R v Gacitua
[2012] NZHC 2542
•2 October 2012
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2011-092-015420 [2012] NZHC 2542
THE QUEEN
v
FELIPE ALEJANDRO GACITUA
Charges: Reckless driving causing death x1
Reckless driving causing injury x1
Plea: Guilty
Appearances: A Longdill for Crown
Prisoner in Person
MJ Dyhrberg - Amicus Curiae
Sentenced: 2 October 2012
Reckless driving cause death – 3 years’ imprisonment
Reckless driving cause injury – 2 years’ imprisonment (concurrent) Disqualified from holding or obtaining a driver’s licence for 4 years. Total: 3 years’ imprisonment
SENTENCING NOTES OF VENNING J
Solicitors: Crown Solicitor, Auckland
Copy to: M Dyhrberg, Auckland
Prisoner
R V GACITUA HC AK CRI-2011-092-015420 [2 October 2012]
[1] Mr Gacitua, at the age of 24 you are for sentence in this Court having pleaded guilty to one count of reckless driving causing death and one count of reckless driving causing injury. The charges follow a serious accident caused by you on 13
August last year in which your partner Ms Fay Roberts, the passenger in your car, was killed and Mrs Linda Brown, a passenger in an oncoming car was seriously injured.
[2] The maximum sentence on the most serious charge of reckless driving causing death is 10 years’ imprisonment or a fine not exceeding $20,000. Reckless driving causing injury carries a maximum sentence of five years’ imprisonment or a fine not exceeding $20,000.
[3] There is a procedural matter I should record at the outset. You are not formally represented by counsel although Ms Dyhrberg appears as amicus. Section
30 of the Sentencing Act 2002 provides that the Court may not impose a sentence of imprisonment on a person who has not been legally represented at the stage of the proceedings at which the offender was at risk of conviction.
[4] In your case a review of the file discloses that initially Mr Goodwin appeared for you. He then sought and was granted leave to withdraw. You then applied for legal aid on at least two separate occasions. Aid was declined for reasons which it is unnecessary for me to go into at this point. An application for review was apparently unsuccessful. In those circumstances ss 30(2) and 30(4)(a) of the Sentencing Act apply. In your case, despite those sections, before pleas were taken, the Court arranged for the appointment of Ms Dyhrberg as an amicus to assist. I record the Court’s gratitude to Ms Dyhrberg for accepting that role and for the assistance she has given you, both in relation to the entry of pleas and in the very thorough and full submissions she has made on your behalf for the purposes of sentencing today.
[5] As noted Mr Gacitua you are now 24 years old. You have no previous convictions. You arrived in New Zealand from Chile with your family when you were 12 years old. Your parents separated a number of years ago. Your mother now lives in Australia. You are not in contact with your father but have three siblings, all of whom live in New Zealand and remain supportive of you. After leaving school
you worked for a time as a tiler. For the last six years approximately you have been employed as a data cabler.
[6] I have read the letters of support put before the Court on your behalf. In particular I am impressed by the support that you have received from your employer and I hope that you continue to receive that support in the future.
[7] The probation officer reports you cannot explain why you acted as you did on the night of the accident. You described the deceased as your best friend. You and she had been in a relationship for a number of years. You found speaking about her to the probation officer difficult. The probation officer considers that you displayed great distress and remorse for your actions. She also considers that you showed insight into your inability to change what had happened or to make meaningful amends for the emotional damage you have caused. That insight is also reflected and displayed in the letter that you have written to the deceased’s parents and family that I have seen. The probation officer assesses you at a low risk of re-offending. She notes that the Court may well impose a sentence of imprisonment for this offending but recommends a combination of community work and home detention.
[8] I need to refer briefly to the facts of your offending.
[9] At about quarter to midnight on 13 August last year you were driving your car, a Toyota Corolla, in the Alfriston area. You had earlier left your girlfriend’s family’s address. You had consumed some alcohol during the evening. Your girlfriend, Fay Roberts, was the passenger in your car. Mr Matthews, a friend of yours, was also in a separate car. He was travelling behind you. With him was your sister.
[10] You drove along Mill Road, Alfriston, in a southerly direction. It is a predominantly rural area with an 80 km/h speed limit. However you were travelling in excess of 100 km/h. So was Mr Matthews. As you entered Mill Road from Redoubt Road there was a vehicle in front of you. That vehicle was travelling at approximately 80 km/h. At that stage of Mill Road there were double yellow solid no passing lines. Despite that, you increased your speed to travel in excess of 100
km/h and passed the car in front of you. Mr Matthews followed suit. You carried on down Mill Road. As you approached the intersection of Mill Road and Polo Prince Drive, you came up behind another vehicle. Still within an 80 km/h speed limit, with a painted median strip, you passed that car as well, again travelling in excess of 100 km/h. You crossed into the centre median to complete that passing manoeuvre. Mr Matthews was still travelling close behind you. You then carried on towards the intersection of Mill Road and Ranfurly Road. You intended to turn right into Ranfurly Road. At about this time your sister, who was in Mr Matthews’ vehicle, was concerned and told him to slow down. He did. You still carried on at the excessive speed that you were driving at.
[11] At the intersection of Mill Road and Ranfurly Road there were two cars in front of you, the first, travelling at around 80 km/h and the second, a Honda CRV, was ahead of that car. It was slowing to turn into Ranfurly Road. You overtook the first car and pulled in behind the Honda. You quickly caught up to the Honda because of the speed you were still travelling at. The Honda was itself indicating right into Ranfurly Road. You were forced to brake to avoid hitting the rear of the Honda. Without waiting for it to turn you pulled out from behind it in an attempt to turn right into Ranfurly Road and passed the Honda at the same time. There was no way you could have seen the road ahead of you. You pulled out without checking to see if the way was clear. To complete the manoeuvre that you were engaged in, you would have had to travel onto the wrong side of Ranfurly Road and around a raised traffic island at the intersection.
[12] At this time Mr and Mrs Brown were travelling in their car, a Suzuki Swift, north on Mill Road, approaching the intersection of Ranfurly Road. The driver of the Honda waiting to turn into Ranfurly Road, was effectively waiting to give way to the Browns as they had the right of way. You failed to give way. There was no way you could have stopped, driving the way you were, and you pulled out directly in front of the Browns. There was no time for Mr Brown to react or to do anything.
[13] The front left corner of your car collided with the front of the Browns’ car. The accident caused your car to be pushed backwards. The Browns’ car was put into a 180 degree spin. Ms Fay Roberts sustained multiple injuries which resulted in her
being declared dead at the scene of the accident. Mrs Brown received bruising and burning across her body from the seatbelt and a haematoma to the left side of her torso which caused her considerable discomfort for some period thereafter.
[14] In explanation you said you did not remember some of the journey and did not know why you turned before the Honda.
[15] In sentencing you for that offending I am required to consider the purposes and principles of the Sentencing Act. For the benefit of the victims of your offending I record the sentence must be imposed in accordance with those purposes and principles and after consideration of the relevant authorities. But the sentence that this Court imposes can never be any measure of the worth of the life of Ms Roberts, nor the impact that your offending has had on her family or the Browns. No sentence imposed by the Court can ever address that loss or effect.
[16] However, in sentencing you I am required to impose a sentence that holds you accountable for the harm you have caused to the victims of the offending. You have heard this morning of the terrible effect your actions have had on the surviving members of Ms Roberts’ family. You have also had, with Ms Dyhrberg’s assistance access to the victim impact reports from Mr and Mrs Brown.
[17] The sentence must also promote in you a sense of acknowledgement of and responsibility for the harm you have caused and in doing so in some way provide for the interests of your victims.
[18] The Court is also required to take into account the need for denunciation and deterrence in relation to offending of this nature. From the number of cases that counsel have referred to, regrettably offending of this nature occurs regularly. I am also required to consider your rehabilitation and reintegration into the community and to impose the least restrictive sentence appropriate in the circumstances.
[19] I am then required to assess the gravity of your offending, including your culpability which is reflected by your actions that night. I am also directed to
consider the seriousness of your offending. In that regard the maximum sentence
Parliament has applied now to offending of this nature is particularly relevant.
[20] As you have heard the Crown submit that an overall starting point in the region of four and half to five and a half years’ imprisonment is appropriate. They accept that a reduction from that starting point for your relatively young age, previous good character and guilty plea would be available. The Crown seeks to have you disqualified from holding or obtaining a driver’s licence for four years.
[21] Ms Dyhrberg has submitted a starting point in the range of three and a half to four and a half years would be open to the Court and that a disqualification between two and three years would be appropriate. She submits that with appropriate mitigating factors taken into account it could be possible for the Court to arrive at a sentence of two years which would enable consideration of home detention and community work.
[22] In R v Skerrett1 and in Hancy v R2 the Court of Appeal discussed the aggravating and mitigating features for sentencing for reckless or dangerous driving causing injury or death identified by the English Court of Appeal in the cases of
R v Boswell3 and R v Cooksley.4 Aggravating factors can include:
consumption of alcohol;
excessive speed;
prolonged, persistent and deliberate courses of very bad driving;
aggressive driving;
driving a poorly maintained car;
a serious injury or death to one or more victims.
1 R v Skerrett CA236/86, 9 December 1986.
2 Hancy v R [2009] NZCA 469 at [27].
3 R v Boswell (1984) 79 Cr App R 277 at 282.
4 R v Cooksley [2003] 3 All ER 40 at [15].
[23] It has also been suggested in the case of R v Delany5 that driving of this sort is a breach of trust, particularly where one of the victims is a family member or close friend as the victim was in this case.
[24] Importantly in this case, the section that you have been charged under was amended as from 10 May last year as part of the reforms by the Government implemented and intended to promote road safety. On the third reading of the Bill I note that the Hon Steven Joyce, the Minister of Transport, said, relevantly:6
Far too many of us grieve the loss of loved ones killed in crashes on our roads. These crashes also impose considerable economic and social costs on our communities.
He suggested that the Bill might further reduce the trauma and social costs arising from road crashes.
[25] In the amended Act Parliament doubled the maximum period of imprisonment for offending of this nature from five to 10 years. In doing so Parliament has sent a message to the Court that tougher sanctions are required for drunk, drugged, dangerous or reckless drivers who cause death.
[26] Prior to that increase the Court of Appeal in Hancy v R reviewed the appropriate sentences for reckless or dangerous driving causing death and noted that:7
... The suggested range [18 to 36 months – end sentence] is also consistent with a submission made to this Court in R v Ellison [[2007] NZCA 549 at [15]] that recent cases referred to in argument revealed a starting point range for offences of dangerous or reckless driving causing death of between two and five years. In that case the Court upheld a sentence of two years six months imprisonment for what was described as a particularly bad case of reckless driving causing death [(at [24])].
(emphasis added)
[27] In fixing the appropriate start point for you, it is necessary for this Court to take into account the effect of the increase in the maximum term of imprisonment
5 R v Delany HC Christchurch T95/02, 16 April 2003 at [16].
6 (5 May 2011) 672 NZPD 18424.
7 Hancy v R at [29].
prescribed by Parliament. As the Court of Appeal said in R v A, after the sentence for rape offending was increased, the:8
... approach must be significantly influenced by the decision of our Parliament to raise the maximum sentence ... Sentencing is a field in which there is genuine room for differences of informed opinion, but it is well established that the Courts should have regard to a policy of our Parliament evinced by an increase in the maximum penalty for particular offences: R v Spartalis [[1979] 2 NZLR 265].
And later, a more severe sentencing approach is called for by the new legislation but facts of individual cases vary greatly.9 However, as the Court of Appeal also observed in that case, sentencing is not a purely mathematical exercise. It is not a case of simply doubling what otherwise might have been regarded as the appropriate starting point.
[28] Counsel referred to one case that has been decided after the Act was amended, R v Teece,10 a decision of the District Court. Mr Teece drove at an excess of speed across an intersection. He failed to give way to a truck and trailer unit. His front seat passenger was killed in the accident. He suffered severe brain injuries himself. He had a substantial number of prior driving convictions. The Judge took a start point of five years’ imprisonment and an end sentence of three years.
[29] I have considered that case and the other cases referred to by counsel. I note the Crown referred to R v Tanirau11 and Tiplady v Police.12 In Tanirau the Court of Appeal upheld a starting point of four years’ imprisonment. Mr Tanirau had consumed alcohol before driving at 110 km/h in a 50 km/h zone. He lost control of his car. One passenger was killed and one injured. In Tiplady the starting point of four and a half years was upheld in respect of three counts of reckless driving
causing injury.
[30] Against that I acknowledge the cases Ms Dyhrberg referred to, starting with
R v Prince.13 In Prince the charge was manslaughter. From a starting point of five
8 R v A [1994] 2 NZLR 129 (CA) at 131.
9 R v A at 132.
10 R v Teece DC Nelson CRI-2011-42-3416, 3 February 2012.
11 R v Tanirau [2008] NZCA 9.
12 Tiplady v Police (2004) 20 CRNZ 1071 (HC).
13 R v Prince HC Whanganui CRI-2011-083-1775 5 December 2011.
years the Judge took a significant reduction of three years leading to the availability of home detention. The Judge said that in doing so he was going out on a limb. There were particular features of that case, including that Mr Prince was only 18 years old at the time. There had been a full restorative justice meeting. The victim’s whanau expressly did not seek imprisonment.
[31] In R v Moana14 the defendants pleaded guilty to dangerous driving causing death. The Judge took a starting point of three and a half years, imposing a final sentence of two years for one and 12 months’ home detention for the other. I have also had regard to the cases of Police v Bracken15 and Khan v Police.16 However, I remind myself that all these cases were decided before the increase in the maximum sentence.
[32] In the present case in assessing your culpability I take into account the following particularly relevant factors. 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 recognised it as a relevant factor, even
if under the legal limit. It is an aggravating feature.
14 R v Moana [2008] DCR 326 (HC).
15 Police v Bracken HC Whangarei CRI 2007-488-00051, 7 September 2007.
16 Khan v Police HC Auckland A89/01, 24 July 2001.
[33] For completeness I note the reference in Crown submissions to only one of the headlights on your car working. There is no evidence you were aware of it, and it cannot be said to have contributed to the accident on the circumstances described in the summary. I put that to one side.
[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.
[36] There are no personal aggravating features. I then have regard to your personal mitigating factors. As noted you are still a young man. You have no previous criminal convictions. You are also genuinely remorseful. You are entitled to a substantial credit for those positive features. I reduce the starting point by 12 months for them.
[37] I then have regard to your guilty plea. Your guilty plea was not entered at the earliest possible time. I note there were a number of appearances in this Court after committal. However, I accept that most of those appearances were required because of issues regarding your representation and your attempts to obtain a grant of legal aid.
[38] This case had to be adjourned several times to enable you to apply for legal aid and for those applications to be considered. Ultimately, as noted, you were not granted legal aid, and Ms Dyhrberg was appointed as counsel to assist the Court. You then entered guilty pleas promptly after having the opportunity of discussing the matter with her. In the rather unusual circumstances of this case and the way it has developed I propose to give you a maximum discount of 25 per cent, even though the Crown case against you was undoubtedly a strong one. You were entitled to have the assistance of a lawyer before determining your plea.
[39] The issue of home detention does not arise Mr Gacitua. Please stand.
[40] Mr Gacitua on the charge of reckless driving causing death you are sentenced to three years’ imprisonment. On the charge of reckless driving causing injury you are sentenced to two years’ imprisonment. The sentences are concurrent. The effective sentence is three years.
[41] On both charges you are disqualified from holding or obtaining a driver’s
licence for a period of four years from today. Stand down.
Venning J
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