Hodgins v Police [2018] NZHC 1644 (5 July 2018)

Last Updated: 10 August 2018

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI-2018-419-000021 [2018] NZHC 1644

BETWEEN	MICHAEL ALLEN HODGINS Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	5 July 2018
Appearances:	S Khan for the Appellant M Dillon for the Respondent
Judgment:	5 July 2018

ORAL JUDGMENT OF POWELL J

[Appeal against Sentence]

Solicitors:

Almao Douch, Hamilton Fortune Manning, Auckland

Counsel: M Dillon S Khan

HODGINS v NEW ZEALAND POLICE [2018] NZHC 1644 [5 July 2018]

Introduction

[1] Michael Hodgins is a truck driver. On 5 April 2017 he was driving, as he regularly did, between Auckland and Hamilton. He approached the roundabout on Te Rapa Road. As he turned left onto Sunshine Avenue, he did not look left to see if there was anyone in the adjacent cycle lane. His truck struck and killed a cyclist, Graeme Leach.

[2] Mr Hodgins pleaded guilty to careless use causing death,¹ and on 19 April 2018 was sentenced to three months’ community detention, 180 hours community work,
$10,000 in reparations for emotional harm, and he was disqualified from driving for 12 months.²

[3] He now appeals on the basis that the sentencing Judge, Judge Burnett, wrongly assessed his level of carelessness as high, and that as a result of that and also not taking account of other decisions reflecting similar circumstances, the sentence imposed was manifestly excessive.

Background

[4] As noted Mr Hodgins is a truck driver who regularly operates between Auckland and Hamilton. On the day in question he was driving a truck of 20 m in length including its trailer. He was in the left-hand vehicle lane approaching the roundabout. To the left of this lane is a clearly marked cycle lane which at the time extended up to the roundabout. The statement of facts to which Mr Hodgins pleaded guilty indicated that he had seen Mr Leach cycling down Te Rapa Road, he has however subsequently disputed this. What is clear is that he should have seen Mr Leach who was dressed in a hi-visibility vest and had a red helmet, and was clearly visible in what were perfect driving conditions.

[5] As he came up behind Mr Leach, Mr Hodgins started to pass the cyclist. Mr Leach dropped back towards the middle of Mr Hodgins truck but as Mr Hodgins

1. Land Transport Act 1998, s 38. The maximum penalty is a term of imprisonment of three months, or a fine not exceeding $4,500. The Court must order the person to be disqualified from holding or obtaining a driver licence for six months or more.

² Police v Hodgins [2018] NZDC 7688.

began to slow for the roundabout, Mr Leach began gaining again and they in fact arrived at the roundabout together, Mr Leach coming to a stop slightly to the front left- hand side of Mr Hodgins truck. Mr Hodgins was indicating the he was turning left, and was looking right to check there was no oncoming traffic already on the roundabout. He did not look to his left before moving off to check whether there was anyone in the cycle lane and in particular made no effort to check what had happened to the cyclist that he had just passed and who was by that time still next to Mr Hodgins truck in the cycle lane, where he was entitled to be.

[6] When there was no traffic on the roundabout Mr Leach rode off into the roundabout going straight ahead. Shortly after Mr Hodgins also moved onto the roundabout veering slightly left so as to take the first exit. As Mr Hodgins got underway he did not see Mr Leach who by then was almost directly in front of him and with the centre of the front of his truck struck the rear of Mr Leach’s bike. Tragically Mr Leach went under the truck and died as a result of the injuries he received.

District Court decision

[7] At sentencing, after reviewing the facts, Judge Burnett noted that cyclists are entitled to be on the road and a commensurate increase in the regard paid to them is required, going on to comment:³

Today the Court has heard that this large vehicle, 20 metres in length, truck and trailer driving in a busy commercial area, commercial but a main arterial route as well with supermarkets et cetera and other retail outlets has a blind spot of approximately six foot on the left-hand side of that vehicle and presumably this blind spot prevents the driver from seeing anything that is at window level or below. I do not know the height of this vehicle but we all know that the vehicles are higher than we are when we stand upright. So here is a driver who knowingly has a six foot blind spot at that level, is driving beside a marked cycle lane. There is a cyclist. He has seen that cyclist, he acknowledges that. He pulls out into the roundabout looking only to his right to ensure that he is safe to move this big rig forward by not impacting with vehicles already on the roundabout. He fails, however, in any way to look to his left and as a consequence the cyclist, Mr Leach, who has already passed Mr Hodgins’ vehicle is struck and killed at the centre of Mr Hodgins’ truck.

³ At [8] and [9].

The level of carelessness has to be at the high end of carelessness. I am not saying that it gets to the level of selfish disregard for the safety of other road users as I do not believe for a moment that Mr Hodgins was selfish in his intentions or his actions or in the consequence but with that level of awareness and knowledge he nevertheless turned this big rig without even looking for Mr Leach who was there to be seen and had been seen by Mr Hodgins.

[8] Judge Burnett noted that as a matter of common sense there was no chance for the cyclist to escape without serious injury or death in coming into contact with a large vehicle such as a truck even at the low speed that Mr Hodgins was travelling at.

[9] Turning to other matters, her Honour noted Mr Hodgins participated in restorative justice with the victim’s family and that he displayed genuine remorse and accepted that reparation should be paid. Her Honour also noted Mr Hodgins had entered a late guilty plea. Her Honour then turned to the purposes and principles of sentencing, recording that while Mr Hodgins had not taken the outcome lightly, denunciation has been driven home to him, and there is little need to deter him, accountability, promoting responsibility, denunciation, in general are nonetheless important purposes of sentencing which must be satisfied.

[10] Addressing the question of appropriate sentence, Judge Burnett considered supervision would be of no assistance to Mr Hodgins, who she believed had taken the matter to heart. In this regard she noted he has not driven since; “a genuine self- recognition of his level of culpability” and reflective of his remorse.⁴

[11] Her Honour therefore went on to impose a sentence of three months’ community detention. She concluded an additional sentence of community work was also necessary given Mr Hodgins’ high level of culpability within the level of carelessness. This component, from a starting point of 300 hours’ community work her Honour arrived at a sentence of 180 hours, accounting for Mr Hodgins’ remorse, how he had responded to the offending, the reparations and the guilty plea discount.

[12] On the issue of reparation her Honour ordered Mr Hodgins pay $10,000 reparation to the victim’s family, and disqualified him from driving for 12 months,

⁴ At [22].

noting the mandatory minimum period of six months was insufficient to meet his level of culpability.

Approach to appeal

[13] This is a first appeal against sentence. Section 250(2) of the Criminal Procedure Act 2011 (“CPA”) provides the appeal must be allowed if the court is satisfied that for any reason there is an error in the sentence imposed, and a different sentence should be imposed.⁵

[14] The touchstone is whether that sentence imposed is manifestly excessive,⁶ with the focus on the sentence imposed, rather than the process by which it was reached.⁷ Where the sentence is within a range that can properly be justified by accepted sentencing principles, the appellate court will not disturb the sentence imposed.⁸

Grounds of appeal

[15] As I have noted the first ground of appeal is on the basis that Judge Burnett erred in assessing Mr Hodgins level of carelessness as high. Mr Khan, on Mr Hodgins behalf, submits that were his culpability higher, he would have been sentenced to a charge involving dangerousness or recklessness. He submits Mr Hodgins’ carelessness can, at worst, be classified as momentary inattention. He also contends that her Honour ought to have taken into account that the cycle lane was improperly drawn on the road, and it should have ended some 30 metres prior to the roundabout.

[16] As a result, Mr Khan submits that her Honour arrived at a manifestly excessive sentence. He also submitted in the alternative that Mr Hodgins has felt aggrieved by the sentence he has received, and in particular the community detention as he has heard about other sentences received by other drivers in other situations which he considers to have been similar to the situation that he faced, and relative to those other sentences he has been treated to a sentence that is manifestly excessive.

⁵ Criminal Procedure Act 2011, s 250(2).

⁶ Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [32].

⁷ At [36].

⁸ Larkin v Ministry of Social Development [1015] NZHC 680.

[17] In this regard, Mr Khan has referred to a number of decisions in which lesser sentences have been imposed for similar charges. As a result Mr Khan submits that the end sentence reached by Judge Burnett is out of step with those authorities and on that basis as well, manifestly excessive.

[18] Mr Khan has relied in particular on two recent decisions. The Police v Collier⁹ and the Police v Hewitt¹⁰ which involved accidents occurring between trucks and cyclists, around the same date as the accident that occurred between Mr Hodgins and Mr Leach.

[19] In Mr Khan’s submission these particular decisions show that the sentence received by Mr Hodgins in this case is manifestly excessive in comparison to the sentences received by the defendants in those other cases.

Was there an error in the sentence imposed?

[20] I turn first to Judge Burnett’s assessment of Mr Hodgins’ carelessness. Having, at the request of counsel, viewed the CCTV footage of the accident, I am unable to accept Mr Khan’s submission as to his characterisation of Mr Hodgins’ level of culpability. As Mr Dillon submitted on behalf of the Police the CCTV footage makes it clear that this was not a case of momentary inattention on the part of Mr Hodgins, whether, as the statement of facts provided, Mr Hodgins’ saw Mr Leach as he proceeded along Te Rapa Road or as he now contends he did not.

[21] In the event that Mr Hodgins had seen Mr Leach it is clear he had ample time to observe Mr Leach as he drove down Te Rapa Road which it is agreed is long and straight, and as he passed Mr Leach prior to coming to the roundabout. Having seen Mr Leach and started passing just before the roundabout, although he had not completed his overtaking manoeuvre and having come to a stop, he started moving and collided with Mr Leach. As Mr Dillon has submitted, that offending involved inattention to the presence of the cycle lane, as well as the continuing presence of Mr Leach alongside Mr Hodgins’ vehicle. As well as knowing that cyclists were

⁹ Police v Collier [2018] NZDC 8670.

¹⁰ Police v Hewitt DC Timaru, 12 April 2018.

entitled to go straight through the roundabout as Mr Leach attempted to do. Mr Hodgins failed to appreciate Mr Leach was in his blind spot and yet it would have been clear that if Mr Leach had continued in his last observed trajectory i.e. when Mr Hodgins began his overtaking manoeuvre a collision was likely, if not inevitable.

[22] On the other hand, if Mr Hodgins had indeed not seen Mr Leach that would have amounted to a sustained piece of careless driving, given the road conditions, the way in which Mr Leach was appropriately dressed, the presence of the cycle lane, and the fact that the cycle lane enabled cyclists to travel straight through the roundabout.

[23] I also do not accept that, to the extent the cycle lane did not comply with regulations as contended by Mr Khan that that has any relevance to the assessment of Mr Hodgins’ carelessness. The simple fact is that it was there and whether it was meant to have terminated some 30 metres before the intersection or not, it provided a supposedly safe lane for cyclists to ride in all the way up to the intersection and as a professional driver Mr Hodgins simply had to deal with that. As a result the layout of the road does not impact on the consideration of carelessness.

[24] Taken together I am satisfied Judge Burnett was correct and did not err in assessing Mr Hodgins’ level of carelessness at the high end. As I have noted this was not a case of momentary inattention whether Mr Hodgins’ saw Mr Leach or not, but rather a sequence of failures leading up to the fatal collision.

[25] Given as Mr Khan noted, carelessness is at the bottom tier of seriousness of this type of traffic offending it is difficult to see how the offending in this case could have been considered as anything but towards the higher end of carelessness. Had it been much more serious more serious charges of dangerous driving or reckless driving would have been preferred. Indeed I observe in passing that perhaps Mr Hodgins was lucky not to have faced a charge of dangerous driving when I consider the test set out by Venning J in his decision in Mash v NZ Police.¹¹ Leaving that consideration aside in my view Judge Burnett properly concluded Mr Hodgins’ failures amounted to a high level of carelessness although not a level so high as amounting to selfish disregard for the safety of others.

¹¹ Mash v Police [2014] NZHC 1223 at [25] and [27].

[26] No error of sentencing therefore arises because of Judge Burnett’s conclusion as to the seriousness of the charge faced by Mr Hodgins

[27] I now turn to consider whether the sentence was otherwise manifestly excessive with particular regard to the authorities referred to by Mr Khan.

[28] Having considered those authorities carefully I am not satisfied that they assist in resolving Mr Hodgins’ appeal. First it is always difficult to be sure that the cases are in fact analogous given that they, like the present case were determined on their particular facts and indeed in the different cases different levels of carelessness have been determined by different Judges. Given Judge Burnett’s correct conclusion that Mr Hodgins’ degree of carelessness was at the higher end, a stern sentence was required even despite his personal mitigating circumstances and agreement to pay reparations. A number of the cases referred to by Mr Khan appear to involve lower assessed levels of carelessness, and thus perhaps inevitably led to lesser sentences. That underscores one issue with Mr Khan’s submissions on that point: they are premised on the finding that Judge Burnett erred in her assessment of carelessness; a finding which as I have set out, I have declined to make.

[29] In addition, the differences in sentences may also reflect that this area of the criminal law, like others, does not remain static, in that a sentence imposed some years ago is not necessarily relevant to present circumstances.

[30] Finally with regard to this issue I refer particularly to the Hewitt and Collier decisions referred to me by Mr Khan. The Hewitt decision in particular is somewhat problematic as a comparator given the sentencing notes from her Honour Judge Maze are not in fact available, while in Collier his Honour Judge Adeane clearly found a level of carelessness to be minimal in that case.

[31] To the extent that the cases could be seen to be describing comparable circumstances, and I note that Collier in particularly involved a truck making a left turn at an intersection where a cyclist was travelling straight ahead from a cycle lane, the punishments imposed in both cases would appear to be out of step with the purposes and principles of the Sentencing Act 2002. In Collier in particular,
Judge Adeane did not seek to meet the need to deter the behaviour not necessarily of the defendant but of other drivers who may have not taken cycle lanes seriously. Judge Adeane appeared to have paid no attention at all to the need to denounce the offending to deter others from keeping a good lookout and/or to protect the community, particularly those using cycle lanes. Victim vulnerability in terms of s 91(g) of the Sentencing Act 2002 would also appear to have been relevant and not taken into account.

[32] While the sentence of three months’ community detention, 180 hours’ community work and $10,000 in reparations was stern, I am satisfied it was well within the range of permissible sentences available to Judge Burnett. It is a sentence which sends a message to the community that this type of careless driving must be taken seriously; that the series of mistakes made by Mr Hodgins has resulted in the death of an entirely innocent person.

[33] In saying that the sentence was stern and reflecting the culpability of Mr Hodgins it must be noted that his sentence was in no way nowhere near the maximum that could have been imposed.

[34] To elaborate, the maximum term of imprisonment for this offending is three months. In the Sentencing Act 2002’s hierarchy of sentences, community detention sits below home detention and imprisonment in terms of restrictiveness.¹² That reflects that it imposes a relatively lower level of supervision and monitoring, and fewer restrictions, than those sentences.

[35] The most serious cases of careless driving causing death would warrant short sentences of imprisonment. Less serious cases might result in short periods of home detention. Below that is a category of cases where community detention is the appropriate sentence, perhaps, as in this case, in combination with other types of sentences such as community work. The period of community detention imposed may be for a period that the court thinks fit, although a term of no longer than six months may be imposed.¹³

¹² Sentencing Act 2002, s 10A(2).

¹³ Section 69B(2).

[36] In this case the sentence of community detention imposed was half that maximum, reflecting that there will be a further category of more serious careless driving attracting home detention or imprisonment, or indeed longer terms of community detention. The period of 180 hours’ community work (as well as $10,000 in reparations), was also not out of range let alone manifestly excessive and I see no basis for changing the sentence on this appeal.

[37] Overall, the sentencing combination Judge Burnett arrived at was an appropriate balancing of her accurate assessment of Mr Hodgins’ culpability with the personal mitigating factors that she was presented with.

Conclusion

[38] In conclusion, I am satisfied there is no error in the sentence imposed as there is no error in Judge Burnett’s assessment of Mr Hodgins’ carelessness. The sentence was otherwise within the range available to her Honour and in no way manifestly excessive. The appeal is dismissed.







Powell J