R v LYON [2018] NZHC 1434

R v LYON [2018] NZHC 1434 [15 June 2018]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-Ā-TARA ROHECRI-2017-091-2272[2018] NZHC 1434THE QUEENvNATHAN JAMES LYONHearing: 15 June 2018Counsel: D La Hood and R H De Silva for CrownC W J Stevenson for DefendantSentencing: 15 June 2018SENTENCING NOTES OF THOMAS JIntroduction[1] Mr Lyon, you appear for sentence having pleaded guilty following a sentenceindication to one charge of reckless driving causing death,1 one charge of recklessdriving 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 yourpersonal circumstances, the pre-sentence report and victim impact statements. I1 Land Transport Act 1998, s 36AA(1)(a); maximum penalty 10 years' imprisonment or $20,000fine, and mandatory minimum 12 months' disqualification.2 Section 36(1)(a); maximum penalty 5 years' imprisonment or $20,000 fine, and mandatoryminimum 12 months' disqualification.3 Section 32(1)(c); maximum penalty two years' imprisonment or $6,000 fine, and mandatoryminimum 12 months' disqualification.address the starting point for sentence before making adjustments for your personalcircumstances, engagement with restorative justice and guilty plea. Following that Iwill deal with additional sentencing matters.The offending[3] At approximately 10.20 am on 19 March 2017, you were driving a Mazda RX7twin turbo car north on Wellington Road, Paekākāriki. Your 10 year old stepdaughterwas in the passenger seat. You lost control of the car, which mounted the footpath onthe opposite side of the road and hit the victim, Carolyn Boyd, who was out joggingthat morning. She suffered multiple serious injuries as a result of the crash, fromwhich she did not recover. She died at the scene. Your stepdaughter sustained a gashto her head requiring stitches.[4] Wellington Road travels for about 110 metres north of the intersection withOcean Road before taking a slight left bend with an uphill gradient to the intersectionwith Tarawa Street. This part of Wellington Road is a residential area with a footpathon the eastern side leading to a primary school.[5] That stretch of Wellington Road was resealed on 15 March 2017 although theroad had not been swept of loose gravel. As a result, there were no road markings onthis part of the road. The patch of loose gravel began about 90 metres before the slightleft bend.[6] The area is in a 50 kilometre per hour zone. By the day of the accident, thetemporary 30 kilometre per hour signage in force during resealing had been removed.The Traffic Management Plan for the resealing works required that the speedrestriction of 30 kilometres per hour remain in place until the road was swept of loosechip. 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 theaccident. You knew there was loose gravel on the road. You were driving at highspeed.[8] I concluded from the evidence at the disputed fact hearing that you deliberatelyallowed your car to lose traction, including "fishtailing" prior to the bend in WellingtonRoad.4 This caused you to completely lose control of the car, resulting in it mountingthe 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 relatedoffending, for which you have received fines and community-based sentences. Youhave 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 at14 years old. It is fair to infer that these events during an important period of youradolescence might well have contributed to what you acknowledge is your lack ofrespect for authority and your arrogance.[12] Unlike most offenders in the criminal justice system, you have no realidentified rehabilitative needs. There is no need to protect society from you except asfar as your driving is concerned. You are obviously a good and loving partner, fatherand 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 andwilling to engage with restorative justice processes. You said to the writer you couldnever be sorry enough for the family of Ms Boyd, you will never forget what you havedone and you have now learnt what is important in life. You said you wanted to writea letter to the family but the police told you not to make contact. You also said youare 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 responsibilityfor your son and stepdaughter, of whom you are immensely proud. You have been4 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 agoand were, at the time of the report, in the process of accessing additional counsellinghelp through your doctor. The report concluded you present a low risk of reoffendingand a moderate risk of harm. It recommended a sentence of home detention withpost-detention conditions and community work.Victim impact statements[15] I received victim impact statements from Ms Boyd's family before the sentenceindication 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 ofMs Boyd's death. Ms Boyd's husband says they have been together for the last35 years. His wife was the heart and soul of their family, as well as the extendedfamily and many close friends. He spoke of the major disruption to the family bothfinancially and emotionally as a result of what happened.[17] One of Ms Boyd's daughters spoke of your utterly reckless attitude and totaldisregard for the safety of other human beings, leading to one horrific moment ofstupidity which changed her and her family's lives forever. She said you took awaythe most important person in her life. Your actions caused her to experience severeemotional trauma and shock and she says the incident will continue to haunt her forthe rest of her life.[18] The youngest of Ms Boyd's children asked how it can be that a healthy middleaged woman quietly minding her business on a Sunday morning run, in a safe andpeaceful township, can be so alive one minute and dead the next. He says the answerlies 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 whichwill have long-standing psychological repercussions.[19] It can fairly be said these statements reveal that the immediate impact on thevictim's family was one of utter devastation. The purpose of sentencing is not toreflect the value of Ms Boyd's life. It cannot do that. Any sentence imposed willnever be able to reflect adequately what the family has lost. That sentiment is reflectedin the updated victim impact statement which was read this morning, which is morefuture-focused. The family jointly reiterate the extent of their loss and the impact onthe community. They say Ms Boyd feared cars and was always pointing out risks toothers. She would be angry she was taken so soon and that she was hit by a car, butwould also want everyone to make positive contributions to prevent this event fromhappening again. The family acknowledge your remorse and commitment not to drivein the future. They express deep concern that the justice system does not preventsomeone such as you from continuing to break the law and suggest developingintervention strategies to prevent this kind of harm and to change driving culture. Theypledge 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 yoursentence indication. I determined a starting point of four years' imprisonment wasappropriate for your offending on the basis of other sentencing decisions. The startingpoint of four years' imprisonment stands. I applied an uplift for prior offending ofthree months. That also stands, and brings the starting point up to 51 months.Personal mitigating circumstancesFamily circumstances[22] Your partner is the family's main income earner. She has been working as aguide five days a week on Kapiti Island, Wednesday to Sunday. That work is seasonalbut requires her to stay overnight on the Island for the duration of the five days. Youare the primary care giver for your two children, currently aged 11 and 14, and whileshe is away, you are the sole caregiver. If you are imprisoned, your partner will beunable to take up her employment if she is re-employed again in September, and Ithink the indications are that she will be, as she will have to care for the children. Yourconcern about that is emphasised in a letter written to the Court. You outline theconsiderable effort and training your partner has put into obtaining that work, and thefact it is a dream job for her which will open a lot of opportunities for careerprogression. Given she has struggled to find work and had previously suffered froma period of depression when your business failed, you fear that without this job hermental 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 ofoffending, they are nevertheless matters which a sentencing judge will take intoaccount but weighed appropriately in all the circumstances of the case.5 Losing aprimary caregiver is a consideration of some significance, as is causing the loss of apartner'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 familyunder 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 discountof seven months is warranted to reflect the fact you are the primary care giver, yourpartner will lose the prospect of re-employment, and the family will then lose theirmain 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 conferencetogether. The outcome was a remarkable commitment to change yourself personallyand to help others to change so as to prevent this type of harm happening again. Youbegan by acknowledging Ms Boyd and mentioned you had spent some time at thecrash site that morning talking to her, asking how you could say sorry to a family youhad destroyed. You spoke candidly about how you initially told everyone it was anaccident but you acknowledged it was not, that you were showing off and had nothought for anyone else that day. You wanted the family to know you thought of5 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 794where 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 andto provide encouragement for rehabilitation; and Zheng v R[2015] NZCA 451 where a 42 per centdiscount 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 aboutyour life, your decisions on the day, and your role in prolonging the hearing of thecase. You said the police did not contact you for some time and you were advised notto contact the family. You explained you continued with the disputed fact hearingbecause you were afraid of being labelled as something you did not think you werebut you now apologise for that. You said in the intervening time you had undertakena great deal of self-reflection and become more self-aware.[25] The restorative justice session was equally remarkable for the understandingand empathy the family of Ms Boyd showed you and their offer for you to join themin their campaign to make meaningful change in driving attitudes. The familyexplained 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 theirmother, wife, and sister had died. They outlined the positive contributions they havemade to the community in Ms Boyd's name, including a garden at the crash site, andorganising a running race to raise funds (a portion of which went to your daughter'sschool). They expressed gratitude for your attendance, for your remorse, and that youroffending had an impact on you. They asked if you were willing to share your storywith a wider audience, perhaps by making a film, in the hope of changing driverattitudes. You replied "definitely". You promised never to drive again.[26] One member of the family welcomed hearing that you had spent time at thecrash site and the family is happy for you to go there. Others intimated how therestorative process had helped them: they were relieved of their earlier anger andthankful to see your sincere remorse. They concluded by saying they believed youcould change and wanted to help you do so. You were humbled by their love andempathy.[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 havemade in your life. You reiterate what you said to the family, saying restorative justicewas the hardest thing you have done but facing up to the harm you caused has openedyour eyes. You accept you are a recidivist speeder and say that, while you did notmean to hurt anyone, you have, and your behaviour has to stop. You were deeplyashamed when you had to admit to Ms Boyd's family that you would not have changedhad it not been for the accident. You want to do something positive for society, to stopothers making your mistakes. You say you have struggled emotionally, being unableto sleep properly since the day of the crash. You are concerned for the pain you havecaused your family and for their suffering if you are sent to prison. You plead for thehurt to stop.[28] The case demonstrates the power of restorative justice to bring aboutunderstanding and empathy on the part of victims, and an understanding andcommitment to change on the part of the offender. The turnaround in the family'semotional state between the earlier and later victim impact statements is testament tothe immense value the process holds. It requires an offender as honest and candid asyou were in meeting them, and victims as courageous and committed as they were inmeeting you.[29] I imagine attending the conference and facing up to Ms Boyd's family was thefirst time you really publicly and honestly confronted the truth, perhaps even toyourself. That meeting and what I hope will continue to flow from it, might well takemore courage than whatever sentence I impose today.[30] The Crown submits a discount of five to 10 per cent ought to be applied torecognise your remorse. Mr Stevenson considers a more significant discount of 15 to20 percent is warranted. I have canvassed cases where similar restorative justice wasundertaken and similar levels of genuine remorse shown.7 In light of those cases, Iconsider a discount of 20 per cent is appropriate to recognise the turnaround you haveundertaken, the responsibility and insight you have demonstrated, the truly exceptionalrestorative justice process you and the family undertook, and the promise to contributepositively to the wider community by joining forces with the family to tell your partof 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 appliedfor remorse and restorative justice on top of a 25 per cent discount for guilty pleas; McCullough vPolice [2013] NZHC 279 where a 20 per cent discount was applied for remorse, restorative justiceand youth; and R v Maposua C131/04, 3 September 2004 (CA) where a 50 per cent global discountwas 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 yourguilty plea. The Crown submits this should be reduced to 10 per cent due to yourdecision to dispute a fact of the offending, which incurred extra time and expense, andrequired the calling of multiple witnesses.8 As Mr Stevenson points out, the positionis slightly more nuanced than that. The disputed fact hearing included the relevantfactor of speed being resolved in your favour, although it was still excessive and wellover the speed limit. He suggests only a modest reduction to the guilty plea discountis warranted.[32] Guilty pleas are to be assessed with regard to all the circumstances in whichthey arise.9 The value of a guilty plea is not related solely to time and expense butalso to the social utility for the victims. Your guilty plea was of value to Ms Boyd'sfamily, who did not have to endure the extended trauma of a full trial and did not haveto contend with your denying all liability throughout the process. It was entered at thefirst reasonable opportunity, following an amendment to the charge. The additionaldelay caused by the disputed fact hearing does mean the full 25 per cent guilty pleadiscount should be reduced but I am not persuaded it ought to have as great an impactas 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 imposinghome detention. It is therefore the minimum sentence available to reflect the purposesand principles of sentencing, including deterrence, denunciation, promotion ofresponsibility and rehabilitation. I note you will be eligible for parole after servingone third of that sentence. If you maintain your level of commitment to takingresponsibility and pursuing rehabilitation, your prospects of early parole can beconsidered 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 inthe sentence indication. I indicated disqualification from driving for four years.Nothing has arisen in the intervening time which would warrant any amendment. Youare therefore disqualified from driving for four years, to commence when you arereleased from prison. You will understand that any breach of this disqualification willhave extremely serious consequences for you.Conclusion[35] Mr Lyon, on the charge of reckless driving causing death you are sentenced to28 months' imprisonment. On the remaining charges, I sentence you to eight months'imprisonment to be served concurrently. You are disqualified from holding orobtaining a driver's licence for four years, starting immediately on your release fromprison.Thomas JSolicitors:Crown Solicitor's Office, Wellington