Police v Spain [2012] CKHC 63; CR 24-26.12 (23 March 2012)

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

CR NO'S 24, 25 & 26/12

POLICE

v

STEPHEN THOMAS JAMES SPAIN

Hearing: 23 March 2012
Counsel: Ms King for the Crown
Mr Little for the Defendant

Sentence: 23 March 2012

SENTENCING NOTES OF THE HONOURABLE TOM WESTON CJ

[1] Mr Spain you appear before the Court today for sentencing in relation to two charges of causing bodily injury while driving under the influence of drink, and one charge of excess blood alcohol in respect of which the volume of alcohol in your blood was almost twice the legal limit.

[2] All of these matters arise out of the one incident which occurred on New Years Day 2012. You had consumed alcohol and I accept that this, for you, is not a common occurrence. It appears indeed that you were not accustomed to the effects of alcohol and this seems to be part of the problem for what eventually occurred.

[3] Later that day, you drove someone home in circumstances which have been explained to me. You accept that at that time you were not properly in a state to do that but you did it nonetheless. As a result, a terrible accident occurred and two people received very significant injuries.

[4] I have received and considered a victim impact report that has been prepared by and on behalf of the two victims. They are a mother and daughter. The mother lived in Rarotonga. The daughter and her family had been visiting for the Christmas and New Year period and indeed they were about to have a New Years' Day lunch at the point that your actions caused this accident and their world effectively changed.

[5] The victim impact statement is dated the 15th March 2012, so it is only a few weeks old. It shows that they still suffer terribly from this accident. They have continual pain, they have had multiple operations, and the prospect of more to come.

[6] The daughter, who lives in New Zealand, is a successful real estate agent and her business now is effectively at an end. She cannot carry it on.

[7] I am sure Mr Spain you have read this and appreciate how they would conclude, as they do, that you should be held accountable for the consequences of your actions.

[8] Mr Little has submitted this was a grave error of judgment on your part, and that it was out of character for a man who is otherwise of high character. He has referred to the many references before the Court, and I accept his submissions that absent this particular incident you can fairly be described as caring, honest, empathetic, generous, responsible and compassionate. I accept also that many people hold you in high regard and it seems for good cause.

[9] Parliament has signified that it regards offences of this sort as being very serious because someone who is convicted of this offence can be sent to prison for 10 years or fined $10,000. I am advised that, so far, no-one has been imprisoned for offences of this sort. In the present case, though, the Crown has sought imprisonment in part to reflect the seriousness of the injuries suffered. For the Court, that is a difficult issue to assess because the seriousness of injuries suffered does not necessarily reflect the culpability of the offending. It may be that a minor lapse of judgment can have very grave consequences and vice versa. In the present case though, I am certainly highly conscious of the terrible injuries suffered by two people who are quite innocent of anything and were simply trying to live their lives at the time the accident occurred.

[10] I have been shown a letter of apology dated the 26th January of this year that you sent to the family, and in that you acknowledge the terrible wrong that you have done to them. You refer to your decision as being one of complete stupidity and something you will have to live with for the rest of your life.

[11] Today you have also made a public apology in open Court and acknowledged the gross error of judgment that you made. That was a brave but appropriate thing to have done and I commend you for that.

[12] Mr Little, in his submissions, submitted that you should be fined $500 in relation to each charge, but he did emphasise that the two charges of causing injury are effectively the one because they arise out of the one incident. I accept that. Sentencing for a crime of this sort should not be dependent entirely on the number of victims because then it becomes something of a lottery. Again, though, the number of victims and the extent of their injuries will always be a factor that needs to be taken into account.

[13] I believe that the pattern to date, that there have been no sentences of imprisonment for these offences, is something that will need to be reviewed in the future. This, though, is not a case where there should be imprisonment. While the consequences of your offending have been very grave, I believe that your culpability does not warrant imprisonment.

[14] I accept that the appropriate way to mark your offending is by way of fines and reparation. I believe the fines recommended by Mr Little in his submissions are too low. I am conscious that your annual earnings are only around about $20,000 per annum and that any fine may well have a significant consequence for you. Nevertheless, the seriousness of the offending does need to be properly marked.

[15] I am going to fine you and I now fine you $2,000 in relation to the charge of driving with excess breath alcohol and causing injury in 25/12. You will be convicted in relation to the other, but with no further sentence. And in relation to the charge of excess blood alcohol, you will be convicted but there will be no further sentence.

[16] You need to be disqualified from driving. The statutory minimum is 12 months. The Crown has urged a longer period. I do not believe this is a case where there should be a longer period because I see the circumstances of this case as an aberration and a one-off. So I will take the statutory minimum and you will be disqualified for that 12 month period.

[17] In relation to reparation, Mr Little accepts that the first two categories of reparation are appropriate, that is, medical costs of $40 and then further medical costs of $1,450. I make orders accordingly.

[18] The Crown also seeks reparation in relation to the motorbike of $3,000. Mr Little has quite appropriately questioned whether that is a justifiable sum. I have looked at the valuation put forward by the owner of the motorbike which it seems was a rental bike. For myself, I have reservations about whether a bike of this sort could properly be regarded as worth $3,000 and because of that uncertainty I am not prepared to forward a reparation of $3,000. Mr Little has suggested $1,000. For myself, I think that is too low, and I will order $1,500 as the amount of reparation for the damaged motorbike.

[19] In sentencing you, I have taken account of the fact that there may well be civil claims against you for damages. I have also taken account of the great remorse that you have expressed and the various mitigating factors emphasised by Mr Little. I suspect that whatever I do today can be nothing like the punishment that you are imposing on yourself, and will continue to impose on yourself, for the balance of your life. Nevertheless, it is my job to find an appropriate penalty to reflect the interest of the state in maintaining the law and the safety of its citizens and that thinking lies behind the sentence that I have imposed today.

[20] Now we need also to have Court costs imposed which is $30 per charge. So there are three of those. That is $90 that you will need to pay in total for Court costs.

[21] Mr Spain's passport is to be returned to him upon payment of the fine, reparation and costs as above. He has said he will do this within the next week.

__________________________
Tom Weston
Chief Justice

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