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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Elmers v The Queen

Details

AGLC: Elmers v The Queen [2014] NZHC 734
Case: [2014] NZHC 734
Decision Date: 10 April 2014

CaseChat Overview and Summary

Jesse Raymond Ellmers appeals against the decision of District Court Judge G A Rea who imposed a sentence of two years and three months imprisonment on him, together with two co-defendants, on the charge of causing death, as well as 18 months imprisonment on the charge of causing injury, with all terms of imprisonment being concurrent. The appellant argues that the sentence was manifestly excessive for his role played. The key legal issue in this case is whether the appellant's sentence was manifestly excessive and if so, whether the District Court erred in its assessment of the appellant's culpability. The High Court found that the difference in the two versions of the summary of facts was not material to the culpability of the appellant. The Court also found that the appellant's involvement in instigating the race and his presence in the front passenger seat of the Ford for the duration of the race warranted his culpability to be assessed at the same level as the driver of the Holden. The appeal against sentence and disqualification is dismissed.

This case highlights the importance of assessing culpability accurately in sentencing, particularly in cases involving dangerous driving and racing causing death. The Court's decision reinforces the principle that the appellant's role in the planning and execution of the race, as well as his presence in the front passenger seat of the Ford during the race, warranted his culpability to be assessed at the same level as the driver of the Holden. This case also serves as a reminder of the need for individuals to take responsibility for their actions and the consequences of those actions.

Orders