R v Boyce

[2023] NZHC 3508

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CRI-2023-020-153

[2023] NZHC 3508

THE KING

v

BRYDON EDWARD BOYCE

Hearing:

4 December 2023

Counsel:

C R Stuart for Crown

R B Philip for Defendant

Sentence:

4 December 2023

SENTENCING NOTES OF ISAC J

Introduction

[1]    I wish to begin by acknowledging first and most importantly the immense grief and heartbreak of Marco’s family. Marco was a much cherished father, husband, son and brother. The materials I have read and what I have heard today make it clear to me that he was a very fine man. A good person. And the loss of his life has had an immense impact on his children, wife, brother and parents.

[2]    I also wish to thank those who spoke today with such courage. While my focus must be on sentencing the defendant for what he has done, I have not lost sight of the person whose life has been lost so needlessly.

R v BOYCE [2023] NZHC 3508 [4 December 2023]

[3]    I also want to acknowledge Mr Boyce’s whānau. Today will be a hard day for you also. Nau mai haere mai

[4]    Mr Boyce, you appear for sentence having pleaded guilty to Mr Milliaccio’s manslaughter,1 two charges of reckless driving causing injury,2 as well as a range of other charges arising from what the Police found in your vehicle. The most serious of these are possession of methamphetamine and cannabis for supply, and possession of a firearm and ammunition.3

[5]    The maximum penalty for both manslaughter and possession of methamphetamine for supply is life imprisonment.

The offending

[6]    At the time of your offending, Mr Boyce, you were forbidden from driving. The vehicle you were driving was your extensively modified Ford Falcon. The modifications included lowered suspension and changes to the components of the engine which more than doubled its normal horsepower. The vehicle did not have a current registration or warrant of fitness and was not in a warrantable condition. It was also fitted with a Police radar detector.

[7]    Two of your friends, Mr Moys and Mr Carson, were in the vehicle with you. Neither of them were wearing seatbelts. You decided to test the modifications you had made by showing off to your passengers.

[8]    At 4.30pm on 4 July 2022, after turning off Havelock Road onto St Georges Road, you accelerated along a straight stretch of road heading north east. A Police patrol vehicle was driving in the opposite direction. The officer realised that you were speeding and activated his radar, which recorded you travelling at 144 km/h. This also

1      Crimes Act 1961, ss 160(2)(a), 171 and 178; maximum penalty of life imprisonment.

2      Land Transport Act 1988, s 36(1)(a); maximum penalty of five years’ imprisonment or a fine not exceeding $20,000.

3      Possession of methamphetamine for supply (Misuse of Drugs Act 1975 s 6(1)(f) and (2); maximum penalty of life imprisonment); possession of cannabis for supply: Misuse of Drugs Act s 6(1)(f); maximum penalty of eight years’ imprisonment); and unlawful possession of firearm (Arms Act 1983, s 45(1); maximum penalty of four years’ imprisonment or fine not exceeding

$5,000).

caused the alarm on the radar detector in your vehicle to go off. On seeing the patrol vehicle, you accelerated away to avoid being caught, driving a further kilometre to a lefthand bend where the crash occurred.

[9]    Using footage from a nearby CCTV camera, expert crash investigators were able to estimate your vehicle’s speed before reaching the corner. One expert calculated you were travelling at between 200 km/h and 250 km/h. Another considered you were travelling at an average speed of 214 km/h. These were extraordinary speeds for the narrow road you were travelling on in a car without a warrant of fitness.

[10]   Mr Milliaccio was travelling toward the bend from the opposite direction. As you heard from the victim impact statements he had just left work for the day and was travelling home to be with his wife and two children. They would never see their father and husband alive again.

[11]   The bend at the end of the straight has a speed advisory sign of 45km/h.     Mr Boyce, you braked but lost control of your vehicle. You crossed the centre line and collided head-on with Mr Milliaccio’s vehicle. The experts say your vehicle was travelling at 115 km/h at the time of impact, while the victim’s was travelling between 36 and 49 km/h. Mr Milliaccio’s vehicle was pushed backwards 19 m by the impact. He suffered fatal injuries and he died at the scene.

[12]   You and your passengers suffered serious but non-life threatening injuries and were taken to the hospital by ambulance. Mr Moys sustained a fractured sternum and fractured tibia that required surgical repair. Mr Carson sustained multiple facial bone fractures to the nose and upper jaw, cuts and a concussion. You sustained two broken ankles, extensive bruising and mildly displaced fractures to your lumbar spine.

[13]   A sample of your blood was taken after the crash and tested positive for methamphetamine at a level nine times above the “high-risk” blood concentration level.4

4      Land Transport Act 1998, sch 5.

[14]   Police then undertook a search of your vehicle. They found 128 grams of methamphetamine  packaged  into  57 resealable  plastic  bags  of  varying  sizes,5   58 grams of cannabis, 2.5 grams of pseudoephedrine, $11,356 in cash, a small revolver loaded with three live .22 rounds, and a .22 Ruger magazine with two .22 rounds, one live and one spent.

[15]   I have no doubt that the reason you accelerated beyond 144km/h after seeing the Police vehicle was the presence of substantial quantities of drugs and a firearm in your car, which on its own would have resulted in a significant term of imprisonment if you were apprehended. It goes without saying Mr Boyce that it is a seriously aggravating factor that you killed Mr Milliaccio trying to spare yourself from prison.

Personal circumstances

[16]   You are 43 years of age. You have only had three previous convictions in your entire lifetime the last of which were in 2001, well over two decades ago. While two convictions relate to dangerous driving, they resulted in fines only and are so historical they are of no relevance to the sentencing process. It is therefore a matter of great sadness that a person who managed to live a relatively faultless adult life should be appearing today for sentence on such a number of serious offences where the consequences—the loss of an innocent life—and all that you have heard that means for Mr Milliaccio's family—could not be more profound.

[17]   You do not have any children, but I am told that you are in a relationship with a partner who does have children before you were arrested. So you will know full well what you have done to those children.

[18]   You are  a qualified carpet  layer.  I understand that after leaving  school  at  15 years of age for a job you began carpet laying at the age of 19, first as an employee, and then as an independent contractor. It was during this period that you began using methamphetamine.

5      When ESR weighed the methamphetamine in August 2023 the total weight was 112.2 grams. The difference may have been caused by the drying of the exhibits over time.

[19]   I also understand that you suffered a traumatic brain injury when you were in your 20s. Your cousin Conroy tells me that you were the victim of an unprovoked attack and suffered a king-hit that landed you in ICU. He noticed changes in your personality after that. Your brain injury has likely made you more susceptible to impulsive decision making, drug dependency, and likely made it harder for you to get off drugs as well.

[20]   I have also read about the impact of the offending not only on you, but also on your own father, two sisters and your cousin. Your whole whānau feel the weight of what has happened because they blame themselves for not intervening in your drug use sooner. So the burden of what you have done Mr Boyce has not only landed on your own shoulders. It is a burden your whole family have to bear as well.

[21]   The material I have also suggests that you began using methamphetamine    18 years ago. You told the s 27 report writer that once you started using it daily, you actually thought it improved your life. But as you know, drugs have been the ruin of your life, and your addiction has led you here today and to the immeasurable suffering your victim’s family must now endure.

Starting point

Manslaughter

[22]   I begin then by setting a starting point for the charges of manslaughter and reckless driving causing injury.

[23]The following aggravating features are present in your offending:

(a)Extreme speed and exhibitionism. You told Police you were definitely driving over 180 km/h, and the expert evidence suggests that your actual speed was well over 200 km/h. It goes without saying that travelling at such speed, especially toward a blind corner, was extraordinarily dangerous and inherently likely to result in death should a crash occur.

(b)The number of victims and scale of injuries: Not only did you cause Mr Milliaccio’s death. You also caused serious injuries to your passengers and yourself.

(c)Evading Police: Your purpose in driving so recklessly was in order to escape arrest. I find that you did so because you were aware of the substantial quantities of methamphetamine, cannabis, firearms and cash in your car and it would have been obvious that if apprehended you were facing a serious prison sentence.

(d)Methamphetamine intoxication: The evidence indicates you used methamphetamine in the middle of the day. The level of drug in your blood indicates you were clearly heavily and dangerously under its influence at the time of the crash.

(e)Modified, unregistered and unwarranted vehicle: The vehicle you were driving had been significantly modified. It was also not road-worthy and should never have been taken out on a public road.

(f)Forbidden from driving: Finally, you were forbidden from driving at the time. So you drove in this way in defiance of a lawful direction that you should not.

[24]   All of this reveals an extraordinarily high level of risk taking and disregard— not only for your own life but for the lives of the members of the community in which you lived.

[25]   The Crown and your counsel referred me to a number of authorities which indicate that the starting point for this type of offending typically ranges between six and nine years’ imprisonment.6 The Crown submits a starting point for the

6      Counsel raised the following cases and the starting points adopted in them: Gacitua v R [2013] NZCA 234; R v Cooksley [2003] 3 All ER 40 (Crim App); R v Makaore [2020] NZHC 2289 (seven years’ imprisonment); R v Strickland [2020] NZHC 2314 (10 years); R v Green [2016] NZHC 513 (six years and six months); R v McGrath [2014] NZHC 1583 (seven years); R v James HC Palmerston North CRI 2010-031-001812  (seven years);  R v Price [2020] NZHC 2995 (six years); Millar v R [2019] NZCA 570 (six and a half years); Zhao v Police HC Hamilton AP

manslaughter charge should be between eight and eight and a half years’ imprisonment. Your counsel, Mr Philip, suggests that a seven year starting point is appropriate.

[26]   I consider the most relevant cases are R v Thomas7 and R v Guest,8 where starting points of eight years and eight years and nine months’ imprisonment were adopted respectively. Your case is not as serious as R v Strickland, where a starting point of nine years’ imprisonment was taken.

[27]   Overall, the appropriate starting point for Mr Milliaccio’s manslaughter is eight and a half years’ imprisonment.9 A lower starting point in my view would fail to reflect the constellation and seriousness of the aggravating factors I have just identified.

The drugs, firearm and ammunition

[28]   I now turn to consider the starting point for the charges relating to the drugs, firearm and ammunition found in your vehicle after the crash.

[29]   I take the charge of possession of methamphetamine for supply as the lead offence. Starting points for this type of offending are governed by the judgment of the Court of Appeal in Zhang v R. In that case the Court identified five bands within which methamphetamine offending will occur.10 The starting point for sentencing involves the quantity of drugs and the role of the offender. Counsel are agreed that your

32-03 6 June 2003 at [32]; Brook v R [2010] NZCA 13 (seven years); R v Kane [2019] NZHC 2622 (seven and a half years); Mika v R [2013] NZCA 648 (eight years); R v Thomas [2018] NZHC 819 (eight years); and R v Guest [2013] NZHC 2432 (eight years and nine months).

7      In Thomas, the defendant drove with a breath alcohol level of around twice the legal limit. A police officer gave chase after observing the defendant speeding up to 130 km/h and swerving across the road. Ignoring police and pleas from passengers to stop, the defendant accelerated further and eventually lost control and hit a parked car, killing one passenger and injuring two others. Justice Moore adopted a starting point of 8 years’ imprisonment.

8      In Guest, the defendant drove six passengers while heavily intoxicated. He reached speeds up to 180 km/h, disregarded the repeated pleas of passengers to slow down, and drove dangerously for a prolonged period before crashing on a bend. One passenger was killed and the other five were badly injured. Justice Venning adopted a starting point of 8 years 9 months’ imprisonment.

9      I consider the present case to be more serious than Thomas—given the use of a heavily modified and unsafe vehicle together the presence of drugs and firearms—but less serious than Guest and Strickland which both involved sustained periods of excessive speeding and dangerous driving posing high levels of risk to passengers and other road users.

10 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [125].

offending falls into the middle of Band 2, which relates to offending involving quantities of methamphetamine greater than 5 grams but less than 250 grams, and carries a starting point of between two and nine years’ imprisonment.

[30]   The Court of Appeal has also stressed the importance of the offender’s role when determining the appropriate starting point. It identified three categories of involvement in methamphetamine-related offending: leading, significant and lesser.11

[31]   The quantity of methamphetamine in your case Mr Boyce and its packaging into saleable quantities and the large sum of cash indicate that this was an established commercial operation. The presence of a loaded firearm is also a significant factor. You accept all the drugs were yours, and you also appear to have acted as an independent seller running your own illicit supply chain rather than working for a more senior member of a wider drug ring. I consider your role was significant, albeit at the lower end.

[32]   Counsel did not differ on the overall starting point for the drug related offences. Your counsel suggests a starting point for the methamphetamine offending of four and half to five years’ imprisonment, and uplifting it by 18 months to reflect the combined firearm offences, and the possession of cannabis for sale and pseudoephedrine. The Crown suggests a five year starting point for the lead methamphetamine offence, with an uplift of 12 to 18 months for the other charges. Both approaches result in a sentence for these charges of six to six and a half years’ imprisonment.

[33]   I broadly agree, and adopt a starting point of six years’ imprisonment for the remaining charges. Together with the driving charges, that brings the nominal cumulative starting point to 14 years and six months’ imprisonment.

Adjustment for totality

[34]   I now turn to consider the totality of the sentence. The main difference between the Crown and defence position lies in what adjustment, if any, might be required for it. Section 85(2) of the Sentencing Act provides that cumulative sentences of

11 At [126].

imprisonment, whether individually or in combination with concurrent sentences, must not result in a total period of imprisonment wholly out of proportion to the gravity of the overall offending.

[35]   The Crown position is that a cumulative starting point of 14 or 15 years’ imprisonment would appropriately reflect the seriousness and gravity of your offending. Mr Stuart has, however, acknowledged responsibly that adjustment to account for totality is required. Mr Philip on your behalf submits that the starting point should be adjusted down to 11 years’ imprisonment. That submission involved reducing the starting point he had proposed by two and a half years.

[36]   Overall, while your offending is very serious, I consider a starting point of  14 and a half years’ imprisonment would be wholly disproportionate to the gravity of the overall offending. Some adjustment for totality is therefore required. I therefore adopt an overall starting point of 12 and a half years’ imprisonment.

Personal aggravating and mitigating factors

[37]   I turn now to consider personal aggravating and mitigating factors. Your previous criminal convictions are few and historical. The Crown accepts that no uplift to reflect aggravating factors personal to you is warranted.

Guilty plea

[38]   In relation to your guilty  plea,  the  Crown  submits  that  no  more  than  a 20 per cent discount is justified. Your counsel says that a discount of 20 or 25 per cent is appropriate. The reason for the difference of view is that there was some delay in entering your guilty plea occasioned as a result of the expert assessment of your speed and for the methamphetamine to be weighed by the ESR.

[39]   In my view the delay was unfortunate but not unreasonable. It does not indicate a lack of acceptance on your part for what you had done. I am therefore prepared to grant you a full discount for plea of 25 per cent, although that is a generous view given the strength of the Crown case.

Remorse

[40]   In terms of remorse, the Crown accepts that you are genuinely remorseful and so do I. It was also the view of a pre-sentence report writer.

[41]   I have read the letters from your sisters that indicate your offending has had a profound impact not only on you, but also your immediate family. As I said they feel guilty that they were not able to support you through your addiction, and as a whānau that grew up with loving parents it is also clear that your sisters understand the impact of a loss on Mr Milliaccio’s family of your conduct. I also acknowledge the payment of emotional harm reparation that you have made.

[42]Overall you are entitled to an additional credit of 5 per cent.

Section 27 report, addiction and rehabilitation

[43]   Your counsel has also made available a report prepared under s 27 of the Sentencing Act 2002. Mr Philip submits the report reveals cultural deprivation, family dysfunction and substance abuse. A discrete reduction of 15 per cent to reflect these matters is sought.

[44]   In addition, Mr Philip submits that I can be satisfied that your addiction to methamphetamine was causative of your offending, and that this combined with the very positive steps that you have taken after the crash in terms of rehabilitation should be acknowledged with a further discrete discount.

[45]   The s 27 report indicates Mr Boyce that you had a relatively stable and supportive upbringing—and I am not saying it wasn’t without difficulty but a relatively stable and supportive upbringing—compared to most who come through the doors of this court. There is no indication of deprivation, systemic impacts or mistreatment. Such other matters as are canvassed do not in my view meet the requirement for a causal connection with the particular offending sufficient to warrant a discount.12

12     Pomale v R [2022] NZCA 343 at [25].

[46]   The factor which clearly does require acknowledgment, however, is the role of addiction in your offending and what I accept as your efforts since the accident to do something about it. The level of discount that can be provided, though, must be tempered by two considerations.

[47]   The first is that your addiction cannot operate as a mitigating factor in relation to your driving. I consider that the prime factor that led to your highly reckless behaviour was your desire to avoid prosecution for serious drug dealing. The fact that you had used methamphetamine and were under its influence were merely contextual. In any case, as the Sentencing Act makes clear, the court must not take into account by way of mitigation the fact that an offender was, at the time of committing the offence, affected by the voluntary consumption or use of a drug or any other substance.13

[48]   The second consideration is that while I am prepared to accept that addiction has played a role in relation to your drug related offending, yours was clearly a relatively substantial operation given the quantity of drugs and cash found in your vehicle. This was not dealing simply to maintain a drug habit. As the Crown submits, you had your own carpet laying business and legitimate income derived from it. So I cannot overlook that your drug related offending must have been driven in part by a desire to profit from it.

[49]   None of this Mr Boyce is to diminish the efforts that you have gone to in order to overcome your addiction. I take hope from those efforts and you are to be commended for them. But it is important when identifying the level of discount to ensure consistency with sentencing principle.

[50]   Overall, keeping in mind these considerations, the appropriate discount to acknowledge addiction and your rehabilitative steps is 10 per cent.

[51]That brings the total discount for mitigating factors to 40 per cent.

13     Sentencing Act 2002, s 9(3).

Time on EM bail

[52]   Mr Philip also submits that you spent eight months after you were charged either in custody or on restrictive EM bail conditions. He submits that between two and four months credit should be granted to reflect this.

[53]   However, you are not entitled to any discount for time spent in custody before sentencing. That is taken into account by Corrections when calculating your release date. Nor are you entitled to credit for time spent at the Raglan Reconnection Centre. It seems that the relevant period on EM bail spans 11 May 2023 until you were remanded in custody following pleas, on 15 September 2023. That is a total period of four months.

[54]   Overall, I consider some discount is warranted. I will reduce the end sentence by one month’s imprisonment for this factor accordingly.

End sentence

[55]   That results in an overall sentence after mitigating factors of seven years and four months’ imprisonment on all charges. I will impose that sentence on the lead-charge of manslaughter while imposing concurrent sentences on your other charges.

Sentence

[56]Mr Boyce would you please stand now.

[57]   On the charge of manslaughter you are sentenced to seven years and four months’ imprisonment.

[58]   On the charge of possession of methamphetamine for supply, you are sentenced to four years’ imprisonment.

[59]   On the charges of reckless driving causing injury, you are sentenced to two years’ imprisonment.

[60]   On the charges of possession of cannabis for sale and possession of a pistol, you are sentenced to two years’ imprisonment.

[61]   On the charge of possession of pseudoephedrine and ammunition, you are sentenced to one year’s imprisonment.

[62]These sentences are all concurrent.

[63]In addition, you are disqualified from driving for a period of four years.

[64]   Finally, I order forfeiture of the $11,365 cash, and the destruction of the drugs, firearm and ammunition found in your possession.

[65]   Mr Boyce, I am not imposing a minimum period of imprisonment on you. The Crown does not seek one and given your lack of previous convictions and your positive engagement in rehabilitation, I consider the Parole Board is best placed to assess the risk that you present to the community should you be granted early release.

[66]Thank you Mr Boyce. Please stand down.

Isac J

Solicitors:

Bramwell Bate, Hastings

Crown Solicitor’s Office, Napier