R v Duffell [2020] NZDC 1704 (31 January 2020)

Last Updated: 12 June 2020

EDITORIAL NOTE: CHANGES MADE TO THIS JUDGMENT APPEAR IN [SQUARE BRACKETS].

IN THE DISTRICT COURT AT TIMARU I TE KŌTI-Ā-ROHE KI TE TIHI-O-MARU

CRI-2018-076-000908

[2020] NZDC 1704

THE QUEEN

v

JAYDEN DUFFELL

Hearing:	31 January 2020
Appearances:	A McRae for the Crown T Jackson for the Defendant
Judgment:	31 January 2020

NOTES OF JUDGE J E MAZE ON SENTENCING

[1] Jayden Duffell, you have pleaded guilty to one charge of aggravated careless use causing death. You are 23 years of age now. You were 21 at the time. You did not then hold a current driver’s licence, but more importantly, two weeks before this, you had been specifically informed by an officer that you were forbidden to drive.

[2] On 8 March 2018, shortly before 5 o’clock in the afternoon, you were driving on State Highway 1 between Timaru and Temuka. You had finished work. You used a passing lane travelling north to pass two vehicles, but then you delayed returning to your own lane before the end of the passing lane you had just used. In what can then be perhaps best defined as an exaggerated correction manoeuvre, you drove sharply to the left, then back to the right, but then you continued to cross the double yellow lines on to the wrong side of the road, which, at that point, was itself dividing into two

R v JAYDEN DUFFELL [2020] NZDC 1704 [31 January 2020]

southbound lanes to allow for passing. A truck and trailer swerved to avoid you, but the next vehicle, driven by the late Mr Howey, was not so fortunate. The accident occurred. You were both trapped in vehicles after the collision. Mr Howey was hospitalised and died of his very severe injuries. You too were hospitalised. Your blood disclosed the presence of THC, and you admitted using cannabis the night before. You said that you used cannabis every few days to assist you with sleep.

[3] The victim impact statement has been read today. It reflects an extremely sad situation, but in fact, it also contained a very positive message to the effect that if anything could make you take stock about what matters in life, how to make mature decisions, how to exercise self-discipline, how to make something of your own life, then surely it is this terrible situation. You brought this about and it began, sadly, the night before, when you elected to use cannabis. It is abundantly clear this family wants to see remorse from you. They also firmly want a message understood in relation to drug use.

[4] You do have previous driving convictions, two for driving while disqualified in 2016 and one in 2015, but what is interesting about those is that there is no attached conviction indicating driving fault or risk taking, beyond, of course, the risk of being caught driving when you were not permitted to do so. There is one other conviction which does involve risk-taking, and that is drink-driving as a person under 20 in 2013.

[5] You do not have a lengthy history. Those four convictions, but particularly the last to which I have referred will certainly suggest to the family of the late Mr Howey that you lack respect for the law and you are not prepared to adhere to constraints placed upon you.

[6] The pre-sentence report says that you have had difficulties in finding employment as a result of the decision you made to end employment and to seek an apprenticeship, and those difficulties really do flow directly from this offending and the disqualification which must inevitably follow. It would appear from the report that you have a degree of resentment about your present circumstances, without employment, being dependent heavily on family members, but that too is combined,

inevitably, with your difficulties coping with the responsibility which must attach to you for stopping a life.

[7] An experienced pre-sentence report writer and probation officer has recommended home detention. He brings with him a good deal of wisdom behind his recommendation. There are fishhooks with the proposal because it is a rural address. Community work will not be a possibility easily accommodated because of the inevitable disqualification. Reparation will need to be paid, with the result that you will have to obtain employment, and attending employment without lawful means of transport will, again, be problematic.

[8] There are, however, some positive comments which may perhaps provide some assistance to the family of the late Mr Howey. Your partner of some five and a half years says she has seen you mature and make changes. She says this offence made a significant impact, and she says that your driving is now very defensive. The Crown challenges that view because in April 2019, you attracted an infringement, but that does not necessarily invalidate the perception of your partner.

[9] The report-writer also observed that you were certainly at a low ebb when last spoken to. He says that you are coming to terms with the reality that your own options will now be significantly limited, but he says, while living in the country, you are only 11 kilometres from Timaru. That journey can be made by bicycle if you have the fortitude and resolve to seek new employment and to complete Court-ordered commitments. He also says there is no doubt that an almost two-year wait between when the offence occurred and sentencing has had an impact on you. Your mother noted the last six months in particular have not been easy for you or for those around you.

[10] It seems to me that employment is indeed a crucial factor in your reintegration and rehabilitation. Mr Allen also says that the stable relationship and your employment have been reflected in the absence of convictions after 2016, aside, obviously, from this very serious offence. It is clear to me that you will need assistance with counselling, not only to address drug and alcohol concerns but also to address the turmoil which undoubtedly you do experience in relation to your responsibility for

ending a life. I do accept that low mood can frequently be reflected in a sullen or apathetic presentation at times.

[11] I turn now to the submissions. The Crown submissions are that the aggravating features are the extent of harm. The loss of life at any age has a value impossible to calculate, and the impact in particular on Mr Howey’s widow has been very hard. Indeed, it has an impact on the balance of her life quality.

[12] The presence of the THC still in your system and driving within 24 hours of smoking it is an aggravating factor, but I must be careful not to overstate that issue, while respecting the views of the family of the deceased. There is no evidential basis for me to say that you were, to use the colloquial, high on cannabis. That would be unsupported evidentially from what I can see and what is available to me. The Crown also says that it is an aggravating aspect that you were forbidden from driving at the time, and specifically, that had occurred just two weeks before. The fact that your behaviour caused the accident cannot be an aggravating feature, it is an element of the offending, so I set that aside.

[13] The Crown refers me to Hanley v Police1, Haskell v Police2, Queen v Ko3, and Kao v Police4, and the Crown’s position is that applying as a broad guideline those cases, I would reach a starting point of two and possibly up to two and a half years’ imprisonment. The Crown does not appear to be anything other than neutral on the issue of whether an uplift is merited, but reminds me of your previous convictions, and the Crown accepts that a quarter discount for pleas is appropriate.

[14] The Crown seeks disqualification of two to three years and the reparation order. Importantly, the Crown opposes home detention to reflect the poor compliance with previous sentences, your lack of expression of remorse, and the views of the victim’s family. The Crown says, in effect, protection of the community and deterrence are vital factors and they cannot be achieved within a sentence of home detention.

1 Hanley v Police High Court Rotorua, 10 March 2010.

2 Haskell v Police [2012] NZHC 118.

3 Queen v Ko [2012] NZHC 3812.

4 Kao v Police [2015] NZHC 1793.

[15] Mr Jackson, on your behalf, reminds me that the delay in this case has largely been the result of a dispute as to what is, by law, the proper charge for the lead charge, and he says that your instructions have not changed from the beginning, you have always accepted responsibility for the careless act and for causing the damage.

[16] I have listened to what Ms Hide said in that regard and as to the impact of delay on the family, and it is a lesson to us all within the criminal justice system. Finding the appropriate charge is not always easy, but arguments about that should be advanced and resolved as early as possible. If they are not resolvable, they should be brought promptly to a hearing. The delays while we debate inevitably reflect adversely on those least able to cope, the victims, which in this case includes the victims of the deceased, and defendants. To the extent the system has contributed, and I accept it has, I can only apologise to the family, and indeed also to you, Mr Duffell, because none of you is responsible. All of you have been harmed by the delay while we have debated the correct charge. I know you will all have your own views as to where greater fault lies, but the fact is, it was our obligation to resolve that sooner.

[17] When I am weighing up the aggravating factors, Mr Jackson reminds me that speed was not a problem. There are three eyewitness statements. All thought it highly likely the defendant had fallen asleep and then woken and overcorrected, but all of them said speed was not an issue.

[18] He submits the impact of using cannabis is that, and this is on reliance upon expert advice, drivers may take longer to react, have limited ability to think clearly, and a reduced ability to pay attention, and so in effect, it is his submission that the cannabis use overlies the problem of fatigue and lack of proper attention, hence the charge of aggravated careless use. You had been working all day. I can accept that the perceptions of the three eyewitnesses are probably right. On that basis, the cannabis use is an aggravating feature of the carelessness which you displayed in driving when overtired, and I also note your poor sleep patterns. These are all features which it would have been helpful to Mr Howey’s family to hear about long ago.

[19] Mr Jackson accepts the cited cases are appropriate. He accepts that a starting point of two years would be appropriate. He says your previous offending does not

merit an uplift. He reminds me that there is a degree of naïveté in someone like you, 21 at the time, but he says that while you have lacked the skills to actually demonstrate in a practical way your emotions to the family, you have had very real difficulties coping with what you know you have done in ending the life of a very much loved man. He says you did very much want restorative justice, as did the family, and he says that you were distressed to learn that it could not occur, and you lacked the confidence and skills to try and deal with that alone by approaching the family. Mr Jackson’s submission is that you have an almost overwhelming sense of guilt about what you have done. He submits that home detention is the appropriate outcome, it is recommended by an experienced probation officer, and, of course, I would need to identify what aspect of the aims and principles of sentencing could not be achieved by home detention if I were to exclude it.

[20] I start then with my own definition of the starting point. The aggravating factors are the extent of harm to this family in losing a loved family member, the driving when you had been forbidden, and the presence of the THC, which had an aggravating effect on the carelessness in your driving when you were overtired.

[21] I adopt a starting point on that basis of two years. I have considered all of the cases to which I have been referred. I do not consider there should be an increase to reflect your previous history. In terms of taking risks with the safety of other road uses, the only truly relevant conviction is the 2013 drink-driving as a person under 20. That would mean that you are not a recidivist offender in that regard, and while you have prior convictions for not completing sentences fully or appropriately, they are not matters which are relevant directly to any personal aggravating factor. I do acknowledge, also, that prior to 2016, your offending would display attitudinal problems, and although they may have been reduced, they had not been resolved completely by the time of the accident, but I come back to the major factor: you are not a recidivist driving offender in terms of risk-taking with innocent members of the public. The reduction for plea, the Crown concedes at one quarter. That brings me to 18 months’ imprisonment.

[22] The issue is conversion to home detention. The Crown’s argument is that protection of the community and deterrence are both very important features in this

sentencing exercise, and I cannot satisfy those within a sentence of home detention. I have already indicated I do not see you as a recidivist driver in relation to risk-taking with the safety of others. I accept entirely protection of the community and deterrence are important factors.

[23] The decision of his honour, Justice Lang, in Haskell v Police refers specifically the need for me, as sentencing Judge, to outline why a sentence of home detention is ruled out. In that case, his honour upheld the decision of the sentencing Judge, but there were three charges of aggravated careless driving, one causing death, two causing injury, and his honour went through the personal circumstances which led to the ultimate conclusion that a full custodial sentence was called for.

[24] I am also obliged, however, to have regard to the impact of a full sentence of imprisonment. As a man of 23, somewhat naïve, you will be a target for gangs and for gang recruitment. There will be practical considerations which will require you to live on your wits. The deprivation of liberty, which is the aim of a custodial sentence and its purpose, is inevitably accompanied by a need to cope with the challenge that accompanies that, the inability to take steps to remove yourself from threats, to protect yourself by your choice of associations and movement. So there are risks in a sentence of imprisonment for one of your age and gender. In addition, there are risks in relation to the delay in addressing what has been identified in Mr Allen’s report as to the impact that this offending has had upon you and your patent inability and lack of skills to cope with it. Those are risks which must attach to any custodial sentence, and, in particular, your custodial sentence.

[25] On the other side of the scales, a sentence of home detention does provide for the protection of the community because you will not be able to drive and you will not be able to be outside the address except for approved activities. Your rehabilitative programme, in effect, will start immediately. There is, as Mr Allen has pointed out, a way in which you can make this sentence work, and if you can, it will go some way towards making up for the lack of communication, which you were not able to effect for one reason or another during the last two years and which this family was so desperately hoping for. It will go some way towards establishing the changes to which

Ms Hide has referred as being the most likely response from the late Mr Howey to say to your face what he would want.

[26] The balancing exercise lies there. I appreciate and respect the views of the victim’s family, but I am of the view firmly that this should be a sentence of home detention. I will incorporate into it judicial monitoring. I will be asking for more frequent reports than once every three months, and if there are signs that this sentence is breaking down, while I am sure Probation will not need any prompting, I will ask them to file a review, in which case the sentence will return to the 18 months of imprisonment, and the only possibility to be considered is the possibility of a credit for time served on home detention. I hope I have made my position clear to you.

[27] In addition, I intend to impose three years’ disqualification. That is a significant penalty in its own way because the ability for a younger person to drive is frequently a requirement for a job, so its impact will be to limit the job options open to you, but if you want to make up for the last two years in terms of the needs of this family, then you will make that work as well, and you will become someone who meets their obligations strictly and completely. In addition, three years will allow a period of embedding of the progress you will need to make in respect of your drug and alcohol use.

[28] On that basis, there is only one other matter I need to cover. Mr McRae, there was a reference to a medical fee of $75, but plainly, Mr Duffell’s blood was taken at the hospital and that cannot apply. I think it is an error.

[29] Jayden Duffell, on charge 1, you are convicted. You are ordered to pay reparation of $500 to Ms Hide, $669.84 to New Zealand Police for the analyst fees. You are disqualified from holding or obtaining a driver’s licence for three years effective immediately from today. You are sentenced to home detention for nine months, to be served at [address deleted].

[30] The special conditions of home detention and special post-detention conditions are that you are to complete counselling in relation to the effects of your offending, you are to complete drug and alcohol counselling, including attending any

maintenance programme if directed. You are to complete any other course, programme, or counselling directed by your probation officer, and judicial monitoring is imposed with the first report for the end of March this year. Standard and special post-detention conditions are imposed for six months after detention end date.

[31] On the drives when forbidden, you are convicted and discharged. Being fine only, a fine would serve no purpose. Its proper impact is reflected as an aggravating feature of the offending in the lead charge.

Judge JE Maze

District Court Judge

Date of authentication: 12/02/2020

In an electronic form, authenticated pursuant to Rule 2.2(2)(b) Criminal Procedure Rules 2012.