R v Ellison

[2007] NZCA 549

IN THE COURT OF APPEAL OF NEW ZEALAND

CA390/07
[2007] NZCA 549

THE QUEEN

v

MELISSA LOUISE ELLISON

Hearing:15 November 2007

Court:Wilson, Chisholm and Potter JJ

Counsel:T Sutcliffe for Appellant

S B Edwards for Respondent

Judgment:29 November 2007 at 12pm

JUDGMENT OF THE COURT

THE APPEAL IS DISMISSED.

____________________________________________________________________

REASONS OF THE COURT

(Given by Wilson J)

Introduction

[1]       On 26 October 2004 the appellant, who did not have a driver’s licence, drove recklessly fast into a corner.  The car left the road, went over an embankment and struck a tree.  Two passengers were killed and one was seriously injured.

[2]       Ms Ellison pleaded guilty to two charges of reckless driving causing death and one of reckless driving causing injury.

[3]       When sentencing the appellant on 24 July this year, Ronald Young J adopted a starting point of three years six months imprisonment on both the reckless driving causing death charges.  He then reduced that time by a year to reflect the guilty pleas and the remorse of the appellant, resulting in a sentence of two years six months.  On the injury charge, the Judge sentenced Ms Ellison concurrently to 12 months imprisonment.  He also disqualified her from driving for five years.

[4]       Ms Ellison appeals against the effective sentence of two years six months imprisonment on the ground that it was manifestly excessive.

The facts

[5]       At the time of the accident, the appellant was 23 years of age.  She had never held a driver’s licence.  She had previously been stopped by police while driving and issued with prohibition orders in 1999 and 2000.  On the second occasion, the appellant was convicted and fined for failing to comply with a prohibition order.  On 23 September 2006 (approximately one month before the accident which resulted in the present charges), the appellant was again stopped by police and issued with an infringement notice for breaching the prohibition order.  The car she was driving was impounded for 28 days.

[6]       On the day of the accident, Ms Ellison shared a cannabis joint with her flatmate and some friends at her home in a rural area near Hamilton.  About half an hour later she set out in her flatmate’s car to drive to Hamilton.  The car was not registered and did not have a warrant of fitness.  The flatmate was unaware that the appellant did not have a driver’s licence.

[7]       With the appellant in the car were four passengers, aged 15, 16, 17 and 23.

[8]       Approximately 120 metres before a sharp corner, Ms Ellison passed a 55 kph advisory sign.  As the car approached the corner, one of the passengers who survived the accident noticed that the speedometer was showing 110 to 120 kph.  Another passenger told the appellant to slow down.  She did not do so.

[9]       The appellant lost control of the car, which went off the road, down a steep bank and into a tree.  Two of the passengers died at the scene from head injuries and another suffered serious injuries.

Submissions for appellant

[10]     In his comprehensive written and oral submissions, Mr Sutcliffe contended that Justice Young’s starting point of three years six months imprisonment was too high and the Judge was in error in noting that “… the Courts in recent years have taken a much stricter line with reckless, irresponsible driving where death and injury results”.

[11]     Counsel sought to characterise the culpability of the appellant as “moderate” rather than “serious”, as the Judge had concluded.  Mr Sutcliffe referred to a number of authorities which, he submitted, showed that the sentence under appeal was excessive.  He also sought to distinguish authorities relied on by the Crown on the basis that they represented sentences for motor manslaughter rather than, as here, reckless driving causing death.

[12]     Mr Sutcliffe also submitted that the consumption of cannabis was irrelevant because there was no evidence that it had caused or contributed to the accident.

Submissions for respondent

[13]     Ms Edwards submitted that the principles governing sentencing in both motor manslaughter cases and cases of reckless or dangerous driving causing injury or death are to be found in three decisions of this Court: R v Skerrett CA236/86 9 December 1986, R v Yatri CA72/92 13 July 1992 and R v Fallowfield [1996] 3 NZLR 657.

[14]     Skerrett identified aggravating and mitigating factors, Yatri noted that the range of circumstances in offending of this nature precluded fixed tariffs or starting points and Fallowfield emphasised the relevance of the consequences of the driving.

[15]     Recent cases referred to by Ms Edwards revealed a starting point range for offences of dangerous or reckless driving causing death of between two and five years, the latter being the maximum penalty available.

[16]     Counsel identified the aggravating factors in the present case to be:

·     driving without a licence, having previously been warned not to do so;

·     consumption of cannabis shortly before driving;

·     driving with younger passengers;

·     driving at a clearly excessive speed;

·     ignoring the advisory sign; and

·     causing the death of two passengers and serious injury to another

Discussion

[17]     We cannot accept Mr Sutcliffe’s submission that the appellant’s culpability was “moderate”.  To the contrary, we assess it as close to the most serious possible example of reckless driving causing death.

[18]     First, the appellant displayed a cavalier disregard of the obligation not to drive without obtaining the necessary licence.  Even though the necessity to obtain a licence had been repeatedly emphasised to her by the police (most recently only a month before the accident) and her failure to comply with the direction to obtain a licence had resulted in a court appearance, Ms Ellison was driving without a licence when the accident occurred.

[19]     Whether or not the consumption of cannabis contributed to the accident, what is clear is that, if the appellant had not knowingly driven without a licence, this accident would not have occurred.  Two lives would not have been lost, and the injuries to the other passenger would have been avoided.

[20]     Moreover, the appellant’s driving leading up to the accident can only be described as appalling.  Her grossly excessive speed, notwithstanding the advisory sign and the request from a passenger to slow down, quite foreseeably resulted in her losing control of the car and the accident occurring.

[21]     As this Court has repeatedly emphasised, motoring offences causing death or injury turn very much on their own facts.  The present facts demonstrate a particularly bad case of its kind.

[22]     The appellant is, in our view, very fortunate not to have been charged with manslaughter.  Had she been convicted on that charge, she would be facing a considerably longer term of imprisonment.

[23]     We accept however that Ms Ellison was charged with, and pleaded guilty to, charges of reckless driving causing death and reckless driving causing injury.  It is therefore on these charges that she must be sentenced.

[24]     As we have said, this was on our view of the facts a particularly bad case of reckless driving causing death.  These charges each carry a maximum penalty of five years imprisonment.  Young J would have been justified in taking a starting point for sentencing of or close to the maximum term, before deducting the year for mitigating factors which was we think appropriate.

[25]     It must follow that the sentence imposed of two years six months imprisonment (three years six months less a year) was open to the Judge, and cannot possibly be said to be manifestly excessive.

Result

[26]     The appeal must therefore be dismissed.

Solicitors:
Crown Law, Wellington for Respondent