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 of 1015 mcg of alcohol per litre of breath. The legal limit is 250 mcg per litre of breath. Police returned Stephen to his motel where you shared a room with him.

[8]        At about 3 am, police received a further call from the casino advising that a person who they believed was the original driver of the vehicle had returned to it and driven it away.

[9]        Later that morning, you travelled from Christchurch to Methven. Stephen drove the same vehicle as the night before, with you as his passenger. The other men had earlier travelled to Methven in the other vehicle.

[10]      You and Stephen decided to continue on your journey south and meet up at Lake Tekapo. Stephen’s vehicle was seen to drive off the road and into the snow on three occasions later that afternoon while driving along State Highway 8. One witness described the driver of the vehicle as smiling and appearing to have fun. A short distance east of Lake Tekapo, Stephen pulled to the side of the road to go to the toilet. The other men, who had been travelling separately, came across you and pulled over. You and your cousin had a bottle of vodka in the vehicle and both of you appeared to be intoxicated. A member of the group that had arrived in the second car told Stephen he could no longer drive and that he would take over driving the vehicle. At that point, Stephen drove away with you in the passenger seat.

[11]      At Lake Tekapo you purchased another bottle of vodka from a liquor store. Stephen parked in the middle of the car park, blocking traffic. You were seen returning to the vehicle, you were clearly intoxicated. Both of you got back into the car, opened the bottle of vodka and drank from it. You were seen to hug each other and were laughing before driving off at speed through the car park and turning right onto Highway 8 heading towards Twizel.

[12]      Between Tekapo and Twizel members of the public called police and reported their concerns regarding the way the vehicle was being driven. The car was observed crossing the centre line and trying to run other vehicles off the road. The vehicle overtook a campervan and a small bus, forcing the driver of an oncoming car to take evasive action. Your vehicle was driven even further over onto the wrong side of the road and the oncoming car had to swing onto the verge to avoid a collision. That witness described the driver as laughing and gave her the fingers as he passed by.

[13]      The vehicle was then observed to stop in the middle of the road, blocking traffic. The bus driver whose vehicle had been overtaken got out of his bus and ran towards your vehicle. He opened the driver’s door but your cousin immediately sped off. While this was all occurring the police were receiving numerous calls from concerned members of the public regarding the way the vehicle was being driven.

[14]      A local constable subsequently located your vehicle parked on the side of the road between Tekapo and Pukaki. He observed the driver to be extremely intoxicated, to the point where he hardly acknowledged his presence. The constable reached in through the open window and turned the engine off but could not get the keys out of the ignition. He tried to open the driver’s door but it was locked. The constable began roadside breath screening procedures.

[15]      You told the officer that Stephen was not the driver, and that the driver and a friend had walked off. The constable’s breath screening device showed that Stephen had alcohol present on his breath. He required him to undergo a breath screening test. You became aggressive at this point and told the constable, “This is not going to happen”. You reiterated that Stephen was not the driver. At that point your cousin also said he was not the driver and moved his head away from the breath test device. The constable told him that if he did not comply he would be arrested, at which point you again said, in an even more heightened and aggressive voice, “This is not going to happen”.

[16]      Because of you and your cousin’s behaviour, the constable walked back to his patrol vehicle to call for backup. Stephen then started his vehicle. He nudged forward, hitting a fencepost, before reversing towards the constable and his police vehicle. The constable had to move to the rear of his car to get out of the way. The vehicle then sped off. It did a U-turn and continued at high speed.

[17]      While navigating a slight left hand bend the vehicle veered across the centre line and crashed head on into a car heading in the opposite direction being driven by Mr Nigel Freeman, a 72-year-old local man. Mr Freeman and Stephen were killed instantly.

[18]      Crash scene analysis showed that Stephen was travelling between 160 and 170 kph at the time of the crash. He had a blood alcohol level of 326 mcg of alcohol per 100 ml of blood. You had a blood alcohol level of 252 mcg per 100 ml of blood some four hours after the crash. The legal limit is 50 mcg per 100 ml.

[19]      When interviewed by the police you had very little memory of the events leading up to the crash. However, in an affidavit filed on 5 May, you have related your memories about what took place. You have referred to your deceased cousin’s strong personality, that you had recently reconnected with him and essentially followed him on this trip to New Zealand. I accept your connection was with him and not with the other members of the group who you didn’t know, and that it was logical for you to accompany him in his vehicle. I also accept that you would not have necessarily known that he was suspended from driving when starting out the next day.

[20]      You say that until the other men came across you there had been nothing about your cousin’s driving to that point that gave you, in your words, any particular cause for concern. But your vehicle had by then been observed driving off the road into snow beside the highway, causing the vehicle to slide sideways and spin the rear wheels. You were drinking vodka with him in the vehicle and had become intoxicated by the time the other men came across you.

[21]      You assumed that you were going to be staying the night at Tekapo and you maintained that you had no idea why Stephen then drove beyond that town. You had stayed there previously when heliskiing in New Zealand. After Tekapo you became worried about Stephen’s driving and you recall yelling at him to cut it out and grabbing the steering wheel, but that Stephen would not listen to you.

[22]      At the time the constable approached the vehicle you accept that you must have been very drunk, but you have deposed to having a recollection of making Stephen pull over onto the side of the road. After that you say, “Stephen went nuts, driving very fast”, and that you do not remember much at this point. You accept that by your words and actions that you must have encouraged Stephen to drive off and that this must have been your intention.

Victim impact statements

[23]      I have received victim impact statements from Mr Freeman’s widow and his son, Gavin Freeman, who  has,  of  course,  addressed  the  Court  this  morning.  Mrs Freeman has been devastated by the loss of her husband of 52 years. Mr Freeman was the head of a loving family.  He was, of course, irreplaceable.   Not only was   Mr Freeman’s life taken from him at a time when he was entitled to be enjoying his retirement with his wife, friends and family, but Mrs Freeman has been forced to leave her home in this country; their life as a couple suddenly and without warning ended that afternoon.

[24]      Mrs Freeman is left to bear the grief and anguish of her husband’s death. She misses him so much and she loves him so dearly that she does not know how to be happy and to live her life without him.

[25]      Mr Freeman’s son, Gavin, has lost his dad and his great friend. He is a man of your age and you should be able to put yourself in his shoes, and I have no doubt that you have. The impact on him and his whole family has been devastating. The responsibilities he now has for his mother and her wellbeing have changed his life. He grieves for the years he has lost with his father.

Personal circumstances

[26]      Mr Hayden, you are a 53 year old man. You are a successful businessman who works in real estate consulting and development. You have been married for some  18 years and have three school-age children. You have a hardworking, community- orientated background centred on work, family, friends and relatives. You have no criminal history and are considered to be of good character. That you should find yourself in this current position is difficult for those who know you, it is difficult for them to comprehend, and no doubt that is the same for yourself.

[27]      You advised the pre-sentence report writer that binge drinking had been an issue for you in the past and one that you had been working on with the assistance of your family doctor for several years. You were assessed by the pre-sentence report writer as posing a low risk of further offending provided you receive adequate

intervention to address what is described as a harmful pattern of alcohol use, and that you are motivated to do so.

[28]      Through your counsel, you advised that there may have been or has been some misunderstanding with the pre-sentence report writer regarding the pattern of your previous alcohol intake and that you had fundamentally addressed any alcohol issue before this event. I had not intended to take anything adverse from the information in the pre-sentence report about this topic. I believe the comments attributed to you showed introspection and self-awareness, and were to your credit. But I proceed on the basis that you do not accept that aspect of the report as it relates to having any difficulties with alcohol.

Sentencing purposes and principles

[29]      The charge of manslaughter carries a maximum penalty of life imprisonment.2 There is no tariff for manslaughter. It covers a myriad of situations which have been described as difficult to categorise. Unfortunately, motor vehicle manslaughter involving alcohol, speed and dangerous driving is an all too common offence, although it is often associated with youths and young men rather than older persons, such as yourself, who it is to be hoped would appreciate the grave risks of mixing alcohol and motor vehicles.3

[30]      In sentencing you, I must bear in mind the purposes and principles of the Sentencing Act.4 Relevant sentencing purposes in this case include:

(a)holding you accountable and responsible for the harm done to the victim and the community;

(b)to denounce your conduct;

(c)to provide for the interests of the victim’s family;

2      Crimes Act 1961, ss 171 and 177.

3      R v Thomas [2018] NZHC 819 at [49].

4      Sentencing Act 2002, ss 7 and 8.

(d)to deter others from committing the same or a similar offence; and

(e)to assist your rehabilitation.

[31]      I must bear in mind the need for consistency in sentencing when assessing the gravity and seriousness of the offending and in imposing an appropriate penalty.

Starting point

[32]      The following aggravating factors are present which mark the highly culpable nature of the driving in this case:

(a)There is the consumption of alcohol. Both the driver and you were grossly intoxicated after having consumed alcohol during the journey and having obtained more alcohol during the course of it.

(b)The intoxicated driving was prolonged.

(c)The speed at which the vehicle was driven at the time of the crash, between 160 and 170 kph.

(d)The fact that at the time of the collision and Mr Freeman’s death the vehicle was being driven away from an attending officer to avoid apprehension.

(e)The driving was aggressive. It was initially marked by reckless acts such as driving off the road into snow. It culminated in dangerous overtaking manoeuvres and blocking of the road.

[33]      I accept the Crown’s submission that had you been the driver a starting point of six to seven years would have been appropriate. I have considered a number of cases where a seven or seven and a half year starting point has been imposed, but those cases also involve unlicensed drivers or unsafe cars as well as dangerous and drunk driving. Your case is marked by the persistence of the intoxicated and dangerous conduct which continued despite the attempted intervention of your associates,

members of the public and the police, and rendered the ultimate fatal outcome almost inevitable. You appear to have become so drunk that, rather than assisting the efforts of those people, your actions served to encourage and aid your cousin along his destructive course.

[34]      In a case that was mentioned by Mr Eaton this morning, R v Cossey, it was recognised that a defendant who was not the driver responsible for the fatal crash should be assessed as somewhat less culpable than the driver.5 In that case, Mr Cossey was the driver of a car that was racing a second car. The second car crashed head on into a van, causing the death of four people and serious injuries to the driver of the van. Mr Cossey was convicted of four charges of manslaughter along with two lesser charges.

[35]      On a Solicitor-General’s appeal from a starting point that had been adopted by the sentencing Court of three years’ imprisonment, the Court of Appeal accepted that the respondent in that case may have been somewhat less culpable than the other driver, but found that difference did not justify a three year starting point.6 It considered an appropriate starting point would have been at least five years’ imprisonment, and that a higher starting point could not have been criticised.7

[36]      As you know, it was previously submitted to me on your behalf that your culpability should be considered less than the respondent in that case. It was submitted that the crux of your culpable conduct arose from your behaviour and statements when stopped by the police officer, along with aiding and abetting the drinking whilst driving. While these actions led to disastrous consequences, it was argued by your counsel that such conduct was less serious than the respondent in the case of Cossey because the respondent had the ability to immediately stop driving.

[37]      Because of the information that has now been provided to me regarding your expectation that you would be stopping in Tekapo and your concern about your cousin’s driving thereafter, and that he refused to listen to you, I have reassessed that

5      R v Cossey [2019] NZCA 104 at [56].

6 At [56].

7 At [57].

submission. It is difficult to reconcile the apparent insight you obtained during this part of your journey with your subsequent actions at the roadside when the police officer sought to intervene, your gross intoxication at that time, and your wilful defiance of the officer. This is particularly so when coupled with your actions in supplying your cousin with more vodka at Tekapo shortly before, albeit on your understanding that that was where you were going to stay. However, I note the vehicle had come to a stop at the time the officer came onto the scene.

[38]      Reassessing the matter, I still consider your conduct is comparable to that of the respondent in Cossey. As in the present case, the respondent’s driving in that case was not itself the cause of the crash, but rather served as encouragement to the driver of the second car by racing him. Similarly, your actions served as encouragement to Stephen to drink and drive in the way that he did, and avoid apprehension, and flee from the police. I consider that nexus between your actions and your cousin’s conduct is perhaps somewhat less, but, as I say, remains broadly comparable to the respondent’s actions in Cossey, particularly when regard is had to what took place at the roadside and the lengthy period of time over which you and your cousin drank together in the vehicle as it drove south on the open road.

[39]      As the Crown has emphasised, you supported your cousin in avoiding the attempted intervention of your friends when they came across the two of you, if only by choosing to go with him in the vehicle rather than support the intervention of the other men. You continued on your trip intoxicated and drinking vodka. You accompanied Stephen and drove away with him. You purchased more alcohol in Tekapo. You got back into the passenger’s seat after purchasing the liquor and were observed to open the bottle and, after taking a swig, passing it to Stephen as he drove out of the car park.

[40]      When the police officer sought to intervene and breath test Stephen, you lied to the officer. You were aggressive and uncooperative, and twice declared that it was “not going to happen”. In the presence of your cousin you appeared determined that he should not have to be made subject to the officer’s lawful direction. Your behaviour towards the constable, if not the catalyst, certainly influenced or, at least, contributed to your cousin’s subsequent actions. After parroting what you had said, that “he was

not the driver”, and you again aggressively declaring that “this is not going to happen”, Stephen sped away from the officer. As a result, a short time later, he failed to take a corner and crashed head on into Mr Freeman’s vehicle.

[41]      There is a difference in culpability to be recognised, of course, between you and your cousin. You were not the driver, and I accept care is required lest the level of culpability that must rest with the driver is passed to you as a result of you being the survivor. However, you must bear responsibility for the way you aided and encouraged another to drive in such a drunken and therefore dangerous state, and abetted the disobedience of the officer’s intervention, which led to Mr Freeman’s death.

[42]      Accordingly, I adopt a starting point of four years and six months’ imprisonment.

Personal factors

[43]The Crown accepts there are no aggravating factors personal to you.

[44]      There are a number of significant personal mitigating factors. I accept you have demonstrated genuine remorse. You have offered a substantial emotional harm payment to the family of Mr Freeman, some $40,000, and you have expressed willingness to engage in restorative justice. You have also offered to meet the costs of Mr Freeman’s son attending the sentencing hearing, although he is able to appear by way of audio-visual link, and you have offered ongoing financial support to alleviate hardship to Mrs Freeman.

[45]      Although these offers have not and cannot be able to be advanced at this stage, I accept they illustrate your generous character and your willingness to make restoration as best that is possible. Statements made by both you and those who know you attest to the strength of your remorse, as does the way you have cooperated with the authorities. A discrete discount is to be extended for this factor.8 There can be no doubt that your remorse is genuine and deep. Because of the firm evidence of remorse,

8      Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [64].

including your willingness to participate in restorative justice and make reparation, I apply the discount of 10 per cent.9

[46]      You are a mature man who has no prior convictions. You have led a constructive and unblemished life. The offending represents aberrant conduct, as is attested by the many character references and reports that have been filed, each of which I have read. These references from friends and family describe a kind and generous man who is dedicated to his family. Many of them detail personal periods of hardship where you have gone out of your way to provide support and assistance to others. You are described as charitable, community-minded, altruistic, fair and compassionate. The offending is out of character. The conduct that has led to your present situation has caused you emotional suffering and mental distress, and you suffer from depression. In addition to the physical injuries you sustained in the crash, I accept you must also deal with your cousin’s death. I allow a 20 per cent discount for all these personal factors.

[47]      I accept another discrete discount is warranted to mark the additional hardship arising from you having to serve your sentence in New Zealand, away from your family and other forms of support. Despite there being no cultural or language barriers, your isolation has been heightened by the COVID-19 restrictions that prevent your family being able to travel to support you. The pandemic emerged as an international crisis only after the entry of  your  pleas.  I allow a discount of eight  per cent.

Guilty plea

[48]      The Crown accepts you should be extended a full credit of 25 per cent for your guilty plea.10 That may be viewed as generous given that you were charged in April last year and had a trial set down to proceed in June. However, I am aware of the significant delay between the offending in July 2017 and the date you were charged. I understand that resulted from the time needed to complete the investigation and to

9      Millar v R [2019] NZCA 570 at [32].

10     Hessell v R, above n 10.

review the prosecution.    Despite that delay, you have been cooperative and have returned to this country to take responsibility, which is to your credit.

Result

[49]      It follows that from a starting point of four and a half years’ imprisonment the sentence reduces to one of two years and one month imprisonment.

[50]Mr Hayden, can you please now stand.

[51]      On the charge of being a party to Mr Freeman’s manslaughter, you are sentenced to two years and one month imprisonment.

[52]You may be seated.

[53]      Finally, I am obliged, empty as I believe it is in your case, to give you what is called the three strikes warning.

Three strikes warning

First warning

[54]      Because of your conviction for being a party to manslaughter, you are now subject to the three strikes law.  I am going to give you a warning of the consequences of another serious violence conviction. You will also be given a written notice which contains a list of these “serious violent offences”:

(a)If you are convicted of any one or more serious violent offence other than murder committed after this warning and if a Judge imposes a sentence of imprisonment, then you will serve that sentence without parole or early release.

[55]      If you are convicted of murder committed after this warning, then you must be sentenced to life imprisonment without parole unless it would be manifestly unjust to do so. In that event, the Judge must sentence you to a minimum term of imprisonment.

Emotional harm reparation

[56]      There will be an order for the payment of reparation for emotional harm in the sum of $40,000.

Solicitors:

Crown Solicitor, Timaru

K H Cook, Barrister, Christchurch