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Michael Robert Pollard v/s The Queen


Company & Directors' Information:- I-QUEEN PRIVATE LIMITED [Active] CIN = U74999KL2017PTC048635

    CA No. 111 of 2018

    Decided On, 09 July 2018

    At, Court of Appeal of New Zealand

    By, THE HONOURABLE MR. JUSTICE CLIFFORD
    By, THE HONOURABLE MR. JUSTICE VENNING & THE HONOURABLE MR. JUSTICE MANDER

    For the Appellant: C.P. Brosnahan, Advocate. For the Respondent: R.K. Thomson, Advocate.



Judgment Text

REASONS OF THE COURT

(Given by Clifford J)

Introduction

[1] In the early hours of the morning of 22 October 2016 a car being driven by the appellant, Michael Pollard, struck and seriously injured Jesse Minnell. Mr Pollard was charged with wounding Mr Minnell with intent to cause grievous bodily harm, in the alternative dangerous driving causing injury, and failing to stop after an injury-accident. Mr Pollard elected trial by jury on those charges.

[2] At the commencement of his trial, Mr Pollard entered guilty pleas to the alternative charge of dangerous driving causing injury and to that of failing to stop after an injury-accident. He was then tried on the charge of wounding with intent to cause grievous bodily harm. He was found not guilty on that charge.

[3] Mr Pollard was subsequently sentenced by the trial Judge, Judge Spear, to two years and seven months’ imprisonment, ordered to pay emotional harm reparation of $10,000 and disqualified from driving for two years.[1]

[4] Mr Pollard now appeals his sentence of imprisonment as being manifestly excessive. In all the circumstances, he says the end sentence should have been one of less than two years imprisonment, and home detention should have been substituted. He does not challenge either the emotional harm reparation or the disqualification.

Facts

[5] On the evening of Friday 21 October 2016 Mr Pollard was socialising at the Red Lion Inn, across the Whanganui River from the centre of the city. Mr Pollard left the hotel at approximately 1 am in the morning. At Mr Pollard’s trial there was no suggestion that at any relevant point Mr Pollard had an unlawfully high level of blood alcohol.

[6] On leaving the Red Lion Mr Pollard drove into the city centre, purchased a meal and headed back towards his home. As he did so, he encountered a crowd of people congregating on the road outside the Red Lion Inn. The police were in attendance. The hotel had closed at about 2 am, and a fight had broken out between several of the patrons leaving the hotel. As Mr Pollard drove through the crowd, someone kicked the passenger side of his car. He stopped his car, turned and drove back through the crowd. He did that hoping that someone might abuse him and, in that way, identify themselves as the person who had kicked his car. No one did, in fact, react like that. In his police interview Mr Pollard described what then happened in the following way:

A. I did another u-turn to, to head home. My driving was, was, was slow. Obviously. After you doing a u-turn you’re almost stopped so I was accelerating but not at any great rate. Just, just driving along looking in front of me there was no traffic on the road. There was lots of people still on the left but I passed a group and then there was like another group of about five, where I, I assumed whoever had kicked the car I assumed was one of these people and again I was expecting a little bit of abuse or as I say hoping that somebody identify themselves as the guy that’s kicked the car, being the most likely suspect is the guy that one of (inaudible) gonna give me a lot of abuse would’ve been the most likely guy to have kicked the car. And, and nothing. And I was just glance, glanced at, at the, the pedestrians on the side of the road. Nothing happened and I glanced back to in front of me and he’s just there, he’s just fucking in front of me he must’ve just jumped out straight in front of me and he’s waving his fist and fucken shoutin’ I don’t know what he was sayin’ but he was yeah fuck you know. And I hit him, I hit him.

RS When you hit him how fast would you have been going?

MP I was probably going about 20?

[7] The police took a different view. They arrested Mr Pollard in the early hours of the Sunday morning at his home: they charged him with causing grievous bodily harm with intent to do so. The factual theory behind that charge, at that point based on the observations of police officers attending the scene, was as Mr Pollard drove through the crowd on the second occasion he had identified Mr Minnell as the person who had kicked his car. Mr Pollard had then turned, targeted Mr Minnell and, accelerating heavily, hit Mr Minnell as he drove through the crowd for the third time.

[8] The police subsequently laid the alternative charge of dangerous driving causing injury, and a charge of failing to stop. From the outset, Mr Pollard indicated he would plead guilty to both those charges. Mr Brosnahan, his trial counsel and counsel on the appeal, frankly acknowledged that the decision to enter guilty pleas before the jury had been a tactical one.

The sentencing decision

[9] In his sentencing notes Judge Spear first very properly recorded that, given the jury’s not guilty verdict, Mr Pollard was being sentenced on the basis that he had not known Mr Minnell was on the road in front of his car and that he had not deliberately driven into Mr Minnell.[2] The Judge then summarised, very much as we have done above, what occurred in the lead up to Mr Pollard driving through the crowd on the road outside the Red Lion for the second time. The Judge recorded what then happened in the following terms:

[6] You drove on for a very short distance and then did a U-turn and drove back slowly through or passed the crowd. The evidence you gave at the trial was that you were trying to ascertain who had slapped the car. How you expected to be able to ascertain who that was remains a matter of some interest but, in any event, you drove through that crowd back towards the town bridge. However, almost immediately after passing the crowd you did another U-turn and drove back towards the crowd. You did so under heavy acceleration almost immediately after completing the U-turn.

[7] The fact that you only hit one person, as you drove back under heavy acceleration through the crowd, is nothing short of a miracle. You hit young Jesse Minnell, a young man out for a night on the town with friends, who was by all accounts in very good humour. Jesse Minnell was knocked into the air by the force of the blow from your car and landed on his head. You slowed down, probably stopped momentarily, but then drove away under acceleration and went straight back to your home that is only a minute or two’s drive from the Red Lion. You said that you panicked. What you did not do is stop and see whether the person you had hit was injured. That tells me quite a bit about you.

[10] The Judge concluded that Mr Pollard’s driving involved a very high degree of dangerousness. The Judge reasoned:

[14] ... This was not a driving event where you were suddenly confronted with a situation that required you to exercise particular care. You had driven through this group twice before you turned around and accelerated heavily down the road and through the channel between the crowd.

[15] I must accept for sentencing purposes that there was a 'channel' (and I use that term deliberately) through which you chose to drive. I must also accept for sentencing purposes today that you did not see Jesse Minnell. However, no one who sat through that trial could ignore the closed-circuit television footage, the security camera footage, that showed you doing your last U-turn and then almost instantly could be heard the sound of very heavy acceleration. There can be no other way to characterise your actions by putting the car under heavy acceleration at that time as you were attempting to drive through or passed this group of people who were on both sides of the road and some were actually on the road. To accelerate heavily along the road at that time knowing that there was this crowd outside the Red Lion Inn was unquestionably highly dangerous. I consider that it is right up near the most serious of cases of this type insofar as the degree of dangerousness is concerned.

[11] The Judge then assessed the seriousness of the injuries Mr Minnell had suffered. Mr Minnell was a young man, who had been attending university and who had had his life in front of him.[3] He was now on the benefit, unable to work, suffering from serious head injuries and with physical disabilities that would be with him for the rest of his life. Those injuries were, the Judge concluded, 'near the top end of the scale of seriousness'.[4]

[12] On that basis, the Judge set the starting point sentence for Mr Pollard on the charge of dangerous driving at 36 months imprisonment.[5]

[13] The Judge then addressed the failing to stop charge. There was a need, he said, for the Court to be very clear and emphatic. There could be no good reason not to stop after an accident. An excuse based on panic, as Mr Pollard had advanced, simply did not wash. Nor was it a satisfactory explanation to suggest that because there were a large number of other people around they would have been able to render assistance.[6] The Judge set a nine-month uplift on account of that charge.[7]

[14] Then, on account of a 2012 conviction for dangerous driving and a 2015 conviction for drink driving, the Judge added a further uplift of two-months’ imprisonment to arrive at a starting point sentence of 47-months’ imprisonment (three years and 11 months).[8]

[15] The Judge then considered factors personal to Mr Pollard. He first acknowledged Mr Pollard’s commitment to pay $10,000 emotional harm reparation. The Judge accepted that was an expression of Mr Pollard’s genuine remorse. The genuineness of that remorse was, the Judge concluded, further confirmed by a letter Mr Pollard had written to Mr Minnell and his parents. In recognition of the genuineness of that remorse, the Judge reduced Mr Pollard’s sentence of imprisonment by eight months.[9]

[16] As for the discount for Mr Pollard’s guilty pleas, the Judge acknowledged the tactical decision that had been made. But Mr Pollard could have pleaded guilty at the first reasonably available opportunity, and had not done so. On that basis, the Judge allowed a discount of 20 per cent, rather than a full discount of 25 per cent.

Appeal

[17] Mr Pollard’s appeal is based on the proposition the Judge’s starting point sentence of three years and 11 months’ imprisonment was too high because:

(a) The three-year starting point on the dangerous driving causing injury charge was out of kilter with starting point sentences on that charge and the more serious charge of dangerous driving causing death.[10]

(b) The uplifts for the charge of failing to stop and for the previous convictions were excessive.

(c) As Mr Pollard had always indicated his willingness to plead guilty to the alternative charge of dangerous driving causing injury, and to the charge of failing to stop, he should have received the full 25 per cent discount for his guilty pleas.

[18] Mr Brosnahan submitted that the Judge had not, as this Court had emphasised was appropriate in Gacitua v R,[11] approached the measurement of Mr Pollard’s culpability by reference to the factors listed in its earlier decision, R v Skerrett.[12] Those factors had been identified originally to assist judges assess a driver’s culpability where death or injury occurs unintentionally albeit as a result of dangerous or reckless driving.

[19] They can be summarised under four headings:

(a) highly culpable standard of driving at time of the offence;

(b) driving habitually below acceptable standards;

(c) outcome of the offence; and

(d) irresponsible behaviour at the time of the offence.

[20] Taking that approach would have involved, Mr Brosnahan submitted, treating Mr Pollard’s failure to stop being seen as an aggravating factor - being irresponsible behaviour at the time of his dangerous driving. Previous convictions should have been assessed similarly - being habitual driving below acceptable standards. The lead charge here was dangerous driving causing injury, not death. That charge itself encapsulated Mr Pollard’s culpability. There were no aggravating factors to Mr Pollard’s dangerous driving, other than the inherent danger of heavy acceleration whilst driving through a crowd of people on a road. A starting point sentence in the vicinity of 18 months was appropriate on the basis of relevant sentencing decisions. An uplift of no more than six months was called for on account of the failure to stop and the previous convictions, resulting in an end sentence of less than two years’ imprisonment, to be converted to home detention.

[21] For the Crown, Ms Thomson argued that the Judge’s sentencing outcome was within range, and that home detention was - given the seriousness of the offending and irrespective of the sentence of imprisonment identified - not an available option.

[22] In the circumstances as the Judge, the thirteenth finder of fact, found them to be, hitting a person in the crowd was almost inevitable. There was no question Mr Pollard was aware of the crowd of people he was attempting to drive through: his own evidence confirmed that. The rate of acceleration - the direct result of Mr Pollard’s deliberate action - only added to the dangerousness. His actions were, as the Judge held 'unquestionably highly dangerous'. The severity of Mr Minnell’s injuries spoke for themselves.

[23] There was no error in considering the failure to stop conviction separately from the dangerous driving conviction. The Judge was entitled to impose an additional uplift on account of the earlier offending. Combined, the overall starting point sentence was within range.

[24] The discount for remorse of eight months, or 17 per cent, was generous. Together with the discount for guilty plea, it could not be said that the Judge had failed to allow sufficient discount for factors personal to Mr Pollard.

Analysis

[25] As noted, the courts have identified various aggravating factors to assist in determining a person’s culpability for their dangerous or reckless driving because of the difficulty of fixing culpability for harm caused which was not intended. Those factors are to be used as a guide in that exercise. But, the sentencing exercise is - as the courts have often emphasised - very fact specific. Thus, when determining culpability, the task for the sentencing Judge, and this Court on appeal, is not one of simply counting the number of aggravating factors present. The presence or absence of aggravating factors is a guide. What is required is for the Court, at the end of the day, to stand back and make an overall evaluation of culpability.

[26] Taking that approach there are, in our view, three elements of Mr Pollard’s offending that determine his culpability.

[27] First, and as could only have been the case, Mr Pollard was well aware of the crowd of people on either side of the road outside the Red Lion Inn that evening. The evidence varied, but our reading of it is that there was a minimum of between 15 and 25 people involved. Mr Pollard had driven through that crowd twice before he did so when colliding into Mr Minnell. The incident began when someone banged on his car, in an apparent reaction to Mr Pollard driving through that crowd the first time. That action had, by Mr Pollard’s own admission, annoyed him. He turned for the first time, and drove through the crowd for the second time in an effort to flush out the person in question. Members of the crowd who were witnesses at trial had different perceptions of the speed at which Mr Pollard had been driving on those occasions. Be that as it may, Mr Pollard’s account was that he did not see who hit his car the first time he drove through the crowd, nor was he able to identify that person on the second occasion. On the basis of the jury’s verdict, the Judge sentenced him accordingly.

[28] But by the time he turned for the second time, and went to drive through the crowd for the third time, Mr Pollard was - in general terms - well aware of the crowd around him. Again, based on the jury’s verdict, the Judge accepted that Mr Pollard perceived 'a channel' through which he could nevertheless drive.

[29] Then, at night and surrounded by people on the road, Mr Pollard turned to drive back through that crowd of people. As he did so he immediately accelerated. There was no challenge to the expert evidence that the acceleration was 'hard': the experts, again unchallenged, said it involved the 'pedal to the floor' action. A taxi parked in the area had its CCTV camera running. We have looked at that footage. The Judge identified that footage as having a particular impact on all in the Court room. It was played a number of times.

[30] Mr Pollard’s car cannot, itself, be seen. But, the soundtrack records the very distinctive sound of Mr Pollard’s acceleration beginning and then, some two seconds later - to the listener, almost instantaneously - the sickening thud when Mr Minnell was hit.

[31] Secondly, the inherent dangerousness of accelerating in that way does not fully capture the inherent dangerousness of what Mr Pollard did. By his own account, he was not looking straight ahead where he was driving: he was distracted (by Mr Brosnahan’s characterisation, trying perhaps to avoid) those members of the crowd on his immediate left. But, given that he had already driven through the crowd twice before, the need to do so carefully and mindful of all those around him must have been obvious.

[32] In his opening address to the jury Mr Brosnahan put it this way: 'Did he drive in an appalling and dangerous manner? Yes he did.' In his closing address Mr Brosnahan characterised Mr Pollard’s driving as 'stupid, dangerous, reckless, [and] brainless. There is no getting away from that.' We agree with both characterisations.

[33] This was, therefore, not an instance where a reasonably remote risk unfortunately eventuates. As the Crown put it, given Mr Pollard’s actions it must have been almost inevitable that he would collide with someone in the way that he did and, in doing so, cause severe injury.

[34] We agree with the Judge that this was dangerous driving of the most serious kind.

[35] By the same token, Mr Minnell’s injuries speak for themselves. At one point, it was thought he would not survive. He did survive, but with a seriously and permanently reduced quality of life. We do not accept that the starting of three years was excessive. As we noted above, sentencing in this area is fact-specific. The cases Mr Brosnahan cited before us are of limited utility. The nature of the driving and the other aggravating features present in those cases is very different to that here. Further, some of the cases, such as McCullough v Police, involved a number of mitigating factors simply not present here - in particular, resulting physical and emotional trauma for the driver. Applying the approach in Gacitua v R, we are satisfied that a starting point of three years was within range.

[36] Continuing with that approach, and assessing Mr Pollard’s action in failing to stop and his previous convictions as aggravating factors to the charge of dangerous driving, we are however satisfied that the additional sentence the Judge imposed by reference to those matters was excessive. In our view, seen as aggravating factors in the context of a three year starting point, an uplift of six months on account of both those factors was sufficient. We consider the impact of that conclusion at [39], after considering whether the Judge gave inadequate discounts for Mr Pollard’s remorse and guilty pleas.

[37] As the Supreme Court has emphasised, discounts for remorse in addition to those for guilty pleas are to be given in exceptional circumstances only.[13] Similarly, while the Court m

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ust take into account offers of reparation under s 10 of the Sentencing Act 2002, this Court has confirmed that these sorts of discounts 'will generally be limited'.[14] The eight-month discount the Judge allowed for Mr Pollard’s remorse was generous, particularly by reference to the cases cited before us. [38] Similarly, there can be no challenge to the approach the Judge took to the guilty plea discount. This Court has approved that approach on many occasions.[15] [39] Applying an uplift of six months’ imprisonment (rather than 11 months’ imprisonment) results in an end sentence (after a discount of eight months for remorse and of 20 per cent for the guilty pleas) of two years and three months’ imprisonment. On that basis, we are satisfied that the sentence the Judge imposed of two years and seven months’ imprisonment was manifestly excessive. Outcome [40] The appeal is allowed. [41] The sentence of two years and seven months’ imprisonment on the lead charge of dangerous driving causing injury is quashed. A sentence of two years and three months’ imprisonment is substituted. Given the way we have arrived at the sentence, it is necessary to alter the concurrent sentence imposed by the Judge on the charge of failing to stop. The separate, concurrent, sentence of nine months on the charge of failing to stop is quashed and one of six months, concurrent, is substituted. -------------------------------------------------------- [1] R v Pollard [2018] NZDC 4154. [2] At [2]. [3] At [16]. [4] At [16]. [5] At [17]. [6] At [18]. [7] At [39]. [8] At [19]–[21]. [9] At [26]–[27]. [10] May v Police [2012] NZHC 624; McCullough v Police [2013] NZHC 279; Henderson v Police [2017] NZHC 2219; and Bryant v Police HC Blenheim CRI-2011-406-20, 5 December 2011. [11] Gacitua v R [2013] NZCA 234. [12] R v Skerrett CA236/86, 9 December 1986. [13] R v Hessell [2010] NZSC 135, [2011] 1 NZLR 607. [14] R v Johnson [2010] NZCA 168 at [28]. [15] R v Tipene CA269/01, 27 May 2002.
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