Elmers v The Queen

[2014] NZHC 734

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI-2013-441-000040 [2014] NZHC 734

BETWEEN

JESSE RAYMOND ELLMERS

Appellant

AND

THE QUEEN Respondent

Hearing:	2 April 2014
Counsel:	P Jensen for the Appellant C R Walker for the Respondent
Judgment:	10 April 2014

JUDGMENT OF BROWN J

This judgment was delivered by me on 10 April 2014 at 11 am, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors:      Crown Solicitor, Napier

P Jensen, Napier

ELLMERS v R [2014] NZHC 734 [10 April 2014]

Introduction

[1]      The appellant appeals against the decision of District Court Judge G A Rea in the District Court at Napier on 15 November 2013 imposing a sentence of two years and three months imprisonment.

Background

[2]      The appellant pleaded guilty to charges of racing causing death (s 36A(3) of the Land Transport Act 1998) and racing causing injury (s 36A(2) of the Land Transport Act 1998).

[3]      On 15 November 2013 he was sentenced, together with two co-defendants, to a term of two years and three months imprisonment on the charge of causing death and 18 months imprisonment on the charge of causing injury.   All terms of imprisonment were concurrent.  He was also disqualified from holding or obtaining a driver’s licence for a period of four years.

[4]      The grounds of appeal specified in the notice of appeal dated 12 December

2013 state:

The sentence of two years three months imprisonment was manifestly excessive for the role played by the appellant.

[5]      In order to comprehend the role played by the appellant I recite the facts recorded in the sentencing notes of Judge Rea:

[4]       The facts are these.   On the evening of Tuesday 19 February this year, Mr Lawrence, Mr O’Sullivan and Mr Ellmers, together with one other man who is not before the Court today, were involved in a vehicle race along Awatoto Road in Napier.  At the end of the race, the vehicle being driven by Mr Lawrence, lost control and crashed into a tree resulting in the death of

18 year old Ms Schafer.  She was seated in the rear of that vehicle and the front seat passenger, 15 year old Adam Crooks, was badly injured.  At the

time of these events, Brandon Lawrence was only 18 years of age, Adam

O’Sullivan was 17 and Jesse Ellmers was 18.

[5]       Brandon Lawrence and Jesse Ellmers were together at Mr Ellmers’ home in Bayview.  There was a decision made to have a Holden versus Ford race between a vehicle belonging to Matthew O’Sullivan, the person who is not before the Court today, who was the driver of the Ford Falcon, and Brandon Lawrence, the driver of the Holden Commodore.  It goes without saying that both of these vehicles are extremely powerful and it is the power

of the vehicles mixed with the inexperience and bad decision making of those involved that has led to this preventable tragedy that we are all in Court about today.

[6]       I  accept  that  Brandon  Lawrence  was  reluctant  to  be  involved initially.   There may have been peer pressure on him and perhaps others involved in this, but I accept what the Crown Prosecutor has said, that many of these events simply do not occur in the absence of such peer pressure and it  can  never  be  an  excuse  that  somebody  else  has  persuaded  you  into behaving in the way that has happened in this case.   While I accept that Mr Lawrence has had difficulties, and I will deal with those shortly, I am quite satisfied that not only were all willingly involved in this, but they all at the time thought it was a jolly good idea.

[7]       Mr Ellmers has telephoned Adam O’Sullivan to advise him about what is happening.   Mr Malik has put it to me on the basis that Adam O’Sullivan was most reluctant to get involved.   Well, he was prepared to travel to Bayview and then go with the others to find a suitable location for this to occur and to be involved in the planning and be part of it.  I simply do not accept that his culpability in that regard is any less than anyone else’s. There  were  discussions  held  as  to  where  the  race  should  be.    Various locations were suggested.  I do accept at that stage Adam O’Sullivan was not present but he did take part in those discussions when he arrived.  He left to get petrol for a vehicle.   He himself was driving at the time a powerful Nissan Skyline vehicle.  When he returned, the others had already left.  By text messaging they were able to keep in touch and they descended on Waitangi  Road  in  Awatoto.    There  were  others  present,  including  the deceased and the young man who was injured.

[8]       There was some discussion when they got out to Awatoto as to which stretch of road would be most suitable for the race that they wished to have to prove which of the vehicles was superior in speed and racing ability. Originally the idea was to race down Waitangi Road.   However, for some reason a decision was made to use Awatoto Road as a preference.  The finish line was to be at the end of Awatoto Road at the intersection with Meeanee Road.

[9]       Brandon Lawrence and Matthew O’Sullivan lined up their vehicles at the beginning of Awatoto Road, that is the golf course end of Awatoto Road.  The Ford vehicle was on the left-hand side, it was on the correct side of the road and the Holden, being driven by Mr Lawrence, was on the right- hand side of the road in other words, it was in its wrong lane, it was in the lane that vehicles travelling towards it would rightfully be in.   The young man who was injured, Adam Crooks, was the front seat passenger in the Holden vehicle and the deceased, Maree Schafer, was seated in the back behind Adam Crooks.   It appears that they chose their seating spots by a game of Paper, Scissors and Rock with the winner being able to sit in the front.

[10]     At the time, Brandon Lawrence only had a Class 1 driver’s licence. He was not fully licensed and he should not have had passengers in his car. He was driving in breach of his licence conditions.  Jesse Ellmers was the front  seat  passenger  in  the  Ford  vehicle  being  driven  by  Matthew O’Sullivan.  Adam O’Sullivan positioned his vehicle behind the two racing cars.  From the start, Awatoto Road veers right slightly before veering left

behind a blind bend at the intersection with Eriksen Road.   There is also another road, McLeod Road, which runs off Awatoto Road to the left about

300 metres past Eriksen Road.  The speed limit along that stretch of roading is 100 kilometres an hour.  It is described as a rural arterial road and I will

say something more about that in a moment.  The police have measured the distance between Waitangi Road and Meeanee Road as 2.27 kilometres.

[11]      The Meeanee Road intersection where this race was supposed to end, is controlled by a stop sign on Awatoto Road.   The road opposite Awatoto Road is Sandy Road which angles left from the intersection with Meeanee Road.   That is also a rural arterial road with a speed limit of

100 kilometres  an  hour.    The  race  when  it  started,  took  place  at  about

11.30 pm.   It was dark.   There is no street lighting along the length of

Awatoto Rod other than at the finish point where the road intersects at the Meeanee end.  The weather was fine and the road surface was relatively dry for that time of night.

[12]      There was no discussion about safety of other road users.  That to me is extraordinary in the circumstances, bearing in mind the whole idea of the race was for these two cars to take up the entire width of the road  It is perhaps fortunate that there were no other cars, motorcycles or bicycles travelling in the opposite direction towards the sea along Awatoto Road.  It is well known in this community that that road is a link road between Taradale and the suburbs at that end of Napier and the sea, especially for people going to Hastings and Havelock North.  It is a busy road and it defies belief that young men such as you could have thought that the use of the entire width of the road to race your cars could be accepted in any way.

[13]     When the setup for this race is looked at and the way the cars were positioned and how it was organised, any submissions from any one of you that you were not wholly involved in this, simply fall away.  The stupidity of what you were doing was evident to anybody who could look at it. The cars, positioned as they were, to take off at speed along that road without any concern or consideration for anybody else. You simply wanted a race.

[14]     Initially the race start was supposed to be signalled by Ms Schafer. However, there was a false start and eventually the race was started by Adam O’Sullivan  sounding  his  horn.    The  two  powerful  vehicles  then accelerated away.  According to the summary I have, the Ford, being drive by Matthew O’Sullivan, was slightly ahead of the Holden for most of the race.  The Holden was on the wrong side of the road for most of the race.  It is said that both vehicles reached speeds of at least 180 kilometres an hour. Speeds of that order are quite mind boggling in the context of those circumstances.  Adam O’Sullivan followed after the two vehicles in order to observe the race.  It is accepted his vehicle was not involved in the race and that he was well behind by the time the vehicle crashed.  However, I simply do not accept the submissions that have been put to me that he somehow cruised  along  behind  as  a  disinterested  spectator  within  the  speed  limit simply to observe what went on.   He was part and parcel of finding out which of these two vehicles was the quickest over this stretch of public road, using both sides of it to determine that issue.

[15]      As   the   racing   vehicles   approached   Meeanee   Road,   Matthew O’Sullivan slowed his vehicle down in order to stop before the intersection. Brandon Lawrence, however, did not slow down and by the time he reached

the intersection it was too late to do so and he went straight through it.  He braked hard and attempted to negotiate his vehicle into Sandy Road but at that speed and with his inexperience and inability, he lost control.   The vehicle slid sideways for a distance of 120 metres before impacting on the driver’s side into a large tree off the left-hand side of the road.

[16]     Emergency services were called by an occupant in one of the other vehicles.   Tragically, Maree Schafer died at the scene from serious head injuries she received as a result of the crash. Adam Crooks sustained serious injuries, including a fracture to his neck, a broken collarbone and bruising to his  right  lung.    Brandon  Lawrence  himself  was  injured.    He  received fractures to his neck, concussion and fractured ribs.

The decision under appeal

[6]      The Judge approached the matter on the basis that Mr Ellmers was equally culpable with Mr Lawrence (the driver of the Holden) and Mr Adam O’Sullivan (the race starter). With reference to Mr Ellmers the Judge said:

[26]     As far as Mr Ellmers is concerned, he was involved in the planning right from the start.  He was present in one of the vehicles and he was an integral part of what occurred. As I have said, there were various parts to be played by various people.  It is common in hearing submissions in cases like this, and we have heard them today, where each of the lawyers endeavour to put some distance between their client and true culpability around all of the events.   While I accept that that is their role, I conclude without any reservations at all, that they are all equally responsible for what has occurred here, they were all part of it, they all had a different role to play and they all had different pressures on them.  In the end, it did not matter.  None of them stepped forward to stop what was going on, all of them at the start of it in my view, were enthusiastic about what they were doing.

[7]      On the issue of starting point and personal mitigating factors the Judge said:

[31]      Counsel have addressed me as to the appropriate starting point.  The Crown has said that the starting point must be at least four years.  Mr Snell and Mr Malik say three and a half and Mr Quilliam did not address that issue.  In my view, taking into account past decisions before the amendment to the legislation, taking into account that a starting point of five years was accepted in the Gacitua v R case where the driving may have been slightly worse than here, I consider that the appropriate starting point is four years’ imprisonment.  I think it is necessary as well to say that the Courts recognise that in some cases, where the immaturity of youth and adolescence is a mitigating factor, that has to be put aside on some occasions to impose a sentence to reflect the need to protect the public from avoidable death and injury on the roads.  It is also required to impose appropriate sentences to provide proper respect for the sanctity of human life.

[32]     I consider that the starting point is four years’ imprisonment and as far as each of the defendants is concerned, that is over all of the charges that they face.  I incorporate into that, the attempt to defeat the course of justice

that Mr O’Sullivan faces because of his slightly lesser involvement in the major offending than the others, but that brings him up to parity in my view. Overall, for the various mitigating factors that I have identified, namely age, remorse, previous good conduct and assistance to the police, I am prepared to discount that sentence of four years’ imprisonment by a further 25 percent. That takes it down to three years’ imprisonment.

[8]      The Judge then allowed the full discount of 25 per cent for the guilty pleas which resulted in a sentence of two years and three months imprisonment.

Approach on appeal

[9]      Section 250 of the Criminal Procedure Act 2011, states that the Court must allow the appeal if satisfied that:

(a)       for  any  reason,  there  is  an  error  in  the  sentence  imposed  on conviction; and

(b)      a different sentence should be imposed. In any other case, the Court must dismiss the appeal.1

[10]     Section 250 confirms the approach taken by the courts under the former

Summary Proceedings Act 1957.  This approach is set out in Yorston v Police where the Court said:2

(a)       There  must  be  an  error  vitiating  the  lower  Court’s  original sentencing discretion: the appeal must proceed on an “error principle.”

(b)       To establish an error in sentencing it must be shown that the Judge in the lower Court made an error whether intrinsically or as a result of additional material submitted to the appeal Court.

(c)       It is only if an error of that character is involved that the appeal

Court should re-exercise the sentencing discretion.

[11]     The High Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles.

1      Criminal Procedure Act 2011, s 250(3).

2      Yorston v Police HC Auckland CRI-2010-404-164, 14 September 2010 at [13]-[15].

The legislation

[12]     In New Zealand there have been no prosecutions before under s 36A of the Land Transport Act 1998 where the racing has resulted in a death.  Traditionally such conduct has been charged as motor manslaughter or as dangerous driving causing death.  In R v Moana3 the offender was charged with operating a motor vehicle in a race under s 36A of the Act but in relation to the death of the individual the offender was charged under s 36AA(1)(b) of the Act which is dangerous driving causing

death.  In its report, the Law and Order Committee when enacting s 36A noted (page

5):

The  bill’s  primary  aim  is  to  provide  the  Police  with  an  additional enforcement tool to address the problem of unauthorised street and drag racing and other related stunts, for which current Police powers appear to be ineffective and existing penalties inadequate”.

[13]     The principal purpose of the Bill was to increase the ability of the Police to deal with organised unauthorised street racing events by giving police officers the power to confiscate vehicles which are used in such activities.   Street racing that resulted in death was already criminalised by the manslaughter provisions in the Crimes  Act  and  the  dangerous  driving  causing  death  provisions  in  the  Land Transport Act.

[14]     In Reid Judge Abbot noted:4

As was also noted both in the Law and Order Committee report and by a number of the speakers when the Bill was debated, one of the problems which arose during the legislative process was that the offence-creating provisions of the Bill appeared to do no more than recriminalise conduct which was already criminal”.

[15]     Racing constitutes dangerous driving and is an aggravating factor according to the Skerrett5  and Cooksley6  factors when setting starting points for dangerous driving causing death or motor manslaughter.   Because there has not been a sentencing under s 36A(3)(a) there is no law on the application of s 36A in the

context of racing causing death.

3      R v Moana [2008] DCR 326 (HC).

4      R v Reid (2005) 23 CRNZ 238 (DC) at [67]-[70].

5      R v Skerrett CA236/86, 9 December 1986.

6      R v Cooksley [2003] 3 All ER 40 (CA).

[16]     It seems therefore appropriate to apply the Court of Appeal’s recent decision in Gacitua v R7 in relation to dangerous driving causing death given that dangerous driving causing death and racing causing death have the same maximum penalties and racing which results in death has previously been charged as dangerous driving causing death.  None of the other applicable cases involving racing, R v Chad and Elliott,8 R v Hodgson,9 R v Moana,10 R v Luke11 or R v Copping12 have been charged under s 36A.   However passengers in dangerous driving causing death have been previously charged.   Ashton v Police discusses liability for aiding and abetting in these sort of cases:13

A car owner who sits without protesting, alongside a driver who persistently drives dangerously, is impliedly encouraging that driver to continue to do so. He therefore may properly be convicted of aiding the driver in driving in a manner dangerous to the public or to any person.

Submissions of counsel

[17]     Mr Jensen submitted that the facts on which the sentencing was based were incorrectly assessed due to an amended summary of facts that did not truly reflect the factual position.  He submitted that the original police summary of facts initially circulated stated:

As both vehicles approached the Meeanee Road intersection, the Defendant Matthew O’Sullivan slowed his vehicle down, however the Defendant Lawrence who was not aware of the approaching intersection, saw an opportunity to pass the Ford and accelerated to get his vehicle in front.

[18]     However the summary of facts ultimately prepared by the Crown for the purposes of sentencing described the incident somewhat differently as follows:

As the two racing vehicles approached the Meeanee Road intersection Matthew O’Sullivan slowed his vehicle down in order to stop before the intersection.   However Brandon Lawrence did not slow down and by the time he realised he was approaching the intersection it was too late to stop and he went through it.

7      Gacitua v R [2013] NZCA 234.

8      R v Chad and Elliott [2014] NZHC 214.

9      R v Hodgson HC Wellington CRI-2006-085-5409, 23 October 2007.

10     R v Moana, above n 3.

11     R v Luke HC Rotorua CRI-2007-070-3532, 19 October 2007.

12     R v Copping HC Tauranga CRI-2007-270-104, 26 September 2008.

13     Ashton v Police [1964] NZLR 4292 (SC) at 431.

[19]     The submission for the appellant was that the change to that portion of the summary was important in assessing individual culpability.   While the dangers of operating a motor vehicle in a race were accepted, particularly on a road such as the one used in the present case, it was submitted that the other participants could not have foreseen that Mr Lawrence would deliberately pull out to pass the slowing Ford as the intersection approached and that he would lose control of the vehicle as he attempted to round the impending curve in the road.

[20]     For the Crown Mr Walker acknowledged that it was not clear whether or not Mr Lawrence was accelerating at the final stage of the race although the point was made that, as it was a race which Mr Lawrence was trying to win, logic suggested that he was already going as fast as he could and that, when the Ford slowed down, Mr Lawrence simply carried on past.  Mr Walker suggested that the appeal should proceed on the basis that Mr Lawrence did accelerate (which is the position the appellant considers is most favourable to him) but submitted that that made no difference to the outcome.

[21]     Mr  Walker  submitted  that  whether  Mr  Lawrence  accelerated  or  simply continued at speed when the other vehicle slowed down was immaterial and of no consequence to the assessment of the respective culpabilities of the participants. What occurred is that these two vehicles raced at extreme speeds in the dark approaching an intersection.  While plainly it was not the intention that they should go through the intersection, the simply reality is that one driver managed to stop in time and the other misjudged his ability to stop before the intersection.

[22]     Mr Jensen then submitted that the starting point of four years imprisonment, as compared to the five year starting point in Gacitua v R was too high and that the Judge was in error when setting the level of culpability at the beginning of the race in the manner stated in the judgment at [26].  He argued that a starting point of three years should have been the starting point for Mr Ellmers.

[23]     Mr Walker submitted that the Judge was entirely right to treat Mr Ellmers as equally  culpable  with  Mr  Lawrence.    He  further  argued  that  in  the  case  of Mr Ellmers there was an additional important factor relevant to his culpability:

15.      Moreoever,  in  relation  to  Jesse  Ellmers  there  is  an  additional important factor relevant to his level of culpability.  The race was his idea together  with  Matthew  O’Sullivan  and  he  and  O’Sullivan  pressured Lawrence into participating   Lawrence describes them “hassling” him and “trying  to  force  [him]  into  it”  for  quite  some  time  (pages  2-3  of  his statement) and “calling [him] names” (page 12).   Further, Ellmers then telephoned  Adam  O’Sullivan  to  get  him  involved.    Accordingly  it  is submitted that Ellmers was a prime mover in this event taking place and it is inappropriate for him to attempt to heap responsibility onto the very person he pressured into taking part.

Decision

[24]     On the question of whether the difference in the two versions of the summary of facts was material I agree with the Crown’s submission.   In my view whether Mr Lawrence  accelerated  or simply failed  to  slow  down has  no  bearing on  the culpability of Mr Ellmers in this enterprise.

[25]    I also agree with the Crown submission that the nature of Mr Ellmers involvement makes it entirely appropriate that his culpability is assessed as being of the same level as Mr Lawrence.   The fact that he was not a driver of one of the racing vehicles does not warrant his culpability being assessed at a different level, particularly given his involvement in instigating the race and his presence in the front passenger seat of the Ford for the duration of the race.

[26]     In my view a starting point of four years was an appropriate starting point for Mr Ellmers and  it follows that there was  no error on the part of the Judge in proceeding on that basis.

[27]     The appeal against sentence and disqualification is dismissed.

Brown J