O'Sullivan v The Queen
[2014] NZHC 739
•10 April 2014
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 RespondentJudgment:
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 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.
[17] Two days after the incident, Adam O’Sullivan sent a text message to one of the females who had been a passenger in his vehicle, the non-racing vehicle. That message read as follows:
Don’t say about the horn to the pigs. Say you aren’t sure. The pigs have taken my car off me. They said they will want to talk with you at some stage.
[18] The arrogance of that text is evident simply by reading it out. He has accepted his responsibility for attempting to defeat the course of justice by endeavouring to have that witness give a false story to the police during the course of what was a sensitive and very important investigation. When interviewed by the police on 26 February this year, Adam O’Sullivan initially denied that he had started the race with a horn. Eventually in that interview he did admit that he had started the race but claimed it was a handheld horn rather than his car horn. I am told by Mr Quilliam that his reason for doing that was so that it would be the horn that would get crushed, rather than his car. It perhaps speaks volumes that at that time at least, it was all about him rather than about the serious consequences of what occurred two days before.
[19] In a second interview on 17 March, he maintained the same position but then after interview, he admitted that he had lied to the police and that he had started the race using his car horn to do so. He said at that point that he was trying to avoid having his car crushed.
The decision under appeal
[6] The Judge approached the matter on the basis that Mr O’Sullivan was equally culpable with Mr Ellmers (the passenger in the Ford) and Mr Lawrence (the driver of the Holden). With reference to Mr O’Sullivan the Judge said:
[25] As far as Mr O’Sullivan is concerned, I accept that he was later on in the scene and he was not in the cars, however, the only inference that can be drawn is that he was involved in the planning, he was present when the site was chosen, he saw what the setup was, he knew what the purpose was and
he was as equally involved as the other two. There is some concern that he does not quite accept the same degree of remorse that the other two clearly have shown. Whether that is correct or whether it is a misunderstanding he had with the Probation Officer, I do not know. He certainly did not do himself any favours with some of the comments that he made to the Probation Officer and equally unfortunately, three weeks after this incident, he committed the offence of operating a vehicle with sustained loss of traction which is boy racer type offending.
[7] Taking into account decisions prior to the amendment to the legislation and the fact that a starting point of five years was accepted in Gacitua v R,1 where the driving may have been slightly worse than the present case, the Judge considered that the appropriate starting point was four years imprisonment. He said:
[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.2
1 Gacitua v R [2013] NZCA 234.
2 Criminal Procedure Act 2011, s 250(3).
[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:3
(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.
Submissions of counsel
[12] Ms Graham submitted that the appellant’s culpability for the offending should have been assessed individually and that the starting point was manifestly excessive having regard to his part in the offending. She drew attention to the observation of Miller J in R v McNaughton4 where, having noted ss 8(a) and (9)(2)(d) of the Sentencing Act 2002, his Honour said:5
But a party’s culpability or degree of involvement in the offence may differ greatly from that of the principal. It all depends on the facts.
[13] She submitted that in previous decisions the overriding factor in the adoption of an identical starting point was the acceptance that there was no basis to differentiate between the driver of a car who caused a death and another driver. She had been unable to locate decisions dealing with sentencing for passengers in racing vehicles or for occupants of other vehicles who were present for the race.
[14] While the appellant accepted that he was involved in the planning of the race, albeit to a much lesser extent than the others, the nature of his participation was in
tooting his horn to signal the beginning of the race and in following the vehicles in
3 Yorston v Police HC Auckland CRI-2010-404-164, 14 September 2010 at [13]-[15].
4 R v McNaughton [2012] NZHC 815.
5 At [61].
order to observe the race. He was not involved in the race himself and was well behind the racing vehicles when the crash occurred. There was no evidence that he was breaking any road rules himself.
[15] On those facts it was contended that Mr O’Sullivan had to be less culpable than Mr Lawrence.
[16] Ms Graham further 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. She 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.
[17] 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.
[18] 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 parties 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.
[19] For the Crown Mr Walker acknowledged that it was not clear whether or not Lawrence was accelerating at the final stage of the race although the point was made that, as it was a race which Lawrence was trying to win, logic suggested that he was already going as fast as he could and that, when the Ford slowed down, Lawrence simply carried on past. Mr Walker suggested that the appeal should proceed on the
basis that 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.
[20] Whether 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.
Decision
[21] 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 O’Sullivan in this enterprise.
[22] The appellant’s complaint about the judgment of the District Court Judge was that the same starting point was applied to him as for Ellmers and Lawrence. I have concluded that it would have been appropriate for the Judge to have discriminated between Mr O’Sullivan on the one hand and the other two on the issue of starting point. I consider that having regard to the extent of his participation in this episode an appropriate starting point for the charge under s 36A(3)(a) would have been three years.
[23] To that starting point an uplift would need to be made for the charge of attempting to pervert the course of justice. That was in effect what the District Court Judge did when explaining that this additional charge brought the appellant up to parity with the other two accused: refer [7] above.
[24] Ms Marshall submitted that the attempt to pervert the course of justice in this case was at the minor end of the scale. I do not agree. This is a serious charge and the conduct was sustained. Mr O’Sullivan lied to the police on several occasions about using the horn to start the race as well as asking a friend not to tell the police
what had happened. It was a month before he confessed to the truth. I consider that at least a six month uplift on the three year starting point would be warranted in the circumstances.
[25] However just as the Judge treated these three accused on the same footing on the issue of the starting point, similarly the Judge treated all three accused on the same basis with reference to the discounts which he allowed for remorse and guilty pleas. On this issue as well I consider that the position of Mr O’Sullivan should have been differentiated.
[26] The judgment notes at [25] the Judge’s concern that Mr O’Sullivan did not quite accept the same degree of remorse which the other two accused had shown, a caveat also noted at [28]. Yet at [32] he gave a discount of 25 per cent for the combination of mitigating factors which comprised all of age, remorse, previous good conduct and assistance to the police.
[27] While I agree that Mr O’Sullivan should have some discount for his age and his previous good conduct, I do not consider that it has been shown that he was entitled to a discount for either remorse or assistance to the police.
[28] As far as remorse is concerned I consider that actions have a tendency to speak louder than words. It was apparent from the probation officer’s report that Mr O’Sullivan held the belief that illegally racing motor vehicles on the open road is acceptable behaviour. Although he had claimed that because of the crash he did not want further involvement in the boy racer scene, remarkably he was then subsequently convicted for the offence of operating a motor vehicle causing sustained loss of traction with reference to an incident that occurred less than three weeks after the accident giving rise to the present matter.
[29] The report also noted that Mr O’Sullivan could not see anything wrong in his sending the text to one of his passengers after the crash telling her not to tell the police about his sounding his horn to start the race. It is not surprising in my view that the probation officer did not consider that Mr O’Sullivan had full and proper insight into his offending or that his remorse was genuine. Mr O’Sullivan’s attempts
for the period of a month to suppress the true nature of his involvement did nothing to facilitate the prompt conclusion of the police investigation.
[30] In my view the discount for the category of personal mitigating circumstances in respect of Mr O’Sullivan should have been half of the discount which the Judge allowed and certainly no more than 15 per cent. In taking that approach I do not accept the submission for the appellant that disallowing a discount on these grounds involves double counting with the imposition of an uplift for the offence of attempting to pervert the course of justice.
[31] My assessment of an appropriate sentence for Mr O’Sullivan, therefore, would have been a starting point of 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.
[32] In those circumstances I do not consider that there is any vitiating error in the approach of the Judge. The sentence of two years three months was plainly not
manifestly excessive. The appeal against sentence and disqualification is dismissed.
Brown J