R v Gosling - [2019] NZHC 1233

IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY

I TE KŌTI MATUA O AOTEAROA TE TIHI-O-MARU ROHE

CRI-2018-076-000876

[2019] NZHC 1233

THE QUEEN

v

WALTER JOHN GOSLING

Hearing: 31 May 2019

Appearances:

H Bennett for Crown C Eason for Defendant

Judgment:

31 May 2019

SENTENCING NOTES OF DUNNINGHAM J

[1] Mr Gosling as you know, you are here today to be sentenced because you have pleaded guilty to one charge of manslaughter and to one charge of excess blood alcohol causing injury. The Crown has advised it is not pursuing the alternative charge of driving with excess blood alcohol causing death and, just for the formalities, that charge is dismissed.

[2] The charges arise out of events that occurred on 19 February 2018 when you were at home in Temuka with two associates of yours from childhood, Ricky Foster and Troy Lowry. You consumed approximately half a bottle of rum that evening. At some point late in the evening you all decided to go for a drive in your Holden Commodore car, with you explaining afterwards that you wanted to show off your car

R v GOSLING [2019] NZHC 1233 [31 May 2019]

to them. Mr Lowry sat in the front passenger seat and Mr Foster in the rear seat. Mr Foster was not wearing a seat belt.

[3] You drove the three of you out of Temuka and on to the country roads. At the time it was raining and the road was wet and visibility was poor. At around 12.30 am you were driving along Factory Road near Winchester. As you neared the intersection with Bain Road you were driving at a speed of approximately 236 kilometres per hour. Immediately past the intersection there is a moderate right hand bend with a posted speed advisory of 75 kilometres per hour. At this point, you lost control of the car, sliding and crashing into a water race on the left hand side of the road. The vehicle rolled over several times before coming to rest in the water race facing the direction from which it had come. The vehicle finally stopped at a point approximately 72 metres from when it first impacted the water race. The deceased victim was ejected from the vehicle, either through the rear window or back door, at some point before it came to rest and his body was located some 25 metres from the vehicle and was submerged in the water.

[4] You received a fractured eye socket, lacerations and bruising. Mr Lowry received a broken arm, lacerations and bruising, while Mr Foster died from head injuries received during the crash. When your blood was analysed it showed there was 99 milligrams of alcohol per 100 millilitres of blood, which obviously exceeds the legal limit.

Approach to sentencing

[5] In sentencing you today, I am bound to take into account the purposes and principles of the Sentencing Act. Relevantly today, that means I must denounce your conduct and I must hold you accountable…

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 Gosling

Details

AGLC: R v Gosling [2019] NZHC 1233
Case: [2019] NZHC 1233
Decision Date: 31 May 2019

CaseChat Overview and Summary

In the High Court of New Zealand Timaru Registry, the defendant, Walter John Gosling, was sentenced by Justice Dunningham on 31 May 2019. The charges against Mr Gosling arose from a car accident that occurred on 19 February 2018, in which he was driving at an excessive speed under the influence of alcohol, resulting in the death of one passenger and injuries to others. Mr Gosling pleaded guilty to one count of manslaughter and one count of excess blood alcohol causing injury. The court was required to determine the appropriate sentence, taking into account the purposes and principles of the Sentencing Act, including denunciation, accountability, and rehabilitation. The court also needed to consider the circumstances of the offence, including the excessive speed, alcohol consumption, and lack of seatbelt use by the passengers.

The court began by setting a starting point for the sentence based on the seriousness of the offending, which was six years and three months' imprisonment. This was adjusted by three months to reflect Mr Gosling's prior drink driving offending and reduced by eight months to account for mitigating factors such as his genuine remorse and willingness to participate in the restorative justice process. Finally, the court applied a 25% discount for his guilty plea, resulting in a final sentence of four years, four months, and two weeks' imprisonment for manslaughter, to be served concurrently with a two-year sentence for excess blood alcohol causing injury. The court also imposed a two-year driving disqualification and ordered Mr Gosling to pay reparation for the cost of the blood alcohol analysis fees.

In summary, the court imposed a sentence of four years, four months, and two weeks' imprisonment on Mr Gosling for manslaughter, to be served concurrently with a two-year sentence for excess blood alcohol causing injury. The court also imposed a two-year driving disqualification and ordered Mr Gosling to pay reparation for the cost of the blood alcohol analysis fees. Additionally, Mr Gosling was subject to the three strikes law and received a warning of the consequences of another serious violence conviction.

Orders