dissenting.
I concur in the view expressed by Justice Burke. I have, however, some additional observations.
First, the court questions whether we ought to “compare Pears’s sentence with prior manslaughter sentences involving drunken drivers or with second degree murder sentences.” Opinion at 1202. This question tacitly assumes we ought to do one or the other. In my view, we must first ask whether either comparison is appropriate. I think not.
This is not a situation in which the legislature has merely renominated an offense, retaining the same elements previously prescribed. Rather, the crime has been redefined. As the court points out, under the prior statutes a specific intent to kill was required to convict on a charge of second degree murder, while merely reckless behavior sufficed to convict for manslaughter. Opinion at 1201-1202. Presumably Pears would have been tried only for manslaughter were the prior statutes in effect. The statute under which Pears was convicted, however, requires a finding that his conduct took place “under circumstances manifesting an extreme indifference to the value of human life_” AS 11.41.-110(a)(2). Since this qualitative judgment is a stranger to both former statutes, resort to comparisons with them is not useful.1
Since this case is one of first impression,2 it ought to be so judged. With regard to the alcohol-abusing automobile driver, this *1206court in Layland v. State, 549 P.2d 1182 (Alaska 1976), remarked as follows:
Recent statistics indicate that thousands of innocent people are killed or seriously injured nationwide each year by automobile drivers who take to the road in spite of the fact that they are highly intoxicated. Unlike many crimes, the victim has no way of protecting himself. While vehicular homicide does not require a criminal intent, the fact that a loss of life is involved compels us to consider it among the most serious offenses. The unique nature of the offense mandates that the trial court, in fashioning a sentence, place heavy emphasis on societal condemnation of the conduct and the need to protect society.
Id. at 1184. What was said in 1976 is no less true today. I think it fair to say that in the interim public awareness of and attitude toward the problems created by the alcohol-abusing automobile driver have altered significantly. So has the law, for the jury was required to find that Pears’ conduct evinced extreme indifference to human life, an element significantly more culpable than that required under the.former manslaughter statute.
The court notes Judge Hodges’ strong reliance on deterrence of Pears and others, and reaffirmation of societal norms in fashioning Pears’ sentence. Opinion at 1205. While it suggests that perhaps deterrence ought to be generally deemphasized, as well as deemphasized in this case, it neglects entirely the issue of societal norms on which Layland requires trial courts to place heavy emphasis. I agree that Judge Hodges strongly relied on reaffirmation of societal norms in fashioning this sentence, yet his judgment is being afforded little weight. His careful balancing of criteria which he is required to consider, coupled with this court’s pronouncement in Lay-land when the law required less culpability to convict for a lesser crime, lead me to conclude that the sentence imposed for the crime charged was not clearly mistaken.
. Another reason comparisons are not useful is that the issue in cases arising under the repealed sections is not what an appropriate maximum sentence could be; rather, the question is whether the sentence imposed is excessive. The fact that a sentence is not excessive does not mean that a greater sentence might not have been appropriate.
. The court cites three cases involving second degree murder sentences under the new statute, all decided by the court of appeals, remarking that "Pears’s conduct is not comparable to that reviewed in sentence appeals under the new second degree murder statute.” Opinion at 1202. However, the defendant in Minchow v. State, 670 P.2d 719 (Alaska App.1983), was convicted under AS 11.41.110(a)(2).
I agree with the statement quoted above in that in none of the cited cases was more than one person killed, and in none of them was the murder weapon an automobile.