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…

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 R v Ellison

Details

AGLC: R v Ellison [2007] NZCA 549
Case: [2007] NZCA 549
Decision Date: 29 November 2007

CaseChat Overview and Summary

In the case of R v Ellison, Melissa Louise Ellison appealed against her sentence for reckless driving causing death and injury. The appellant, who did not possess a driver’s licence, drove recklessly fast into a corner, resulting in a fatal accident that killed two passengers and seriously injured another. Ellison pleaded guilty to the charges and was sentenced to two years and six months in prison, with a five-year driving disqualification. The appellant argued that the sentence was manifestly excessive. The Court of Appeal assessed the appellant's culpability as close to the most serious possible example of reckless driving causing death, considering factors such as driving without a licence, consumption of cannabis, driving at excessive speed, and causing death and serious injury. The Court of Appeal concluded that the sentence was not manifestly excessive and dismissed the appeal. The appellant was sentenced to two years and six months in prison, with a five-year driving disqualification.

Orders