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Queen v Clark [2012] CKHC 1; CRC 50 of 2012 (28 January 2012)

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

CR 50/2012

THE QUEEN

V

AUDREY MICHELE CLARK

Hearing: 28 January 2012 (NZ Date/Time)

Counsel: Mr Tuaine Manavaroa for Crown
Ms Sarah Inder for Defendant
Mr Mike Mitchell for Victim

Sentence: 28 January 2012

[1] This is a sentencing for Audrey Michele Clark, who a day or so ago pleaded guilty to a charge of careless driving causing injury on 18 January 2012, to Ms Bryder, a motorcycle rider. Mr Mitchell appears for her on a watching brief basis. The plea of guilty was entered in the Justices of the Peace Court but Justices of the Peace, it is agreed, have no jurisdiction to sentence in a case as serious as this. The maximum penalty is five years' imprisonment or a $5,000 fine. Accordingly, the sentencing has been adjourned to the High Court and convened on an urgent basis because the defendant, Ms Clark, is a US citizen in the Cook Islands on holiday and wishes to return to the USA as soon as possible, preferably on the next flight.

[2] Normally, of course, sentencings are done in the Courtroom in Avarua with the Judge actually present. In this case, all the Court officials and counsel are present in Avarua, as is the defendant and her supporters. But because the High Court is not scheduled to sit in Rarotonga for another few weeks, and in order to have the matter dealt with expeditiously the sentencing has been arranged with the Judge in New Zealand and everyone else in Avarua.

[3] The sentencing, however, is being done by way of a speaker-phone in the Judges' Chambers in Avarua. The door of the Judges' Chambers is open so members of the public or the press could be present if they wish. The Judges' Chambers in Avarua opens directly onto the public foyer in the Courthouse so that should members of the public wish to be present they can attend without difficulty. In that way the sentencing, normally done in open Court, is being done in a way which as near as possible replicates what would happen if the Judge were physically present in Rarotonga sentencing the defendant in the Courtroom on the opposite side of the public foyer. There is, therefore, jurisdiction to deal with the matter in this way.

[4] The sentencing hearing has been convened in this fashion to assist the defendant in her departure and with the requirements for openness in sentencing being honoured as far as practically possible.

[5] Turning to the facts of the matter, on 18 January 2012 at about 8:00 pm, the defendant was driving a rental vehicle in Rarotonga. The victim, Ms Bryder, was riding her motorcycle in the opposite direction. For what appears to be a relatively brief period, the defendant – who, as mentioned, is an American citizen – drove her car on the right-hand side, that is the incorrect side of the road, and collided with Ms Bryder's motorcycle. There is something of a dispute as to whether the headlights were on full-beam or not, but that is irrelevant for the purposes of sentencing.

[6] It appears to be the case that shortly before the accident Ms Clark's vehicle had suffered a blown tyre, which had to be replaced. That incident, whilst not causing an enormous amount of stress, may have acted as an irritation or a distraction from her driving and caused her to drive as if she was driving in the United States and not as if she was driving in the Cook Islands. That may have led her to cross the centre line and drive on the wrong side of the road.

[7] As a result of the impact Ms Bryder was thrown up onto the windscreen of the vehicle and then fell back onto the road. She was injured in the accident. Ms Clark, a nurse, and her passenger, who was also a nurse, immediately attended to the victim, summoned the ambulance and the Police, and arranged for the victim to be taken to hospital. She was found there to have sustained a dislocated hip, an undisplaced fracture of her right wrist and a number of cuts and abrasions. The defendant immediately spoke to the Police at the scene, admitted full responsibility for the accident and has behaved responsibly as far as the victim is concerned and with the Police throughout the matter since.

[8] With the victim's approval Ms Clark has visited the victim in hospital, and Ms Inder advises - in addition to her submissions - that the victim has now just been released from hospital. Ms Clark arranged for the criminal prosecution process to be accelerated and the Police co-operated in that way, laying the Information a day or two ago and, of course, with Ms Clark entering the plea of guilty in the Justices of the Peace Court shortly thereafter.

[9] Ms Clark has been driving for 35 years. This is the first accident she has apparently had; certainly the first time that she has been involved in a prosecution either in the United States or anywhere else.

[10] The question, really, is what proper sentence should be imposed in a case such as this? Mr Manavaroa for the Crown draws attention to the decision of the then Chief Justice, Police v Teokotai (2006) CIHC CR 10/2005, 19 May 2006, which – relying on English precedent – listed a number of the factors to be taken into account when sentencing for offences such as careless driving causing injury and some of the more serious driving offences.

[11] This is a case where, in the Court's view, the defendant has behaved in a thoroughly responsible manner ever since the accident, both towards the victim and towards the criminal prosecution process. Reparation is sought for the damage to the victim's motorcycle ($1,879.58), $100 for quotes as to the repair costs, $55 for medical treatment/report and hospitalisation, and $740 for Ms Bryder's loss of wages.

[12] In addition to the reparation, Ms Clark has paid $500 to the rental car company for damage to the motor vehicle and has herself lost wages because her departure from her holiday in the Cook Islands has been delayed by the necessity to attend Court and deal with this issue.

[13] The Court's view is that the appropriate sentence is certainly to impose a conviction.

[14] As to a disqualification, because Ms Clark intends to leave the Cook Islands within the next 24 hours, it may be thought that there is an unrealistic air in imposing any length of disqualification. But against the possibility of her return to the Cook Islands, the Court's view is that the punishment should include disqualification from holding or obtaining a motor driver's licence in the Cook Islands for a period of 12 months, with that disqualification commencing on 30 January 2012 (Cook Islands time). The postponement is designed to ensure that she can attend to the finalisation of her affairs in the Cook Islands and get to the airport – but the disqualification will kick in immediately after her departure.

[15] As discussed with counsel, the sums sought for reparation is not opposed but there are various payees. The Court's direction is that Ms Clark pay reparation totalling $2,774.58 to the trust account of Browne Harvey & Associates, for that firm to disperse the sum to the various payees for:

(a) $1,879.58 for the damage to the damage victim's motorcycle;

(b) $100 to whoever paid for the quotes for that damage;

(c) $55 to the hospital authorities for the medical expenses; and

(d) the amount of $740 to Ms Bryder in reparation for her lost wages.

[16] In view of the sizeable sum imposed for reparation and to acknowledge Ms Clark's thorough responsible attitude to this unfortunate mishap, in the Court's view this is not a case where a fine should be imposed in addition to the conviction.

[17] There will be orders in those terms.

[18] On evidence of the receipt of the $2,774.58 by Browne Harvey & Associates, Ms Clark may uplift her passport which is currently held by the Cook Islands Police.

Hon. Justice Hugh Williams