IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY
I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE
CRI 2020-454-000007
[2020] NZHC 1140
BETWEEN
SAM GILLARD
Appellant
AND
THE QUEEN
Respondent
Hearing:
19 May 2020
Appearances:
P J Drummond for the Appellant J Mara for the Respondent
Judgment:
27 May 2020
JUDGMENT OF GWYN J
This judgment was delivered by me on 27 May 2020 at 2.30pm
…………………………
Registrar/Deputy Registrar
Solicitors/Counsel:
P J Drummond, Barrister, Palmerston North Crown Law, Wellington
BVA (Ben Valderkolk & Associates), Palmerston North
GILLARD v R [2020] NZHC 1140 [27 May 2020]
Introduction
[1] Mr Gillard pleaded guilty to a single charge of arson.1 He was sentenced to 18 months and two weeks’ imprisonment, which he now appeals.2
[2] The Crown opposes the appeal, except on the issue of two weeks’ imprisonment which was imposed in substitution for the appellant’s fines. Mr Gillard does not take issue with that substitution. The Crown submits there was no jurisdiction for it and the two weeks’ imprisonment imposed must be quashed.
The offending
[3] Mr Gillard set fire to a Mercedes Benz vehicle (the vehicle), causing it to be destroyed. The vehicle’s owner was Mr Gillard’s grandmother’s partner. There is some family history of animosity between Mr Gillard, his mother and his grandmother. Mr Gillard described the circumstances surrounding the offending as “complex”.
[4] In the early hours of 4 April 2018, Mr Gillard and associates arrived on the street where the vehicle was parked and poured the contents of a petrol can he had brought with him over it. Using a blow torch he ignited the petrol. He left the scene soon after and the vehicle was destroyed.
Conviction history
[5] Mr Gillard has one conviction for cultivating cannabis in 2016, one conviction for exceeding the blood alcohol limit for a driver under 20 in 2009 and one conviction for a common assault in 2008.
Reports
PAC report
[6] Mr Gillard is a 29 year old Maori man of Ngāti Raukawa descent on his father’s side.
1 Crimes Act 1961, s 267(3). The maximum penalty is five years’ imprisonment.
2 R v Gillard [2020] NZDC 58585.
[7] The PAC report was prepared on 27 March 2020. It described Mr Gillard spending most of the interview for the report (given via audio visual link) avoiding and deflecting from discussion around the offence and surrounding factors. Mr Gillard described being tired of repeatedly discussing the events and feeling exhausted – with the events having gone on for the last few years. The report writer characterised him as evasive during discussions about his family and associates, saying he just wanted to focus on moving forward, getting a job, being there for his children and getting a car. When asked what support he would need, he described wanting to remain positive and focussed on moving forward rather than focussing on the past or treatment. The report writer describes him as not expressing remorse or regret, but instead taking a “victim” stance.…
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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AGLC
Gillard v The Queen [2020] NZHC 1140
Case
[2020] NZHC 1140
Decision Date
CaseChat Overview and Summary
This case involved an appeal by Sam Gillard against his sentence for a charge of arson. The sentencing judge imposed a sentence of 18 months and two weeks' imprisonment. The appeal was brought under section 244 of the Criminal Procedure Act 2011. The Crown opposed the appeal except for the issue of the two weeks' imprisonment imposed in substitution for the appellant's fines. The appeal court considered whether there was an error in the District Court Judge's approach and, if so, whether a different sentence was appropriate. The court found that the starting point set in the District Court was slightly higher than necessary. The court also found that the sentence imposed was manifestly excessive, such that the appeal must succeed and a different sentence should be imposed. The appeal court sentenced the appellant to eleven months and one week of imprisonment, subject to the standard release conditions and special release conditions as imposed by the sentencing judge. The court also quashed the two weeks' imprisonment substituted for the appellant's remitted outstanding fines.