Gacitua v R
[2013] NZCA 234
•20 June 2013 at 3:00pm
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA706/2012 [2013] NZCA 234 |
| BETWEEN | FELIPE GACITUA |
| AND | THE QUEEN |
| Hearing: | 13 May 2013 |
Court: | Randerson, Rodney Hansen and Lang JJ |
Counsel: | R M Mansfield for Appellant |
Judgment: | 20 June 2013 at 3:00pm |
JUDGMENT OF THE COURT
The appeal is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Rodney Hansen J)
Introduction
Mr Gacitua pleaded guilty to a charge of reckless driving causing death and a further charge of reckless driving causing injury contrary to ss 36AA and 36 of the Land Transport Act 1998. He was sentenced by Venning J in the High Court at Auckland to three years imprisonment on the charge of reckless driving causing death and a concurrent sentence of two years imprisonment on the charge of reckless driving causing injury. He was disqualified from holding or obtaining a driver’s licence for a period of four years.
Mr Gacitua appeals against the sentence of three years imprisonment as manifestly excessive. He asserts that the starting point of five years imprisonment adopted by the sentencing Judge was excessive and outside the available range. There is no challenge to the sentence of disqualification.
Facts
Just before midnight on 13 August 2011, Mr Gacitua was driving his Toyota Corolla in the Alfriston area south of Auckland. He was accompanied by his girlfriend, Fay Roberts. They had spent the evening at her family home. He had consumed alcohol in the course of the evening.
A friend, Rowan Matthews, followed Mr Gacitua in his car. Mr Gacitua’s sister was a passenger in Mr Matthews’ car. Mr Matthews was following closely, although it is not accepted the two were racing one another.
The accident which led to the charges occurred at the intersection of Mill Road and Ranfurly Road. Mr Gacitua, followed closely by Mr Matthews, entered Mill Road from Redoubt Road. This area of Mill Road is predominantly rural. It is controlled by a speed limit of 80 kilometres per hour. The two vehicles were travelling in excess of 100 kilometres per hour. In an area of Mill Road where the lanes are separated by double yellow no passing lines, they crossed the centre line and passed another vehicle, continuing along Mill Road at high speed.
Mr Gacitua encountered another vehicle as he approached the intersection of Mill Road and Polo Prince Drive. In this area the lanes are separated by a painted centre median strip. Again, he passed the vehicle travelling at a speed in excess of 100 kilometres per hour, crossing into the median strip to complete the manoeuvre. Mr Matthews followed him, travelling less than one car length behind.
Both vehicles continued travelling along Mill Road towards the intersection with Ranfurly Road. They intended to turn right into Ranfurly Road. There were two vehicles in front of Mr Gacitua as he approached the intersection. He overtook the first and pulled in behind the other vehicle which was indicating its intention to turn right into Ranfurly Road. Because of the speed he was travelling, Mr Gacitua had to brake hard to avoid hitting the rear of the vehicle.
Without waiting for the car in front to turn, Mr Gacitua attempted to pass it and turn right into Ranfurly Road. At the same time a Suzuki car, driven by David Brown, approached the intersection from the opposite direction, intending to turn left into Ranfurly Road. He had the right of way. Mr Gacitua was unsighted and did not see the Suzuki. Mr Brown had insufficient time to react. The two vehicles collided.
Fay Roberts sustained multiple injuries and died at the scene. Mr Brown’s wife, Linda Brown, a front seat passenger in his car, was treated for severe seatbelt burns and severe bruising. A haematoma to her abdomen took eight weeks to subside.
Sentencing decision
In his sentencing remarks, Venning J noted that on 10 May 2011, as part of a package of reforms intended to promote road safety, Parliament increased the maximum sentence for dangerous or reckless driving causing death from five years imprisonment to 10 years. He said the amendment sent a message to the courts that tougher sanctions are required for drunk, drugged, dangerous or reckless drivers who cause death.[1] He referred to Hancy v R in which, prior to the increase in the maximum sentence, this Court endorsed a starting point range for offences of dangerous or reckless driving causing death of between two and five years.[2] Referring to R v A Venning J acknowledged that, while sentencing is a field in which there is genuine room for differences of informed opinion, the courts should have regard to a policy of our Parliament evincing an increase in the maximum penalty for an offence.[3] However, he cautioned against a purely mathematical exercise, observing that it is not a matter of simply doubling what otherwise might have been regarded as the appropriate starting point.[4]
[1]R v Gacitua [2012] NZHC 2542 at [25].
[2]Hancy v R [2009] NZCA 469.
[3]R v A [1994] 2 NZLR 129 (CA).
[4]At [27].
In the following passage of his sentencing remarks Venning J identified factors particularly relevant to an assessment of Mr Gacitua’s culpability:
[32] ... Mr Gacitua you drove in a persistently dangerous manner for approximately 10 minutes. You overtook vehicles in an unsafe way and drove at in excess of the speed limit of 80 km/h. The summary of facts records your speed was in excess of 100 km/h. I accept Ms Dyhrberg’s submission there was no accurate estimate of your speed and that you were not within a limited 50 km/h zone or anything of that kind. Nevertheless you were driving at an excessive speed and in a reckless and dangerous manner for a sustained period. The really dangerous aspects were your passing on more than one occasion and at least once by crossing over yellow no passing lines. Importantly, in my view, your driving cannot be described as an isolated lapse of judgment. It just did not occur at the intersection of Mill Road and Ranfurly Road. That was the culmination of your driving that night. You engaged in a consistently bad and dangerous piece of driving. As other Judges have said in similar situations the driving on the night was effectively an accident waiting to happen. Further, while you were not over the legal limit, alcohol is recognised as a disinhibitor. It may well have played a factor in your driving. The Court of Appeal in Skerrett[5] recognised it as a relevant factor, even if under the legal limit. It is an aggravating feature.
(Footnote added.)
[5]R v Skerrett CA236/86, 9 December 1986.
Venning J referred to evidence that only one of the headlights in Mr Gacitua’s car was working. He said there was no evidence Mr Gacitua was aware of this and would put that fact to one side. He continued:
[34] In assessing your overall culpability I also take into account that your driving led to an accident involving another car. In some cases there is a loss of control and only one car is involved. So the starting point for sentencing you that I take must reflect the fact you face a separate charge of reckless driving causing injury to Mrs Brown.
[35] Mr Gacitua having considered the above, I take as a starting point for sentencing five years imprisonment.
Venning J said there were no personal aggravating features. There were, however, significant personal mitigating factors. He reduced the starting point by 12 months to take account of Mr Gacitua’s relative youth (he is 25), the fact he had no previous criminal convictions and that he was genuinely remorseful. While, for various reasons his guilty plea was not entered at the earliest possible time, Venning J accepted that when issues of legal representation had been resolved, Mr Gacitua entered guilty pleas promptly. In what he described as the rather unusual circumstances, he gave him the maximum discount of 25 per cent. The credit for mitigating factors led to a sentence on the charge of reckless driving causing death to three years imprisonment, with the sentence of two years imprisonment on the charge of reckless driving causing injury, to be served concurrently.
Grounds of appeal
Mr Mansfield submitted that the starting point adopted by the Judge was too high. He contended that Venning J had given undue weight to aggravating factors and that the sentence was outside the range generally adopted when dangerous or reckless driving leads to death.
Mr Mansfield argued that the Judge placed excessive weight on the speed at which Mr Gacitua drove. As the speed limit in the area was 80 kilometres per hour, when Mr Gacitua engaged in the dangerous passing manoeuvres, he was travelling only 20 kilometres over the limit.
Mr Mansfield acknowledged that the Judge was justified in describing Mr Gacitua’s driving as “consistently bad and dangerous” but said it was not as serious or as dangerous as encountered in many cases involving fatal accidents. He pointed out that the excessive speed and dangerous passing manoeuvres did not contribute to the accident which arose from Mr Gacitua’s failure to see oncoming traffic when he executed the right hand turn.
While it is accepted that Mr Gacitua consumed alcohol in the course of the evening, Mr Mansfield submitted that the Judge erred in treating alcohol as an aggravating factor. He pointed out that Mr Gacitua underwent a passive breath test at the roadside which recorded a nil reading. Accordingly, he contended that there was no basis for concluding that alcohol was a contributing factor.
Mr Mansfield referred to three cases which, he said, indicated that the starting point of five years adopted by Venning J was excessive. In R v Vanstone the prisoner had been driving in excess of the 100 kilometre per hour speed limit when he approached a corner driving on the wrong side of the road and collided with an oncoming vehicle.[6] One of the passengers in his car died at the scene. He had ignored warnings from passengers to slow down. His blood count of 83 milligrammes of alcohol per 100 millilitres of blood was more than twice the legal limit for a 19-year-old. A starting point of five years imprisonment was adopted, uplifted by one year to reflect previous convictions for driving and drink driving offences. After discounts for mitigating factors, an end sentence of three years and six months imprisonment was imposed on a count of manslaughter with concurrent sentences on charges of reckless driving causing injury and driving with excess breath alcohol.
[6]R v Vanstone HC Hamilton CRI-2010-068-603, 19 April 2011.
In R v Prince Mr Prince drove at speeds of up to 140 kilometres per hour whilst erratically swerving from one side of the road to the other.[7] He had drunk five or six pre-mixed alcoholic beverages during the evening. He was on a restricted licence. He ignored pleas from his passengers to slow down. He lost control of his vehicle which ended up on its roof in a ditch. One of the passengers was knocked unconscious and drowned. The rest suffered a range of injuries. On a charge of manslaughter, the Court adopted a starting point of five years imprisonment. Mitigating factors reduced the sentence to two years imprisonment. Ultimately, a sentence of 12 months home detention and 250 hours community work was imposed.
[7]R v Prince HC Wanganui CRI-2011-083-1775, 5 December 2011.
McCullough v Police was an appeal against a sentence of two years imprisonment imposed in the District Court on one charge of causing death while driving under the influence of drink and another of causing bodily injury.[8] The charges, brought pursuant to s 61(2)(a) of the Land Transport Act, carried a maximum penalty of 10 years imprisonment.[9] Ms McCullough had been drinking at a party. Driving on a restricted licence, she left with three passengers driving an unregistered and unwarranted vehicle. She crashed into a power pole while travelling at 100 kilometres per hour in a 100 kilometres per hour zone. One passenger was killed and another received head injuries. Ms McCullough had a blood alcohol reading of over twice the legal limit. A starting point of three and a half years imprisonment was adopted in the District Court. After discounts for mitigating factors, a final sentence of two years imprisonment was imposed. The High Court found the starting point had not been manifestly excessive and that the sentencing Judge did not err in declining to sentence Ms McCullough to home detention.
[8]McCullough v Police [2013] NZHC 279.
[9]Following the increase in sentences referred to in [10] above. See also [29] below.
Mr Mansfield pointed out that all three cases had aggravating features, among them the excessive consumption of alcohol, that were not present in this case.
Discussion
Sentencing in cases in which death has been caused by dangerous or reckless driving or driving when under the influence of alcohol or drugs is highly fact‑specific. This Court has said on numerous occasions that so much depends on the particular circumstances of the offending.[10] Prior to the increase in the maximum sentence for dangerous or reckless driving causing death, a starting point range of between two and five years prevailed with a general sentencing range of 18 months to three years for cases without significant aggravating or mitigating factors.[11] However, higher starting points and end sentences could be and were imposed in more serious cases when a charge of manslaughter was brought. Indeed, this Court has said that the only purpose for charging manslaughter in driving cases is because the appropriate penalty should exceed the maximum provided for Land Transport Act offences.[12] A consequence of the increase in the maximum sentence for serious charges under the Land Transport Act is to permit the court to impose sentences in cases which would not previously have been possible without a charge of manslaughter.
[10]R v Skerrett, above n 5; R v Fallowfield [1996] 3 NZLR 657 (CA); and Hancy v R, above n 2, at [27].
[11]Hancy v R, above n 2, at [29].
[12]R v Fallowfield, above n 10, at 661.
Before considering the possible impact of the increased maximum sentences on sentencing levels, it will be helpful to review the accepted approach to sentencing in cases in this category. Whether sentencing under the Land Transport Act or on a charge of manslaughter, it has been the practice in New Zealand to measure culpability by reference to factors listed in Skerrett which adopted the aggravating and mitigating factors for sentencing for reckless or dangerous driving causing injury or death identified by the English Court of Appeal in R v Boswell.[13]The guidance provided by Boswell has been updated in R v Cooksley to take account of legislative changes in the United Kingdom including, in 1993, increasing the maximum penalty for the offence of dangerous driving causing death from five years imprisonment to 10 years.[14]
[13]R v Boswell [1984] 3 All ER 353 (Crim App) at 357.
[14]R v Cooksley [2003] 3 All ER 40 (Crim App) at [5].
At the beginning of the judgment in Cooksley, Lord Woolf CJ referred to the difficulties of sentencing in cases where death is caused by dangerous driving by quoting the Chairman of the Sentencing Advisory Panel which had recommended the new sentencing guidelines under consideration. The Chairman said:[15]
… This offence causes particular difficulty for sentencers. By definition, it is one which always gives rise to extremely serious harm: the death of at least one victim (and in some cases serious injury to others). Understandably this often leads to calls from victims’ families, and from the wider community, for tough sentencing. On the other hand, an offender sentenced for causing death by dangerous driving did not intend to cause death or serious injury, even in the extreme case where he or she deliberately drove for a prolonged period with no regard for the safety of others. …
[15]At [1].
The Court went on to adopt the aggravating and mitigating factors identified by the Panel. Aggravating factors, in four categories, were as follows:[16]
[16]These are set out at [15] of the judgment.
Highly culpable standard of driving at time of offence
(a)The consumption of drugs (including legal medication known to cause drowsiness) or of alcohol, ranging from a couple of drinks to a ‘motorised pub crawl’.
(b)Greatly excessive speed; racing; competitive driving against another vehicle; ‘showing off’.
(c)Disregard of warnings from fellow passengers.
(d)A prolonged, persistent and deliberate course of very bad driving.
(e)Aggressive driving (such as driving much too close to the vehicle in front, persistent inappropriate attempts to overtake, or cutting in after overtaking).
(f)Driving while the driver’s attention is avoidably distracted, e.g. by reading or by use of a mobile phone (especially if hand-held).
(g)Driving when knowingly suffering from a medical condition which significantly impairs the offender’s driving skills.
(h)Driving when knowingly deprived of adequate sleep or rest.
(i)Driving a poorly maintained or dangerously loaded vehicle, especially where this has been motivated by commercial concerns.
Driving habitually below acceptable standard
(j)Other offences committed at the same time, such as driving without ever having held a licence; driving while disqualified; driving without insurance; driving while a learner without supervision; taking a vehicle without consent; driving a stolen vehicle.
(k)Previous convictions for motoring offences, particularly offences which involve bad driving or the consumption of excessive alcohol before driving.
Outcome of offence
(l)More than one person killed as a result of the offence (especially if the offender knowingly put more than one person at risk or the occurrence of multiple deaths was foreseeable).
(m)Serious injury to one or more victims, in addition to the death(s).
Irresponsible behaviour at time of offence
(n)Behaviour at the time of the offence, such as failing to stop, falsely claiming that one of the victims was responsible for the crash, or trying to throw the victim off the bonnet of the car by swerving in order to escape.
(o)Causing death in the course of dangerous driving in an attempt to avoid detection or apprehension.
(p)Offence committed while the offender was on bail.
Mitigating factors were as follows:[17]
Mitigating factors
(a)A good driving record;
(b)The absence of previous convictions;
(c)A timely plea of guilty;
(d)Genuine shock or remorse (which may be greater if the victim is either a close relation or a friend);
(e)The offender’s age (but only in cases where lack of driving experience has contributed to the commission of the offence), and
(f)The fact that the offender has also been seriously injured as a result of the accident caused by the dangerous driving.
[17]These are also set out at [15] of the judgment.
The Court then identified starting points for sentence in four categories:
(a)In cases in which no aggravating features are present, a starting point of between 12 and 18 months.
(b)An offence involving a momentary dangerous error of judgement or a short period of bad driving, aggravated by a habitually unacceptable standard of driving (factors (j) or (k)), by the death of more than one victim or serious injury to other victims (factors (l) and (m)) or by irresponsible behaviour at the time of the offence (factors (n) to (p)), a starting point of two to three years.
(c)When the standard of driving is more highly dangerous (as indicated, for example, by the presence of one or two of factors (a) to (i), a starting point of four to five years.
(d)Cases involving extremely high level of culpability involving three or more of the aggravating factors (a) to (i), a starting point of six years imprisonment.[18]
[18]These starting points were reassessed in R v Richardson [2007] 2 All ER 601 (Crim App), to take account of an increase in the maximum sentence for serious driving offences causing death from 10 to 14 years.
There may be a case for establishing in New Zealand a tariff for categories of offending at different levels of culpability along the lines discussed in Cooksley. But it would be necessary to adapt the approach in the United Kingdom to take account of matters such as the statutory framework under our Sentencing Act 2002 and the sentencing methodology established by this Court in R v Taueki.[19] There may also be a need to adapt the guidelines to reflect New Zealand conditions and community expectations. For these reasons, we would prefer to have this issue more fully considered by the Permanent Court in an appropriate case.
[19]R v Taueki [2005] 3 NZLR 372 (CA).
For the present, however, the Cooksley guidelines are useful in identifying some of the aggravating and mitigating factors relevant to sentencing in cases of this kind. Of course, the weight to be attached to these factors will be a matter to be determined in individual cases. We would not necessarily endorse the suggested sentencing bands in Cooksley.
The legislative changes increase the maximum sentence for causing injury or death by driving recklessly or at a speed or in a manner that is or might be dangerous and when driving under the influence of alcohol or drugs or in excess of the alcohol limits.[20] Their purpose, according to the Explanatory note to the bill, was to:[21]
... toughen sanctions for serious or repeat driving offenders by … doubling the maximum period of imprisonment from 5 years to 10 years for drunk, drugged, dangerous, or reckless drivers who cause death. …
The impact of the changes in cases where death has resulted have been considered in a handful of cases.
[20]Effected by ss 20, 21, 27 and 29 of the Land Transport (Road Safety and Other Matters) Amendment Act 2011.
[21]Land Transport (Road Safety and Other Matters) Amendment Bill 2011 (213-1) (explanatory note). The Regulatory Impact Statement released with the explanatory note at the first reading provides a more detailed explanation of the thinking behind the increased sentences.
In R v Teece, Judge Zohrab adopted a starting point of five years and imposed a sentence of three years on a charge of driving at a dangerous speed causing the death of a person, contrary to the new s 36AA of the Land Transport Act.[22] The aggravating factors were identified as driving at excessive speed, overtaking dangerously and a poor driving record. The starting point may be regarded as inflated by the inclusion of the last factor which would normally be treated as a personal aggravating factor and added to the starting point.
[22]R v Teece [2012] DCR 450.
In Ko v Police Panckhurst J considered an appeal against an effective sentence of one year and nine months imprisonment imposed on a charge of dangerous driving causing death and four charges of dangerous driving causing injury.[23] A starting point of three years imprisonment had been adopted. The fatal collision occurred after the appellant had attempted to pass a truck, crossing double yellow lines. A head-on collision occurred, causing the death of a passenger in the other car and serious injuries to four of the occupants of the cars. Panckhurst J found the starting point to have been within the available range but substituted a sentence of home detention and community work for the term of imprisonment.
[23]Ko v Police [2012] NZHC 3312.
Finally, we refer to McCullough v Police,[24] one of the cases relied on by Mr Mansfield. The key issue on appeal was whether the starting point of three and a half years was outside the range. Brewer J found it was not. He was not required to consider whether, in light of the increased penalty, a higher starting point might have been justified.
[24]McCullough v Police, above n 8.
Sentencing in manslaughter cases has generally involved more aggravating features, invariably including the consumption of alcohol as in Prince[25] and Vanstone[26] relied on by Mr Mansfield. They provide guidance to the existing sentencing range for the more serious offending to which the Road Transport Act could now apply.
[25]R v Prince, above n 7.
[26]R v Vanstone, above n 6.
In R v Barclay Mr Barclay drove at 40–50 kilometres per hour over the speed limit, lost control of his vehicle, crossed the median line and collided with an oncoming car.[27] One occupant was killed and another seriously injured. Simon France J assessed the driving as in the mid-range of offending of this type, taking into account that the duration of the bad driving was less than often encountered. He adopted a starting point of five and a half to six years.
[27]R v Barclay HC Nelson CRI-2006-042-4085, 31 May 2007.
In R v Hoskins Mr Hoskins drove whilst under the influence of alcohol.[28] He drove erratically and at speed, ignoring an associate’s warning to go slower. He lost control while driving at between 84 and 104 kilometres per hour in a 70 kilometre per hour zone. A pedestrian and her dog were killed. Mr Hoskins then left the scene. Miller J adopted a starting point of five and a half years imprisonment, although he said that he would have adopted a starting point up to 18 months higher were it not for the fact that Mr Hoskins suffered from severe dyslexia.
[28]R v Hoskins HC Wanganui CRI-2010-083-2713, 9 May 2011.
In R v Te Maari Mr Te Maari drove while disqualified and on bail for driving while disqualified.[29] He had consumed alcohol and was in excess of the legal limit. He drove at an excessive speed in a 50 kilometre per hour zone, attempting a manoeuvre called “drifting”. His vehicle slid into the path of an oncoming car, killing the front seat passenger in his car and causing the passenger in the oncoming vehicle serious injuries. A starting point of seven years and six months imprisonment was adopted by Gendall J.
[29]R v Te Maari HC Nelson CRI-2011-042-1451, 22 June 2011.
We have also considered other manslaughter cases in which alcohol was an aggravating factor which indicate a starting point of between six years and six years six months[30] and cases in which two deaths ensued in which starting points of 8 years and 8 years 6 months were adopted.[31]
[30]R v Watson HC Auckland CRI-2010-090-3663, 4 October 2011; R v Emery HC Tauranga CRI‑2010-070-7808, 1 July 2011; R v Elliott HC Hamilton CRI-2011-219-182, 17 November 2011; R v Clarke HC Palmerston North CRI-2010-039-152, 25 March 2011; R v Wagener HC Invercargill CRI-2010-025-191, 8 June 2010; and R v Tumahai HC Hamilton CRI-2011-019-1692, 8 December 2011.
[31]R v Tu HC Gisborne S3/2001, 21 February 2001 and R v Reihana [2013] NZHC 1273.
Our analysis of the motor manslaughter cases suggests that sentencing has generally reflected appropriately the aggravating features involved. It will be a matter for the prosecutor's discretion as to whether charges under the Land Transport Act will be sufficient to reflect the seriousness of the offending in the particular case or whether a charge of manslaughter may be required in especially serious cases.
Sentence in this case
It is convenient first to address the submission that the consumption of alcohol should not have been regarded as an aggravating factor. Ms Bicknell argued that the consumption of alcohol (or drugs) should be treated as an aggravating factor even if, in the case of alcohol, blood or breath readings are within legal limits. As a general rule, we agree. As the Judge said, alcohol is recognised as a disinhibitor. When bad driving follows alcohol consumption, a causal link can generally be assumed, even if the driver is within legal limits. However, where, as in this case, the driver has been tested and no alcohol detected on his breath, there is simply no basis to infer that the prior consumption of alcohol played any part in the bad driving. While it will generally be right to treat the prior consumption of alcohol as an aggravating factor, in our view, it should not have been in this case.
We do not accept, however, that the Judge placed excessive weight on other aspects of the way in which Mr Gacitua drove that night. His sentencing remarks show that he had a clear and accurate appreciation of the speed at which Mr Gacitua travelled and the conditions that prevailed. He recognised that the accident itself was not caused by the most dangerous of the manoeuvres he undertook. It was nevertheless utterly foolhardy for Mr Gacitua to pass a stationary or slow moving vehicle and make a right turn when he could not see the road ahead. It was itself a reckless act that, as the Judge said, was the culmination of a consistently bad and dangerous piece of driving. It was not an isolated lapse. It would be artificial to divorce the accident from the course of driving that preceded it. Death was the result of a prolonged episode of dangerous driving, not an isolated error of judgement.
Reference to the aggravating factors identified in Cooksley confirms that Mr Gacitua’s driving could fairly be characterised as highly dangerous. Factor (b) clearly was present. It may be that Mr Gacitua did not drive at a greatly excessive speed (although at least 20 kilometres per hour over the limit), and, by agreeing to the deletion of a reference to racing from the summary of facts, the prosecution accepted that Mr Gacitua and Mr Matthews were not racing. However, the two unquestionably engaged in a sustained bout of high speed competitive driving. Mr Matthews pursued Mr Gacitua from the time they entered Mill Road, following closely behind him and engaging in the same passing manoeuvres. This sort of driving behaviour promotes just the sort of risk-taking that caused the accident and is rightly identified as a distinct aggravating factor. Factor (d) of Cooksley was also plainly present and, in our view, Mr Gacitua’s driving could also be fairly characterised as aggressive in terms of factor (e).
While we have identified three of the aggravating factors identified in Cooksley, we see a significant overlap in the three aggravating factors which apply to Mr Gacitua. This suggests that Mr Gacitua’s culpability should be assessed as high but not at the most serious level. A starting point in the four to five year range would be appropriate on that footing.
By reference to the sentencing range prevailing before the 2011 increases, a starting point of that order would have been excessive. But having regard to Parliament’s clearly expressed intention to increase sentences for reckless and dangerous driving causing death, we find the starting point adopted by Venning J in this case to be within the available range. Parliament has moved decisively to respond to public concerns over the road toll. While it is regrettable that a young man of unblemished character and obvious potential should face a lengthy prison term, the public interest in discouraging dangerous and grossly irresponsible driving must prevail.
There is no challenge to the adjustments made to the starting point adopted by Venning J. We agree that the final sentence is appropriate.
Result
The appeal is dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent
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