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Police v Teokotai [2006] CKHC 20; Cr 10.2005, 339-340.2005 (19 May 2006)

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


CR 10/05, 339/05, 340/05


POLICE


v


TEAU TEOKOTAI
Defendant


Mr Elikana for Police
Mr McFadzien for Defendant


Date of Sentence: 19 May 2006


SENTENCE OF WILLIAMS CJ


[1] Mr Teokotai, the Jury found you guilty of an offence under s. 25(2) of the Transport Act 1966. The offence was that on the 7th of January 2005 you drove a jeep on the back road at Ruatonga while under the influence of drink to such an extent as to be incapable of having proper control and thereby caused the death of Tanya Vaiimene, a young woman aged 20 years. You also appear for sentence on a charge of theft to which you pleaded guilty.


[2] On the main charge the maximum penalty is 5 years. I begin first by looking at the particular facts of this case. The closing addresses of counsel at the jury trial set forth the conflicting cases which were put to the jury.


[3] The Crown submitted that the deceased was a pedestrian who had been hit from behind when your jeep failed to take a comer. The Defence put forward a strikingly different case. It was that the deceased was killed as a result of jumping out of your jeep, she being a passenger whom you had picked up earlier.


[4] Using its collective common sense, the jury obviously found that your account was untrue. Their verdict is clearly one to the effect that you ran over this young woman from behind when your vehicle careered off the road. Having listened to the evidence carefully, I believe the jury reached the correct decision.


[5] You continue to deny responsibility for the accident. I say that because when interviewed by the Probation Service you strongly denied responsibility and challenged the verdict of the jury.


[6] Turning then to the detailed facts. The accident occurred at 9.35pm on the 7th of January 2005. You were driving your jeep on the back road at Ruatonga, travelling towards Tutakimoa/Takuvaine. While approaching a bend at the top of an incline, you were observed by at least a couple of people, one in a house and one standing down by the nearby power station facility, to be driving at high speed and in an erratic manner. As you came around the bend you lost control and drove straight into the deceased who was lawfully walking along the grass verge on the left hand side of the road.


[7] Your vehicle then collided with the hedges alongside the road and finally smashed into a power pole. The force of the impact provides confirmation of your excessive speed. You were thrown out of the jeep and the concrete power pole broke and fell on top of the jeep. Tanya died very shortly after impact.


[8] When the police and other bystanders came to the site you were observed to be unsteady on your feet and smelling heavily of alcohol. Your eyes were bloodshot and your speech was slurred. You apparently kept saying "bloody dog, bloody dog". That conveyed to the people present that you believe the cause of the accident was a dog that had run onto the road, or that you had run over a dog.


[9] At the scene of the accident you did not show any concern for the dead girl. Nor did you show any feelings of remorse at that time. I will come back to that a little later.


[10] When interviewed by the police you admitted being the driver and admitted being under the influence. You said that you had picked up the deceased at the Vaiora Factory at Ruatonga and that she jumped out of the jeep as a result of an argument.


[11] You were taken to the hospital for examination. Her examination took place 3 hours after the accident. You said, unprompted, to the examining doctor that you had started drinking at 2 o'clock on the 7th of January and had consumed a total of 6 big bottles of Steinlager. The accident happened around 9.30pm. The doctor concluded her report by saying that in her opinion you were under the influence. She said you were not fit to drive and should never have been allowed to drive a vehicle on that night. (In fairness it should be noted that you had had a fairly substantial meal in the early evening. That being said however, it was the jury's view, with which I completely agree, that you were severely intoxicated.)


[12] Some of the other witnesses give additional and relevant detail for sentencing purposes. First of all, a young boy, Daniela Tuirave spoke of lights coming toward him very fast and going all over the road, like a zigzag, just before the vehicle crashed into the power pole.


[13] Mary Ikike, who lived on the left hand side of the road where the accident occurred, heard the sound of a speeding vehicle. It was going past her house at high speed, very close to her hedge.


[14] Police officer Senior Constable Henry spoke to you. He observed that you were unsteady on your feet. He could smell alcohol. You were rude and swearing. Mr. Maunga came to the scene and spoke to you. He also said that you were unsteady on your feet. He asked you who the girl lying on the ground was and you said you did not know. All the while you continued to be verbally abusive and un-cooperative.


[15] Other witnesses at the scene had to restrain you from picking up the power cable that had been knocked down. The Court considers that a good measure of your intoxicated state was the fact that, without the onlookers' intervention, you would have picked up the cable to get it off your car. That also strongly indicates that you were heavily intoxicated.


[16] Mr Melvin spoke to you at the scene of the accident. He was the one that said you kept on saying "bloody dogs, bloody dogs". He asked you whether anyone else was involved in the accident and you said "no". He also had to restrain you from grabbing the power cable.


[17] It is clear from all of that evidence and from the jury's verdict that this. was a case where you were driving while heavily intoxicated, at high speed, in an erratic manner approaching a bend which, whilst not very sharp, was a quite significant bend which required you, far from driving fast and erratically, to take care to ensure you got around the corner safely. It is very obvious that the jury accepted Inspector Strickland's analysis of the accident which was that you lost control on the bend and simply ploughed into this innocent girl who was walking along the roadway.


[18] I have been provided with victim impact reports and I need to say something about their status and their purpose. Mr McFadzien mentioned these topics. It appears that, within Tanya's family, there may have been some understanding about the way the report should be treated.


[19] The Victim of Offences Act of the Cook Islands of 1999 provides for the provision of victim impact statements for the purpose of ensuring that the sentencing judge is informed about any physical and emotional harm suffered by the victim or any other person who has been harmed by the accident. The statute specifically states that the information should be conveyed to the Judge.


[20] The obvious purpose of the victim impact statement is to make sure that the Judge takes into account and is aware of the harm suffered by the victims. But as Mr McFadzien said, it is obvious that in fairness to the accused person, his or her own counsel must be able to see those victim impact statements in order to make comments or submissions on them. So I want to just convey to the family that the Court is grateful for those statements but that it will be understood that the law requires that the Defence counsel have a chance to see them. (I should add that Mr McFadzien says that sometimes the victim impact statements serve the additional and important purpose of bringing a stubborn accused to the point of acknowledging the harm that has been done.)


[21] There are two victim impact statements, one from Tanya's mother and one from her grandmother. As you can imagine, both of them make depressing reading. While the Court would not allow itself to be swayed by demands for vengeance, just as it will not be swayed by unreasonable pleas for mercy, it is proper for the Court to look at these statements and give them appropriate weight.


[22] It is quite apparent from the first statement written by Tanya's grandmother who, with her husband, in the tradition of the Cook Islands with a first-born, were largely responsible for Tanya's upbringing that they have suffered grievously from what has happened. Mrs Vaiimene says that it is very difficult, indeed impossible, to put into words the impact of Tanya's tragic death on the family and her friends. "There are no words that can adequately describe the pain that a sudden and needless death has caused. Gone are the dreams and expectations that we will one day celebrate her 21st, see the special child married with children of her own."


[23] Then there's the discussion of the difficulty of moving on when the death has been so needless. There is a recitation of the achievements of this young woman and mention of the special relationship she had with her grandfather.


[24] Then she says this: 'The family has waited 16 months for this Court hearing and for the accused to come to trial. We have waited patiently and refrained from making any public comments believing that at the trial we would see the accused have to stand in Court and face us. We hoped that he would finally under oath tell the truth, as almost all people in the community believe that she was never in the jeep. He avoided that by not taking the stand. While his action is permissible by law it was an easy and deliberate way out and a way to avoid admitting that he was lying'.


[25] Then she says that that the family in Rarotonga has watched as he continued to drink and drive and does not seem to care about what happened on the 7th of January 2005. She says, every time the accused broke his bail conditions, his name and Tanya's would be back in the newspaper again. This is an important and relevant matter for the sentencing.


[26] She has a few words to say about the Police and the difficulties that they face in carrying out their activities. She says she does not think they are, sufficiently trained and that they are under resourced. She says, added to that is the failure of the government to revise the relevant laws and impose realistic penalties for such behaviour as drunk or careless driving causing death and for such traffic offences as speeding. The current maximum penalty for careless driving causing death is certainly not a deterrent. She says: "nothing anybody can do will bring back our beloved Tanya. It is our prayer however that more responsible attitudes drinking and driving will prevail and that other families will therefore be spared the unbearable pain that our family still suffers".


[27] Tanya's mother has filed a similar statement. She records the sense of loss that has been felt by the other children in the family. She says it has been 16 months of frustration awaiting trial for the accused. During this time tie has been freely driving, socializing and finding pleasure in alcohol while showing no remorse for what he has done to Tanya's family. He has appeared in Court several times which means he is a repeat offender. She has some strong words to say about his conduct and his continual denial and his making up stories to discredit Tanya. That denial has only deepened the anger that she has toward him and she knows she will struggle to ever forgive him. She concludes by saying "I would highly recommend for the necessary authorities to re-visit our Act, in particular the 5 year maximum penalty for careless driving causing death because I feel that is very lenient".


[28] The question of the attitude of the defendant has at least until today been uncomplicated. He has shown no remorse. He did not express any regret at the time of the accident for the death, or any real concern about the deceased. He elected not to plead guilty. That of course is his right and I am not entitled to take that plea into account against him. But today, through his counsel he has produced a statement which he said was written on the 16th of January 2005. His Counsel has said that an earlier counsel representing him had advised that the letter should not be sent because it might affect the defence that he wanted to run. The letter does express his apologies at some length. It also speaks about his shame and the way in which his friends have abandoned him. "The general public is calling for my blood, I have nowhere to go, I've been to church to ask for forgiveness." He wishes things could be undone and ends with to request that his apology be accepted.


[29] This places the Court in a difficult position. I would not wish to ignore an expression of remorse, however late it is presented, but I have some difficulty in accepting that a way could not have been found at some earlier stage of the proceedings, notwithstanding the exercise of his right to plead not guilty, for him to express his remorse. I find it difficult, with all respect to previous counsel, to think that some way could not have been found to transmit his apology. But I do note that on my file there is a letter from the same counsel which advises the Court that that counsel is withdrawing from representation of this accused because of his constant breach of bail conditions and his "couldn't care less" attitude to those conditions. So it may be that between the departure of that counsel some time go and Mr McFadzien's recent appointment, the accused may have been under the impression that there were difficulties in him conveying an apology.


[30] I do not know quite what to make of this eleventh hour indication of remorse. I am not going to give it the weight that I would otherwise have placed on it if it had been expressed much earlier. It will be taken by the Court as a last minute expression of remorse.


[31] Having dealt with those matters I need to turn to the report from the Probation Service. It is fair to say that this Probation Report is very negative in its tone. It points out that the defendant is no stranger to the Probation Service due to his continuous appearances before the Court. It refers to his early childhood on the island of Atiu. From what one reads, there may have been a few problems during his childhood. His father had died when he was still young. The defendant talks of receiving corporal punishment from time to time. The picture that emerges is that until he came to Rarotonga, his behaviour had been reasonable and there were no major problems.


[32] He came to Rarotonga in 1988 with the Atiu Cultural Dance Team. It was the first time he had met his natural mother in 12 years and he resided with her at Nikao. Things began alright but then his attitude started to change. He started to mix around with friends and began to drink and became what his family describe as "a hard case and a person who was hard to control". The family who were looking after him did their best to help him but their good advice never had any impact on his lifestyle. As the Probation Service says, the defendant's problems with the law are mainly because of alcohol.


[33] In those early years in Rarotonga, he came before the Court on numerous occasions. In 1992 he was before the Court for drunken driving and minor traffic offences, for example, no driver's license, no warrant of fitness. By 1994 he was before the Court for assaulting a Constable and for breach of probation - he went to prison for the first time for a month; 1995, two burglary charges - 6 months imprisonment; 1996 breach of probation 14 days imprisonment; 2001 contempt of Court order which I imagine is breach of bail conditions - 3 months imprisonment; assault on a female in 2001, 12 months supervision. Coming forward to 2005, a theft charge - 12 months probation and then we come to the current offending.


[34] His previous criminal record shows that he had a "couldn't care less" attitude towards his offending and that most of his failures and neglect were due to his continuous drinking. The family that were looking after him gave him many chances, hoping he would change, but he did not do so. The Probation Service expended very considerable efforts trying to help him but to no avail: he continued to disobey his sentence and probation conditions. He came before the Court for assaulting his former partner, alcohol being the main problem there. In short, the Probation Service has done their best but to no avail.


[35] His mother, who now resides in Rarotonga, describes her son as stubborn person. She came to Rarotonga recently to show her support. She tried to help him but she says her advice falls on deaf ears. She feels extremely sorry for the family involved in this matter. She says her son has put her to shame for many years. She hopes that he will change but that he appears not to care for what he has done. She hopes one day he will come out and humble himself for his own good.


[36] I was referred to comments from a friend of the accused who had tried to assist him and offer him some support. He came to know him through work. The defendant's employment has been in the building industry. He seems to have been able to hold down a job. The friend said he thought he noticed some recent improvements in the defendant's behaviour, but he acknowledged that the defendant tends to lose his temper when he gets drunk. The friend expressed the hope that while in prison the defendant would think again about his attitude to life.


[37] Under factors relating to the offending, the Probation Report says, "with regard to the offending the defendant stated that he does not agree that he is guilty for this offence. He believed that the Police did not do a fair job. For example, they did not take any fingerprints from the jeep which would help to confirm whether the victim was in the jeep or not. He could not do anything now but serve his sentence".


[38] Coming to the summary "Causes of Offending" alcohol is listed first. During the interview with the Probation Officer he was co-operative but strongly denied directly being involved in the death of Tanya. However he said that whatever happened, he would serve his sentence. The fact that only a matter of days ago, he was strongly denying involvement does not sit easily with the very late production of the January 2005 letter.


[39] The defendant has indicated his desire to change his behaviour and address his many problems. The Probation Service says that: "the offence committed is no doubt a serious one, especially when a person died. The Victim Impact Statement shows how the family has been affected. The Probation Service has known the defendant for many years due to his involvement before the Court. It is evident that alcohol, stubbornness and a careless attitude were his main problems. His supervising officer made an arrangement on 3rd March 2006 for him to attend counselling at the Te Kainga counselling centre and also Alcoholics Anonymous Group but his response to counselling was very poor. Your Honour, a message has to be sent to the public that this kind of offence is very serious and imprisonment is the only alternative."


[40] I now turn to the precise penalties that should be imposed. I begin by noting that counsel for the Prosecution has said that drunken driving causing death is a matter of great and increasing concern in the community and there is an onus on the courts to send a clear message so that such offenders are left in no doubt about what they may expect if they offend. The list of prior cases in the Cook Islands is referred to by Counsel for the Crown, which appears to show that previous cases of this kind have involved penalties varying from 6 months to 2 years. The Crown suggests that the starting point for offences of this level of culpability is 2 years but that this is drawn from penalties in cases decided some time ago. Reliance is placed on some of the recent New Zealand decision; such as R v Hitchens [25 March 2004] CA, CA 380/03. The concluding submission is that a penalty in the range of 3 to 3½ years is appropriate.


[41] For the defence, Mr McFadzien accepts there must he a term for imprisonment. I have already referred to what he has said about remorse and the late-supplied letter. He tells me that the impact statements have had a profound effect on the accused. He acknowledges that overseas cases may be relevant in terms of their general approach but he does not agree with the prosecution about the Hitchens case because it contains aggravating factors which are absent today. He agrees that the United Kingdom case of Cocksley & Anor v R [2003] EWCA Crim 996 can be looked at since it helpfully lists the relevant factors. However, he submits that the range of penalties in the Cook Islands, as compared to New Zealand where the maximum is the same, has been lower. He makes the valid point that it is not really possible to directly rely on the English cases for comparative purposes since the maximum penalty there is 10 years, not 5 years. He refers to the Ben case where a sentence of 2 years was imposed.


[42] Mr McFadzien says that the court should note that Parliament has not seen fit to increase the penalty. That being the case, not much weight should be given to the overseas cases, including both the New Zealand and the English cases. If there is to be a message sent to the community, that higher penalties are going to be imposed, it should not apply to this particular defendant but to future accused/defendants. In other words, if there is a policy shift, it should be prospective only. He relies upon the sentence imposed by Justice Nicholson in the case a couple of months ago where a 1 year sentence was imposed for dangerous driving causing death.


[43] I should say now, as I move to give the Court's view, that what I am about to say does not involve a policy shift in the way that Mr McFadzien suggests. It will not, in my view, be a radical departure from what has gone before. It will take into account the passage of time, the fact that the earlier Cook Islands' cases on drunken driving are now becoming a little out of date, and also what Mr Elikana says has been a growing concern about drunken driving. In my view, the major factor here today will be the significant aggravating factors.


[44] Mr Teokotai, I have already noted that the maximum sentence for your conviction is 5 years. In sentencing you today I need to try and impose a sentence which will help instil a sense of accountability on your part for the hams done to the unfortunate deceased and her family; to try, no matter how difficult it may be, to promote a sense of responsibility in you, to attempt to recognise the interest of the victims and to denounce your conduct. The imposed sentence should not only protect the community from you for a fair while but try to deter others.


[45] Sadly, it has to be said that nothing I can do in this sentence can restore the life that has been lost, nor can that loss be measured in terms of the length of the sentence. Nothing that I can do can overcome the anguish and grief of the deceased's family.


[46] Counsel has confirmed that in the Cook Islands the penalties to date for similar offences have been between 6 months and 2 years. It is difficult for me to assess those cases because little or nothing of the circumstances of those cases is available to the Court, but I do think I should pay attention to the Court of Appeal of the Cook Islands in Police v Brown [10 August 1999, CA. 1/99] which has been referred to me. In that particular case the accused was driving a motor vehicle and drove into a motor cycle driven by Mr Fotunga. He was charged with drunken driving causing death, pleaded not guilty and was convicted by a jury. The Court of Appeal was in a difficult position because there were no notes of evidence so it did not have before it all of the circumstances. It was a case where the defendant showed no remorse. It was pointed out that it was surprising that he maintained his proclamation of innocence. The Judge took account of a Probation Report outlining the plight of the deceased widow and decided not to impose a sentence of imprisonment but rather to order payment of a significant monetary sum. He also ordered a two year suspended sentence.


[47] That sentence was appealed. There were difficulties about whether the Court had the power to make such a monetary order in the circumstances before it. On appeal, the Crown also submitted that the sentence was manifestly inadequate.


[48] As regards the decision of the Court of Appeal, two points have to be stressed. The first is that although the final sentence imposed was 9 months imprisonment instead of the monetary payments, the Court of Appeal was bound by the established principle that where the Crown appeals against a sentence and that appeal is successful, the sentence can not normally be so high as it might have been had the proper sentence been imposed in the first place. So that is why it was 9 months. The Court actually said on page 6 that: "we think a sentence of 2 years imprisonment, if it had been imposed at the time, would have been appropriate". There is no description in the case as to the precise kind of driving that was involved. The view I take of the case is that it is certainly not of the kind to set a level of 2 years imprisonment for this kind of offence. It is not helpful precedent except for showing that a 2 year sentence was not regarded as inappropriate.


[49] 1 think it is right to say, as was said in the Court of Appeal in New Zealand, in the aforementioned case of Hitchens, that in considering penalties for drunken driving offences, one can approach the matter on the basis of a spectrum or continuum. At the lesser end of the scale is careless driving causing death. At the other end of the scale is manslaughter. As was said in Hitchens and repeated in the Cooksley decision, the essence of sentencing in this area is to identify the elements of aggravation and mitigation and establish where the case falls in terms of relative seriousness. I note that the Cooksley decision has also been applied in the decision of Tiplady v Police [2004] 20 CRNZ 1071 where Justice Laurenson in the High Court of New Zealand described it as giving authoritative guidance on matters of mitigation and aggravation and on the level of seriousness.


[50] I will come back to the specific facts of the Hitchens case and turn now to the English Court of Appeal case of Cooksley, which as I have mentioned, is regarded in New Zealand as containing a definitive account of the factors that are relevant in sentencing for drunken driving.


[51] The reason I am taking so much time with this today is that I want to try and provide an indication for the future as to what factors need to be taken into account. So what I now propose to do is go to the Cooksley case to establish what are the relevant aggravating and mitigating factors. This will guide me on deciding on the appropriate sentence in this case and provide a framework for sentencing in the future cases. The list is as follows:


"Aggravating factors


Highly culpable standard of driving at time of offence


(a) the consumption of drugs ... or of alcohol [known to cause drowsiness];


(b) greatly excessive speed; racing; competitive driving against another vehicle; showing off;


(c) disregard of warnings from fellow passengers;


(d) a prolonged, persistent and deliberate course of very bad driving;


(e) aggressive driving (such as driving much too close to the vehicle in front, persistent inappropriate attempt to overtake, or cutting in after overtaking);


(f) driving while the driver's attention is avoidably distracted, e.g. by reading or use of a mobile phone (especially if hand-held)"


- and I want to emphasize that factor for the future - mobile phones are dangerous when driving -


"(g) driving when knowingly suffering from a medical condition which significantly impairs the offender's driving skills;


(h) driving when knowingly deprived of adequate sleep or rest;


(i) driving a poorly maintained or dangerously loaded vehicle, especially when this has been motivated by commercial concerns;


Driving habitually below acceptable standards


(j) other offences committed at the same time, such as driving without ever having held a license; driving while disqualified; driving without insurance; driving while a learner without supervision; taking a vehicle without consent; driving a stolen vehicle;


(k) previous convictions for motoring offences which involve bad driving or the consumption of excessive alcohol before driving;


Outcome of offence


(l) more than one person killed as a result of the offence (especially if the offender knowingly put more than one person at risk or the occurrence of multiple deaths was foreseeable);


(m) serious injury to one or more victims in addition to the death(s);


Irresponsible behaviour at the time of the offence


(n) behaviour at the time of the offence, such as failing to stop, falsely claiming that one of the victims was responsible for the crash, or trying to throw the victim off the bonnet of the car by swerving in order to escape;


(o) causing death in the course of dangerous driving in an attempt to avoid detection or apprehension;


(p) offence committed while the offender was on bail."


So that is the list of aggravating factors. The list of Mitigating Factors is as follows.


"Mitigating factors


(a) a good driving record;


(b) the absence of previous convictions;


(c) a timely plea of guilty;


(d) genuine shock or remorse (which may be greater if the victim is either a close relation or a friend);


(e) the offender's age (but only in cases where lack of driving experience has contributed to the commission of the offence), and


(f) the fact that the offender has also been seriously injured as a result of the accident caused by the dangerous driving."


[52] This Court hereby adopts that list, not necessarily as an exhaustive list, although it is very extensive, but one which will be considered in future cases of this Court and to which counsel will be expected to refer.


[53] Having regard to those factors, one has to define the starting point for a case of this kind where there is serious culpability. One needs then to look at the aggravating and mitigating factors. It has been pointed out in many cases that the Court must be careful to avoid what is called "double counting". One should not take into account in reaching a starting point certain factors and then use them again when considering the aggravating and mitigating factors.


[54] In my view, in this particular case, the starting point is 3 years and I say that because of:


- the extensive and heavy drinking of the defendant over a lengthy period;


- the incapacity, in such circumstances, to be driving at all;


- the fact that the medical doctor, even some hours after the accident expressed the view that this person should not have been driving;


- the failure to keep the vehicle on the road and the obvious unawareness of the pedestrian;


- the hitting and killing of a pedestrian who was legally walking along the edge of the road and not on the carriageway; and


- all this occurring at night when driving risks are always greater.


It is those factors that bring me to the point of thinking that the starting point should be 3 years. I will now refer to some of the decided cases which lend support to my conclusion.


[55] In particular I want to refer to the case of R v Solo [3 December 2004] HC, New Plymouth, CRI 2004 043 3158. This was a sentence of Justice Hugh Williams in the High Court of New Plymouth. I refer to this case just to give a cross check on my own views as to what the starting point is in this case in the Cook Islands.


[56] In the Solo case, a 24 year old female was appearing on a charge of manslaughter as well as charges of injuring while driving with excess blood alcohol, offences broadly similar to the one with which we are dealing. The starting point on the driving causing injury with excess blood alcohol conviction was said to be 4 years, although the Judge took into account in reaching that view that that included aggravating features. He then deducted the mitigating factors and the sentence became 3 years. There were serious aggravating factors but the mitigating factor was the plea of guilty.


[57] Now returning to the Hitchens case; it involved an accident where the accused lost control of the vehicle and collided with a power pole. As a result of the accident, a front seat passenger was killed and two rear seat passengers and the appellant were injured. A plea of guilty was entered to a similar charge to the present and the appellant was, sentenced to 3½ years imprisonment. In that case, as Mr McFadzien has pointed out, there were many more prior convictions. The 3½ years that was imposed was well within the discretionary sentence available to the Judge. Those cases, plus the older Cook Islands Court of Appeal case of Brown where the Court did not have all the facts before it but said that the two years would have been imposed, give me comfort that my starting point in this particular case of 3 years is appropriate.


[58] I then have to take into account the aggravating factors. I should just add for the record that a similar but less extensive list of aggravating factors in offences of this kind was given in the case of Gale v Ministry of Transport [1991] NZHC 1215; [1991] 3 NZLR 476, 480-481. I will for convenience follow the English list.


[59] The aggravating features in the context of "highly culpable standard of driving at the time of offence" are excessive speed and aggressive driving in the sense that the accused obviously decided to take this bend at speed, there being no suggestion of any braking before the bend. The outcome of the offence is serious in that a death has resulted due to the offending.


[60] Under "irresponsible behaviour at the time of offence", here we have a situation where the defendant said nothing about anybody else being involved. If the story about someone being in the car was true then the defendant should have had mentioned that fact one would have thought. However, when it became apparent that there was someone on the road who had been killed, the defendant showed not only little concern but also came up with the explanation which the jury found to be false, that this young woman was a passenger in the car and had been the author of her own misfortune by jumping out of the car. There was other irresponsible behaviour namely his unacceptable general conduct at the scene of the accident and his foolish attempt to take the cables away from his car.


[61] It is true that, as one of the witnesses said, he tried to assist in giving mouth to mouth resuscitation. That is the only indication of any concern. However, it became very apparent, doubtless because of his drunken condition that he was far more of a hindrance than a help. But I do take into account that this is the only factor about his behaviour which possibly stands to his credit.


[62] Then there is of course his previous record. That previous record must be a telling factor here especially because of the fact that he has a previous conviction for drunken driving. Although no one was harmed in that, it is still something to be taken into account. Moreover, the other offences while not at the top end of the scale of seriousness, do convey, as the Probation Service says that the defendant is someone who is an irresponsible person, who does not care about the impact his behaviour has on other people.


[63] I am disinclined to give any significant credit for the recent expression of remorse because of my concerns about the last minute letter. It is not a major factor but I do give it some weight.


[64] Weighing as best I can all of those factors, in my view the appropriate sentence here is 4 years imprisonment. In addition to that there will be the mandatory disqualification for 3 years that is also provided for under the Act.


[65] On the charge of theft, which is of course a much minor charge, there will be a conviction entered and sentence of one month's imprisonment to be served concurrently with the sentence on the drunken driving charge.


[66] My only further observation is to convey to the public at large that the Court is taking dangerous and drunken driving seriously and will continue to do so within the limits of the penalties which are contained in the Transport Act. It should follow from what I have said today that in bad cases of drunken driving causing death such as the present one, the offender can be assured of a significant period of imprisonment.


[67] Now I must deal with the question of the contempt of Court charge. As a matter of public interest I want to explain what happened here before I consider Mr McFadzien's application.


[68] The history of this matter is that on the 7th of January 2005 the defendant appeared in Court on the drunken driving charge. On the 13th of June 2005 an application for bail was considered.


[69] At that point the defendant pleaded not guilty. He was remanded out of custody on bail with a condition requiring reporting to the Police. On the 20th of June 2005 he appeared before a Justice of the Peace. At that stage the matter was brought before the Court because he had failed to comply with the reporting condition.


[70] The Justice of the Peace thought it appropriate to impose additional conditions, namely, the defendant to surrender his passport and that he not purchase or consume alcohol. On the 3rd of February 2005 the defendant appeared again before the justice of the Peace and was convicted on a charge of contempt based on a breach of the Court condition prohibiting the defendant from purchasing or consuming alcohol. He was fined $110.00 and Court costs.


[71] The Registrar then drew attention to the fact that under current provisions of the Criminal Procedure Act, namely s. 87, when an accused person is granted bail, there is authority to impose one condition only, namely that the defendant report to the Police at such times and places as the Court thinks fit.


[72] Mr McFadzien's application requests a re-hearing in respect of the conviction entered, on the grounds that the conditions of bail which the applicant is alleged to have breached were imposed by Court in excess of its jurisdiction under s. 87.


[73] I have no doubt that Mr McFadzien is correct. While the Justice of the Peace, for very understandable reasons, thought it appropriate to impose the additional conditions, she had no legal authority to do that. So I grant the application for a rehearing that Mr McFadzien has rightly brought before the Court and I quash the conviction and discharge the defendant in that respect.


[74] I wish to take this opportunity to draw to the attention of the Ministry of Justice the urgent need to revise parts of the bail laws of this country. Justices are being impeded in the performance of their duties by the antiquated bail laws.


Two matters require urgent attention:


1. There should be the power to impose any bail conditions which the Court thinks are appropriate in the particular circumstances of the case so long as those conditions are aimed at:


(a) ensuring the accused turns up for trial;


(b) ensuring that no harm is done to third persons by the accused while on bail; or


(c) ensuring that the accused does not re-offend while on bail.


In New Zealand, for example, it is commonplace for conditions to be imposed, just as the Justice of the Peace did here, prohibiting a person on bail from drinking alcohol or buying alcohol. Another condition often imposed, as in cases of alleged sexual violence, is that the accused does not go anywhere near the complaint because there may be a risk of further harm to the complainant. There is often a condition in group offending type cases that the person on bail will not associate with the group. Then there is the important condition that the accused should surrender his or her passport. It is indeed surprising that in this country it is not legally possible for the Court to impose that condition. Fortunately, in many cases the accused will volunteer to do that but the Court should not be dependent upon offers from the accused.


2. The second matter relating to bail is the inability of the Police to grant bail in relation to minor charges. Again that is something where a simple amendment to the Criminal Procedure Act is all that is needed. It would provide that the Police can grant bail in relation to minor offences and thus avoid the situation that sometimes occurs where someone who has pleaded not guilty or is going to plead not guilty on a minor charge is held over a weekend because the Police have no power to grant bail. The accused has to stay in custody, even on a minor charge.


[75] So I make these comments in the hope that the bail law will be changed and changed promptly.


CHIEF JUSTICE


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