Geros v Police - [2017] NZHC 1544

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI-2017-488-16 [2017] NZHC 1544

BETWEEN
CAMERON GEROS

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 30 June 2017

Appearances:

A M Dooney for Appellant
M B Smith for Respondent

Judgment:

6 July 2017

JUDGMENT OF FOGARTY J

This judgment was delivered by Justice Fogarty on
6 July 2017 at 10.00 a.m., pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar
Date:

Solicitors/Counsel:
A M Dooney, Whangarei
Marsden Woods Inskip Smith, Crown Solicitors, Whangarei

GEROS v NEW ZEALAND POLICE [2017] NZHC 1544 [6 July 2017]

[1] On 11 April 2017 the appellant was sentenced to three years’ imprisonment in the District Court at Whangarei on charges of unlawful taking of a motor vehicle and assault with a weapon.

[2] At the time of this offending the appellant was serving a sentence of home detention. In breach of that sentence he left his home detention address and came upon the victim who was sleeping in his car overnight. The victim had been to a party at a local address but did not want to drink and drive so he slept in his car.

[3] Mr Geros, the appellant, came upon the vehicle, opened the door, threatened the victim with a knife and punched him to the head. The punch was with his left fist right through to the side of the victim’s teeth and face.

[4] The appellant continued to hold the knife in front of the victim’s face and

threatened him to get out of the car or he would stab him. He then took the vehicle.

[5] The victim suffered cuts to the inside of his lips and to his gums that did not require any medical assistance.

[6] The appellant denied this offending and went to trial. His defence was that he was a victim of mistaken identity.

[7] This was a hopeless defence. The GPS plots from his home detention bracelet placed him at the scene, together with his fingerprint on a can that was recovered from the foot-well in the rear of the vehicle on top of which he was identified by the victim from a montage.

[8] Before the District Court it was argued that sentence should be 12 months, whereas the prosecution characterised this as similar to cases that have been dealt with, such as R v Mako.1

[9] The Judge took a starting point of two years and six months, and uplifted it by six months by virtue of his previous convictions and the aggravating aspects

associated with the offending. That particularly reflected that he was on home detention at the time the offence arose. He imposed a sentence of three years’ imprisonment, but remitted and cancelled outstanding community work and fines. He also cancelled the home detention.

[10] An appeal against such a decision of the District Court can only succeed if the Court on appeal finds that there was an error in the District Court judgment or the judgment is wholly…

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 Geros v Police

Details

AGLC: Geros v Police [2017] NZHC 1544
Case: [2017] NZHC 1544
Decision Date: 6 July 2017

CaseChat Overview and Summary

Cameron Geros appealed against his sentence for unlawful taking of a motor vehicle and assault with a weapon, arguing that the starting point of two years and six months was manifestly excessive. The case was heard by Justice Fogarty in the High Court of New Zealand at Whangarei. The appeal hinged on whether the starting point was too high, considering the use of a weapon and the circumstances of the assault.

The court examined whether the starting point of two years and six months was excessive, considering the precedent set in Hurinui v R, where a starting point of 18 months was upheld. However, the court found that the current case involved an unprovoked assault with a knife, which carried a higher risk of serious harm, unlike the brawl in Hurinui v R. Additionally, Geros was on home detention at the time of the offence, breaching his sentence, which further aggravated the crime.

Justice Fogarty concluded that the starting point of two years and six months, with an additional six months uplift for previous convictions and aggravating factors, was appropriate. The court emphasized that the assault was unprovoked and that Geros had breached his home detention sentence, making this case distinct from Hurinui v R. The appeal was dismissed.

Therefore, the final orders of the court were that the appeal was dismissed, and the sentence of three years’ imprisonment imposed by the District Court was upheld.

Orders