Police v Brown [1999] CKCA 2; CA 1.1999 (10 August 1999)

IN THE COURT OF APPEAL OF THE COOK ISLANDS
HELD AT AUCKLAND

CA 1/99

BETWEEN

THE POLICE
Appellant

AND

ROBERT BROWN
Respondent

Hearing: 10 August 1999

Coram: The Hon Sir Graham Speight JA (Presiding)
The Hon Sir Ian Barker JA
His Honour Judge AG McHugh

Counsel: Mr. Woolford for Appellant
Mr. Mitchell for Respondent

Judgment: 10 August 1999

(ORAL) JUDGMENT OF THE COURT DELIVERED
BY THE HON SIR IAN BARKER JA

This is an appeal by the Crown against a sentence imposed on the respondent in the High Court at Rarotonga on the 30^th March 1999. The appeal is brought with the leave of the Court (the trail Judge) given on 12^th April 1999.

Early in the morning of Sunday 28^th June 1998, a motor vehicle driven by the respondent collided with a motor cycle driven by the deceased, Mr. Fotuga. At the time of the accident the respondent had been drinking. As a result of the accident he was charged, pursuant to s 25 (2) of the Transport Act 1966, with "driving a motor vehicle while under the influence of drinking or drugs to such an extent as to be incapable of having proper control of a vehicle and by an act or omission, caused the death of Mr. Fotuga". The respondent pleaded not guilty but was convicted by a jury. Mr. Mitchell rightly points out this Court does not have the notes of evidence. Nevertheless, the Court can take cognizance of the fact the jury found the offence proved, namely that he was driving a motor vehicle while under the influence of drink to such an extent to be incapable of having proper control of it.

The learned Judge noted that the respondent showed no remorse; he rightly pointed out that it was surprising that the respondent still proclaimed his innocence and denied that he was in any guilty for the tragic loss of life. The Judge took account of a probation report which outline the plight of the deceased's widow and 13 year old child. He noted that the widow had expressed the view that the respondent not be sent to prison but believed hers and her child's loss would be better satisfied, if it were possible, for the respondent to pay something towards the child's maintenance, upkeep and education.

The Judge referred to a precedence which indicated that as far back as 20 years ago (with only one exception) anyone charged with this offence had been imprisoned. The Judge noted that the people of Rarotonga should be aware of the consequences of punishment that resulted from similar activities to that in which the respondent engaged on this night. He also noted that if one were to deviate from established precedent, it might be said that those more well-off might be able to 'buy' their way out of prison. As against that the Judge noted his responsibilities to the wishes of the widow and the possibility of securing her some kind of financial support for her loss. He noted (at p4 of his judgment):

"If I send you to jail then I am in a way defaulting on what I believe are responsibilities to the innocent widow and innocent child."

With respect to the learned Judge, whilst the impact of the offending on the victim is very important, a greater consideration is the effect on the community, particularly in relation to the offence of drunken driving causing death. There is a necessity to signal to the community that the Courts will not tolerate this behaviour.

The sentence imposed was

(a) an immediate fine of $1,000;

(b) payment to the widow (within 2 months) of $10,000 and a further $10,000 to be paid, 12 months from the date of sentence, namely 30 March 1999, into a trust account to be administered and invested by the Registrar of the High Court and to be available for the maintenance, education and advancement of the child prior to her reaching the age of 21, with the Registrar being able to seek assistance and direction from any Judge of the High Court;

(c) two year's imprisonment, suspended;

(d) disqualification from driving for 2 years

We have misgivings as to the jurisdiction of the Judge to make the monetary compensation order. It would have been more appropriate for such an order to have been made under the Deaths by Accident Compensation Act legislation in the Cook Islands. The Judge purported to sentence the respondent to 2 years imprisonment but the sentence was to suspend provided the payments, as indicated above, were made.

Counsel acknowledge there was no jurisdiction for the Judge to have imposed a suspended sentence. This kind of response to criminal behaviour has only recently been introduced into New Zealand. It is not, at the moment, part of the Cook Island's criminal law. Nor could what the Judge did be construed as ordering the respondent to come up for the sentence if called upon to do so. It was just not possible for the Judge to have passed a sentence of a suspended term of imprisonment. One would have thought that the Crown would have applied, under s115 of the Criminal Procedure Act to have this error corrected. However, no application was made by the Crown to the Judge under that section to pass a sentence allowed by law.
The Crown now submits that the sentence was manifestly inadequate and must be increased. Mr. Woolford, of course, acknowledges on a Crown appeal against sentence that the level of sentence imposed, if appeal is successful, is not normally so high as it might have been had the proper sentence been imposed at first instance. Counsel for the Crown emphasized the behaviour of the respondent in driving whilst under the influence of liquor. He emphasized the lack of remorse – as evidenced by the not guilty plea and the statement made by the Judge as recorded in his sentencing notes.

Mr Mitchell, for the respondent, stressed:

1. the desire of the widow that the appellant not be imprisoned;

2. the fact it is now more than a year since the respondent's arrest and some months after the sentencing. It would be unfair that he might now be summonsed to serve a term of imprisonment;

3. the sum of money ordered to be paid by the respondent to the widow is not insignificant sum in Cook Islands terms. The appellant, therefore, would not in these circumstances be seen to have bought his way out of prison.

Counsel suggested that a substituted sentence might include a period of probation which Mr. Mitchell submitted, in terms of the legislation, would have the same effect as a suspended sentence: if terms of probation were breached, then the offender could come up for sentence again on the original charge. Counsel also suggested a sentence of community service as well as a term of probation and that the money still be paid to the widow and the child as indicated. He notes there is no provision in the Cook Islands criminal justice legislation for monetary compensation to victim as distinct from reparation for property damage. We note from the file, there was at some stage a request by the prosecution for the reparation order in respect of the deceased's motor cycle but no order was made by the Judge and it would not be appropriate to consider that the respondent one now.

Mr. Mitchell also referred to other cases. He pointed out, quite rightly, that sentences in New Zealand - which are fairly high for this sort of offending – were not appropriate in the Cook Islands and are not necessary to be followed in their intensity in the Cook Islands' jurisdiction. However, Mr. Woolford referred to the decision of the same Judge in the sentencing of a man called Ben in 1998 where he received a sentence of two year's imprisonment.

Giving this matter our earnest consideration, we consider that there is no option but to imprison this respondent for what was a bad piece of driving which claimed a life- a bad piece of driving exacerbated by his drunken state. Although the details of that driving are not before this Court, we must assume the correctness of the jury's finding that he was incapable of driving because of his intake of alcohol. We think a sentence of 2 years imprisonment, if it had been imposed at the time, would have been appropriate. However, we do not consider that the respondent should serve a term of that length for the following reasons:

1. the respondent was erroneously sentenced to a suspended sentence at the time;

2. the Crown did not exercise its right, and indeed its duty, to have that erroneous sentence corrected;

3. the forgiving attitude of the widow;

4. the fact the respondent has paid the $ 10,000 to the widow as ordered by the Court;

5. the length of time since the respondent's arrest;

6. the fact that this is a Crown appeal

Accordingly, instead of the sentence that was imposed by the learned Judge, we impose a sentence of 9 months imprisonment followed by one year's probation, a special term of the probation, under s8 (c) of the Criminal Justice Act, is to be that the respondent pay the sum of $20,000 by way of damages or compensation for the loss suffered by the widow and her daughter. That sum will include what he has already paid namely, the $10,000. The other $10,000, when paid, is to be held by the Registrar of the High Court as directed by the Judge. In addition, the fine of $1,000 remains. This order is to lie in Court until 10am on Friday 13^th August, Cook Islands time.

We cannot emphasize again the need to sound a signal to the public that irresponsible drunken driving likely to cause death or injury to innocent persons will be treated seriously. The Court must show its denunciation of such conduct.

ADDENDUM:

The disqualification order must stand.