NOTE: ORDER PROHIBITING PUBLICATION OF NAMES, ADDRESSES,
OCCUPATIONS OR IDENTIFYING PARTICULARS OF
VICTIM/CONNECTED PERSONS PURSUANT TO S 202 CRIMINAL
PROCEDURE ACT 2011.
IN THE HIGH COURT OF NEW ZEALAND
WELLINGTON REGISTRY
CRI-2016-091-2484
[2017] NZHC 1051
THE QUEEN
v
DAMIAN ANDREW LAWSON
Hearing:
19 May 2017
Counsel:
E M Fitzherbert for Crown
B A Crowley for Defendant
Sentence:
19 May 2017
SENTENCING NOTES OF THOMAS J
[1]
Mr Lawson, you appear for sentence having accepted on 22 March a sentence
indication on one charge of reckless driving causing death.1
Offending
[2]
On 21 May 2016 at around 8.30 pm you and the female victim, who you
describe as the love of your life, were sitting in a carpark in your Toyota Lexus. The
vehicle had no warrant of fitness. You held a full driver’s licence with a condition
you be supervised while driving.
The victim had no licence and was not an
appropriate supervisor. You had consumed methamphetamine and cannabis that
1
Land Transport Act 1998, s 36AA(1)(a) (maximum penalty 10 years’ imprisonment or $20,000
fine).
R v LAWSON [2017] NZHC 1051 [19 May 2017]
evening. There was a warrant for your arrest for breaching court bail. A police
patrol car noticed your vehicle and turned around to speak to you. As the patrol car
turned around you started your vehicle and drove out of the carpark.
[3]
The roads were dry with light traffic and minimal pedestrians. It was dark
with only moon and street lighting. You were driving up to 10 kilometres per hour
over the speed limit. The police followed you but had no lights or sirens on at that
time.
[4]
You drove at speed through two roundabouts, cutting across both lanes. You
drove across the Mungavin overbridge at speed, trying to avoid police, and
attempting to drive through the roundabout. You lost control of the vehicle, which
rotated 180 degrees and struck an internal median barrier of the interchange. The
front left of the vehicle hit the barrier first, then the rest of the left side slapped
against the barrier. The vehicle came to rest against the barrier facing the wrong
direction.
[5]
You then accelerated away and drove the wrong way around the interchange.
You passed the police car and drove back over the bridge on the wrong side of the
road. The police car did a U-turn and continued to follow you. The speed limit was
50 kilometres per hour. There was moderate traffic at the time. You accelerated,
overtaking a bus on the wrong side of the road, narrowly missing a head-on
collision. You continued to accelerate in excess of 100 kilometres per hour and
overtook another vehicle on a blind corner. A car came around the corner. This
caused you to swerve in an attempt to miss it. You were travelling at at least 107
kilometres per hour.2
[6]
The vehicle began to oversteer. As you attempted to regain control the
vehicle fishtailed several times. You were unable to regain control. The vehicle slid
across both lanes, crashed through a metal pole fence and hit a large Pohutakawa
tree. The collision was concentrated on the passenger’s side of the vehicle (the
intensity of the impact collapsed the passenger side causing the passenger seat to
collapse to approximately one third of its width). Both you and the victim were
2
Determined by the analysis of the skid marks.
extracted from the vehicle by the fire service. The victim had been in the front
passenger seat of the vehicle, she was unconscious.
[7]
She suffered multiple rib fractures, major airway and blood vessel damage in
her chest, contusions to the brain and lacerations to her head. She died as a result of
her injuries.
[8]
You explained you were driving the victim to hospital to access mental health
services for her. You admitted smoking methamphetamine about an hour before the
crash. You said the cause of the crash was the victim putting the vehicle into reverse.
Analysis of the transmission determined this was not the case.
Furthermore,
responsibility for the extent of the reckless driving, which you have accepted through
your plea cannot be laid at the feet of the victim.
Personal circumstances
[9]
You are 43 years old. You have a number of previous convictions, many of
them for driving offences. These include two convictions for driving a vehicle
dangerously, five for operating a motor vehicle recklessly, one for careless driving,
seven for failing to stop for the police and a number of convictions for driving while
disqualified and failing to comply with various conditions.
Victim impact
[10]
We have heard today from the victim’s mother. She spoke of her utter
devastation for her, her family and friends at the loss of her daughter, her only child.
Starting point
[11]
In these types of cases, where death has occurred due to reckless driving, a
charge of manslaughter or reckless driving causing death can be brought. The more
serious cases tend to be brought as manslaughter.3
3
Gacitua v R [2013] NZCA 234.
[12]
I have considered examples of sentencing where an offender was charged
with manslaughter4 and where an offender was charged with dangerous driving
causing death.5
[13]
The manslaughter cases referred to by the Crown have a starting point of
around seven to eight years’ imprisonment. On the basis of these cases the Crown
submitted a starting point of between six and seven years would be appropriate with
an adjustment downwards to reflect the lower maximum penalty for reckless driving
causing death, 10 years imprisonment.
Your counsel, Mr Crowley, accepted a
starting point of five to six years’ imprisonment would be appropriate.
[14]
The relevant aggravating factors6 in your case are the consumption of drugs,
excessive speed, a persistent and deliberate course of very bad driving, previous
driving convictions, causing death in the course of reckless driving in an attempt to
avoid apprehension and offending while on bail.
[15]
In my assessment this would fall into the fourth category identified in
Gacitua: cases involving extremely high level of culpability with three or more
aggravating factors.7
[16]
You have explained what you say was the reason for you offending. You say
that the victim was your fiancé with whom you had had a volatile relationship and
that you both had problems with drug use. The victim, you say, had a history of
mental illness. You and the victim had spent a couple of days together before the
collision, you had both taken drugs and then the victim made threats to her own life.
You decided to take her to Kenepuru Hospital and ask for her to be admitted. You
drove to Porirua but could not find the hospital. You stopped the car and texted a
4
5
6
7
R v Kala’uta [2016] NZHC 1526, R v Presland [2015] NZHC 1203, R v Pora [2015] NZHC
1104, R v McGrath [2014] NZHC 1583, R v Mika [2013] NZHC 2357, R v Te Maari HC Nelson
CRI-2011-042-1451, 22 June 2011 and R v Thorby HC Whanganui CRI-2009-067-458,
12 February 2010.
R v Teece [2012] DCR 450 and Stephens v Police [2014] NZHC 175. These were both
dangerous driving causing death cases under s 36AA(1)(b), but attract the same maximum
penalty.
Gacitua above n 3 in reliance on the English test set out in R v Boswell [1984] 3 All ER 353
(Crim App) at 357, updated in R v Cooksley [2003] 3 All ER 40 (Crim App) at [5] and adopted in
New Zealand in R v Skerrett CA236/86, 9 December 1986.
Gacitua above n 3 at [27](b).
friend for directions and then drove back towards the motorway. This is when the
police started to follow you.
[17]
You say that at the time of the collision your intention was to get to Kenepuru
Hospital and secure the admission of the victim. You say you evaded the police as
you knew there was a warrant out for your arrest. You feared that if you were taken
into custody the victim would be a risk to herself. This is consistent with the
comment you made to the police to which I have referred when reciting the summary
of facts. This remains your explanation for the context of what happened that night.
You stress, however, your acceptance of full responsibility and it is appropriate you
do so.
[18]
You decided to drive while under the influence of drugs, you drove recklessly
trying to evade the police and that resulted in the death of the victim.
The
appropriate course would have been for you to ask the police for help if you were
indeed trying to take the victim to Kenepuru Hospital.
[19]
In all the circumstances I take a starting point of six years’ imprisonment.
Personal aggravating factors
[20]
You have a number of previous convictions for driving offences. 8 I have
already taken them into account to some extent in setting the starting point of six
years. I also note that you were on bail at the time of the offending and driving in
breach of your licence conditions. In all the circumstances I consider an uplift of six
months to be appropriate.
Personal mitigating factors
Remorse
[21]
I have now received the pre-sentence report prepared by a probation officer
which gives some important insight into your current circumstances. I note that you
are supported by your long-term friends, whom you consider to be your surrogate
8
Refer [9] above.
parents. They describe you as a caring, genuine and loving person and I note you
have provided considerable support to them through their own recent tragedy.
[22]
You discussed with the probation officer your relationship with the victim.
At this point I refer to the letter you have written to me for the purposes of
sentencing. You speak of your deep love for the victim, saying her loss has left you
shattered and bereft. You acknowledge the impact on the victim’s mother and indeed
you say that, immediately after the accident, you gave your then lawyer a card and
apology letter addressed to the victim’s mother. You offer to attend restorative
justice with her, acknowledging how traumatic that would be for both of you, and
you understand she might not wish to participate in restorative justice. You yourself
received severe injuries in the crash. You broke your neck, fractured your back,
received several facial fractures and skull fractures. You have permanent damage to
your vision and spent some two and a half months in the acute brain injury
rehabilitation unit. You say you have no desire ever to drive again.
[23]
You say that you have embarked on a number of courses while you have been
in custody, including grief counselling, which has enabled you to undertake
significant personal development. This attitude and approach is confirmed in the
pre-sentence report, which notes you have been writing a youth outreach programme
and say you want to become a youth worker, in particular to focus on reducing youth
suicide, having worked as a volunteer youth worker in the past.
[24]
Importantly, the pre-sentence report writer considers you genuinely
remorseful, saying you do not try to minimise your responsibility, fully accepting
that, if it were not for your actions, the victim would still be alive.
[25]
While courts are often faced with self-serving expressions of remorse by
offenders, it is clear, as is confirmed by the pre-sentence report, that your remorse,
acceptance of responsibility and wish for rehabilitation, is genuine.
deserving of a credit of six months.
Guilty Plea
[26]
You are also entitled to a discount for your guilty plea.
That is
[27]
When first charged, you had a different lawyer. Mr Crowley says you told
your prior counsel you wanted to plead guilty to reckless driving causing death but
he told you, because there had not been disclosure, you could not do that. Matters
were complicated by the police then laying a charge of manslaughter.
[28]
However, it is clear there was a period of some five months or so from the
time the reckless driving causing death charge was laid before the manslaughter
charge was laid. Disclosure must have been received in that time. So I take that into
account when deciding on the appropriate reduction for the guilty plea. In my
assessment, a discount of around 15 per cent is appropriate.
Minimum period of imprisonment
[29]
The Crown submitted that in the circumstances a minimum period of
imprisonment was available.9 The Court can impose a minimum period when the
effective sentence might otherwise fail to satisfy the sentencing purposes of
denunciation, deterrence, accountability and community protection.
[30]
Only one of the manslaughter cases relied on by the Crown involved a
minimum period of imprisonment.10
A number of those other cases where a
minimum period was not imposed also involved defendants with bad driving
histories. Protection of the community also comes from the disqualification period,
which will be lengthy in this case.
[31]
But perhaps more to the point in this case Mr Lawson, you clearly have
substance abuse problems.
During your period of imprisonment you will have
rehabilitation programmes available to you and at this stage anyway you are
determined to take advantage of them. In all the circumstances I do not consider a
minimum period of imprisonment would be appropriate. It is for the Parole Board to
consider your release, given your behaviour in prison, whether or not you have
availed yourself of rehabilitation programmes and, if so, how you have performed on
those programmes.
9
10
Sentencing Act 2002, s 86.
In McGrath, above n 4, a minimum period of imprisonment was imposed.
Disqualification period
[32]
Under the Land Transport Act 2008 I must disqualify you from driving for at
least one year.11
[33]
I consider this a case where a lengthy disqualification is necessary in order to
protect the community from any further offending. You say you have no intention of
driving again. In the circumstances I consider a disqualification from driving for
five years from your date of release from prison to be appropriate.
Conclusion
[34]
Mr Lawson, on the charge of reckless driving causing death, you are
sentenced to five years’ imprisonment.
You are disqualified from holding or
obtaining a driver’s licence for five years after your release from prison.
Thomas J
Solicitors:
Crown Solicitor’s Office, Wellington
11
Land Transport Act 2008, s 36AA(2)(b).