Gage v R

Case [2014] NZCA 140 14 April 2014

Type to search within this case.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA804/2013
[2014] NZCA 140

BETWEEN	HOANI GAGE Appellant
AND	THE QUEEN Respondent

Hearing:	2 April 2014
Court:	Randerson, Keane and Andrews JJ
Counsel:	G Boot for the Appellant J O'Sullivan for the Respondent
Judgment:	14 April 2014 at 2:30 pm

JUDGMENT OF THE COURT

The appeal against sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Andrews J)

Introduction

Following a trial in the District Court at Hamilton before Judge Spiller and a jury, the appellant was convicted on a charge of burglary. He has appealed against the sentence of two years and two months imprisonment imposed on him.[1]

Background

[1]R v Gage DC Hamilton CRI 2012-019-4767, 18 November 2013 [Sentencing judgment].

In the early hours of 14 January 2012 the appellant and three others drove to a shopping centre at Hamilton known as “The Base”. They forced open an outside door and gained entry to a storeroom used by Dick Smith Electronics. They stole a number of electronic items including PlayStations, Xbox 360 consoles, laptops, and Apple computers. The total value of goods taken was approximately $45,000. They also stole various items from the retail shop.
Shortly after leaving The Base the group came to the attention of the police. The police attempted to stop the vehicle with flashing red and blue lights and a siren. The group failed to stop and were pursued through residential streets. After a period of time the vehicle pulled into a residential address and the occupants of the vehicle fled on foot. A police dog and police officer tracked and located the appellant and two other people nearby, however the fourth person was not located at the time. When the vehicle was searched, the police located the property taken from Dick Smith Electronics.

District Court sentencing

A sentencing indication had been given to the appellant prior to trial in respect of the charges then faced by the appellant, being one charge of burglary, a charge of conversion of a motor vehicle and an alternative charge of unlawfully getting into a vehicle.[2] The Judge indicated a starting point of two years and six months imprisonment, uplifted by one month on account of the appellant’s previous burglary convictions, and by a further month because the present offending had occurred while the appellant was on bail. The Judge also indicated a reduction of two months to reflect the fact that the appellant had been on electronically monitored bail and a further reduction should the appellant plead guilty, to result in an end sentence indication of two years three months imprisonment. The appellant did not plead guilty on the basis of the sentence indication and proceeded to trial. He was convicted on a single charge of burglary.
[2]R v Gage DC Hamilton CRI-2012-019-4767, 2 September 2013.
At sentencing, Judge Spiller adopted a starting point of two years and two months imprisonment, in the light of the appellant’s involvement in the case, but also taking into account…

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 Gage v R

Details

AGLC: Gage v R [2014] NZCA 140
Case: [2014] NZCA 140
Decision Date: 14 April 2014 at 2:30 pm

CaseChat Overview and Summary

The appellant, Hoani Gage, appealed against the sentence of two years and two months imprisonment imposed by the District Court at Hamilton for the offence of burglary. The appeal was dismissed by the Court of Appeal of New Zealand. The appellant argued that the starting point for his sentence was too high, the court failed to consider his time spent on electronically monitored bail, and that the sentence was disproportionate when compared to his co-offenders. The court considered that the starting point was appropriate, no reduction was warranted for the time spent on electronically monitored bail given the appellant's non-compliance and further offending, and there was no significant disparity between the sentences of the co-offenders.

The Court of Appeal determined that the starting point of two years and two months imprisonment was appropriate, as there is no specific guideline for burglary sentencing, and the court had considered the appellant's involvement in the offending. The court also found that no reduction should be made for the time spent on electronically monitored bail, as the appellant had breached bail conditions and committed further offences during that time. Finally, the court concluded that there was no significant disparity between the sentences of the co-offenders, as the appellant's sentence fell within the range for similar offending and the sentencing judge was well-placed to determine the appropriate sentence. As a result, the appeal against sentence was dismissed.

Orders