Gestro v Police - [2019] NZHC 2053

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2019-404-000112

[2019] NZHC 2053

BETWEEN
JOHN PETER GESTRO

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 20 August 2019

Counsel:

NJ Manning for Appellant JE Bragg for Respondent

Judgment:

21 August 2019

JUDGMENT OF DOWNS J

This judgment was delivered by me on Wednesday, 21 August 2019 at 3 pm.

Registrar/Deputy Registrar

Solicitors/Counsel:
NJ Manning, Auckland. Crown Solicitor, Manukau.

GESTRO v POLICE [2019] NZHC 2053 [21 August 2019]

[1] On 8 November 2018, Judge S Patel sentenced Mr John Gestro to a 32-month term of imprisonment.1 Mr Gestro appeals. He contends the sentence is manifestly excessive, largely because the Judge adopted too high a starting point on the lead offence. The appeal must be allowed if, and only if, the Judge erred and a different sentence should have been imposed.2

[2] Mr Gestro pleaded guilty to two charges of possessing methamphetamine for supply; one of threatening to kill (his former partner); and one of failing to stop for a law enforcement officer. The offending spanned seven months:

(a)On 1 March 2017, Mr Gestro was stopped by the Police. They found a hidden compartment in the car’s centre console containing a total of
1.12 grams of methamphetamine (packaged in three small ziplock plastic bags); $1,300 in cash and electronic scales.

(b)At about 3 am on 11 October 2017, Mr Gestro sent a text message to his former partner saying, “I am going 2 kill u”. Mr Gestro then entered her home and demanded a set of car keys. He threatened to kill her again. Her mother intervened.

(c)At about 1.35 am on 20 October 2017, Mr Gestro was driving. He went through a red light and failed to stop for Police. They gave chase. Mr Gestro made an abrupt turn, parked, and tried to run away. Police caught him. They found approximately 14 grams of methamphetamine in a black satchel; $750 cash; electronic scales; and small ziplock bags.

[3]Mr Gestro was on bail for (a) when he committed (b) and (c).

[4] Mr Gestro pleaded guilty on 13 April 2018, following a sentence indication from Judge Patel. The Judge adopted a starting point of three years and nine months’ imprisonment for the methamphetamine offending. The Judge added three months for the threatening to kill offence, and another month for the fact of offending while on

1 Police v Gestro [2018] NZDC 23217.
2 Criminal Procedure Act 2011, s 250(2).

bail. The Judge deducted 25 percent for the guilty pleas, and a further 15 percent for rehabilitative progress and personal circumstances. The Judge said this produced a figure of 32 months’ imprisonment—which he imposed. In fact, this methodology produced a sentence a little over 31 months’ imprisonment. I return to this shortly.

[5] Mr Gestro contends the starting point for the methamphetamine offending is too high. The Judge relied on R v I’u .3 Mr I’u possessed 10.8 grams of methamphetamine for supply; and offered…

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 Gestro v Police

Details

AGLC: Gestro v Police [2019] NZHC 2053
Case: [2019] NZHC 2053
Decision Date: 21 August 2019

CaseChat Overview and Summary

The High Court of New Zealand heard an appeal by John Peter Gestro against his 32-month imprisonment sentence, which was imposed after he pleaded guilty to possessing methamphetamine for supply, threatening to kill his former partner, and failing to stop for a law enforcement officer. Gestro argued that the sentence was manifestly excessive and that the starting point adopted by the Judge for the methamphetamine offences was too high. The appeal hinged on whether the Judge erred in his sentencing and whether a different sentence should be imposed.

The court considered whether the starting point for the methamphetamine offences was appropriate, given the precedents set by other cases. While Gestro cited several cases that supported a lower starting point, the court found that the precedents were mixed and that the starting point for Gestro's offences was within the range of what had been previously imposed. The court also examined a report from the Department of Corrections, which revealed Gestro's history of drug and alcohol issues, but found that this information did not warrant a lower starting point. The court further noted that the Judge had already considered Gestro's rehabilitative efforts and personal circumstances in arriving at the sentence.

The court found that, although the starting point might have been debatable, the sentence was not manifestly excessive. However, the court did identify an arithmetical error in the Judge's calculations, which should have resulted in a sentence of 31 months, rather than 32. The court concluded that this error warranted allowing the appeal and correcting the sentence to 31 months' imprisonment.

The appeal was allowed solely to correct the arithmetical error in the sentence. The sentence of 32 months' imprisonment was quashed and replaced with a sentence of 31 months' imprisonment.

Orders