Fitzgerald v The King - [2025] NZCA 232

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA669/2024
[2025] NZCA 232

BETWEEN	ROSS GEMMEL FITZGERALD Appellant
AND	THE KING Respondent

Hearing:	27 March 2025
Court:	Palmer, Brewer and Gault JJ
Counsel:	T J Jackson for Appellant S M H McManus and N Girgis for Respondent
Judgment:	12 June 2025 at 10 am

JUDGMENT OF THE COURT

AThe appeal is dismissed.
BMr Fitzgerald must surrender himself to the Prison Director at Christchurch Men’s Prison (or such location as may be directed by Ara Poutama Aotearoa | the Department of Corrections in writing) by 10 am within two days from the release of this judgment to complete the sentence of imprisonment imposed by Judge Savage.

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REASONS OF THE COURT

(Given by Gault J)

Mr Fitzgerald appeals a sentence of three years and three months’ imprisonment imposed by Judge C D Savage in the District Court at Timaru on 4 October 2024,[1] following conviction by a jury on one charge of theft by a person in a special relationship,[2] three charges of using a document with intent to obtain a pecuniary advantage,[3] and one charge of theft.[4]
[1]R v Fitzgerald [2024] NZDC 24259 [sentencing decision] at [15].
[2]Crimes Act 1961, ss 220 and 223(a). Maximum penalty 7 years’ imprisonment.
[3]Section 228(1)(b). Maximum penalty 7 years’ imprisonment.
[4]Sections 219 and 223(b). Maximum penalty 7 years’ imprisonment.
We must allow the appeal if there is an error in the sentence imposed and we find that a different sentence should be imposed.[5]

What happened?

[5]Criminal Procedure Act 2011, s 250(2).

We adopt the Judge’s summary of the offending at sentencing:
[2]       The theft [by] a person in a special relationship relates to the relationship you had with the victim of your offending, a man who suffers from multiple sclerosis and is bedridden in his horse float. You attended upon him and, at his request, you withdrew money from his bank account using his bank card and his PIN. The evidence at trial was that you were the only person entrusted with that bank card and with that PIN, with the inference being that all the money was withdrawn by you. The Crown case was put on the basis that you were withdrawing funds at the victim’s request, that you had an obligation to account to him for the funds that were withdrawn, but you failed to do so. The Crown point to $155,000 being withdrawn from that account using that card during the period that the charges relate to.
[3]       In addition, you have been found guilty on three charges of using a document to obtain a pecuniary advantage, and that is using the victim’s card to make purchases at various retail outlets in Timaru, the items purchased being electrical goods, like a television, a vacuum cleaner, and a washing machine.
[4]       The final charge is one of theft, with the allegation being that you took a black bag from the victim’s horse float that contained…

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 Fitzgerald v The King

Details

AGLC: Fitzgerald v The King [2025] NZCA 232
Case: [2025] NZCA 232
Decision Date: 12 June 2025 at 10 am

CaseChat Overview and Summary

In Fitzgerald v The King, the appellant, Mr Fitzgerald, appealed against a sentence of three years and three months' imprisonment imposed by Judge C D Savage in the District Court at Timaru. The appeal followed Mr Fitzgerald's conviction on charges including theft by a person in a special relationship, using a document with intent to obtain a pecuniary advantage, and theft. The Court of Appeal had to determine whether there was an error in the sentence imposed and whether a different sentence should be imposed.

The primary ground of appeal was that the Judge miscalculated the amount stolen by Mr Fitzgerald, which was used as a basis for sentencing. The Court examined the evidence and found that the Judge's assessment of the amount stolen was accurate. The Court also considered arguments regarding the breach of trust and victim vulnerability but found these were correctly weighed by the Judge. The Court found no error in the Judge’s starting point of three years’ imprisonment and noted that the uplift for the theft charge and the absence of an uplift for credit card offending were appropriate.

The Court found no basis for a reduction in the sentence on the grounds of personal mitigating circumstances, as there was no link between the offending and Mr Fitzgerald's earlier drug use, nor was there acceptance of the offending or remorse. The Court concluded that the sentence imposed was appropriate and dismissed the appeal.

Mr Fitzgerald must surrender himself to the Prison Director at Christchurch Men’s Prison within two days from the release of this judgment to complete the sentence imposed by Judge Savage.

Orders