Tauranga man Rodger Smyth sentenced for careless driving over the death of motorcyclist Karen Brown

Once at the hospital, he was told by police that his wife had died, sending him into “complete shock”.

He’d since struggled to live on his own, and said that “not a day goes by that I do not wish she was here with us”.

He said it had “destroyed us, our family”.

Karen, who was 67, was a “loving and caring mum”, and her two sons also provided victim impact statements.

They shared the grief of losing their mother, and their sadness that she would miss future events, including marriages and grandchildren.

She was remembered as always willing to lend a hand, and “the glue that held the family together”.

Younger son Matt said he spent most of his days travelling on the roads, and understood that split-second decisions could be the difference between life and death.

“I have seen many incidents and always wondered why people don’t take a few extra seconds to think before they act, to have a completely different outcome. I will spend the rest of my life asking myself why this happened to my mum on that day …”

A fatal right-hand turn

It was just before 6am when Smyth was driving east on Maleme St, Tauranga, heading to work, with Brown riding behind him on her Honda PCX motorcycle.

As he approached his workplace, he braked and moved “very close to the left kerb”, indicated right for between two and 2.5 seconds, then initiated a sharp right-hand turn.

He intended to park in parallel parking on the opposite side of the road.

Brown had maintained her position heading straight ahead in the eastbound lane.

As Smyth’s Mazda Axela crossed in front of her, she collided with the driver’s door and was catapulted from the motorcycle, striking the A-pillar and bonnet of the car before landing on the road.

She was treated at the scene, but died from her injuries on the way to hospital.

A crash investigation found no fault with the Mazda and, while it was dark at the time of the crash, the streetlights were on, and the lighting was assessed as reasonable to good for that time of day.

There were no issues with the road surface, and both vehicles had their lights on.

The 44-year-old defended the charge of careless driving causing death at a judge-alone trial in the Tauranga District Court earlier this year.

The prosecution said Smyth failed to check the way was clear before turning across his lane, and this constituted carelessness on his part.

Careless driving is driving that falls below the standard of care and attention that a reasonable and prudent driver would exercise in the circumstances.

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.

Both the police and defence called crash experts to support their cases.

In a reserved decision, Judge David Cameron noted that, in Smyth’s video interview with police after the incident, it was “not entirely clear” 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.

“This 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,” Judge Cameron said.

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.

The rules for a right-hand turn were to “move as far as practicable to the right” without encroaching on any lanes that were unavailable to the driver.

“The 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,” he said.

Because Smyth had gone to the left, the rule provided that he remained slowed or stopped until “the roadway was clear of traffic and it was safe to turn”.

Judge Cameron did not accept the defence submission that Smyth, having slowed and indicated a right-hand turn and commenced that turn, “was entitled to believe that any following traffic would not attempt to pass him”.

“He 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.”

He agreed with the police’s view that Smyth’s actions of pulling left, but indicating right, were likely to have been confusing to Brown.

At sentencing, Douglas strongly advocated for a sentence of community detention for Smyth, with emotional harm reparation and nine months’ disqualification from driving.

He explained that Smyth was often working six-day weeks, picking up extra shifts to “make ends meet”, and the police’s suggested sentence of community work would be difficult, particularly for his family.

He was the sole earner with two young children and a wife who was facing significant health challenges and wasn’t currently able to work or drive after surgeries.

However, Judge Cameron was not persuaded to impose community detention.

He noted that Smyth worked on a Saturday, on average, once a month, “leaving the way clear for community work to be carried out on Saturdays in the remaining three weeks”.

“In 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.”

He considered that Smyth was “not particularly remorseful”, with a pre-sentence report writer noting Smyth had difficulty accepting he was in the wrong, and “tended to focus on the negative impact on himself and his family”.

Smyth had since provided a letter of remorse, however, and the judge acknowledged he was clearly an “active member of society, particularly in yachting and children’s sports, and he’s to be commended for that”.

Smyth was sentenced to 150 hours’ community work, disqualified from driving for 12 months, and ordered to pay emotional harm reparation of $8000.

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.

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