Police v Loomes [2006] CKHC 17; Cr 306 307 & 237.2004 (31 March 2006)

IN THE HIGH COURT OF THE COOK ISLANDS
HELD AT RAROTONGA
(CRIMINAL DIVISION)

CR NOS: 306/06/04, 307/04, 237/04

POLICE

v

OWEN MATUNGA LOOMES
Defendant

Sergeant T Howard for Police
Mr N George for Defendant
Date of Sentence: 31 March 2006

SENTENCE OF NICHOLSON J

1. Owen Loomes, I found you guilty of two offences of dangerous driving, one causing death, the other bodily injury. You had previously pleaded guilty to the offence of driving with no current driver's license.

2. The facts of the offending are that there was a collision between a green motor cycle driven by you and a red motor cycle driven by Pokoroa Pauka at about 3.00 o'clock on the afternoon of Tuesday the 28^th of October 2003. The collision occurred on the main island perimeter road near the Kavera store. The weather was fine and sunny, visibility was excellent, the road was dry. The road had a tar sealed surface, was 6 metres wide and had a marked centre line. The area was governed by a 60 kilometre per hour speed limit. Pokoroa Pauka was 16 years of age and had a pillion passenger, Niki Smith who was 14 years of age. They were travelling south towards Titikaveka on their way home from school. You were 19 years of age, you were alone on the green motor cycle travelling north towards Arorangi.

3. The collision occurred after you had overtaken a motor cycle and a grey car driven by Ms Samuels and were overtaking another car, a green car driven by Mr Ataera. The collision took place on your incorrect side of the centre line and as a result all of the three people on the two motor cycles were injured and admitted to hospital. Niki Smith received a serious head injury from which she died 3 days later in Starship Hospital, Auckland. Pokoroa Pauka received lacerations to his body and was in hospital for 7 days. You received fractures to your limbs and you were transferred to Middlemore Hospital for further treatment.

4. At the conclusion of the trial I found that you had been driving dangerously and this caused the death of Niki Smith and caused bodily injury to Pokoroa Pauka. In my judgment a competent and experienced driver would not have attempted to overtake the green Hyundai car by crossing the centre line as you did, unless the driver had looked and satisfied himself that there was no oncoming vehicle which would be endangered by such overtaking.

5. You said in evidence that you looked ahead and saw only the bus which you thought was about 200 to 300 metres away. I found from the evidence that Mr Pauka's red motorcycle was between that bus and you at that stage. You said you did not see it until it was near Puai Wichman's house which was approximately 60 metres from the point of impact. You said it came out of nowhere. As I stated in giving my decision on liability, it didn't, it came along a straight section of road ahead of you at a speed of about 40 kilometres per hour and had been approaching you for a considerable time and was there to be seen for a considerable time. I found that a competent and experienced driver would have seen the red motor cycle much earlier than you did and would not have then attempted to overtake the green Hyundai.

6. I also found that there was fault on your part. I found that you were travelling at a speed which in the circumstances was much greater than a competent and experienced driver would have travelled. The people in the cars that you overtook gave estimates of your speed as being fast.

7. There was a further witness Mr Joel Pokura who actually observed the incident from virtually a stationary motor cycle as he was waiting to join traffic. And as he said in his evidence, he had stopped to give way to vehicle coming from the direction of town, he heard revving and he said a guy started to overtake at the Meeting House and came right in front of him. He was near the petrol station at the store. That guy was you.

8. You drove past at a very good speed in his words. He said you were flying. He said you were very fast. He said you were in a bent-over position, commonly called "the racing pose." He said he estimated your speed would have been over 70 kilometres an hour and he commented that the cars that you overtook or were overtaking weren't going fast.

9. In addition to that there was the evidence of an independent witness concerning your speed before the collision. That was the evidence from Mr Turoa Opo. He gave evidence that that day he was travelling on a motor cycle towards Vaima. That you overtook him. He said that his speed was 70-80 kph. He said that your speed was 80 or above. He said that he followed behind you but that you were going faster than him. He said that you overtook a car near the Rutaki Meeting House. Now that links in with the evidence of the Samuels who were driving the grey Nissan where they said that they were overtaken by a motor cycle near the Rutaki Meeting House bridge that day and indeed later when you passed them again, they were on the point of saying to each other "wasn't that the bike that overtook us before?"

10. The reason that you fell behind them and also why Mr Opo saw you again before the Kavera Store was that of the money that you had borrowed from Pacific Resort that afternoon, a $50.00 note had flown from your pocket and you stopped and went back and picked that up. So that all comes together and shows that over the course of that journey from Pacific Resort until the point of impact you had frequently travelled at excessive speed.

11. It was submitted in closing submissions at the conclusion of the trial and was repeated but in a much modified form today by Mr George that fault for the collision was not yours alone. It was submitted that fault rested with two other people, Mr Ataera the driver of the green car for accelerating as you attempted to pass him. As I stated in giving my judgment I find that that was not the case. The other evidence supported his statement that he was travelling quite slowly and had not accelerated. So he was not at fault for the collision.

12. It was suggested also that the driver of the red motor cycle, Pokoroa Pauka was partly at fault - first for not driving as close as practicable to the left hand side of the road and second, for driving while his attention was distracted. He accepted in cross-examination that he wasn't driving as far as practicable to the left hand side of the road and being a very non-assertive person he agreed that perhaps that if he had been, there mightn't have been the accident. However that is an unjustified criticism of him.

13. Since that assertion was made about driving as close as practicable to the left hand side of the road as I have been driving on the main road, I have kept an eye out to see how motor cyclists travel. In my limited experience, but this has been over some days, I found that most motor cyclists travel on the crown of the road closer to the middle line, than to the side of the road. The reason for that, I infer, is that the main road isn't curbed and channelled. The side of the road just goes off into gravel and the like and it is often in a very poor condition and very rough on its edges and to drive close to the edge of the tar seal could be inviting considerable danger, not to say discomfort. Also too there are no footpaths and so people walk on the side of the road and again to go close to the side of the road all the time would be unrealistic and most people don't. Provided other drivers keep to their side of the road, there is little in my view real risk of causing a collision.

14. So far as not keeping attention, it was suggested that it was because Mr Pauka's attention was distracted by greeting of friends outside Puai Wichmans; that that in some way contributed to the accident. That he wasn't paying full attention. I think the point was made in cross examination of Sergeant Matapo, that that is something that commonly happens when people drive. They don't focus every second of their driving upon looking straight ahead. They will look at various aspects, scenery, greeting people and the like, that's just a fact of life. In this case even if there had been, as Mr Pauka said, a second or two when his attention was diverted to the people on the side of the road, nevertheless before the accident he was looking ahead and he was in a situation where he realistically could not avoid the accident. He didn't say what evasive action he took. He can't remember. But he said he couldn't go right because that would have taken him right into the path of the oncoming cars on the opposite side of the road and you were confronting him on his left shoulder and indeed you said, which seems to be accepted, that you swerved to your right at the last moment trying to avoid the accident. So in my judgment there was no fault or contribution by Mr Pauka to the collision and the full fault for it rests with you.

15. As the result of the collision as is well known, unfortunately there was the death of Niki Smith and injury to Mr Pauka.

16. A Victim Impact statement was requested of Mr Smith and he has supplied a document, which he says has been very hard to write. He said we have been asked to provide a Victim Impact report and to be honest I am not really sure where to start. Niki was a beautiful girl, anything any parent could ever dream of. She occupied a huge piece of our family space which is now and forever empty. She was popular among her wide circle of friends, within the community and the many organizations she participated in. She had so much to offer. In the weeks and months that followed her tragic death we have looked everywhere, read everything we could, searched every avenue to try and make sense of why a beautiful, talented, passionate teenager could be killed while innocently on her way home from school. We have not found a rational answer. Niki lost her promising life, her brothers lost their only and treasured sister and we have lost our only daughter and future together.

17. He then goes on later to say "our dream was to watch her compete at the Commonwealth Games as an athlete, instead I ship my family out to Auckland, to spare them the ordeal of this trial. I cannot and will not attempt to quantify the emotional and physical toll this has taken on my family. Suffice to say, when I look at my wife, I see that a person really can suffer from a broken heart. She is devastated, robbed of her future with our only daughter, and I don't know if she will ever recover." Mr Smith referred to chartering the Air Ambulance for $100,000.00, the expenses, the flying of friends for support. He says, "because I'm in business some may think we could afford the material loss. In fact we are financially impoverished as a result. But I do not care about that, we would be content to live in a cave if it meant we could have Niki back." You obviously understand those sentiments and I accept that you are extremely remorseful for the harm that you have done.

18. The Probation Officer in the pre-sentence report describes your age of 22, your upbringing and support by your father and family, your coming back to Rarotonga and living with your step sister. People describe you as a good person with many qualities. You have no previous convictions. Mr George today has read to me extracts from many character references which testify about your otherwise good character. Your father has written to the Court and has said that this accident was totally out of character for you his son. No one would have a head on knowingly. Your father believes you were impaired due to your circadian rhythm, being affected by the long hours and shift work that you were doing at the time. Also at the time, you were having trouble sleeping during the day, after doing night shift.

19. An aggravating factor relating to the offending was that harm was done to two victims, death of one, serious bodily injury to another. The offence were in my view high on the scale of culpability for dangerous driving. It was not an isolated momentary act of foolishness. The evidence satisfies me that that afternoon you had been riding the motor cycle at grossly excessive speeds over considerable stretches of road, at considerable danger to yourself and to other people.

20. Referring particularly to the evidence of Joel Pokura, his description really fits into a category that you were in common parlance "hot rodding it." The scale of culpability, blameworthiness, in my view is at the higher end of seriousness for the offence of dangerous driving causing death or injury.

21. Accordingly, the only appropriate sentence is one of imprisonment. The deterrent factor in such a sentence is important, not for you because I am sure you will never drive like that again, but as a message to other drivers, that if you drive dangerously and you kill or injure anybody, it is extremely likely that quite apart from all the other consequences, you will be sentenced to a term of imprisonment.

22. Accordingly in this case I consider that there is a starting point for an effective term of imprisonment of 1 year 6 months imprisonment. However I make a reduction of that on account of your age and on account of the fact that other than this episode you are a person of good character and you do have good prospects for the future. So accordingly, I make a reduction of one third for those factors and reduce the starting point by 6 months to give an effective term of 12 months imprisonment. I therefore in respect of the offence of dangerous driving causing death sentence you to 12 months imprisonment. For the offence of dangerous driving causing bodily injury I sentence you to 6 months imprisonment, that to be concurrent with the 12 months. For the offence of not having a current driver's license, you are convicted and discharged. For each of the two dangerous driving causing death or bodily injury offences, I disqualify you from obtaining or having a drivers license for three years.

23. This was indeed a tragedy for all concerned and I do not minimize the fact of your extreme remorse and realization of the consequence. I trust that you will be able to, when you are released from prison, get on with life and make amends by being a good person and contributing to society, helping your family.

24. It is not an appropriate case in my view to order payment of reparation. Your financial circumstances make that unrealistic. You will need all the assistance that you can get in getting your feet back on the road of life once you come out of prison.

JUDGE