R v Elliot
[2014] NZHC 214
•19 February 2014
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2013-090-4551
CRI-2013-090-4552 [2014] NZHC 214
THE QUEEN
v
CALUM ELLIOT AND DYLAN CHAD
Hearing: 19 February 2014
Counsel: SL McColgan for the Crown
M Pecotic for the prisoner Elliot
J Munro for the prisoner Chad
Sentence: 19 February 2014
SENTENCING NOTES OF RODNEY HANSEN J
Solicitors/Counsel: Meredith Connell, Auckland for Crown
Maria Pecotic, Auckland for Elliot
John Munro, Auckland for Chad
R v ELLIOT AND CHAD [2014] NZHC 214 [19 February 2014]
Introduction
[1] Mr Chad and Mr Elliot, you appear for sentence having both pleaded guilty to causing the death of Tyler Hoyle by driving dangerously, thereby committing manslaughter.
[2] Following a sentencing indication I gave on 22 November 2013,1 you both entered the pleas of guilty. In my decision I indicated that an appropriate sentence for each of you would be nine months home detention and an order that you be disqualified from holding or obtaining a driver’s licence for three years.
[1] I have since received pre-sentence reports and a psychological report in relation to you, Mr Chad. The pre-sentence report for you, Mr Elliot, raises concerns about your suitability for a sentence of home detention. However, for reasons which I will elaborate later in my remarks, I am satisfied that the indicated sentence should stand.
Facts
[2] I will first set out what are agreed to be the circumstances that led up to
Mr Hoyle’s death and your role in it.
[3] The two of you and Tyler Hoyle were good friends. On 1 August 2013, you were together at Mr Elliot’s house with his girlfriend, Mary-Rose Stewart. The two of you had a friendly disagreement over whose car was faster - Mr Elliot’s Honda Prelude or Mr Chad’s Toyota Levin.
[4] It was agreed that the disagreement would be settled by a race which would take place on Scott Road in Hobsonville. That location was chosen because it is a quiet road in a sparsely populated area. It has an 80 kilometre per hour speed limit. You drove there, Mr Elliot, accompanied by Ms Stewart and Mr Chad accompanied
by Mr Hoyle.
1 R v Elliot and Chad [2013] NZHC 3100.
[5] It was arranged that Ms Stewart would stand at the start of the race and signal when to begin. Tyler was stationed at the end point of the race where the road curved out of sight. His role was to wave his arms to alert the two of you to any traffic coming towards you from the other direction. He was also to take a photo at the end of the race and to decide who was the winner. As I understand it, the race was over a distance of about 150 metres with Mr Hoyle stationed past the finishing point. As it has been described to me, this was not so much a race over a defined distance, as a test of which car had the greatest acceleration.
[6] The race started with both cars accelerating rapidly. You, Mr Elliot, were driving on the left or the correct side of the road. Mr Chad was on the right hand or wrong side of the road. Mr Elliot quickly pulled ahead and before the accident Mr Chad, as I understand it, had already moved over onto the left hand side of the road and was 5 or 6 car lengths behind Mr Elliot.
[7] As the cars approached the bend in the road where Tyler Hoyle had been standing, you saw him, Mr Elliot, crossing the road from your left, to the right hand side of the road. You tried to steer away from him towards the right hand side of the road and braked heavily. You were unable to avoid him. He was struck and, it would appear, died almost immediately from the severe injuries he sustained.
[8] The Police Serious Crash Unit carried out an analysis to determine the cause of the crash. The analysis of the skid marks and road conditions indicate that when you started to brake, Mr Elliot, you were travelling at 106 kilometres per hour.
Victim impact statement
[9] I acknowledge the presence in Court today of members of Tyler Hoyle’s family to whom I have previously conveyed my sincerest sympathies. I compliment you on your courage and dignity in the way that you have participated in this hearing today. The victim impact reports make it clear that Tyler was a much loved son and brother and his death has clearly and predictably had a devastating effect on all family members. Your grief is both palpable and profound. As you have heard, Mr Elliot and Mr Chad, apart from the emotional impact, Tyler’s death has also led to financial hardship and physical illness with his mother unable to continue in her job
and his stepfather’s health suffering. I can only express the hope to members of Tyler’s family that, at least in some measure, this sentencing bringing, as it does, the involvement of the criminal justice system to an end, will at least contribute something to easing your pain.
Personal background
[10] I want to say something next about the personal circumstances of each of you.
[11] Mr Chad, you are 17 years of age as you were when the accident occurred. You live with your maternal grandparents with whom you have a close and supportive relationship. You were raised by them from when your parents separated when you were aged two and you lived with them until about four years ago when you returned to the care of your mother. You have what is described as a “relatively good relationship” with her but moved back to your grandparents’ house last year. You describe them as role models and that going back to live with them was really “coming home” for you.
[12] You achieved levels 1 and 2 of NCEA at school. You then obtained work as a maintenance assistant but were dismissed, as I understand it, for being in possession of a pocket knife. You have since found work as a roofer which seems to be working well for you.
[13] You have been diagnosed as suffering from post-traumatic stress disorder as a direct consequence of the accident. You are taking medication to assist with mood fluctuations and sleeping difficulties. You have plainly been deeply traumatised by Mr Hoyle’s death. He was your best friend. He was living with you at the time of his death and I was told that at his mother’s invitation you spoke at his funeral.
[14] The report that I earlier referred to from the clinical psychologist, Ms Sabine Visser, confirms the diagnosis of post-traumatic stress disorder. She refers to the strong relationship you had with Mr Hoyle. You are now seen as socially isolated with significant difficulties in your inter-personal relationships. Ms Visser does not
see you as posing any risk to others but you do pose a risk to yourself. She says it is very important that you are kept busy. She stresses the importance of work as a protective factor which often assists those suffering from post-traumatic stress disorder.
[15] Mr Elliot, you are now aged 18 years. You were 17 at the time of the offending. You have been significantly disadvantaged by a disrupted childhood. Your parents emigrated from England when you were aged six. Soon after arrival they separated. You lived with your mother until you were 16 when you were asked to leave her house. You have not spoken to her since and described your relationship with her as poor.
[16] Your relationship with your father is described as “tense” but he continues to support you. You have been living with him and it is proposed that you continue to do so.
[17] You have been diagnosed with attention deficit disorder (ADHD). As a result, you have struggled with school work although, to your credit, you also gained NCEA levels 1 and 2. You were diagnosed as suffering from depression at the age of
11 years and more recently have been diagnosed as a manic depressive. There is a report of an attempt to commit suicide in December 2012. You are being prescribed medication which is proving to be of assistance.
[18] The probation officer commented on your detached manner. However, other indications are clear that you have been profoundly affected by Mr Hoyle’s death and are deeply ashamed of your role in it.
Starting point
[19] I need now to explain how it is that, for the purpose of the sentencing indication, I reached the conclusion that a sentence of nine months home detention was appropriate. For that purpose, the critical first step is to determine the starting point by reference to the circumstances of the offending including aggravating and
mitigating factors. In Gacitua v R2 the Court of Appeal last year explained the approach that should be taken to sentencing in cases of motor manslaughter or where death has been caused by reckless or dangerous driving. In that decision there is a discussion3 of the impact of the increase in 2011, of the maximum sentence for dangerous or reckless driving causing death, from five years imprisonment to ten years and the guidance to be obtained from the English case of R v Cooksley4 which updates the aggravating factors identified in R v Skerrett.5 Gacitua also discusses6 the implications for sentencing purposes of a decision to lay a charge of manslaughter rather than dangerous or reckless driving causing death. For practical purposes, the charge should make no difference.
[20] The Crown submitted that there are four particular aggravating features of the driving in this case. First, the fact that you were engaged in racing or competitive driving and driving at an excessive speed. Secondly, that you disregarded warnings not to drive in such a fashion. Before the race Ms Stewart had told you not to be “dickheads” or to do anything stupid. Thirdly, there is the obvious factor, death ensued as a result of your driving. And, fourthly, there was reliance by the Crown on the vulnerability of the victim. Mr Hoyle suffered from mild autism, Aspergers syndrome and attention deficit disorder (ADHD).
[21] The Crown identifies as mitigating factors that the driving was one-off and the accident the result of a momentary reckless error of judgment; your previous good driving records; and the genuine remorse which both of you have expressed.
[22] There can be no disagreement with the first of the aggravating factors identified by the Crown – the fact that you were engaged in racing and driving at an excessive speed, at least 20 kilometres over the speed limit in the area in which you were driving. The second of the aggravating factors identified – the fact that a person died – is an obvious consideration. I do not, however, see the warnings given
by Ms Stewart as a seriously aggravating factor in this case. While she certainly
2 Gacitua v R [2013] NZCA 234.
3 At [10].
4 R v Cooksley [2003] 3 All ER 40 (Crim App) at [5].
5 R v Skerrett CA236/86, 9 December 1986.
6 Gacitua v R, above n 2, at [22].
voiced concerns before the racing began, she played her own part in arrangements for the race which were designed to minimise the risk. Her concern seems to have been directed more to the way you raced rather than the fact that you raced. She urged you both not to try too hard to win. It is not the familiar case of a driver ignoring a passenger’s plea to desist from a course of dangerous driving.
[23] I am also disinclined to place significant weight on the submission that Mr Hoyle was particularly vulnerable by virtue of his psychological disorders. You both acknowledged that he had a tendency to walk off but I do not think that you could have reasonably foreseen that he would expose himself to the risk of being hit by walking across the road, contrary to the arrangements that had been agreed.
[24] The Crown initially argued for a starting point for sentencing purposes of four years imprisonment. In the course of submissions at the sentencing indication hearing, Mr McColgan modified that position to a starting point of three and a half years. He referred me to a number of cases including R v Morgan7 and R v Matagi8 but, in the end, placed greatest reliance on the sentencing decisions of R v Copping9 and R v Luke.10 They related to an episode of racing in which Mr Copping and Mr Luke were the participants. A spectator was struck by one of the two cars racing each other. It was a situation where the police had earlier intervened to prevent
racing and the participants moved to another location. For both of those offenders, a starting point of three and a half years was adopted.
[25] The other case which comes closest on its facts to your situation is R v Hodgson11 which was referred to me by Mr Munro. In that case the accused raced each other in modified cars down a city street in Wellington driving at 60 kilometres an hour in a 50 kilometre zone. A woman who appears to have been distracted by the use of her cellphone and also was intoxicated, unexpectedly stepped in front of one of the cars and was hit and killed. In that case a starting point of two and a half
years imprisonment was adopted.
7 R v Morgan HC Auckland CRI-2005-057-675, 2 June 2006.
8 R v Matagi HC Christchurch CRI-2008-009-012096, 1 October 2009.
9 R v Copping HC Tauranga CRI-2007-270-104, 26 September 2008.
10 R v Luke HC Rotorua CRI-2007-070-3532, 19 October 2007.
11 R v Hodgson HC Wellington CRI-2006-085-5409, 23 October 2007.
[26] I came to the view that your culpability is somewhat less than those of the drivers in the Luke and Copping cases. There were aggravating factors in those cases that were not present in your case. As I have earlier mentioned, they had both been told to desist from racing and ignored that police instruction. They were racing in a street that was surrounded by spectators and the chances of accidentally hitting someone was much higher. Also they were travelling at three times the speed limit.
[27] In my view, the circumstances bear greater similarities to those in Hodgson. There is the common feature of the victim unexpectedly crossing the road in front of the racing cars. In Hodgson, however, the participants were driving at a speed only
10 kilometres per hour in excess of the limit.
[28] Having regard to those sentencing decisions and all of the circumstances, I concluded that the appropriate starting point is one of three years imprisonment. It should be the starting point for you both. There is no reason to distinguish between your roles. As Mr McColgan said at the last hearing, it was only a matter of luck which one of you hit Mr Hoyle and there is no real justification for distinguishing between the degree of blameworthiness. You each must share equal responsibility for what happened.
Personal factors
[29] There are no aggravating factors personal to you, Mr Elliot. The Crown points to the fact that you, Mr Chad, held a learner’s licence and should not have been driving unaccompanied. I do not think that factor is sufficient to warrant differentiating between you.
[30] There are a number of mitigating factors personal to you both. You were both only 17 years at the time of the offending. For reasons which have been explained in a case called Churchward v R12, it is accepted that the culpability of young offenders should be assessed by reference to their age-related neurological development. It is also relevant to consider the disproportionate impact of a
sentence on young people.
12 Churchward v R [2011] NZCA 531, (2011) 25 CRNZ 446 at [77] – [78].
[31] As I have said, Mr Hoyle was the good friend of you both but was particularly close to you, Mr Chad. It is clear that his death and the part you both played in it has been a devastating experience for you. It is an experience that will have long-term consequences. It is a burden that you will carry for the rest of your lives. The Crown acknowledges that the emotional shock to which you have both been subjected and which will have ongoing implications, is itself a mitigating factor. You have both frankly accepted responsibility and shown insight into your offending. You have both exhibited great remorse. You have both also indicated a willingness to participate in a restorative justice conference, if that were to be the joint wish of those involved. You are entitled to credit for all of those factors and also for your previous good character.
[32] I concluded that the combination of all of the mitigating factors to which I have referred warranted a reduction in sentence of at least one-third which would reduce the sentence before taking account of your guilty pleas, to two years imprisonment. It is accepted that the pleas of guilty should attract the maximum discount of 25 per cent. That would produce a prison sentence of 18 months.
Home detention
[33] As young men of potential, it is of paramount importance that your rehabilitation and reintegration into the community should be encouraged to the greatest extent possible. Without in any way diminishing the importance of imposing a sentence that recognises the need for deterrence and denunciation, I have been left in no doubt that you both qualify for a sentence of home detention provided that suitable accommodation can be found. As has been said, that is not a soft option for anyone and it will certainly not be a soft option for you. On the other hand, as Mr Elliot has already found to his cost, a full custodial sentence of imprisonment would likely be highly damaging to you. That is neither in your interests nor in the public interest. It was having regard to these considerations that I concluded that if you are otherwise eligible, the sentence should be one of home detention and the term of home detention should be nine months.
[34] Mr Chad, the home of your grandparents is assessed as suitable in all respects. There is no impediment to a sentence of home detention on the terms proposed by the probation officer.
[35] Your position, Mr Elliot, is somewhat different. Your father’s address is suitable and he is willing to allow the sentence to take place at his home. However, he has expressed reservations about your ability to cope with the rigors of a sentence of home detention. He believes that time at the property with little to occupy you would be detrimental to your mental health. He believes structured activities are required in order to keep you “focused and occupied” during sentence. I have no doubt that his concerns are justified and that the steps that he considers should be taken are entirely appropriate and necessary.
[36] Ms Pecotic, your counsel, has said that the proposed conditions of home detention, which include provision for counselling and oversight, should allow sufficient guidance and support to address the concerns raised by your father. I note also that he may be in a position to offer you work.
[37] It is clear that a sentence of home detention will pose particular challenges for you, Mr Elliot. It lies, however, in your hands to make it work. It is essential that you both avail yourself of the treatment, counselling and support which will be offered to you. You in particular, Mr Elliot, will also need to actively look for work and/or study opportunities. The devil truly makes work for idle hands. You have a long life stretching ahead of you and it is vital that you use this opportunity to lay a foundation for a constructive existence once this sentence is over. The alternative, as the Crown has submitted, is not the community-based sentence proposed by the probation officer; that would be an inadequate response to such serious offending. If you are unable to serve a sentence of home detention, the alternative would be a sentence of imprisonment.
[38] In addition to the sentence of home detention, I have previously indicated that a period of disqualification for three years is appropriate. Mr Chad and Mr Elliot, will you please now stand and I will formally pass sentence on you.
Sentence
[39] You are each sentenced to serve nine months home detention on the conditions set out in the Home Detention Appendix to the pre-sentence reports save, in the case of Mr Elliot, to condition 6 which prohibits any contact with Mr Chad. Counsel have been unable to give me any reason why it is necessary or beneficial that you should be denied any opportunity to contact one another. Subject only to that deletion, as I have said, your sentence will be subject to the conditions set out in the home detention report. That requires, in your case Mr Chad, that you travel directly to 28 Lowthehurst Street, Massey, and there await the arrival of the probation officer and the monitoring company. And, in your case Mr Elliot, to travel directly to Flat 2, 143A Wiseley Road, West Harbour and there to await the arrival of the probation officer and the monitoring company.
[40] In addition to the sentence of home detention, you are each disqualified from holding or obtaining a driver’s licence for a period of three years. You may both stand down.
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