Gollan v R - [2013] NZCA 29

IN THE COURT OF APPEAL OF NEW ZEALAND

CA580/2012
[2013] NZCA 29

BETWEEN JAMES PATRICK GOLLAN
Appellant

AND THE QUEEN
Respondent

Hearing: 14 February 2013

Court: Ellen France, Ronald Young and Dobson JJ

Counsel: Appellant in person
M J Inwood for respondent

Judgment: 25 February 2013 at 10 am

JUDGMENT OF THE COURT

A Appeal against conviction dismissed.

B The time for filing the appeal against sentence is extended and the appeal against sentence allowed.
CAll sentences are quashed and the following sentences of imprisonment are substituted:
(1)On each charge of assault with a weapon
eight months (concurrent); and

(2)On each charge of threatening to do grievous bodily harm four months (concurrent).

All sentences to be served concurrently.

DThe standard release conditions apply for a period of six months beyond the expiry date.

____________________________________________________________________

REASONS OF THE COURT

(Given by Dobson J)

Table of Contents

Para No
Introduction  [1]
Mr Gollan’s pursuit of his appeals  [2]
Background  [6]
The Judge’s reasoning  [12]
Grounds for challenge  [15]

Errors in respect of evidence of the 111 call[15]
Relative audibility of police communications, and Mr Butcher[20]
Wrongful admission of rebuttal evidence  [25]
Exclusion of Constable Jones’ job sheet[27]
Exclusion of article from Police Association journal[32]
Inadequate consideration of a photograph of the premises[39]
Rejection of Ms Gollan’s written statement[43]
Scope of statutory defences raised: ss 53, 55 and 56 of the
     Crimes Act[48]
Reasonableness of the force used[58]
The complainants should have been recognised as trespassers from
     the outset[60]

Summary on appeal against conviction [63]
Appeal against sentence [66]

Introduction

In July 2012, James Gollan defended two counts of assault with a weapon and two counts of threatening to do grievous bodily harm in a Judge alone trial in the District Court at Hamilton. On 17 August 2012, Judge Ruth delivered reasons for his verdicts, finding that Mr Gollan was guilty of each of the four counts.[1] He was sentenced to 12 months’ imprisonment on each of the convictions for assault with a weapon, and to concurrent sentences of six months’ imprisonment on each of the convictions for threatening to do grievous bodily harm.[2] Mr Gollan has appealed against both the convictions and sentence.

Mr Gollan’s pursuit of his appeals

[1] R v Gollan DC Hamilton CRI-2011-019-2337, 17 August 2012 [the reasons].

[2] R v Gollan DC Hamilton CRI-2011-019-2337, 11 October 2012.

Mr Gollan acted for himself both in the District Court, and in this Court. He filed detailed notices of appeal dated 14 September and 22 November 2012, but then advised the Court in writing prior to the hearing that he would not be filing written submissions because the Department for Corrections had not supplied “adequate facilities” for him to do so. The inadequacy of facilities for him to prepare arguments for his appeal had earlier been raised by Mr Gollan as a ground for seeking bail pending his appeal. The point was considered, but not treated as contributing sufficiently to reasons for…

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 Gollan v R

Details

AGLC: Gollan v R [2013] NZCA 29
Case: [2013] NZCA 29
Decision Date: 25 February 2013

CaseChat Overview and Summary

James Gollan appealed against his convictions and sentence for four charges of assault with a weapon and threatening to do grievous bodily harm in a Judge alone trial at the Hamilton District Court. The Court of Appeal dismissed the appeal against conviction but allowed the appeal against sentence. The Judge had sentenced Mr Gollan to 12 months’ imprisonment on each of the convictions for assault with a weapon, and to concurrent sentences of six months’ imprisonment on each of the convictions for threatening to do grievous bodily harm. The Court of Appeal quashed all sentences and substituted concurrent sentences of eight months’ imprisonment on each of the assault charges and four months’ imprisonment on each of the threatening charges. The Court of Appeal found that the Judge had erred in rejecting home detention as an alternative to imprisonment, as there is no requirement in the Sentencing Act 2002 for a positive rehabilitative reason for imposing home detention instead of imprisonment. The Court of Appeal also found that the starting point for the offending was too high, and that the culpability of the offending was appropriately met by an adjustment to Mr Gollan’s sentence to achieve his immediate release.

Orders