R v Taukava [2018] NZHC 2290 (31 August 2018)

Last Updated: 31 August 2018

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY I TE KŌTI MATUA O AOTEAROA TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CRI-2017-069-000626 [2018] NZHC 2290

THE QUEEN

v

DANIEL TAUKAVA

Hearing:	31 August 2018
Appearances:	A J Gordon for Crown L Te Kani for Defendant
Sentence:	31 August 2018

SENTENCING NOTES OF WYLIE J

Solicitors/counsel:

Crown Solicitors, Rotorua

L Te Kani, Families Matter Law Practice, Rotorua

R v TAUKAVA [2018] NZHC 2290 [31 August 2018]

Introduction

[1] Mr Taukava, you appear for sentence today having accepted a sentence indication given to you by Lang J on 19 July 2018.¹

[2] You have pleaded guilty to the following charges:

(a) manslaughter by an unlawful act, namely driving your vehicle dangerously;²

(b) making a false statement in a logbook (x 2);³

(c) failing to deliver your logbook to your employer;⁴ and

(d) not taking 10 hours rest.⁵

[3] Manslaughter by an unlawful act carries a maximum penalty of life imprisonment.⁶ It is the lead charge for the purposes of sentencing.

Relevant facts

[4] The principal charge of manslaughter by an unlawful act arises out of an event that occurred on the evening of 25 January 2017. At 6.53 pm that evening, you were driving a heavy truck and trailer unit in a northerly direction on State Highway 1 just outside Taupo. You were on your way back from a trip which took you from the Coromandel to Nelson delivering mussels. You had commenced your journey on the afternoon of 23 January 2017, and you were on the last stage of what was to be a three- day trip.

¹ R v Taukava [2018] NZHC 1804.

² Crimes Act 1961, ss 160(2)(a).

3. Land Transport Act 1998, s 79R(1)(b). The maximum penalty is a fine not exceeding $2,000. The court may also disqualify the person from holding or obtaining a licence for a period of one month or more as the Court sees fit.
4. Section 79Q(a). The maximum penalty is a fine not exceeding $2,000. The court may also disqualify the person from holding or obtaining a licence for a period of one month or more.
5. Section 30ZC(2)(b). As per s 79O(b), the maximum penalty is a fine not exceeding $2,000. The court may also disqualify the person from holding or obtaining a licence for a period of one month or more.

⁶ Crimes Act, s 177(1).

[5] The summary of facts to which you have pleaded guilty records that during this trip, you were not getting sufficient rest and that you were sleeping for no more than a few hours at any one time, often in your truck.

[6] On the evening of 25 January 2017, there had been downpours of rain in the Taupo area. At the time of the incident giving rise to the principal charge, it was still raining.

[7] Immediately prior to the crash, you were travelling at a speed of approximately 97 kilometres per hour as you approached a right-hand bend on a downhill section of State Highway 1. On an earlier stretch of road moments earlier, your vehicle had reached speeds of 104 kilometres per hour. The maximum speed you ought to have been travelling was 90 kilometres per hour.

[8] As you approached the right-hand bend, you endeavoured to slow the vehicle. You did this by allowing the truck to decelerate on its engine retarder. This applies deceleration to the two driving axles on the truck. The summary records that it is common knowledge in the trucking industry that drivers should not use an engine retarder in wet road conditions because doing so increases the risk that the driving wheels will lock. You were aware of this risk.

[9] As you approached the bend, you lost control of your vehicle. You were not wearing a seatbelt at the time. When you lost control of the vehicle, you were thrown to the floor of the cab. This meant that you were unable to regain control of the vehicle. The vehicle crossed the centre line and went over into the southbound lane in the face of oncoming traffic. It then went into a culvert before returning to the road. The vehicle then crossed both the southbound and northbound lanes before colliding with an embankment. It travelled along the embankment before coming to rest with the truck unit jack-knifed towards the trailer.

[10] In crossing the southbound lane, the vehicle collided with a southbound motorcyclist. As a result of the impact, the rider, Te Wanehi Wakefield, received severe injuries and died.
[11] The summary records that your actions constituted a major departure from the standard of care expected of a reasonably prudent truck driver because you were travelling at excessive speed downhill and in wet conditions. In addition, you inappropriately used the engine retarder immediately before the crash. Importantly, too, approximately three months before the incident you had deliberately disabled the vehicle’s electronic braking system (EBS). You did this by removing a cable that connected the EBS between the truck and the trailers. You then placed the disconnected cable into a bucket in the cab of the vehicle. Notwithstanding several opportunities to have the EBS reconnected, you had failed to do so and as a result, the system was disabled at the time of the accident that caused Mr Wakefield’s death.

[12] The logbook offences were detected after the police began investigating the collision. They found several discrepancies in your logbook, including false statements. In addition, the police were able to establish that you had not had the required rest during the period you were away on the trip on which the collision occurred.

[13] When the police interviewed you, you acknowledged that the retarder should never be used in the wet because it could be “lethal”. You told the police there had been a fault with the EBS on the truck and you had unplugged it to prevent the fault alert continuing to appear on the dashboard. You said you did not think the EBS was working in any event. When the police asked you about the inadequate rest you had been taking, you said that you had stayed in the truck on 24 January 2017 because the relief driver could not do the whole job in the South Island and because you did not have a motel to stay in. You admitted that you had no set sleeping pattern, and that you would generally only get three to five hours sleep at any one time.

Pre-sentence report

[14] The report writer recorded that when you were referred to the events leading up the incident, you became visibly upset, and that you remained emotional and tearful throughout the interview. The report writer considered that it is clear that you remained traumatised by the events of the day. He recorded that you have huge regret and sadness about the incident. You have apparently asked the police if they are able
to arrange contact with Mr Wakefield’s family, so that you can express your sorrow and heartfelt remorse for what has occurred. The police apparently have told you that that might not be a good idea. You have indicated that you are still willing to express your remorse if the victim’s family is open to that.

[15] Your likelihood of reoffending was assessed as low, as was your risk of causing harm to others.

The sentence indication

[16] In the sentence indication that Lang J gave you, he adopted a starting point of three years and six months’ imprisonment on the lead charge of manslaughter.⁷ He uplifted that starting point by three months to reflect the fact that you have a number of infringement notices for speeding.⁸ He was prepared to allow you a discount of nine months to recognise the guilty pleas you might enter.⁹

[17] As s 116(3) of the Criminal Procedure Act 2011 makes clear, the sentence indication is not binding on a judicial officer other than the judicial officer who gave the indication. However, if a sentence of a different type or of the same type but of a greater quantum is to be imposed, you are entitled to withdraw your guilty pleas.¹⁰

[18] I record that at the outset of the hearing today, I advised you through your counsel that I propose to impose a period of disqualification in relation to the logbook and failing to take the required rest offences. This was not proposed by Lang J. You advised through your counsel that you do not wish to withdraw your guilty pleas.

[19] It is therefore necessary for me to examine the indication given to you by Lang J to see whether it is, in my view, appropriate.

⁷ R v Taukava, above n 1, at [14].

⁸ At [17].

⁹ At [19].

¹⁰ Criminal Procedure Act 2011, s 115(2)(b).

Analysis

[20] There is no tariff case for sentencing in cases like this. The starting point falls to be set primarily by reference to prior case law.

[21] Ultimately, each case is fact specific.¹¹ As Randerson J commented in Zhao v Police, in the related context of dangerous driving causing death, while the maximum penalty “reflects the gravity of the consequences where death or injury has resulted ... the true focus of the court must be upon the manner of driving and the appellant’s culpability in that respect”.¹²

[22] The Court of Appeal, in Gacitua v R, observed, in the context of reckless driving causing death, that the courts in the United Kingdom have adopted sentencing bands based on various aggravating and mitigating features.¹³ It did not consider that those sentencing bands are necessarily appropriate in the New Zealand context.¹⁴ The Court nevertheless noted a number of aggravating and mitigating factors which can be relevant to a charge of dangerous driving causing death.¹⁵ It commented that these factors “are useful in identifying some of the aggravating and mitigating factors relevant to sentencing in cases of this kind”.¹⁶ I do not need to list those factors, but some of them were present in your offending.

[23] In my view, the aggravating features of your offending were:

(a) excessive speed – as I have noted, you were driving at a speed of approximately 97 kilometres per hour when you approached the right- hand bend. You had previously reached a speed of 104 kilometres per hour;

(b) you knew that you had not had adequate sleep or rest – you admitted that you had not taken the required rest periods while driving the truck;

¹¹ Gacitua v R [2013] NZCA 234 at [22]; Richards v R [2017] NZCA 232 at [15].

¹² Zhao v Police HC Hamilton AP32/03, 6 June 2003 at [32].

¹³ Gacitua v R, above n 11, at [22]-[25].

¹⁴ At [28].

¹⁵ At [25(a)-(i)]-[26(a)-(f)].

¹⁶ At [29].

(c) your conduct – you inappropriately used the engine retarder before the crash knowing the risk associated with this course of action. You had earlier disabled the vehicle’s EBS, and failed to get it repaired; and

(d) you were not wearing a seat belt at the time – as a result, you were thrown to the floor and you could not try to remedy the situation once the vehicle started to swerve across the highway.

[24] I turn now to consider previous case law to see if it assists in setting the starting point.

[25] Lang J referred to the Court of Appeal’s decision in R v Harrison.¹⁷ In that case, the appellant was convicted of two charges of dangerous driving causing death and two charges of dangerous driving causing injury. The appellant had been driving a fully laden truck and two trailer combination on a state highway. While attempting to negotiate a moderate left-hand bend at the bottom of a steep hill, the appellant lost control of the vehicle. The second trailer drifted into the wrong lane, while the entire truck tipped on its side and slid along the road. Two people in oncoming vehicles were killed, while another two suffered serious injuries. The Court upheld the trial Judge’s finding that excessive speed, coupled with a steering manoeuvre, caused the accident.¹⁸ It did not comment specifically on the starting point adopted by the Judge, which was three years’ imprisonment. But it held that the end sentence was not manifestly excessive.¹⁹

[26] I have also considered various cases not referred to by Lang J.²⁰ Starting points for broadly similar offending have ranged from three years to five years and six months’ imprisonment.

¹⁷ R v Harrison [2008] NZCA 514.

¹⁸ At [17].

¹⁹ At [25].

²⁰ R v Griffiths [2018] NZHC 1104 – dangerous driving causing death – breach of licence restriction, alcohol, excessive speed, extremely dangerous manoeuvre attempted – starting point, five years six months’ imprisonment; Ko v Police [2012] NZHC 3312 – dangerous driving causing death – gross error of judgment in attempting to pass a truck – starting point, three years’ imprisonment; Cao v Police [2015] NZHC 1793 – dangerous driving causing death – driving on wrong side of road, crossing centre line, not a momentary lapse – rather fundamental error – arguably gross recklessness – starting point three years six months’ imprisonment.

[27] Lang J accepted that your culpability was higher than that of the appellant in Harrison because of your deliberate acts, first, in disabling the EBS and secondly, in using the engine retarder when you knew you should not have done so due to the conditions.²¹ For these reasons, he adopted a higher starting point of three years and six months’ imprisonment. I agree with this assessment.

[28] Based on my analysis of your actions and the relevant case law, I am satisfied that a starting point of three years and six months’ imprisonment is appropriate.

Personal circumstances

[29] It is now necessary to consider your personal circumstances to see whether that starting point should be adjusted.

[30] You have a number of historic convictions. They are, however, unrelated to the current offending. Of greater moment, you have numerous infringement notices for driving a heavy motor vehicle in excess of the maximum permitted speed. As Lang J pointed out, you received infringement notices on three occasions for speeding in 2013 alone.²² He adopted an uplift of three months for this factor.²³ I agree that such an uplift is appropriate. Clearly you have not learnt the lesson that speeding in any vehicle, let alone a heavy truck, is foolhardy and dangerous. That uplifts the starting point to one of three years and nine months’ imprisonment.

[31] I turn to the pre-sentence report. I have already summarised it. The Crown accepts that the remorse expressed by you to the report writer appears to be genuine. I have received a letter from you today. I have read that letter. Again, you express your remorse for what has happened. I have also received a letter from your wife which also refers to your remorse. Further, there is a letter dated 28 August 2018 from Paul Laracy. You lived with Mr Laracy and his wife when you were a child. They are still in regular contact with you. In the letter, Mr Laracy says that despite your dysfunctional family life when you were a child, you are now in a long-term relationship, you are very family orientated and you have a great rapport with your

²¹ R v Taukava, above n 1, at [13]-[14].

²² At [17].

²³ At [17].

children. He also says that you are depressed and extremely remorseful for what has happened. Finally, I have received a number of letters from various members of your family. They clearly bear out the fact that you are family orientated and that you have great rapport with your children.

[32] Tangible evidence of genuine remorse can provide the basis for a sentencing discount.²⁴ As the Supreme Court has noted, remorse is not necessarily shown simply by pleading guilty.²⁵ As the Court observed, sentencing judges are very much aware that remorse may well be no more than self pity of a defendant for his or her predicament and will properly be sceptical about unsubstantiated claims that an offender is genuinely remorseful.²⁶ But a proper and robust evaluation of all the circumstances can demonstrate a defendant's remorse.²⁷ Where genuine remorse is shown by a defendant, credit can properly be given separately from that for the guilty plea.²⁸

[33] Based on the materials I have received, I am satisfied that you are genuinely remorseful for your actions. Your remorse has come relatively late but that does not detract from the fact that it is genuine. I consider that you are entitled to a discount of two months to recognise that remorse. That brings the starting point sentence back to one of three years and seven months’ imprisonment.

[34] Finally, you are entitled to a discount in the sentence for your guilty pleas.²⁹ Any reduction cannot exceed 25 per cent.³⁰ Although you did not enter your pleas at the earliest available opportunity, Lang J was prepared to allow you a discount of nine months, or approximately 20 per cent, to reflect your guilty pleas. I agree that such a discount is appropriate. This results in an end sentence of two years and ten months’ imprisonment.

²⁴ Watene v R [2014] NZCA 381 at [18]. See also Sentencing Act 2002, s 9(2)(f).

²⁵ Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.

²⁶ At [64].

²⁷ At [64].

²⁸ At [64].

²⁹ At [73].

³⁰ At [75].

Sentence

[35] Mr Taukava, will you please stand.

[36] In respect of the offence of manslaughter by an unlawful act, namely driving a vehicle dangerously, I sentence you to a term of imprisonment of two years and 10 months.

[37] In respect of each of the two charges of making a false statement in a logbook, and in respect of the charge of failing to deliver your logbook up to your employer, I sentence you to one month’s disqualification.

[38] In respect of the offence of not having 10 hours rest in a work day, I sentence you to a term of one month’s disqualification.

[39] The disqualification in each case is from holding or obtaining a licence to drive any vehicle that:

(a) requires a class 2, 3, 4 or 5 licence as specified in the Land Transport Road User Rules 2004; or

(b) is used in a goods transport service; or

(c) is used to carry goods for hire or reward.

This means that you will not be entitled to drive a goods transport or heavy vehicle, but that you will be able to drive a class 1 vehicle – that is an ordinary motorcar used for private purposes.

[40] The disqualifications in respect of each of the logbook offences, and the offence of not taking the required 10 hours rest, are to be served cumulatively. It follows that you are disqualified as I have explained from driving for a period of four months, this disqualification to start on the day on which you are released from custody after serving the sentence I have imposed on you for the offence of manslaughter by an unlawful act.
[41] I record that your counsel, Mr Te Kani, has sought that I should you grant you leave to apply for home detention at the appropriate point in your sentence. Mr Te Kani could not refer me to any provision which permits me to do that, and Ms Gordon, for the Crown, submitted that I have no such jurisdiction. I am not persuaded that it is appropriate to grant such leave; nor insofar as I am aware, do I have jurisdiction to do so.

[42] I also note that various members of your family in the letters they have written to me, have expressed the wish that I should direct that you are held in custody in a prison in or near Auckland. Ultimately where you are held is a matter for the Department of Corrections and I cannot direct it in that regard. I can however record your family’s wishes and I have done so.

[43] You may stand down.








Wylie J