O'Sullivan v R [2015] NZCA 147 (5 May 2015)

Last Updated: 19 May 2015

IN THE COURT OF APPEAL OF NEW ZEALAND
CA569/2014 [2015] NZCA 147
BETWEEN	MATTHEW KEVIN O’SULLIVAN Appellant
AND	THE QUEEN Respondent

Hearing:	22 April 2015
Court:	White, Keane and Wylie JJ
Counsel:	S Jefferson for Appellant K J Cooper for Respondent
Judgment:	5 May 2015 at 2.00 pm

JUDGMENT OF THE COURT

The appeal against sentence is dismissed.
____________________________________________________________________

REASONS OF THE COURT

(Given by Wylie J)

Introduction

[1] The appellant, Mr Matthew O’Sullivan, was found guilty at trial in the District Court at Napier of the following charges under the Land Transport Act 1988:

• (a) racing causing injury, contrary to s 36A(1) and (2); and
• (b) racing causing death, contrary to s 36A(1) and (3).

[2] The appellant’s brother, Mr Adam O’Sullivan, is a co-offender. In this judgment, for the sake of clarity, we refer to them as Matthew and Adam.
[3] On 19 September 2014, Judge Down sentenced Matthew to three years’ and six months’ imprisonment on these charges and on an additional charge of driving while disqualified.^[1] Matthew had earlier entered a guilty plea to this additional charge. Matthew was also disqualified from driving for a period of four years.
[4] Matthew appeals against the sentence of imprisonment imposed. Mr Jefferson on his behalf argued that the sentence is manifestly excessive. He submitted that Matthew should have been given the same discount, primarily for remorse but also for other factors, as his co-offenders received.
[5] The Crown submitted that the end sentence is appropriate and within range.

Factual background

[6] Matthew was 19 years old at time of the offending.
[7] Approximately two weeks prior to the events the subject of the convictions, Matthew had been disqualified from driving for a period of six months. That disqualification had been imposed because the appellant had earlier been driving while suspended.
[8] Matthew and his three co-offenders decided to hold a “Ford versus Holden” race. They discussed where the race would be held. Matthew agreed to participate. He was to drive his Ford Falcon. The other driver was to be a Mr Lawrence. He was to drive his Holden Commodore. There were two other persons involved. One was Matthew’s brother, Adam. He was to drive a further vehicle which was to follow the race and, in effect, marshal it. The other was a Mr Ellmers. He was a party to and instigated the arrangements.
[9] On the night of the race, Matthew had Mr Ellmers with him as a passenger in his car. Mr Lawrence also had passengers in his car. A Mr Crooks was sitting in the front seat. A Ms Schafer was seated on the rear seat immediately behind Mr Crooks.
[10] The race took place on a rural road near Napier. The designated speed limit on the road was 100 kilometres per hour. The road ended at an intersection which was controlled by a stop sign. The intersection was not, however, a T-intersection. Rather the road angled into another road. The finish of the race was to be at the intersection.
[11] The race was started by Adam sounding his car horn. The two vehicles then sped off. Matthew drove on the lefthand side of the road and Mr Lawrence used the right-hand side. Mr Lawrence was on the wrong side of the road throughout. As they approached the intersection, Matthew slowed down. Mr Lawrence did not. He was unable to stop his car in time. He proceeded through the intersection. He partially negotiated the angled turn, but then lost control and hit a large tree. The impact of the collision was on the passengers’ side of the vehicle. The rear passenger, Ms Schafer, died at the scene from head injuries. The front seat passenger, Mr Crooks, was seriously injured.
[12] Subsequent crash scene analysis suggested that the cars may have reached speeds of up to 180 kilometres per hour during the race.
[13] Matthew, Adam, Mr Ellmers and Mr Lawrence were jointly charged with racing causing death and racing causing injury. Matthew faced a further charge of driving while disqualified and his brother Adam was charged with attempting to defeat the cause of justice. Adam, along with Messrs Ellmers and Lawrence, entered guilty pleas to the various charges against them on 21 August 2013. Matthew pleaded guilty to the driving while disqualified charge but chose to proceed to trial on the racing charges.
[14] Each of Matthew’s co-offenders was sentenced to two years’ and three months’ imprisonment by Judge Rea. The starting point adopted for each was four years’ imprisonment. It was discounted in each case by 25 percent (one year) for youth, remorse, previous good character and assistance given to the police, and then further discounted by 25 percent for the guilty pleas.
[15] Adam appealed his sentence. The appeal was heard by Brown J.^[2] He took the view that Judge Rea should have discriminated between Adam and Messrs Ellmers and Lawrence. He considered that the Judge should have adopted a lower starting point for Adam, given his lesser role in the offending, but should also have imposed an uplift for the additional offence of trying to pervert the course of justice. This approach would have resulted in a marginally higher sentence that that imposed in the District Court. Brown J did not however disturb the sentence imposed by Judge Rea, because he did not consider that the sentence imposed was manifestly excessive.
[16] Mr Ellmers also appealed his sentence. His appeal was dismissed, also by Brown J.^[3] He held that the starting point of four years’ imprisonment adopted by Judge Rea was appropriate.

Sentencing decision

[17] Judge Down adopted the starting point of four years’ imprisonment used by Judge Rea in sentencing Matthew’s three co-offenders. Judge Down noted that Matthew has previous convictions, including a then recent conviction for a sustained loss of traction. He also noted that as a result of other traffic violations, Matthew was disqualified from driving at the time of the offending. He took the view that this aggravated the offending.^[4] The Judge recorded that he had considered uplifting the starting point of four years to take into account the fact that Matthew was disqualified at the time, but that he had decided that it made more sense to instead adopt the same starting point, but to deny Matthew any credit for good character.^[5]
[18] Judge Down accepted that Matthew had been compliant with the police and assisted them in their investigations as far as it was necessary for him to do so. However, he referred to the pre-sentence report, and in particular the observations of the probation officer writing the report that Matthew lacked insight into his offending and that he continued to deny responsibility for the events which had occurred. The Judge observed that Matthew had written a letter to the Court in which he expressed remorse. Judge Down considered, however, the letter was “too little too late”.^[6] He allowed Matthew a discount of six months for his youth and co-operation, with the result that he adopted an end point of three and a half years’ imprisonment. He observed that Matthew was not entitled to any discount for his pleas.^[7]
[19] Judge Down entered a final sentence of three and a half years’ imprisonment in relation to the offence of racing causing death. In relation to the offence of racing causing injury, Matthew was sentenced to two years’ imprisonment, to be served concurrently. He was also disqualified for driving, as noted above.^[8]

Analysis

[20] The sole issue raised on the appeal was whether or not the 12 months discount given to Matthew’s co-offenders prior to the discount for their guilty pleas should also have been adopted for Matthew. It was argued that Judge Down’s decision to reduce the discount had resulted in disparate sentences between Matthew and his co-offenders and that as a result the end sentence was manifestly excessive.
[21] As this Court has previously noted, it is a principle of sentencing, and generally desirable, that there should be consistency of sentences between similar offenders committing similar offences in similar circumstances.^[9] However, not every difference between sentences or starting points for co-defendants will support an appeal on the grounds of disparity.^[10] It is not enough that an offender thinks he has been unfairly treated. The question is whether or not there is a real justification for any grievance – that will be the case if a reasonably minded independent observer, aware of all the circumstances of the offence and of the offenders, would think that something had gone wrong with the sentencing process.^[11]
[22] Here there has been no challenge to the four year starting point adopted by Judge Down. Nor could there be. It was clearly appropriate. Indeed, it could have been higher.
[23] In our judgment Matthew was not in the same position as his co-offenders. His offending was aggravated by his commission of the additional offence of driving while disqualified.^[12] Judge Down could have uplifted the starting point to recognise this additional offending. He did not do so. Rather the Judge decided to offset any uplift with a reduction in the one year discount afforded to each of Matthew’s This approach was open to the Judge.
[24] Judge Down concluded that Matthew should receive no discount for remorse. Again, this conclusion was open to him. In response to his offending, Matthew told the probation officer that he would not “admit to causing death as [he] did not do it, [he] did not hit the tree”. He accepted responsibility for being a party to the race that resulted in Ms Schafer’s death. However, he expressed the view “she took the risk, it was a sad thing that happened and she paid the ultimate price”. These remarks clearly indicate that Matthew had no real remorse and little or no insight into his offending. They refuted any remorse shown in his letter to Judge Down.
[25] Any reduction for remorse involves an evaluation of all the circumstances said to demonstrate the remorse asserted.^[13] Judge Down conducted such an evaluation. He considered the pre-sentence report and the letter put before him by Matthew. He had the benefit of having been able to assess Matthew’s attitude throughout the trial. Judge Down’s conclusion that the remorse offered was “too little too late” was clearly open to him.
[26] While the sentence might have been structured differently, in sentence appeals it is the end sentence that matters.^[14]
[27] Here, Matthew has done no more than criticise a component part of the sentencing process. In our view, that criticism is without merit. The final sentence imposed was not inappropriate, nor manifestly excessive. A reasonably minded independent observer would not think that something had gone wrong with the sentencing process.

Result

[28] The appeal is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent

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^[1] R v O’Sullivan DC Napier CRI-2013-202-1961, 19 September 2014.

^[2] O’Sullivan v R [2014] NZHC 739.

^[3] Ellmers v R [2014] NZHC 734.

^[4] R v O’Sullivan, above n 1, at [8].

^[5] At [9].

^[6] At [18].

^[7] At [18].

^[8] Above at [3].

^[9] Zimmerman v R [2014] NZCA 523 at [14].

^[10] Henwood v R [2013] NZCA 528 at [19].

^[11] R v Lawson [1982] NZCA 67; [1982] 2 NZLR 219 (CA) at 222-223.

^[12] See Gacitua v R [2013] NZCA 234 at [25](j) where driving while disqualified was identified as an aggravating factor in this type of offending.

^[13] Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [64].

^[14] Gibson v R [2015] NZCA 57 at [9].