Tauranga District Court<\/a> earlier this year.<\/p>\nThe prosecution said Smyth failed to check the way was clear before turning across his lane, and this constituted carelessness on his part.<\/p>\n
Careless driving is driving that falls below the standard of care and attention that a reasonable and prudent driver would exercise in the circumstances.<\/p>\n
However, defence lawyers Bill Nabney and Michael Douglas argued Smyth had clearly indicated a right turn, for up to 2.5 seconds, and it was incumbent on the motorcyclist to give way to his vehicle and take necessary steps to avoid the collision, and that she caused the crash.<\/p>\n
Both the police and defence called crash experts to support their cases.<\/p>\n
In a reserved decision, Judge David Cameron noted that, in Smyth\u2019s video interview with police after the incident, it was \u201cnot entirely clear\u201d if he was intending to do a complete U-turn, or a right-hand turn into the work entrance on the opposite side of the road, then back out to park in parallel parks.<\/p>\n
\u201cThis distinction has some relevance, because the New Zealand Road Code regarding U-turns provides that they are normally allowed as long as the road is clear in both directions and it is safe to do so,\u201d Judge Cameron said. <\/p>\n
However, in his view, the distinction between a U-turn and a right-hand turn did not affect who had the right of way in this case.<\/p>\n
The rules for a right-hand turn were to \u201cmove as far as practicable to the right\u201d without encroaching on any lanes that were unavailable to the driver. <\/p>\n
\u201cThe defendant in this case did not move as far as practicable to the right, but turned to the left so his vehicle was close to the left kerb before indicating from that left side of the lane and turning across the lane,\u201d he said.<\/p>\n
Because Smyth had gone to the left, the rule provided that he remained slowed or stopped until \u201cthe roadway was clear of traffic and it was safe to turn\u201d.<\/p>\n
Judge Cameron did not accept the defence submission that Smyth, having slowed and indicated a right-hand turn and commenced that turn, \u201cwas entitled to believe that any following traffic would not attempt to pass him\u201d. <\/p>\n
\u201cHe was the one making the turn, and he had an obligation to give way to any traffic in the same lane that was not changing lanes or making a turn, and an obligation to clearly check that the lane was safe to cross.\u201d<\/p>\n
He agreed with the police\u2019s view that Smyth\u2019s actions of pulling left, but indicating right, were likely to have been confusing to Brown.<\/p>\n
At sentencing, Douglas strongly advocated for a sentence of community detention for Smyth, with emotional harm reparation and nine months\u2019 disqualification from driving.<\/p>\n
He explained that Smyth was often working six-day weeks, picking up extra shifts to \u201cmake ends meet\u201d, and the police\u2019s suggested sentence of community work would be difficult, particularly for his family.<\/p>\n
He was the sole earner with two young children and a wife who was facing significant health challenges and wasn\u2019t currently able to work or drive after surgeries.<\/p>\n
However, Judge Cameron was not persuaded to impose community detention.<\/p>\n
He noted that Smyth worked on a Saturday, on average, once a month, \u201cleaving the way clear for community work to be carried out on Saturdays in the remaining three weeks\u201d.<\/p>\n
\u201cIn my view, the defendant ought to be subjected to community work because that contributes to society in a more tangible way than having the defendant confined to his house on night-time curfew.\u201d<\/p>\n
He considered that Smyth was \u201cnot particularly remorseful\u201d, with a pre-sentence report writer noting Smyth had difficulty accepting he was in the wrong, and \u201ctended to focus on the negative impact on himself and his family\u201d.<\/p>\n
Smyth had since provided a letter of remorse, however, and the judge acknowledged he was clearly an \u201cactive member of society, particularly in yachting and children\u2019s sports, and he\u2019s to be commended for that\u201d.<\/p>\n
Smyth was sentenced to 150 hours\u2019 community work, disqualified from driving for 12 months, and ordered to pay emotional harm reparation of $8000.<\/p>\n
Hannah Bartlett is a Tauranga-based Open Justice reporter at NZME. She previously covered court and local government for the Nelson Mail, and before that was a radio reporter at Newstalk ZB.<\/p>\n
Join NZ Herald\u2019s Open Justice team for Case by Case<\/a>, a video and podcast series examining the disputes and decisions making headlines across New Zealand. <\/p>\n","protected":false},"excerpt":{"rendered":"Once at the hospital, he was told by police that his wife had died, sending him into \u201ccomplete…\n","protected":false},"author":2,"featured_media":553923,"comment_status":"","ping_status":"","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[2],"tags":[74,20133,6256,25755,272068,272069,11519,28649,634,6259,19552,15211,4189,2082,1668,42551,183858,5158,183860,33260,111,43,139,69,1118,33263,1523,103195,5161,24503,1227,223,664,102],"class_list":["post-553922","post","type-post","status-publish","format-standard","has-post-thumbnail","category-new-zealand","tag-after","tag-attention","tag-brown","tag-careless","tag-carelessly","tag-catapulted","tag-causing","tag-collided","tag-death","tag-door","tag-driver","tag-drivers","tag-driving","tag-for","tag-front","tag-karen","tag-lapse","tag-man","tag-momentary","tag-motorcyclist","tag-new-zealand","tag-news","tag-newzealand","tag-nz","tag-of","tag-oncoming","tag-over","tag-rodger","tag-sentenced","tag-smyth","tag-tauranga","tag-the","tag-turn","tag-with"],"_links":{"self":[{"href":"https:\/\/www.newsbeep.com\/nz\/wp-json\/wp\/v2\/posts\/553922","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.newsbeep.com\/nz\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.newsbeep.com\/nz\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.newsbeep.com\/nz\/wp-json\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/www.newsbeep.com\/nz\/wp-json\/wp\/v2\/comments?post=553922"}],"version-history":[{"count":0,"href":"https:\/\/www.newsbeep.com\/nz\/wp-json\/wp\/v2\/posts\/553922\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.newsbeep.com\/nz\/wp-json\/wp\/v2\/media\/553923"}],"wp:attachment":[{"href":"https:\/\/www.newsbeep.com\/nz\/wp-json\/wp\/v2\/media?parent=553922"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.newsbeep.com\/nz\/wp-json\/wp\/v2\/categories?post=553922"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.newsbeep.com\/nz\/wp-json\/wp\/v2\/tags?post=553922"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}