R v BOYLE [2019] NZHC 1584

R v BOYLE [2019] NZHC 1584 [5 July 2019]IN THE HIGH COURT OF NEW ZEALANDHAMILTON REGISTRYI TE KŌTI MATUA O AOTEAROAKIRIKIRIROA ROHECRI-2018-019-004429[2019] NZHC 1584THE QUEENvDYLAN KEN BRYAN BOYLEHearing: 5 July 2019Appearances: J N Foster & K R L Guthrie for CrownK W Burroughs for DefendantSentence: 5 July 2019SENTENCE OF PAUL DAVISON JSolicitors:Crown Solicitor, HamiltonIntroduction[1] Dylan Boyle, at the age of 22 years, you appear for sentencing today havingpleaded guilty on 21 June 2019 to:(a) one charge of kidnapping pursuant to ss 209(b) and 66 of the CrimesAct 1961, carrying a maximum sentence of 14 years' imprisonment;and(b) one charge of conspiring to defeat the course of justice pursuant to s 116of the Crimes Act 1961, carrying a maximum sentence of seven years'imprisonment.Background[2] You are one of a number of defendants charged with criminal offencesfollowing the death of Mitchell Paterson.[3] In the early hours of Thursday, 12 July 2018, you and your co-defendants LeonWilson, Simon Walker, Grant Wickens, Chloe Kerridge and Kyra Betteridge weretogether at Mr Wilson's Hamilton residence. Mr Wilson is the president of the Waikatochapter of the Nomad's gang. There was discussion amongst the group about MrPaterson having allegedly bad mouthed Mr Wilson.[4] Arising from that discussion, Mr Wilson directed that Mr Paterson was to bebrought to his address for questioning about what he had been saying.[5] In accordance with Mr Wilson's direction, you and your co-defendants, MrWalker and Ms Kerridge, left Mr Wilson's address together in your car for the purposeof locating Mr Paterson. Mr Walker then contacted other associates to confirm MrPaterson's whereabouts. Having received confirmation as to where Mr Paterson couldbe located, Mr Walker telephoned Mr Wilson and told him the address where MrPaterson was. The three of you drove in your car to that address, and you parkedoutside. After you had left Mr Wilson's address, Mr Smith had arrived there.[6] Once at the address where Mr Paterson was located, Mr Walker advised MrSmith via a text message that he was there, that is Mr Walker was there. Mr Smith,Mr Wilson, and Mr Wickens had by then, departed Mr Wilson's address in Mr Smith'svehicle, and Mr Smith responded to Mr Walker's text, telling him to let them knowonce Mr Paterson was in the car.[7] Mr Walker then lured Mr Paterson out to your car on the pretext of completinga drug deal. Mr Paterson came outside and spoke briefly to Mr Walker, beforereturning back inside apparently to get something. While he was away Mr Walker sentanother text message to Mr Smith informing him that he (Mr Walker) was waiting inyour car for Mr Paterson to return. Then when Mr Paterson returned back to your carhe was forced and dragged into the backseat.[8] Mr Wilson, Mr Smith and Mr Wickens then arrived in Mr Smith's vehicle. MrWilson ordered you and Mr Walker to get Mr Paterson back to his (Mr Wilson's) place,and mouthing the words to you to "drive".[9] Ms Kerridge, who was seated in the front passenger seat of your car, also toldyou to "drive, drive, drive". You did so, driving away from Mr Paterson's placedespite his obvious opposition to remaining in your vehicle and being taken away inyour car. The second vehicle driven by Mr Smith, he accompanied by Mr Wilson andMr Wickens, followed behind. The two vehicles proceeded in convoy.[10] During your drive back to Mr Wilson's address Mr Paterson was strugglingwith Mr Walker in the back seat of your vehicle and clearly trying to get free and outof your car. Mr Walker restrained him, by putting him in a headlock or chokeholdwith one of his arms around Mr Paterson's neck and his other arm around his head andback. During the on-going struggle and while you were proceeding along VictoriaStreet, Mr Paterson managed to kick out and smash a rear side window of your car.When that happened Mr Walker instructed you to stop the car, which you did. Thevehicle driven by Mr Smith also then stopped.[11] At Mr Wilson's direction, Mr Smith got out of his vehicle and went over toyour car and got into the backseat of your car and proceeded to sit on Mr Paterson'slegs to effectively immobilise him while Mr Walker maintained his headlock andchoke-hold. Once Mr Smith had entered your car and had taken up a position sittingon Mr Paterson's legs, you resumed the journey and drove on to Mr Wilson'sresidence. You were followed by Mr Wickens driving Mr Smith's vehicle, he beingaccompanied by Mr Wilson.[12] During the remainder of the journey back to Mr Wilson's place, Mr Walkermaintained his headlock and chokehold on Mr Paterson, and Mr Smith maintained hisposition sitting on Mr Paterson's legs.[13] On arrival back at Mr Wilson's residence, Mr Paterson was taken from yourcar into a garage at the rear of Mr Wilson's property, where he was observed to be bluein the face and unresponsive, and having a small amount of blood visible on his lips.Mr Walker initially tried to wake Mr Paterson by slapping his face and, beingunsuccessful, then attempted CPR, but soon realised that Mr Paterson was dead. Atthat point you and Mr Smith both left the address separately in your vehicles.[14] A discussion then took place amongst those who remained regarding theconsequences of Mr Paterson's death, including discussion of disposing of the bodyin order to avoid being found responsible or involved. You were not privy to thatdiscussion, having already left Mr Wilson's residence when it took place. However,Ms Kerridge subsequently contacted you and instructed you to clean your vehicle out.You agreed to clean it and to remove any evidence of what had taken place that mighthave remained in your vehicle.[15] Several of your other co-defendants then acted together to dispose of MrPaterson's body. His body was quickly discovered by the Police and you wereinterviewed by the Police. When you were interviewed you acknowledged your rolein the offending and provided details of the roles of the other persons involved.[16] You initially faced charges of manslaughter, kidnapping, and conspiring todefeat the course of justice. The Crown Charge Notice was amended on 12 June 2019to remove the charge of manslaughter and thereafter you promptly entered a plea ofguilty when arraigned on 21 June 2019.[17] After entering your guilty pleas, you provided the Police with a further writtenstatement regarding the details of the roles of your co-defendants Mr Wilson, Mr Smithand Ms Kerridge, in the death of Mr Paterson. As a result of that statement, the CrownCharge Notice in respect of Ms Kerridge has been amended to include in her case acharge of kidnapping.Submissions[18] Crown counsel and your counsel are largely agreed as to the appropriatesentencing starting point, and indeed the end sentence, to be imposed.Crown submissions[19] The Crown submits that, given the nature of the offending, it is appropriate toidentify a global starting point applicable in respect of both of the charges that you areto be sentenced for. The Crown further submits that concurrent sentences areappropriate.[20] The Crown says that you were not involved in a preconceived plan to kidnapMr Paterson, and your offending, while serious, is appropriately seen as a spontaneousresponse that occurred in the context of what was a rapidly unfolding situation. TheCrown says that you followed the instructions of your associates to drive away withMr Paterson on the rear seat of your car when you knew that he did not wish to remainin your car or be taken to Mr Wilson's address. The Crown however accepts that theviolence towards Mr Paterson substantially took the form of restraint rather than beinggratuitous violence, and it is accepted by the Crown that you played no active part inhaving any physical contact with Mr Paterson.[21] The Crown submits that the Court is not assisted by way of guideline authorityin the present case. As to consistency with your co-defendants, sentences have alreadybeen imposed on Ms Betteridge and Mr Green on their charges of conspiring to defeatthe course of justice, but their offending was considerably more serious than yours asthey were both involved in the disposing of Mr Paterson's body.[22] The Crown says that the sole aggravating feature of your offending is the extentof the harm arising from the offence, being of course, Mr Paterson's tragic death.[23] The Crown has referred me to a number of previous sentencing decisions onkidnapping. The Crown submits that in light of those decisions, the fact that you wereeffectively following orders, and that you had no part in the violence against MrPaterson, and that such violence was in the form of effectively restraint rather thanbeing gratuitous, those factors should lead the Court to adopt a starting point of twoyears and six months' imprisonment as appropriate for the charge of kidnapping. Tothat, the Crown submits an uplift in the range of three to six months' imprisonment iswarranted in respect of the charge of conspiring to defeat the course of justice.[24] The Crown acknowledges a number of mitigating features apply in your case.They are your co-operation with the Police by assisting in the prosecution of yourco-defendants Mr Wilson, Mr Smith and Ms Kerridge, as you have made a statementand are proposing to give evidence and your willingness to be a witness at their trial.Your lack of previous convictions and your guilty plea are also matters which theCrown says are mitigating factors. The Crown has suggested how the Court mightapproach determining the discounts to be allowed in respect of the mitigating featurespersonal to you, but has not proposed specifically what those discounts should be.Defendant's submissions[25] Your counsel, Mr Burroughs, broadly in line with the submissions made by theCrown, submits that a global starting point of up to two years and nine months'imprisonment on both charges is warranted in this case. Mr Burroughs accepts thatthe aggravating feature of your offending is Mr Paterson's death.[26] Mr Burroughs points out that you have no previous criminal convictions. Hesays that you were drawn into this offending through your relationship with MsKerridge and your addiction to drugs. He also says that you are remorseful. He saysyour remorse is apparent from your admission to the Police of your role in MrPaterson's death, when self-interest would ordinarily dictate that no such admission,effectively incriminating yourself, would be likely to be made.[27] Mr Burroughs submits that you are entitled to a discount for your cooperationwith Police and that you are entitled to a full 25 percent discount of your sentence inrecognition of your guilty pleas.[28] While accepting that a sentencing starting point of up to two years, ninemonths' imprisonment is appropriate in your case, Mr Burroughs submits that once anallowance is made for your cooperation with the Police and prosecution, and adiscount given for your guilty pleas, an end sentence of home detention, being the leastrestrictive sentence available to the court, should be imposed upon you.Discussion[29] Mr Boyle, for the purposes of sentencing you, the Sentencing Act 2002requires that the sentence I impose promotes in you accountability and responsibilityfor your offending; provides for the interests of the victim; denounces your conduct;and deters you and others from offending in a similar manner; and also provides foryour rehabilitation.1[30] In considering the principles, as outlined in the Sentencing Act 2002, I shouldparticularly bear in mind when sentencing you, are the gravity of your offending; andimposing the least restrictive sentence that is appropriate in the circumstances.2[31] I agree with the Crown and your counsel, that a global starting point should beadopted in this case. I also agree that the sentences on the charges of kidnapping andconspiring to defeat the course of justice should be imposed concurrently, that is thesentences will be served together. And I agree that on the charge of conspiring todefeat the course of justice, your offending is less serious than that of yourco-defendants Ms Betteridge and Mr Green.[32] I have considered the cases referred to me by the Crown on the starting pointfor kidnapping. They largely concerned defendants who did not have a direct role inthe actual kidnapping, that is the act of detaining the victim. They were insteadbystanders to that, or performed some ancillary role to their co-defendants who were1 Sentencing Act 2002, s 7.2 Sentencing Act 2002, s 8.the primary offenders. I do not intend to refer to all of those decisions here. Anexample is R v Kaka in which Venning J adopted a starting point of two years and sixmonths for a charge of kidnapping where the defendant, although not involved in theabduction of the victim, and not involved in the ill treatment of the victim, neverthelessstood guard over her while she was bound and detained for a period of hours beforeshe managed to escape.3[33] Another comparable case is R v Corbin in which Mander J adopted a startingpoint for Mr Corbin of two years and three months and for his co-offender Mr Mauhenia starting point of two years.4 In that case the two defendants had no involvement inthe gang-related kidnapping of the victim, or of the victim being abducted and takento premises where he was assaulted. However, the defendants were directed to attendthat address and when they arrived their presence provided assistance and support forthe offenders. Mr Mauheni later said he felt powerless to influence the situation. MrCorbin however punched the victim in the head and struck him with his foot. Thevictim managed to make use of a cell phone early the following morning and the Policewere called and attended the address.[34] R v Hansen was another kidnapping case involving gang members.5 MsHansen was involved in the planning of the kidnapping and driving others in her carto a carpark in a reserve where the abducted victim was taken. Ms Hansen remainedthere with others before taking an associate into town where the victim's ATM cardwas used to withdraw all her available funds, some $120. Ms Hansen then transportedother associates in her car in order to obtain another vehicle. Ms Hansen was notinvolved in the events that followed which involved the victim being seriouslyassaulted, bound and transported in the boot of a car. The victim later managed toescape from the boot of the car while it was moving, but died from her very seriousinjuries. Unlike the present case, the violence the victim experienced at the hands ofMs Hansen's co-defendants was gratuitous. In sentencing Ms Hansen, Gilbert Jdescribed her as having played a limited role, effectively as a driver. Gilbert J adopteda starting point of three years' imprisonment on the charge of kidnapping.3 R v Kaka [2013] NZHC 2151.4 R v Corbin [2016] NZHC 2570.5 R v Hansen [2017] NZHC 449.[35] I consider your offending to be somewhat higher as to its level of culpabilitythan the offending in Kaka and Corbin but less culpable than that of the defendant inthe case of Hansen. In your case you drove Mr Walker and Ms Kerridge knowing thatthe purpose was to locate Mr Paterson and take him back to Mr Wilson's house. Thatjourney involved you driving to an address where Mr Paterson was staying as directedby Walker and then, when Mr Paterson was forced into your car, driving away withhim in the rear of your car when his resistance was very clear and a clear indication toyou that he did not wish to be with you in the car or to be taken anywhere. You thencomplied with instructions to stop your car at the point when Mr Smith got in andassisted to restrain Mr Paterson. You then drove back to Mr Wilson's place as I haveearlier described. That was an extensive and ongoing series of acts on your part thatproceeded from the point of knowing that the plan and intention was to locate MrPaterson and return him to Mr Wilson's place for questioning, and thereafter assistingMr Walker and the others by providing transport and acting in accordance with theirdirections. It therefore appears that without you playing your role the whole enterprisemay not have been able to be carried out as it was. You provided the essentialtransport.[36] Consistently with the submissions made by both the Crown and Mr Burroughs,I agree that a starting point of two years, six month's imprisonment is appropriate onthe lead charge of kidnapping, with an uplift of three months' imprisonment for thecharge of conspiring to defeat the course of justice.[37] I consider that starting point is appropriate having regard to the seriousness ofyour offending and your culpability as reflected by your level of involvement in theoffending, that you were largely acting on instructions in circumstances where itappears that you were scared and that consequently your role in the offending was inthe nature of an urgent response to a situation that you found yourself in. I agree thatthe sole aggravating feature, which is not in any way to diminish it, of your offendingis that Mr Paterson tragically lost his life. That needs to be accounted for andrecognised in the sentencing.[38] As to the mitigating features personal to you, I note first the assistance youhave provided to the Police in the prosecution of your co-defendants, Mr Wilson, MrSmith and Ms Kerridge. The Crown says that it considers the formal statementprovided by you to be reliable and corroborated by other evidence. The Crown saysthat your statement, while not pivotal, will be of value to it in attempting to secureprosecutions of your co-defendants. Moreover, the Crown says that your evidenceprovides the actual basis for the charging of Ms Kerridge with the offence ofkidnapping of Mr Paterson.[39] The Crown has also provided a number of cases where the courts have alloweda discount to an offender at sentencing to reflect the assistance they have provided tothe Police and the prosecution. Those cases show a broad range of discounts havebeen given by the courts to offenders for the assistance they have provided. In somecases, discounts have been as high as 30 – 35 percent.6 Those discounts appear tohave been justified on the basis that the evidence offered by the defendant against theirco-defendants was pivotal to securing their convictions, and where there wasotherwise only scant or limited evidence available to secure a conviction. In othercircumstances, discounts of between 15 - 20 percent have been granted for materialassistance provided by a defendant.7[40] In your case, I consider that a discount of just over 20 percent, or seven months,is warranted. Your evidence, while not pivotal to securing convictions of all your co-defendants still proceeding to trial on all charges, is obviously of material assistancein corroborating the evidence to be presented by the Crown. I also note that withoutthat evidence, a charge of kidnapping would not have been brought against MsKerridge, so in that respect your assistance can aptly be described as pivotal in relationto the charge against her. Moreover, I note that the co-defendants against whom youare offering evidence are involved in or associated with the Nomads' gang here inHamilton, and it cannot have been an easy decision to offer to give evidence in thosecircumstances.[41] That discount results in an adjusted starting point of two years and two months'imprisonment.6 ABC v Police [2013] NZHC 1487; Cribb v Police HC Hamilton CRI-2010-419-46, 8 July 2010.7 A v R HC Whangarei CRI-2009-488-3, 25 February 2009; Mori v Police [2013] NZHC 225.[42] I also consider that you are entitled to a further discount in recognition of yourprevious good character. You have no prior convictions, other than a driving relatedmatter referred to in the pre-sentence report. I do not consider that to be of anysignificance in this context, and I will put it to one side. However, I am mindful of theCrown's submission that your offending arose in the circumstances of your drug useand your associated lifestyle choices, and that necessarily also informs my assessmentof an appropriate allowance for your otherwise good character.[43] In addressing the issue of your character I was particularly impressed by theletter from your employer at NZ Care Disability, where you were employed for fouryears as a community support worker assisting members of the community withintellectual and physical disabilities. Ms Moon, who is the Service Manager for NZCare, describes you as showing a passion for people and improving the quality of thelives of people with disabilities; that you have built excellent relationships with bothyour clients and your colleagues; that you are valued and have broad and reliableskills; and that you were a leader in setting up services for the partnership between NZCare and Oranga Tamariki assisting children with complex behavioural needs, whereyou made a remarkable difference to young children in your organisation's care. MsMoon says that although you were stood down in December 2018 pending the outcomeof the charges you faced, and depending on the outcome of those charges, NZ Care islooking forward to you returning to work if that opportunity is available.[44] Having heard the Paterson family address the Court today and heard theprofound heart wrenching grief that they have experienced and which will be ever-lasting for them, that stands in such stark contrast in the damage that you have caused,to the constructive work that you have done at NZ Care. And it seems that yourinvolvement with these co-defendants had its basis because of your drug addiction andone need only pause for a moment to look at the constructive life you were leadingand the destructive actions on 12 July last year, to see the damage that drugs cause,not just to those who take them, but to those who are around them, and the ripples runright through the community.[45] In recognition of your previous good character, I consider that a discount oftwo months is appropriate. That then produces an adjusted starting point of two years'imprisonment.[46] I consider that you are remorseful for your role and participation in theoffending, but I consider that the discount I have allowed in recognition of yourassistance to the Police and prosecution sufficiently recognises that remorse and I willnot make any further adjustment on that account.[47] Finally, as regards your guilty pleas, Mr Burroughs says that a full discount of25 per cent should be allowed. The Crown accepts that a significant credit for yourguilty pleas is available, given that you have been discharged, or will be discharged,on the count of manslaughter. However, the Crown also notes the extremely strongprosecution case against you. In light of the admissions you made to the Police, therewas a strong case, and the text message communications passing between yourself andMs Kerridge following Mr Paterson's death were also cogent evidence of yourparticipation.[48] I note, as does the Crown, that the strength of the Crown case against youlargely rests on the admissions you made to Police in your interview with them and Ido not consider that it would be appropriate to effectively penalise you for theadmissions you made in the course of your initial Police interview, as the admissionsmade by you in those circumstances are broadly consistent with the purpose ofpleading guilty, and the sentence discounts which are granted for guilty pleas.[49] I shall therefore allow a discount for your guilty pleas of 25 per cent.[50] That leads to a final sentence of one year and six months' imprisonment.[51] I turn now to consider whether or not, as an alternative to imprisonment, Ishould impose a sentence of home detention upon you.[52] I note that the Corrections report states that you reside with your mother andstep-father, who sought out alternative accommodation to ensure that you had aresidence at which you could reside during a sentence requiring electronic monitoring.Corrections have assessed the proposed residence and the occupants as being suitable,and are recommending a sentence of home detention be imposed on you.[53] Your parents are fully supportive of you, and it is clear that they will provide apro-social environment to assist with your reintegration back into the community.Your ability to either re-enter employment with NZ Care or to otherwise findemployment will make a significant contribution to your rehabilitation andreintegration.[54] The pre-sentence report notes that you have some rehabilitative needs, relatingto your substance abuse of cannabis, for which it is recommended that you attend anappropriate programme providing treatment and/or education about the effects ofsubstance abuse. The report also notes the personal crisis that you have experiencedwhich you said was a result of the financial and emotional stress your conduct placedon your family. You have been diagnosed as suffering from depression, have beenprescribed medication, and are awaiting counselling. Clearly it is in both your interestsand the community's interests that you receive assistance to promote yourrehabilitation and reintegration, so that you can once again be a valuable andcontributing member of society as you have previously demonstrated you are wellcapable of. I believe those objectives and the objectives of sentencing are bestachieved by imposing a sentence of home detention upon you.[55] I am satisfied, Mr Boyle, that you are suitable for home detention and Itherefore intend to impose a sentence of nine months' home detention upon you.Result[56] Mr Boyle, please stand.[57] On the charge of kidnapping I sentence you to nine months' home detention.[58] On the charge of conspiring to prevent the course of justice I sentence you tothree months' home detention.[59] Those sentences are to be served concurrently.[60] Your sentence of home detention is to be served at the Hamilton addressdetailed in the Department of Corrections report.Addendum[61] Mr Boyle you have just heard the Crown, pursuant to an earlier application, iswithdrawing the charge of manslaughter. I make an order formally dismissing thatcharge._____________Paul Davison J