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…
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 Gacitua v R
Sign in free to access the full text
Details
AGLC
Gacitua v R [2013] NZCA 234
Case
[2013] NZCA 234
Decision Date
CaseChat Overview and Summary
In the Court of Appeal of New Zealand, Felipe Gacitua appealed against his sentence of three years imprisonment for reckless driving causing death and reckless driving causing injury, contending the sentence was manifestly excessive. The court was required to determine whether the starting point of five years imprisonment adopted by the sentencing judge was outside the available range and whether the judge gave undue weight to aggravating factors. The court found that while the consumption of alcohol should not have been regarded as an aggravating factor in this case, the judge's assessment of the dangerous nature of Gacitua's driving was accurate. The court held that the starting point adopted by the judge was within the available range and the sentence was appropriate, given Parliament's intention to increase sentences for reckless and dangerous driving causing death. The appeal was dismissed, and the final sentence was upheld.