on the two charges of driving whilst disqualified and driving with excess blood alcohol and on the charge of dangerous driving causing injury, disqualified for a period of one year from the date of your release from prison. Now that of course is concurrent and absorbed within the five year disqualification on the lead charge.

[23] The Crown has sought what is known as a minimum non-parole period of a minimum period of imprisonment. I do not propose to impose that. Your sentence is six years two months’ imprisonment and that is what you will serve unless before that time the Parole Board is satisfied that you should be released. It will only be satisfied of that if it can be sure the safety of the community would not be at risk by your release. If and when the Parole Board come to consider your situation that will be test and they will have to take into account many factors at that time.

[24] You are now subject to what is known as a first warning under the three strikes legislation provided in the Sentencing Parole Reform Act 2010 and I give you this first warning. On conviction for a serious violent offence a Court must warn an offender of the consequences if he is convicted of any serious offence committed after this warning and the warning must be recorded and it must also be given in writing. So, given your conviction for manslaughter you are now subject to the three strikes law. I am now going to give you a warning of the consequences of another serious violence conviction. You will also be given a written warning outlining these consequences, which lists the serious violent offences. If you are convicted of any serious violent offences other than murder committed after this warning, and if a Judge imposes a sentence of imprisonment then you will serve that sentence without

parole or early release. If you are convicted of murder committed after this warning, then you must be sentenced to life imprisonment. That will be served without parole, unless it would be manifestly unjust. In that event the Judge must sentence you to a minimum term of imprisonment.

[25] The last thing I want to say is to acknowledge to the family of the deceased, and the other victim who survived this event, their pain and grief and the continued suffering that will occur. As I have said, people do not get over what has happened, they just get used to it and no sentence can alter what is done or bring back a loved one, or be enough to ease your pain. But Judges must sentence in a civilised way according to law and not as acts of vengeance but I recognise and feel for your sorrow and also for the sorrow and pain that is felt by Mr Te Maari’s family.

ADDENDUM:

In imposing these sentences I overlooked dealing with the Crown’s request that an order be made for the confiscation of Mr Te Maari’s motor vehicle registration number DFF670, which is mandatory in terms of s 129(3) of the Sentencing Act

2002 because he had committed a second offence within four years within the meaning of s 129 of the Act. Mr O’Donoghue and Mr Dollimore are invited to consider the position and submit a memorandum to me if there is agreement that such confiscation should occur. If Mr Dollimore contests that application I can deal with it on a defended basis after the Crown and defence have submitted respective

_memoranda.

_{J W Gendall J}

Solicitors:

Crown Solicitor, Nelson

M G Dollimore, Nelson for Prisoner

---

[1] _{R v Skerrett CA236/86, 9 December 1986.}
[2] _{R v Whiu [2007] NZCA 591}
[3] _{R v Douglas HC Hamilton CRI 2004-079-946, 13 July 2004.}
[4] _{R v Aiomanu HC Christchurch CRI 2004-009-6616, 7 October 2004.}
[5] _{R v Tu HC Gisborne S3/2001, 21 February 2001.}
[6] R v Rutene HC Rotorua CRI 2006-069-1183, 26 September 2006, R v Prescott HC Auckland CRI 2004-004-19706, 15 July 2005 and R v Singh HC Auckland CRI 2005-092-163, 23 June 2006; R v Guest CA111/94, 20 July 2004; R v MacSwain CA37/05, 26 May 2005; R v Jagger HC Palmerston North CRI 2009-054-3889, 2 December 2009.

[7] Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.