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 unpersuasive.

[11]     The appeal argument was that the starting point in the District Court of two years and six months was manifestly excessive.  Mr Dooney, for the appellant, relied upon the Court of Appeal decision in Hurinui v R2    where the weapon was used to strike the head of the complainant in the context of a brawl and it was upheld on appeal that a starting point of 18 months was open to the Court.

[12]     The setting in Hurinui was that Ms Hurinui lived next door to the sister of the victim.  The victim was the victim of an assault.  There were two groups of people involved.  The group of people who were at the property of Ms Hurinui and a group of people who were next door at the property of another lady, the sister of the victim. At about 10.30 that night there was a confrontation between the two groups which escalated to a fight involving several people.   The victim went to pull one of her friends out of the fight when she was hit on the forehead with a baseball bat wielded by Ms Hurinui.  The blow caused significant injury, splitting the victim’s skin over her forehead and requiring 15 stitches.   The victim experienced discomfort and soreness to her forehead for several weeks.

[13]     Ms Hurinui defended the case and went to a jury trial and was convicted. The defence was misidentification.  The Judge took a starting point of 18 months, made no discount for mitigating factors and left that as the end sentence.  There was an appeal against conviction and sentence.  The Court of Appeal refused to upset the jury verdict.

of 18 months’ imprisonment was too high.

[15]     Relying on the Court of Appeal decision of Nuku v R3  the Court of Appeal considered that the unprovoked use of a heavy weapon supported a starting point of

18 months’ imprisonment. The Court went on to say:4

We also observe it would have been open for the Judge to have imposed an

uplift for Ms Hurinui’s previous convictions for violence.

[16]     It is important to keep mind that this was an appeal against the starting point of 18 months.   There was no application before the Court for an increase on that sentence.  The judgment of the Court of Appeal cannot be read as setting a ceiling on the level of sentencing for this kind of assault.

[17]     The second point of distinction is that in Mr Geros’ case he was serving a sentence which he breached and while breaching the sentence, assaulted an innocent person.  In no way at all could there be any suggestion that the assault was provoked. The setting is quite different from that in Hurinui v R where there was a brawl between two groups.  There was no provocation in this case.  The use of a knife in a stabbing fashion ran the risk of a far more serious outcome.

[18]     The sentencing Judge, Hunt DCJ, also took into account as an aggravating aspect that he was under a sentence of home detention at the time, that he breached that sentence and then further offended in a serious way.  In addition to the assault, he took the victim’s car.  The Judge compared the facts of this case against the facts of R v Mako, a case that dealt with circumstances of robbery.   Here the car was stolen at knife point.

[19]     The sentencing Judge took a starting point of two years and six months with an uplift of six months for previous convictions and the aggravating aspects of this

offence.

3      R v Nuku v R [2012] NZCA 584.

4      Hurini v R, above n 2, at [27]

Accordingly, the appeal must fail. Appeal dismissed.