R v Hayden - [2020] NZHC 966

IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY

I TE KŌTI MATUA O AOTEAROA TE TIHI-O-MARU ROHE

CRI-2019-076-224

[2020] NZHC 966

THE QUEEN

v

MARK EDWARD HAYDEN

Hearing: 12 May 2020

Appearances:

A McRae and H Bennett for Crown

J Eaton QC and K Cook for Defendant

Judgment:

12 May 2020

SENTENCING REMARKS OF MANDER J

[1] Mr Hayden, you may remain seated throughout and I will ask you to stand at the end.

[2] Mark Hayden you are for sentence on a charge of being a party to manslaughter following the death of Nigel Freeman.1 On 12 February, I provided a sentence indication. You did not accept that indicated sentence but nonetheless pleaded guilty to the charge on 2 March.

[3] In addition to the material that was filed in support of you for the sentence indication hearing, I have received a pre-sentence report and letters from family

1 Crimes Act 1961, ss 66(1), 171 and 177.

R v HAYDEN [2020] NZHC 966 [12 May 2020]

members, including from your wife and daughter. In addition to your counsel’s submissions, I have also read your affidavit.

Factual background

[4] It is necessary that I set out the factual background to your offending. This summary will largely be familiar to you from the earlier hearing, but I am required to traverse the narrative upon which my sentence is based in open court.

[5] On 2 July 2017, you and four other men flew from Melbourne to Christchurch for a short heliskiing holiday in the Mount Cook region. The group comprised yourself, your cousin Stephen, and three other men who were not previously known to you. You hired a four wheel drive vehicle in Stephen’s name after arriving at Christchurch Airport. The attendant from the rental car company noted that your cousin appeared intoxicated but was assured that he would not be driving the vehicle that evening. The three other men returned a short time later and hired a second vehicle.

[6] Just after 1 am, in the early hours of the following morning, an airport security officer saw the vehicle hired in Stephen’s name speeding around the airport car park with its boot open. It was seen to overtake another vehicle as it drove out of the rental car parking area. Airport traffic management contacted police, and another report was received of the vehicle being driven erratically at that time.

[7] A short time later a staff member at the Christchurch Casino phoned police advising that the same vehicle was parked at the entrance to the casino car park. It was reported that the vehicle was damaged. Stephen had been the driver of that vehicle and you his passenger. The two of you got into the other vehicle, driven by the other members of your group, and that vehicle was subsequently stopped by police. Stephen returned a positive roadside breath screening test. He was taken to a police station where he underwent an evidential breath test and returned a result…

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 R v Hayden

Details

AGLC: R v Hayden [2020] NZHC 966
Case: [2020] NZHC 966
Decision Date: 12 May 2020

CaseChat Overview and Summary

Mark Hayden was sentenced for being a party to manslaughter after the death of Nigel Freeman. Hayden and his cousin Stephen had been driving while intoxicated, causing a fatal accident. Hayden pleaded guilty, but did not accept the indicated sentence. The court had to determine an appropriate sentence, taking into account the aggravating and mitigating factors of the case.

The court identified several aggravating factors, including the consumption of alcohol, the prolonged intoxicated driving, the speed of the vehicle at the time of the crash, the attempt to flee from the police, and the aggressive driving. The court considered the persistence of the intoxicated and dangerous conduct, despite the intervention of others, and Hayden's encouragement and aid to his cousin's destructive course. The court accepted that Hayden's culpability was somewhat less than the driver's, but still broadly comparable to the actions in other cases.

The court also considered several mitigating factors, such as Hayden's genuine remorse, his willingness to engage in restorative justice, and his offers of reparation to the victim's family. The court further considered Hayden's personal circumstances, including his successful career, his family background, and his past efforts to address his alcohol issues. The court allowed discounts for the genuine remorse, personal factors, and the additional hardship of serving the sentence in New Zealand, away from his family.

Taking all these factors into account, the court determined a starting point of four and a half years' imprisonment. After applying the discounts for the guilty plea and the mitigating factors, the final sentence was two years and one month imprisonment. The court also issued a three strikes warning, as Hayden's conviction made him subject to the three strikes law. Lastly, an order for the payment of reparation for emotional harm in the sum of $40,000 was made.

This case demonstrates the importance of considering both aggravating and mitigating factors when determining an appropriate sentence in cases of manslaughter involving alcohol and dangerous driving. The court balanced the gravity of the offence with the defendant's personal circumstances and remorse, ultimately imposing a sentence that aims to hold the defendant accountable, provide deterrence, and assist in their rehabilitation.

Orders