IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY CRI [2014] NZHC 2188 PETER JAMES BASSETT NEW ZEALAND POLICE

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1 IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY CRI [2014] NZHC 2188 PETER JAMES BASSETT v Hearing: 30 July 2014 NEW ZEALAND POLICE Counsel: P S Coles for Appellant D R Davies for Respondent Judgment: 10 September 2014 JUDGMENT OF WILLIAMS J Introduction [1] The appellant Peter James Bassett fell asleep at the wheel on State Highway 1 near Ohau. His vehicle crossed the centre line and crashed into two oncoming cars. The driver of the second car he struck was killed. The partner of the deceased suffered severe bruising to her sternum, left forearm, hand, shoulder, abdomen, upper thighs and legs. The passenger in the first car he struck suffered severe bruising to her right rib cage, elbow, abdomen, left arm and face but her husband, the driver, was thankfully uninjured. [2] Mr Bassett pleaded guilty in the District Court at Levin to one count of careless driving causing death, and two of careless driving causing injury. He was sentenced to 300 hours community work, 12 months disqualification and required to pay $7,500 emotional harm reparation to the estate of the deceased. In respect of BASSETT v NEW ZEALAND POLICE [2014] NZHC 2188 [10 September 2014]

2 each of the two remaining victims he was required to pay a further $1,500 emotional harm reparation. [3] Mr Bassett appealed against the whole sentence but in argument before me, his counsel, rightly in my view, narrowed the ambit of the appeal to the 300 hours community work. The question posed is whether this aspect of the sentence was manifestly excessive. [4] Cases of this nature are some of the most difficult to come before the Courts in terms of the legal and (necessarily) moral judgements that must be made. Often the defendant, as here, is an otherwise responsible citizen, the wrongful act will involve criminal culpability at the lower end of the available spectrum, but the harm is so often tragically catastrophic. It is the marrying of the human propensity to completely avoidable carelessness with the modern automobile that produces the tragedy that must now be confronted an innocent life lost and equally innocent survivors and severely injured both physically and psychologically. [5] In such circumstances the sentence imposed by the Court will often be seen by the victims as a hopelessly inadequate recognition of the damage done, while the offender will often just as genuinely believe that the sentence greatly overstates his or her culpability. These perspectives can never be reconciled except perhaps in face to face restorative justice processes. The best a sentencing court can do is be consistent. Background facts [6] Peter James Bassett is 23 years old. He works as a line technician for Transpower. In the period leading up to the accident, he was working on lines in the Paekakariki region and commuting to his home in Hawkes Bay in the weekends. [7] On the afternoon of Friday 29 October 2013, Mr Bassett was driving a Toyota Hilux work truck on State Highway 1 near Ohau. He was heading home. The north bound section of the road is doubled-lane with a solid yellow line. The south bound section is singled-lane with a white broken line down the centre. This section of road is rural with a speed limit of 100km/h. The accident occurred on a sweeping

3 left curve. Road conditions were dry, visibility was clear, and the weather was sunny. [8] At the same time Mr Bassett entered the curve from the south, two cars approached it from the north. They were Mr and Mrs Stuart in a Suzuki Swift (Mr Stuart was driving), and behind him Mr Perry and Ms Watkins in a BMW. Mr Perry was driving. 1 At this point, Mr Bassett fell asleep at the wheel and instead of negotiating the curve, he crossed the centre line into the ongoing vehicles. [9] His vehicle struck the right side of the Suzuki Swift before cannoning into the front right side of the BMW. All vehicles suffered extensive damage. [10] Mr Perry who was driving the BMW was killed and his passenger Ms Watkins suffered severe bruising to her sternum, left forearm, hand, shoulder, abdomen, upper thighs and legs. [11] Mrs Stuart in the Suzuki Swift suffered severe bruising to her right rib cage, elbow, abdomen, left arm and face. Mr Stuart, who as I have said was driving, was not injured. Alcohol and drugs were not a feature of the offending. Sentencing in the District Court [12] In comprehensive sentencing notes, the learned District Court Judge began by assessing Mr Bassett s culpability. He found this to be at the moderate to serious end of the range primarily because this was not a case of momentary lapse of concentration. Rather, the evidence was that Mr Bassett had been driving for some time while he was too tired. He had repeatedly let his vehicle drift onto the metal shoulder of the road and been forced to correct before his vehicle finally crossed the centre line. He had, the learned Judge found, therefore received a number of warnings that he should not have been driving, and he had failed to heed them. 1 The sentencing Judge inadvertently reversed the order of the cars (see [4]), but counsel pointed out the error before me.

4 [13] The Judge used three comparator cases against which to calibrate culpability: Eades v Police, R v McWhannell, and Barr v Police. 2 Eades was also a careless driving causing death case. Mr Eades was visiting New Zealand from the United Kingdom to see his mother who was terminally ill. He was jetlagged and tired having arrived only two days earlier. He realised he was fatigued but decided to continue driving the short distance through a built up area to his destination. He fell asleep at the wheel, hit a lamp post, injuring himself and killing his three passengers. [14] On appeal, his community work sentence was reduced from 150 hours to 60. [15] McWhannell was a manslaughter case. Mr McWhannell ran a bungy jumping operation and had failed to properly tie off the ropes on a jumper before sending her to her death. Mr McWhannell was sentenced to 400 hours community work the maximum available. [16] Barr involved the defendant driving into the path of a motorcyclist when exiting her driveway. The motorcyclist was killed. In addition to a lengthy period of disqualification and a reparation order, Mr Barr was sentenced to 220 hours community work. That particular part of the sentence was not appealed. [17] In the present case the learned Judge assessed Mr Bassett s culpability as falling somewhere between that in Eades and McWhannell though he had accepted there was no tariff case for careless driving causing death. [18] There was then an acknowledgement of remorse, previous good record, guilty pleas, and a willingness to engage in a restorative justice process. In addition, the Judge noted that Mr Bassett was in steady employment where he was held in high regard, and he did not drink. The Judge noted that Mr Bassett was clearly thoroughly remorseful and accepted full responsibility for what he had done, even though he had no recollection of the crucial events. 2 Eades v Police HC Christchurch CRI , 3 December 2009; R v McWhannell HC Palmerston North CRI , 14 June 2010; Barr v Police HC Rotorua CRI , 28 November 2011.

5 Appeal grounds [19] The appeal is advanced on two grounds: (a) that the learned Judge overestimated the appellant s culpability; (b) that he failed to set a starting point as required by R v Taueki and failed therefore to quantify the appropriate credit to be given for factors personal to the offender in mitigating the starting point. 3 Submissions [20] Mr Coles, for Mr Bassett, argued that: (a) At sentencing in the District Court, the prosecuting sergeant provided a table of five cases in which the level of seriousness was set out together with the disqualification period, community work penalty and reparation order. The cases were Tusa v Police, Eades v Police, Barr v Police, Ramsay v Police, and Chapman v Police. 4 The highest community work penalty was 220 hours in Barr for serious error. Tusa was also a serious failure producing 200 hours of community work. This, it seems, was quashed on appeal. Three of the five cases involved community work penalties of 200 hours, one of 60 hours and Barr at 220 hours. The prosecuting sergeant submitted that the degree of carelessness in this case was in the middle of the spectrum. (b) In failing to adopt a starting point in accordance with Taueki methodology, the Judge arrived at an end point that was well outside that adopted for like cases. They ranged from 60 hours to as high as 220 hours. 3 4 R v Taueki [2005] 3 NZLR 372 (CA). Tusa v Police HC Auckland CRI , 15 November 2010; Eades v Police, above n2; Barr v Police HC Rotorua CRI , 28 November 2011; Ramsay v Police HC Timaru CRI , 10 September 2008; Chapman v Police HC Christchurch CRI , 30 November 2010.

6 (c) This case was most similar to Eades where, on appeal, Panckhurst J reduced the community work component of sentence from 150 hours to 60 hours. (d) The learned Judge should not have used McWhannell as a benchmark for two reasons: (i) Mr Coles had himself brought the decision to the Judge s attention at sentencing, but only because the Judge had sought appendices for a possible electronically monitored sentence. The case was cited to demonstrate that even in far more serious offending with greater culpability, community-based sentences were still considered by the High Court to be appropriate; and (ii) McWhannell was, in any event, a manslaughter case and so was inherently irrelevant on the point for which the learned Judge applied it, the question of setting the level of community work. (e) Since sentencing, restorative justice processes have been entered into in respect of some victims and their families. These have produced positive results and are relevant on appeal. [21] For the Crown, it was submitted that the penalty, though harsh, was well within the range available. Ms Davies pointed to cases where penalties on the same charge had involved imprisonment, 5 and Lee v Police 6. Counsel also pointed to Roberts v Police 7 in which a sentence of six months periodic detention had been imposed. In this case, the Judge having fixed on community work as an appropriate penalty, was entitled to adopt the starting point well in excess of 300 hours because the level of carelessness involved was high he knew he was fatigued, he knew at the time he should have pulled over, and planned to do so shortly thereafter. He had See Findlay v Police HC Christchurch CRI , 19 February Lee v Police HC Hamilton CRI , 11 May Roberts v Police HC Rotorua AP53/99, 26 August 1999.

7 been seen losing control of the vehicle on a number of occasions prior to the crash. The Judge rightly distinguished Eades. In that case, fatigue had also been the cause but there were extenuating circumstances relating to a serious family illness and those killed were Mr Eades own family. [22] The Crown submitted further that the Judge was right to (notionally at least) fix a starting point closer to McWhannell seriousness than Eades. All of the cases cited by the Police at sentencing (Tusa v Police, Barr v Police, Ramsay v Police, and Chapman v Police) involved momentary inattention and so are distinguishable. Assessing culpability [23] In these cases, culpability is assessed by reference both to the offender s own actions and the consequences of those actions. In terms of the actions themselves, the cases show a spectrum of culpable carelessness from a moment s inattention up to a course of careless conduct where the driver consciously opts to take a risk that he or she ought not to have. The most serious forms of this conduct will, I presume, cross over into the dangerous driving category. [24] The cases traversed by counsel suggest that, in addition to a period of disqualification and a requirement to pay reparations, 200 hours of community work is something of a benchmark. It is applied where the death is clearly the result of a moment s inattention by an ordinary private driver all the way to the more serious case of a professional bus driver running the red light and causing severe injury to a pedestrian. [25] Barr is an example of the former. She reverses out of her drive having, she said, looked both ways but simply failed to notice the oncoming Harley Davidson motorcycle with its headlights on until it was too late. In that case, 220 hours of community work was imposed and this aspect of the sentence was not challenged the focus being on an overly long period of disqualification. Nonetheless, Asher J was moved to suggest that the starting point for community work was at the absolute top of the range, if not beyond it. The starting point in that case was, according to Asher J, in the vicinity of 300 hours community work, reduced to 220 hours on

8 account of guilty plea and other mitigating factors. Asher J would undoubtedly have reduced that aspect of penalty if asked to. [26] The second example was Tusa, the bus driver whose actions caused serious injury to the pedestrian. Ronald Young J described culpability as a bad case of careless driving causing injury. He placed weight on the proposition that professional drivers are a special category and owed a higher level of care than ordinary private drivers. On the other hand, the consequence to the pedestrian in that case was not as significant as a careless driving causing death case. [27] King is an example of a case where a momentary lapse in concentration the application of brakes at an intersection causing loss of traction was aggravated by the consequences. 8 The driver then lost control of the vehicle and skidded into a cycling peloton killing three. A penalty of 300 hours community work was imposed. [28] There was much discussion before me in relation to the Eades case, Mr Coles arguing that it was directly on point, and Ms Davies distinguishing it. In the end, I am minded to accept Ms Davies argument. The Eades case did involve falling asleep at the wheel. The result was three deaths. But there were significant extenuating circumstances in that case. Mr Eades was a recent arrival to New Zealand. His mother who was resident in New Zealand was terminally ill and he came to New Zealand with family members to visit her before her death. He had been in New Zealand only two nights and was jetlagged. He too was warned of his fatigue. The Judge records that on one occasion his head snapped back and he hit the restrain above the driver s seat. 9 But he was driving in a built up area and was no more than 1½km from his destination. Those killed were members of his own family his wife, his 68 year old cousin, and his three year old granddaughter. One can see why Panckhurst J reduced the sentence of 150 hours of community work to 60 hours in those circumstances. 8 9 R v King DC Morrinsville CRI , 14 February Eades v Police, above n4, at [4].

9 [29] One case of particular relevance is Roberts v Police. The appellant was (ironically) employed managing a driver safety course. The facts are recorded as follows: 10 The appellant was driving along a stretch of road with extended visibility. There were three vehicles in front of him. He overtook two of them and was in the process of overtaking the third when he saw a vehicle approaching him. He says that he considered pulling behind the vehicle he was in the process of overtaking, but that the gap between that and the following vehicle had closed up, although he acknowledges that prior to commencing his overtaking of the third vehicle there was a gap he could have pulled into. He decided, therefore, to complete his overtaking manoeuvre and did so successfully. However, that was only because the approaching vehicle took evasive action. In the course of taking that evasive action the vehicle went out of control, slewed across the road and was involved in a collision with the first and second of the cars that the appellant had overtaken. The collision caused the death of a passenger in the approaching car and severe injuries to the four passengers in one of the other vehicles. The driver of the approaching car was also injured. The appellant says that he did not see the approaching car earlier because it was hidden in a slight dip at a point when the road turned to the left. [30] The sentence imposed was five years disqualification, six months periodic detention and reparation, fines and costs totalling $8,580. Only the period of disqualification was challenged, and unsurprisingly, Salmon J found that five years was manifestly excessive. The important point however is that six months periodic detention is the equivalent of 200 hours community work eight hours per week over 25 weeks. [31] Though the facts are very different in Roberts, there is a good argument that the level of culpability is comparable to the case on appeal here. The consequences were similar. One death and three injured compared to one death and four injured. In addition, the fateful decision to proceed with an overtaking manoeuvre where there is a dip in the road ahead rendering oncoming traffic invisible, is not dissimilar to a decision to continue to drive when the warning signs are clear that the driver is too tired to do so. In short, both cases involved not mere inadvertence, but rather the conscious taking of unacceptable risk. 10 Roberts v Police, above n7, at 2-3.

10 [32] Although the learned Judge placed culpability in this case somewhere between Eades and McWhannell, I agree with Mr Coles that McWhannell is not a relevant case. It related to an activity too different to driving, and culpability too out of relevant context, to be an applicable benchmark in this case. I set that case to one side accordingly. [33] Though this is a very rough and ready scale, the cases seem to suggest that, all other things being equal (including disqualification and reparations) careless driving causing death in which there is low to moderate culpability when viewed objectively, will produce an end point of up to 200 hours community work. Cases where culpability is serious or very serious, whether by reference to the actions of the driver or the consequence of those actions, 300 hours community work will be the very upper end and 200 hours the very bottom end of the range. [34] In this case, the learned Judge assessed culpability at moderate to serious. The Judge emphasised the fact that Mr Bassett had received numerous warnings that he was too tired to drive. The evidential base for this came from the statement of Andrew Stevenson, who was travelling in a following furniture removal truck. The statement itself was not before the learned Judge, but counsel agreed that it was appropriate for me to consider in terms of assessing culpability for myself. The relevant part of the statement is as follows: Just north of Waikanae, I noticed the ute veering to the left of the road, far enough off the road and onto the verge. His vehicle started flicking stones up onto my vehicle before correcting himself again and getting back into the centre of the lane. Due to this I kept a close eye on this vehicle. During the course of our travels, he continually veered off to the left onto the side of the road before quickly sharpening up and travelling straight, correcting himself. He would do this another 7 to 10 further times before the accident occurred. On a number of these occasions he went that far left the stones were continually flicking up and hitting my truck. On approximately the third or fourth time he veered off to the left, I decided to increase my travelling distance as I was concerned for my own safety.

11 [35] It is perhaps a 20 minute drive between Waikanae and Ohau. There were seven to 10 warnings to Mr Bassett over that period. Indeed Mr Bassett said he had decided to stop in Levin because of his fatigue but of course he did not get there. [36] I agree that these repeated warnings make the ultimate carelessness falling asleep at the wheel particularly serious. Seven to 10 warnings are far too many. I consider that it was open to the learned District Court Judge to come to an end sentence of 300 hours community work. For reasons that are different to those in King, it must be said that overall culpability in this case approaches the level in that case. In that case it was the number of deaths. In this case it was the number of unheeded warnings. It is true that Roberts is somewhat comparable, and it may have been open to the Judge to adopt a lower end point as a result, but I cannot say that the end result was so out of range as to be manifestly excessive. [37] I acknowledge that, since sentencing, some restorative justice processes have been engaged in. They reflect Mr Bassett s real remorse and desire to put matters right as best he can in the circumstances. Mr Bassett offered a full apology to Mrs Stuart and Ms Virginia Perry, and both apologies were accepted. Ms Perry is one of the daughters of the deceased Mr Perry. Other members of his family refused to participate. In the circumstances, I consider these processes while valuable and positive, are not sufficient to now require a material reduction in sentence. They have their own independent justification. [38] I note also that Mr Coles was anxious to point out that in fact Mr Bassett had set his departure time from Paekakariki at around 1pm so as to avoid being overtaken by fatigue. He was, Mr Coles submitted, not unmindful of the risks to road safety in weekly long commutes. [39] While I accept that is so, this thoughtfulness must ultimately be eclipsed by the thoughtlessness in failing to respond to the seven to 10 warnings Mr Bassett received on the road between Waikanae and Ohau that he should have stopped and rested. [40] The appeal is dismissed accordingly.

12 Williams J Solicitors: Broadway Legal Chambers, Palmerston North Crown Solicitor, Palmerston North