IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2021-404-293
[2021] NZHC 2487
BETWEEN
ALEXANDER JAMES GILLESPIE
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing:
6 September 2021
Appearances:
C G Farquhar for Appellant F J C Faull for Respondent
Judgment:
22 September 2021
JUDGMENT OF PAUL DAVISON J
This judgment was delivered by me on 22 September 2021 at 11:00 am pursuant to r 11.5 of the High Court Rules.
Solicitors: Kayes Fletcher Walker, Auckland
GILLESPIE v POLICE [2021] NZHC 2487 [22 September 2021]
Introduction
[1] Alexander Gillespie (the appellant) appeals the decision of Judge A G Mahon in the District Court at Manukau on 31 May 2021, sentencing him to 28 months’ imprisonment on charges of:1
(a)Burglary;2
(b)28 charges of dishonestly using a document to obtain a pecuniary advantage;3
(c)Unlawfully taking a motor vehicle;4
(d)Two charges of driving while disqualified;5
(e)Failing to answer District Court bail;6 and
(f)Breaching community work.7
Background
October 2017: Breach of community work
[2] On 25 September 2017, the appellant was sentenced to 80 hours’ community work for driving with excess breath alcohol. He breached the conditions of that sentence by failing to report to a Probation Officer on 12 October 2017 as directed. On 13 March 2018 he pleaded guilty to a charge of breaching the sentence of community work.
1 Police v Gillespie [2021] NZDC 10720.
2 Crimes Act 1961, s 231(1)(a). Maximum penalty 10 years imprisonment.
3 Crimes Act, s 228. Maximum penalty seven years imprisonment.
4 Crimes Act, s 226(1). Maximum penalty seven years imprisonment.
5 Land Transport Act 1998, ss 32(1)(a) and 32(3). Maximum penalty three months imprisonment or a$4,500 fine, and six months’ disqualification.
6 Bail Act 2000, s 38(a). Maximum penalty one year of imprisonment or a $2,000 fine.
7 Sentencing Act 2002, s 71(1)(a). Maximum penalty 3 months imprisonment or a $1,000 fine.
May 2018: Burglary and driving while disqualified
[3] The appellant pleaded guilty to a charge of burglary and to a charge of driving while disqualified on 5 August 2019 having first appeared on the charges on 2 July 2018. The burglary offending occurred on 9 May 2018 when the appellant drove into the driveway of a residential address in Botany and, having ascertained that there was nobody home, he disabled the security lights and tampered with CCTV cameras before forcing a window open and entering the house. He took an iPhone and left. He was subsequently identified from CCTV footage and the iPhone was located at his home address. At the time of the burglary offending he was driving while disqualified
June 2018: Dishonestly using a stolen credit card to obtain a pecuniary advantage
[4] Over the night of 15-16 June 2018, the Howick Post Office was burgled, and a credit card was stolen. The appellant subsequently obtained the credit card from unknown persons. During the course of 18 and 19 June 2018, the appellant used the stolen credit card to obtain goods to a…
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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Gillespie v Police [2021] NZHC 2487
Case
[2021] NZHC 2487
Decision Date
CaseChat Overview and Summary
The appellant, Alexander Gillespie, appealed against his sentence of 28 months' imprisonment, imposed by Judge A G Mahon in the District Court at Manukau on 31 May 2021. The appellant was sentenced for multiple charges including burglary, dishonestly using a document to obtain a pecuniary advantage, unlawfully taking a motor vehicle, driving while disqualified, failing to answer District Court bail, and breaching community work. The appellant submitted that the sentence was manifestly excessive and that a sentence of home detention was appropriate and should have been imposed. The Crown submitted that the end sentence cannot be said to be manifestly excessive. The court found that the appellant's personal factors and the time he had spent on EM bail warranted the Judge allowing a greater discount than he gave and that by not allowing the discounts the Judge erred. Applying the appropriate discounts, the court found that the sentence of 28 months' imprisonment imposed by Judge Mahon was manifestly excessive and a different sentence should be imposed. The appeal against sentence was allowed, and the sentence imposed on the appellant on 31 May 2021 of 28 months' imprisonment was quashed and substituted with a sentence of ten months' home detention to be served at the appellant's home address. The orders imposing cumulative periods of disqualification on each of the driving charges, and making a total disqualification of 12 months are to remain in force.