Evans v Police - [2019] NZHC 842

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI 2019-419-14

[2019] NZHC 842

BETWEEN
GARY WILFRED EVANS

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 12 April 2019

Appearances:

T C Tran for Appellant

A S Alcock for Respondent

Judgment:

12 April 2019

Reasons:

16 April 2019

REASONS JUDGMENT OF DUFFY J

This judgment was delivered by me on 16 April 2019 at 12.30 pm pursuant to
Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

Solicitors:
T C Tran, Barrister, Hamilton Crown Solicitor, Hamilton

EVANS v NEW ZEALAND POLICE [2019] NZHC 842 [12 April 2019]

[1] The appellant Gary Evans appealed against the imposition of a sentence of 12 months’ imprisonment for two offences of using a document to obtain a pecuniary advantage; failing to answer to District Court bail; being an unlicensed driver and two offences of unlawful conversion of a motor vehicle.

[2] I allowed the appeal. The sentence of imprisonment was set aside and in its place I imposed a sentence of six months’ home detention with standard conditions and the addition of the special condition set out in the pre-sentence report.

Facts of offending

[3] The offending arose out of two incidents, each of which involved a premeditated scheme to unlawfully convert a motor vehicle. The first unlawful conversion occurred between 18 and 19 May 2018 when Mr Evans approached the seller of a Peugeot motor vehicle, who had posted the vehicle for sale on Facebook, and offered to purchase it for the sum of $400.00. The vehicle had defects, which the owner had declared on the Facebook post. Mr Evans said he would take the vehicle to get started on the repairs and pay for it the following day. He never made this payment. Instead, on 7 August 2018 Mr Evans completed a New Zealand Land Transport Authority form forging the owner’s signature to have ownership of the vehicle transferred into his name, which is the conduct supporting the charge of using a document to obtain a pecuniary advantage. Later the vehicle was found abandoned in a carpark at Tauranga Hospital. A towing company removed the vehicle and incurred costs through storage in its yard.

[4] Then on 19 June 2018 Mr Evans approached the owner of a BMW, which was advertised in Katikati for sale for the sum of $1,100.00. When Mr Evans spoke with the seller he asked if he could take the vehicle to show his wife. Mr Evans was permitted to do so and after leaving with the vehicle he never returned it to the seller. Over the next few days the seller exchanged text messages with Mr Evans seeking payment or return of the vehicle. Mr Evans agreed to and did make an initial payment of $100, but no further payments were made. Later Mr Evans sold the BMW to a third party for the price of $1600, however, he only ever received an initial payment of $500 from the…

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 Evans v Police

Details

AGLC: Evans v Police [2019] NZHC 842
Case: [2019] NZHC 842
Decision Date: 12 April 2019

CaseChat Overview and Summary

The appeal in Evans v Police was brought by Gary Evans against the sentence imposed on him by Judge Roberts in the District Court. Evans was sentenced to 12 months imprisonment for multiple offences, including using a document to obtain a pecuniary advantage, failing to answer to District Court bail, being an unlicensed driver and two offences of unlawful conversion of a motor vehicle. The appeal was brought before the High Court and was heard on 12 April 2019. The appeal was allowed and the sentence of imprisonment was set aside. In its place, a sentence of six months home detention was imposed with standard conditions and a special condition. The court considered that Judge Roberts had not properly exercised the discretion to impose a sentence of home detention, as required by the Sentencing Act 2002. The court found that the sentence of imprisonment was manifestly excessive, particularly in light of Mr Evans’ personal circumstances and criminal history.

The legal issues in this case concerned the appropriate sentence to be imposed on Mr Evans. The court was required to consider whether the sentence of imprisonment imposed by Judge Roberts was manifestly excessive and whether the two-step process for imposing a sentence of home detention had been properly exercised. The court considered the principles of sentencing, including the desirability of keeping offenders in the community and the need to impose the least restrictive sentence. The court also considered the personal circumstances of Mr Evans, including his age, criminal history, and health issues. The court found that a sentence of home detention was the least restrictive sentence that could be imposed on Mr Evans and that the sentence of imprisonment was manifestly excessive.

Orders