Gathergood v R - [2010] NZCA 350

IN THE COURT OF APPEAL OF NEW ZEALAND

CA74/2010
[2010] NZCA 350
AND BETWEEN CASEY AARON MIKE GATHERGOOD

Appellant

ANDTHE QUEEN

Respondent

Hearing:21 July 2010

Court:O'Regan P, Panckhurst and MacKenzie JJ
Counsel:P H B Hall for Appellant

F E Guy Kidd for Respondent

Judgment:4 August 2010 at 3 pm

JUDGMENT OF THE COURT

A Extension of time to appeal is granted.
BThe sentence of three years three months’ imprisonment for discharging a firearm with reckless disregard is quashed.
CA sentence of two years five months’ imprisonment is substituted. The other sentences of 10 months (burglary) and six months (unlawful possession of firearms and ammunition) shall stand.

____________________________________________________________________
REASONS OF THE COURT
(Given by Panckhurst J)
Introduction
[1] The appellant seeks an extension of time to appeal against a sentence of three years and three months’ imprisonment in relation to offences of burglary, unlawful possession of firearms and ammunition, and discharging a firearm with reckless disregard for the safety of others. We shall consider the appeal by reference to what emerged to be the two main grounds, namely:
(a)that the starting-point adopted for the sentencing of both the accused and his co-offender was too high, and
(b)that the appellant was sentenced in relation to the lead charge of discharging a firearm with reckless disregard on an incorrect factual basis.

[2]        The notice of appeal was filed out of time. Sentence was imposed on 17 September 2009. The notice of appeal is dated 9 February 2010. This was almost four months late. The only explanation for the delay is contained in the notice itself. The appellant stated that he completed a notice of appeal during his first 14 days in prison and left it with prison staff, but nothing further was done. No further elaboration was offered concerning when the appellant learnt that the notice had not been filed and why no effective steps were taken for almost five months.
[3]         An extension of time was opposed, essentially because of the paucity of the information offered in support of the extension application. We accept that an affidavit should have been filed. That said, it is not a situation where specific prejudice has accrued to the Crown. We note the appellant’s age, 18 years at the time of his sentencing, and the fact that he had not previously received a sentence of imprisonment. We propose, therefore, to consider the merits of the sentence appeal and return to the extension application after that.
Factual background
[4]        The appellant and Jacob Murray (JM) were jointly involved in the offending. They were of a similar age and flatmates at the relevant time.
[5]        The burglary was committed in mid-July 2008 at a rural property at which JM had previously been employed. He knew where the keys to a shipping container were kept and these were used to gain entry to the container. Firearms, including a shotgun, and ammunition were stolen.
[6]        Four days later on Saturday, 19 July 2008 the appellant and JM were “cruising” central…

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 Gathergood v R

Details

AGLC: Gathergood v R [2010] NZCA 350
Case: [2010] NZCA 350
Decision Date: 4 August 2010

CaseChat Overview and Summary

In the case of Gathergood v R, the appellant, Casey Aaron Mike Gathergood, appealed against his sentence of three years and three months’ imprisonment for offences including discharging a firearm with reckless disregard, burglary, and unlawful possession of firearms and ammunition. The primary grounds of appeal were whether the starting-point adopted for the sentencing was too high and if the appellant was sentenced on an incorrect factual basis. The appellant argued that the starting-point for his sentencing was excessive and that he was sentenced on the wrong factual basis, as he had not deliberately facilitated or encouraged the discharge of the shotgun. The Crown argued that the starting-point was within the available range and that the appellant's argument was inconsistent with his plea of guilty.

The Court of Appeal found that the appellant's argument on the incorrect factual basis was unsustainable, as it would conflict with the plea of guilty and the absence of a mitigating fact contention in the District Court. The Court also found that the starting-point adopted for the appellant was too high in comparison to other relevant cases. Considering the seriousness of the offence, the appellant's secondary role, and the totality principle, the Court adopted a starting point of three years for the appellant, with an uplift of six months for the burglary offence. After applying the 30 per cent allowance for the plea and the appellant's youth, the Court arrived at an end sentence of two years and five months for the lead offence, with the other sentences remaining unchanged.

The Court of Appeal granted an extension of time to appeal and allowed the sentence appeal to the extent indicated. The sentence of three years and three months’ imprisonment for discharging a firearm with reckless disregard was quashed, and a sentence of two years and five months’ imprisonment was substituted. The other sentences of 10 months (burglary) and six months (unlawful possession of firearms and ammunition) shall stand.

Orders