R v Presland [2015] NZHC 1203 (2 June 2015)

Last Updated: 2 June 2015

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI-2014-012-2984 [2015] NZHC 1203

THE QUEEN

v

_{CAMERON CHARLES PRESLAND}

Hearing:	2 June 2015
Appearances:	CER Power for Crown A Stevens for Defendant
Judgment:	2 June 2015

_{SENTENCING REMARKS OF MANDER J}

[1] Cameron Presland, you have pleaded guilty following a sentence indication to the manslaughter of Shannon and Danielle Kiriau. You have also pleaded guilty to two charges of driving dangerously causing injury to Courtney Donald and Caitlin Adams.

Factual background

[2] On 16 May last year, you took possession of a Honda Integra motor vehicle which was fitted with an uncertified aftermarket turbo. The vehicle did not have a warrant of fitness, nor was it registered. You were aware of this when you took possession of the vehicle.

[3] The following evening, you drove the vehicle around the greater Mosgiel area. You carried unauthorised passengers, in breach of your learner driver’s licence. On two occasions, you rapidly accelerated the vehicle in an exhibition of speed.

_{Later that same evening, you drove the vehicle to a party. You had four passengers,}

R v PRESLAND [2015] NZHC 1203 [2 June 2015]

again, in breach of your licence conditions. While at the party for a number of hours, you consumed alcohol.

[4] In the early hours of the following morning, Sunday the 18^th of May, you left the party in your vehicle with the same four passengers, Shannon and Danielle Kiriau, Courtney Donald and Caitlin Adams. As you drove onto the main highway you rapidly accelerated the vehicle. There were no other vehicles in the vicinity, the road was dry and the weather conditions clear.

[5] As you approached a moderate right hand bend, you lost control of the vehicle. It spun and collided with a tree and a metal pole. The vehicle underwent several rotations before coming to rest on a grass verge adjacent to the road.

[6] A subsequent examination by crash investigators who examined the scene concluded that you had been speeding. Analysis of the initial yaw marks put the speed of your vehicle at between 142 and 163 km/hr.

[7] As a result of the impact with the pole, your front seat passenger, Shannon Kiriau, sustained fatal head injuries. Your two rear seat passengers, Danielle Kiriau and Courtney Donald, were ejected from the vehicle. Danielle also sustained fatal head injuries.

[8] Courtney suffered grievous injuries. She remained in the intensive care unit for a month after the crash. She suffered brain injury and has been the subject of some 16 surgeries, which involve major and invasive operations, including the insertion of metal plates and bone implants to address the many fractures and damage to her head and body. Your other rear seat passenger, Caitlin Adams, suffered fractures in both hands, concussion and bruising.

[9] You were transported to Dunedin Hospital for treatment. Some time after the crash, a blood sample was taken from you. The subsequent analysis of that sample was found to contain 79 micrograms of alcohol per 100 millilitres of blood.

Victim impact statements

[10] You have heard the victim impact statements read out this morning, and I have read the victim impact statements of Beverley de’Blecourt, Nai Kiriau, the parents of Shannon and Danielle; a victim impact statement of Bridget King, the mother of Caitlin; and the victim impact statements of Courtney Donald and her parents, Tania and Bruce Donald.

[11] Shannon and Danielle have lost their lives. Their mum and dad are left to describe the deep void left in their lives from the loss of not one but two of their children, and the consequences for their family caused by their children’s needless deaths. Courtney’s life has changed forever, and profoundly so, as it has for her whole family. For all the families and the surviving victims, the devastation, the hardship, the pain and the grief will have to continue to be endured long after you have completed your sentence.

[12] There is no sentence that the Court can impose which can mitigate the tragic consequences of your driving, or address their pain and suffering. I acknowledge the depth of their grief, their bewilderment, their pain and, in some instances, their anger.

Pre-sentence report

[13] I have read the pre-sentence report and the material that was filed on your behalf for the purpose of the sentence indication hearing.

[14] Mr Presland, you are a man of just 21 years. You are currently employed on a casual basis, performing labouring work. There is nothing remarkable in your upbringing. You deny any harmful pattern of alcohol use, although it has been reported to me, and as your counsel alluded to, you have attended the Community Alcohol and Drug Service to assess your use of alcohol. You have 12 prior convictions, mainly for dishonesty offences and breach of community work. You were convicted in 2013 for being an unlicensed driver and failing to comply with a licence prohibition, and you have two convictions for unlawfully getting into and taking a motor vehicle.

Starting point

[15] As you will be aware from the sentence indication process, the sentencing Court is required to determine a starting point for your sentence, which will include the aggravating and mitigating features of your conduct, before examining factors personal to you that may require adjustment to that starting point.

[16] Justice Gendall, in April, indicated a final sentence of four years, nine months imprisonment. In reaching that sentence, Justice Gendall carried out an extensive analysis of relevant cases relating to vehicular manslaughter sentences. He arrived at a starting point of seven years before making an adjustment for various aggravating and mitigating personal factors.

[17] That sentence indication is not binding on me.¹ If I was to impose a sentence of imprisonment of greater length, you would be entitled to withdraw your guilty pleas. Because of the stance you seemed to take in your meeting with the pre- sentence report writer, I have had cause to consider whether the indicated sentence is sufficient. However, as is apparent from this sentencing proceeding this morning, I do not intend to depart from the sentence indication that has been provided by Justice Gendall.

[18] I have reviewed the approach taken by him. This morning, I confirm and re- emphasise the aggravating factors of your offending which bear on the starting point of seven years imprisonment. They include:

(a) Your consumption of alcohol. You have admitted consuming approximately three bottles of bourbon and cola before leaving the party. Only you will know whether that is a true and accurate estimate of your alcohol intake.

(b) Your grossly excessive speed and/or showing off. There were instances of exhibitions of speed by you in the way the vehicle was

_{accelerated that evening. The analysis of your speed immediately}

¹ Criminal Procedure Act 2011, s116(3).

prior to you losing control has been calculated, as I have already referred, to between and 142 and 163 km/hr in what was a 100 km/hr zone.

(c) You were knowingly driving this vehicle with uncertified modifications, no registration, and an expired warrant of fitness. The vehicle should not have been on the road, let alone driven at the speed it was.

(d) You were in contravention of your learner driver licence conditions when carrying these passengers who became your victims.

(e) Finally, the significant harm caused by your actions. You killed two people by your driving, and you inflicted injury and trauma on two other young women. Shannon and Danielle lost their lives. The consequences for Courtney have been appalling. The physical damage caused to her body and her brain injury have required her, as you have heard this morning, to learn how to breathe, to eat, to toilet, to talk, to move her limbs and to walk. She must bear all the psychological and physical pain that comes with that. She and her family have been forced to deal with the limitations on the way they are now able to live their lives.

[19] Ms Stevens, in her written submissions on your behalf, sought to emphasise as mitigating factors that your speeding was on a motorway with a median barrier that prevented head on collisions, the weather was fine and the road conditions good, with little or no other traffic. She submits your speeding should be considered in the context of those circumstances. Those factors, in my view, however, only serve to highlight how fast you must have been accelerating, and that your unwarranted vehicle was not roadworthy.

[20] The presence of the aggravating factors, which Justice Gendall identified and with which I agree, require your offending to be considered at the more serious end

of the spectrum of vehicular manslaughter cases.² Each case must turn, of course, on its own individual facts and circumstances, however, there are particular sentencing decisions with similar factors and circumstances that provide guidance.³ Those cases, as you will now be well aware, indicate a starting point of seven years. You are for sentence for the culpable homicide of not one but two people, and the grievous harm caused by your gross negligence to at least one of your other passengers.

Factors personal to you

[21] That starting point of seven years will be increased by four months to reflect the fact that at the time you committed these offences you were already the subject of a sentence following your convictions on two representative charges of breaching community work which had been imposed only a few weeks prior.⁴ There are also your previous convictions, which I have already detailed, which include offending for being an unlicensed driver and failing to comply with licence prohibitions.⁵

[22] In terms of matters of personal mitigation, your age has been identified as a factor in your favour. You were 20 at the time of these events.⁶ Sadly, this type of offending is often caused by young male drivers who seem to have little appreciation of the dangerous and potentially fatal risks they create, both to themselves and others, from speeding in modified dangerous vehicles. As the Crown noted in its submissions, potential credit for youth in these types of circumstances is limited by the need to give effect to other purposes of sentencing, including deterrence and

_{denunciation.}⁷

2. R v Skerrett CA236/86, 9 December 1986; Gacitua v R [2013] NZCA 234; R v Ellison [2007] NZCA 549; R v Tu HC Gisborne S3/2001, 21 February 2001; R v Hepi HC Hamilton, CRI-2005-

019-2278, 14 July 2005; R v Prescott HC Auckland CRI-2004-004-19706, 15 July 2005; R v

Pretty CA277/000, 26 October 2000; R v Smith HC Auckland CRI-2005-3057-675, 4 November

2005; R v Williams HC Greymouth CRI-2003-018-000002, 23 October 2003; R v Macswain

_{CA37/05, 26 May 2005 at [16]; R v Grey (1992) CRNZ 523 (CA).}

³ R v Pretty, above n 2; R v Williams, above n 2; R v Macswain, above n 2; R v Grant CA240/02,

_{11 December 2002.}

⁴ _{Sentencing Act 2002, s 9(1)(c).}

⁵ _{Section 9(1)(j).}

⁶ _{Section 9(2)(a).}

⁷ Ormsby v R [2013] NZCA 578 at [10]; R v Pretty, above n 2; R v Prescott, above n 2.

[23] Remorse is put forward on your behalf in mitigation.⁸ There are a number of matters that need to be canvassed under this heading. In the pre-sentence report you are described as having expressed remorse for your victims. I acknowledge that you were in a relationship with Danielle and Shannon was your friend. The pre-sentence reporter advises that, while you presented as remorseful for your actions, you have attempted to shift blame by indicating a belief that vehicle fault was the cause of the accident rather than your own actions. The Donalds report that you have never shown remorse to them, even indirectly through others, although I note that you have been prevented from contacting the victims and their families due to your bail conditions, and that that has been difficult for you.

[24] You have indicated that you have a relatively limited amount of money available to pay towards reparation for emotional harm. You have participated in two restorative justice meetings, with the family of Shannon and Danielle, and Caitlin and her family. I take those matters into account and acknowledge the difficulty in having to face the people from whom your actions have taken so much.⁹

I accept that your offer to make amends and your apology are genuinely made.

[25] As I referred to earlier, however, you reported to the pre-sentence writer that you did not accept that your driving was a factor in the offending. That is a startling statement. You stated, “It was the car’s fault not my driving”. The foundation for that belief is apparently you finding out that the vehicle had previously been ordered off the road by the police prior to you exchanging it for your van. You accepted, however, that you knew it was unwarranted and unregistered. It is readily apparent that you had no care about the condition of this vehicle. You had no care whether it was roadworthy. You also attempted to justify your actions by explaining that you had driven that section of the road at the same speed on other occasions without incident. You are being sentenced on the basis that you drove the vehicle at a grossly excessive speed. That you admit having done this on previous occasions only

_{aggravates the situation and cannot be a matter of mitigation.}

⁸ _{Sentencing Act 2002, s 9(2)(f).}

⁹ Section 10(1).

[26] Your explanation to the pre-sentence report writer is, in my view, a cop out, as is the attempt to suggest you were somehow unaware of the speed you were driving at the time, and it does you no credit.

[27] It is a matter of some disquiet that you appear to be in denial of your responsibility, notwithstanding your guilty pleas. That is of concern in terms of an assessment of your remorse, which could be interpreted as being remorse not for what you did but, simply, for what happened, and a minimisation of your responsibility.

[28] Mr Presland, make no bones about it, it was your vehicle, its condition was your responsibility, you were driving it, and it was your foot on the accelerator as it sped in excess of 142 km/hr, the safety of your passengers was in your hands.

[29] I am prepared to proceed on the basis that the remorse which has been communicated to the Court through your counsel this morning and, in particular, what you communicated at the restorative justice meetings was genuine. I believe it was genuine. As you acknowledged yourself at the meeting with Shannon and Danielle’s family, you are going to have to live with their deaths and the terrible damage done to Courtney for the rest of your life.

[30] I do not depart from Justice Gendall’s allowance for mitigating factors personal to you, although it will be necessary for me to make some adjustment to that credit in order that the final sentence remains unchanged from that previously indicated to you.

Guilty plea

[31] The Crown acknowledges that you are entitled to credit for your guilty plea.¹⁰

You pleaded guilty some five months after your first appearance, and after having obtained a sentence indication. The Crown, however, accepts that in the

_{circumstances that qualifies as an early guilty plea.}

¹⁰ Sentencing Act 2002, s 9(2)(b).

[32] The reduction in sentence for personal mitigating factors is required to be taken into account prior to the discount for credit for the guilty plea.¹¹ As a result, I allow a 12 month discount for the personal mitigating factors that I have identified. This results in a reduced sentence of six years and four months. Applying the 25 per cent discount for the guilty plea, the end sentence is one of four years and nine months imprisonment. That is the sentence that was indicated to you by Justice

Gendall.

Disqualification

[33] For the reasons that were canvassed in Justice Gendall’s sentence indication remarks, I accept his approach to the issue of disqualification and impose a five year disqualification from driving.¹²

Reparation

[34] Mr Presland, you have limited financial resources with which to make reparation. However, you have saved some money, and your family is willing to assist you. There is always a danger, in making an order for reparation in these circumstances, that such awards could be considered derisory in comparison to the emotional harm and loss that has been caused. In simple monetary terms, of course, they are, but you and your family have made the offer to make payments in a genuine effort to try in some way to do the right thing by the victims and their families. Having regard to the resources available to you, I make an order in the sum of $2,600 for emotional harm to the Kiriau family, and $1,200 in favour of the Donald family.

Final sentence

[35] Mr Presland, will you now please stand.

[36] Mr Presland, on each of the charges of manslaughter you are sentenced to four years and nine months imprisonment. In imposing this sentence, I have taken

¹¹ _{Hessell v R [2010] NZSC 135.}

¹² R v Williams HC Greymouth CRI-2003-018-000002, 23 October 2003; R v Grey (1992) CRNZ

523 (CA).

into account the two charges of driving dangerously causing injury.¹³ On each of the charges of driving dangerously causing injury, you are sentenced to separate but concurrent sentences of two years imprisonment.¹⁴

[37] I disqualify you from driving for five years in relation to both the manslaughter and dangerous driving causing injury charges.

[38] You are ordered to make reparation in the sum of $3,800 on the terms previously indicated.

[39] Thank you, Mr Presland, you may stand down.

Solicitors:

Wilkinson Adams, Dunedin

A Stevens, Dunedin

¹³ _{Sentencing Act 2002, s 85.}

¹⁴ R v Peneha HC Wellington CRI-2006-078-872, 1 August 2006 at [18]; R v Edgcombe HC New

Plymouth CRI-2006-043-3868, 23 October 2007.