R v Cossey - [2019] NZCA 104

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA262/2018
[2019] NZCA 104

BETWEEN	THE QUEEN Appellant
AND	DYLAN COSSEY Respondent

Hearing:	12 March 2019
Court:	Cooper, Clifford and Williams JJ
Counsel:	C A Brook for Appellant P J Morgan QC and M L Jepson for Respondent
Judgment:	10 April 2019 at 3 pm

JUDGMENT OF THE COURT

The appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Clifford J)

Introduction

A tragic motor accident near Hamilton airport on the evening of 24 June 2016 resulted in the death of four people, and critical injuries to a fifth. Following that accident, the respondent, Dylan Cossey, faced four charges of manslaughter, one charge of racing causing injury and one charge of failing to stop and ascertain injury after an accident.
The charges Mr Cossey faced were based on the central proposition that immediately prior to the accident — which did not involve the car Mr Cossey was driving — he had for some time been racing with another vehicle. It was that other vehicle which, having just overtaken Mr Cossey’s vehicle, collided with an oncoming van. It was the four occupants of that vehicle — including its driver — who were killed, and the driver of that van who was critically injured. At the time of the accident Mr Cossey was 18 years old. He turned 19 the following September. In breach of his restricted licence, he was driving unsupervised with passengers.
Mr Cossey pleaded not guilty to all of the charges he faced. Following a jury trial, he was found guilty on all counts. Mr Cossey was later sentenced by the trial Judge, Hinton J, to 12 months’ home detention, 400 hours community work and was disqualified from holding a driver’s licence for seven years.[1]
[1]R v Cossey [2018] NZHC 887.
One of Mr Cossey’s passengers, Mr Jones, was jointly charged with Mr Cossey on the six charges Mr Cossey was found guilty on, and on a seventh of attempting to pervert the course of justice. The Crown’s case was that, as reflected particularly by his action in video recording some 38 seconds of the “race”, he had encouraged Mr Cossey’s offending. The additional charge he faced of attempting to pervert the course of justice was based on the fact that, after the accident, Mr Jones edited the original video down to one of 13 seconds in length. The jury found Mr Jones not guilty on the manslaughter and causing injury charges but guilty on the charge of failing to stop and also guilty on the charge of attempting to pervert the course of justice. Mr Jones was subsequently sentenced by Hinton J to eight months’ home detention and disqualified from holding a driver’s licence for one year.[2] There is no challenge to that sentence. Accordingly, it is only necessary for us to refer to Mr Jones’ involvement as that relates to the Solicitor-General’s appeal.
[2]R v Jones [2018] NZHC 984

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 Cossey

Details

AGLC: R v Cossey [2019] NZCA 104
Case: [2019] NZCA 104
Decision Date: 10 April 2019 at 3 pm

CaseChat Overview and Summary

The appeal by the Solicitor-General against the sentence of Dylan Cossey, who was convicted of multiple charges including manslaughter, was dismissed by the Court of Appeal of New Zealand. Cossey had been involved in a high-speed racing incident that resulted in the deaths of four people and critical injuries to a fifth. He was sentenced to 12 months’ home detention, 400 hours of community work, and disqualified from holding a driver’s licence for seven years. The Solicitor-General argued that Cossey's sentence was manifestly inadequate and that he should have received at least five years' imprisonment. The Court acknowledged that the starting point for Cossey's sentence should have been higher, considering the aggravating factors such as excessive speed, the scale of the tragedy, and Cossey's breach of his restricted licence. However, the Court found that given Cossey had served almost his entire sentence and had made significant progress in rehabilitation, it was not appropriate to now sentence him to imprisonment. The appeal was therefore dismissed.

Orders