R v Gacitua - [2012] NZHC 2542

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…

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 Gacitua

Details

AGLC: R v Gacitua [2012] NZHC 2542
Case: [2012] NZHC 2542
Decision Date: 2 October 2012

CaseChat Overview and Summary

Felipe Alejandro Gacitua was sentenced in the High Court of New Zealand, Auckland Registry, on charges of reckless driving causing death and reckless driving causing injury. The charges stemmed from an accident on 13 August in which Gacitua's partner, Ms Fay Roberts, was killed and Mrs Linda Brown, a passenger in an oncoming car, was seriously injured. Gacitua pleaded guilty to both charges. The court considered the aggravating and mitigating factors relevant to sentencing, including the increase in the maximum term of imprisonment for such offences by Parliament, which was intended to promote road safety. The court found that Gacitua had driven in a persistently dangerous manner for approximately 10 minutes, overtaking vehicles in an unsafe way and driving at excessive speeds. While Gacitua was not over the legal alcohol limit, alcohol was recognised as a disinhibitor and may have played a factor in his driving.

The court assessed Gacitua's culpability and overall responsibility for the harm caused to the victims and their families. The court also considered the need for denunciation and deterrence in relation to such offences, as well as Gacitua's rehabilitation and reintegration into the community. Gacitua's personal mitigating factors, such as his young age, lack of previous criminal convictions, and genuine remorse, were taken into account. The court also considered Gacitua's guilty plea, although it was not entered at the earliest possible time due to issues regarding his representation and attempts to obtain a grant of legal aid.

Gacitua was sentenced to three years' imprisonment on the charge of reckless driving causing death and two years' imprisonment on the charge of reckless driving causing injury. The sentences were to run concurrently, with an effective sentence of three years. Gacitua was also disqualified from holding or obtaining a driver's licence for a period of four years from the date of the sentence.

Orders