Auckland taxi driver Kiflay Abera, whose driving killed a pedestrian, has disqualification period reduced by High Court

Floral tributes and posters laid at the scene on New North Rd where Jason McEwen was killed while walking his dog last year. Photo / Dean Purcell

A taxi driver had worked about 30 hours over two days and then didn’t adhere to the required stand-down period before he made the fatal decision to get back behind the wheel.

Kiflay Abera was fatigued when he reversed into a sign, which then fell on to a pedestrian and killed him.

Jason McEwan was out walking his dog in June last year on New North Rd in Mt Albert when he was hit by the sign.

Abera had just dropped off a passenger when he tried to reverse into a parking space.

But as he did, he went over a raised garden bed and into the signpost, which struck McEwen in the head.

Abera then continued over the garden bed and struck another vehicle. The driver of that vehicle was not injured but McEwen died at the scene.

Abera went on to plead guilty to a charge of careless driving causing death and was sentenced to 230 hours of community work and disqualified from driving for 18 months.

Now, he has argued he should be allowed back behind the wheel sooner than the court set out.

When the matter went to court, it was revealed Abera had worked more than 16 hours on June 17, then 14 hours and 39 minutes the next day.

Because he holds a transport service licence, he was required to wait at least 10 hours before resuming work on June 19, the day of the crash, but he only waited eight hours and 39 minutes.

Jason McEwen died at the scene despite CPR efforts. Photo / Jason Dorday

Abera then worked another eight hours and 43 minutes, and had dropped his last passenger off moments before the fatal crash.

At sentencing, Judge Belinda Pidwell found that Abera was suffering from fatigue and had not taken the required breaks from driving.

“This was not an accident without cause, and this was not a momentary lapse of inattention,” Judge Pidwell said.

“This was a decision to drive outside of the boundaries of his permitted licence, those boundaries specifically imposed by law to prevent exactly what has happened on this occasion, namely driver fatigue causing harm.”

Abera offered to pay $10,000 to McEwen’s family, which was ordered. And he was ordered to additionally pay $10,000 in reparation to the driver of the other vehicle he crashed into, whose car was written off.

‘A poor piece of driving’

Recently, Abera took an appeal to the High Court, challenging the length of his disqualification and the amount of reparation.

Abera’s legal counsel said his client’s offending sat at the lower end of the scale.

He argued Abera had put his car in the wrong gear and described it as a momentary lapse in judgment.

However, in High Court Justice Graham Lang’s recently released judgment, he noted there had been nothing in the summary of facts to suggest Abera was in the wrong gear.

New North Rd in Mt Albert, where Jason McEwen died. Photo / Michael Craig

“I would not classify this series of events as constituting a momentary lapse of attention or judgment,” Justice Lang said.

“Rather, it was a poor piece of driving caused by Mr Abera accelerating the vehicle whilst it was in reverse …”

However, it was Abera’s future level of risk that Justice Lang focused on when considering the appeal.

He found that at 64 years old, Abera had no previous convictions and was unlikely to present further danger to other road users.

Abera was also off the clock when the incident occurred, having just finished for the day.

Justice Lang reduced Abera’s disqualification from 18 months to one year, which he considered to be still a lengthy period given that driving was his primary source of income.

The total amount of reparation Abera has to pay to McEwen’s family and the driver of the other vehicle was also reduced to $5000 each.

Justice Lang said this was in part because Abera has no source of income to pay the higher amount, and because the sentencing judge didn’t order a financial assessment of his means.

Speaking to NZME, Abera’s lawyer Philip Hamlin said Abera had engaged in the restorative justice process with McEwan’s family, during which he expressed his condolences and apologies.

Hamilin said once Abera’s disqualification period ended, he hoped to return to taxi driving, as it was his only source of income.

“I think the mitigation is not to drive so long and so many hours; otherwise, he has an unblemished driving record and no criminal record,” Hamlin said.

“He’s a law-abiding citizen, he just worked too long and made a terrible mistake, which he recognises.”

Hamlin stressed that the appeal against his sentence was so Abera could keep providing for his family and to sort out the issue of reparation.

“He wanted to pay the money to the family, but it didn’t turn out that way,” he said.

Floral tributes and posters were laid at the scene on New North Rd where McEwen died shortly after the incident.

An obituary for McEwen said he was a beloved son, brother, uncle, friend and dad to his dog Benny.

Jeremy Wilkinson is an Open Justice reporter based in Manawatū, covering courts and justice issues with an interest in tribunals. He has been a journalist for nearly a decade and has worked for NZME since 2022.