R v Holdem

[2018] NZHC 1739

IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WAIHARAKEKE ROHE

CRI-2017-006-601

[2018] NZHC 1739

THE QUEEN

v

STEWART DOUGLAS EDWARD HOLDEM

Hearing:

12 July 2018

Appearances:

J M Webber for the Crown

A J D Bamford and E J Riddell for the Defence

Judgment:

13 July 2018

SENTENCING NOTES OF CULL J

[1]        Mr Holdem, following guilty verdicts and conviction at trial, you appear for sentence today in relation to three charges:

(a)one charge of manslaughter;1 and

(b)two charges of reckless driving causing injury.2

[2]In sentencing you today I am going to explain:

(a)your offending;

1      Crimes Act 1961, ss 156, 160(2)(b), 171 and 177.

2      Land Transport Act 1998, s 36(1)(a).

R v HOLDEM [2018] NZHC 1739 [13 July 2018]

(b)your personal circumstances;

(c)the appropriate sentencing purposes and principles I must consider;

(d)the starting point I have adopted and why;

(e)the adjustments I have made to the starting point to reflect your personal circumstances; and

(f)your final sentence.

Your offending

[3]        So I will start with your offending. Now, your offending arose out of a fatal vehicle crash on State Highway 6, near Blenheim, on 24 March 2017. At the time, you held a restricted driver’s licence, which includes the conditions not to drive after 10 pm at night and not to carry passengers unless there is a qualified supervisor in the front passenger seat.

[4]        Over the 24 hours preceding the crash, you had been smoking methamphetamine. You had taken cannabis and you had drunk alcohol. You had also taken tramadol medication on the day of the crash, which had been prescribed to you for an existing injury. You were previously advised to limit alcohol when taking tramadol. You knew that ingesting substances could impair your driving.

[5]        On the morning of 24 March 2017, having been out the night before drinking and smoking methamphetamine, you got up early. You consumed alcohol in the morning, before picking up Ms Dyson and her friend, whom you drove to her address, and you and Ms Dyson decided to drive to Nelson. On the way from Blenheim to Nelson, you and Ms Dyson smoked methamphetamine twice from a $200 bag of methamphetamine, which you had previously purchased. After purchasing a supply of alcohol from a liquor store in Nelson, you went to Ms Dyson’s friend’s house in Richmond, where the friend, Ms McGuckin, and her partner, Dylan Sutton – the deceased – lived. Everyone was drinking and you consumed some premix alcoholic drinks.

[6]        A decision was made, and on the evidence before me it appears that this was Ms Dyson and Ms McGuckin made the decision that they travel back to Blenheim and you drove the three, Mr Sutton, Ms McGuckin and Ms Dyson, from Nelson to Blenheim. Before leaving Nelson, you drove to another liquor store in Richmond, where you purchased more alcohol for the four of you to share.

[7]        You left for Blenheim around 8.30 pm approximately with you driving, Mr Sutton in the front passenger seat and Ms McGuckin and Ms Dyson were in the back. During the journey, you stopped and you all smoked more methamphetamine at Hira and, on the evidence of the two passengers, again in Havelock, although you dispute this. You did, however, roll and consume a cannabis and tobacco cigarette (a spliff) with Mr Sutton.

[8]        The conditions were poor that night, as it was dark and raining. From Hira to the crash site, your two backseat passengers were concerned about the speed at which you were driving and you were asked to slow down. Ms McGuckin thought you were driving erratically by swerving, sometimes over the centre line, and on one occasion, you jerked the steering wheel, causing Mr Sutton to grab it and tell you to “chill”. Ms Dyson gave evidence that on the portion of the journey from Havelock to the crash site you were “driving a bit faster than usual” – was the words that she used – and she was telling you to slow down. Ms McGuckin had also asked you to slow down on one occasion. You dismissed these requests abruptly and rudely.

[9]        You drove erratically and were speeding, although precisely how fast you were going is unknown as you had turned the speedometer off. Ms Dyson had even asked whether she could drive but you declined, because she did not have a licence.

[10]      Both Ms Dyson and Ms McGuckin made it clear when they gave their evidence in this Court they were scared by your driving. Ms Dyson gave evidence that when she asked you to slow down you told her that, “We’re not together anymore. You can’t tell me what to do.” They described your mood as grumpy and angry and you were behaving aggressively, which I note from the pre-sentence report you do not accept. The two passengers texted each other about your driving – and that is in the latter part of the journey before the crash site – and how scared they were, and they gave evidence

to that effect. They texted each other to avoid exacerbating your driving by speaking out loud. They held each other’s hands because they were nervous and scared, as well as holding on to the door handle grips.

[11]      At around 10.30 pm, the passengers described you jerking the steering wheel, losing control of the vehicle and causing it to swerve to the left. The car went down a steep bank and into a vineyard block, rolling several times before coming to a stop.

[12]      Now, I just want to pause and cover the points that were raised with me by counsel. You would have heard the submissions from your counsel about the fact that in his submission you slowed down when you were asked to, and in particular from Havelock to the crash site, and you have also heard the Crown response in relation to that, that the evidence from your passengers did not give any indication that you were slowing down.

[13]      Those are matters that were considered by the jury, and the jury has found your driving was a major departure from the standard of care expected of a reasonable driver. They, in my view, accepted the evidence from your passengers, and that is why you are now facing this charge of manslaughter.

[14]      Mr Sutton died as a result of the injuries he sustained. Ms McGuckin received extremely serious injuries, where the viability of her leg was at issue, and had to undergo several rounds of surgery. Ms Dyson was also seriously injured and has permanent facial scarring.

[15]      The victim impact statements filed before me demonstrate the profound impact, both physical and emotional, that your offending has had on Dylan’s family and the two backseat passengers, the victims. In particular, Ms McGuckin has had to learn how to walk again and has faced severe emotional and mental hurdles as a consequence.

Your personal circumstances

[16]I turn, then, to your personal circumstances.

[17]      Mr Holdem, you are 37 years of age. You have one conviction for driving with excess breath alcohol and one for careless driving, both from 2002. You also have a number of infringement offences for driving outside the terms of a learner or restricted licence and speeding, resulting in a suspension in 2014. One of the infringement offences related to your restricted licence occurred shortly before this offending, in January 2017.

[18]      Now, in considering your personal circumstances, I have had the benefit of three reports: a pre-sentence report, a psychiatric report from Dr Brand and an alcohol and drug assessment report prepared by Ms Lane, a Specialist Addictions Clinician.

[19]      You clearly have had issues with alcohol abuse and consumption of drugs in the past and in my view it was a factor, clearly, in your current offending. Dr Brand confirms you have both an alcohol and cannabis use disorder. You have made it clear to all the report writers that you are willing to address your alcohol and drug issues. Ms Lane recommends that you would benefit from attending a Drug Treatment Unit in prison if you receive a custodial sentence and seeing an Alcohol and Other Drug Counsellor following your release. She observes that addressing these issues would reduce your risk of reoffending. Dr Brand also endorses the need for treatment to address your substance abuse issues.

[20]      You have expressed remorse for your actions. All of the report writers have conveyed this. You have written letters to the Court, the victims and their families expressing your remorse and that you take full responsibility for your actions. I note the Crown’s submission that you have minimised your driving and it appears that you were unable to comprehend that your driving really was serious. I also take into account what Mr Bamford has said on your behalf, that that indication may well have come from your impairment from taking substances that evening, and that your recollection of how bad your driving was has faded.

[21]      In any event, you have indicated you are willing to pay any reparation – both ordered and voluntarily – because, of course, at this stage I am unaware of your personal financial circumstances.

[22]      It is clear your offending has had a significant impact on you. Dr Brand’s report confirms that you have developed post-traumatic stress disorder and a major depressive disorder as a result of your offending and as a result of your realisation of the harm you have caused to your friends. She observes that you require specialist oversight regarding your condition and medication to monitor your mood and risk to yourself. She notes you would also benefit from therapeutic treatment and intervention, and I will return to that shortly.

[23]      The pre-sentence report assesses you as being at a low risk of further offending. However, the report recognises, as is to be expected, that imprisonment is the only option for your offending because of the significant harm you have caused.

Sentencing purposes and principles

[24]I am now going to come to the sentencing purposes and principles.

[25]      When I sentence you, I have to take into account the purposes and principles of sentencing.3 I have to hold you accountable for the offending on which you have been found guilty. I have to consider deterrence, not just to deter you from further offending, but also to deter others and denounce your offending. I have to consider the need to protect the community from offending such as this. The jury has found you guilty of serious offending, and the victim impact statements make it clear that your offending has had a serious and long-lasting impact on your surviving passengers, not to mention the family of the deceased. At the same time, one of the purposes of sentencing any offender is to help you to get back into the community and to be a useful member of it.

[26]      In your case I consider that the relevant principles of sentencing are the gravity of your offending, including your own responsibility for it, and the seriousness of your offending in comparison with other similar cases.

3      Sentencing Act 2002, ss 7 and 8.

Starting point

[27]      I turn then to the starting point. I am treating the charge of manslaughter as the lead offence for the purposes of this sentence indication. This is the most serious charge.

[28]      There is no guideline case for motor manslaughter as sentencing in these cases is highly fact specific.4 However, both counsel rely on a Court of Appeal decision as helpful in assessing the aggravating and mitigating features for this type of offending.5

[29]In your case, the primary aggravating factors of your offending are:

(a)your consumption of several drugs (methamphetamine, tramadol in part, and cannabis) and alcohol in combination, both in the hours preceding and while you were driving;

(b)your excessive speed in poor driving conditions, although it is not clear precisely what speed you were travelling and that was put in dispute at trial. The jury, however, has had regard to that and has returned the verdicts, as I have said;

(c)your disregard of multiple warnings from fellow passengers;

(d)the prolonged, persistent and deliberate course of very bad driving you took and your aggressive manner towards your passengers. I cannot accept the defence submission that these were patches of driving. It was a pattern of driving and certainly the leadup – certainly from Hira to the crash site – was described in detail by your passengers;

(e)that you drove while subject to a restricted licence and acted outside of the conditions of that licence;

4      Gacitua v R [2013] NZCA 234 at [22].

5      At [25]–[26] and [29], citing R v Cooksley [2003] EWCA Crim 996, [2003] 3 All ER 40 (Crim App) at [15]. At [39] the Court of Appeal noted that these factors are equally applicable to cases where charges of manslaughter are brought, as they are to cases of reckless driving causing death under the Land Transport Act 1998.

(f)your previous convictions and infringements for motoring offences, although you only have one conviction for driving with excess breath alcohol and one for careless driving (both in 2002); and

(g)the serious injury you caused to two victims in addition to Mr Sutton’s death.

[30]      The Crown also submits an additional aggravating factor of your offending is that you drove when knowingly deprived of adequate sleep or rest. However, there is no evidence that you were obviously tired at the time, and so I do not take this factor into account.

[31]      I have taken into account your counsel’s submission that the appropriate starting point should be five years’ imprisonment, but have also considered the Crown’s submission that six to seven years is appropriate. I have reviewed the cases that each of counsel have put before me.

[32]      In my assessment, your offending in relation to this charge does warrant a starting point of six years’ imprisonment. I have reached this conclusion after considering other cases of similar offending,6 to which I refer in my sentencing notes but as a footnote, some of which are more serious than your offending,7 and some of which are less serious.8 I am satisfied that six years is the appropriate starting point.

[33]      As I have already considered the injuries suffered by your other two passengers in assessing your culpability for the lead offence, I do not impose a separate uplift to recognise the two charges of reckless driving causing injury. I am satisfied the starting point reflects, and is appropriate, for the totality of your offending.

6      R v Kala’uta [2016] NZHC 1526; and Ormsby v R [2013] NZCA 578 (see also the sentencing in the High Court in R v Ormsby [2013] NZHC 1873).

7      R v Presland [2015] NZHC 1203; R v Pora [2015] NZHC 1104 (see also the earlier sentencing indication decision R v Pora [2015] NZHC 325); R v McGrath [2014] NZHC 1583; and R v Peneha HC Wellington CRI-2006-078-872, 1 August 2006.

8      Gacitua, above n 4; and Walker v R [2016] NZHC 1963.

Adjustments to reflect your personal circumstances

[34]I come, then, to adjustments to reflect your personal circumstances.

[35]      The Supreme Court has held that credit is available for genuine remorse demonstrated in a meaningful way, independently of whether a person has pleaded guilty or not.9 I accept that the remorse you have shown is real and genuine. At the time of the offending, you checked on your passengers straight away, were cooperative with emergency services and were honest about the substances you consumed. You have since demonstrated your remorse in a meaningful way through your first interview with the police, although you have heard that the Crown point to your minimisation of your driving. Nevertheless, you were prepared to accept that you were careless and inattentive, and you did so both in the interview and in this Court at the outset of this trial. You also have expressed the same with the three report writers, as well as the letters you have written to the Court and to your victims.

[36]      You state that you never want to drive again or hold a licence. That is also an indication that you are remorseful.

[37]      You have lost one friend and injured two others. You will carry that with you for the rest of your life and it is clear this weighs heavily upon you now.

[38]      You also show insight into how your alcohol and drug use impacted your offending and the need for you to address this. The reports identify this, including a recommendation from Dr Brand, that alcohol and drug courses or rehabilitative programmes available would assist you in dealing with your use of these substances. I am encouraging you to access the rehabilitative support you need while serving your sentence to reduce your likelihood of reoffending and causing further harm.

[39]      Dr Brand first saw you in 2017 following this offending and more latterly since the trial. She has diagnosed you with post-traumatic stress disorder and severe depression, with the symptoms of both of those disorders described in full. Dr Brand’s risk assessment highlights the need for you to be followed up by the mental health

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

services in Blenheim and she recommends that you receive treatment for both disorders which should be addressed in a full mental health assessment and treated, where appropriate, during your custodial sentence. I am making those remarks specifically in these sentencing notes as I am urging Corrections to undertake such an assessment.

[40]      I am taking into account the psychiatric assessment, in which Dr Brand considers the events have led to the onset of the disorders she has diagnosed. I am prepared to consider these factors, including your motivation and willingness to address your drug dependence issues, as mitigating circumstances in this offending. I accept your counsel’s submissions that your willingness to address your drug dependence issues can form the basis of some credit in your sentence, based as it was on drug-impaired driving.

[41]      Taking those factors into account as a whole, I am going to allow you a discount of six months to recognise your remorse, your willingness to address your drug and alcohol dependence issues, and the state of your mental health.

Final sentence

[42]I now ask you, Mr Holdem, to please stand.

[43]      I am sentencing you to five years and six months’ imprisonment in relation to the charge of manslaughter.

[44]      I am sentencing you to two years’ imprisonment on each of the charges of reckless driving causing injury.

[45]All sentences are to be served concurrently.

[46]      This means the time you will be serving in prison for all your offences will run together.

[47]Your effective end sentence is five years and six months’ imprisonment.

[48]      You are disqualified from holding or obtaining a driver’s licence for five years, commencing on your release from prison.

[49]      You are also ordered to pay reparation of $805.92 for the cost of repairs to the vineyard and a further $652.63 for the analyst’s fees.

[50]      You have expressed a wish to pay reparation to the victims of your offending. As the details of your financial circumstances are somewhat uncertain at the moment, I am urging you to make those payments voluntarily when you have those finances available. To do so now, without knowing the net sums available to you, is too uncertain.

[51]You may stand down.

Cull J

Solicitors:

Crown Solicitor, Blenheim Bamford Law, Nelson