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High Court of New Zealand Decisions |
Last Updated: 1 May 2018
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IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE
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CRI-2016-019-007230
[2018] NZHC 887 |
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THE QUEEN
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v
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DYLAN COSSEY
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Hearing:
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20 April 2018
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Appearances:
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D McWilliam for the Crown
P Morgan QC for the Defendant
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Sentencing:
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20 April 2018
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SENTENCING NOTES OF HINTON J
Philip Morgan QC, Hamilton Gavin Boot Law, Hamilton Almao Douch, Hamilton
R v DYLAN COSSEY [2018] NZHC 887 [20 April 2018]
Introduction
[1] Mr Cossey, you appear for sentence having been convicted by a jury of:
(a) Four counts of manslaughter;1
(b) One count of racing causing injury;2 and
(c) One count of failing to stop and ascertain injury after an accident.3
The background facts
[2] The tragic facts are well known to everyone here, but I set them out for the record.
[3] On the evening of 24 June 2016, you were the driver of a Honda Integra travelling north on Ohaupo Road from Kihikihi to Te Awamutu. There were two other people in the car. Your co-defendant, Stephen Jones, was in the front passenger seat. Another associate was in the back seat.
[4] In Te Awamutu there was another vehicle, a Nissan Skyline, in which there were four occupants, including Mr Robinson who was the driver.
[5] No one in either vehicle knew the occupants of the other.
[6] Somewhere after Te Awamutu, as both motor vehicles travelled north towards Hamilton, they came together and were driving in the same vicinity. You and Mr Robinson then spontaneously started racing each other, from at least the Wild Thyme Café to the crash scene, travelling at high speed and close to each other throughout that time, which was a total of about nine minutes.
1 Crimes Act 1961, s 177; maximum penalty life imprisonment.
[7] You overtook each other a number of times ˗˗ in your case, probably only on the passing lanes on the Ohaupo Road State Highway.
[8] At one point, Mr Robinson’s vehicle nearly collided with a blue utility vehicle.
[9] Both cars were travelling at speeds of up to 140 kilometres per hour.
[10] Just before the intersection of Ohaupo Road and Penniket Road, Mr Robinson pulled into the southbound lane and overtook your car. Immediately after he passed you and pulled into the correct lane, you decelerated by changing down gear. Mere seconds later, as Mr Robinson was about to take a slight bend in the road, he lost control of the Skyline.
[11] Mr Robinson’s Skyline fishtailed into the southbound lane and skidded sideways, crashing into an oncoming van in the southbound lane. You managed to avoid hitting the two vehicles by driving to the side, slowing down in the process. Mr Jones told you to “gap it bro” and you accelerated away.
[12] All four occupants of the Skyline were killed in the collision. The driver of the oncoming van, Mr Scheepers, was taken to hospital for serious injuries to his lower legs. His medical treatment is ongoing.
[13] You were 18 years old at the time of the offending. You were driving unsupervised with passengers in breach of your restrictive licence.
The impact on the victims
[14] I have read the victim impact statements from the families of the deceased and Mr Scheepers and we have all heard a number of the victims read out their statements today. We all heard of the terrible impact on these families ˗˗ how these families have been left with a hole in their lives and the incredible everyday struggle of coming to terms with the loss of these four young people. Their words capture the emotional damage of these events and the justifiable anger your actions have caused. These statements also highlight the value of human life and you have heard how some of the family members have very generously urged you not to squander the opportunity that
your life and future represents, but to treat this sentence as a turning point and make the most of your young life, which unfortunately you have not done to date.
Purposes and principles of sentencing
[15] I begin by noting that no sentence can bring back these four young people, restore Mr Scheepers’ legs, or undo the damage that has been done. In sentencing you, I must have regard to the need to hold you accountable for the harm done to the victims and the community and promote in you a sense of responsibility for that harm. Denunciation and deterrence of this kind of offending is very important. The sentence imposed should also assist in your rehabilitation and reintegration into the community. Bearing in mind the need for consistency in sentencing, I must take into account the seriousness of the type of offence you have been convicted of. In particular, I must assess the gravity of your offending, including your level of culpability or blameworthiness. I must take into account the information that has been provided to the Court concerning the effect of the offending on the victims. I am also required to impose the least restrictive outcome that is appropriate in the circumstances.
The starting point
[16] I have received a pre-sentence report, references and other documents about your personal circumstances. I will refer to those after I have set out the starting point for your offending.
[17] I take the manslaughter charge as the lead offence to decide the appropriate starting point. The Crown has submitted that a starting point in the range of eight to nine years’ imprisonment is appropriate. This is on the basis of the number of aggravating factors the Crown says are present, particularly greatly excessive speed in racing against another vehicle; prolonged, persistent and deliberate course of very bad driving; and aggressive driving in that both vehicles were travelling too close together.
[18] Your counsel, Mr Morgan QC, has submitted that the starting point suggested by the Crown is one which might be in an appropriate range for the driver of the other vehicle who was directly responsible for the accident. He has urged me, taking into
account your driving role, particularly that you were not, he says, the driver directly responsible for the collision, you were on the correct side of the road, and decelerated by changing down gears, that the starting point should be three years’ imprisonment.
[19] In setting the starting point, I have had regard to the cases referred to by the Crown and by Mr Morgan, in which the drivers were convicted of manslaughter. I refer to just two of them now.
(a) In R v Elliot,4 two good friends decided to settle a disagreement over whose car was fastest, by a planned street race. Mr Elliot’s car struck and killed the race starter. Both drivers pleaded guilty to manslaughter. Hansen J considered the two aggravating factors of racing and driving at excessive speed and the resulting death warranted a starting point of three years’ imprisonment. The Judge did not place weight on warnings or the vulnerability of the victim. The same starting point was selected for both drivers, as there was no justification in that case to distinguish their culpability. The Judge said their similar roles meant it was only a matter of chance who hit the deceased.
(b) In R v Smith and R v Morgan,5 Mr Smith and Mr Morgan were both convicted of manslaughter. Mr Smith and Mr Morgan were engaged in racing for nearly three hours at speeds of up to 180 kilometres per hour. The two drivers took part in a “cat and mouse” game involving one car in front and the other coming up alongside with the inner vehicle eventually allowing the other to pull in ahead. Mr Morgan drove without lights through Pukekohe. He defied requests to slow down. He overtook Mr Smith at a speed of about 180 kilometres per hour. Mr Smith then overtook Mr Morgan’s vehicle on a blind corner, across double yellow lines at approximately 178 kilometres per hour, braked, left the road and overturned, killing his two passengers. The sentencing Judge said that, although Mr Morgan had been travelling at speeds of
4 R v Elliot [2014] NZHC 214.
up to 180 kilometres, he managed to decelerate sufficiently for Mr Smith to overtake and Mr Morgan and his passengers were unharmed. Mr Morgan’s conduct is arguably analogous to yours, Mr Cossey in the sense that he was the driver of the vehicle that did not crash. However, the evidence that Mr Morgan was driving recklessly for an extended period of racing at grossly high speeds elevates the seriousness of his offending beyond yours. A starting point of six years was adopted for Mr Morgan.
[20] As I said earlier, I have considered the cases the Crown has put to me.6 I have assessed the seriousness of the offending in the cases involving a lengthy term of imprisonment, in particular the level of culpability of those offenders, and I have concluded you are substantially less culpable.
[21] The Court of Appeal has emphasised that sentencing in cases such as this is highly fact specific.7 I consider that the motor manslaughter cases in which a starting point of five years or higher was adopted, are distinguishable on the basis that they involve offenders of materially greater culpability, whose actions were the only or clearly a primary cause of the loss of control resulting in death. In the case of R v Morgan I accept that like you, Mr Morgan’s vehicle was not involved in the actual crash. This is the case on which the Crown primarily relies. The Judge adopted a starting point of six years for Mr Morgan. However, as I have already said, the aggravating features of that case were much worse.
[22] You were the driver of one of two vehicles racing each other mainly using the passing lanes on the Ohaupo Road northbound State Highway. You were not the driver that lost control. You were racing and you were travelling at high speed. These were a material cause of the crash. That is what the jury found. There was no additional action by you which caused the driver of the other car to lose control, such as aggressive driving or a dangerous passing manoeuvre, nor of erratic driving on your
7 Gacitua v R [2013] NZCA 234.
part. You were in your lane and you decelerated, albeit only immediately prior to the accident.
[23] Of the aggravating features for this offending outlined in Gacitua v R, the key aggravating feature is that of greatly excessive speed. The way you drove was dangerous, but I do not accept that this was a prolonged, persistent and deliberate course of very bad driving, nor that there was aggressive driving by you in the sense in which the Court of Appeal used that expression. While your two vehicles passed each other over the period of time leading up to the race causing death, the period in which you engaged in racing with another driver was relatively confined.
[24] I recognise that the offence has had a very tragic outcome, with four deaths and serious injury caused to the driver of the oncoming vehicle.
[25] You were driving unsupervised with passengers in breach of your restricted licence. At the time of this offending, you did not have any previous convictions and only a minor record of previous demerit infringements, largely for breaching the terms of your licence, none of which involve bad driving or excessive alcohol consumption.
[26] As the Court of Appeal noted in Gacitua, sentencing in manslaughter cases generally involves more aggravating factors, invariably the consumption of alcohol by the offender.8
[27] The verdict of guilty means that your actions were a substantive and operative cause of the high-speed racing causing death. Clearly your actions were not the only cause, or even the primary cause. As I have stated, I must have regard to your individual culpability, as reflected in your involvement in and contribution to the offending.
[28] While you were both travelling at high speeds, the other driver’s behaviour was directly causative of the deaths of the occupants in his vehicle. I am not persuaded by the Crown’s submission that the jury finding of guilty, based on engaging in a race, provides no basis to distinguish between the culpability of the two drivers. The other
8 Gacitua v R [2013] NZCA 234 at [34].
driver, Mr Robinson, was a 28-year-old male whose blood alcohol level was almost three times the legal limit. His blood samples were also positive for the presence of methamphetamine and cannabis. He was the one who made the decision to move into the oncoming lane in order to overtake you and then, having overtaken you, lost control on the slight bend in the road. I consider that the other driver’s greater level of culpability is reinforced by his pattern of dangerous driving in the period leading up to the crash, especially his decision to overtake two vehicles already in the passing lane by using the lane of oncoming traffic.
[29] In my view, your level of culpability for manslaughter warrants a starting point of three years’ imprisonment.
[30] The offending for the charges of racing causing injury and failing to stop to ascertain injury are closely connected in nature and time to the manslaughter charges. Having regard to the authorities cited to me,9 for the racing causing injury charge, I adopt a concurrent starting point of 18 months’ imprisonment and for the failing to stop charge, I also adopt a concurrent starting point of 18 months’ imprisonment.
Personal circumstances
[31] I now turn to consider any aggravating or mitigating personal circumstances.
[32] You live with your parents and younger sister in Hamilton, where you were born and raised. Your counsel says that you have been deeply affected by events, especially the death of the four occupants of the car. You told the Police you were sorry you drove away from the crash.
[33] While the pre-sentence report-writer states that you have demonstrated little in the way of remorse for the victims and their families, your counsel informs me that you are very remorseful and these events weigh heavily on your mind, to the extent that, before the trial, you were admitted to the Henry Bennett Centre (a psychiatric ward), for seventeen days, before being discharged. Your employer also says that you
have been greatly changed since the tragic events of June 2016 and that you are very sorry for what happened and for the families of the deceased. I noted that you were repeatedly tearful when talking, particularly of the crash scene, in your Police DVD interview. I accept that you are remorseful, although you have a strange manner of showing it. I consider I need to factor in what are obviously mental health issues of some sort and the fact you are on medication.
[34] I can understand that in situations like this your subjective perception was that your racing was something you controlled and that the accident was not your fault. That is a common misunderstanding of young New Zealanders. The fatal flaw in your thinking is it ignores the effect your racing and your bad driving had on Mr Robinson’s driving. You both played a part in the tragic deaths and the injuries. You have to come to terms with that and do all you can to redress the harm you have done. I especially note in this regard that you told the report-writer you now acknowledged that you had partially contributed to the crash. That is a significant step forward.
[35] You are involved in the Right Track programme, which is designed to re-educate young people who become involved in destructive behaviours involving motor cars. You will participate in that programme and hope to eventually speak to other attendees of your own experience, to dissuade them from bad driving behaviour. This is a significant step towards rehabilitation.
[36] I recognise that you have a supportive family and good employment prospects. You were employed as an aluminium manufacturer at an aluminium joinery business for two years before this offending. The pre-sentence report notes that your employer speaks highly of you and is holding a full-time position for you, when you can take it up.
[37] At the time of this offending, you were a first-time offender. You had demerit points, but these are not convictions. Since the offending, you were involved in a minor accident in which you fell asleep at the wheel and no one was hurt. You were convicted and discharged in the District Court. That offending involved very different circumstances to the present offending, but is also driving-related offending. It is inappropriate to classify you as at high risk of reoffending, but your behaviour to date
suggests that you have issues of self-entitlement, impulsivity and stupid and rash decision-making when it comes to driving, especially when you are with your peers ˗˗ and that you need to be kept off the road while you are young.
[38] This brings me to your youth. You were 18 years old at the time of this offending, and an immature, naïve 18-year-old. The Courts assess the culpability of young offenders by reference to their age-related neurological development and the disproportionate impact that a sentence of imprisonment has on a young person.10 The rationale of a youth discount needs to be balanced with the need to deter and denounce offending, particularly of this kind which is commonly carried out by young, immature male drivers.11 The behaviour which underlies your offending is a tragic hallmark of youth.
[39] While very serious, your offending is not so grave that it is inappropriate to take into account your youth.12 As a young person, you have a future ahead of you that would be unjustifiably derailed by a long term of imprisonment for this offending. A long prison term is not the only way of achieving denunciation and deterrence. Taking a harsh approach in sentencing would not be in line with the principles and purposes of sentencing in this case.
[40] Viewed overall, these personal mitigating features tell strongly in your favour. I consider that a global discount of 12 months is appropriate for your prospects of rehabilitation, remorse, efforts at reintegrating and contributing to the community, and for your youth.
[41] This results in a sentence of two years’ imprisonment.
Home detention
[42] As your sentence is one of two years’ imprisonment or less, you are eligible for home detention. When considering imposing a sentence of imprisonment, the
10 Churchward v R [2011] NZCA 531, (2011) 25 CRNZ 446.
11 Richards v R [2017] NZCA 232 at [39] and [40].
Court must have regard to the desirability of keeping offenders in the community as far as that is practicable and consonant with the safety of the community.13 In the circumstances of this case, I am satisfied that a sentence of home detention, which is itself serious punishment with a significant element of deterrence, combined with a long period of disqualification from driving, will protect the community.
[43] As the Courts have recognised, home detention is not a soft option. You are a young man whose rehabilitation and reintegration into the community should be supported. Imprisonment would not be in your interests, nor in the public interest. The community’s interests, balancing deterrence, rehabilitation and reintegration, and acknowledging and addressing the harm caused will be best served by a sentence of home detention.
[44] A period of 12 months’ home detention is appropriate, along with 400 hours of community work. That is the maximum level of community work I can order.
[45] I have also determined that a disqualification from holding a driver’s licence for a period of seven years is appropriate. This is longer than the period sought by the Crown. In my view, this long disqualification period properly marks out the seriousness of this driving offending and protects the community from the dangers of you being in control of a motor vehicle until adequate time has passed for you to change the immature and stupid decision-making (or non-decision-making), that is evident in your driving.
[46] In imposing this sentence, I reiterate that nothing in this Court can reverse these tragic events. But this is not an exercise in trying to come up with a punishment that somehow is the equivalent to human life. That would not do justice to the value of human life. I am conscious that the consequences of the serious convictions you have received, the community’s sanction for those convictions, and the weight of the knowledge of your contribution to these deaths, will endure far longer than the sentence I am imposing today.
[47] Mr Cossey, would you please stand.
13 Sentencing Act 2002, s 16(1).
(a) On each of the four charges of manslaughter, I sentence you to 12 months’ home detention, to be served concurrently.
(b) On the charge of racing causing injury, I sentence you to six months’ home detention, to be served concurrently.
(c) On the charge of failing to stop after an accident, I sentence you to four months’ home detention, to be served concurrently.
[48] You are also sentenced to 400 hours of community work and are disqualified from driving for a period of seven years.
[49] You may stand down.
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Hinton J
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