HAYDEN v R [2020] NZCA 369

HAYDEN v R [2020] NZCA 369 [28 August 2020]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA289/2020[2020] NZCA 369BETWEEN MARK EDWARD HAYDENAppellantAND THE QUEENRespondentHearing: 23 July 2020Court: Cooper, Peters and Whata JJCounsel: J H M Eaton QC and K H Cook for AppellantM R L Davie for RespondentJudgment: 28 August 2020 at 10 amJUDGMENT OF THE COURTA The appeal is allowed.B The sentence of two years and one month's imprisonment imposed in theHigh Court is quashed and a sentence of one year and three months'imprisonment is substituted.____________________________________________________________________REASONS OF THE COURT(Given by Cooper J)[1] The appellant, Mark Hayden, pleaded guilty to being a party to manslaughter.1He was sentenced to imprisonment for a term of two years and one month.2 He nowappeals against that sentence. He alleges that the starting point of four years and1 Crimes Act 1961, ss 66(1), 171 and 177.2 R v Hayden [2020] NZHC 966 [High Court judgment].six months' imprisonment adopted by the Judge was too high, and that insufficientcredit was given for mitigating factors.[2] This is an unusual case. The manslaughter was the result of dangerous driving,not by the appellant, but by his cousin, Stephen Hayden.3 The appellant wasa passenger in the car and the liability he has accepted by his guilty plea is that ofbeing a party to actions which caused the death of a 72-year-old man in a head-oncollision. Stephen Hayden died in the same accident.[3] The other unusual aspect of this case is that the appellant is an Australiancitizen whose wife and family are in Victoria. In the current circumstances, his wifeand children are unable to visit him because they cannot travel to New Zealand fromtheir home in Geelong in Victoria due to travel restrictions as a result of the COVID-19pandemic.[4] The case is a tragic one. Mander J, as the sentencing Judge, had before himstatements made by the deceased Mr Freeman's wife and son. Mrs Freeman wrotethat she had been married to Mr Freeman for 52 years, until the day he was killed.She met him when she was 16 years old and they had two sons. They initially workedon a family farm in Tasmania, later moving to Twizel where they had lived for the past30 years. She said:We built a beautiful home together where we intended to spend the rest of ourlives, enjoying our retirement, caravanning and fishing with our friends.I have now lost that part of my life since I lost Nigel.My financial state is at its lowest because Nigel supplemented our pensionculling rabbits for property holders. The evening he was killed he had beenout delivering paperwork which was required for payment.I have been forced to make the decision to leave my friends and lifestyle inNew Zealand and move back to family in Australia where I have familysupport. This has been an extremely daunting and emotional experience.I have had to sell up our home and our belongings at garage sale prices andbeen required to replace them at full cost. Deciding which of our belongingsI would keep as memories of Nigel and which I would part with was heartbreaking but the worst thing was flying home carrying Nigel's ashes.3 To avoid confusion between the two we refer to Mark Hayden as the appellant.It haunts me that he died alone, without me being at his side. I miss him somuch and I love him dearly. Since his death I have trouble sleeping and oftenhave nightmares. Evenings are the most difficulty for me as they feel longand lonely and I often break down and cry.Even though it has been more than 2 years since Nigel's death, I still don'tknow how to [be] happy and live my life without him. There have been timeswhen I would go into [the] garage to look for him but obviously he was notthere. I am unable to put into words the impact that Nigel's unfair and horrificdeath has had on me but I truly feel as though a part of me died when Nigelwas killed.[5] There was another moving expression of sorrow in the statement ofGavin Freeman, Mr and Mrs Freeman's son, a 54-year-old fire fighter living inVictoria. That career has required him to attend and manage many motor vehiclecollisions, but naturally none has impacted him as much as this. He observed:For the 52 years of Mum and Dad's marriage, Dad made all the majordecisions in our family. He supported her not just financially but alsoemotionally and she relied heavily on him. He always thought he would bethere to look after [M]um and then suddenly he wasn't. They were not givenany opportunity or time to prepare Mum for life without him and I now feelresponsible to help Mum make those big decisions.[6] No-one from the Freeman family, or the Hayden family, was able to observethe appeal in this Court. Although it is perhaps unusual, we think it appropriate to setout the above extracts from the victim impact statements to underline the tragicconsequences of the events giving rise to the prosecution. A great deal of grief hasbeen caused to innocent people. They include not only the Freeman family, but alsothe surviving wife and children of Stephen Hayden. They include also the appellant'swife and three teenage children.Facts[7] The facts on which the Judge sentenced the appellant were set out extensivelyin his sentencing remarks.4[8] On 2 July 2017 the appellant and four others flew from Melbourne toChristchurch intending to go heliskiing in the Mt Cook region. The group comprisedthe appellant, his cousin Stephen Hayden and three other male acquaintances of4 High Court judgment, above n 2, at [4]–[22].Stephen, not previously known to the appellant. The appellant hired a four-wheeldrive vehicle in Stephen's name after arriving at Christchurch Airport. The attendantfrom the rental car company noted that Stephen appeared intoxicated but was assuredthat he would not be driving the vehicle that evening. A short time later, the threeother men hired a second vehicle.[9] Early in the morning of 3 July 2017, an airport security officer saw the vehiclethat had been hired in Stephen's name speeding around the airport car park withits boot open. It was seen overtaking another vehicle as it drove out of the car park.Airport traffic management contacted the police, and another report was receivedof the vehicle being driven erratically at that time.[10] Shortly after that a staff member at the Christchurch Casino telephonedthe police advising that the same vehicle was parked at the entrance of the casino carpark, and that it had sustained some damage. It had been driven there by Stephen.The appellant and Stephen got into the other car hired by the other members ofthe group, and that vehicle was subsequently stopped by the police. Stephen returneda positive roadside breath screening test. He was taken to a police station where heunderwent an evidential breath test, giving a result of 1,015 mcg of alcohol per litre ofbreath.5 Stephen was taken by the police to a hotel where he shared a room withthe appellant.[11] At about 3 am, police received a further call from the casino advising thata person who they believed was the original driver of the vehicle had returned to it anddriven it away.[12] Later that morning the three other men drove from Christchurch to Methven.Stephen and the appellant followed, Stephen driving. The group decided to continueto Lake Tekapo. During this stage of the journey, Stephen's vehicle was seen to driveoff the road and into the snow on three occasions while driving along State Highway 8.The Judge recorded a witness describing the driver of the vehicle as smiling andappearing to have fun. A short distance east of Lake Tekapo, Stephen pulled to theside of the road so that he and the appellant could relieve themselves. The car in which5 The legal limit is 250 mcg per litre of breath.the other men were travelling arrived and pulled over. It was noted that the appellantand Stephen had a bottle of vodka in the vehicle, and both appeared to be intoxicated.One of those who had arrived in the second car told Stephen he could no longer driveand that he would take over driving the vehicle. However, at that stage Stephen droveaway with the appellant in the passenger seat.[13] Having arrived at Lake Tekapo, the appellant purchased another bottle ofvodka from a liquor store. Stephen parked in the middle of the car park, blockingtraffic. The appellant was seen returning to the vehicle in a clearly intoxicated state.Back in the car, the bottle of vodka was opened, and both drank from it. They wereseen to hug each other and were laughing before driving off at speed through thecar park and turning right onto State Highway 8 heading towards Twizel.[14] As the Haydens travelled between Tekapo and Twizel the police received callsfrom members of the public recording concerns about the way in which the vehiclewas being driven. It was observed crossing the centre line and trying to run othervehicles off the road. Stephen was driving on the wrong side of the road andthe oncoming car had to swing onto the verge to avoid a collision. The driver of thatcar described the driver of the oncoming vehicle as laughing, and "giving her thefingers" as he passed by.[15] The vehicle was then observed to stop in the middle of the road, blockingtraffic. The driver of a bus which had been overtaken by Stephen got out of his busand ran towards the vehicle. He opened the driver's door, but Stephen immediatelysped off. While this was all occurring, the police were receiving numerous calls fromconcerned members of the public regarding the way the vehicle was being driven.[16] A police constable then came across the vehicle parked on the side of the roadbetween Tekapo and Pukaki. He considered the driver was extremely intoxicated, tothe point where he hardly acknowledged the constable's presence. The constablereached in through the open window and turned the engine off but was unable toextract the keys from the ignition. He tried to open the driver's door, but it was locked.He began roadside breath screening procedures.[17] At this point, the appellant told the police constable that Stephen was notthe driver, and that the driver and a friend had walked off. The breath screening devicerevealed that Stephen had consumed alcohol, and so the constable required himto undergo a breath screening test. The appellant became aggressive at that point, andtold the constable, "this is not going to happen". He reiterated that Stephen was notthe driver. Stephen also made that assertion and moved his head away from the breathscreening device. The constable told Stephen that if he did not comply he would bearrested, and the appellant responded, in an even more heightened and aggressivevoice, "this is not going to happen".[18] In view of the conduct of Stephen and the appellant, the constable walked backto his patrol vehicle to call for assistance. Stephen then started the vehicle. He nudgedit forward, hitting a fencepost, before reversing towards the constable and his policevehicle. The constable had to move to the rear of the car to get out of the way.The vehicle then sped off. It did a U-turn and continued at high speed.[19] While navigating a slight left hand bend the vehicle veered towards the centreline and crashed head on into a car heading in the opposite direction being driven bythe deceased Mr Freeman. Both Mr Freeman and Stephen were killed instantly.[20] Crash scene analysis showed that Stephen had been travelling between 160 and170 km/h at the time of the crash. He had a blood alcohol level of 326 mcg of alcoholper 100 ml of blood, against the legal limit of 50 mcg per 100 ml of blood.The appellant had a blood alcohol level of 252 mcg per 100 ml of blood, some fourhours after the accident. Two charges were laid against the appellant, in the alternative.First, he was charged with being a party to Stephen's manslaughter of Mr Freeman.6The alternative charge was of being a party to driving under the influence causingdeath.76 Crimes Act, ss 66, 171 and 177.7 Land Transport Act 1998, s 61(2)(a); and Crimes Act, s 66.Events prior to sentencing[21] The appellant first appeared on 2 April 2019. He was granted bail and allowedto return to his home in Australia. On 12 February 2020, Mander J gave a sentenceindication.8[22] We record that prior to the sentencing, there had been a hearing for the purposesof a sentence indication on 12 February 2020. In written submissions filed in advanceof that hearing, the Crown accepted that once credit was given for mitigating factors,the end sentence might be in the range where a sentence of home detention could beconsidered, reserving its position in respect of the suitability of any proposed address.The defence expressed its hope that the Court would confirm that position. In theevent, the Judge did not accept that was appropriate when he gave the sentenceindication. He described the appellant's actions as properly able to be viewed as"amounting to a joint enterprise with Stephen" to drive in a manner that resulted in thedeath of an innocent person.9 Whilst he considered there was a differencein culpability to be recognised between Stephen and the appellant, he did not considerit to be substantial. He adopted a starting point of five years' imprisonment, and aftertaking mitigating considerations into account, indicated an end sentence of two yearsand five months' imprisonment.10[23] Mr Eaton QC told this Court that the sentence indication had led to muchunanticipated distress for the appellant and his family. It was at that stage that he wasbriefed as senior counsel and provided an opinion as to the appropriate plea. He gaveus reason to understand that the appellant's decision to plead guilty while rejecting thesentence indication was contrary to his advice. Prior to entry of the guilty plea, andfollowing discussion, the Crown Solicitor expressly conceded that a guilty plea wouldbe accepted on the basis that the appellant was a party to the offence under s 66(1),and not s 66(2) of the Crimes Act 1961, the approach taken by the Judge in thesentence indication. This was considered by Mr Eaton to be an important step,because the sentence indication had determined that the difference between8 R v Hayden [2020] NZHC 145.9 High Court judgment, above n 2, at [28].10 At [36].the appellant's conduct and that of his deceased cousin was not substantial on the basisof the joint enterprise approach.[24] We should also record that the fatal accident occurred on 3 July 2017.Following the accident, the appellant was admitted to Timaru Hospital with severebruising on most of his body, ligament and tendon damage and a severe concussion.Upon his release from hospital he was allowed to return to Australia. It was not until23 February 2019, some 18 months after the accident, that he was charged withmanslaughter or, in the alternative, driving whilst intoxicated causing death. Mr Eatonsubmitted, and we accept, that the appellant has been entirely cooperative throughoutthe process, and that he voluntarily returned to New Zealand to answer the charge.He appeared in the High Court at Christchurch on 2 March 2020, where he pleadedguilty to the manslaughter charge and was remanded in custody for sentence.The alternative charge was dismissed.[25] The COVID-19 pandemic then intervened. Sentencing was unable to proceeduntil 12 May 2020. In the meantime, the appellant offered to participate in a formalrestorative justice process, and to meet Mr Gavin Freeman's costs of returningto New Zealand for the sentencing.The sentence[26] Having set out the facts, the Judge identified aggravating features whichhe thought marked the "highly culpable nature of the driving".11 These werethe consumption of alcohol, prolonged intoxicated driving, the high speed at whichthe vehicle was being driven at the time of the crash, the fact that at the time of thecollision and Mr Freeman's death the vehicle was being driven away from anattending officer to avoid apprehension and the fact that the driving was aggressive.[27] The Judge accepted a submission by the Crown that if the appellant had beenthe driver, a starting point of between six and seven years would have beenappropriate. He then observed:1211 High Court judgment, above n 2, at [32].12 At [33].Your case is marked by the persistence of the intoxicated and dangerousconduct which continued despite the attempted intervention of yourassociates, members of the public and the police, and rendered the ultimatefatal outcome almost inevitable. You appear to have become so drunk that,rather than assisting the efforts of those people, your actions served toencourage and aid your cousin along his destructive course.[28] While the Judge accepted that the appellant was less culpable than Stephen,the appellant had to bear responsibility for the way in which he "aided and encouragedanother to drive in such a drunken and therefore dangerous state, and abetted thedisobedience of the officer's intervention, which led to Mr Freeman's death".13Having discussed relevant authorities, the Judge adopted a starting point of four yearsand six months' imprisonment. There were no personal aggravating features, but therewere personal mitigating factors. The Judge allowed discounts of:(a) 10 per cent for remorse;(b) 20 per cent for good character, to acknowledge the fact the appellanthad sustained injuries, emotional suffering, mental distress from thecrash and for the fact that he was having to come to terms withStephen's death, as well as suffering from depression;(c) eight per cent to reflect the fact that the appellant is a foreign national;and(d) a further 25 per cent for the appellant's guilty plea.[29] On the Judge's calculation, this resulted in an end sentence of two years andone month's imprisonment.Starting pointSubmissions[30] Mr Eaton's submission that the starting point was too high rested substantiallyon a proposition that the Judge had wrongly emphasised Stephen's driving after13 At [41].Lake Tekapo where the appellant had purchased a further bottle of vodka. It was onlyafter they left Lake Tekapo that Stephen's driving became truly dangerous. Mr Eatonrelied on the appellant's affidavit to submit that the Judge's approach overlookedthe appellant's affidavit evidence that after leaving Lake Tekapo he had made variousattempts to discourage Stephen from driving in the way he did.[31] This argument should be put in context by reference to an issue that arose inthe lead up to the sentencing. The original summary of facts on which the sentenceindication was conducted had stated that: the [HAYDENS] were intending to travel straight to Mt Cook to preparefor the heli-skiing. [t]he other three eventually decided to travel straightto Mt Cook and join up with the [HAYDENS].[32] Mr Eaton submitted that allegation permitted the Crown and the Judge to viewthe purchase of vodka at Lake Tekapo and the bad post-Lake Tekapo driving asculpable acts attributable to the appellant, and that the intoxicated driving had beenprolonged. The appellant provided an affidavit to the Crown on 25 March 2020 inunsworn but approved form. It has since been sworn. At paragraph 15, the appellantsaid:I did buy another bottle of Vodka at Tekapo but I believed that was where wewere staying the night. It has since been confirmed that the other three guyshad all booked to stay at Peppers in Tekapo for the night. That's where I hadstayed once before when I was out here heli-skiing previously. As far asI knew we certainly didn't have any accommodation booked at Mt Cook oranywhere closer to the heli-ski operation. It was Stephen making all thearrangements and I assumed we were staying in Tekapo. I have no idea whyStephen then drove beyond Tekapo.[33] He continued:I do recall Stephen's driving after we left Tekapo became worrying. He wasplaying dangerous games with oncoming traffic. I do recall yelling at him tocut it out and on more than one occasion grabbing the steering wheel andpulling it to the left. I do recall on a couple of occasions when other membersof the public tried to stop him driving. Stephen just ignored them. There isno way I was encouraging him to drive in that manner or to drive off when thepublic tried to intervene but he wasn't listening to me.[34] On this basis, the defence approached the sentencing on the basis thatthe appellant believed the trip was to end at Lake Tekapo. The Crown's submissionshowever were exchanged on the basis that the appellant's assertion he understood theyhad arrived at their destination, and that he thought they were staying there rather thancontinuing with the journey, was disputed. Reliance was placed on the summary offacts for that purpose. Counsel for the Crown noted the fact was significant, becauseif Mr Hayden's evidence was accepted: the Defendant's actions at the Tekapo bottle store are minimised as he wasof the view that their trip had come to an end. All subsequent driving conductwould be solely attributable to Stephen Hayden and not encouraged bythe Defendant.[35] This written exchange prompted the Judge to convene a telephone conferenceon 11 May. Mr Eaton advised us (and this was not disputed) that the Judge made itclear the factual dispute was significant, would require a recalibration of the startingpoint and, if agreed, would effectively mean the appellant had been a "hostage" afterthe vehicle arrived at Tekapo.[36] Later that day, the Crown Solicitor filed an amended summary of facts anda memorandum. The summary of facts was relevantly amended to read:They then planned to meet up in Lake Tekapo. [t]he other three eventually decided to travel to Lake Tekapo and join up with the [HAYDENS].[37] In his memorandum, the Crown Solicitor acknowledged:The Crown accept that it cannot disprove to the required standard the assertionthat the Defendant believed (or assumed) that they were staying the night atLake Tekapo and therefore the factual dispute has been resolved.[38] Mr Eaton complained that notwithstanding this, the prosecutor submitted thatthe fact that the appellant believed the trip was ending in Lake Tekapo made nodifference in determining the starting point or end sentence.[39] In fact, the Judge did revise the starting point downward. In the sentenceindication, he had adopted a starting point of five years, but the actual sentenceproceeded on the basis that a starting point of four years and six months wasappropriate. Nevertheless, Mr Eaton submitted that the Judge erroneously relied onthe post-Lake Tekapo driving as an aggravating feature of the appellant's offending.Mr Eaton submitted that the sentencing should have proceeded on the basis that:(a) the appellant believed the day's journey was to end at Lake Tekapo;(b) the only driving of note prior to Lake Tekapo was "controlled driftingat Dog Kennel Corner", 15 minutes prior to arrival at Lake Tekapo.After Lake Tekapo, there had been a different category of driving;(c) the purchase of alcohol "and associated conduct" at Lake Tekapo wasof little or no relevance, because at that time the appellant believed theyhad reached their destination;(d) Stephen's driving post-Lake Tekapo became dangerous; and(e) the appellant tried to stop Stephen with both his words and actions ashe had said in his unchallenged affidavit.[40] In the circumstances, Mr Eaton submitted that the Judge had been wrong togive significant weight to the post-Lake Tekapo driving.[41] Mr Eaton also submitted that the Judge had placed too much emphasis onevents at Dog Kennel Corner. He claimed that when they arrived there, the appellantbelieved the trip was very nearly at an end. The only witness of the driving at thatpoint was a man who described the driver as smiling and appearing to be having fun.Mr Eaton submitted that a deliberate slide (not at high speed) in snow on the side ofthe road was not driving in the same category as the post-Lake Tekapo driving.Yet the Judge had relied on this act to find the appellant's conduct was prolonged andinvolved intoxication throughout the journey.[42] Another strand of Mr Eaton's argument was that the Judge had wronglycompared the appellant's conduct with that of the defendant in R v Cossey.14He argued the Judge was wrong to conclude that the actions of the appellant andStephen were broadly comparable to that of Mr Cossey and the other racing driver.Mr Eaton also said that the Judge had been wrong too to compare the period of timeover which the offending behaviour had taken place in the two cases. Unlike Cossey,14 R v Cossey [2019] NZCA 104.the relevant period in this case was not a "lengthy period of time" as the Judge found,because on the summary of facts there had been no suggestion of alcohol beingconsumed over a lengthy period of time or on the open road. Mr Eaton suggested thaton the facts, the Haydens must have spent time stopped and off road, during whichtheir three associates had caught up with them. That would not be consistent witha long period of driving while intoxicated.Evaluation[43] We do not accept that the starting point adopted by the Judge was outsidethe range available to him. The Judge's sentencing remarks made it plain that herecognised the appellant's culpability was much less than that of Stephen. That wasreflected in the Judge's observation that if the appellant had been the driver, a startingpoint of six to seven years would have been appropriate.[44] We do not accept that it was appropriate to draw a bright line between theincidents that occurred prior to Lake Tekapo and those which occurred subsequently,as Mr Eaton claimed. It was prior to Lake Tekapo that Stephen drove off the road intothe snow on three occasions. Whilst this was less dangerous than what subsequentlyoccurred, it is fair to conclude that this must at least in part have been the result of thealcohol that had been consumed by that point. It was plain to the friends travelling inthe other car that both the appellant and Stephen were intoxicated at that point.When one intervened and told Stephen he could no longer drive, and that he wouldtake over driving the vehicle, Stephen drove away whilst the appellant remained in thepassenger seat. We think it was legitimate to consider that the encouragement ofStephen to drink and drive, for which it was necessary to hold the appellantaccountable must have commenced at that point. At Lake Tekapo, the appellantpurchased another bottle of vodka and both he and Stephen drank from it beforespeeding off in the direction of Twizel. We accept that it was in that part of the journeythat the driving became extremely dangerous. A member of the public (the bus driver)tried to intervene by opening the driver's door, to no avail. When the police arrived,the vehicle was parked. It was at that point that the appellant lied to the policeconstable by saying that Stephen had not been the driver and telling him that the breathscreening test was "not going to happen". Far from getting out of the car, the appellantremained in it as Stephen endeavoured to escape from the police. According to hisaffidavit evidence, the appellant had immediately prior to that been taking steps todissuade Stephen from driving dangerously. Mr Eaton referred in particular to theappellant's statement in the affidavit referred to at [33] above, that the appellant hadtried to intervene multiple times, including by pulling the steering wheel to the left,but that Stephen refused to listen.[45] The Judge was evidently sceptical about the proposition that the appellant hadbeen active in endeavouring to alter Stephen's driving conduct. He said that it wasdifficult to reconcile the observations in the affidavit and the "apparent insight"the appellant had obtained after Lake Tekapo with his "subsequent actions at theroadside when the police officer sought to intervene, [his] gross intoxication at thattime, and [his] wilful defiance of the officer".15 Although Mr Eaton emphasised thatthere was no evidence contradicting the affidavit, we consider a degree of scepticismwas justified. The car was stationary, but the obstruction of the police constable,following what had evidently been a long period of drunk driving was the proximatecause of the tragic events which shortly ensued. An earlier opportunity to stop Stephendriving had also been lost prior to the arrival at Lake Tekapo.[46] Mr Davie, for the respondent, noted that in Gacitua v R, this Court referred torelevant aggravating and mitigating features addressed by the Court of Appeal ofEngland and Wales in R v Cooksley.16 Of the aggravating elements identified inCooksley, this case includes consumption of alcohol in the lead up to the offence,excessive speed, aggressive driving including inappropriate overtaking, irresponsiblebehaviour at the time of the offence and resultant deaths. We accept of course that theaggravating factors have to be approached on the basis that the appellant was not thedriver. Nevertheless, the appellant has pleaded guilty to being a party to Stephen'soffending and must be held accountable for it. The tragic fact is that over the periodprior to arrival in Lake Tekapo and afterwards, the appellant's presence in the vehicle,his consumption of alcohol together with Stephen and the identified behaviour whenthe police constable was attempting to do his duty all contributed to this tragedy.15 High Court judgment, above n 2, at [37].16 Gacitua v R [2013] NZCA 234 at [23]–[25], citing R v Cooksley [2003] EWCA Crim 996, [2003]3 All ER 40, at [15].[47] Sentencing in cases such as the present is very much fact specific, as this Courtobserved in Gacitua v R.17 In the present case, counsel and the Judge referred to thisCourt's judgment in R v Cossey, drawing a parallel between the offending in that caseand the present.18 Cossey was a Solicitor-General's appeal in which the Court had toconsider an appropriate starting point for an offender who was not the driver whodirectly caused death but the driver of another vehicle which had been racing with thecar that caused the fatal accident. The other vehicle, having just overtakenMr Cossey's vehicle, collided with an on-coming van. The four occupants of thevehicle that had been racing died, and the driver of the van was critically injured.This Court held that the starting point in Mr Cossey's case should have been at leastfive years' imprisonment, and a higher starting point could not have been criticised.The Court also observed that the factual assessment that had been made by thesentencing Judge had proceeded on a basis that was "very favourable" to Mr Cossey.[48] The Judge in the present case thought that the appellant's conduct wascomparable to that of Mr Cossey. In reaching that conclusion he drew a parallelbetween the racing which had preceded the fatal accident in Cossey with, in this case,the appellant's encouragement of Stephen's drinking and driving, and avoidingapprehension by the police.[49] Whether or not the conduct is, as the Judge thought, "broadly comparable",19we do not consider that the starting point adopted in this case can be criticised asexcessive. We reject this argument on appeal.Mitigating factorsSubmissions[50] Mr Eaton made a number of criticisms of the allowances the Judge made forpersonal mitigating circumstances. He submitted in particular that the Judge erred bygiving inadequate credit to reflect the appellant's "extraordinary remorse", giving17 Gacitua v R, above n 16, at [22].18 R v Cossey, above n 14.19 High Court judgment, above n 2, at [38].inadequate credit for exemplary character and failing to give a discrete credit for thevoluntary return to New Zealand.[51] He submitted the 10 per cent discount allowed for the appellant's genuineremorse was manifestly inadequate to reflect the appellant's voluntary return fromAustralia to face up to the charge, his offers of $40,000 in reparation for emotionalharm, his offer to meet the full costs of Gavin Freeman flying to New Zealand toattend the sentencing, his offer to participate in restorative justice, personalexpressions of remorse and personal consequences. Rather than the 10 per centallowance, Mr Eaton submitted a 15 per cent reduction should have been given.[52] Mr Eaton also claimed that the 20 per cent discount allowed for the appellant'sgood character and personal attributes was inadequate. In this respect, Mr Eaton wasin a position to point to numerous references which had been given attesting tothe appellant's good character, involvement in his local community, success inbusiness affairs and support for his immediate and extended family. These matterswere amply demonstrated in the various written testimonials on which the appellanthad been able to rely at sentencing. Mr Eaton submitted that all of these considerationswould have justified a 25 per cent reduction. He relied in this respect on R v Findlayand Davidson v R, in which discounts of 25 per cent had been allowed for goodcharacter: without remorse in Findlay and in absence of service to the widercommunity in Davidson.20 Mr Eaton argued for the same discount here.[53] Mr Eaton further submitted that there should have been a discrete discountto recognise the appellant's voluntary return to New Zealand to face the charge.He referred to this Court's judgment in Rogers v R where reference was made to the"utilitarian value of a voluntary return and the desirability of encouraging suchreturns".21 Mr Eaton also referred to Butler v R, where it was observed that there has"long been a practice of giving recognition to this factor", and a discrete allowance of10 per cent was considered appropriate.2220 R v Findlay [2007] NZCA 553 at [102]; and Davidson v R [2011] NZCA 356 at [18]–[19].21 Rogers v R [2010] NZCA 48, (2010) 24 CRNZ 809 at [19(b)].22 Butler v R [2019] NZCA 65 at [20].[54] Mr Eaton also drew attention to the approach taken by the Judge to calculationof the 25 per cent discount he allowed for the guilty plea. It appears from the startingpoint adopted by the Judge of four years and six months' imprisonment (54 months),that he deducted a total of 38 per cent arriving at a total of 33 months, beforesubtracting 25 per cent of that total for the guilty plea. That resulted in the finalsentence of 25 months or two years and 1 month's imprisonment. As this Court heldin Moses v R, delivered after the appellant was sentenced, that is not the methodologythat should now be adopted.23 Rather, all of the discounts, including that for the guiltyplea, should be added together, and their global total then subtracted from the startingpoint.24 Had that approach been taken in this case the result would have been a finalsentence of 20 months, or one year and eight months' imprisonment.[55] Mr Davie submitted that the 20 per cent discount for good character was withinrange, while conceding that a slightly higher discount could have been given.He contended, however, that in Findlay, a Solicitor-General's appeal this Courtconsidered a 25 per cent reduction was the highest level available. He submitted thatthe 10 per cent discount for remorse, including willingness to participate in restorativejustice and make reparation, was also within range, and argued that the maximumdiscount given for the guilty plea should be seen as including sufficient recognitionfor the appellant's voluntary return to New Zealand.Evaluation[56] We are satisfied that a more substantial allowance for personal mitigatingfactors should be made. As to the appellant's previous good character, this Court'sreasoning in Findlay was specifically related to the circumstances of that case, and inparticular what the Court described as the obvious lack of remorse displayed by thedefendant. It saw this as reducing any claim for a discount for previous goodcharacter.25 For that reason, an allowance of over 50 per cent "solely for goodcharacter" would be "outside an appropriate range".26 The circumstances here aredifferent. There is no doubt that the appellant is very remorseful, and we see no reason23 Moses v R [2020] NZCA 296.24 At [46].25 R v Findlay, above n 20, at [101].26 At [102].why his blameless past should not receive full recognition. We would allow25 per cent for this consideration.[57] We would in addition preserve in place the eight percent allowance given bythe Judge to reflect the fact that the appellant has been imprisoned overseas incircumstances where, unlike other cases involving Australian citizens, he cannot bevisited by relatives, as a result of the travel restrictions in place during the COVID-19pandemic. There is no reason to disturb the 25 per cent discount for the guilty plea.27That would give the appellant discounts totalling 58 per cent.[58] We have considered whether, as Mr Eaton contended, there should also bea discrete 10 per cent discount to reflect the fact that the appellant returned fromVictoria to face the charge as well as an increased allowance for remorse, of 15per cent. This would result in discounts of a further 25 per cent, giving a total of 83per cent. We are not prepared to accede to this submission, although we do acceptthere should be some express allowance to recognise the appellant's return to NewZealand. In our view, it is more appropriate to recognise this consideration byincreasing the Judge's allowance for remorse from 10 to 15 per cent, recognising thatit includes an element which reflects the return from Australia. Even with thisapproach, the appellant still receives a very generous discount totalling 73 per cent.[59] We are satisfied that, looked at in the round, the resulting sentenceof 15 months' imprisonment reflects sufficient allowance for personal mitigatingconsiderations. We accept Mr Eaton's submission that for a man with a blameless pastimprisonment away from his home and family is particularly hard, but a lessersentence would risk failing to recognise the seriousness of the offence and the need tohold the appellant accountable for his conduct.[60] The sentence imposed by the High Court was such that the Judge did not needto consider the possibility of sentencing the appellant to home detention. Mr Eatonsubmitted that if we reduced the sentence so as to bring it into the category ofa short-term sentence of imprisonment we should grant leave to apply for home27 In accordance with Moses we apply this discount as a percentage of the starting point. SeeMoses v R, above n 23, at [46].detention. However, we are satisfied that imprisonment remains appropriate havingregard to the purposes of sentencing set out in s 7(1)(a), (b), (e) and (f) ofthe Sentencing Act 2002.Result[61] The appeal is allowed.[62] The sentence of two years and one month's imprisonment imposed inthe High Court is quashed and a sentence of one year and three months' imprisonmentis substituted.Solicitors:Chris Morrall, Christchurch for AppellantCrown Law Office, Wellington for Respondent