R v Lyon

[2018] NZHC 1434

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-Ā-TARA ROHE

CRI-2017-091-2272

[2018] NZHC 1434

THE QUEEN

v

NATHAN JAMES LYON

Hearing:	15 June 2018
Counsel:	D La Hood and R H De Silva for Crown C W J Stevenson for Defendant
Sentencing:	15 June 2018

SENTENCING NOTES OF THOMAS J

Introduction

[1]    Mr Lyon, you appear for sentence having pleaded guilty following a sentence indication to one charge of reckless driving causing death,1 one charge of reckless driving causing injury,2 and one charge of driving whilst suspended.3

[2]    In sentencing you, I will first outline the summary of facts. I will turn to your personal circumstances, the pre-sentence report and victim impact statements. I

1      Land Transport Act 1998, s 36AA(1)(a); maximum penalty 10 years’ imprisonment or $20,000 fine, and mandatory minimum 12 months’ disqualification.

2      Section 36(1)(a); maximum penalty 5 years’ imprisonment or $20,000 fine, and mandatory minimum 12 months’ disqualification.

3      Section 32(1)(c); maximum penalty two years’ imprisonment or $6,000 fine, and mandatory minimum 12 months’ disqualification.

R v LYON [2018] NZHC 1434 [15 June 2018]

address the starting point for sentence before making adjustments for your personal circumstances, engagement with restorative justice and guilty plea. Following that I will deal with additional sentencing matters.

The offending

[3]    At approximately 10.20 am on 19 March 2017, you were driving a Mazda RX7 twin turbo car north on Wellington Road, Paekākāriki. Your 10 year old stepdaughter was in the passenger seat. You lost control of the car, which mounted the footpath on the opposite side of the road and hit the victim, Carolyn Boyd, who was out jogging that morning. She suffered multiple serious injuries as a result of the crash, from which she did not recover. She died at the scene. Your stepdaughter sustained a gash to her head requiring stitches.

[4]    Wellington Road travels for about 110 metres north of the intersection with Ocean Road before taking a slight left bend with an uphill gradient to the intersection with Tarawa Street. This part of Wellington Road is a residential area with a footpath on the eastern side leading to a primary school.

[5]    That stretch of Wellington Road was resealed on 15 March 2017 although the road had not been swept of loose gravel. As a result, there were no road markings on this part of the road. The patch of loose gravel began about 90 metres before the slight left bend.

[6]    The area is in a 50 kilometre per hour zone. By the day of the accident, the temporary 30 kilometre per hour signage in force during resealing had been removed. The Traffic Management Plan for the resealing works required that the speed restriction of 30 kilometres per hour remain in place until the road was swept of loose chip. This did not occur. There were roadwork signs, northbound and southbound, warning drivers of loose chip and the fact of the new seal.

[7]    You had driven that same stretch of road that morning, a short time before the accident. You knew there was loose gravel on the road. You were driving at high speed.

[8]    I concluded from the evidence at the disputed fact hearing that you deliberately allowed your car to lose traction, including “fishtailing” prior to the bend in Wellington Road.4 This caused you to completely lose control of the car, resulting in it mounting the curb and colliding with Ms Boyd before coming to rest against a tree.

[9]You were showing off to your step-daughter.

Personal Circumstances

[10]   Mr Lyon, you are 37 years old. You have a history of mainly driving related offending, for which you have received fines and community-based sentences. You have not been subject to a sentence of imprisonment.

[11]   You were in Social Welfare care from the age of 11 to 14 and started work at 14 years old. It is fair to infer that these events during an important period of your adolescence might well have contributed to what you acknowledge is your lack of respect for authority and your arrogance.

[12]   Unlike most offenders in the criminal justice system, you have no real identified rehabilitative needs. There is no need to protect society from you except as far as your driving is concerned. You are obviously a good and loving partner, father and stepfather, contributing to the family and enabling it to function as a family unit.

Pre-sentence report

[13]   The writer of the pre-sentence report found you to be genuinely remorseful and willing to engage with restorative justice processes. You said to the writer you could never be sorry enough for the family of Ms Boyd, you will never forget what you have done and you have now learnt what is important in life. You said you wanted to write a letter to the family but the police told you not to make contact. You also said you are concerned about the impact your offending has had on your own family.

[14]   Your partner noted you are a very caring father and have primary responsibility for your son and stepdaughter, of whom you are immensely proud. You have been

4      Sentencing Act 2002, s 24(2)(c).

very depressed following your offending, which came after you lost your business. You had been seeing a counsellor for a sensitive claim through ACC some years ago and were, at the time of the report, in the process of accessing additional counselling help through your doctor. The report concluded you present a low risk of reoffending and a moderate risk of harm. It recommended a sentence of home detention with post-detention conditions and community work.

Victim impact statements

[15]   I received victim impact statements from Ms Boyd’s family before the sentence indication and received another just prior to today. I will briefly summarise them.

[16]   The first statements reflected deep hurt, shock and anger in the aftermath of Ms Boyd’s death. Ms  Boyd’s  husband  says  they have been  together for the  last  35 years. His wife was the heart and soul of their family, as well as the extended family and many close friends. He spoke of the major disruption to the family both financially and emotionally as a result of what happened.

[17]   One of Ms Boyd’s daughters spoke of your utterly reckless attitude and total disregard for the safety of other human beings, leading to one horrific moment of stupidity which changed her and her family’s lives forever. She said you took away the most important person in her life. Your actions caused her to experience severe emotional trauma and shock and she says the incident will continue to haunt her for the rest of her life.

[18]   The youngest of Ms Boyd’s children asked how it can be that a healthy middle aged woman quietly minding her business on a Sunday morning run, in a safe and peaceful township, can be so alive one minute and dead the next. He says the answer lies in complete recklessness and stupidity by what he considers to be a selfish, inconsiderate individual. He talks about the magnitude of the event in his life which will have long-standing psychological repercussions.

[19]   It can fairly be said these statements reveal that the immediate impact on the victim’s family was one of utter devastation. The purpose of sentencing is not to reflect the value of Ms Boyd’s life. It cannot do that. Any sentence imposed will

never be able to reflect adequately what the family has lost. That sentiment is reflected in the updated victim impact statement which was read this morning, which is more future-focused. The family jointly reiterate the extent of their loss and the impact on the community. They say Ms Boyd feared cars and was always pointing out risks to others. She would be angry she was taken so soon and that she was hit by a car, but would also want everyone to make positive contributions to prevent this event from happening again. The family acknowledge your remorse and commitment not to drive in the future. They express deep concern that the justice system does not prevent someone such as you from continuing to break the law and suggest developing intervention strategies to prevent this kind of harm and to change driving culture. They pledge to make this a part of Ms Boyd’s legacy.

[20]   I acknowledge Ms Boyd’s family. They have lost a wonderful and loving wife, mother, daughter and sister.

Starting point

[21]   Legal argument regarding the starting point was traversed in detail in your sentence indication. I determined a starting point of four years’ imprisonment was appropriate for your offending on the basis of other sentencing decisions. The starting point of four years’ imprisonment stands. I applied an uplift for prior offending of three months. That also stands, and brings the starting point up to 51 months.

Personal mitigating circumstances

Family circumstances

[22]   Your partner is the family’s main income earner. She has been working as a guide five days a week on Kapiti Island, Wednesday to Sunday. That work is seasonal but requires her to stay overnight on the Island for the duration of the five days. You are the primary care giver for your two children, currently aged 11 and 14, and while she is away, you are the sole caregiver. If you are imprisoned, your partner will be unable to take up her employment if she is re-employed again in September, and I think the indications are that she will be, as she will have to care for the children. Your concern about that is emphasised in a letter written to the Court. You outline the

considerable effort and training your partner has put into obtaining that work, and the fact it is a dream job for her which will open a lot of opportunities for career progression. Given she has struggled to find work and had previously suffered from a period of depression when your business failed, you fear that without this job her mental health will suffer, which will affect the care of your children.

[23]   Imprisonment can have an enormous impact on the family of an offender, including the children. While such impacts are often ordinary consequences of offending, they are nevertheless matters which a sentencing judge will take into account but weighed appropriately in all the circumstances of the case.5 Losing a primary caregiver is a consideration of some significance, as is causing the loss of a partner’s employment or prospects of being re-engaged, particularly a hard-won job. Losing the income of the primary income earner results in the difficulties of a family under financial strain. I consider a discount is appropriate to reflect these impacts. Having considered the range of discounts offered in other cases,6 I consider a discount of seven months is warranted to reflect the fact you are the primary care giver, your partner will lose the prospect of re-employment, and the family will then lose their main income for the duration of the period of imprisonment.

Restorative justice and remorse

[24]   You and the family of Ms Boyd attended a restorative justice conference together. The outcome was a remarkable commitment to change yourself personally and to help others to change so as to prevent this type of harm happening again. You began by acknowledging Ms Boyd and mentioned you had spent some time at the crash site that morning talking to her, asking how you could say sorry to a family you had destroyed. You spoke candidly about how you initially told everyone it was an accident but you acknowledged it was not, that you were showing off and had no thought for anyone else that day. You wanted the family to know you thought of

5      R v Harlen (2001) 18 CRNZ 582 at [22]; and R v Howard CA315/99, 2 December 1999.

6      Discounts of up to 20 per cent have been given for this reason. See for example Ransom v R [2010] NZCA 390, (2010) 25 CRNZ 163 where a 20 per cent discount for childcare responsibility, health and likelihood of reoffending was left undisturbed on appeal; R v Ralph [2018] NZHC 794 where a 20 per cent discount for effects on children was confirmed on appeal; R v Walker [2017] NZHC 2303 where a 10 per cent discount was applied for shared responsibility for childcare and to provide encouragement for rehabilitation; and Zheng v R[2015] NZCA 451 where a 42 per cent discount for mental health and sole childcare responsibly was given.

Ms Boyd daily and you knew you had taken their future Christmases and Mothers’ Days away from them. You answered, again candidly, questions from the family about your life, your decisions on the day, and your role in prolonging the hearing of the case. You said the police did not contact you for some time and you were advised not to contact the family. You explained you continued with the disputed fact hearing because you were afraid of being labelled as something you did not think you were but you now apologise for that. You said in the intervening time you had undertaken a great deal of self-reflection and become more self-aware.

[25]   The restorative justice session was equally remarkable for the understanding and empathy the family of Ms Boyd showed you and their offer for you to join them in their campaign to make meaningful change in driving attitudes. The family explained their grief to you, noting they had not been ruined but irrevocably changed. Family members spoke of their reactions and grief on hearing the news that their mother, wife, and sister had died. They outlined the positive contributions they have made to the community in Ms Boyd’s name, including a garden at the crash site, and organising a running race to raise funds (a portion of which went to your daughter’s school). They expressed gratitude for your attendance, for your remorse, and that your offending had an impact on you. They asked if you were willing to share your story with a wider audience, perhaps by making a film, in the hope of changing driver attitudes. You replied “definitely”. You promised never to drive again.

[26]   One member of the family welcomed hearing that you had spent time at the crash site and the family is happy for you to go there. Others intimated how the restorative process had helped them: they were relieved of their earlier anger and thankful to see your sincere remorse. They concluded by saying they believed you could change and wanted to help you do so. You were humbled by their love and empathy.

[27]   Your remorse is further demonstrated by a letter you have written to the Court. You describe the decisions you made on the day of the crash as the worst you have made in your life. You reiterate what you said to the family, saying restorative justice was the hardest thing you have done but facing up to the harm you caused has opened your eyes. You accept you are a recidivist speeder and say that, while you did not

mean to hurt anyone, you have, and your behaviour has to stop. You were deeply ashamed when you had to admit to Ms Boyd’s family that you would not have changed had it not been for the accident. You want to do something positive for society, to stop others making your mistakes. You say you have struggled emotionally, being unable to sleep properly since the day of the crash. You are concerned for the pain you have caused your family and for their suffering if you are sent to prison. You plead for the hurt to stop.

[28]   The case demonstrates the power of restorative justice to bring about understanding and empathy on the part of victims, and an understanding and commitment to change on the part of the offender. The turnaround in the family’s emotional state between the earlier and later victim impact statements is testament to the immense value the process holds. It requires an offender as honest and candid as you were in meeting them, and victims as courageous and committed as they were in meeting you.

[29]   I imagine attending the conference and facing up to Ms Boyd’s family was the first time you really publicly and honestly confronted the truth, perhaps even to yourself. That meeting and what I hope will continue to flow from it, might well take more courage than whatever sentence I impose today.

[30]   The Crown submits a discount of five to 10 per cent ought to be applied to recognise your remorse. Mr Stevenson considers a more significant discount of 15 to 20 percent is warranted. I have canvassed cases where similar restorative justice was undertaken and similar levels of genuine remorse shown.7 In light of those cases, I consider a discount of 20 per cent is appropriate to recognise the turnaround you have undertaken, the responsibility and insight you have demonstrated, the truly exceptional restorative justice process you and the family undertook, and the promise to contribute positively to the wider community by joining forces with the family to tell your part of this story. I impress upon you the importance of making good on that promise.

7      See for example McMillan v Police [2014] NZHC 150 where a 20 per cent discount was applied for remorse and restorative justice on top of a 25 per cent discount for guilty pleas; McCullough v Police [2013] NZHC 279 where a 20 per cent discount was applied for remorse, restorative justice and youth; and R v Maposua C131/04, 3 September 2004 (CA) where a 50 per cent global discount was applied for restorative justice and a guilty plea.

Guilty plea

[31]   I indicated a 25 per cent discount would be available to you in respect of your guilty plea. The Crown submits this should be reduced to 10 per cent due to your decision to dispute a fact of the offending, which incurred extra time and expense, and required the calling of multiple witnesses.8 As Mr Stevenson points out, the position is slightly more nuanced than that. The disputed fact hearing included the relevant factor of speed being resolved in your favour, although it was still excessive and well over the speed limit. He suggests only a modest reduction to the guilty plea discount is warranted.

[32]   Guilty pleas are to be assessed with regard to all the circumstances in which they arise.9 The value of a guilty plea is not related solely to time and expense but also to the social utility for the victims. Your guilty plea was of value to Ms Boyd’s family, who did not have to endure the extended trauma of a full trial and did not have to contend with your denying all liability throughout the process. It was entered at the first reasonable opportunity, following an amendment to the charge. The additional delay caused by the disputed fact hearing does mean the full 25 per cent guilty plea discount should be reduced but I am not persuaded it ought to have as great an impact as the Crown suggests. I consider a discount of 20 per cent is appropriate.

[33]   Applying those discounts results in a sentence of 28 months’ imprisonment. That sentence does not fall into the range within which I could consider imposing home detention. It is therefore the minimum sentence available to reflect the purposes and principles of sentencing, including deterrence, denunciation, promotion of responsibility and rehabilitation. I note you will be eligible for parole after serving one third of that sentence. If you maintain your level of commitment to taking responsibility and pursuing rehabilitation, your prospects of early parole can be considered good.

8      Wang v R [2016] NZCA 56 at [24] and [27].

9      Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [61].

Disqualification from driving

[34]   The law applicable to disqualification from driving was traversed in detail in the sentence indication. I indicated disqualification from driving for four years. Nothing has arisen in the intervening time which would warrant any amendment. You are therefore disqualified from driving for four years, to commence when you are released from prison. You will understand that any breach of this disqualification will have extremely serious consequences for you.

Conclusion

[35]   Mr Lyon, on the charge of reckless driving causing death you are sentenced to 28 months’ imprisonment. On the remaining charges, I sentence you to eight months’ imprisonment to be served concurrently. You are disqualified from holding or obtaining a driver’s licence for four years, starting immediately on your release from prison.

Thomas J

Solicitors:
Crown Solicitor’s Office, Wellington