Gilliland v Police - [2019] NZHC 289

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2018-404-386

[2019] NZHC 289

BETWEEN
JAMES GILLILAND

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 25 February 2019

Counsel:

M Dyrhberg QC and K Martellic for Appellant R McCoubrey and H Savage for Respondent

Judgment:

28 February 2019

JUDGMENT OF CHURCHMAN J

[1] The appellant, Mr James Gilliland, pleaded guilty in the Auckland District Court to one charge of injuring with reckless disregard.1 Following a hearing on 17 October 2018, Mr Gilliland’s application for discharge without conviction under s 106 of the Sentencing Act 2002 (the Act) was declined by Judge Jelas.2 He was convicted and sentenced to 200 hours’ community work by Judge Field.

[2] Mr Gilliland appeals his conviction and sentence on the basis that Judge Jelas erred in her assessment of whether the consequences of a conviction would be out of all proportion to the gravity of the offending. Ms Dyrhberg QC, on his behalf, submits the gravity of his offending was low and the consequences on him for travel and employment are out of all proportion to his offending.

1 Crimes Act 1961, s 189(2); maximum penalty five year’s imprisonment.
2 Police v Gilliland [2018] NZDC 22323.

GILLILAND v NEW ZEALAND POLICE [2019] NZHC 289 [28 February 2019]

[3] The Crown opposes the appeal, submitting that the Judge did not err in her assessment of the s 106 application and her refusal to grant a discharge without conviction did not result in a miscarriage of justice.

Approach on appeal

[4] An appeal against the refusal to grant a discharge without conviction is a composite appeal against conviction and sentence.3 The basis for determining an appeal against a refusal to grant a discharge without conviction is whether a miscarriage of justice has occurred:4

(a)by virtue of a material error by the sentencing judge in entering a conviction; or

(b)as a result of an error by the judge in applying the principles of discharging an offender without conviction under s 107 of the Act.

Background

[5] On the morning of 9 May 2018, Mr Gilliland was standing at the intersection of Ponsonby Road and Picton Street, waiting to cross Picton Street from south to north. The complainant was in her car, waiting at a red traffic light to turn left from Picton Street onto Ponsonby Road. There was a queue of vehicles behind her.

[6] The traffic lights, along with the light for the pedestrian crossing, turned green at the same time. As she was unable to turn left, the complainant drove her vehicle forward slightly, to allow the queue of vehicles behind her to pass while still giving way to pedestrians.

[7] Mr Gilliland approached the complainant’s vehicle, kicking the front passenger door. When the complainant asked why he had done that, he replied that there were pedestrians crossing.

3 Jackson v R [2016] NZCA 627 at [6]-[16].
4 At [12].

[8] Once the pedestrians had finished crossing, the complainant…

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: [2019] NZHC 289
Decision Date: 28 February 2019

CaseChat Overview and Summary

The appellant, Mr James Gilliland, appeals his conviction and sentence for injuring with reckless disregard, contending that the sentencing judge erred in concluding that the consequences of a conviction would not be out of all proportion to the gravity of the offending. The Crown opposed the appeal, submitting that the Judge was correct in finding that the consequences of a conviction were not out of all proportion to the gravity of the offending. The Court found that there was a real and appreciable risk that the appellant's ability to travel and his future employment prospects would be negatively impacted by a conviction. However, the consequences were not out of all proportion to the gravity of the offending, and the appeal was dismissed.

Orders