R v Hurst

[2024] NZHC 3922

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE

CRI-2024-059-000145

[2024] NZHC 3922

THE KING

v

HAYDEN RICHARD HURST

Hearing:	17 December 2024
Appearances:	M B Brownlie for Crown K H Cook for Defendant
Judgment:	17 December 2024

SENTENCING REMARKS OF PRESTON J

This judgment was delivered by me on 17 December 2024 at 9.00 am, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date……………

R v HURST [2024] NZHC 3922 [17 December 2024]

The Judge addressed the courtroom, before hearing sentencing submissions:

Ata Mārie.

I just want to say a few words before we begin the formal sentencing process today.

My name is Justice Lisa Preston.

In a moment we are going to begin Mr Hurst’s sentencing by hearing the statements of Tré Anderson’s family and friends about the impacts of Tré’s death.1

I begin by acknowledging and welcoming the family and friends of Tré Anderson.

Today is a very difficult day for everyone in the court room. I cannot imagine what it would be like to lose a loved one in this way, or indeed to have a loved one in the dock. So I thank you all for your quiet participation.

After hearing the victim impact statements, I am going to hear sentencing submissions from the Crown prosecutor Mr Brownlie and from Mr Cook on behalf of Mr Hurst before I deliver sentence.

Mr Hurst—you may wish to remain standing for the victim impact statements but I will ask you to be seated after that point and you will stand when I indicate at a later point in the hearing, before I pass sentence formally.

A minute’s silence followed the reading of the Victim Impact Statements.

Introduction

[1]                 Hayden Hurst, at 29 years old you are for sentence having pleaded guilty to the charge of manslaughter.2

[2]You have never previously appeared before this, or any, court.

1      The deceased Mr Outrega Grant Bruce Anderson was known as Tré.

2      Crimes Act 1961, ss 171 & 177—maximum penalty of life imprisonment.

Offending

[3]                 Your offending occurred a year ago yesterday, on 16 December 2023. You decided to drive home to Wānaka early in the morning after attending a work Christmas party in Queenstown. You had begun drinking, you have reported, at about

4.00 pm. You had taken MDMA at the party.

[4]                 Your employer had taken the precaution of booking accommodation for staff members but you did not use your hotel room.

[5]                 Alone and intoxicated, a little after 7.00 am the next morning you got into your car.

[6]                 You began driving the wrong way up the one-way system in central Queenstown before meeting oncoming traffic and pulling over to avoid a collision. After correcting your path, you drove towards Frankton.

[7]                 At 7.20 am you pulled into the McDonald’s drive thru. That took two attempts as you mounted the curb initially. You drove on the wrong side of the entrance way, almost colliding with some stationary bins. After you left the drive thru with your food you drove onto the Frankton-Ladies Mile Highway. There, your manner of driving alerted members of the public: you were weaving and swerving over the road and onto the gravel shoulder. You were tailgating traffic in front of you.

[8]                 At the Hawthorne Drive roundabout, you deviated out of your lane, moving to your right and failing to give way to a bus coming around the roundabout.

[9]                 You then exceeded the 80 kilometres per hour posted speed limit on the Lake Hayes-Arrowtown Road, travelling at speeds between 84 and 96 kilometres per hour.

[10]             As you approached the Arrow River Bridge you veered into the wrong lane and had to swerve to return to your lane as a vehicle approached. That driver had to drive off the side of the road to avoid a head-on collision.

[11]             Continuing east, you again veered into the wrong side of the road while still speeding. A further vehicle had to take evasive action and drive off the road, to avoid a head-on collision. At this time you were talking to your partner on your cell phone handsfree and eating the McDonald’s you had purchased.

[12]             You carried on speeding through the Crown Range Road intersection with the Gibbston Highway before entering the 100 kilometres per hour zone.

[13]             Tragically, at around 7.42 that morning Tré Anderson happened to be driving east on that road, State Highway 6. Shortly after the Crown Range turnoff, you came around a left-hand bend. Driving at approximately 97 kilometres per hour, you veered again onto the wrong side of the road.

[14]             Mr Anderson was driving towards you in his lane when you crashed into his car, in a head-on collision. Mr Anderson died at the scene.

[15]             Toxicology results showed your blood alcohol level was 137 mg of alcohol per 100 ml of blood.3 That is well over twice the legal limit.4 You had MDMA also in your system.5 This, too, was at a level over twice the high-risk legal limit for that drug.6

[16]             It is also a condition of your driver’s licence that you wear corrective lenses or prescription glasses when driving. But at the time of the accident, you were wearing neither.

[17]             You did not make a statement to police but you have later spoken about these events to the extent you remember them, and I will return to this a little later in my remarks.

3      137+/-6 milligrams of alcohol per 100 millilitres of blood.

4      The legal limit for driving is 50 milligrams of alcohol per 100 millilitres of blood.

5      120+/-40 nanograms per litre of blood.

6      The high-risk legal limit for MDMA is 50 nano grams per litre of blood.

Victim impact

[18]             Your offending has had devastating effects on Tré’s family, his friends and colleagues.

[19]             I am much assisted by the impact statements we have heard this morning, from Ms Anderson on behalf of the Anderson family, Mr Bagrie on behalf of himself and Ms Lim, Mr Medina and Ms Wallis.7 Their insight helps me understand who Tré was and something of the enormity of their loss.

[20]             These things I know from what his family and friends have told me. They describe a beautiful, kind and compassionate soul. Tré was a beloved son and brother, uncle, a great friend and clearly a highly-respected man. He was talented, creative and humble. He clearly was a leader among men, his actions speaking to his character louder than any proclamation. His accomplishments and creativity, both as an artist and in the skills of butchery and charcuterie were already remarkable. They had been nationally recognised. They have been cut short far too soon. Tré’s family and friends mourn the loss of his extraordinary potential, which was really starting to shine. But most of all they mourn him and that they can never again share the special moments in their lives together.

[21]             As you have heard, and I have watched you listening carefully, grief and loss have also exacerbated Tré’s mother’s fragile health. This adds to the deep sadness his close-knit siblings, nieces and nephews feel.

[22]             So, this day, this information is a vital part of the sentencing process. The effects your offending has had on your victims is an important factor to be recognised. But I immediately acknowledge that no sentence any court can impose can begin to redress the catastrophic effect your actions have had on Tré, on his family and friends. I acknowledge, also, the open-hearted challenge in these statements to you as you move ahead in your sentence and ultimately, when you are released from prison.

7      Victim Impact Statements were received from Mr Anderson’s sister on behalf of the Anderson family (read by Ms Malthus), and, pursuant to s 17AAB of the Victims’ Rights Act 2002 from Mr Anderson’s friends and colleagues Mr Bagrie and Ms Lim, Mr Medina and Ms Wallis.

Progress to plea

[23]I briefly record the sequence of events that brought you to your plea.

[24]             You first appeared on the charge of excess blood alcohol  causing death  on 26 January this year.

[25]             You were remanded without plea and on 9 April you entered not guilty pleas, including to the newly laid charge of manslaughter and a further alternative charge of driving under the influence of drugs causing death. I am told and you have heard me hear from Mr Cook a little further in this respect this morning this was to enable review of disclosure and expert findings and these cases I accept are never straightforward, they are always difficult.

[26]             In the end your counsel tells me very shortly after receiving defence expert review and information on 8 October, you had signalled you wished to be arraigned and you were arraigned on that day and pleaded guilty to the charge of manslaughter.

Sentencing principles and approach

[27]I turn now to explain the approach to structuring your sentence.

[28]The overarching principles are to be found in our Sentencing Act 2002.

[29]             Mr Hurst, in your case it’s important the sentence imposed holds you accountable for the harm that you did and, as I have already spoken to, considers the interests of Tré Anderson’s family. The appropriate sentence denounces your driving conduct and deters you and importantly others in the community from engaging or thinking about engaging in similar offending.

[30]             I must also look to your prospects of rehabilitation and, again the impact statements of the family and friends recognised that is an important issue here today. And the law provides I must impose the least restrictive sentence appropriate in the circumstances.

Starting point

[31]             So, I begin by assessing a starting point which reflects the seriousness—that is the culpability—of your offending. I am speaking here about the offending itself and not yet about your personal qualities or actions separate to the offending.

Culpability—motor manslaughter

[32]             You have pleaded to the charge of manslaughter in these cases we refer to it as motor manslaughter. That charge reflects that no one suggests you intended by getting in your car this day to take another’s life. There is no tariff case for motor manslaughter. But decisions in the Court of Appeal and in this court provide me guidance in assessing your driving conduct in light of the facts that we have heard. The cases consider features that the courts have recognised—and enumerated in a particular decision called Gacitua—to assist what is an invidious exercise: and that is the comparison of cases of driving causing death to determine relative culpability, or blameworthiness.8

[33]             Both counsel in their written submissions have referred me to a number of cases that they suggest are relevant to calculating the starting point. I will not refer to many by name but I have carefully considered them all and they will be footnoted in my written sentencing remarks.9

[34]             Setting a starting point is a highly specific task turning on the facts in every case. It is informed by the nature and extent of your culpable driving. And as the cases demonstrate, no two cases are the same. No two circumstances, even when they are present, are truly comparable.

8      Gacitua v R [2013] NZCA 234. This decision concerned charges of both reckless driving causing death and reckless driving causing injury however discusses the general principles applicable when sentencing all forms of driving causing death, including motor manslaughter, acknowledging that sentencing these cases is “highly fact specific”.

9      R v Mika [2013] NZHC 2357; R v Millar [2018] NZHC 625; Millar v R [2019] NZCA 570; R v Dods [2021] NZHC 2666; R v Price [2020] NZHC 2995; R v Amson [2024] NZHC 2910; R v Price [2020] NZHC 2995; R v Kala’uta [2016] NZHC 1526.

[35]             Both the Crown and your lawyer agree a starting point of least six years is warranted. Mr Cook on your behalf suggests little more is called for. Mr Brownlie for the Crown submits a starting point of seven years is warranted.

[36]             Mr Cook in his written submissions referred me to four different cases, each turning on their particular facts but involving in each case a deliberate, prolonged and persistent course of very bad driving after the consumption of alcohol and/or drugs. In three of the four, excessive speed was also involved.

[37]             Mr Cook submits, and I accept, that the case of Mika involved more serious offending than yours.10 Mr Mika’s driving led to the death of one passenger and seriously injured two others. That defendant had also attempted to evade police, ignored his passengers’ pleas to stop and he had fled from the scene. While another decision, Millar, which Mr Cook cited also involved the death of one passenger and serious injury to another, on review of that case I am unable to accept, as Mr Cook in his written submissions submitted, it necessarily involved more serious conduct than yours.11 In that case Mr Millar, who was aged 19, elected to go on a bravado-fuelled joy ride, continuing to drive at excessive speeds and undertaking dangerous manoeuvres after an initial crash when he drove through an intersection at excessive speed. But in that case the driving was of much shorter duration and distance. In the other two decisions, Dods and Price, there are similarities of conduct but again none is on all fours.12

[38]             Ultimately, as Mr Cook accepts on your behalf, where alcohol is an aggravating factor it is generally considered that a starting point of six or seven years can be appropriate. And there is a relative dearth of cases involving drug-impaired driving causing death.

[39]             I tend to agree with Mr Brownlie who in his written submissions also cited a cluster of cases that perhaps the most closely aligned of the cases which I have been referred is that of R v Amson.13

10     R v Mika, above n 10.

11     R v Millar, above n 10.

12     R v Dods & R v Price, above n 10.

13     R v Amson [2024] NZHC 2910.

[40]Turning then to assess the culpability in your case.

[41]             Tré’s tragic death resulted from what was, I accept, an out of character decision to drive when you were impaired.

[42]But, this was not a momentary lapse of judgement.

[43]It was a case of persistent, very bad driving. This, on many levels:

(a)First, you were significantly impaired by both drugs and alcohol before driving.

I am unable to accept that there is any relevant distinction to be drawn as Mr Cook argues, on the basis you had not taken those substances immediately before driving. You do not recall the events after taking MDMA at about 9.00 pm the previous evening, but the evidence tells me that you did not avail yourself of the careful host accommodation and your blood alcohol was closer to three times the legal alcohol limit, and drug level more than twice the high-risk drug limit.

(b)Second, you drove persistently, deliberately in a reckless and dangerous manner for it appears to me over half an hour and it appears approximately 35 kilometres.

Now I must not double count in relation to this factor but by my count there were no fewer than eight opportunities for you to realise the error of your ways in choosing to drive that morning.

The first was as soon as you entered going the wrong way up the one- way system in Queenstown. Then again as you clumsily negotiated the McDonald’s drive thru, further as your weaving and swerving over the road caused oncoming traffic to take evasive action. Again, at the roundabout when you left your lane and failed to give way to the bus. Again as you continued eastward, twice veering onto the wrong side of

the road causing two separate cars to leave the road to themselves avoid a head-on. This was on any view appalling driving.

(c)Third, and again I take care not to double count but in addition your driving was aggressive at points: you tailgated other drivers as you left the Frankton area. You also drove at excessive speed at times including shortly before the fatal collision—albeit when that occurred you were just under the open road limit.

The Court of Appeal has recognised these factors further aggravate your offending.14

(d)Fourth, there is your failure to wear corrective lenses as required and the element of voluntary distraction as you were talking handsfree on the phone and were eating before you crashed into Mr Anderson’s car killing him.

Now as Mr Brownlie acknowledged, these final aspects are of lesser significance in and of themselves, but I accept they could only have added to your level of impairment behind the wheel.

[44]             I also take into account the devastating consequences of your offending on Tré and his wider family and indeed the community.

[45]I am satisfied there are no mitigating factors relevant to your offending.

[46]             I have reflected carefully on the respective submissions and having regard to all those circumstances Mr Hurst, I consider in your case a starting point of six and a half years is warranted.

14     Gacitua v R, above n 8.

Personal mitigating factors

[47]             The next step is to consider those matters raised on your behalf which relate to you personally. The court recognises matters personal to you where they mitigate your offending, by reducing the starting point to reflect those aspects.

[48]             And this is because where an offender takes responsibility for their offending, where he or she takes steps to address issues underlying their conduct, where offending represents a significant fall from grace by a person who has otherwise been a contributing member of society, it is right that the sentence imposed should recognise this.

Prior good character

[49]             You have never been before the court. I accept you have lived a good and worthy life before this day when you chose to drive. I am told you bought your first home at 18 years old and you completed a National Certificate in Carpentry. You held a responsible position with a local firm in Wānaka and you had responsibility to lead other staff also, at 28 years old yourself.

[50]             I have letters from your father, your friends and your employer at the time. They confirm this offence is I am satisfied wholly out of character.

[51]             It is clear you are well-regarded as a hard-working still relatively young man. Those testimonials demonstrate the enormous fall from grace your terrible choice to drive represents.

[52]             You have a supportive family, and partner. Your actions have brought inevitable distress also on them. They will remain your support Mr Hurst and will help you keep your eye on the light at the end of the tunnel, so you can leave prison and resume your ability and indeed your privilege to be a good citizen and a role model to your son.

[53]             It is appropriate your prior good character is reflected in a reduction in starting point.

[54]             As you have heard counsel discuss that recognises that your fall from grace is punishment in itself, and I have seen that reflected in your acknowledgement that you will carry a lifelong burden given that your decisions have taken Tré’s life, and with that, caused such dreadful harm to his family, his friends, and the community.

[55]             Secondly, the fact you have led an otherwise blameless, constructive life in your 29 years gives the court and the community confidence in your potential to rehabilitate and to ensure you never again offend. I consider a discrete reduction of 10 per cent is warranted to recognise these factors.

Remorse

[56]You are, I am satisfied, genuinely remorseful.

[57]             I have your letter written to the court and to Mr Anderson’s family. That reflects the deep shame and guilt you feel for the harm you have caused.

[58]             In the letter you acknowledge the devastating consequences of your choice to drive and you acknowledge how they have affected Tré, his family and friends. You say that the period of abstinence before you were remanded in custody has allowed you to think about your drinking and the future. You hope to continue being abstinent from alcohol as you have been through this period and you declare that you will never take drugs again. And it will be up to you Mr Hurst to live by those statements through the future and to demonstrate their truth.

[59]             As you also acknowledge, in addition to the victims of your offending it has also had a ripple effect on your own family including your young son. You aspire to be a positive role model to your child but your actions causing Mr Anderson’s death were completely opposite to the values you have been brought up with and, I accept, have lived to that day before you made this terrible choice.

[60]             You were willing and you remain willing now or in the future to engage in a restorative justice meeting with Tré Anderson’s family. It is entirely understandable that that is not something that his family wish to engage in at this time, or are able to, although Mr Anderson’s sister wished to add that further down the line she would like to meet with you, just not now. That is a generous and open-hearted gesture. It will remain Tré’s family’s choice whether they wish to engage in that process. But I have recorded your willingness.

Rehabilitative steps

[61]             I also have a letter from Ms Ravenscroft, an alcohol and drug counsellor. You self-referred to her on 10 January this year, and she tells me you have continued counselling with her fortnightly through 22 sessions to date. The counsellor says you show insight into your alcohol and drug issues. She tells me this was not your first use of MDMA, which you had used intermittently at festivals or on holiday through your early 20’s but that you say you had not used that drug for the two to three years before your offending. I observe only in that respect that your comment in the pre- sentence report that you were offered the MDMA by someone you respected while it may well be true, I have no reason to believe it is not, does not sit well with the fact that at 28 Mr Hurst you were perfectly able to desist from a choice which you now know contributed to such a catastrophic outcome. And if there is one message that courts would wish to extend further beyond the impact on persons in your position Mr Hurst it would be that people, particularly young men, but any person who chooses to drink, to take drugs and to drive would remind themselves that that is a decision they should never take.

[62]             The information from the counsellor however, also confirms that you have expressed to her that you would rather it had been you than Mr Anderson who died as a result of your actions. And she too notes and I accept your overwhelming emotions of guilt, shame and remorse.

PAC report

[63]             Those factors are also reflected in the pre-sentence report I received. On its face there did appear a possible reservation in relation to your acceptance of culpability, but it is important that I record that I am satisfied after hearing from     Mr Cook on your behalf today and on the information before me that I should put that to one side, a misunderstanding.

[64]I accept you take full responsibility for your conduct causing Tré’s death.

[65]             You are assessed as at low risk of any further offending, entirely consistent with what I have heard of the person you are and with your insight, importantly, after the offending.

[66]             How then to quantify those—your true remorse, your rehabilitative efforts and potential? In the written material there was some distance between your counsel and the Crown in this regard. Weighing them here separately from your good character which to a large extent is inter-related, and which I have spoken to already I consider they merit a further five per cent.

Emotional harm reparation

[67]             You are able and willing to  make an  emotional  harm reparation payment  Mr Hurst, which you do in the amount of $10,000. While that cannot begin to reflect the loss of life, as you recognise in this limited way it also reflects your acknowledgement of the harm your offending has caused and it merits separate recognition accordingly. I accord a further five per cent having regard to this.

[68]             I decline to offer any further reduction to take into account the impact of your sentence on your young son, in the circumstances before me. I acknowledge the sad reality of that additional impact, but I note your son resides full time with your previous partner his mother and in this case there is not call for a further adjustment, in my view.

Guilty plea

[69]Finally, and importantly, you are entitled to credit also for your plea.

[70]             As you have heard, Mr Cook urges on me the full 25 per cent which the courts have endorsed for a plea entered at the first reasonable opportunity, although plea was not entered until October this year.

[71]             The Crown does not oppose, but as you heard me discuss with your counsel this aspect has troubled me somewhat. You have heard how the delay has affected the Anderson family, adding to their burden of grief. And I accept Mr Cook has told me from the bar this morning, or explained more fully that an earlier formal recognition of your acceptance of responsibility for causing Tré’s death could, in his view should, have been conveyed (and potentially that was at that level).

[72]             It was of course your right to explore possible defences and any plea discussions, and it is important that your lawyer provide you full and thorough advice and assistance in this regard.

[73]             I have thought hard on this and notwithstanding Mr Cook’s further oral submissions this morning, I am not able to find your plea, some 10 months after this accident, should attract the full available credit which is 25 per cent. The extent of your alcohol and drug intoxication and the nature and extent of your perilous driving meant in my view that the charge of manslaughter was inevitably appropriate.

[74]             And so I have reached the view that a reduction of 20 per cent in reflection of your guilty plea is appropriate.

[75]             Taking all those matters into account, I adopt the starting point of six and a half years. I adjust that as I have indicated for the reasons I have explained. These adjustments considered together reduce your end sentence, rounded up minimally, to three years 11 months’ imprisonment.

[76]             It is necessary in the interests of the community also to disqualify you from holding or obtaining a driver’s licence for a period, which will take effect upon your release from prison. The Crown seeks, and I accept, four years is appropriate here.

[77]             Mr Hurst before I pass the formal sentence on you. I have observed you listen carefully to the victim impact statements, to face, literally, those statements as they were read to you and I noted your tears as you registered again the information in those accounts read to you by those brave speakers.

[78]             I conclude by recalling the apt and generous sentiments in my view of Tré’s family and friends including their  challenges  to  you.  The  challenge  you  heard Mr Hurst is that you from here, take responsibility for your life. That you dedicate yourself to becoming the best version of yourself that you can possibly be. That you become a man in Mr Medina’s words “of honour, of grit and strength”. He rightly observes that it is up to you what you do with the rest of your life. The challenge, too, is that you will never drive again in an impaired state, and the family and the friends’ hope, voiced through Ms Wallis, that you will do whatever you can to educate others about the impact your own choices have had.

[79]             As I say I noted you registering those remarks as you heard them Mr Hurst. And from the information before me, unlike some others who appear before the court on these kinds of charges, I am satisfied the family and friends have a good basis to expect that you will demonstrate their challenge to you in the future.

Sentence

[80]So Mr Hurst, will you please stand.

[81]             On the charge of manslaughter you are sentenced to three years 11 months’ imprisonment.

[82]             You are disqualified [from holding or obtaining a driver’s licence] for a period of four years, to commence on your release date from prison.

[83]             I make an order for emotional harm reparation in the amount of $10,000 to Mr Anderson’s family.

[84]Thank you please stand down.

………………………………………

Preston J

Solicitors:
Crown Solicitor, Invercargill

Copy to:

K H Cook, Barrister, Christchurch