Gerber v Police - [2013] NZHC 773

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2013-463-000027 [2013] NZHC 773

BETWEEN JUSTIN TERGH GERBER Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing: 16 April 2013

Counsel: T A Penman for Appellant
A D Hill for Respondent

Judgment: 16 April 2013

ORAL JUDGMENT OF COLLINS J

Introduction

[1] This appeal raises two issues:

(1) Should Mr Gerber be granted leave to appeal out of time a sentence of

14 months’ imprisonment imposed upon him when he pleaded guilty

to a charge of indecent assault?

(2)If so, should his sentence of imprisonment be replaced with a sentence of home detention?

Background facts

[2] On the evening of Friday 6 January 2012 the victim was socialising with friends at a bar in Taupo. At about 2.30am she started walking to a friend’s house
alone. The victim sensed that someone was walking behind her. That person was

GERBER V NEW ZEALAND POLICE HC ROT CRI-2013-463-000027 [16 April 2013]

Mr Gerber. Mr Gerber began to engage the victim in conversation and walked with her for about 500 metres. When the victim indicated to Mr Gerber she was going to cross the road, he grabbed her from behind and pulled her down onto the grass. As the victim struggled to break free, Mr Gerber pushed his hand under her dress, into her underpants, and touched her genitalia. The victim was able to escape after she hit Mr Gerber with her shoe.

[3] Mr Gerber initially denied that he was involved in the offending but later pleaded guilty.

District Court Judge’s decision

[4] In his judgment dated 14 February 2013 Judge Cooper:

(1)discussed Mr Gerber’s personal circumstances. He noted that Mr Gerber wanted the Court to take into account his remorse for his offending. However, Judge Cooper considered that Mr Gerber’s expressions of remorse ran counter to his actions such as his attempts to get friends to cover for him and his posting a message on Facebook which was “less than sensitive as far as the complainant was concerned”;

(2)erroneously said Mr Gerber had no previous convictions. In fact Mr Gerber has a previous conviction for disorderly behaviour for which he received 40 hours’ community work;

(3)recognised that the victim had been profoundly affected by the offending, as is evident from her victim impact statement;

(4) reasoned that Mr Gerber’s gross intoxication on the night in question

was not a mitigating factor;

(5)determined the starting point by acknowledging that there was no tariff case for indecent assault. His Honour considered that

Mr Gerber’s attack on the victim in circumstances where she was

walking home at night alone was serious;

(6)adopted a starting point of 18 months’ imprisonment which he discounted by four months to reflect Mr Gerber’s guilty plea.

[5] Judge Cooper declined to convert the sentence of 14 months’ imprisonment

into home detention. Judge Cooper stated:[1]
[1] Police v Gerber DC Taupo CRI-2012-092-13642, 14 February 2013 at [11].

I have to impose a sentence which deters and denounces what you have done and which holds…

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 Gerber v Police

Details

AGLC: Gerber v Police [2013] NZHC 773
Case: [2013] NZHC 773
Decision Date: 16 April 2013

CaseChat Overview and Summary

The appeal in Gerber v Police was brought by Justin Tergh Gerber against a sentence imposed by the District Court. Mr Gerber had pleaded guilty to a charge of indecent assault and was sentenced to 14 months’ imprisonment. The appeal was heard by Collins J in the High Court at Rotorua. Mr Gerber sought leave to appeal out of time and, if leave was granted, for his sentence to be reduced to home detention. The legal issues the Court had to consider were whether Mr Gerber should be granted leave to appeal out of time and, if so, whether his sentence should be replaced with home detention. The Court found that there were special circumstances justifying the late filing of the notice of appeal and that there was a real likelihood that the appeal would succeed. The Court accepted that the sentence imposed was appropriate but found that the District Court had not been aware of all the relevant circumstances when it imposed the sentence. As a result, the Court allowed the appeal and sentenced Mr Gerber to six months’ home detention.

Orders