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Ormsby v R

Ormsby v R

Case [2013] NZCA 578 25 November 2013

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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

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.
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.
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.
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…

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 Ormsby v R

Details

AGLC: Ormsby v R [2013] NZCA 578
Case: [2013] NZCA 578
Decision Date: 25 November 2013 at 3.00 pm

CaseChat Overview and Summary

In the case of Ormsby v R, Cyrus Ormsby appealed against his sentence for motor manslaughter, which resulted in the death of a 17-year-old girl. The Court of Appeal of New Zealand dismissed the appeal, upholding the initial sentence of four years and two months imprisonment. The appellant drove under the influence of alcohol at a high speed, ignoring protests from passengers to slow down, resulting in a fatal accident. The appeal contested the starting point of the sentence and the discount given for mitigating factors such as the appellant's youth and remorse.

The court examined the starting point of six years and six months' imprisonment and the 36% total allowance for mitigating features. The court acknowledged the aggravating factors, including the appellant's alcohol consumption, excessive speed, and lack of a driving license. The court found that the starting point was appropriate and within the correct band of culpability for the offence. The court also examined the discount given for mitigating factors such as the appellant's early guilty plea, genuine remorse, and rehabilitative prospects. The court considered that the sentence adequately reflected the circumstances of the case and dismissed the appeal.

The Court of Appeal concluded that the starting point of the sentence was appropriate, taking into account the aggravating factors of the case. The court also found that the discount given for mitigating factors, including the appellant's youth and remorse, was reasonable. The court emphasised that the key focus of a sentence appeal is the outcome, and in this case, the final sentence of four years and two months' imprisonment was considered appropriate when all circumstances were taken into account. The appeal was dismissed, and the original sentence was upheld.

Orders