Family carries a heavy load
The devastated family of Ern and Nancy Sutton are calling for immediate changes to the trucking industry and legislation on drugs and driving.
The couple were killed in a crash almost two years ago, when a load of steel pipes fell off a truck being driven by a man with cannabis in his system.
This week, Palmerston North driver Henry Tawhai, 55, pleaded guilty to a Land Transport Act charge of criminal nuisance in that he failed to properly secure the load of pipes on his truck and trailer unit.
The 25-tonne load of pipes came loose on the road just as Ern and Nancy were driving towards New Plymouth on the afternoon of May 28, 2012.
Ern, who was driving, was unable to avoid the pipes and the couple were crushed to death in their car.
The family is now on a mission to ensure a similar disaster never happens to anyone else in New Zealand.
The Sutton family, who are bereft at the loss of the community and family-focused 83-year-olds, are incensed that Tawhai had smoked a joint while working, yet that charge was dropped by police.
The initial charges of dangerous driving causing death and drugged driving were changed to two of manslaughter, but these were dropped shortly before trial.
The trucking industry was quick this week to point the finger at cowboys working outside the Road Transport Forum and trying to make a fast buck.
They too are angered the more serious charges against Tawhai were dropped.
But police and Crown prosecutors have responded that they had no choice but to lessen the charges because the legalities came down to issues of operation - loading the truck - not driver error.
Ern and Nancy's son, businessman Warren, and his wife, principal Pauline Sutton, spoke out on behalf of the family after Tawhai's sentencing, determined to share with the public what they believe went wrong and put it to rights.
But they also believe Tawhai, the only person who faced any charges, was the scapegoat for the disaster. The Suttons were horrified to learn that his blood test revealed he had smoked the equivalent of a joint within four hours before the crash at 2.30pm.
He had started work at Palmerston North at 6am before leaving for the Bell Block-based loading depot, Pipes New Zealand.
While a coroner's inquest into the deaths is still to come, the family wants urgent public debate "before someone else gets killed by another load of pipes", Warren says.
Experts have said the way the pipes were loaded that day was not acceptable practice.
"Pipes within pipes is a no-no and there were no bolsters to support them," he says.
The way they were loaded meant a domino effect would kick in should any of the ties break.
"If one went bang the whole lot would go bang."
And this was what the investigators found did in fact happen.
That domino effect continued for the family when the more serious charges were withdrawn.
"We think manslaughter fairly reflected the loss of mum and dad's life.
"We are in total disagreement to drop these charges before the jury even gets to hear it."
They believe the charges against Tawhai were reduced because of other parties' share of the responsibility for what occurred.
The removal of the drugged driving charge has major implications for the future, they believe.
They are aware the trucking industry does not condone drugs in the workplace and some employ specialists to carry out random testing.
"For them to now learn a drugged driver has gone through the system without penalty is unacceptable to us as a family. There needs to be someone of higher authority than us to take that on board."
And the truckie industry is right behind that call.
The Road Transport Forum's chief executive Ken Shirley is disgusted at the poor loading of the pipes, which he describes as a gross breach of the New Zealand Trucking Code.
He accuses "bottom-feeding" trucking and loading companies operating outside the rules and intent on making a buck.
They offered the cheapest price and cut corners to do it.
The truck should never have been allowed to leave the yard, he says.
The industry had a zero tolerance for drugs and alcohol.
"We take that very seriously," Mr Shirley says. "We have zero tolerance for alcohol and other drugs and recommend to our members they carry out random testing."
Statistics showed that of all fatal road crashes, 30 per cent were alcohol related and of that 30 per cent, truckies were only involved in 3 per cent.
"That shows a pretty good track record, but we're not complacent about it."
He disagrees with the criticism of the current trucking code, which he believes is fully suited to this country's conditions.
If those involved in loading the truck had followed the code the load would never have come off, he says.
And criticism that the code was too difficult to understand was also wide of the mark.
"Our members understand the code very clearly," he says.
And neither does he believe there are still insecure loads on the roads.
The police officer in charge of the case, Detective Paul Barron, says he was the one responsible for dropping the two initial charges - dangerous driving and drugged driving - after New Zealand's top legal minds advised that the charges could fail to hold up under the scrutiny of a trial.
"It was after a comprehensive review of the charges. Ultimately I made the decision following advice from senior officers and police legal section - along with the Crown."
Tawhai's driving was not at fault, he says. He did not drive dangerously, he was not speeding, nor found to have broken the law while driving northwards.
Rather, his unlawful act was operational, Mr Barron explains, in that he had failed to put sufficient ties around the load.
"There was still an argument to be had but not one we were prepared to argue in court because there was a chance to lose it."
Tawhai was then charged with the manslaughter of Ern and Nancy Sutton.
He points out the matter of the Suttons' death is still to go to the Coroners Court "and it may be worked out there. It will be complex".
"We will continue with that process now the criminal charges have proceeded through the court."
Just who else might be deemed responsible and any recommendations which might stem from the deaths were likely to be tabled at the inquest.
The whole situation is a tragedy all round, he says.
He feels immensely sorry for the Suttons. "It's a huge tragedy for them - and for the driver."
Crown solicitor Cherie Clarke explained the manslaughter charges were withdrawn "after receipt of the defence expert's report and discussions with police experts which clarified for the Crown it could not prove the charge beyond reasonable doubt that Mr Tawhai had been grossly negligent".
Road Transport Association western branch spokesman Tom Cloke, of New Plymouth, says their membership is keen to support any move for a judicial review of the case.
"Our major gripe is the use of any sort of drug impairing the driver's ability both to drive and load goods.
"Unfortunately the Suttons paid the penalty. We totally sympathise with them and we will support them in any way."
Tawhai's letter of remorse
To the whanau Suttons,
My name is Henry Tawhai, I was the driver of the vehicle which was involved in the accident with your koro, nanny, mum and dad, brother and sister, aunty and uncle.
I'm so very sorry for what happened on that day back in May 2012.
I will remember that day for the rest of my life. I still have nightmares of the accident, and photos of the autopsy.
Again my heart and wairua goes out to Te Whanau Suttons for your loss.
If I could change what happened on that day, I would, but as I know, I can never do that.
Hopefully these few words can start the healing, towards some kind of closure for Te Whanau Suttons.
I feel in some way I must pay for the death of your whanau members.
In what way I do not know yet, hopefully with your whanau's guidance I can find some ways to repay Te Whanau Sutton for your great loss.
I hope this can be the first step towards helping your whanau, as for me, I will continue to find a way, or ways, to celebrate the wonderful life that Mr and Mrs Sutton had. Hopefully one day I can feel at peace with my actions on that day back in May 2012.
I hope that some time in the future Te Sutton Whanau can find it in their hearts to forgive me for my involvement on that dark day.
Hopefully your whanau and myself can look to a brighter future.
With that said, once again I am deeply sorry for your loss.
Kia Kaha, kia manawanui,
With much arohanui
Taranaki Daily News