Gillies v The the Queen - [2022] NZHC 534

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI-2022-419-000002

[2022] NZHC 534

BETWEEN
JOHN GILLIES

Appellant

AND

THE QUEEN

Respondent

Hearing: 17 March 2022 (via VMR)

Appearances:

P Jensen for the Appellant B Harris for the Respondent

Judgment:

22 March 2022

JUDGMENT OF GORDON J

This judgment is delivered by me on 22 March 2022 at 1pm.

.....................................................
Registrar / Deputy Registrar5

Counsel: Philip Jensen, Barrister, Napier Solicitor: Hamilton Legal, Hamilton

GILLIES v R [2022] NZHC 534 [22 March 2022]

Introduction

[1] On 10 December 2021, the appellant John Gillies was sentenced by Judge Mabey QC in the District Court at Hamilton to 19 months’ imprisonment and four years’ disqualification from holding or obtaining a driver licence.1 Mr Gillies had pleaded guilty to five charges of aggravated careless use of a vehicle causing injury (the Crown charges), as well as one charge of failing to stop when followed by red and blue flashing lights, and one charge of driving while disqualified (third or subsequent) (together the Napier charges).

[2]Mr Gillies now appeals his sentence on the basis that:

(a)the starting point was too high;

(b)the uplifts were excessive;

(c)the sentencing Judge did not take all mitigating factors into account; and

(d)the length of time that he is disqualified from driving is excessive.

Background

[3] The five charges of aggravated careless use of a vehicle arose out of one incident. The Judge describes it in detail:

[5] On Saturday 18 July 2020, in the afternoon, you were driving a vehicle northbound on State Highway 1 in Cambridge. You had your friend, Mr Anderson, with you. It was fine and dry and there was a moderate amount of traffic. Where you were driving was a two-lane highway, one in each direction, with a 100 kilometre per hour speed limit. The lanes are separated by a white painted median strip which is accompanied by yellow lines to prohibit overtaking.

[6] In addition there were signs prohibiting passing on the painted median. It was clear to all road users that it was contrary to law to pass on that painted median [which] was there to promote road safety, having regard to the geography of the road and its characteristics at that point. What you did was overtake on the median.

1 R v Gillies [2021] NZDC 24427 [District Court judgment].

[7] The summary says you did so at speed but I have enquired into that and am satisfied that there is no proof of any greatly excessive speed …

[8] What then happened was that your motor vehicle lost traction such that when you corrected you ended up on the wrong side of the road. Coming towards you was a motor vehicle with four occupants. There was a head-on collision and the occupants of that vehicle and your passenger were injured.

[9] I have received victim impact statements from the four occupants of the other vehicle, two of whom received relatively minor injuries but two…

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: [2022] NZHC 534
Decision Date: 22 March 2022

CaseChat Overview and Summary

In this appeal, John Gillies contests his sentence on several grounds, including that the starting point was too high, the uplifts were excessive, the sentencing Judge did not take all mitigating factors into account, and the length of time that he is disqualified from driving is excessive. The appeal is allowed in part. The starting point and uplifts were found to be appropriate, though there was no discount for remorse, which would have been balanced by the overly generous discount for time spent on electronically monitored bail. However, there was an error in not applying a discount for his early guilty pleas on the two Napier charges, and the sentences on those charges are quashed and remitted back to the Napier District Court for re-sentencing. The sentence of 12 months’ imprisonment and 12 months’ disqualification from driving on the five charges of aggravated careless use of a vehicle causing injury is confirmed.

The reasoning behind this decision was that while there was no error in the starting point and uplifts, there was an error in not applying a discount for remorse and for the early guilty pleas on the Napier charges. The failure to apply the discount for remorse was balanced by the overly generous discount for time spent on electronically monitored bail. However, the error in not applying a discount for the early guilty pleas on the Napier charges was significant enough to warrant allowing the appeal in part and remitting those charges back to the Napier District Court for re-sentencing. The sentence of 12 months’ imprisonment and 12 months’ disqualification from driving on the five charges of aggravated careless use of a vehicle causing injury was found to be appropriate and is therefore confirmed.

Orders