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Hayden v R

Hayden v R

Case [2020] NZCA 369 28 August 2020

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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

AThe appeal is allowed.
BThe 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)

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.
[1]Crimes Act 1961, ss 66(1), 171 and 177.
[2]R v Hayden [2020] NZHC 966 [High Court judgment].
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]To avoid confusion between the two we refer to Mark Hayden as the appellant.
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.
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Hayden v R

Details

AGLC: Hayden v R [2020] NZCA 369
Case: [2020] NZCA 369
Decision Date: 28 August 2020 at 10 am

CaseChat Overview and Summary

Mark Hayden appeals against the sentence imposed on him by the High Court for his involvement in the death of a man who was killed by his cousin, Stephen Hayden, who was driving dangerously while intoxicated. Stephen and the appellant were passengers in a vehicle being driven by a third party. Stephen took over the driving while intoxicated and drove dangerously, causing the death of the deceased and himself. The appellant pleaded guilty to being a party to the manslaughter. The High Court sentenced the appellant to two years and one month’s imprisonment. The appellant claims 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. The Court of Appeal allows the appeal, quashes the sentence imposed by the High Court, and substitutes a sentence of one year and three months’ imprisonment. The Court finds that while the appellant’s culpability was less than that of Stephen, it was not so much less as to permit the Judge’s starting point of four years and six months’ imprisonment. However, the Court finds that a more substantial allowance should be made for personal mitigating factors. The Court finds that the appellant’s remorse, good character and voluntary return to New Zealand to face the charge should have been given greater weight. The Court finds that the sentence of one year and three months’ imprisonment is appropriate, having regard to the purposes of sentencing set out in s 7(1)(a), (b), (e) and (f) of the Sentencing Act 2002.

Orders