Ormsby v R

[2013] NZCA 578

IN THE COURT OF APPEAL OF NEW ZEALAND

CA544/2013
[2013] NZCA 578

BETWEEN	CYRUS ORMSBY Appellant
AND	THE QUEEN Respondent

Hearing:	18 November 2013
Court:	Harrison, Simon France and Dobson JJ
Counsel:	N P Chisnall and J S Gurnick for Appellant K A L Bicknell for Respondent
Judgment:	25 November 2013 at 3.00 pm

JUDGMENT OF THE COURT

The appeal against sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Simon France J)

Introduction

1. This is an appeal against a sentence of four years and two months for a bad example of motor manslaughter.[1]  The appellant was 18 years old at the time of the offending.  He drove with an alcohol level of 117 mg per 100 ml of blood (his permitted level was 0 mg).  He drove dangerously at high speed over some distance and over the protests of passengers who were asking him to slow down.  Mr Ormsby was not a licensed driver, and never had been.  Nine days earlier he had been stopped by police while driving, ticketed and prohibited from driving.

   [1]R v Ormsby [2013] NZHC 1873, Wylie J.

2. The victim was a 17 year old young woman, one of three passengers in the car.  She was thrown from the vehicle and suffered fatal head injuries.  Her death has been a devastating loss for her family, a loss no doubt made more difficult to bear by the recklessness of the circumstances in which it arose.

3. The appeal is brought against a starting point of six years, six months’ imprisonment, and a total allowance for mitigating features of 36 per cent.  Concerning the starting point, Wylie J carefully and correctly identified the aggravating factors as recently discussed by this Court in Gacitua v R.[2]  The factors identified were alcohol, excessive speed, repeated warnings from passengers, poor driving, aggressive driving and the fact that Mr Ormsby had been warned by police nine days earlier.  To these could be added the point that Mr Ormsby had never obtained a driving licence so had never objectively demonstrated he had ever had the skill to drive a car.  Overall the Judge classified his driving as highly dangerous.

   [2]Gacitua v R [2013] NZCA 234.

4. We agree.  On appeal the starting point has been challenged primarily by reference to High Court cases said to be similar where slightly lower starting points were taken.[3]  We observe, however, that they are not tariff cases, and inevitably they have distinguishing factors.  It has often been noted that this is an unhelpful approach on a sentence appeal to this Court.  Ms Bicknell responded by referring us to three broadly comparable cases in which this Court has upheld higher starting points.  Again, they each have features that could be seen as different, but the point made by the Crown is valid.  There are so many different factors in these cases, some obvious, some subtle, that this Court has recognised attempting to set a tariff will not work.  We are far from persuaded that the starting point taken here was unavailable or incorrect.  In broad terms it placed the offending in the right band of culpability.

   [3]Particularly relied upon were R v Tumuhai HC Ham CRI 2011‑019‑1692, 8 December 2011, Allan J; and R v Wagener HC Invercargill CRI 2010‑025‑000191, 8 June 2010, French J.

5. As for mitigation, it is common ground that Mr Ormsby pleaded early and was genuinely extremely remorseful.  It is apparent he is struggling himself to cope with the consequences of his actions.  The particular aspects with which issue is taken are the lack of a discrete discount for youth, and the size of the credit given for remorse.  Remorse in this context was being used to also include Mr Ormsby’s offers of reparation and to engage in restorative justice, and generally Mr Ormsby’s rehabilitative prospects.

6. Concerning youth, Wylie J had referred to comments by this Court in R v Pretty where it was observed that the size for any discount for youth may be tempered by the need to emphasise deterrence with this particular form of offending.[4]  Mr Chisnall was critical of the Court’s observations in Pretty, submitting that it is inconsistent with s 7(2) of the Sentencing Act 2002 to hold that the offence of vehicular manslaughter presumptively limits the weight that can be placed on youth as a mitigating factor. 

   [4]R v Pretty CA 277/00, 26 October 2000 at [13].

7. Pretty is a pre-Sentencing Act 2002 judgment, and Mr Chisnall argued the approach in it should be rejected, in favour of more recent recognition of the reasons why young offenders should be treated differently to adults.  He cited the decision in Churchward v R for recognition of three ways in which the relative youth of an offender is potentially relevant to their sentencing.[5]  These are the age-related neurological differences (meaning that young persons may be more impulsive and respond in given situations differently to adults), that the effect of imprisonment on a young person can be relatively more severe and that young people should be treated with greater capacity for rehabilitation. 

   [5]Churchward v R (2011) 25 CRNZ 446 (CA).

8. Churchward involved the sentencing of a 17 year old for murder.  Without doubting the three features of youth that Mr Chisnall drew attention to, the scope for applying them in sentencing has to be context-specific.  Alcohol related driving deaths are a source of major concern in society.  Denunciation and deterrence are properly seen as requiring a higher weighting when sentencing for this offence.  Further, it is a sad reality that young men are disproportionately the guilty parties, and so again, when balancing all the factors, it may often mean that the scope in a particular case for recognising the youth of an offender will be reduced.

9. Mr Chisnall also submitted that the reference to Pretty showed that Wylie J considered he was bound not to give any credit for youth.  This is incorrect.  His Honour’s words, after referring to R v Pretty, were:[6]

   While the youth of an offender can often be a mitigating feature at sentencing, the Court of Appeal has said it is not to receive the same weight in cases of motor manslaughter.

   [6]At [15].

10. Whilst we consider this could be better phrased by saying that it is an area where the potential for a discrete youth credit is often limited by the need to emphasise other sentencing purposes, it is clear Wylie J recognised youth was still a relevant consideration.

11. The key focus on a sentence appeal is always the outcome.  We are not persuaded an overall discount of 36 per cent was less than the minimum credit that had to be given.  It gave full credit for the guilty plea, which of course already contains recognition of many of these factors.  The presence of extra factors in this case was acknowledged by a further 10 per cent.  Again, these figures were within the available range.  Nor do we consider a final sentence of four years two months’ imprisonment to be manifestly excessive when all the circumstances are considered.  The appeal is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent