Gillies v R - [2014] NZCA 115

IN THE COURT OF APPEAL OF NEW ZEALAND

CA675/2013
[2014] NZCA 115

BETWEEN	JOHN WHAREMAKO GILLIES Appellant
AND	THE QUEEN Respondent

Hearing:	4 March 2014
Court:	Miller, Goddard and Clifford JJ
Counsel:	E R Fairbrother QC for Appellant KAL Bicknell for Respondent
Judgment:	1 April 2014 at 4.00 pm

JUDGMENT OF THE COURT

An extension of time to appeal against sentence is granted, but the appeal is dismissed.

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REASONS OF THE COURT

(Given by Clifford J)

Issue

The appellant, John Wharemako Gillies, pleaded guilty to charges of injuring with intent to injure and assault arising out of an incident at Waimarama in April 2012, and to a further charge of injuring a prison officer with intent to injure, arising out of an incident at Hawke’s Bay Regional Prison in September 2012.
Mr Gillies was sentenced by Judge Harrop in the District Court at Wellington on 30 August 2013 to a total term of imprisonment on those charges of five years and three months.[1]
[1]R v Gillies DC Wellington CRI-2012-020-2804, 30 August 2013 [sentencing decision].
Mr Gillies now appeals that sentence as being manifestly excessive. The appeal was filed six days late. There being no objection, we extend time.

Facts

The Waimarama incident

Mr Gillies’ extended family comes from Waimarama, the site of a
long-established Māori community in coastal Hawke’s Bay. A street in Waimarama, Gillies Crescent, is named after Mr Gillies’ branch of that family. Mr Gillies’ victims are members of another branch of that family.
Mr Gillies’ victims, James Hamlin and his cousin Tamatea Barlow, were at their family home on Gillies Crescent, catching up with each other and members of their extended family. Neither Mr Hamlin nor Mr Barlow knew Mr Gillies well. Mr Hamlin had occasionally seen Mr Gillies but Mr Barlow had never met him before.
Mr Gillies arrived at the address with a female companion, but stayed for only about five to 10 minutes. He consumed a bottle of beer and then left. It would appear Mr Gillies did not receive the welcome he thought was appropriate. He returned approximately half an hour later, carrying a solid wooden stick or pole about the thickness of a broom handle or slightly bigger. On entering the garage Mr Gillies smashed a glass table and then, using what was described as a jabbing or poking motion, struck Mr Hamlin in the head in the area of his left temple and eye. Mr Gillies then swung the stick at Mr Barlow. Mr Barlow managed to avoid being hit. Mr Barlow wrestled Mr Gillies to the ground and, after a tussle, Mr Gillies left the property.
Mr Hamlin’s injury required stitches, caused swelling, serious headaches and permanent scarring. It has contributed to the degeneration of Mr Hamlin’s sight. Mr Hamlin, in his victim impact statement, records the adverse impact Mr Gillies’ attack has caused to his life and his role within the Waimarama community. Although Mr Barlow suffered no physical injuries, he reported psychological impacts.

The Hawke’s Bay…

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 Gillies v R

Details

AGLC: Gillies v R [2014] NZCA 115
Case: [2014] NZCA 115
Decision Date: 1 April 2014 at 4.00 pm

CaseChat Overview and Summary

John Wharemako Gillies appeals against his sentence of five years and three months for injuring with intent to injure and assault, arising out of incidents in Waimarama and Hawke’s Bay Regional Prison. Gillies argues the sentence is manifestly excessive. The appeal was lodged six days late but no objection to the extension of time was raised. The Court grants an extension of time but dismisses the appeal. The Court finds the sentence imposed by the District Court Judge was appropriate, taking into account the circumstances of the offending and mitigating factors such as the guilty pleas. The starting point sentence for the attack on Officer Pihema was appropriately set at three years, reflecting the seriousness of the assault on a prison officer and the level of violence involved. The nine-month uplift for previous offending was also justified, as Gillies had a history of violent offending and had not learnt from previous sentences. The Court acknowledges Gillies’ remorse and insight, but finds that the Judge appropriately balanced this with the need for a sentence that reflects the seriousness of the offending.

Orders