IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY CRI [2013] NZHC 2357 THE QUEEN FABIAN JESSIE MIKA

Transcription

1 IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY CRI [2013] NZHC 2357 THE QUEEN v Hearing: 10 September 2013 FABIAN JESSIE MIKA Appearances: P J Shamy and MAJ Elliott for Crown J R Rapley for Prisoner Judgment: 10 September 2013 SENTENCE OF D GENDALL J Introduction [1] Fabian Jessie Mika (Mr Mika), you appear for sentence having pleaded guilty in the District Court to the following charges: (a) manslaughter under ss 160(2)(a), 171 and 177 of the Crimes Act 1961 for which the maximum penalty is life imprisonment; (b) being an unlicensed driver failed to comply with the prohibition under s 52(1)(c) of the Land Transport Act 1998 for which the maximum penalty is a $10,000 fine; (c) failing to stop when followed by red/blue flashing lights under s 52(1)(c) of the Land Transport Act 1998 for which the maximum penalty is a $10,000 fine; R v MIKA [2013] NZHC 2357 [10 September 2013]

2 (d) failing to stop or ascertain injury or death after a crash under s 36(1)(c) of the Land Transport Act 1968 for which the maximum penalty is five years imprisonment, a $20,000 fine, and one year disqualification. Background facts [2] In the early hours of 22 February 2013 Mr Mika was the driver of a Toyota Hilux Surf four wheel drive station wagon. [3] This vehicle had been reported stolen on 7 February On 21 February 2013, Sergeant Woodbridge told Mr Mika that the vehicle was stolen, while speaking to him in relation to another matter. [4] Ethan Takitimu-McKenzie was in the vehicle seated behind the defendant. Dylan Takitimu-McKenzie was in the back seat next to Ethan and Keith Ferguson was in the front passenger seat at the operative time. [5] A police officer observed the vehicle speeding along New Brighton Road and activated red and blue flashing lights and sounded the siren. Mr Mika accelerated. He reached speeds of up to 90 kilometres per hour in an area in which the speed limit is 50 kilometres per hour. On some sections of New Brighton Road, Locksley Avenue and Gayhurst Road, the speed limit is reduced to 30 kilometres per hour due to earthquake damage to the road surface. [6] Once Mr Mika turned on to Linwood Avenue heading towards Aldwins Road, he crossed to the opposing right hand lane and drove at speeds of up to 100 kilometres per hour on the wrong side of the road down the length of Linwood Avenue. He then headed north east on Dyers Road, towards Breezes Road and he reached speeds of well over 100 kilometres per hour. [7] At a section of road works near the intersection of Dyers Road and Breezes Road, he was driving at a speed which caused him to lose control, hitting road barriers, following which the vehicle rolled. According to a Police Crash

3 Investigation Report, the vehicle was travelling at approximately 106 kilometres per hour when it entered an S bend through these road works. [8] Mr Mika left the vehicle and ran from the scene after the accident without checking or enquiring on the condition of any of his passengers. [9] Ethan Takitimu-McKenzie was killed as a result of the accident and was located approximately 20 metres away from the wreckage. [10] Mr Mika accepts that he was driving the Hilux and failed to stop when requested to do so by a police officer. He accepts he was pursued by a police car and sped in an attempt to escape. He accepts that he reached speeds of up to 90 kilometres per hour in a 50 kilometre per hour zone, which for brief periods had been reduced to 30 kilometres per hour due to road works. [11] Mr Mika accepts that, while attempting to evade police for a period, he drove on the wrong side of the road before returning to the correct side of the road. He accepts that there was an accident where he lost control of the vehicle and the vehicle crashed and that he then fled the scene. [12] The distance travelled by Mr Mika during the pursuit was 9.3 kilometres and the time he was pursued was three minutes, 40 seconds. The total time from start of pursuit to the crash was five minutes and 27 seconds. [13] Mr Mika does not hold a driver s licence. On 22 October 2004 he was forbidden from driving until he obtained a licence. Between that date and the date of the current offending, he has been convicted of driving while forbidden or disqualified 11 times. He also has convictions for careless driving, reckless driving and for refusing an officer s request for a blood specimen. [14] It is alleged by the Crown that Mr Mika was told by the passengers to stop and that he ignored their pleas and continued driving. It is also alleged, that prior to driving, Mr Mika had been drinking alcohol and smoking cannabis. Finally, it is alleged that during the last part of the journey he drove at speeds of up to

4 150 kilometres per hour. These allegations are not accepted by Mr Mika and were the subject of a defended sentencing hearing before me today. [15] These matters are relevant here because they amount to additional aggravating factors. [16] On those particular matters, I heard evidence today from Keith Ferguson and Dylan Takitimu-McKenzie, both of whom were passengers in the Hilux vehicle with Mr Mika and the victim on the night in question. This morning, I gave my decisions on those disputed facts matters and I now set out my brief reasons for those decisions. [17] There were three disputed fact issues before me. The first related to whether or not Mr Mika had consumed alcohol or drugs prior to getting into the vehicle. It is clear the onus is on the Crown to prove that this occurred beyond reasonable doubt here. From both witnesses who gave evidence this morning I am satisfied it is quite clear that Mr Mika was affected by alcohol and drugs to a significant extent prior to the pursuit. It was suggested that the witnesses themselves may have been significantly affected by alcohol and drugs, such that their evidence before me today should be in some way tainted. On this aspect, however, as I understand the position, Dylan Takitimu-McKenzie was breath tested after the incident and was found not to be over the allowable limit. [18] The evidence before me of Dylan Takitimu-McKenzie was that Mr Mika was drunk but not overly intoxicated prior to getting into the vehicle. [19] The evidence of Keith Ferguson was specifically that Mr Mika was wasted, having drunk significant quantities of home brew and also taken cannabis. [20] Further, I am satisfied here that this Court is able to infer that a reason why Mr Mika ran off after the accident in question was to avoid his being breath tested. [21] The further evidence of Mr Ferguson before the Court was that he got into the car with Mr Mika rather than to allow his brother who wanted to do so. This was to

5 protect his brother, which indicates a concern over the condition of Mr Mika at the time. [22] Weighing up all these matters, I am satisfied that the Crown has proved to the requisite standard that Mr Mika was affected by alcohol and drugs at the appropriate time. [23] The second fact in dispute related to the question whether the other occupants of the car at the time were telling Mr Mika to stop and he refused to do so during the police pursuit. [24] Again, I am satisfied that the Crown has met the necessary standard of proving beyond reasonable doubt that this was the case. The clear evidence before me of both Mr Ferguson and Mr Takitimu-McKenzie this morning was that both they, and indeed the victim himself, on a number of occasions requested Mr Mika to stop but that his response was I will get you out of this. Mr Mika refused to stop despite what were clear protests from his passengers at the operative times. [25] The last factual issue in dispute related to the Crown contention that Mr Mika drove the vehicle at speeds of up to 150 kilometres per hour. [26] The only effective evidence before the Court on this aspect appears to have come from the witness, Mr Takitimu-McKenzie, this morning, when he said that the vehicle hit a bridge at well over 100 kilometres per hour, and jumped into the air some two to three metres. In his view, this indicated that the speed at which it was travelling was well over 100 kilometres per hour. It was not suggested, however, that the vehicle was travelling at something approaching 150 kilometres per hour. [27] For these reasons, I find that the Crown have been unable to establish beyond reasonable doubt that the vehicle in fact drove at speeds up to 150 kilometres per hour at the operative time. [28] That disposes of the disputed facts hearing before me.

6 Victim impact statements [29] I now turn to the victim impact statements which are before the Court. I have read the two victim impact statements from the mother and brother of the victim, Ethan, the young man who was killed that night. They make tragic reading. There is a clear void left in this family and all the worse, so far as you are concerned Mr Mika, these people are known to you. I have not, and deliberately so, repeated the details of the victim impact statements, but I do assure family members involved that I have read them with some care and I am obliged by the law to reflect in my sentencing the plight which the death of this young person has brought to you. And I thank you for what must have been a difficult job in putting together those victim impact statements for me. Purposes and principles of sentencing [30] The purposes and principles of sentencing are set out in ss 7 and 8 of the Sentencing Act Accountability, denunciation and deterrence are particularly relevant in my view in this case. [31] The Court is required to take into account the gravity of the offending, including the degree of culpability of the offender, to consider the general desirability of consistency with appropriate sentencing levels, and to impose the least restrictive outcome that is appropriate in the circumstances. Approach to sentencing [32] The proper approach to sentencing is set out by the Court of Appeal in R v Clifford. 1 This requires the Court to identify a starting point based on an assessment of the criminality of the offending and to address personal aggravating and mitigating factors before assessing the appropriate credit an offender should receive for his guilty plea. The charges [33] The manslaughter charge is the lead offence here. 1 R v Clifford [2011] NZCA 360.

7 [34] The other three charges to which Mr Mika has pleaded guilty, as I see it, can all be treated as aggravating features of the manslaughter charge and taken into account in that manner. [35] The Court of Appeal dealt with sentencing for motor manslaughter cases in R v Skerrett. 2 [36] The Court referred to R v Boswell 3 which listed aggravating factors in this type of case, including: (a) consumption of alcohol or drugs; (b) racing, competitive driving on the highway, grossly excessive speed, showing off; (c) the disregard by the driver of warnings from his passengers; (d) a persistent and deliberate course of very bad driving; (e) other offences committed at the same time and related offences such as driving while disqualified or without ever having had a licence; (f) previous convictions involving bad driving or offences involving the consumption of excessive liquor before driving; (g) the incidence of death as a result of the reckless driving; (h) behaviour at the time of the offence; for example, a failure to stop or endeavouring, at further risk to the victim, to escape; and (i) causing death in the course of reckless driving carried out in attempting to avoid detention or apprehension. 2 3 R v Skerrett 9 December 1986, Court of Appeal. R v Boswell [1984] 79 Crim App R277 at [282].

8 [37] Mitigating factors were said to include: (a) the fact that the driving is a one off piece of driving, a momentary reckless error of judgment; (b) the existence of a good driving record; (c) a plea of guilty or genuine remorse; and (d) where the victim was either a close relative or close friend of the defendant and the consequent emotional shock is likely to be great. [38] On the evidence before the Court, it is contended by the Crown and I am satisfied that Mr Mika consumed alcohol or drugs and that he disregarded warnings from the passengers. It follows therefore that all of the aggravating features identified by the Court of Appeal in R v Skerrett are present in this case. [39] In R v Whiu 4 the defendant pleaded guilty to motor manslaughter. The Court of Appeal noted a hardening of the Court s attitude to this type of offending since R v Skerrett. The Court also recorded that it did not intend to deliver a guideline judgment. [40] The aggravating features in R v Whiu were the duration of the driving (nine kilometres), the number of breaches of road rules (including excessive speed) in peak hour traffic, and the high degree of intoxication. In addition, the defendant had previous convictions. The Court of Appeal said that a starting point in the region of nine years was justified, with an uplift of one year for the previous convictions. [41] In R v Reihana 5 Mr Reihana pleaded guilty to two manslaughter charges. A third passenger was injured. The matter was taken to trial. A guilty plea was entered at the close of the Crown case. Mr Reihana had been drinking, was intoxicated and unlicensed. There was driving at high speeds of 100 kilometres per hour, twice the legal limit. Passengers told him to slow down. Mr Reihana overtook two cars and 4 5 R v Whiu [2007] NZCA 591. R v Reihana (unreported, 9/12/1986, CA 236/86).

9 crashed into another on-coming car and injured that driver. assessed as having a medium risk of re-offending. Mr Reihana was [42] The Court took a starting point of eight and a half years imprisonment. The Court reduced the starting point by one year for his age as a 20 year old and his remorse. There was no discount for the late guilty plea. A final sentence of seven and a half years was imposed with a minimum period of imprisonment of three and a half years. [43] In R v Brook 6 Mr Brook was charged with manslaughter, reckless driving causing injury and failing to stop. Mr Brook pleaded guilty after committal. He was on a restricted licence and should not have been driving. He had been drinking. There were five passengers in his car. There was a police pursuit and the passengers asked him to stop. He crashed and killed one passenger and seriously injured others. He had a previous EBA conviction. [44] The High Court started at seven years imprisonment and imposed a final sentence of six years. The Court of Appeal agreed that it was appropriate to increase the starting point because of his previous EBA conviction. The sentence was reduced however because the uplift was too great for one previous conviction which was of a different order of seriousness to the charge on which he was being sentenced. A final sentence of five and a half years imprisonment was imposed. [45] In R v Hawthorn 7 Mr Hawthorn was charged with manslaughter. It went to trial. Mr Hawthorn was in breach of his conditions of bail and drove at excessive speed of 168 kilometres per hour during peak driving time where there were many users on the road. There was reckless overtaking of other cars. He drove at 100 kilometres per hour in a 50 kilometres per hour zone. There was a police pursuit and he crashed into a power pole, killing his passenger. He had been drinking alcohol and had no licence to drive. 6 7 R v Brook [2010] NZCA 13. R v Hawthorn HC Wellington 28/5/2004, McKenzie J.

10 [46] The High Court described his previous conviction history as an appalling record. Mr Hawthorn had convictions for EBA causing death, careless driving causing death (2), excess blood alcohol (8), driving under the influence (1), dangerous driving (3), driving while disqualified (10), and refusing to accompany (2). The previous EBA causing death was in very similar circumstances. The High Court noted that this was the fourth death he had caused on the road. There was no remorse and Mr Hawthorn was a high risk of re-offending. [47] The Court took a starting point of 10 years imprisonment. A final sentence of 10 years was imposed with a minimum of six years imprisonment. He was disqualified from driving for 10 years. [48] And, finally in R v Tulafano 8 Mr Tulafano pleaded guilty to manslaughter (2), and dangerous driving causing injury (2). Mr Tulafano was a disqualified driver. There was a police chase over a long period of time driving at excessive speed which resulted in a crash. Mr Tulafano fled the scene. He had previous driving convictions. [49] The High Court took a starting point of nine years imprisonment. This was increased to 10 years because Mr Tulafano was driving while disqualified. Credit for a guilty plea was given which resulted in a final sentence of six and a half years imprisonment and a minimum period of imprisonment of three years. Analysis of the present offending the aggravating and mitigating features [50] The aggravating features of your offending, Mr Mika, in the present case are: (a) excessive speed; (b) prolonged and persistent course of very bad driving; (c) causing death in the course of dangerous driving in an attempt to avoid apprehension; 8 R v Tulafano HC Auckland 8 February 2011, Priestly J.

11 (d) disregarding warnings from fellow passengers; (e) consumption of drugs and/or alcohol; and (f) failing to stop and endeavouring at further risk to the victim to escape. Starting point [51] The cases I have noted earlier have shown a range of starting points. In Reihana eight and a half years was the starting point but in that case two people were killed. Seven years was adopted in Brook and in that case a passenger was killed and another was injured. A starting point of 10 years was adopted in Hawthorn. It is suggested by counsel for Mr Mika that in Hawthorn the starting point included an appalling record of four deaths due to his driving. In Tulafano a starting point of nine years was adopted where two people were killed and two people were injured. [52] The Crown submits that a starting point of at least nine years imprisonment with an uplift of one year for previous convictions, that is 10 years total, should be adopted here to reflect the seriousness of this type of offending. Mr Rapley, counsel for Mr Mika, by way of contrast contends for a starting point of five to six years imprisonment. [53] I have considered all those sentences I have noted above imposed in a number of other manslaughter cases and I have also considered other cases which were referred to me by counsel, and the aggravating features of the offending I have outlined above. Having regard to all of these matters I consider that an appropriate starting point here is eight years imprisonment with an uplift of one year for Mr Mika s previous convictions. The total starting point here is therefore to be nine years imprisonment. Mitigating factors [54] Mr Mika pleaded guilty before the committal and is entitled to a discount for his guilty plea. A discount of up to 25% can be allowed for a guilty plea.

12 [55] In Hessell v R 9 the Supreme Court started at [74]: But, as we have emphasised, the credit that is given must reflect all of the circumstances in which the plea is entered, including whether it is truly to be regarded as an early or late plea and the strength of the prosecution case. Consideration of all of the relevant circumstances will identify the extent of the true mitigatory effect of the plea. [56] In this case Mr Mika pleaded guilty at a relatively early stage. However, it is submitted that the prosecution case is strong according to the Crown. In addition, the two passengers in the car were required to give evidence at the disputed facts hearing today. [57] It is said on his behalf that Mr Mika accepts and acknowledges that he has taken a life. He says he did not intend for that to occur but he accepts it occurred because of his actions. He apparently knew the deceased. Mr Mika says he has been very distressed about these events and what he has done and that he is remorseful. Mr Mika has, to his credit, provided to the Court a copy of a detailed and lengthy letter of apology and remorse that he has provided to the parents and family of the deceased. As a result a modest reduction for remorse of three months is sought. Mr Mika s background [58] Mr Mika is aged 25. He has been appearing before the Courts regularly since The pre-sentence report before me states that he has been a member of the Mongrel Mob since Since 2007 Mr Mika has had a number of convictions for serious violence. Prison terms have become the norm. Previous driving offences, as I have noted above, have resulted in convictions being imposed and that must be of concern here. Mr Mika says, as I understand it, that he wants to make a lifestyle change and start a life away from his old life, especially for the sake of his partner and new born daughter. That is to be commended. [59] One other specific matter was raised before me today by Mr Rapley. This relates to Mr Mika s background and the relevance of what is described as social deprivation of Maori. On this, Mr Rapley suggests that a 10% discount for 9 Hessell v R [2011] 1 NZLR 607.

13 Mr Mika s background should be given here, related in particular to the relevance of the social deprivation he says Mr Mika has suffered as a Maori. [60] On this aspect Mr Shamy, for the Crown, noted that there appears to be no authority in New Zealand for this proposition. As best I can tell, this is so. [61] Notwithstanding this, before me Mr Rapley cited Canadian and Australian cases in support of his contention. As best I can tell from my consideration of these cases they do not state, however, that a specific sentencing discount should be given for culture, upbringing and related matters. [62] In this regard, in a decision of this Court given in 1999, Nishikata v Police, 10 the Judge noted: Equality before the law is fundamental to the administration of justice, but...the penalty must reflect matters of mitigation arising from an offender s background and which recognises the structure and operation of the society within which he lives and in particular the degree to which cultural or ethnic heritage predominates, in any problems of a cross-cultural nature. [63] I affirm those comments outlined in Nishikata. [64] Notwithstanding this, however, issues concerning culture, upbringing and related attributes of an offender in terms of the decision in R v Hessell are always matters to be considered in sentencing. There is no doubt that the personal circumstances of an offender are always taken into account with like offenders treated alike. [65] In my view, however, the law in this country is clear that no special discount for race, culture or ethnicity matters alone is appropriate. [66] And on this aspect I note that, before me in this case, no request was made to the Court under s 27 of the Sentencing Act 2002 to put before it any specific evidence related to the personal, family, whanau, community and cultural background of Mr Mika. 10 Nishikata v Police HC Wellington AP126-8/99

14 [67] It is clear that s 8 of the Sentencing Act 2002 allows for cultural issues to be taken into account particularly with regard to different and innovative ways of sentencing, especially it seems for younger offenders. But I am satisfied that in enacting this legislation, Parliament did not say that if you are a member of a particular race, culture or ethnic group, this means on its own that you are entitled to a sentencing discount. [68] Mr Mika, I am now going to ask if you would stand please. Conclusion [69] Mr Mika, dealing with all the charges which you appear for sentencing on, as I have said, I have fixed a starting point which I have noted already which is consistent with the totality of your offending and your overall culpability. I have already set out a description of your offending but clearly your dangerous driving, your failure to stop, the alcohol and/or drugs that were involved, your flight from the scene and your driving without a licence are all features which attach to your overall culpability for the manslaughter count. [70] As I have noted in my judgment, the appropriate starting point with the uplift I have noted above which reflects the totality of these matters is a starting point of nine years imprisonment. Given the strength of the Crown case, your early guilty plea, in my judgment, justifies a reduction I am satisfied of 20%. I intend to add to that a further 5% to reflect your remorse and the background factors I have noted above. So the total term of imprisonment which I intend to impose on you will be one of six years, nine months. [71] On the manslaughter charge as the lead charge, therefore, I sentence you to six years, nine months imprisonment. [72] On the charge of failing to ascertain injury, effectively decamping from the scene, that is a serious charge here, I consider a term of two years imprisonment is justified.

15 [73] Given that, as I understand it, you have no money, on the charges of failing to stop for blue and red flashing lights and driving as an unlicensed driver you are convicted and discharged. [74] The terms of imprisonment which I have imposed on you are to be served concurrently. First strike warning [75] Mr Mika, because of your conviction for manslaughter which is a serious violent offence under the Sentencing Act 2002 you are now subject to the Three Strikes Law. I am now going to give you a warning as to the consequences of another conviction for a serious violent offence. You will also be given a written warning outlining these consequences and it lists the serious violent offences. The consequences are as follows: (a) If you are convicted of any serious violent offences other than murder committed after this warning and if a Judge imposes a sentence of imprisonment then you will serve that sentence without parole or early release. (b) If you are convicted of murder, committed after this warning, then you must be sentenced to life imprisonment that will be served without parole unless it would be manifestly unjust. In that event the Judge must sentence you to a minimum term of imprisonment.... D Gendall J Solicitors: Raymond Donnelly & Co, Christchurch

16 James Rapley, Christchurch