Gobey v Police - [2018] NZHC 1555

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-Ā-TARA ROHE

CRI-2018-485-36

[2018] NZHC 1555

BETWEEN
HAYDEN RAE GOBEY

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 19 June 2018

Counsel:

K M Pedder for Appellant

A R Winsley for Respondent

Judgment:

27 June 2018

JUDGMENT OF THOMAS J

Introduction

[1] The appellant, Mr Gobey, was sentenced in the District Court to two years and three months’ imprisonment for a multitude of dishonesty and other convictions.1 Mr Gobey now appeals that sentence on the basis the starting point of three years’ imprisonment was too high and the Judge improperly relied on personal circumstances to impose a longer sentence.

Factual background

[2]The charges are the result of a period of offending where Mr Gobey variously:

(a)altered a prescription to obtain more medication than that to which he was entitled;

1 Police v Gobey [2018] NZDC 7224.

GOBEY v NEW ZEALAND POLICE [2018] NZHC 1555 [27 June 2018]

(b)purported to sell items over Facebook, received the money but failed to send the goods to the buyers;

(c)obtained and used a credit card to buy PrezzyCards;

(d)obtained financial details of two people by impersonating bank security staff and taking $36,000 from the victims’ accounts;

(e)purported to sell a mobile phone on Facebook and thereby obtained a copy of a 20 year old immigrant victim’s bank account, driver’s licence and passport. He then used those documents to buy a new cell phone online and sell it;

(f)applied for a credit card in the name of another victim; and

(g)obtained photographs of a police officer’s driver’s licence and police identity card, and created a Facebook account in the police officer’s name through which he advertised electronic items. On a number of occasions, he received money for the goods he advertised but no goods were ever received by the purchasers.

[3] Mr Gobey’s offending took place over a period of six months and caused an overall loss of approximately $41,000 to a number of victims. The course of conduct gave rise to:

(a)four charges (two representative) of taking, obtaining or using a document for pecuniary advantage;2

(b)one representative charge of accessing a computer system for a dishonest purpose;3

(c)one representative charge of obtaining by deception (over $1,000);4

2      Crimes Act 1961, s 228: maximum penalty seven years’ imprisonment.
3      Section 249(1): maximum penalty seven years’ imprisonment.
4      Sections 240(1)(d) and 241(a): maximum penalty seven years’ imprisonment.

(d)two charges of causing loss by deception (over $1,000);5

(e)one representative charge of intent to access a computer system for a dishonest purpose;6

(f)one representative charge of obtaining by deception ($500–$1,000);7

(g)two charges of causing loss by deception ($500–$1,000);8

(h)one representative charge of impersonating a police officer;9 and

(i)two charges of theft.10

[4]In addition, Mr Gobey was charged with:

(a)three charges of breaching release conditions by failing to report to a Probation officer as instructed;11

(b)one charge of failing to answer District Court bail;12

(c)one charge of breaching community work;13 and

(d)four charges of…

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 Gobey v Police

Details

AGLC: Gobey v Police [2018] NZHC 1555
Case: [2018] NZHC 1555
Decision Date: 27 June 2018

CaseChat Overview and Summary

The appeal in Gobey v Police involves a challenge by the appellant, Hayden Gobey, against a sentence imposed by the District Court. Mr Gobey was sentenced to two years and three months' imprisonment for various dishonesty and other offences. He contends that the starting point of three years' imprisonment was excessively high and that the Judge improperly considered personal circumstances in setting the sentence. The High Court was required to determine whether the District Court erred in setting the starting point for the sentence and whether this error was material to the decision.

The High Court considered the appellant's argument that the starting point was too high and that a range of 15 to 21 months' imprisonment would have been more appropriate. The Court noted that the Judge's starting point of three years was at the higher end of the range, but not outside it. The Court examined the nature of the offending, including its duration, the number of victims, and the variety of methods used. The Court also considered the appellant's prior offending history, which was relevant to the uplift applied to the starting point. The Court found that the Judge appropriately considered the appellant's attitude towards his victims, which was relevant to the gravity of the offending. The Court concluded that the starting point was within the appropriate range, considering the seriousness of the offences and the appellant's criminal history.

The High Court dismissed the appeal, finding no error in the District Court's assessment of the starting point for the sentence. The Court upheld the sentence of two years and three months' imprisonment, considering the full discount for the appellant's guilty pleas and the absence of any further discounts. The appeal was dismissed, and the sentence remained unchanged.

Orders