R v Hoskins HC Wanganui CRI 2010-083-2713 [2011] NZHC 461 (9 May 2011)

Last Updated: 18 June 2011

IN THE HIGH COURT OF NEW ZEALAND WANGANUI REGISTRY

_{CRI 2010-083-2713}

QUEEN

v

_{BRODIE HOSKINS}

Hearing: 9 May 2011

Counsel: H C Mallalieu for Crown

D Goodlet for Prisoner

Judgment: 9 May 2011

_{SENTENCING NOTES OF MILLER J}

[1] Mr Hoskins, you appear at the age of 24 for sentence for the vehicular manslaughter of Florence Trethewey at about 6.45 am on Saturday 20 November

2010. You are also to be sentenced for failing to stop and ascertain injury contrary to s 36(1)(c) Land Transport Act 1998.

[2] On the previous evening you and an associate had finished an evening shift at a meat works around 12.30 am, and taken to drinking until about 4 am. At that time you wanted to go for a drive to get breakfast but your associate, thinking you were drunk, told you that you could not drive. I will tell you at the outset Mr Hoskins, you will be going to prison. You will serve three years and one month’s imprisonment. You may be seated while I read my sentencing notes.

[3] At 6.45 am you again wanted to get breakfast, and this time your associate agreed to go with you after securing a promise that you were no longer drunk. You

R v HOSKINS HC WANG CRI 2010-083-2713 9 May 2011

had the use of your sister’s car, and you were the holder of a learner’s licence. You were not entitled to drive it unless accompanied by a fully licensed driver, which your associate was not.

[4] You were seen doing doughnuts and speeding, and your driving was clearly dangerous. Your associate told you to slow down but you paid little attention. You lost control of the car at a gentle corner with a posted speed limit of 70kph. You were travelling significantly faster than that; a witness in an oncoming car estimated your speed at 100kph-plus, and a police crash investigator has estimated your speed as you began to skid at 84-104 kph.

[5] Mrs Trethewey was walking her two dogs on the grass verge at the corner when you skidded off the road and hit her. She was correctly walking on your side, towards oncoming traffic. She was struck with such force that she was thrown into a nearby tree before coming to rest about 15m from the point of impact. She and one of the dogs were killed instantly. The other survived but was maimed and eventually had to be put down. Reparation of $760, supported by receipts, is claimed for vet bills.

[6] Although you knew you had hit something, you did not stop, despite the urging of your associate. You returned to your home. Your associate urged you to go back and check, and you said you would, but you did not. He later called you to check that you had and you claimed falsely that you were being interviewed by the police. There are indications that you tried to set up a false explanation for the damage to the car. Not until the next day did the police learn, with no assistance from you, that you were the driver. It is no doubt because of the delay that we do not have an alcohol reading for you. You did admit to having drunk half a bottle of bourbon with your associate. I will not sentence you on the assumption that you were over the legal limit, but I am satisfied that you were under the influence of alcohol.

[7] You have no previous convictions of any sort. It is a matter of great regret, but sadly not uncommon, that a person with no prior convictions should appear for

the first time before this Court charged with vehicular manslaughter. It is a serious case, and as I have said to you, imprisonment is inevitable.

The victim impact statements

[8] There are victim impact statements from Mrs Trethewey’s husband, by or on behalf of her daughters and also by a granddaughter and a grandson. They describe a vibrant and active woman, who was heavily engaged in community groups, a great help to others, and a centre of social activity. The impact of her death for them has been exacerbated by your cowardly failure to stop, which they find extremely difficult to accept. Her husband puts it in this way: “she was left alone to die while the killer ran”.

The pre-sentence report

[9] You come from a good family background and you enjoy the love and support of both parents. You had a satisfactory school career, and you were as I have said working at a meat works at the time.

[10] There are aspects of your background that mitigate your apparent recklessness and unwillingness to take responsibility. You have severe dyslexia, which contributes to delay in processing and difficulty in following instruction. You have always been spontaneous and impulsive, lacking common sense. It is perhaps symptomatic of these things that you are said to be addicted to your X-box. You have always found it difficult to understand that actions have consequences, and you have always tended to offer denials and excuses for your behaviour. Given that background as I have said, your recklessness and your failure to own up are less culpable than they would have been for someone else. But for that I would substantially increase the starting point by as much as 18 months.

[11] You are assessed as a low reoffending risk, although that appears to be based on your previous convictions. I must say that I regard the risk as moderate rather than low, having regard to your impulsivity. I think it is important that you not drive a car.

[12] You have self-referred for alcohol counselling, and it has been suggested that you should receive counselling to help you cope with the impact of your sentence. I understand that that will be in place. You have also tried to engage in restorative justice. It is to be hoped that post sentencing you do pursue restorative justice with the victims’ family, beginning with payment of the reparation which I will order today. I do understand they are not presently willing to engage in restorative justice, but their attitude may change if you pursue it after you have been sentenced. At that time they may have more confidence that you are genuinely committed to it, and not merely paying lip service in hope of a lighter sentence. It is to be hoped that the Parole Board will inquire into the payment of reparation and the attitude of the victims when you become eligible for parole, because genuine efforts in the meantime will be an indication that you will be ready to rejoin the community.

[13] The length of the sentence I must impose rules out home detention. I do note that a home detention address had been suggested, but it is not that of either of your parents, who recognise that you would have difficulty complying with that sentence.

The starting point

[14] The law requires that I adopt a starting point and then adjust it by references to factors that are personal to you. The starting point takes into account all the aggravating features of the offence including the failing to stop.

[15] There are several aggravating factors in this case: the consumption of alcohol, the breach of your licence conditions, the sustained very bad driving, the refusal to take the advice of your passenger, the death of Mrs Trethewey, your failure to stop and render assistance, and your subsequent persistence in that attempt to avoid detection.[1]

[16] There is no tariff case for vehicular manslaughter, but starting points seem to range between five and eight years, with a number of similar cases clustered around

_{the five to six year point.}[2] _{I accept that your driving, although bad, was not as}

reckless or sustained as some other cases referred to me by counsel. The failure to stop is an important aggravating feature, albeit less serious as I have said than it might be with another offender. I adopt a starting point of five and a half years imprisonment.[3]

Aggravating and mitigating factors

[17] There are no personal aggravating features by which I mean no previous convictions.

[18] In mitigation, you pleaded guilty at an early stage and will receive full credit of 25 per cent for that.

[19] You are I accept very remorseful. I note that you have apologised. And there are indications that the sentence of imprisonment will bear heavily upon you. I will make an additional allowance of 10 per cent for those matters.

[20] As I said to counsel today there are indications in the record that you are habitually a bad driver. But you can point as I have said to previous good character, in that you have no convictions. I will make an additional allowance of six months for that. That brings me to the end sentence of three years and one month’s imprisonment.

Reparation

[21] The law requires that I consider reparation. There is no reparation report, but

I am satisfied that the sums claimed are properly payable. You have accepted that. I

_{therefore order reparation in the amount of $760.}

[22] A substantial period of disqualification from holding or obtaining a driver’s licence is appropriate. One might have thought that you should be permanently banned, but the Court of Appeal has made it clear in similar circumstances that 10 years is too long. The period must be long, to mark the need for denunciation, but not so long as to leave you without hope of driving lawfully. I consider that a period of six years is adequate for that purpose. I choose that period because you will by then be 30, and you may then be mature enough to be capable of driving.

Decision

[23] You are sentenced as I have said to three years, one month’s imprisonment on the manslaughter charge. There will be a concurrent sentence of nine months imprisonment on the failing to stop charge.

[24] You are disqualified from holding or obtaining a driver’s licence for six years

from today’s date.

Three strikes warning

[25] You must be given a first warning under what is known as the three strikes law, because manslaughter is a serious violent offence. That warning will be recorded, and a copy has just now been given to you. There are two parts to it.

[26] First, if you are convicted of any one or more 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.

[27] Second, if you are convicted of murder, committed after this warning, then you must be sentenced to life imprisonment without parole unless it would be manifestly unjust to do so. In that event the Judge must sentence you to a minimum term of imprisonment.

_{Miller J}

Solicitors:

Crown Solicitor’s Office, Palmerston North for Crow

---

[1] _{I refer to the factors listed in R v Skerrett CA236/86, 9 December 1986.}
[2] In the worst cases starting points of 10 years or more have been considered acceptable.

[3] The most closely analogous case is probably R v Barclay HC Nelson CRI 2006-042-4085, 31

May 2007; albeit that this case lacks the personal aggravating factors present there.