Waenga v R [2018] NZHC 865 (30 April 2018)

Last Updated: 22 May 2018

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY I TE KŌTI MATUA O AOTEARO TE ROTORUA-NUI-Ā-KAHU ROHE

CRI-2017-463-000053 [2018] NZHC 865

BETWEEN	KAAMA TETAKOREE WAENGA Appellant
AND	THE QUEEN Respondent

Hearing:	10 April 2018
Appearances:	F Wood for the Appellant N Tahana for the Respondent
Judgment:	30 April 2018

JUDGMENT OF HINTON J

Solicitors:

Tompkins Wake, Rotorua Gordon Pilditch, Rotorua

KAAMA TETAKOREE WAENGA v R [2018] NZHC 865 [30 April 2018]

[1] This is an appeal of a sentencing decision under s 270 of the Crimes Act 1961, brought on the basis that the starting point was too high.

Factual background

[2] On 8 July 2017, at approximately 4.20 pm, Mr Waenga drove a Subaru motor vehicle, belonging to his partner, north along State Highway 5 towards the Ngongotaha roundabout. It was winter, the road was wet and the sky was overcast. There was a reasonably heavy flow of traffic in both directions.

[3] Mr Waenga was observed driving down the centre of the road, overtaking vehicles headed north, for approximately 600 metres.

[4] Upon reaching the Ngongotaha roundabout, while travelling at a speed estimated between 100 and 120 kilometres per hour, Mr Waenga directed the vehicle onto the wrong side of the road, into the path of oncoming traffic. Coming towards him were four vehicles containing nine people, including 4 children.

[5] In the first vehicle was Mr Bruno Pedrosa, a Brazilian tourist and his German passenger. The vehicles collided, though Mr Pedrosa managed to swerve to the left, avoiding a more serious collision and was uninjured. The collision tore a front wheel from Mr Waenga’s vehicle and it became airborne.

[6] Mr Waenga’s vehicle continued towards Mr Shane Gilbert’s Mercedes Benz motor vehicle. Mr Gilbert had his two young children in the rear of the vehicle with him at the time. Mr Waenga and Mr Gilbert’s vehicles collided. Mr Gilbert’s vehicle spun off the road and onto the grass verge. The passengers were fortunately unharmed. Mr Gilbert’s vehicle suffered extensive damage and will be written off.

[7] It is testament to the speed at which Mr Waenga was travelling that his vehicle continued along its trajectory. The Mercedes Benz motor vehicle driven by Mrs Louise Gilbert, who was travelling just behind her husband, was struck next. Mrs Gilbert also had two young children in the vehicle with her at the time. Mrs Gilbert’s vehicle was stationary at the time, but the force with which it was struck pushed it two metres. Mrs Gilbert’s vehicle will also be written off.
[8] Still Mr Waenga’s vehicle continued. The final victim to be struck was Mr Neale Kent, who was driving his two-week-old Subaru motor vehicle. Mr Waenga’s vehicle bounced off the front of Mr Kent’s and finally came to a rest by a stop sign. Mr Kent’s vehicle was moderately damaged.

[9] Mr Waenga, though injured with a fractured femur, fractured pelvis and dislocated hip, was abusive towards those present at the scene, including the emergency services staff. He had to be restrained and handcuffed by Police in the ambulance.

[10] Mr Waenga explained to the Police that he was angry because of his depression.

[11] A report was requested by the Rotorua District Court under s 38 of the Criminal Procedure (Mentally Impaired Persons) Act 2003, to assist the Court in determining the type and length of sentence to be imposed. In the report Mr Waenga is recorded as being depressed, stressed and suffering from a borderline personality disorder. The night before the incident, Mr Waenga’s partner had attempted to commit suicide. Mr Waenga reported during the interview that he wanted to kill himself by driving into a tree and the psychiatrist’s report records him as saying that he wanted to kill himself and “take others out when he did it”.

District Court Decision

[12] On 5 October 2017, in the Rotorua District Court, the appellant was convicted, after pleading guilty, and sentenced as follows:¹

(a) Two years and five months’ imprisonment for endangering transport, under s 270(1)(a) of the Crimes Act 1961 (the Act); and

(b) Two months’ imprisonment for reckless driving, under s 35(1)(a) of the Land Transport Act 1998.

[13] The sentences were imposed concurrently. Mr Waenga was also disqualified from driving for 18 months, and ordered to pay reparation to the four victims totalling approximately $3,500.

¹ Police v Waenga [2017] NZDC 22975.

Grounds of Appeal

[14] Mr Waenga appeals his sentence on the following grounds:

(a) The starting point of three years adopted by the Judge for the offence of endangering transport was too high, having regard to comparable provisions and case law.

(b) A deduction should have been made for the appellant’s mental health issues.

[15] Mr Waenga does not seek to have any reduced sentence converted to home detention. Subsequent to the hearing of this appeal, Mr Wood filed a memorandum accepting there is no suitable address.

Appellant’s submissions

[16] Mr Wood argues that the sentencing Judge failed to take into account the difference in sentences imposed under the old s 203 of the Act in determining what an appropriate starting point should be under s 270 of the Act. He argued that Mr Waenga’s offending would not have been caught by s 203(1), which imposed a 14-year maximum sentence where the offender possessed the requisite mens rea of intending to injure or endanger the safety of any person. Instead, Mr Wood suggested that Mr Waenga’s offending would have fallen under s 203(2), where the maximum sentence is only five years, for offending in a manner likely to injure or endanger the safety of any person.

[17] Mr Wood suggests that s 270 of the Act is intended to capture large scale damage and disruption to mass transport facilities, for which sentences near the 14-year maximum would be appropriate. As such, he argues, it was inappropriate for the sentencing judge to adopt a sentence by reference to the maximum sentence, considering this was an individual case of reckless driving.

[18] Mr Wood also contends that the sentencing judge placed too much emphasis on the cases of Henderson v Police and R v Birch.
[19] Finally, Mr Wood argues that the appellant’s mental health issues warranted a discount.

Respondent’s submissions

[20] Ms Tahana, for the Crown, contends that a three-year starting point was appropriate given the aggravating factors of the offending, and that three years represents roughly 21 per cent of the maximum 14-year penalty.

[21] Moreover, when compared to other cases of careless or reckless driving causing injury, or assault with a weapon (in circumstances where the car is the weapon), the starting point was appropriate.

[22] Finally, the Crown contended that no discount should have been applied in respect of the appellant’s mental health, but had not had the benefit of seeing the s 38 report and accepted that changed the position.

Appeal against sentence

Approach to appeal (CPA)

[23] Section 250(2) of the Criminal Procedure Act 2011 states that the Court must allow the appeal if satisfied that:

(a) for any reason, there is an error in the sentence imposed on conviction; and

(b) a different sentence should be imposed.

[24] In any other case, the Court must dismiss the appeal.²

[25] The Court of Appeal in Tutakangahau v R has confirmed that s 250(2) was not intended to change the previous approach taken by the courts under the Summary Proceedings Act 1957.³ Further, despite s 250 making no express reference to

² Criminal Procedure Act 2011, s 250(3).

³ Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]- [27].

“manifestly excessive”, this principle is “well-engrained” in the Court’s approach to sentence appeals.⁴

[26] The approach taken under the former Summary Proceedings Act was set out in

R v Shipton:⁵

(a) There must be an error vitiating the lower Court’s original sentencing discretion: the appeal must proceed on an “error principle”.

(b) To establish an error in sentencing it must be shown that the Judge in the lower Court made an error whether intrinsically or as a result of additional material submitted to the appeal Court.

(c) It is only if an error of that character is involved that the appeal Court should re-exercise the sentencing discretion.

[27] The High Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles. Whether a sentence is manifestly excessive is to be examined in terms of the sentence given, rather than the process by which the sentence is reached.⁶

Analysis

Starting point compared to other provisions and case law

[28] Section 270 provides:

270 Endangering transport

(1) Every one is liable to imprisonment for a term not exceeding 14 years who, with intent to cause danger to persons or property or with reckless disregard for the safety of persons or property,—

(a) interferes with any transport facility; or

(b) does anything to any transport facility that is likely to cause danger to persons or property.

⁴ At [33], [35].

⁵ R v Shipton [2006] NZCA 530; [2007] 2 NZLR 218 (CA) at [138]- [140].

⁶ Ripia v R [2011] NZCA 101 at [15].

(2) For the purposes of this section, transport facility means any vehicle, ship, or aircraft, and any property used in connection with the transportation of persons or goods; and includes equipment of any kind used in navigation or for the guidance of any vehicle, ship, or aircraft.


[29] The sentencing Judge noted that there was very little guidance from the higher courts on sentencing under s 270 of the Act. I have been unable to locate any sentencing decisions at all under s 270 of the Act, and counsel for both the Crown and the defence were not able to either. Both counsel said that the provision is a rather strange one.

[30] I consider that the sentencing Judge acted appropriately in determining the starting point for the present offending by reference to the maximum sentence of 14 years available under the provision and choosing a starting point of only slightly over one-fifth of the maximum. I accept the appellant’s contention that the maximum sentence is not intended for individual examples of reckless driving, instead sentences of such length would be more appropriate in cases of large-scale disruption to transport facilities. However, I do not consider that the present offending could be described as mere reckless driving. Considering the high degree of reckless disregard for the safety of other people, significant property loss, the impact to the victims and a total lack of concern for the wider public, I do not consider that a three-year starting point was outside the range available to the sentencing Judge simply on the face of the section itself.

[31] I agree that in the absence of any sentencing decisions under s 270, some regard should be had to equivalent provisions.

[32] The appellant refers to the old s 203 of the Act, being the predecessor to s 270, which provided:

203 Endangering transport

(1) Every one is liable to imprisonment for a term not exceeding 14 years who, with intent to injure or to endanger the safety of any person,—

...

(d) Causes anything to come in contact with any vehicle, ship, or aircraft;

...

(2) Every one is liable to imprisonment for a term not exceeding 5 years who, intentionally and in a manner likely to injure or endanger the safety of any person, does any of the acts referred to in subsection (1) of this section.

[33] Arguably, offending caught under s 270 of the Act reflects greater culpability than offending under s 203(2), as under the latter provision there is no requirement for mens rea in relation to injuring or endangering the safety of any person. Mens rea is required only in relation to an intention to perform the relevant act. I have looked at cases under s 203(2)⁷ and do not gain any assistance from them, as the offending pales in comparison to the offending of Mr Waenga, who was content not just to end his own life, but to risk taking the lives of innocent persons in doing so. I note that Mr Wood did not refer me to any actual cases under s 203(2).

[34] Secondly, Mr Wood says the Judge should have considered the sliding scale between charges of reckless driving, where the maximum sentence is three months’ imprisonment; a charge of reckless driving causing injury, where the maximum sentence is five years’ imprisonment, and a charge of reckless driving causing death, where the maximum penalty is 10 years’ imprisonment.

[35] He says that, while he accepts that this offence might involve something more than reckless driving, it did not involve injury (other than to Mr Waenga himself). He says therefore that a fair comparison would be with the charge of reckless driving causing injury, which has a maximum sentence of five years’ imprisonment (as did s 203(2)), and compared to that maximum, a three-year starting point is out of kilter.

[36] The difficulty with this is, as I have already said, I do not consider that the present offending could be described as mere reckless driving and I do not consider that a fair analogy can be drawn between the present charge and the charge of reckless driving causing injury. Under ss 36 and 36AA of the Land Transport Act 1998, while injury or death are necessary outcomes, they need not be intended, or foreseen and recklessly disregarded, by the defendant in order to secure a conviction. The essence

7. See R v Clark CA442/97, 20 November 1997; Solicitor General v Bickerton HC Auckland A34/01, 10 April 2001; and Metcalf v Police HC Hamilton CRI 2003-419-56, 17 December 2003.

of the offending under s 270 of the Act is that the offender either intended to put the lives of others at risk, or showed reckless disregard for their safety when interfering with a transport facility. In none of the cases cited to me under the Land Transport Act 1998 has it been suggested that the defendant was anything other than reckless with regard to the operation of their motor vehicle, as opposed to consciously risking the safety of other persons. I consider that the mens rea element under s 270 of the Act is an important feature of the offence, which Parliament has clearly indicated is deserving of a longer sentence.

[37] At the end of the day, the problem for the appellant is that he pleaded guilty to a charge under s 270 of the Act, not to some other charge.

[38] The appellant’s last contention in terms of comparisons as to the starting point, was that the Judge placed too much emphasis on the decisions of Henderson v Police⁸ and R v Birch.⁹

[39] Birch is not particularly helpful. The offending related to the unlawful taking of a vehicle, which was then driven recklessly by the offender resulting in a head-on collision. The unlawful taking was adopted as the lead offence, to which the reckless driving was treated as an aggravating factor, so its precedent value in ascertaining a starting point for a driving offence is limited.

[40] Henderson was a sentencing decision in relation to dangerous driving causing injury under s 36 of the Land Transport Act 1998. Mr Henderson was intoxicated and fleeing from the police at high speed. He attempted to overtake a vehicle, but aborted when faced with oncoming traffic. When he pulled back to the left-hand side of the road, he struck the rear of the other vehicle, causing it to spin out of control and crash. The victims suffered moderate injuries. On appeal, a starting point of two years and nine months’ imprisonment was adopted.¹⁰

[41] While again, I have difficulty with a comparison with Henderson given the very different elements of the charge, taking a helicopter view of the facts, I consider

⁸ Henderson v Police [2017] NZHC 2219.

⁹ R v Birch [2017] NZDC 6880.

¹⁰ At [50]-[51].

the levels of culpability are broadly comparable and the starting point adopted in that case was very similar to the starting point in the present case.

[42] I do not consider that the sentencing Judge placed undue weight on Birch or Henderson. He understood that his task was to determine a sentence for a different offence and merely cross-checked the sentence he reached against those two cases. The Judge explicitly noted this when he stated that he did not consider the sentencing approach under the Land Transport Act 1998 to be directly comparable to the present offence.¹¹

[43] I therefore do not agree that the starting point was too high based on this ground.

Mental health discount or effect on starting point

[44] Mr Wood argues for a reduction in sentence for the appellant’s mental health. He premised this on a discount for a personal mitigating factor, but the appeal proceeded more on the basis of effect on starting point.

[45] Having seen Dr Eggleston’s psychiatric report, which (for some reason) they had not previously, the Crown accept that a reduction in sentence would be justified if a causative link could be established between the appellant’s mental health and the offending, such that it reduced the appellant’s moral culpability. Ms Tahana agreed that such a link was arguable in this case.

[46] Court of Appeal authority provides that where a defendant’s mental health can be causatively linked to the offending, it may mitigate the culpability of the offender and thus justify a lower starting point than would otherwise be appropriate.¹² This is because sentencing has a moral base. Criminal liability and the sentence imposed is largely a response to an offender’s willed choice to offend.¹³ As such, where a mental disorder diminishes an offender’s capacity to make a willed choice, the sentencing

¹¹ Police v Waenga [2017] NZDC 22975 at [22].

¹² Shailer v R [2017] NZCA 38, [2017] NZLR 629 at [45]- [46].

¹³ I say “largely” because offences of strict and absolute liability are exceptions to this principle.

response should logically be influenced by the reduced moral culpability of the offender.¹⁴

[47] The psychiatric report, prepared by Dr Erin Eggleston, notes that in the month preceding its preparation Mr Waenga had been experiencing suicidal thoughts, and at the time of the report he could be classified as mildly depressed. Dr Eggleston is of the opinion that Mr Waenga’s behaviour closely aligns with a diagnosis of a borderline personality disorder.

[48] At the time of the offending, Dr Eggleston is of the opinion that Mr Waenga would likely have met the threshold under the Mental Health Act for compulsory assessment and treatment. Dr Eggleston is of the opinion that since the offending he no longer presents such an acute risk to himself and others. Such evidence indicates that, while Mr Waenga may only present as mildly depressed now, it is open to this Court to find that his depressed mental state at the time of the offending was more severe.

[49] Mr Waenga’s offending followed a suicide attempt by his partner the night before. At the time of the offending, Mr Waenga was not under the influence of drugs or alcohol. He described his emotional state as angry, sad, betrayed (by his partner), depressed and left out. He wanted to die and planned to kill himself.

[50] Given the above, I am prepared to find that Mr Waenga was, at the very least, labouring under moderate, if not severe depression at the time of his offending, that this depressive disorder was causatively linked to his offending and that it therefore reduces his culpability for that offending.

[51] The argument before the Judge seems to have focused on whether a deduction should be made as a mitigating factor relevant to the offender. The Judge did not consider Mr Waenga’s mental health when assessing his culpability and establishing a starting point. I am therefore of the opinion that the Judge has proceeded on the basis of an error. While the mental health of the offender may be taken into account as a mitigating factor relevant to the offender in circumstances where a prison sentence will result in a disproportionately harsh punishment,¹⁵ in the present case I am of the

¹⁴ Nelson v R [2014] NZCA 121 at [22].

¹⁵ Shailer v R [2017] NZCA 38, [2017] NZLR 629 at [45].

opinion that Mr Waenga’s mental health was clearly more relevant to his culpability at the time of the offending. (I agree with the Judge that Mr Waenga’s mental health is probably not a mitigating factor, given the substantially changed circumstances and apparent improvement in his mental health.)

[52] Absent a finding that Mr Waenga was labouring under moderate to severe depression, I would have adopted a three-year starting point, just as the sentencing Judge did. However, in light of the above, I would adjust that by just over 20 per cent, or eight months, to arrive at a starting point of two years and four months’ imprisonment.

[53] I reach this position by reference to the relevant case law.

[54] In E (CA689/10) v R a deduction of 20 to 25 percent was granted to the appellant who had been convicted and sentenced for the manslaughter of her baby, after leaving the infant unattended in the bath for 15 minutes.¹⁶ The Court of Appeal held that such a deduction was justified because of the major depressive disorder she was suffering under at the time, which meant her judgment was significantly adversely affected.¹⁷
[55] In R v Edwards, the Court of Appeal, in upholding a 12 per cent discount granted in the High Court, opined that they would have been inclined to grant a deduction of 15 to 20 per cent, in light of the appellant’s schizophrenia, which played a role in the offending, but was not the only relevant feature.¹⁸
[56] I consider that Mr Waenga’s offending was largely, if not wholly influenced by the depressive state under which he was labouring at the time. The very essence of Mr Waenga’s offending, driving his vehicle into oncoming traffic in an attempt to end his own life and perhaps the lives of those others, is indicative that his mental wellbeing was in a dire state and was exerting a significant influence over his behaviour.

¹⁶ E (CA689/10) v R [2010] NZCA 13.

¹⁷ At [88].

¹⁸ R v Edwards [2007] NZCA 382 at [26].

[57] The sentence I would have imposed, adopting a starting point of two years and four months’ imprisonment, adding an uplift of three months for offending while subject to sentence and Mr Waenga’s previous convictions (which the appellant expressly did not contest), and granting a deduction of 25 per cent for a guilty plea, would be one year and 11 months’ imprisonment.

[58] In light of the above, I consider that a sentence of two years and five months as imposed by the sentencing Judge is therefore manifestly excessive and a different sentence should be imposed.

Result

[59] The appeal is allowed.

[60] The sentence of two years and five months’ imprisonment on the charge of endangering transport is quashed.

[61] In substitution, a sentence of one year and 11 months’ imprisonment is imposed on the charge of endangering transport. This sentence is still to be served concurrently with the sentence of two months’ imprisonment for reckless driving.

[62] The sentences of reparation and disqualification from driving stand.

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Hinton J