Hayden v R [2020] NZCA 369 (28 August 2020)

Last Updated: 1 September 2020

IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA

CA289/2020 [2020] NZCA 369

	BETWEEN	MARK EDWARD HAYDEN Appellant
	AND	THE QUEEN Respondent

Hearing:	23 July 2020
Court:	Cooper, Peters and Whata JJ
Counsel:	J H M Eaton QC and K H Cook for Appellant M R L Davie for Respondent
Judgment:	28 August 2020 at 10 am

JUDGMENT OF THE COURT

1. The appeal is allowed.
2. The sentence of two years and one month’s imprisonment imposed in the High Court is quashed and a sentence of one year and three months’ imprisonment is substituted.

____________________________________________________________________


REASONS OF THE COURT

(Given by Cooper J)

• [1] The appellant, Mark Hayden, pleaded guilty to being a party to manslaughter.^[1] He was sentenced to imprisonment for a term of two years and one month.^[2] He now appeals against that sentence. He alleges that the starting point of four years and six months’ imprisonment adopted by the Judge was too high, and that insufficient credit was given for mitigating factors.
• [2] This is an unusual case. The manslaughter was the result of dangerous driving, not by the appellant, but by his cousin, Stephen Hayden.^[3] The appellant was a passenger in the car and the liability he has accepted by his guilty plea is that of being a party to actions which caused the death of a 72-year-old man in a head-on collision. Stephen Hayden died in the same accident.
• [3] The other unusual aspect of this case is that the appellant is an Australian citizen whose wife and family are in Victoria. In the current circumstances, his wife and children are unable to visit him because they cannot travel to New Zealand from their home in Geelong in Victoria due to travel restrictions as a result of the COVID‑19 pandemic.
• [4] The case is a tragic one. Mander J, as the sentencing Judge, had before him statements made by the deceased Mr Freeman’s wife and son. Mrs Freeman wrote that she had been married to Mr Freeman for 52 years, until the day he was killed. She met him when she was 16 years old and they had two sons. They initially worked on a family farm in Tasmania, later moving to Twizel where they had lived for the past 30 years. She said:

We built a beautiful home together where we intended to spend the rest of our lives, enjoying our retirement, caravanning and fishing with our friends. I have now lost that part of my life since I lost Nigel.

My financial state is at its lowest because Nigel supplemented our pension culling rabbits for property holders. The evening he was killed he had been out delivering paperwork which was required for payment.

I have been forced to make the decision to leave my friends and lifestyle in New Zealand and move back to family in Australia where I have family support. This has been an extremely daunting and emotional experience. I have had to sell up our home and our belongings at garage sale prices and been required to replace them at full cost. Deciding which of our belongings I would keep as memories of Nigel and which I would part with was heart breaking but the worst thing was flying home carrying Nigel’s ashes.

...

It haunts me that he died alone, without me being at his side. I miss him so much and I love him dearly. Since his death I have trouble sleeping and often have nightmares. ... Evenings are the most difficulty for me as they feel long and lonely and I often break down and cry.

Even though it has been more than 2 years since Nigel’s death, I still don’t know how to [be] happy and live my life without him. There have been times when I would go into [the] garage to look for him but obviously he was not there. I am unable to put into words the impact that Nigel’s unfair and horrific death has had on me but I truly feel as though a part of me died when Nigel was killed.

• [5] There was another moving expression of sorrow in the statement of Gavin Freeman, Mr and Mrs Freeman’s son, a 54-year-old fire fighter living in Victoria. That career has required him to attend and manage many motor vehicle collisions, but naturally none has impacted him as much as this. He observed:

For the 52 years of Mum and Dad’s marriage, Dad made all the major decisions in our family. He supported her not just financially but also emotionally and she relied heavily on him. He always thought he would be there to look after [M]um and then suddenly he wasn’t. They were not given any opportunity or time to prepare Mum for life without him and I now feel responsible to help Mum make those big decisions.

• [6] No-one from the Freeman family, or the Hayden family, was able to observe the appeal in this Court. Although it is perhaps unusual, we think it appropriate to set out the above extracts from the victim impact statements to underline the tragic consequences of the events giving rise to the prosecution. A great deal of grief has been caused to innocent people. They include not only the Freeman family, but also the surviving wife and children of Stephen Hayden. They include also the appellant’s wife and three teenage children.

Facts

• [7] The facts on which the Judge sentenced the appellant were set out extensively in his sentencing remarks.^[4]
• [8] On 2 July 2017 the appellant and four others flew from Melbourne to Christchurch intending to go heliskiing in the Mt Cook region. The group comprised the appellant, his cousin Stephen Hayden and three other male acquaintances of Stephen, not previously known to the appellant. The appellant hired a four‑wheel drive vehicle in Stephen’s name after arriving at Christchurch Airport. The attendant from the rental car company noted that Stephen appeared intoxicated but was assured that he would not be driving the vehicle that evening. A short time later, the three other men hired a second vehicle.
• [9] Early in the morning of 3 July 2017, an airport security officer saw the vehicle that had been hired in Stephen’s name speeding around the airport car park with its boot open. It was seen overtaking another vehicle as it drove out of the car park. Airport traffic management contacted the police, and another report was received of the vehicle being driven erratically at that time.
• [10] Shortly after that a staff member at the Christchurch Casino telephoned the police advising that the same vehicle was parked at the entrance of the casino car park, and that it had sustained some damage. It had been driven there by Stephen. The appellant and Stephen got into the other car hired by the other members of the group, and that vehicle was subsequently stopped by the police. Stephen returned a positive roadside breath screening test. He was taken to a police station where he underwent an evidential breath test, giving a result of 1,015 mcg of alcohol per litre of breath.^[5] Stephen was taken by the police to a hotel where he shared a room with the appellant.
• [11] At about 3 am, police received a further call from the casino advising that a person who they believed was the original driver of the vehicle had returned to it and driven it away.
• [12] Later that morning the three other men drove from Christchurch to Methven. Stephen and the appellant followed, Stephen driving. The group decided to continue to Lake Tekapo. During this stage of the journey, Stephen’s vehicle was seen to drive off the road and into the snow on three occasions while driving along State Highway 8. The Judge recorded a witness describing the driver of the vehicle as smiling and appearing to have fun. A short distance east of Lake Tekapo, Stephen pulled to the side of the road so that he and the appellant could relieve themselves. The car in which the other men were travelling arrived and pulled over. It was noted that the appellant and Stephen had a bottle of vodka in the vehicle, and both appeared to be intoxicated. One of those who had arrived in the second car told Stephen he could no longer drive and that he would take over driving the vehicle. However, at that stage Stephen drove away with the appellant in the passenger seat.
• [13] Having arrived at Lake Tekapo, the appellant purchased another bottle of vodka from a liquor store. Stephen parked in the middle of the car park, blocking traffic. The appellant was seen returning to the vehicle in a clearly intoxicated state. Back in the car, the bottle of vodka was opened, and both drank from it. They were seen to hug each other and were laughing before driving off at speed through the car park and turning right onto State Highway 8 heading towards Twizel.
• [14] As the Haydens travelled between Tekapo and Twizel the police received calls from members of the public recording concerns about the way in which the vehicle was being driven. It was observed crossing the centre line and trying to run other vehicles off the road. Stephen was driving on the wrong side of the road and the oncoming car had to swing onto the verge to avoid a collision. The driver of that car described the driver of the oncoming vehicle as laughing, and “giving her the fingers” as he passed by.
• [15] The vehicle was then observed to stop in the middle of the road, blocking traffic. The driver of a bus which had been overtaken by Stephen got out of his bus and ran towards the vehicle. He opened the driver’s door, but Stephen immediately sped off. While this was all occurring, the police were receiving numerous calls from concerned members of the public regarding the way the vehicle was being driven.
• [16] A police constable then came across the vehicle parked on the side of the road between Tekapo and Pukaki. He considered the driver was extremely intoxicated, to the point where he hardly acknowledged the constable’s presence. The constable reached in through the open window and turned the engine off but was unable to extract the keys from the ignition. He tried to open the driver’s door, but it was locked. He began roadside breath screening procedures.
• [17] At this point, the appellant told the police constable that Stephen was not the driver, and that the driver and a friend had walked off. The breath screening device revealed that Stephen had consumed alcohol, and so the constable required him to undergo a breath screening test. The appellant became aggressive at that point, and told the constable, “this is not going to happen”. He reiterated that Stephen was not the driver. Stephen also made that assertion and moved his head away from the breath screening device. The constable told Stephen that if he did not comply he would be arrested, and the appellant responded, in an even more heightened and aggressive voice, “this is not going to happen”.
• [18] In view of the conduct of Stephen and the appellant, the constable walked back to his patrol vehicle to call for assistance. Stephen then started the vehicle. He nudged it forward, hitting a fencepost, before reversing towards the constable and his police vehicle. The constable had to move to the rear of the car to get out of the way. The vehicle then sped off. It did a U-turn and continued at high speed.
• [19] While navigating a slight left hand bend the vehicle veered towards the centre line and crashed head on into a car heading in the opposite direction being driven by the deceased Mr Freeman. Both Mr Freeman and Stephen were killed instantly.
• [20] Crash scene analysis showed that Stephen had been travelling between 160 and 170 km/h at the time of the crash. He had a blood alcohol level of 326 mcg of alcohol per 100 ml of blood, against the legal limit of 50 mcg per 100 ml of blood. The appellant had a blood alcohol level of 252 mcg per 100 ml of blood, some four hours after the accident. Two charges were laid against the appellant, in the alternative. First, he was charged with being a party to Stephen’s manslaughter of Mr Freeman.^[6] The alternative charge was of being a party to driving under the influence causing death.^[7]

Events prior to sentencing

• [21] The appellant first appeared on 2 April 2019. He was granted bail and allowed to return to his home in Australia. On 12 February 2020, Mander J gave a sentence indication.^[8]
• [22] We record that prior to the sentencing, there had been a hearing for the purposes of a sentence indication on 12 February 2020. In written submissions filed in advance of that hearing, the Crown accepted that once credit was given for mitigating factors, the end sentence might be in the range where a sentence of home detention could be considered, reserving its position in respect of the suitability of any proposed address. The defence expressed its hope that the Court would confirm that position. In the event, the Judge did not accept that was appropriate when he gave the sentence indication. He described the appellant’s actions as properly able to be viewed as “amounting to a joint enterprise with Stephen” to drive in a manner that resulted in the death of an innocent person.^[9] Whilst he considered there was a difference in culpability to be recognised between Stephen and the appellant, he did not consider it to be substantial. He adopted a starting point of five years’ imprisonment, and after taking mitigating considerations into account, indicated an end sentence of two years and five months’ imprisonment.^[10]
• [23] Mr Eaton QC told this Court that the sentence indication had led to much unanticipated distress for the appellant and his family. It was at that stage that he was briefed as senior counsel and provided an opinion as to the appropriate plea. He gave us reason to understand that the appellant’s decision to plead guilty while rejecting the sentence indication was contrary to his advice. Prior to entry of the guilty plea, and following discussion, the Crown Solicitor expressly conceded that a guilty plea would be accepted on the basis that the appellant was a party to the offence under s 66(1), and not s 66(2) of the Crimes Act 1961, the approach taken by the Judge in the sentence indication. This was considered by Mr Eaton to be an important step, because the sentence indication had determined that the difference between the appellant’s conduct and that of his deceased cousin was not substantial on the basis of the joint enterprise approach.
• [24] We should also record that the fatal accident occurred on 3 July 2017. Following the accident, the appellant was admitted to Timaru Hospital with severe bruising on most of his body, ligament and tendon damage and a severe concussion. Upon his release from hospital he was allowed to return to Australia. It was not until 23 February 2019, some 18 months after the accident, that he was charged with manslaughter or, in the alternative, driving whilst intoxicated causing death. Mr Eaton submitted, and we accept, that the appellant has been entirely cooperative throughout the process, and that he voluntarily returned to New Zealand to answer the charge. He appeared in the High Court at Christchurch on 2 March 2020, where he pleaded guilty to the manslaughter charge and was remanded in custody for sentence. The alternative charge was dismissed.
• [25] The COVID-19 pandemic then intervened. Sentencing was unable to proceed until 12 May 2020. In the meantime, the appellant offered to participate in a formal restorative justice process, and to meet Mr Gavin Freeman’s costs of returning to New Zealand for the sentencing.

The sentence

• [26] Having set out the facts, the Judge identified aggravating features which he thought marked the “highly culpable nature of the driving”.^[11] These were the consumption of alcohol, prolonged intoxicated driving, the high speed at which the vehicle was being driven at the time of the crash, the fact that at the time of the collision and Mr Freeman’s death the vehicle was being driven away from an attending officer to avoid apprehension and the fact that the driving was aggressive.
• [27] The Judge accepted a submission by the Crown that if the appellant had been the driver, a starting point of between six and seven years would have been appropriate. He then observed:^[12]

Your case is marked by the persistence of the intoxicated and dangerous conduct which continued despite the attempted intervention of your associates, members of the public and the police, and rendered the ultimate fatal outcome almost inevitable. You appear to have become so drunk that, rather than assisting the efforts of those people, your actions served to encourage and aid your cousin along his destructive course.

• [28] While the Judge accepted that the appellant was less culpable than Stephen, the appellant had to bear responsibility for the way in which he “aided and encouraged another to drive in such a drunken and therefore dangerous state, and abetted the disobedience of the officer’s intervention, which led to Mr Freeman’s death”.^[13] Having discussed relevant authorities, the Judge adopted a starting point of four years and six months’ imprisonment. There were no personal aggravating features, but there were personal mitigating factors. The Judge allowed discounts of:

(a) 10 per cent for remorse;

(b) 20 per cent for good character, to acknowledge the fact the appellant had sustained injuries, emotional suffering, mental distress from the crash and for the fact that he was having to come to terms with Stephen’s death, as well as suffering from depression;

(c) eight per cent to reflect the fact that the appellant is a foreign national; and

(d) a further 25 per cent for the appellant’s guilty plea.

• [29] On the Judge’s calculation, this resulted in an end sentence of two years and one month’s imprisonment.

Starting point

Submissions

• [30] Mr Eaton’s submission that the starting point was too high rested substantially on a proposition that the Judge had wrongly emphasised Stephen’s driving after Lake Tekapo where the appellant had purchased a further bottle of vodka. It was only after they left Lake Tekapo that Stephen’s driving became truly dangerous. Mr Eaton relied on the appellant’s affidavit to submit that the Judge’s approach overlooked the appellant’s affidavit evidence that after leaving Lake Tekapo he had made various attempts to discourage Stephen from driving in the way he did.
• [31] This argument should be put in context by reference to an issue that arose in the lead up to the sentencing. The original summary of facts on which the sentence indication was conducted had stated that:

... the [HAYDENS] were intending to travel straight to Mt Cook to prepare for the heli‑skiing. ... [t]he other three ... eventually decided to travel straight to Mt Cook and join up with the [HAYDENS].

• [32] Mr Eaton submitted that allegation permitted the Crown and the Judge to view the purchase of vodka at Lake Tekapo and the bad post‑Lake Tekapo driving as culpable acts attributable to the appellant, and that the intoxicated driving had been prolonged. The appellant provided an affidavit to the Crown on 25 March 2020 in unsworn but approved form. It has since been sworn. At paragraph 15, the appellant said:

I did buy another bottle of Vodka at Tekapo but I believed that was where we were staying the night. It has since been confirmed that the other three guys had all booked to stay at Peppers in Tekapo for the night. That’s where I had stayed once before when I was out here heli-skiing previously. As far as I knew we certainly didn’t have any accommodation booked at Mt Cook or anywhere closer to the heli‑ski operation. It was Stephen making all the arrangements and I assumed we were staying in Tekapo. I have no idea why Stephen then drove beyond Tekapo.

• [33] He continued:

I do recall Stephen’s driving after we left Tekapo became worrying. He was playing dangerous games with oncoming traffic. I do recall yelling at him to cut it out and on more than one occasion grabbing the steering wheel and pulling it to the left. I do recall on a couple of occasions when other members of the public tried to stop him driving. Stephen just ignored them. There is no way I was encouraging him to drive in that manner or to drive off when the public tried to intervene but he wasn’t listening to me.

• [34] On this basis, the defence approached the sentencing on the basis that the appellant believed the trip was to end at Lake Tekapo. The Crown’s submissions however were exchanged on the basis that the appellant’s assertion he understood they had arrived at their destination, and that he thought they were staying there rather than continuing with the journey, was disputed. Reliance was placed on the summary of facts for that purpose. Counsel for the Crown noted the fact was significant, because if Mr Hayden’s evidence was accepted:

... the Defendant’s actions at the Tekapo bottle store are minimised as he was of the view that their trip had come to an end. All subsequent driving conduct would be solely attributable to Stephen Hayden and not encouraged by the Defendant.

• [35] This written exchange prompted the Judge to convene a telephone conference on 11 May. Mr Eaton advised us (and this was not disputed) that the Judge made it clear the factual dispute was significant, would require a recalibration of the starting point and, if agreed, would effectively mean the appellant had been a “hostage” after the vehicle arrived at Tekapo.
• [36] Later that day, the Crown Solicitor filed an amended summary of facts and a memorandum. The summary of facts was relevantly amended to read:

They then planned to meet up in Lake Tekapo. ... [t]he other three ... eventually decided to travel to Lake Tekapo and join up with the [HAYDENS].

• [37] In his memorandum, the Crown Solicitor acknowledged:

The Crown accept that it cannot disprove to the required standard the assertion that the Defendant believed (or assumed) that they were staying the night at Lake Tekapo and therefore the factual dispute has been resolved.

• [38] Mr Eaton complained that notwithstanding this, the prosecutor submitted that the fact that the appellant believed the trip was ending in Lake Tekapo made no difference in determining the starting point or end sentence.
• [39] In fact, the Judge did revise the starting point downward. In the sentence indication, he had adopted a starting point of five years, but the actual sentence proceeded on the basis that a starting point of four years and six months was appropriate. Nevertheless, Mr Eaton submitted that the Judge erroneously relied on the post‑Lake Tekapo driving as an aggravating feature of the appellant’s offending. Mr Eaton submitted that the sentencing should have proceeded on the basis that:

(a) the appellant believed the day’s journey was to end at Lake Tekapo;

(b) the only driving of note prior to Lake Tekapo was “controlled drifting at Dog Kennel Corner”, 15 minutes prior to arrival at Lake Tekapo. After Lake Tekapo, there had been a different category of driving;

(c) the purchase of alcohol “and associated conduct” at Lake Tekapo was of little or no relevance, because at that time the appellant believed they had reached their destination;

(d) Stephen’s driving post‑Lake Tekapo became dangerous; and

(e) the appellant tried to stop Stephen with both his words and actions as he had said in his unchallenged affidavit.

• [40] In the circumstances, Mr Eaton submitted that the Judge had been wrong to give significant weight to the post‑Lake Tekapo driving.
• [41] Mr Eaton also submitted that the Judge had placed too much emphasis on events at Dog Kennel Corner. He claimed that when they arrived there, the appellant believed the trip was very nearly at an end. The only witness of the driving at that point was a man who described the driver as smiling and appearing to be having fun. Mr Eaton submitted that a deliberate slide (not at high speed) in snow on the side of the road was not driving in the same category as the post‑Lake Tekapo driving. Yet the Judge had relied on this act to find the appellant’s conduct was prolonged and involved intoxication throughout the journey.
• [42] Another strand of Mr Eaton’s argument was that the Judge had wrongly compared the appellant’s conduct with that of the defendant in R v Cossey.^[14] He argued the Judge was wrong to conclude that the actions of the appellant and Stephen were broadly comparable to that of Mr Cossey and the other racing driver. Mr Eaton also said that the Judge had been wrong too to compare the period of time over which the offending behaviour had taken place in the two cases. Unlike Cossey, the relevant period in this case was not a “lengthy period of time” as the Judge found, because on the summary of facts there had been no suggestion of alcohol being consumed over a lengthy period of time or on the open road. Mr Eaton suggested that on the facts, the Haydens must have spent time stopped and off road, during which their three associates had caught up with them. That would not be consistent with a long period of driving while intoxicated.

Evaluation

• [43] We do not accept that the starting point adopted by the Judge was outside the range available to him. The Judge’s sentencing remarks made it plain that he recognised the appellant’s culpability was much less than that of Stephen. That was reflected in the Judge’s observation that if the appellant had been the driver, a starting point of six to seven years would have been appropriate.
• [44] We do not accept that it was appropriate to draw a bright line between the incidents that occurred prior to Lake Tekapo and those which occurred subsequently, as Mr Eaton claimed. It was prior to Lake Tekapo that Stephen drove off the road into the snow on three occasions. Whilst this was less dangerous than what subsequently occurred, it is fair to conclude that this must at least in part have been the result of the alcohol that had been consumed by that point. It was plain to the friends travelling in the other car that both the appellant and Stephen were intoxicated at that point. When one intervened and told Stephen he could no longer drive, and that he would take over driving the vehicle, Stephen drove away whilst the appellant remained in the passenger seat. We think it was legitimate to consider that the encouragement of Stephen to drink and drive, for which it was necessary to hold the appellant accountable must have commenced at that point. At Lake Tekapo, the appellant purchased another bottle of vodka and both he and Stephen drank from it before speeding off in the direction of Twizel. We accept that it was in that part of the journey that the driving became extremely dangerous. A member of the public (the bus driver) tried to intervene by opening the driver’s door, to no avail. When the police arrived, the vehicle was parked. It was at that point that the appellant lied to the police constable by saying that Stephen had not been the driver and telling him that the breath screening test was “not going to happen”. Far from getting out of the car, the appellant remained in it as Stephen endeavoured to escape from the police. According to his affidavit evidence, the appellant had immediately prior to that been taking steps to dissuade Stephen from driving dangerously. Mr Eaton referred in particular to the appellant’s statement in the affidavit referred to at [33] above, that the appellant had tried to intervene multiple times, including by pulling the steering wheel to the left, but that Stephen refused to listen.
• [45] The Judge was evidently sceptical about the proposition that the appellant had been active in endeavouring to alter Stephen’s driving conduct. He said that it was difficult to reconcile the observations in the affidavit and the “apparent insight” the appellant had obtained after Lake Tekapo with his “subsequent actions at the roadside when the police officer sought to intervene, [his] gross intoxication at that time, and [his] wilful defiance of the officer”.^[15] Although Mr Eaton emphasised that there was no evidence contradicting the affidavit, we consider a degree of scepticism was justified. The car was stationary, but the obstruction of the police constable, following what had evidently been a long period of drunk driving was the proximate cause of the tragic events which shortly ensued. An earlier opportunity to stop Stephen driving had also been lost prior to the arrival at Lake Tekapo.
• [46] Mr Davie, for the respondent, noted that in Gacitua v R, this Court referred to relevant aggravating and mitigating features addressed by the Court of Appeal of England and Wales in R v Cooksley.^[16] Of the aggravating elements identified in Cooksley, this case includes consumption of alcohol in the lead up to the offence, excessive speed, aggressive driving including inappropriate overtaking, irresponsible behaviour at the time of the offence and resultant deaths. We accept of course that the aggravating factors have to be approached on the basis that the appellant was not the driver. Nevertheless, the appellant has pleaded guilty to being a party to Stephen’s offending and must be held accountable for it. The tragic fact is that over the period prior to arrival in Lake Tekapo and afterwards, the appellant’s presence in the vehicle, his consumption of alcohol together with Stephen and the identified behaviour when the police constable was attempting to do his duty all contributed to this tragedy.
• [47] Sentencing in cases such as the present is very much fact specific, as this Court observed in Gacitua v R.^[17] In the present case, counsel and the Judge referred to this Court’s judgment in R v Cossey, drawing a parallel between the offending in that case and the present.^[18] Cossey was a Solicitor-General’s appeal in which the Court had to consider an appropriate starting point for an offender who was not the driver who directly caused death but the driver of another vehicle which had been racing with the car that caused the fatal accident. The other vehicle, having just overtaken Mr Cossey’s vehicle, collided with an on‑coming van. The four occupants of the vehicle that had been racing died, and the driver of the van was critically injured. This Court held that the starting point in Mr Cossey’s case should have been at least five years’ imprisonment, and a higher starting point could not have been criticised. The Court also observed that the factual assessment that had been made by the sentencing Judge had proceeded on a basis that was “very favourable” to Mr Cossey.
• [48] The Judge in the present case thought that the appellant’s conduct was comparable to that of Mr Cossey. In reaching that conclusion he drew a parallel between the racing which had preceded the fatal accident in Cossey with, in this case, the appellant’s encouragement of Stephen’s drinking and driving, and avoiding apprehension by the police.
• [49] Whether or not the conduct is, as the Judge thought, “broadly comparable”,^[19] we do not consider that the starting point adopted in this case can be criticised as excessive. We reject this argument on appeal.

Mitigating factors

Submissions

• [50] Mr Eaton made a number of criticisms of the allowances the Judge made for personal mitigating circumstances. He submitted in particular that the Judge erred by giving inadequate credit to reflect the appellant’s “extraordinary remorse”, giving inadequate credit for exemplary character and failing to give a discrete credit for the voluntary return to New Zealand.
• [51] He submitted the 10 per cent discount allowed for the appellant’s genuine remorse was manifestly inadequate to reflect the appellant’s voluntary return from Australia to face up to the charge, his offers of $40,000 in reparation for emotional harm, his offer to meet the full costs of Gavin Freeman flying to New Zealand to attend the sentencing, his offer to participate in restorative justice, personal expressions of remorse and personal consequences. Rather than the 10 per cent allowance, Mr Eaton submitted a 15 per cent reduction should have been given.
• [52] Mr Eaton also claimed that the 20 per cent discount allowed for the appellant’s good character and personal attributes was inadequate. In this respect, Mr Eaton was in a position to point to numerous references which had been given attesting to the appellant’s good character, involvement in his local community, success in business affairs and support for his immediate and extended family. These matters were amply demonstrated in the various written testimonials on which the appellant had been able to rely at sentencing. Mr Eaton submitted that all of these considerations would have justified a 25 per cent reduction. He relied in this respect on R v Findlay and Davidson v R, in which discounts of 25 per cent had been allowed for good character: without remorse in Findlay and in absence of service to the wider community in Davidson.^[20] Mr Eaton argued for the same discount here.
• [53] Mr Eaton further submitted that there should have been a discrete discount to recognise the appellant’s voluntary return to New Zealand to face the charge. He referred to this Court’s judgment in Rogers v R where reference was made to the “utilitarian value of a voluntary return and the desirability of encouraging such returns”.^[21] Mr Eaton also referred to Butler v R, where it was observed that there has “long been a practice of giving recognition to this factor”, and a discrete allowance of 10 per cent was considered appropriate.^[22]
• [54] Mr Eaton also drew attention to the approach taken by the Judge to calculation of the 25 per cent discount he allowed for the guilty plea. It appears from the starting point adopted by the Judge of four years and six months’ imprisonment (54 months), that he deducted a total of 38 per cent arriving at a total of 33 months, before subtracting 25 per cent of that total for the guilty plea. That resulted in the final sentence of 25 months or two years and 1 month’s imprisonment. As this Court held in Moses v R, delivered after the appellant was sentenced, that is not the methodology that should now be adopted.^[23] Rather, all of the discounts, including that for the guilty plea, should be added together, and their global total then subtracted from the starting point.^[24] Had that approach been taken in this case the result would have been a final sentence of 20 months, or one year and eight months’ imprisonment.
• [55] Mr Davie submitted that the 20 per cent discount for good character was within range, while conceding that a slightly higher discount could have been given. He contended, however, that in Findlay, a Solicitor-General’s appeal this Court considered a 25 per cent reduction was the highest level available. He submitted that the 10 per cent discount for remorse, including willingness to participate in restorative justice and make reparation, was also within range, and argued that the maximum discount given for the guilty plea should be seen as including sufficient recognition for the appellant’s voluntary return to New Zealand.

Evaluation

• [56] We are satisfied that a more substantial allowance for personal mitigating factors should be made. As to the appellant’s previous good character, this Court’s reasoning in Findlay was specifically related to the circumstances of that case, and in particular what the Court described as the obvious lack of remorse displayed by the defendant. It saw this as reducing any claim for a discount for previous good character.^[25] For that reason, an allowance of over 50 per cent “solely for good character” would be “outside an appropriate range”.^[26] The circumstances here are different. There is no doubt that the appellant is very remorseful, and we see no reason why his blameless past should not receive full recognition. We would allow 25 per cent for this consideration.
• [57] We would in addition preserve in place the eight percent allowance given by the Judge to reflect the fact that the appellant has been imprisoned overseas in circumstances where, unlike other cases involving Australian citizens, he cannot be visited by relatives, as a result of the travel restrictions in place during the COVID-19 pandemic. There is no reason to disturb the 25 per cent discount for the guilty plea.^[27] That would give the appellant discounts totalling 58 per cent.
• [58] We have considered whether, as Mr Eaton contended, there should also be a discrete 10 per cent discount to reflect the fact that the appellant returned from Victoria to face the charge as well as an increased allowance for remorse, of 15 per cent. This would result in discounts of a further 25 per cent, giving a total of 83 per cent. We are not prepared to accede to this submission, although we do accept there should be some express allowance to recognise the appellant’s return to New Zealand. In our view, it is more appropriate to recognise this consideration by increasing the Judge’s allowance for remorse from 10 to 15 per cent, recognising that it includes an element which reflects the return from Australia. Even with this approach, the appellant still receives a very generous discount totalling 73 per cent.
• [59] We are satisfied that, looked at in the round, the resulting sentence of 15 months’ imprisonment reflects sufficient allowance for personal mitigating considerations. We accept Mr Eaton’s submission that for a man with a blameless past imprisonment away from his home and family is particularly hard, but a lesser sentence would risk failing to recognise the seriousness of the offence and the need to hold the appellant accountable for his conduct.
• [60] The sentence imposed by the High Court was such that the Judge did not need to consider the possibility of sentencing the appellant to home detention. Mr Eaton submitted that if we reduced the sentence so as to bring it into the category of a short‑term sentence of imprisonment we should grant leave to apply for home detention. However, we are satisfied that imprisonment remains appropriate having regard to the purposes of sentencing set out in s 7(1)(a), (b), (e) and (f) of the Sentencing Act 2002.

Result

• [61] The appeal is allowed.
• [62] The sentence of two years and one month’s imprisonment imposed in the High Court is quashed and a sentence of one year and three months’ imprisonment is substituted.

Solicitors:
Chris Morrall, Christchurch for Appellant
Crown Law Office, Wellington for Respondent

---

^[1] Crimes Act 1961, ss 66(1), 171 and 177.

^[2] R v Hayden [2020] NZHC 966 [High Court judgment].

^[3] To avoid confusion between the two we refer to Mark Hayden as the appellant.

^[4] High Court judgment, above n 2, at [4]–[22].

^[5] The legal limit is 250 mcg per litre of breath.

^[6] Crimes Act, ss 66, 171 and 177.

^[7] Land Transport Act 1998, s 61(2)(a); and Crimes Act, s 66.

^[8] R v Hayden [2020] NZHC 145.

^[9] High Court judgment, above n 2, at [28].

^[10] At [36].

^[11] High Court judgment, above n 2, at [32].

^[12] At [33].

^[13] At [41].

^[14] R v Cossey [2019] NZCA 104.

^[15] High Court judgment, above n 2, at [37].

^[16] Gacitua v R [2013] NZCA 234 at [23]–[25], citing R v Cooksley [2003] EWCA Crim 996, [2003] 3 All ER 40, at [15].

^[17] Gacitua v R, above n 16, at [22].

^[18] R v Cossey, above n 14.

^[19] High Court judgment, above n 2, at [38].

^[20] R v Findlay [2007] NZCA 553 at [102]; and Davidson v R [2011] NZCA 356 at [18]–[19].

^[21] Rogers v R [2010] NZCA 48, (2010) 24 CRNZ 809 at [19(b)].

^[22] Butler v R [2019] NZCA 65 at [20].

^[23] Moses v R [2020] NZCA 296.

^[24] At [46].

^[25] R v Findlay, above n 20, at [101].

^[26] At [102].

^[27] In accordance with Moses we apply this discount as a percentage of the starting point. See Moses v R, above n 23, at [46].