O'Sullivan v R - [2015] NZCA 147

IN THE COURT OF APPEAL OF NEW ZEALAND

CA569/2014
[2015] NZCA 147

BETWEEN	MATTHEW KEVIN O’SULLIVAN Appellant
AND	THE QUEEN Respondent

Hearing:	22 April 2015
Court:	White, Keane and Wylie JJ
Counsel:	S Jefferson for Appellant K J Cooper for Respondent
Judgment:	5 May 2015 at 2.00 pm

JUDGMENT OF THE COURT

The appeal against sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Wylie J)

Introduction

The appellant, Mr Matthew O’Sullivan, was found guilty at trial in the District Court at Napier of the following charges under the Land Transport Act 1988:
(a)racing causing injury, contrary to s 36A(1) and (2); and
(b)racing causing death, contrary to s 36A(1) and (3).
The appellant’s brother, Mr Adam O’Sullivan, is a co-offender. In this judgment, for the sake of clarity, we refer to them as Matthew and Adam.
On 19 September 2014, Judge Down sentenced Matthew to three years’ and six months’ imprisonment on these charges and on an additional charge of driving while disqualified.[1] Matthew had earlier entered a guilty plea to this additional charge. Matthew was also disqualified from driving for a period of four years.
[1]R v O’Sullivan DC Napier CRI-2013-202-1961, 19 September 2014.
Matthew appeals against the sentence of imprisonment imposed. Mr Jefferson on his behalf argued that the sentence is manifestly excessive. He submitted that Matthew should have been given the same discount, primarily for remorse but also for other factors, as his co-offenders received.
The Crown submitted that the end sentence is appropriate and within range.

Factual background

Matthew was 19 years old at time of the offending.
Approximately two weeks prior to the events the subject of the convictions, Matthew had been disqualified from driving for a period of six months. That disqualification had been imposed because the appellant had earlier been driving while suspended.
Matthew and his three co-offenders decided to hold a “Ford versus Holden” race. They discussed where the race would be held. Matthew agreed to participate. He was to drive his Ford Falcon. The other driver was to be a Mr Lawrence. He was to drive his Holden Commodore. There were two other persons involved. One was Matthew’s brother, Adam. He was to drive a further vehicle which was to follow the race and, in effect, marshal it. The other was a Mr Ellmers. He was a party to and instigated the arrangements.
On the night of the race, Matthew had Mr Ellmers with him as a passenger in his car. Mr Lawrence also had passengers in his car. A Mr Crooks was sitting in the front seat. A Ms Schafer was seated on the rear seat immediately behind Mr Crooks.
The race took place on a rural road near Napier. The designated speed limit on the road was 100 kilometres per hour. The road ended at an intersection which was controlled by a stop sign. The intersection was not, however, a T-intersection. Rather the road angled into another road. The finish of the race was to be…

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 O'Sullivan v R

Details

AGLC: O'Sullivan v R [2015] NZCA 147
Case: [2015] NZCA 147
Decision Date: 5 May 2015 at 2.00 pm

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard an appeal by Matthew Kevin O’Sullivan against his sentence for racing causing injury and racing causing death, as well as for driving while disqualified. Matthew's appeal was against the sentence of three years and six months' imprisonment imposed by Judge Down in the District Court at Napier. The appeal was dismissed by the Court of Appeal. Matthew's counsel argued that the sentence was manifestly excessive and that Matthew should have received the same discount for remorse and other factors as his co-offenders. The Crown argued that the sentence was appropriate and within range. The central issue before the court was whether the 12-month discount given to Matthew's co-offenders prior to the discount for their guilty pleas should have been applied to Matthew. The court noted that Matthew's offending was aggravated by his commission of the additional offence of driving while disqualified. The court also found that Matthew did not demonstrate sufficient remorse. The appeal was dismissed as the court found that the final sentence imposed was not inappropriate or manifestly excessive.

Orders