R v Boyle

[2019] NZHC 1584

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI-2018-019-004429

[2019] NZHC 1584

THE QUEEN

v

DYLAN KEN BRYAN BOYLE

Hearing:	5 July 2019
Appearances:	J N Foster & K R L Guthrie for Crown K W Burroughs for Defendant
Sentence:	5 July 2019

SENTENCE OF PAUL DAVISON J

Solicitors:

Crown Solicitor, Hamilton

R v BOYLE [2019] NZHC 1584 [5 July 2019]

Introduction

[1]        Dylan Boyle, at the age of 22 years, you appear for sentencing today having pleaded guilty on 21 June 2019 to:

(a)one charge of kidnapping pursuant to ss 209(b) and 66 of the Crimes Act 1961, carrying a maximum sentence of 14 years’ imprisonment; and

(b)one charge of conspiring to defeat the course of justice pursuant to s 116 of the Crimes Act 1961, carrying a maximum sentence of seven years’ imprisonment.

Background

[2]        You are one of a number of defendants charged with criminal offences following the death of Mitchell Paterson.

[3]        In the early hours of Thursday, 12 July 2018, you and your co-defendants Leon Wilson, Simon Walker, Grant Wickens, Chloe Kerridge and Kyra Betteridge were together at Mr Wilson’s Hamilton residence. Mr Wilson is the president of the Waikato chapter of the Nomad’s gang. There was discussion amongst the group about Mr Paterson having allegedly bad mouthed Mr Wilson.

[4]        Arising from that discussion, Mr Wilson directed that Mr Paterson was to be brought to his address for questioning about what he had been saying.

[5]        In accordance with Mr Wilson’s direction, you and your co-defendants, Mr Walker and Ms Kerridge, left Mr Wilson’s address together in your car for the purpose of locating Mr Paterson. Mr Walker then contacted other associates to confirm Mr Paterson’s whereabouts. Having received confirmation as to where Mr Paterson could be located, Mr Walker telephoned Mr Wilson and told him the address where Mr Paterson was. The three of you drove in your car to that address, and you parked outside. After you had left Mr Wilson’s address, Mr Smith had arrived there.

[6]        Once at the address where Mr Paterson was located, Mr Walker advised Mr Smith via a text message that he was there, that is Mr Walker was there. Mr Smith, Mr Wilson, and Mr Wickens had by then, departed Mr Wilson’s address in Mr Smith’s vehicle, and Mr Smith responded to Mr Walker’s text, telling him to let them know once Mr Paterson was in the car.

[7]        Mr Walker then lured Mr Paterson out to your car on the pretext of completing a drug deal. Mr Paterson came outside and spoke briefly to Mr Walker, before returning back inside apparently to get something. While he was away Mr Walker sent another text message to Mr Smith informing him that he (Mr Walker) was waiting in your car for Mr Paterson to return. Then when Mr Paterson returned back to your car he was forced and dragged into the backseat.

[8]        Mr Wilson, Mr Smith and Mr Wickens then arrived in Mr Smith’s vehicle. Mr Wilson ordered you and Mr Walker to get Mr Paterson back to his (Mr Wilson’s) place, and mouthing the words to you to “drive”.

[9]        Ms Kerridge, who was seated in the front passenger seat of your car, also told you to “drive, drive, drive”. You did so, driving away from Mr Paterson’s place despite his obvious opposition to remaining in your vehicle and being taken away in your car. The second vehicle driven by Mr Smith, he accompanied by Mr Wilson and Mr Wickens, followed behind. The two vehicles proceeded in convoy.

[10]      During your drive back to Mr Wilson’s address Mr Paterson was struggling with Mr Walker in the back seat of your vehicle and clearly trying to get free and out of your car. Mr Walker restrained him, by putting him in a headlock or chokehold with one of his arms around Mr Paterson’s neck and his other arm around his head and back. During the on-going struggle and while you were proceeding along Victoria Street, Mr Paterson managed to kick out and smash a rear side window of your car. When that happened Mr Walker instructed you to stop the car, which you did. The vehicle driven by Mr Smith also then stopped.

[11]      At Mr Wilson’s direction, Mr Smith got out of his vehicle and went over to your car and got into the backseat of your car and proceeded to sit on Mr Paterson’s

legs to effectively immobilise him while Mr Walker maintained his headlock and choke-hold. Once Mr Smith had entered your car and had taken up a position sitting on Mr Paterson’s legs, you resumed the journey and drove on to Mr Wilson’s residence. You were followed by Mr Wickens driving Mr Smith’s vehicle, he being accompanied by Mr Wilson.

[12]      During the remainder of the journey back to Mr Wilson’s place, Mr Walker maintained his headlock and chokehold on Mr Paterson, and Mr Smith maintained his position sitting on Mr Paterson’s legs.

[13]      On arrival back at Mr Wilson’s residence, Mr Paterson was taken from your car into a garage at the rear of Mr Wilson’s property, where he was observed to be blue in the face and unresponsive, and having a small amount of blood visible on his lips. Mr Walker initially tried to wake Mr Paterson by slapping his face and, being unsuccessful, then attempted CPR, but soon realised that Mr Paterson was dead. At that point you and Mr Smith both left the address separately in your vehicles.

[14]      A discussion then took place amongst those who remained regarding the consequences of Mr Paterson’s death, including discussion of disposing of the body in order to avoid being found responsible or involved. You were not privy to that discussion, having already left Mr Wilson’s residence when it took place. However, Ms Kerridge subsequently contacted you and instructed you to clean your vehicle out. You agreed to clean it and to remove any evidence of what had taken place that might have remained in your vehicle.

[15]      Several of your other co-defendants then acted together to dispose of Mr Paterson’s body. His body was quickly discovered by the Police and you were interviewed by the Police. When you were interviewed you acknowledged your role in the offending and provided details of the roles of the other persons involved.

[16]      You initially faced charges of manslaughter, kidnapping, and conspiring to defeat the course of justice. The Crown Charge Notice was amended on 12 June 2019 to remove the charge of manslaughter and thereafter you promptly entered a plea of guilty when arraigned on 21 June 2019.

[17]      After entering your guilty pleas, you provided the Police with a further written statement regarding the details of the roles of your co-defendants Mr Wilson, Mr Smith and Ms Kerridge, in the death of Mr Paterson. As a result of that statement, the Crown Charge Notice in respect of Ms Kerridge has been amended to include in her case a charge of kidnapping.

Submissions

[18]      Crown counsel and your counsel are largely agreed as to the appropriate sentencing starting point, and indeed the end sentence, to be imposed.

Crown submissions

[19]      The Crown submits that, given the nature of the offending, it is appropriate to identify a global starting point applicable in respect of both of the charges that you are to be sentenced for. The Crown further submits that concurrent sentences are appropriate.

[20]      The Crown says that you were not involved in a preconceived plan to kidnap Mr Paterson, and your offending, while serious, is appropriately seen as a spontaneous response that occurred in the context of what was a rapidly unfolding situation. The Crown says that you followed the instructions of your associates to drive away with Mr Paterson on the rear seat of your car when you knew that he did not wish to remain in your car or be taken to Mr Wilson’s address. The Crown however accepts that the violence towards Mr Paterson substantially took the form of restraint rather than being gratuitous violence, and it is accepted by the Crown that you played no active part in having any physical contact with Mr Paterson.

[21]      The Crown submits that the Court is not assisted by way of guideline authority in the present case. As to consistency with your co-defendants, sentences have already been imposed on Ms Betteridge and Mr Green on their charges of conspiring to defeat the course of justice, but their offending was considerably more serious than yours as they were both involved in the disposing of Mr Paterson’s body.

[22]      The Crown says that the sole aggravating feature of your offending is the extent of the harm arising from the offence, being of course, Mr Paterson’s tragic death.

[23]      The Crown has referred me to a number of previous sentencing decisions on kidnapping. The Crown submits that in light of those decisions, the fact that you were effectively following orders, and that you had no part in the violence against Mr Paterson, and that such violence was in the form of effectively restraint rather than being gratuitous, those factors should lead the Court to adopt a starting point of two years and six months’ imprisonment as appropriate for the charge of kidnapping. To that, the Crown submits an uplift in the range of three to six months’ imprisonment is warranted in respect of the charge of conspiring to defeat the course of justice.

[24]      The Crown acknowledges a number of mitigating features apply in your case. They are your co-operation with the Police by assisting in the prosecution of your co-defendants Mr Wilson, Mr Smith and Ms Kerridge, as you have made a statement and are proposing to give evidence and your willingness to be a witness at their trial. Your lack of previous convictions and your guilty plea are also matters which the Crown says are mitigating factors. The Crown has suggested how the Court might approach determining the discounts to be allowed in respect of the mitigating features personal to you, but has not proposed specifically what those discounts should be.

Defendant’s submissions

[25]      Your counsel, Mr Burroughs, broadly in line with the submissions made by the Crown, submits that a global starting point of up to two years and nine months’ imprisonment on both charges is warranted in this case. Mr Burroughs accepts that the aggravating feature of your offending is Mr Paterson’s death.

[26]      Mr Burroughs points out that you have no previous criminal convictions. He says that you were drawn into this offending through your relationship with Ms Kerridge and your addiction to drugs. He also says that you are remorseful. He says your remorse is apparent from your admission to the Police of your role in Mr Paterson’s death, when self-interest would ordinarily dictate that no such admission, effectively incriminating yourself, would be likely to be made.

[27]      Mr Burroughs submits that you are entitled to a discount for your cooperation with Police and that you are entitled to a full 25 percent discount of your sentence in recognition of your guilty pleas.

[28]      While accepting that a sentencing starting point of up to two years, nine months’ imprisonment is appropriate in your case, Mr Burroughs submits that once an allowance is made for your cooperation with the Police and prosecution, and a discount given for your guilty pleas, an end sentence of home detention, being the least restrictive sentence available to the court, should be imposed upon you.

Discussion

[29]      Mr Boyle, for the purposes of sentencing you, the Sentencing Act 2002 requires that the sentence I impose promotes in you accountability and responsibility for your offending; provides for the interests of the victim; denounces your conduct; and deters you and others from offending in a similar manner; and also provides for your rehabilitation.1

[30]      In considering the principles, as outlined in the Sentencing Act 2002, I should particularly bear in mind when sentencing you, are the gravity of your offending; and imposing the least restrictive sentence that is appropriate in the circumstances.2

[31]      I agree with the Crown and your counsel, that a global starting point should be adopted in this case. I also agree that the sentences on the charges of kidnapping and conspiring to defeat the course of justice should be imposed concurrently, that is the sentences will be served together. And I agree that on the charge of conspiring to defeat the course of justice, your offending is less serious than that of your co-defendants Ms Betteridge and Mr Green.

[32]      I have considered the cases referred to me by the Crown on the starting point for kidnapping. They largely concerned defendants who did not have a direct role in the actual kidnapping, that is the act of detaining the victim. They were instead bystanders to that, or performed some ancillary role to their co-defendants who were

1      Sentencing Act 2002, s 7.

2      Sentencing Act 2002, s 8.

the primary offenders. I do not intend to refer to all of those decisions here. An example is R v Kaka in which Venning J adopted a starting point of two years and six months for a charge of kidnapping where the defendant, although not involved in the abduction of the victim, and not involved in the ill treatment of the victim, nevertheless stood guard over her while she was bound and detained for a period of hours before she managed to escape.3

[33]      Another comparable case is R v Corbin in which Mander J adopted a starting point for Mr Corbin of two years and three months and for his co-offender Mr Mauheni a starting point of two years.4 In that case the two defendants had no involvement in the gang-related kidnapping of the victim, or of the victim being abducted and taken to premises where he was assaulted. However, the defendants were directed to attend that address and when they arrived their presence provided assistance and support for the offenders. Mr Mauheni later said he felt powerless to influence the situation. Mr Corbin however punched the victim in the head and struck him with his foot. The victim managed to make use of a cell phone early the following morning and the Police were called and attended the address.

[34]      R v Hansen was another kidnapping case involving gang members.5 Ms Hansen was involved in the planning of the kidnapping and driving others in her car to a carpark in a reserve where the abducted victim was taken. Ms Hansen remained there with others before taking an associate into town where the victim’s ATM card was used to withdraw all her available funds, some $120. Ms Hansen then transported other associates in her car in order to obtain another vehicle. Ms Hansen was not involved in the events that followed which involved the victim being seriously assaulted, bound and transported in the boot of a car. The victim later managed to escape from the boot of the car while it was moving, but died from her very serious injuries. Unlike the present case, the violence the victim experienced at the hands of Ms Hansen’s co-defendants was gratuitous. In sentencing Ms Hansen, Gilbert J described her as having played a limited role, effectively as a driver. Gilbert J adopted a starting point of three years’ imprisonment on the charge of kidnapping.

3      R v Kaka [2013] NZHC 2151.

4      R v Corbin [2016] NZHC 2570.

5      R v Hansen [2017] NZHC 449.

[35]       I consider your offending to be somewhat higher as to its level of culpability than the offending in Kaka and Corbin but less culpable than that of the defendant in the case of Hansen. In your case you drove Mr Walker and Ms Kerridge knowing that the purpose was to locate Mr Paterson and take him back to Mr Wilson’s house. That journey involved you driving to an address where Mr Paterson was staying as directed by Walker and then, when Mr Paterson was forced into your car, driving away with him in the rear of your car when his resistance was very clear and a clear indication to you that he did not wish to be with you in the car or to be taken anywhere. You then complied with instructions to stop your car at the point when Mr Smith got in and assisted to restrain Mr Paterson. You then drove back to Mr Wilson’s place as I have earlier described. That was an extensive and ongoing series of acts on your part that proceeded from the point of knowing that the plan and intention was to locate Mr Paterson and return him to Mr Wilson’s place for questioning, and thereafter assisting Mr Walker and the others by providing transport and acting in accordance with their directions. It therefore appears that without you playing your role the whole enterprise may not have been able to be carried out as it was. You provided the essential transport.

[36]      Consistently with the submissions made by both the Crown and Mr Burroughs, I agree that a starting point of two years, six month’s imprisonment is appropriate on the lead charge of kidnapping, with an uplift of three months’ imprisonment for the charge of conspiring to defeat the course of justice.

[37]      I consider that starting point is appropriate having regard to the seriousness of your offending and your culpability as reflected by your level of involvement in the offending, that you were largely acting on instructions in circumstances where it appears that you were scared and that consequently your role in the offending was in the nature of an urgent response to a situation that you found yourself in. I agree that the sole aggravating feature, which is not in any way to diminish it, of your offending is that Mr Paterson tragically lost his life. That needs to be accounted for and recognised in the sentencing.

[38]      As to the mitigating features personal to you, I note first the assistance you have provided to the Police in the prosecution of your co-defendants, Mr Wilson, Mr

Smith and Ms Kerridge. The Crown says that it considers the formal statement provided by you to be reliable and corroborated by other evidence. The Crown says that your statement, while not pivotal, will be of value to it in attempting to secure prosecutions of your co-defendants. Moreover, the Crown says that your evidence provides the actual basis for the charging of Ms Kerridge with the offence of kidnapping of Mr Paterson.

[39]      The Crown has also provided a number of cases where the courts have allowed a discount to an offender at sentencing to reflect the assistance they have provided to the Police and the prosecution. Those cases show a broad range of discounts have been given by the courts to offenders for the assistance they have provided. In some cases, discounts have been as high as 30 – 35 percent.6 Those discounts appear to have been justified on the basis that the evidence offered by the defendant against their co-defendants was pivotal to securing their convictions, and where there was otherwise only scant or limited evidence available to secure a conviction. In other circumstances, discounts of between 15 - 20 percent have been granted for material assistance provided by a defendant.7

[40]      In your case, I consider that a discount of just over 20 percent, or seven months, is warranted. Your evidence, while not pivotal to securing convictions of all your co- defendants still proceeding to trial on all charges, is obviously of material assistance in corroborating the evidence to be presented by the Crown. I also note that without that evidence, a charge of kidnapping would not have been brought against Ms Kerridge, so in that respect your assistance can aptly be described as pivotal in relation to the charge against her. Moreover, I note that the co-defendants against whom you are offering evidence are involved in or associated with the Nomads’ gang here in Hamilton, and it cannot have been an easy decision to offer to give evidence in those circumstances.

[41]      That discount results in an adjusted starting point of two years and two months’ imprisonment.

6      ABC v Police [2013] NZHC 1487; Cribb v Police HC Hamilton CRI-2010-419-46, 8 July 2010.

7      A v R HC Whangarei CRI-2009-488-3, 25 February 2009; Mori v Police [2013] NZHC 225.

[42]      I also consider that you are entitled to a further discount in recognition of your previous good character. You have no prior convictions, other than a driving related matter referred to in the pre-sentence report. I do not consider that to be of any significance in this context, and I will put it to one side. However, I am mindful of the Crown’s submission that your offending arose in the circumstances of your drug use and your associated lifestyle choices, and that necessarily also informs my assessment of an appropriate allowance for your otherwise good character.

[43]      In addressing the issue of your character I was particularly impressed by the letter from your employer at NZ Care Disability, where you were employed for four years as a community support worker assisting members of the community with intellectual and physical disabilities. Ms Moon, who is the Service Manager for NZ Care, describes you as showing a passion for people and improving the quality of the lives of people with disabilities; that you have built excellent relationships with both your clients and your colleagues; that you are valued and have broad and reliable skills; and that you were a leader in setting up services for the partnership between NZ Care and Oranga Tamariki assisting children with complex behavioural needs, where you made a remarkable difference to young children in your organisation’s care. Ms Moon says that although you were stood down in December 2018 pending the outcome of the charges you faced, and depending on the outcome of those charges, NZ Care is looking forward to you returning to work if that opportunity is available.

[44]      Having heard the Paterson family address the Court today and heard the profound heart wrenching grief that they have experienced and which will be ever- lasting for them, that stands in such stark contrast in the damage that you have caused, to the constructive work that you have done at NZ Care. And it seems that your involvement with these co-defendants had its basis because of your drug addiction and one need only pause for a moment to look at the constructive life you were leading and the destructive actions on 12 July last year, to see the damage that drugs cause, not just to those who take them, but to those who are around them, and the ripples run right through the community.

[45]      In recognition of your previous good character, I consider that a discount of two months is appropriate. That then produces an adjusted starting point of two years’ imprisonment.

[46]      I consider that you are remorseful for your role and participation in the offending, but I consider that the discount I have allowed in recognition of your assistance to the Police and prosecution sufficiently recognises that remorse and I will not make any further adjustment on that account.

[47]      Finally, as regards your guilty pleas, Mr Burroughs says that a full discount of 25 per cent should be allowed. The Crown accepts that a significant credit for your guilty pleas is available, given that you have been discharged, or will be discharged, on the count of manslaughter. However, the Crown also notes the extremely strong prosecution case against you. In light of the admissions you made to the Police, there was a strong case, and the text message communications passing between yourself and Ms Kerridge following Mr Paterson’s death were also cogent evidence of your participation.

[48]      I note, as does the Crown, that the strength of the Crown case against you largely rests on the admissions you made to Police in your interview with them and I do not consider that it would be appropriate to effectively penalise you for the admissions you made in the course of your initial Police interview, as the admissions made by you in those circumstances are broadly consistent with the purpose of pleading guilty, and the sentence discounts which are granted for guilty pleas.

[49]I shall therefore allow a discount for your guilty pleas of 25 per cent.

[50]That leads to a final sentence of one year and six months’ imprisonment.

[51]      I turn now to consider whether or not, as an alternative to imprisonment, I should impose a sentence of home detention upon you.

[52]      I note that the Corrections report states that you reside with your mother and step-father, who sought out alternative accommodation to ensure that you had a

residence at which you could reside during a sentence requiring electronic monitoring. Corrections have assessed the proposed residence and the occupants as being suitable, and are recommending a sentence of home detention be imposed on you.

[53]      Your parents are fully supportive of you, and it is clear that they will provide a pro-social environment to assist with your reintegration back into the community. Your ability to either re-enter employment with NZ Care or to otherwise find employment will make a significant contribution to your rehabilitation and reintegration.

[54]      The pre-sentence report notes that you have some rehabilitative needs, relating to your substance abuse of cannabis, for which it is recommended that you attend an appropriate programme providing treatment and/or education about the effects of substance abuse. The report also notes the personal crisis that you have experienced which you said was a result of the financial and emotional stress your conduct placed on your family. You have been diagnosed as suffering from depression, have been prescribed medication, and are awaiting counselling. Clearly it is in both your interests and the community’s interests that you receive assistance to promote your rehabilitation and reintegration, so that you can once again be a valuable and contributing member of society as you have previously demonstrated you are well capable of. I believe those objectives and the objectives of sentencing are best achieved by imposing a sentence of home detention upon you.

[55]      I am satisfied, Mr Boyle, that you are suitable for home detention and I therefore intend to impose a sentence of nine months’ home detention upon you.

Result

[56]Mr Boyle, please stand.

[57]On the charge of kidnapping I sentence you to nine months’ home detention.

[58]      On the charge of conspiring to prevent the course of justice I sentence you to three months’ home detention.

[59]Those sentences are to be served concurrently.

[60]      Your sentence of home detention is to be served at the Hamilton address detailed in the Department of Corrections report.

Addendum

[61]      Mr Boyle you have just heard the Crown, pursuant to an earlier application, is withdrawing the charge of manslaughter. I make an order formally dismissing that charge.

Paul Davison J