Gerrard v Police - [2016] NZHC 3130

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2016-409-000134 [2016] NZHC 3130

BETWEEN
AARON KYLE GERRARD

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 15 December 2016

Appearances:

A Bailey for the Appellant
D J Orchard for the Respondent

Judgment:

19 December 2016

JUDGMENT OF NATION J

[1] On 23 November 2016, the appellant (Mr Gerrard) was, on an application to cancel his sentence of imprisonment and impose home detention, sentenced to eight months’ home detention.1 Mr Gerrard appeals against that sentence on the basis there was an error in the sentence. He argues that, in fixing the term of the home detention sentence, the Judge should have had regard to his mandatory entitlement to be released once he had served half the prison sentence.

Background

[2] As set out in the submissions of Mr Gerrard’s counsel, Mr Bailey, the

relevant background was as follows:

· 29 April 2016 – the appellant was arrested and remained in custody until sentencing;

1 New Zealand Police v Gerrard [2016] NZDC 24719.

GERRARD v POLICE [2016] NZHC 3130 [19 December 2016]

· 26 July 2016 – the appellant was sentenced to 25 months’ imprisonment

by the District Court;

· 1 November 2016 – this Court allowed the appellant’s sentence appeal and reduced the sentence to 23 months’ imprisonment with leave to apply for home detention;2

· 23 November 2016 – the appellant’s application to substitute the sentence for imprisonment was granted by the District Court. The appellant was re-sentenced to eight months’ home detention; and

· 1 December 2016 – the appellant was arrested for breaching his home detention sentence. He was remanded in custody (and currently remains in custody).

Jurisdiction

[3] Mr Gerrard appeals as of right.3 Pursuant to s 250 of the Act, the appeal must only be allowed if the Court is satisfied that there was an error in the sentence imposed and a different sentence should be imposed. If either element is not satisfied, the appeal court must dismiss the appeal.

[4] On an appeal, the focus is on the correctness of the end result, rather than necessarily the process by which it was reached.

Submissions for appellant

[5] Mr Bailey submitted that this appeal against the length of the sentence of home detention could have real consequences for Mr Gerrard.

[6] At present, Mr Gerrard remains subject to that home detention sentence.4

2      Gerrard v Police [2016] NZHC 2616.
3      Criminal Procedure Act 2011, s 244.
4      Hawkins v Chief Executive, Department of Correction [2015] NZHC 1001 at [17]; Sentencing
Act 2002, s 80Z.

[7] Mr Gerrard is now liable to be resentenced if it is established that he was in breach of the sentence of home detention. The Court may then determine a substitute sentence under s 80F(4)(d) of the Sentencing Act 2002.

[8] In determining any sentence in substitution for a breached sentence of home detention, the District Court must take into account the portion of the original sentence that remains unserved at the time…

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 Gerrard v Police

Details

AGLC: Gerrard v Police [2016] NZHC 3130
Case: [2016] NZHC 3130
Decision Date: 19 December 2016

CaseChat Overview and Summary

Aaron Kyle Gerrard appealed against his sentence of home detention imposed by the District Court on the basis of an error in the sentence. He argued that the Judge should have had regard to his mandatory entitlement to be released once he had served half the prison sentence. The Crown did not oppose the appeal and indicated the Crown was inclined to accept there had been an error which had to be corrected on appeal.

The Court noted that a sentence of home detention can be imposed only where an offender would otherwise be serving a short-term sentence of imprisonment. While there was no requirement that the term of home detention should be fixed at half the length of the sentence of imprisonment, the Court of Appeal had confirmed that it is the usual practice of sentencing courts to fix terms of home detention at half the length of the sentence of imprisonment that would otherwise have been imposed. In this case, Mr Gerrard had effectively served a significant proportion of the prison sentence that was imposed. The Court concluded there was an error in fixing the term of home detention at eight months and a different sentence should have been imposed. The appeal was allowed and the term of home detention was varied to five months.

The Court's decision allows the District Court to deal with the application currently before it, taking into account the portion of the home detention sentence that remained unserved at the time Mr Gerrard breached the home detention sentence. The rationale for finding the Judge was in error in fixing the term of home detention will also be relevant if the District Court has to consider the term of a sentence of imprisonment that may be imposed as a result of a breach of the sentence of home detention.

Orders