R v Ormsby

[2013] NZHC 1873

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI 2013-019-001444 [2013] NZHC 1873

THE QUEEN

v

CYRUS ORMSBY

Hearing:                   24 July 2013

Appearances:           J M O'Sullivan for the Crown

J S Gurnick and G D Prentice for the Defendant

Judgment:                24 July 2013

SENTENCING NOTES OF WYLIE J

R v ORMSBY [2013] NZHC 1873 [24 July 2013]

[1]      I want to start by acknowledging the presence of both families at the back of the Court today, members of the Grey-Smith family and members of the Ormsby family.   Cases of this  kind cause considerable difficulty for Sentencing  Judges. Unfortunately, such cases are all too common.  The consequences of this case and regrettably others, are of course extremely serious.   In this case, there has been a death of a young woman.  Understandably, that often leads to calls from the victim’s family, and indeed from the community, for tougher sentencing.  On the other hand, an offender guilty of this kind of offending did not intend to cause the death which has resulted, and Mr Grey fairly acknowledged that in what he said to me earlier this morning.  So as I say, cases of this kind do pose a difficulty for sentencing Judges. The Court has to struggle to do the best that it can.  I would ask all of you to bear that in mind.

[2]      Mr Ormsby, you may remain seated until I ask you to stand.

[3]      You appear for sentence today, having entered guilty pleas to two charges. The first charge is one of manslaughter.   This is an offence under the Crimes Act

1961, and it is subject to a maximum penalty of life imprisonment.  The other charge is for driving with excess blood alcohol causing injury.  That is an offence under the Land Transport Act 1998, and it is subject to a maximum sentence of either five years’ imprisonment,  or  a  fine  of  $20,000,  together  with  disqualification  from driving for a minimum period of one year.

Relevant Facts

[4]      The charges relate to events which occurred on 22 November 2012.

[5]      Some nine days earlier, on 13 November 2012, you were the driver of a Mazda motor vehicle on Primrose Street, Hamilton. You were stopped by the police. You admitted that you did not hold and had never held a driver’s licence. A check on the police computer confirmed this.  You were issued with a traffic offence notice forbidding you to drive any motor vehicle until you obtained the appropriate driver’s licence.

[6]      This notwithstanding, on the morning of 22 November 2012, you went with a friend, Lesio Temple, in a Mazda motor vehicle to pick up two other friends, Cheyenne Grey-Smith and Tylah Courtney.   The four of you then travelled to Ngaruawahia. You and Ms Grey-Smith shared the driving.

[7]      Tylah Courtney voiced concern about your driving.  She felt unsafe.

[8]      The four of you spent the day together.  You consumed alcohol.  Late in the afternoon, the four of you left Ngaruawahia, and headed back towards Hamilton.  At first, Ms Grey-Smith was driving.  At some stage, she stopped the vehicle, and you took over the driving.  Tylah Courtney protested at you driving the vehicle, but you did so despite those protests.

[9]      When  you were driving,  you  were observed by a member of the public turning right from Te Kowhai Road onto Duck Road. This is a blind corner. You cut the corner, travelling on the wrong side of the road.

[10]     The  member  of  the  public  followed  you  onto  Duck  Road.    You  were travelling at high speed, estimated to be 130 kilometres per hour.  You were weaving from one edge of the road to the other. You were also observed driving over the crest of a hill on the wrong side of the road and in a position where you were unable to see whether there was any oncoming traffic.

[11]     During the journey, Tylah Courtney repeatedly told you to slow down.  You ignored those protests.

[12]     After cresting a hill, you accelerated, and you failed to take a moderate left- hand corner.  The vehicle became airborne, and flipped a number of times.  It came to rest on its wheels in a paddock. The vehicle then caught fire.

[13]     In the course of the crash, Ms Grey-Smith was thrown out of the vehicle.  She suffered a serious head injury, and she subsequently died.  Mr Temple was able to get out of the vehicle, but he was suffering from a ruptured cruciate ligament, and bone impaction  damage  to  his  right  knee.    Ms Courtney  suffered  minor  scrapes  and

bruising, and you suffered a serious leg injury.   You were transported to Waikato

Hospital for treatment.

[14]     A blood sample was taken from you at Waikato Hospital.   On analysis, it showed that you had a level of 117 milligrams of alcohol per 100 millilitres of blood.

[15]     When you were spoken to by the police, you declined to make a statement.

[16]     You were 18 years’ old at the time.   So was Mr Temple.   The deceased,

Ms Grey-Smith, was 17 years’ old.

Presentence Report

[17]     I have received a full presentence report.

[18]     You live with your mother and stepfather.  You have a good relationship with your mother, and she is very supportive of you.  She is, however, clear that you need to take some responsibility for your life, and to be held to account for your actions. You also have a good relationship with your stepfather, and with your biological father.

[19]     It appears that since the offending took place, you have become emotionally fragile.   You were admitted to the Henry Bennett Centre at Waikato Hospital on

2 April 2013, and discharged with a non-specific provisional diagnosis of depression. No  medication   was  prescribed   however.     You  have  on  occasion   exhibited emotionally erratic behaviour, and violent outbursts.   You have self-harmed on occasion.  Your mother believes that you are struggling to cope with the knowledge that you have caused the death of a friend.  The probation officer who interviewed you took the view that you suffer from a condition he referred to as adjustment disorder.     He  noted  that  such  disorder  normally  responds  well  to  treatment. However, it seems you have neither sought, nor been offered, treatment.

[20]     As I have noted, you were injured in the accident.  You were hospitalised for three months.   You had to abandon a leadership in sports course you were undertaking.  You told the probation officer that your injuries have cost you a place

at a prestigious rugby academy in Australia.  You still suffer pain from your injuries and you have been prescribed analgesics.   I am told by Mr Gurnick, appearing on your behalf this morning, that it is likely that you will require further surgery.

[21]     You have never been employed, and you are in receipt of a sickness benefit. You have a small bank loan.   You also have unpaid court-imposed reparation of

$450, which you have not been paying.  You assured the probation officer that you would immediately make arrangements to commence payment.

[22]     You have developed a harmful pattern of alcohol use. This was confirmed by your mother. You also admitted to having used cannabis on an occasional basis.

[23]     The police summary of facts was put to you.  You did not dispute it, and you admitted that you had been drinking prior to the incident.   However, you claimed that you had only drunk three cans of beer.  You also claimed that until the accident, your passengers had been relaxed and laughing.  You asserted that immediately prior to losing control of the vehicle, you were driving within the speed limit.

[24]     The probation officer considered that your demeanour at interview indicated that a sense of guilt weighs heavily on you.  He noted that you struggled to articulate your feelings, but that you were able to acknowledge that your passengers would have been very scared, and you feel sad about the harm you have caused.   The probation officer expressed the view that you are experiencing genuine remorse for your actions, and empathy with the trauma you have caused others.  I note that you and your mother requested a restorative group conference, but that that request has been declined by members of Ms Grey-Smith’s family.  Your mother also told the probation officer that you and your family have been fundraising to assist Ms Grey- Smith’s family.  Your mother told the probation officer that so far, you have raised

$1,000. You also offered to pay reparation from your benefit payment.

[25]     The probation officer expressed the view that you have shown little insight into the thought processes that led to your offending.  He did, however, note that you have  been  attending  a  “One  for  the  Road”  programme.    The  organiser  of  that

programme confirmed that you have engaged, and it is his view that you are showing guilt, remorse and empathy, which appear to be genuine.

[26]     The  probation  officer  indicated  that  you  would  benefit  from  a  medium intensity rehabilitative programme.  He assessed you as being at a medium level of risk of reoffending and a medium risk of causing harm to other adults in the community.

[27]     The probation officer recommended a sentence of home detention.

[28]     I have this morning received two letters, one from you and one from your mother.  You have spoken of the sorrow and remorsefulness you feel.  You state that you will never forgive yourself, but you acknowledge that there is nothing which you can now say or do to improve matters.

[29]     Your mother speaks of the loss which she has suffered.  She feels that she has now been left with an angry and hurt young man.  She says that you are an empty vessel, vulnerable, angry and hurt.   She notes that you have accepted your wrongdoing and that you will take your punishment willingly.   As a mother, she expresses her concern for the Grey-Smith family and the empathy she feels with them and the position they find themselves in.

Victim Impact Statements

[30]     I have received a victim impact statement from Ms Grey-Smith’s mother. She speaks of the shock and trauma she experienced when she found out about her daughter’s death.  She goes on to explain the impact her daughter’s death has had on her life.  She says that Cheyenne was not only her daughter, but also her best friend. She tells me that she has contemplated suicide as a result of Cheyenne’s death and that every day is a struggle for her.

[31]     Cheyenne’s father, Mr Smith-Grey, has spoken in Court this morning and read his victim impact statement to me.  He explained that Cheyenne was a paunamu in the family, and that her exploration of life had only just begun.  He detailed the

impact your actions have had on him, and observes that your actions have created a ripple effect that runs through the family, and cannot be undone.

Submissions

[32]     I have received helpful submissions from Ms Sullivan for the Crown and

Mr Gurnick on your behalf.

[33]     Mr Gurnick did in his submissions suggest that it might be helpful for the Court to order a report under the Criminal Procedure (Mentally Impaired Persons) Act 2003.  I took the view that that course was not necessary.  Mr Gurnick was not advancing the submission in support of an application that you should be treated as a special patient, or as a special care recipient.  Rather, he was advancing it pursuant to his submission that I am required to consider your circumstances, and how any sentence will impact on you, pursuant to s 8 of the Sentencing Act 2002.

[34]     Having considered the presentence report, and the report I have received from the leader of the One for the Road programme, I am not persuaded that it is necessary for me to obtain a further report prior to sentencing you.

[35]     Ms Sullivan discussed the relevant authorities, and suggested that there are various aggravating features to your offending.  She argued that I should impose a sentence of imprisonment, and adopt an initial starting point of seven and a half to eight years’ imprisonment.  She acknowledged that you are entitled to a discount for your guilty pleas, but pointed out that the Crown had a very strong case.   She submitted that I should also disqualify you from driving for a period of three and a half to four years following your release from prison.

[36]     Mr Gurnick on your behalf outlined the background to the offending.   He referred to the police Crash Investigation Report, and noted that Ms Grey-Smith was not wearing a seatbelt.   He also referred to relevant authorities, and to both the aggravating and mitigating features he said apply in your case.  He submitted that a starting point of no more than five years’ imprisonment is warranted.   He also submitted that I should treat as mitigating factors  your age, the fact that you have not previously had a drink drive conviction, and the fact that you were seriously

injured as a result of the accident.  He also noted your remorse, your offer to pay reparation, your offer to attend a restorative justice conference, and your early guilty pleas.  He suggested that I am entitled to “go out on a limb” and impose a sentence in the vicinity of two years’ imprisonment.  He then went on to submit that if I do so, it  will  be  open  to  me  to  order  home  detention,  rather  than  a  sentence  of imprisonment, and suggested that home detention, perhaps coupled with community work, is the appropriate sentence in your case.

Principles of Sentencing

[37]     In sentencing you, I have considered the principles set out in ss 7 and 8 of the Sentencing Act.  In particular, I have had regard to the need to hold you accountable for your offending, the need to promote in you a sense of responsibility for and an acknowledgement of your offending, and the need to denounce the conduct in which you were involved.  I am also mindful of the need to deter others from committing the same or similar offences.   This is a primary factor in this type of offending. Regrettably,  drink  driving,  with  resulting  death  or  injury,  particularly by  young males, is all too common in this country.  I have taken into account the gravity of the offending with which you were involved, including your degree of culpability.   I have considered the seriousness of this type of offending, and the general desirability of consistency of appropriate sentencing levels with similar offenders committing similar offences.  I am also mindful that I must impose the least restrictive outcome that is appropriate in the circumstances and that I need to consider your rehabilitation in the circumstances that have arisen.

Analysis

[38]     I now turn to analyse all of this material.

[39]     There is a recent decision of the Court of Appeal which discusses the relevant principles.1  The following are clear:

(a)       Sentencing in cases in which death has been caused by dangerous or reckless driving, or driving when under the influence of alcohol, is

1      Gacitua v R [2013] NZCA 234.

highly fact specific.  Much depends on the particular circumstances of the offending.2

(b)It  is  appropriate  to  measure  the  culpability  of  an  offender,  by reference to the aggravating and mitigating factors specific to his or her offending.3

(c)      The  various  factors  identified  by  the  Court  of  Appeal  in  the United Kingdom in Cooksley v R4  are useful in identifying some of the aggravating and mitigating factors relevant to sentencing in cases of this kind.

(d)The weight to be attached to those factors is a matter to be determined in individual cases.

[40]     In my view, there are a number of aggravating features in your case which point to a high degree of culpability on your behalf. They are as follows:

(a)       You  had  consumed  alcohol.     Your  blood  alcohol  reading  was

117 milligrams per 100 millilitres of blood.  You were under the age of 20 years at the time.  The maximum allowable limit for a driver of your  age  was  nil.     The  maximum  legal  limit  for  an  adult  is

80 milligrams of alcohol per 100 millilitres of blood.  Despite the fact that you were not allowed to drive, let alone consume alcohol and drive, the level of alcohol you had consumed was almost one and a half times the legal limit for an adult driver.

(b)You were driving at an excessive speed. At one point in your journey, your speed was estimated by a member of the public as being approximately 130 kilometres per hour.    The police Crash Investigation Report concluded that the corner where  you  crashed

could have been negotiated at speeds between 104 and 114 kilometres

2 At [22].

3      At [23] and [39].

4      Cooksley v R [2003] 3 AllER 40.

per hour.  It was estimated that your speed upon entering the corner was 110 kilometres per hour.  The main cause of the crash was loss of control due to excessive speed after entering a moderate left-hand corner.

(c)      You  disregarded  repeated  warnings  from  one  of  your  passengers, Ms Courtney.  She told you that she wanted you to slow down, and at one stage, to stop driving.   Earlier in the day, she had voiced her concern about you driving unsafely.   She also opposed you taking over the driving from Ms Grey-Smith earlier in the afternoon.

(d)Your  driving  was  very  poor.     Moreover,  it  was  persistent  and deliberate.   A member of the public observed  the risks  you  were taking.  You cut a blind corner, and you were swerving from one side of the road to the other.  You travelled up a hill on the wrong side of the road, in circumstances where you could not see whether or not there was any opposing traffic.   The events which led to the crash were not an isolated lapse of judgment.   In my view, it would be artificial to divorce the accident from the course of driving that preceded it.   Ms Grey-Smith’s death was the result of a prolonged episode of dangerous driving, and not merely an isolated error.

(e)      Your driving can also be described as aggressive, particularly when you cut the corner, swerved from one side of the road to the other, and drove up a hill on the wrong side of the road.  I suspect that you were showing off in an act of youthful bravado.

[41]     There are other  factors  which  are  relevant  in  your  case.   You  had  been stopped by the police only nine days earlier.  You admitted at that stage that you had never held a driver’s licence.   You were issued with a traffic offence notice prohibiting you from driving any motor vehicle until you obtained the appropriate licence. You ignored that notice. At the time of the crash, you were unlicensed. You should not have been driving at all.

[42]     The outcome of the offending counts against you.  Ms Grey-Smith was killed as a result of your stupidity. All persons in the motor vehicle were put at risk by you. Mr  Temple  has  suffered  injuries  as  a  result.     It  was  purely  good  luck  that Ms Courtney was not seriously injured.   Other members of the public were put at risk.

[43]     In  my  judgment,  your  driving  could  fairly  be  categorised  as  highly dangerous.  You exhibited a complete disregard for the law, for your own safety, for the safety of your passengers, and for the safety of other road users.  Your behaviour was stupid and irresponsible.

[44]     I  have  considered  the  large  number  of  similar  cases  referred  to  me  by counsel.   Each of course depends on its own facts, and all are broadly helpful in determining what is the appropriate starting point.

[45]     I  also  take  into  account  the  fact  that  Parliament  has  emphasised  the importance, and the need for deterrence in this area of the law, by increasing the maximum penalties applicable for driving with excess breath alcohol causing death. On 10 May 2011, as part of a package of reforms intended to promote road safety, Parliament increased the maximum penalty for driving with excess breath alcohol causing death as well as for dangerous or reckless driving causing death, from the previous  applicable  five-year  maximum  penalty,  up  to  a  maximum  penalty  of

10 years’ imprisonment.  While you were charged with manslaughter, the increased sentences  under  the  road  transport  legislation  indicate  Parliament’s  intention  in regard to offending of this kind.

[46]     Having regard to the various aggravating features which I have discussed, and the comparative cases which I have considered, I consider that an appropriate starting point in your case is one of six years and six months’ imprisonment.

Aggravating and Mitigating Circumstances

[47]     I now turn to consider your personal circumstances, and consider whether or not they warrant an adjustment upwards or downwards from that starting point.

[48]     First, I consider that there are no aggravating features personal to you which warrant an adjustment upwards to my starting point.   While you have a modest criminal record, there is nothing in that record which is relevant to the present offending.

[49]     Mr Gurnick on your behalf submitted that there are a number of mitigating factors.  I do not agree that all of the factors listed by him independently warrant a discount.  I consider each in turn.

[50]     First, Mr Gurnick referred to your age.  He noted that you were 18 years’ old at  the  time  of  the  offending.    While  the  youth  of  an  offender  can  often  be  a mitigating feature at sentencing, the Court of Appeal has said that it is not to receive the same weight in cases of motor manslaughter.5

[51]     Secondly, Mr Gurnick referred to the fact that you have no previous driving- related convictions.  I do not take this into account.  You did not hold a licence.  You should not have been driving at all. The fact that you have no previous driver-related convictions is, in my view, irrelevant.  Had you been complying with the law, you could not have had any driving-related convictions.

[52]     Mr Gurnick submitted that the fact that you were also seriously injured as a result of the accident is relevant.  I acknowledge that you suffered a serious injury as a result of the crash, and that that injury is likely to have a significant effect on your future.   Nevertheless, it is an injury which you brought on yourself, as a result of your own stupidity.  I have taken it into account, but I do not consider that it warrants any significant discount.  I have allowed you a discount of three months to recognise this factor.

[53]     Mr Gurnick referred to your remorse, your offer to pay reparation, and your offer to attend a restorative justice conference.

[54]     Normally, remorse is subsumed within a discount allowed for a guilty plea. An  additional  discount  for  remorse  is  only  to  be  given  if  the  remorse  can  be

5      R v Pretty CA 277/00, 26 October 2000.

case can properly be described as exceptional.   I also accept that it is real and genuine.   In particular, I note your offer to attend a restorative justice conference, and your offer to pay reparation to Ms Grey-Smith’s family.   You have lost one friend, and injured another.  You will carry that knowledge with you for the rest of your life.  I allow you a further discount of nine months to recognise these factors.

[55]     Finally,  there  are  your  guilty  pleas.    While  you  declined  to  make  any statement to the police at the time of the accident, you did enter pleas of guilty on

9 April 2013.  Those pleas were less than a month after your first appearance in the District Court at Hamilton on these charges.   I accept that you are entitled to a discount of approximately 25 percent from the sentence I would otherwise have imposed,  given those  pleas.    I am  prepared  to  allow  you  a further discount  of

16 months to recognise those pleas.

Sentence

[56]     Mr Ormsby, will you please stand.

[57]     In respect of the charge of manslaughter, you are sentenced to a term of imprisonment of four years and two months.

[58]     In respect of the charge of driving with excess breath alcohol causing injury, you are sentenced to a term of imprisonment of two years.   Further, you are disqualified from driving for a period of four years, such disqualification to commence on the day that you are released from prison.

[59]     The sentences are to be served concurrently.  That means that the sentence of imprisonment that I am imposing on you is one of four years and two months.

[60]     Your offer of reparation is accepted.  Within 14 days of today’s date, the sum of $1,000 which you have raised is to be paid to the Registrar of this Court.  The Registrar is to make arrangements to transfer that money to Ms Grey-Smith’s mother and father.

[61]     I  have  considered  whether  or  not  to  impose  a  minimum  period  of imprisonment under s 86 of the Sentencing Act.  Notwithstanding my view that your culpability was high, and the fact that the outcome of your offending was extremely serious,  I  do  not  consider  that  a  minimum  period  of  imprisonment  should  be imposed.  In my judgment, if you are ultimately released after serving one-third of the  sentence  which  I  have  imposed  on  you,  that  would  not  be  an  insufficient response in the eyes of the community. As I have noted, the sentence I have imposed already takes into account the fact that sentencing levels in this area have been increased, in part as a result of the public’s concern about offending of this kind.

Other Matters

[62]     In the presentence report, it was noted that in September 2012, you were sentenced in the District Court for shoplifting to 40 hours’ community work.  You have only completed three quarters of one hour of that sentence.  Your injuries may well make that sentence more difficult for you to carry out.  Although the probation officer suggested that I should cancel the sentence of 40 hours’ community work, and impose an alternative sentence, I have not received any full or detailed submissions in relation to that issue today.   Accordingly, I decline to cancel the sentence of community work at this stage.  Further application will have to be made in that regard to the appropriate court, and the matter can be considered at that stage, with the benefit of full and informed submissions from the Crown and from counsel on your behalf.

[63]     Finally Mr Ormsby,  I note that  you expressed to the probation officer a willingness  to  engage in  rehabilitation  courses.   You  are likely to  be  offered  a medium intensity rehabilitative programme within the prison system.  The probation officer believes that you will benefit from attending such a programme.  I agree with him.  I accept that you are motivated to engage in the process of change, and that you want to turn your life around.  I trust you will follow through on that resolve, and attend the rehabilitation course that is likely to be offered to you.

Wylie J