Gemmell v Police - [2021] NZHC 1292

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE

CRI-2021-425-000004

CRI-2021-425-000005 [2021] NZHC 1292

BETWEEN
HORI IRIMANA GEMMELL

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 31 May 2021

Appearances:

G S Williamson for Appellant M B Brownlie for Respondent

Judgment:

3 June 2021

JUDGMENT OF DUNNINGHAM J

This judgment was delivered by me on 3 June 2021 at 10.30 am, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar
Date……………

Introduction

[1]The appellant, Hori Gemmell, pleaded guilty to charges of theft of two Glock

17 pistols (2),1 unlawful possession of a pistol (2),2 unlawful possession of ammunition,3 unlawfully taking a motor vehicle,4 and reckless driving.5 He also faced

1      Crimes Act 1961, ss 219 and 223(b).
2      Arms Act 1983, s 50(1)(a).
3      Section 51.
4      Crimes Act, s 226(1).
5      Land Transport Act 1988, s 35(1)(a).

GEMMELL v NEW ZEALAND POLICE [2021] NZHC 1292 [3 June 2021]

an unrelated charge of breaching his release conditions. On 10 March 2020 he was sentenced to three years and one months’ imprisonment by Judge Farnan in the District Court at Invercargill.6 He appeals that sentence on the ground it is manifestly excessive.

Leave to appeal

[2] The statutory timeframe for filing an appeal against sentence is 20 working days from the date of judgment appealed against.7 Mr Gemmell filed his appeal on 13 January 2021, approximately 10 months out of time, so requires leave to appeal.

[3] In explanation for the delay in filing the appeal he stated that his former solicitor gave him “negligent advice” that he could appeal “whenever”. He says he has always wanted to appeal as he believes his sentence was manifestly excessive. While no evidence has been filed from his previous counsel to support that contention, the Crown concedes there is no prejudice to it in the appeal being filed late and it is content to deal with the appeal on its merits.

[4] The touchstone in determining an application for an extension of time is the interests of justice in the circumstances of the case.8 The relevant factors were summarised in R v Lee as follows:9

… factors of relevance to the balancing test include the wider interests of society in the finality of decisions, the strength of the proposed appeal, whether the liberty of the subject is involved, the practical utility of any remedy sought, the extent of the impact on others affected and on the administration of justice, and any prejudice to the Crown.

The merits of the appeal and the reasons for the delay are highly relevant considerations.10

[5] Although the reasons for the delay are not satisfactorily explained, I accept there is more utility in allowing the appeal to proceed and to address it on its merits

6      Police v Gemmell [2020] NZDC 4401.
7      Criminal Procedure Act 2011, s 248(2).
8      R v Knight [1998] 1 NZLR 583 (CA).
9      R v Lee [2006] 3 NZLR 42 at [99], cited in

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 Gemmell v Police

Details

AGLC: Gemmell v Police [2021] NZHC 1292
Case: [2021] NZHC 1292
Decision Date: 3 June 2021

CaseChat Overview and Summary

In this case, the appellant, Hori Gemmell, appeals against his sentence of three years and one month's imprisonment, which was imposed by Judge Farnan in the District Court at Invercargill. Gemmell argues that the sentence is manifestly excessive. The court had to determine if the sentence was manifestly excessive and if Gemmell should be granted leave to appeal out of time. The High Court found that the sentence was not manifestly excessive and granted leave to appeal out of time.

The court considered the principles on appeal and the submissions from both sides. Gemmell's counsel argued that the starting point for the theft and possession of firearms charges should have been no more than two years' imprisonment. The Crown submitted that the starting point adopted by the District Court was within the available range. The court analysed the circumstances of the offending and found that the sentence was not manifestly excessive. The court also considered the other charges and uplifts, and found that the overall sentence was within the range available for the serious offending perpetrated by Gemmell.

In conclusion, the appeal was dismissed, and the sentence imposed by the District Court was upheld. The High Court found that the sentence was not manifestly excessive and was within the range available for the offending committed by Gemmell.

Orders