TAYLOR ALLAN GAVIN v R [2018] NZHC 1826 [23 July 2018]
Introduction
[1] Taylor Allan Gavin pleaded guilty to one charge of injuring with intent to cause grievous bodily harm1 and one charge of assault with a weapon.2 He was sentenced by Judge D G Harvey on 20 April 2018 in the Whangarei District Court to four years and two months’ imprisonment3 on the charge of injuring with intent to cause grievous bodily harm, with a concurrent sentence of two-and-a-half years’ imprisonment on the charge of assault with a weapon.
[2] Mr Gavin appeals his sentence on the basis that it is manifestly excessive because the Judge should not have imposed an uplift for previous convictions and because the final sentence was not correctly calculated having regard to the full guilty plea discount.
Facts of the offending
[3] On the afternoon of 7 February 2017, Mr Gavin and a co-offender were involved in an altercation in the carpark at the Four Square on Otaika Road in Whangarei with two men who were known to them. There had been ongoing instances of threats and violence between the offenders and the victims over the past five years. The altercation ended when the four men agreed to meet for a fight at a scenic reserve.
[4] Mr Gavin and the co-offender brought weapons and a dog and arranged for several associates with weapons to also be present. The victim arrived with his two brothers who remained in their vehicle. There was a verbal exchange between Mr Gavin and the victim. Mr Gavin took out a gas-powered slug pistol from his backpack and pointed it at the victim. At a distance of some two metres, Mr Gavin discharged the pistol five times into the victim’s face, causing the pellets to penetrate his skin and lodge in his face and arm.
[5] At this point Mr Gavin’s associates and the victim’s brothers, who were armed with a baseball bat and plank of wood from their vehicle, entered the fray. The
1 Crimes Act 1961, s 189(1); maximum penalty 10 years’ imprisonment.
2 Crimes Act, s 202C; maximum penalty five years’ imprisonment.
3 R v Gavin [2018] NZDC 7909.
co-offender released the dog, which bit the victim on his left leg below the knee. Mr Gavin had a 20-centimetre-long blue-handled filleting knife which he was swinging at the face and neck of the victim’s brother, but fortunately it did not make contact. At some point…
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.
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AGLC
Gavin v The Queen [2018] NZHC 1826
Case
[2018] NZHC 1826
Decision Date
CaseChat Overview and Summary
Taylor Allan Gavin, the appellant, appeals his sentence imposed by Judge Harvey on 20 April 2018 in the Whangarei District Court, arguing that it was manifestly excessive. Gavin had pleaded guilty to injuring with intent to cause grievous bodily harm and assault with a weapon. The District Court Judge adopted a starting point of five years’ imprisonment for the lead charge, imposed an uplift of three months for Gavin’s previous convictions, and applied a 25% discount for his guilty plea, resulting in an end sentence of four years and two months on the lead charge, and a concurrent sentence of two-and-a-half years on the assault charge. Gavin argues the Judge erred by imposing an uplift for his previous convictions and miscalculating the full discount for the guilty plea. The Crown accepts there was an arithmetical error in applying the full guilty plea discount. The court must determine whether the District Court Judge erred in imposing an uplift for Gavin’s previous convictions and miscalculating the guilty plea discount. The court held that it was open to the Judge to impose a modest uplift for Gavin’s previous convictions based on an indication of a predilection of offending with violence, and the need to impose a deterrent sentence to protect the community. The uplift of three months was proportionate and not in error. However, the court found there was an arithmetical error in applying the full guilty plea discount. The appeal is allowed in part and the sentence is substituted with three years, 11 months and one week imprisonment.