IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CRI-2016-409-000072 [2016] NZHC 2616
BETWEEN AARON KYLE GERRARD
Appellant
AND
NEW ZEALAND POLICE Respondent
CRI-2016-409-000073
BETWEEN AARON KYLE GERRARD Appellant
ANDNEW ZEALAND POLICE Respondent
Hearing: 1 November 2016 Appearances:
A Bailey for Appellant
P A Norman and K Basire for RespondentJudgment:
1 November 2016
ORAL JUDGMENT OF GENDALL J
Introduction
[1] On 26 July 2016, in the District Court Judge Garland sentenced the appellant to 25 months’ imprisonment, reparation of $215 and in addition made an order for destruction of a golf club in respect of a range of charges. These charges were:
(a) Burglary, which carried a maximum penalty of 10 years’
imprisonment;
(b) Theft ($500-$1000), carrying a maximum penalty of one year’s
imprisonment;
GERRARD v NEW ZEALAND POLICE [2016] NZHC 2616 [1 November 2016]
(c) Being unlawfully in a yard, carrying a maximum penalty of three
months’ imprisonment or a fine not exceeding $2000; and
(d) Two counts of receiving stolen property, carrying a maximum penalty
of one year’s imprisonment.
[2] The appellant appeals against this sentence upon the following grounds:
(a) That the Judge erred in reducing the guilty plea discount provided on account of what was said to be the apparent strength of the prosecution case;
(b)Irrespective of the strength of the prosecution case, the guilty plea discount itself was inadequate;
(c) The Judge had no jurisdiction to order the destruction of the golf club.
Background
Burglary
[3] Turning now to the background facts in this matter, as to the burglary charge, on 2 April 2016, the appellant entered into the victim’s property by forcing open her garage door. Once inside, he collected household items including electronic goods, food and a suitcase before leaving on a bicycle. The total value of the stolen property was $2500. The appellant was apprehended by police shortly thereafter
Theft
[4] Turning now to the theft charge, the appellant was on police bail and due to make his first appearance on the burglary charge on 8 April 2016. On Thursday
7 April 2016, the appellant stole a mountain bike valued at $800 from the Woolston Working Men’s club. He mounted the bike and rode down the roadway where he was located by police. The appellant admitted taking the bike and acknowledged it did not belong to him. In explanation the appellant stated, “I was walking along and thought fuck I need a ride.”
Being unlawfully in a yard
[5] Turning to the next charge of being unlawfully in a yard, on Friday 29 April
2016, the appellant walked up the driveway of a dwelling house on Cygnet Street with a golf club in his right hand. He approached the garage door and when it would not open he walked around the side of the garage, triggering a sensor light and causing him to back track down the driveway and run away from the address on foot. In explanation the appellant stated he walked up to the garage to relieve himself. He…
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- Case
- [2016] NZHC 2616
- Decision Date
CaseChat Overview and Summary
The legal issues in this case revolve around the appropriateness of the sentence imposed by the District Court and whether the court had the jurisdiction to order the destruction of the golf club. The appellant argued that the guilty plea discount should have been greater due to the overwhelming prosecution case and the strength of the evidence. The appellant also argued that the District Court did not have the jurisdiction to order the destruction of the golf club.
The court considered the guidelines set out in Hessell v R for determining the discount for a guilty plea. It held that the extent of the discount is discretionary and dependent on the individual circumstances of the case. The court also noted that overwhelming evidence in and of itself does not necessarily warrant a significant reduction from the maximum discount allowed. In this case, the court found that the District Court erred in only affording a 13.8 percent discount for the appellant's early guilty plea and that a 20 percent discount was appropriate.
Regarding the destruction of the golf club, the court found that the District Court did not have the jurisdiction to order the destruction of the golf club. The court held that the only basis for such an order would be a forfeiture order, which was not one sought in this case. Therefore, the order for the destruction of the golf club is quashed.
In conclusion, the appeal is allowed, and the sentence is reduced to 23 months' imprisonment, with a 20 percent discount for the appellant's guilty plea. The order for the destruction of the golf club is quashed. Gerrard is granted leave to apply for home detention.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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