Gaby v Police - [2025] NZHC 1186

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE

CRI-2025-443-000016

[2025] NZHC 1186

BETWEEN
BROOKLYN ANGEL GABY

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 8 May 2025

Appearances:

N P Bourke for Appellant P M Lange for Respondent

Judgment:

15 May 2025

JUDGMENT OF PRESTON J

This judgment was delivered by me on 15 May 2025 at 4.00 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar
Date……………

GABY v NEW ZEALAND POLICE [2025] NZHC 1186 [15 May 2025]

Introduction

[1] Brooklyn Gaby, aged 24, pleaded guilty to one charge of breaching prison release conditions1 and one charge of burglary (under $500).2 Judge Harrison sentenced her to four months’ home detention on 12 March 2025.3 Ms Gaby appeals that decision, on the basis the Judge erred by failing to impose a sentence of community detention and supervision, as the least restrictive sentence appropriate in the circumstances.

Facts

Burglary

[2] On the evening of 25 October 2024, Ms Gaby and an associate drove to the address of the victim, who was known to both women. Parking on the driveway, Ms Gaby and her associate went to the victim’s car and took the victim’s handbag and speaker from it. The victim came out of her house having heard them arrive, and Ms Gaby and her associate fled in their vehicle.

[3] Police spoke to Ms Gaby shortly afterwards. She admitted the offending and facilitated the return of the speaker. The handbag, which was worth $100, was not recovered and contained $300 cash and a $400 smart watch. The victim was unable to recall the worth of the speaker.

Breach of prison release conditions

[4] Ms Gaby was released from prison on 12 August 2024. On 23 January 2025, she failed to report to her probation officer as directed.

District Court Decision

[5] The Judge referred to the March 2025 pre-sentence report4 which identified Ms Gaby as posing a medium risk of reoffending and a low risk of harm to others. An

1      Sentencing Act 2002, s 96(1) — maximum penalty 1 year imprisonment or $2,000 fine.
2      Crimes Act 1961, s 231(1)(a) — maximum penalty 10 years’ imprisonment.
3      Police v Gaby [2025] NZDC 5546.
4      Dated 7 March 2025.

earlier report had recommended imprisonment, but the March report identified that Ms Gaby’s compliance with community-based sentences had been extremely poor, but recommended supervision and community detention in view of “changes in [Ms Gaby’s] circumstances and behaviour in completing this report”. The report indicated that a rehabilitation programme was available for Ms Gaby to commence in June of this year.

[6] At sentencing, counsel for Ms Gaby and the police supported community detention and supervision. However, the Judge rejected the defence submission that the offending was more akin to a minor theft from a vehicle, relying on the decision Gray v Police where a starting point of 12 months’ imprisonment was taken.5 The Judge considered the present case to be…

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 Gaby v Police

Details

AGLC: Gaby v Police [2025] NZHC 1186
Case: [2025] NZHC 1186
Decision Date: 15 May 2025

CaseChat Overview and Summary

Brooklyn Gaby appeals her sentence of four months’ home detention imposed for two charges, one of breaching prison release conditions and one of burglary under $500. Ms Gaby had pleaded guilty to both charges. The Judge sentenced her to four months’ home detention on 12 March 2025, following a pre-sentence report which identified Ms Gaby as a medium risk of reoffending and a low risk of harm to others. The Judge rejected the submissions that community detention and supervision should be imposed and relied on the decision in Gray v Police to justify the starting point of nine months’ imprisonment for the burglary charge. Ms Gaby submits that the starting point was too high and that the Judge wrongly declined to discount the sentence for her adherence to a nightly curfew between 9:00 pm and 6:00 am. The appeal court considered the starting point and the curfew discount in turn and held that neither was an error. The court then turned to the Judge’s consideration of home detention over community detention, concluding that the Judge did not err in considering that the offending here, given Ms Gaby’s history, required a sterner response in the form of four months’ home detention with special release conditions. The appeal was dismissed.

Orders