Cassidy-Gugich v R - [2016] NZHC 3027

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2016-404-000374 [2016] NZHC 3027

BETWEEN
HARRISON CASSIDY-GUGICH

Appellant

AND

THE QUEEN Respondent

Hearing: 13 December 2016

Counsel:

B Vaili for Appellant
P J L Arnold for Respondent

Judgment:

13 December 2016

ORAL JUDGMENT OF DOWNS J

Solicitors/Counsel:
Public Defence Service, Auckland.
Meredith Connell, Auckland.

CASSIDY-GUGICH v THE QUEEN [2016] NZHC 3027 [13 December 2016]

The issue

[1] The appellant pleaded guilty to charges of kidnapping and breaching a protection order. He was sentenced to a term of two years and three months’ imprisonment.1 The appellant contends the sentence is manifestly excessive. Home detention is exhorted.

[2] The appeal is out of time, but the Crown offers no opposition to leave being granted for the appeal to be heard. I grant leave.

Background

[3] The victim is the appellant’s former partner. After leaving him, she moved back with her parents. The appellant continued to make unwanted contact. He was eventually served with a trespass order in relation to the address. But the appellant continued to park nearby and watch the victim through binoculars.

[4] In January 2016, the victim applied for and obtained a protection order. The appellant continued to send her text messages. He would often ask for money.

[5] On 9 February 2016, the victim finally relented. She drove her car to the meeting place, got out and handed the appellant $100 through the car window. He said he would give the money back if she sat in the car and listened to him. The victim did so. The appellant then drove away with the victim in his car. She repeatedly asked him to stop. The appellant did not. The victim yelled at passersby and then tried to open the door. The appellant slammed on the brakes, which caused her o hit her head on the dashboard (she was not wearing a seatbelt).

[6] The appellant drove the victim for approximately seven kilometres. As they passed a dairy, the victim threw her handbag out of the window. She told people there to call the Police. She then tried to do so herself using her mobile phone. The
appellant grabbed it off her and threw it out of the window.

1 R v Cassidy-Gugich [2016] NZDC 22523.

[7] When the appellant noticed the victim’s handbag was missing, she told him it was back at the dairy and Police would be coming. The appellant then returned her to the dairy. Members of the public intervened. The appellant drove away.

[8] The victim sustained no physical injuries, but was extremely distressed. She describes feeling brainwashed and worn down by the appellant’s harassment, humiliated and vulnerable.

[9] The appellant is 23 years old. His pre-sentence report describes an extensive criminal history “littered with drug, dishonesty and drink and driving-related offences”. The appellant also has a conviction for threatening to stab someone in
2010. The report refers to genuine remorse on his part, albeit “the depth of this is unknown”. The appellant is considered to…

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 Cassidy-Gugich v R

Details

AGLC: Cassidy-Gugich v R [2016] NZHC 3027
Case: [2016] NZHC 3027
Decision Date: 13 December 2016

CaseChat Overview and Summary

In Cassidy-Gugich v R, the appellant Harrison Cassidy-Gugich, who had pleaded guilty to charges of kidnapping and breaching a protection order, appealed against his sentence of two years and three months’ imprisonment, contending it was manifestly excessive and that home detention was a more appropriate sentence. The appeal was out of time, but the Crown did not oppose leave being granted for the appeal to be heard, and the court granted leave. The appellant's former partner had been subject to his unwanted contact after their separation, culminating in the appellant breaching a trespass order and a protection order. The appellant kidnapped the victim when she met him to return money, and drove her for approximately seven kilometres while she repeatedly asked to be let out. The appellant had a criminal history that included drug, dishonesty, and drink and driving-related offences, as well as a conviction for threatening to stab someone in 2010. The appellant's pre-sentence report described him as posing a high risk of harm to others, especially any partner or girlfriend.

The legal issues the court had to decide included whether the sentence was manifestly excessive and whether home detention was a more appropriate sentence. The court noted that the crime of kidnapping did not have a guideline sentencing judgment, and so a number of cases were cited in argument. The court concluded that the starting point and uplifts applied by the Judge were unremarkable, and no error was apparent. The court also found that this was not an appropriate case for home detention, given the sentencing imperatives of deterrence, denunciation and public protection. The appeal was dismissed.

Orders