Police v Voss [2009] CKHC 25; CR449.2009 (31 July 2009)

IN THE HIGH COURT OF THE COOK ISLANDS
HELD AT RAROTONGA
(CRIMINAL DIVISION)
CR NO: 449/09

POLICE

V

ADAM CHRISTIAN VOSS

Hearing: 31 July 2009

Counsel: Mr Manavaroa for the Police
Mr Little for the Prisoner/Defendant

Sentence: 31 July 2009

SENTENCING NOTES OF JUDGE NICHOLSON

[1] Adam Christian Voss, you have pleaded guilty to the offence of driving a motorcar that was involved in a motor vehicle crash on a road, failing to ascertain whether any person was injured, and failing to render practical assistance to the named victim. This is an offence which carries a maximum penalty of five years' imprisonment or a maximum fine of $1,000.

[2] In his sentencing submissions, Senior Sergeant Manavaroa summarised the facts as being that at about half past two in the morning of Saturday, 6 June 2009, a motor vehicle crashed in the main road near Tupapa, as reported to the police. This was between a motorcycle driven by the victim, Tiri Moana Hewitt and a Suzuki rental car, which had been driven by you.

[3] Investigations revealed that you had driven at a speed of about 40 to 50 kilometres per hour from the Paradise Inn Motel and were heading towards town. The victim was travelling in the opposite direction. It is said that your car crossed into the victim's lane and a collision occurred. That is not accepted and there is no proof of that. But, however, the accident occurred and the victim was thrown off her motorcycle and received substantial injuries.

[4] You reported the matter to the police later that morning and you said that you had stopped further down the road. You said that you found the car had a puncture in the front wheel and the airbags were inflated. You left it on the side of the road and you and your passenger walked to where you were going. You did not go back to where you gauged the impact had occurred to see what the consequence was.

[5] The medical report from the Rarotonga Hospital described how the victim was examined at around 4.00 am that morning. She had been unconscious for some time. She was found sitting in mud and very distressed. She was in pain when moving her limbs, she had swelling and bruising on her face, particularly her ribs and bruising on her left shoulder and forearm. There was a wound on her right-mid forearm and bruising on her right thigh and knee, and an open wound near the ankle joint.

[6] She was admitted to the surgical ward for consultation. The wounds were cleaned up, no fractures were found and she was discharged home with oral antibiotics later that day.

[7] In her victim impact statement it was said that she was still in a stress situation and she said she was afraid and feared for her life on the night of the accident.

[8] The motorcycle was not able to be repaired and it is estimated that its estimated value is $800. She has incurred $100 in medical expenses. There is a note in her disbursement of $20 for a medical report.

[9] In the pre-sentence report, the Probation Officer, Mr Brown, talks of speaking with you, your father, and your brother. He talks of your domestic situation and being separated from your wife, but supporting your two teenage daughters. Your family describe you as a person of excellent character and they support you in this, your present difficulty.

[10] The probation officer has given particulars of your qualifications and work experience. They are very impressive and are a credit to you. You are qualified with a trade as an aircraft engineer with the New Zealand Air Force and you have gone on to obtain further qualifications including a Master of Business Administration from the University of Central Lancashire in England. You have held a number of very senior and responsible positions.

[11] Your counsel, Mr Little, referred to major mitigating factors of your age, the absence of any conviction in Court, that you reported to the police later the next day, that you cooperated with the police and you have pleaded guilty. He emphasised your good character and said that you were remorseful. He submitted that in the circumstances, with your International career and the need for high security clearance, the consequence of this conviction would far outweigh the gravity of the offending, and he applied for a discharge without conviction under the provisions of s 112 of the Criminal Procedure Act. He said that you were prepared to apply the $2,000 which you applied as security when you were on bail as a donation to a Cook Islands charitable cause.

[12] You have spoken directly and have expressed considerable personal concern for what you did and your remorse for it. You have emphasised that you hot taken this lightly, which I accept.

[13] Normalormally, for offences of this nature, the Court would be considering a sentence of imprisonment as a deterrent sentence. It is extremely important that if there is a motor vehicle accident of some magnitude, that all parties involved stop and go and check that people have not been injured or severely injured and to render assistance because it could well be that another person involved is lying bleeding on the road and without urgent first aid and attention, they could well die. So to enforce that duty to stop and render assistance, the Courts do impose, as a standard, a deterrent sentence of imprisonment. However, the sentence should reflect not only the factor of deterrence, but also all the circumstances of the offending.

[14] What you did was, as I am sure you accept in hindsight, a very bad judgement call. You knew you had hit something. Substantial damage had disabled your car. In the circumstances, I am sure you wished that you had walked back up the road to see what it was; a dog, a cow, a fallen coconut palm, a human. However, this is an error of judgement situation which occurs to many people in the course of their driving life. One is not to be over severely penalised for the consequences of a breach of judgement in one instance, if that is not appropriate.

[15] When I came onto the bench having read the papers and the probation officer's recommendation, and the police submissions about the suitability of a fine, I considered with the appropriate term, and that is a fine. However, Mr Little has emphasised that the consequences of a conviction would outweigh the gravity of the offence. I am well aware that people with an International career and the need for security clearance, have to be able to present as not having convictions. Often, the system is such that the gravity of the convictions is not taken into account; the computer will spew them out as not eligible.

[16] So having regard to the fact that you have worked hard and well to establish your career, and the benefit to society that you continue to do so, the benefit to your family that you continue to do so, I consider that this is one of those exceptional circumstances where the consequence of a conviction would outweigh the gravity of the offence. I will discharge you without conviction. It will be on condition that you pay reparation of $800 for the damaged motorcycle, $120 for medical treatment and medical report and Court costs of $80, which I total to amount to $1,000. You are also to make a donation of $1,000 to the Rarotonga Hospital, hence making a total of $2,000 to be paid by you, with the amount of your assurity. I order that that assurity be applied in payment of those amounts. Upon that being done, the discharge without conviction will take effect and you will be free to leave Rarotonga without a blemish against your name.

[17] I hope that this very unfortunate episode, so far as the victim and yourself is concerned, can now be regarded as properly closed and put behind everybody, so you can all then construct and get on with your lives.

[18] I wish you well for the continuation of your very creditable career.

[19] You may stand down.

Editorial Note: Derived from the Court’s electronic records and believed to be correct and final.