Phillips v Police [2016] NZHC 242 (23 February 2016)

Last Updated: 4 April 2016

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CRI-2015-454-29 [2016] NZHC 242

BETWEEN	DEAN CRAIG ROY PHILLIPS Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	3 February 2016
Counsel:	P S Coles for Appellant M J Blaschke for Crown
Judgment:	23 February 2016

_{JUDGMENT OF WILLIAMS J}

[1] Dean Phillips pleaded guilty to and was convicted of one count of careless driving causing injury under s 38 of the Land Transport Act 1998. He was sentenced in the District Court to disqualification from driving for 12 months and required to pay emotional harm reparation to the injured victim in the incident in the sum of

$3,500. No issue is taken with the reparation award, but Mr Phillips appeals against the length of disqualification on the ground that it was manifestly excessive in the circumstances of the offence and those of Mr Phillips himself.

Factual background

[2] At 6.40pm on Wednesday 4 June 2014, Mr Phillips, then 19 years old, was driving his car along a rural back road near Dannevirke. The road was dry but the area was dark there being no street lights. The posted speed limit was 100 kph. His friend, Levi Asken, was in the passenger seat. Mr Asken was not wearing his seatbelt. They were only a kilometre from their destination, Mr Asken’s home,

_{where Mr Phillips was also staying.}

PHILLIPS v NEW ZEALAND POLICE [2016] NZHC 242 [23 February 2016]

[3] Mr Phillips failed to negotiate a gentle right-hand bend and the left-hand tyres of his vehicle strayed onto the grass verge causing him to lose control of the car. The car hit a drainage ditch, flipped and spun 180 degrees. The car’s rotation caused Mr Asken to be thrown clear of the vehicle because, as I have said, he was not restrained by a seatbelt. The car was extensively damaged and both young men were injured but Mr Asken far more seriously. He spent 21 days in intensive care at Wellington Hospital. In the early stages of his confinement, medical staff warned family to prepare for the worst. His family did not expect him to survive. It is a testament to his extraordinary resilience that Mr Asken did however survive and has made real progress toward recovery.

[4] Mr Asken suffered significant brain injury, a broken neck, a broken rib and bruised lungs which collapsed. And, perhaps in connection with that last mentioned injury, he contracted pneumonia in the early stages of his confinement in ICU. On release from ICU, Mr Asken spent many months in rehabilitation being required to relearn how to walk, talk, feed, toilet and shower himself. Mr Asken has no recollection of the accident or the three month period prior to it.

[5] By contrast the injuries suffered by Mr Phillips were relatively minor in a physical sense but he suffered emotional scarring, including depression and anxiety. He developed suicidal ideation and attempted suicide on at least one occasion. Mr Asken is angry and bitter at the effect the accident has had on his young life while Mr Phillips obviously carries a burden of considerable guilt which is as yet unresolved.

[6] There was no question of speed or alcohol being factors in the accident. Mr Phillips explained at an early stage to the police that he was blinded by the glare of an oncoming car and that this caused him to drift off to the verge of the road. The oncoming car did not stop.

Sentence in the District Court

[7] In the District Court, the Judge (rightly in my view) accepted this explanation. Mr Phillips’ evidence in this respect was the only evidence, and there being no evidence to the contrary, it was appropriate that it be accepted. In the

result, Mr Phillips’ culpability was (again rightly) assessed as low – a moment’s carelessness in the face of oncoming traffic probably due to driver inexperience.

Appeal standard

[8] Section 250 of the Criminal Procedure Act 2011 is the applicable provision in relation to sentence appeals. As the Court of Appeal in Tutakangahau v R¹ confirmed, this provision represents a continuation of the error principle approach to sentence appeals in which the manifestly excessive test remains the touchstone.

[9] Accordingly, in order to allow this appeal, I must be satisfied that the District Court made a material error such that the sentence adopted is manifestly excessive or wrong in principle. And the question in the present case, as in most sentence appeals, is whether the final sentence adopted at first instance is within the available range, the Judge’s reasoning process being relevant but secondary.

Judgment in the District Court

[10] In the District Court, Judge Lynch discussed at length the injuries suffered by Mr Asken and the impact of those injuries both on his life and on that of his family. The Judge acknowledged that Mr Asken must be seen to have been partly at fault as he had elected not to wear his seatbelt. But in the end the Judge’s view was the primary responsibility for the harm caused belonged to Mr Phillips.

[11] The Judge decided that in place of a fine or similar and a smaller emotional harm reparation award, he would adopt an approach that ensured all of the financial penalty would be paid to Mr Asken. He therefore did not impose a fine or other sentencing element such as community work but instead ordered emotional reparation of $3,500. The Judge acknowledged that although this sum was probably significant for Mr Phillips who is at the beginning of his working life, it would be no more than “a drop in the ocean” in terms of the financial losses already suffered by the Askens or in relation to Levi Asken’s future financial losses as a result of his

_{reduced physical capacity.}

¹ Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.

[12] As I have said, Mr Phillips was then disqualified from holding or obtaining a driver’s licence for 12 months. The Judge did not offer any explanation as to why he chose that particular period of disqualification.

Submissions

[13] The essence of the appellant’s submission was that given Mr Phillips’ very low culpability (while accepting that the consequences of his carelessness were significant), the minimum period of disqualification of six months ought to have been imposed. Mr Coles pointed to the line of authorities beginning with

Mawhinney v Police² and the earlier decision in Coleman v Ministry of Transport³ in

support of the proposition that the minimum period of disqualification of six months ought to be imposed in careless driving causing injury cases unless there were particular aggravating features of the offending that could justify an uplift.

[14] In this case Mr Coles submitted there were no aggravating features. Rather, there was inexperience, a moment’s carelessness and the glare of an oncoming car. Mr Coles submitted that the consequences of the carelessness were, on these authorities, strictly irrelevant in the disqualification element of the sentencing package. Rather, he submitted that in accordance with Mawhinney, consequences were properly, to be considered in the fine and/or community work elements of the sentence.

[15] Despite his stance on consequences, Mr Coles pointed out nonetheless that a significant contributing factor to Mr Asken’s injuries was his own failure to wear a seatbelt. Had he worn the seatbelt, his injuries would have been far less serious.

[16] For the respondent, Mr Blaschke submitted that the Mawhinney line of authorities should not be followed. He pointed to the decision of Nicholson J in George v Police⁴ in which that Judge identified a developing divergence in approach.

_{Nicholson J recorded that his preference was to regard the disqualification minimum}

² _{Mawhinney v Police HC Auckland AP99/94, 13 June 1994.}

³ _{Coleman v Ministry of Transport HC Auckland AP40/91, 21 March 1991.}

⁴ George v Police HC New Plymouth AP14/00, 29 June 2000.

as nothing more than that, with the sentencing package to be a matter of overall balance and judgment in sentence construction:⁵

It is primarily a matter in each case of balancing culpability and consequences. This progresses to consideration of other aggravating and mitigating circumstances. In combination there can be a kaleidoscope of circumstances of infinite variety.

[17] Mr Blaschke accepted that in most cases a doubling of the minimum to

12 months would follow from either greater culpability on the part of the offender or very significant consequences such as death or multiple victims. But Mr Blaschke submitted that the relatively high disqualification period in this case needed to be seen in the context of a moderate emotional harm reparation award and no other penalty such as a fine or community work. While the disqualification period seemed harsh, he submitted, its effect was much reduced by the other elements of the package being relatively light.

[18] Furthermore, Mr Blaschke submitted that Mr Asken’s own contribution to his injuries ought not to have been seen as significant. He submitted that the evidence was that even if Mr Asken had worn a seatbelt, he would have been significantly injured (as was the appellant). In any event the Court would be justified in reinforcing the need to wear seatbelts by not treating that factor as a mitigating element for the driver.

Analysis

[19] I much prefer the more discretionary approach advocated by Nicholson J in George and the decisions that have followed it. They seem to me to be more consistent with the broadly stated purposes of sentencing in s 7 of the Sentencing Act

2002. For example, it seems to me that there is little difference in this case in promoting in Mr Phillips a sense of responsibility for, and acknowledgement of, the harm caused (s 7(1)(b)), and providing reparation for harm done by his offending (s 7(1)(d)). Emotional harm reparation can meet both purposes. In addition, in

_{terms of s 7(2), the weight to be given to any particular one of the listed purposes is a}

⁵ At [20]. This approach, counsel submitted, has been followed in Bruce v Police HC Palmerston

North CRI-2008-454-02, 7 March 2008; Sweeny v Police HC Hamilton CRI-2006-419-143,

4 May 2007; Marshall v Police HC Hamilton CRI-2010-419-31, 4 May 2010.

matter for the sentencing Judge. There is nothing in this broad language to suggest that sentencing elements should be compartmentalised as suggested in Mawhinney.

[20] Similarly, s 8 requires the sentencing Judge to take into account the 10 sentencing principles in that section when arriving at an overall sentencing package including restorative justice processes (s 8(j)). Finally according to s 9(1) a sentencing Judge in arriving at an overall sentence is required to take into account loss, damage or harm suffered from the offending. These must necessarily be factors that apply in the selection of the entire sentencing package.

[21] It seems inconsistent with the holistic approach that ss 7, 8 and 9 mandate to adopt the somewhat more partitioned approach suggested in Mawhinney, a case which, after all, was pre-Sentencing Act. I have no difficulty in principle therefore with a package that extends the disqualification period while being relatively lenient in other aspects of the sentence if that is what justice requires.

[22] That said, I do not consider that the emotional harm reparation aspect of the sentence in this case was in any way lenient. Even accepting that the compulsory occasional detention of community work introduces a more punitive element than the compulsory payment of a monetary sum, the usual community work penalties of between 150 and 200 hours for low culpability/severe consequence injury cases is not significantly dissimilar in magnitude to emotional harm reparation payments of between $3,000 and $4,000. In addition, I could find no case in which a low culpability careless driver causing injury (even severe injury) to a single victim,

_{suffered a disqualification penalty twice the statutory minimum.}⁶

⁶ The only case I could find which is arguably of that nature is Hillind v Police HC Whangarei CRI-2011-448-53, 27 October 2011. In that case, the appellant looked away from the road for a moment when driving a motorcycle, causing it to strike a rock. He and his pillion passenger were injured. However, while the culpability in that case was certainly not high, it can be distinguished on the basis that culpability is even lower in the present case, due to the momentary inattention being caused by the glare from the oncoming car.

[23] Disqualification periods of 12 months or more have in the past been reserved for moderate culpability cases, multiple victims or careless driving causing death cases.⁷

[24] Therefore on any assessment, the disqualification period imposed was beyond stern. The sentencing package imposed in this case was thus inconsistent with the general run of sentences.

[25] Sentencing in this area is particularly difficult for Judges because offenders rightly point to their low culpability while victims and their families counter with the terrible consequences they have had to endure. For this reason, the Courts must strive for consistency above all else in this area of sentencing policy.

[26] The appeal must be allowed accordingly. The disqualification period of

_{12 months is quashed, and a period of six months is substituted.}

_{Williams J}

Solicitors:

Broadway Legal Chambers, Palmerston North

Crown Solicitor’s Office, Palmerston North

⁷ For example: Wood v Police HC Hamilton CRI-2008-419-85, 1 May 2009; Guthrie v Police

HC Rotorua CRI-2007-463-120, 6 November 2007; Eades v Police HC Christchurch CRI-2009-

409-135, 3 December 2009.