O'Sullivan v The Queen - [2014] NZHC 739

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI-2013-441-39 [2014] NZHC 739

BETWEEN
ADAM JAMES O'SULLIVAN

Appellant

AND

THE QUEEN Respondent

Hearing: 2 April 2014

Counsel:

N M Graham 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
N M Graham, Napier

O'SULLIVAN v R [2014] NZHC 739 [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), racing causing injury (s 36A(2) of the Land Transport Act 1998) and attempting to pervert the course of justice (s 117(e) of the Crimes Act
1961).

[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,
18 months imprisonment on the charge of causing injury and 12 months imprisonment on the charge of attempting to pervert the course of justice. 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…

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 The Queen

Details

AGLC: O'Sullivan v The Queen [2014] NZHC 739
Case: [2014] NZHC 739
Decision Date: 10 April 2014

CaseChat Overview and Summary

Adam James O'Sullivan appealed against his sentence of two years and three months imprisonment imposed by District Court Judge G A Rea for racing causing death, racing causing injury and attempting to pervert the course of justice. The District Court Judge held that O'Sullivan was equally culpable with the other two defendants, Brandon Lawrence and Jesse Ellmers, and imposed a sentence of two years and three months imprisonment, which was discounted by 25 per cent for guilty pleas. O'Sullivan argued that the starting point for his sentence was manifestly excessive and that his culpability should have been assessed individually. The High Court held that it would have been appropriate for the Judge to have discriminated between O'Sullivan on the one hand and the other two on the issue of starting point. However, the Court found that the sentence of two years three months was plainly not manifestly excessive and dismissed the appeal against sentence and disqualification. The Court held that an appropriate starting point for the charge under s 36A(3)(a) would have been three years, an uplift of six months for the charge of attempting to pervert the course of justice, a discount of five to six months for personal mitigating factors and a discount of a further 25 per cent for his guilty plea. The result would be a sentence marginally higher than that imposed by the District Court Judge. The appeal against sentence and disqualification is dismissed.

Orders