Gerrard v Police - [2016] NZHC 2616

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 Respondent

Judgment:

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…

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.

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Details

Case: [2016] NZHC 2616
Decision Date: 1 November 2016

CaseChat Overview and Summary

Gerrard v Police is an appeal against the sentence imposed on the appellant, Aaron Kyle Gerrard, by the District Court. Gerrard had been convicted of multiple charges, including burglary, theft, being unlawfully in a yard, and receiving stolen property. The District Court sentenced Gerrard to 25 months' imprisonment, reparation of $215, and an order for the destruction of a golf club. Gerrard appealed the sentence on several grounds, including the adequacy of the guilty plea discount, and the jurisdiction to order the destruction of the golf club.

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