R v McGrath [2014] NZHC 1583 (7 July 2014)

Last Updated: 5 December 2014

IN THE HIGH COURT OF NEW ZEALAND GREYMOUTH REGISTRY

CRI 2014-018-220 [2014] NZHC 1583

REGINA

v

_{JORDAN NATHANIEL MCGRATH}

Hearing:	7 July 2014
Appearances:	H R Bodle for Prisoner M N Zarifeh for Crown
Judgment:	7 July 2014

_{SENTENCING REMARKS OF MANDER J}

[1] Jordan McGrath, you appear for sentence this morning, having pleaded guilty to charges of manslaughter, dangerous driving causing injury and driving with excess blood alcohol, being a third or subsequent offence.

[2] Those offences arise out of your conduct on the evening of 24 January this year, when you consumed alcohol, drove a vehicle at speed and sought to avoid apprehension by the Police. Your actions culminated in you losing control of the vehicle, crashing into a house, injuring your passenger, Kori Jeffcote, and killing Judd Hall.

[3] Mr McGrath, the first serious and ultimately fatal error of judgment that you made that night was volunteering yourself to drive you and Mr Jeffcote into Kumara. By that time you had consumed approximately a third of a bottle of whiskey. You

_{decided to go into town to purchase more alcohol and to pick up some friends.}

REGINA v JORDAN NATHANIEL MCGRATH [2014] NZHC 1583 [7 July 2014]

[4] In Kumara, you consumed beer at a local pub before continuing on to Greymouth where you purchased alcohol. You then drove to Runanga where you picked up Mr Hall.

[5] On the return trip to Greymouth, you were observed by members of the public driving at excess speed on the Cobden Bridge. You were travelling well over the speed limit and you passed another motorist in the middle of the bridge. It is apparent by this stage that you were driving in a dangerous and reckless manner. You came up behind another vehicle in a 50 km/h area. You began to tailgate this vehicle, flashing your lights and indicators. You forced the driver of the other vehicle to pull over.

[6] While travelling through Greymouth at 100 km per hour in a limited speed zone, you passed a stationary Police patrol. Despite the built-up area in which you were travelling, you responded to the Police’s red and blue flashing lights by accelerating, reaching a speed of some 142 km per hour over the course of an 850 metre straight. You approached a moderate left hand curve. You lost control of the vehicle. Initially, your vehicle slid into the oncoming lane, causing another motorist to take evasive action. Your vehicle then crossed the roadway and grass verge. It travelled through the air and crashed into a residential dwelling.

[7] The force of the impact destroyed the front of the house and shifted it off its piles, such was the force. Fortunately, no one was sleeping in the bedroom where your vehicle impacted. The occupant had fortuitously moved out of that room earlier the same day.

[8] Mr Hall died at the scene of the crash from high velocity impact injuries and positional asphyxia. Mr Jeffcote suffered extensive rib and spine injuries. You also were seriously injured, including being impaled through the stomach by a piece of wood from the house.

[9] Upon your admission to hospital after the crash, a blood sample returned a reading of 100 milligrams per 100 millilitres of blood. Calculations of your blood

alcohol level at the time of the crash put it between 130-160 milligrams per 100 millilitres of blood.

[10] When you were able to be spoken to by Police, you stated you had no memory of the crash or the events leading up to it, although you did acknowledge drinking the whiskey prior to driving and knowing that you were likely to be over the legal limit to drive.

[11] You have two previous convictions for driving with excess breath alcohol, entered in March 2007 and June 2003.

Victim impact statements

[12] I have read the victim impact statements of Judd’s mother, Mrs Hall, and his father, Mr Durbridge, together with those of his sisters, Shiloh and Sarah Hall. They have endured the grief and pain of the loss of their loved son and brother. The impact of the death of Judd and the stress and damage to the emotional wellbeing of family members are all too predictable and no doubt will be enduring. As you have heard yourself this morning, Mr Durbridge has addressed the Court directly about the raw pain and emptiness caused by Judd’s death.

Restorative justice

[13] To your credit, Mr McGrath, last month you attended a restorative justice conference which was attended by Mrs Hall and Shiloh. Mrs Hall has acknowledged your acceptance of responsibility for your actions. As you are aware, Mrs Hall has told you, as your counsel has referred to this morning, that she has tried to hate you but she cannot because you have, in her words, “fronted up”. Mrs Hall’s and Mr Durbridge’s and indeed the family’s reaction to the tragedy you have caused is remarkably restrained. While acknowledging the need for you to be accountable for what you have done, both Mrs Hall and Mr Durbridge express concern for you. They want you to lead a constructive life and give something back for what you have taken from them. They do not wish to see you imprisoned, but I am afraid that is, as your counsel has recognised on your behalf, the only proper response.

Pre-sentence report

[14] You have acknowledged in the pre-sentence report the factors identified as having contributed to the offending; your excessive use of alcohol prior to driving, the poor decision you made in electing to drive, the way you succumbed to encouragement from others to take over the driving responsibility despite knowing you had been drinking. You are prepared to take steps to address those issues.

[15] The pre-sentence report writer observes that being responsible for the death of one of your best friends does appear to weigh very heavily on you. You went to school with Judd Hall and you had known him a long time. You have an appreciation that whatever sentence is imposed on you, it will bear very little comparison with the death of Judd and the effect on his family. You have indicated, both in the pre-sentence report and directly to Mrs Hall, that you wish to spend your time in prison productively to strive to become a better person and to make a success of your life.

The principles and purposes of sentencing

[16] In sentencing you today, Mr McGrath, I must have regard to the purposes and principles of sentencing set out in the Sentencing Act. These include the gravity of your offending, the degree of your culpability and the need to hold you accountable for the harm you have caused by driving in such a way when drunk. It is inevitable that serious motor manslaughter cases such as this require to be met with the imposition of stern terms of imprisonment in order to denounce such conduct and deter others from such dangerous offending.

[17] I will endeavour to be consistent in the imposition of a sentence comparable to that which has been imposed on those who have offended in a similar way, and I am obliged to impose the least restrictive outcome as is appropriate in the circumstances of your case. I must also take into account the restorative justice process with which you have voluntarily engaged and to recognise your rehabilitative needs.

Aggravating features of the offending

[18] Mr McGrath, the aggravating features of your offending are stark:

(a) You were under the influence of alcohol and were between half again to twice the legal blood alcohol limit at the time of the crash.

(b) You deliberately elected to drive while intoxicated, knowing you were likely to be over the limit. To that extent, your conduct was premeditated.

(c) You drove at excessive speed and in an aggressive fashion; passing a vehicle in the middle of a bridge, forcing another driver to pull over, and in a dangerous fashion in an urban area.

(d) You drove at speed and in a reckless manner over a sustained period.

Your counsel takes issue with that description, but your driving at speed was at least persistent and deliberate.

(e) At the time of the crash you were seeking to avoid apprehension by the Police. Your response to the presence of the Police patrol was to accelerate to a speed of 142 km per hour. Such was your extreme speed that the Police patrol was approximately half a kilometre behind you by the time of the crash.

(f) You were driving in breach of the conditions of your learner driver’s

licence.

(g) In addition to the death of Judd Hall, you caused serious injuries to

Mr Jeffcote.

(h) When you lost control of the vehicle such was its speed that the vehicle travelled through the air and caused very significant damage to the house. It was a matter of luck that an occupant of the house was also not killed or seriously injured.

[19] I can identify no mitigating features relating to the offending.

Starting point

[20] In assessing the appropriate starting point, the Crown has requested that I consider whether the increase in penalties for the separate offence of dangerous driving causing death introduced by Parliament in 2011 from a maximum of 5 years imprisonment to one of 10 years should be recognised in the starting point for manslaughter. Dangerous driving causing death only requires a departure from the standard of care of a reasonable and prudent driver, whereas the offence of manslaughter applies to conduct where there has been a major departure or gross negligence.

[21] The increase in the sentence for dangerous driving causing death and driving with excess alcohol causing death resulted in higher starting points for offending of that type. That was the legitimate result of Parliament’s clearly expressed intention to increase sentences for offences of that kind. The increase in the maximum sentence was a decisive response to public concerns over the road toll and concern at deaths on the road at the hands of reckless and/or intoxicated drivers.

[22] The increase however was primarily a response by Parliament to what was considered an inadequate 5 year maximum and the resulting influence on the exercise of prosecutorial discretion when assessing the appropriate offence, manslaughter or dangerous driving causing death, to be laid in the circumstances of a particular case. As long ago as R v Grey,¹ there has been recognition of the Court’s hardening attitude to this type of offending. That hardening was attributed to the continuing road toll, the repetition of personal tragedies and the growing sense of public outrage.² In light of that sterner approach, the efficacy of laying charges under the Land Transport Act with the limited available maximum penalty when a charge of manslaughter was also available on the facts was brought into question. Manslaughter provides a maximum sentence of life imprisonment and that charge has always enabled the Court to provide an appropriate response in the

_{circumstances of the case before it.}

¹ _{R v Grey [1992] 8 CRNZ 523 at 525.}

² R v Whiu [2007] NZCA 591 at [20].

[23] In my view, it does not follow from the increased maximum sentences available for dangerous driving causing death that starting points for motor vehicle manslaughter require to be uplifted. There has always been a degree of overlap between the two charges, with manslaughter reflecting the more serious cases. Parliament’s increase in the Land Transport offences maximum penalty addressed the not inconsiderable difference between the level of sentence able to be imposed for dangerous driving causing death and motor vehicle manslaughter where the culpability of the offender and the circumstances of the offending did not necessarily warrant such a difference. While the increase in the maximum sentence can be viewed as further evidence of the community’s concern over deaths caused by intoxicated and dangerous drivers, it did not reflect an anxiety that sentences for motor vehicle manslaughter were inadequate or that sentences imposed for that offence did not reflect that public concern. Nor does it follow as a matter of principle that, with increased sentences for dangerous driving causing death, manslaughter sentences should increase.

[24] The approach to sentencing for motor manslaughter is well-established, following the principles set down by the Court of Appeal as far back as in R v Skerrett and R v Grey, and more recently in Gacitua v R.³ Regrettably, there are all too many previous cases of intoxicated drivers driving at excessive speed and in a dangerous manner, often to avoid apprehension by the Police which have directly resulted in death.⁴

[25] Mr McGrath, having regard to the aggravating features of the offending in these comparable cases, I have concluded that an appropriate starting point is 7 years

_{imprisonment.}

³ R v Skerrett CA 236/86, 9 December 1986; R v Grey [1992] 8 CRNZ 523 (CA); Gacitua v R

_{[2013] NZCA 234; R v Locksley [2003] EWCA Crim 996; [2003] 3 All ER 40 (Crim App).}

⁴ R v Grey above; R v Hawthorn HC Wellington, 28 May 2004; R v Whiu [2007] NZCA 591; R v Tulafano HC Auckland, 8 February 2011; R v Reihana [2013] NZHC 1273; Mika v R [2013] NZCA 648; Brook v R [2010] NZCA 13; R v Guest [2013] NZHC 2432; Ormsby v R [2013] NZCA 578.

Personal aggravating features

[26] You have previous convictions for driving with excess breath alcohol, in

2003 and 2007. Those previous convictions in my view are relevant and, while of some vintage, they do demonstrate that you have in the past been prepared to drive while affected by alcohol. It is that dangerous dis-inhibited conduct which resulted in the death of your friend. I consider a 5 month uplift is appropriate.

Personal circumstances

[27] Mr McGrath, you are a 29 year old sickness beneficiary who after working in Australia returned to this country some 18 months ago. You suffered significant injuries as a result of the crash which no doubt have exacerbated the congenital spinal condition which has prevented you from engaging in employed work.

[28] Your sole income is from the benefit. You have little discretionary spending with outstanding debts of some $10,000 with no significant assets.

[29] I am satisfied, Mr McGrath, that you have accepted full responsibility for the death of Mr Hall. You have actively participated in a restorative justice conference; the record of which I have read. It is apparent that you are genuinely remorseful. You have apologised in person to Mr Hall’s mother and sister and, as I understand it from today, also Mr Hall’s father. I have read letters filed by your counsel which are supportive of you and your character. The way you drove that night does appear to have been out of character for you. You sustained serious injuries in the crash and you have lost a friend. You will have to bear responsibility for that loss for the rest of your life.

[30] Taking all those matters into account, I allow a deduction of 9 months.

Reparation

[31] I have outlined your personal circumstances and your financial situation. Reparation is required to be ordered under the Sentencing Act unless it would result in hardship or special circumstances exist justifying its non-imposition. Here, reparation is sought in the sum of over $143,000. It relates primarily to the very

significant damage to the residential dwelling. Insufficient means and the imposition of a sentence of imprisonment do not by themselves give rise to undue hardship.⁵

An order for reparation however which is clearly beyond the means of the offender is to be avoided when it presents as an act of futility.⁶ There needs to be a “realistic measure of confidence” that the payment of reparation is able to be made.⁷ Payment of reparation which results in instalments of more than 5 years have been recognised as inappropriate.⁸

[32] In my view, the prospect of you being able to address the reparation sought is quite unrealistic. Any order would have to be deferred until the completion of the prison term, and a rough calculation of the weekly rate of payment across a 5 year period to meet the sum sought is well beyond your means. For those reasons and in the interests of your rehabilitation, upon your release from prison, I am satisfied that an order for reparation would result in undue hardship and that such an order is inappropriate in the circumstances.

Guilty plea

[33] Consistent with your approach to the restorative justice initiative and your demonstrated remorse, you entered early guilty pleas to these charges. The timing of the entry of those pleas confirms your acceptance of responsibility for what you have done, and I apply the maximum 25% discount accordingly. That results in a credit of

20 months for your plea and an ultimate sentence on the manslaughter charge of 5 years imprisonment.

Minimum period of imprisonment

[34] Because I am sentencing you to a sentence of more than 2 years imprisonment, I am required to consider whether you should serve a minimum period of imprisonment. You will have heard counsel earlier discussing or making submissions to me in respect of this issue. You would be eligible for parole in the

_{normal course of events before the elapse of 2 years. In my view that would not be}

⁵ _{Sentencing Act 2002, s 12; R v Creek CA 199/06, 17 August 2006.}

⁶ _{R v Brown CA 267/92, 26 November 1992; R v Bailey CA 306/03, 10 May 2004.}

⁷ _{R v Pender [2007] NZCA 465 at [15].}

⁸ Leighton v Police [2012] NZHC 1925; Crosland v Police [2012] NZHC 1929.

an adequate sentence having regard to the level of your culpability and the harm you have caused.

[35] The sentence I impose must hold you accountable for the harm done and it must denounce your conduct. Importantly, it also must deter others from similar offending. Deaths caused by reckless intoxicated driving are of deep concern to the community. For those reasons I consider a minimum period of imprisonment of 2 years should be imposed. Mr McGrath, it would have been longer but for Mr Durbridge’s plea on your behalf this morning.

Result

[36] Mr McGrath, please stand. Mr McGrath, on the charge of manslaughter, I sentence you to a term of 5 years imprisonment with a minimum term of imprisonment of 2 years.

[37] On the charge of dangerous driving causing injury, I sentence you to a term of imprisonment of 2 years.

[38] On the charge of driving with excess blood alcohol, being a third or subsequent offence, I impose a sentence of 6 months imprisonment.

[39] You are disqualified from driving for 5 years.

[40] The sentences are to be served concurrently, so that your effective end sentence is 5 years imprisonment of which you must serve a minimum of 2 years imprisonment.

Solicitors:

Raymond Donnelly & Co, Christchurch

H R Bodle, Greymouth