Gordon v Police - [2023] NZHC 2053

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2023-409-106

[2023] NZHC 2053

UNDER the Criminal Procedure Act 2011

IN THE MATTER

of an appeal against sentence

BETWEEN

JADE HENRY GORDON

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 27 July 2023

Appearances:

A J Greaves for Appellant

C M Hallaway for Respondent

Judgment:

4 August 2023

JUDGMENT OF OSBORNE J

Introduction

[1] Jade Gordon appeals sentences imposed on him in the District Court in June 2023.1

[2]Mr Gordon pleaded guilty to charges of:

(a)assaulting police (x 2);2

(b)resisting police;3

1      Police v Gordon [2023] NZDC 11709.
2      Crimes Act 1961, s 192(2) – maximum penalty: three years’ imprisonment.
3      Summary Offences Act 1981, s 23(a) – maximum penalty: three months’ imprisonment or fine not exceeding $2000.

GORDON v NEW ZEALAND POLICE [2023] NZHC 2053 [4 August 2023]

(c)driving while disqualified (third or subsequent);4

(d)driver giving false information as to own identity;5 and

(e)escaping police custody.6

[3]Judge Couch sentenced Mr Gordon:

(a)in relation to an incident on 22 January 2023 (the January charges):

(i)assaulting police (2 x) — four months’ imprisonment (2 x); and

(ii)resisting police — one month’s imprisonment.

(b)in relation to an incident on 24 March 2023 (the March charges):

(i)disqualified driving — one year and eight months’ imprisonment;

(ii)escaping custody — six months’ imprisonment; and

(iii)false identity information —disqualification only.

[4] All sentences other than the false information sentence were ordered to be served concurrently.

[5]The Judge, in relation to periods of disqualification, ordered:

(a)on the disqualified driving charge — disqualification for one year from 7 August 2023;

4      Land Transport Act 1998, s 32(1)(a) and 32(4) – maximum penalty: two years’ imprisonment or fine not exceeding $6000 and mandatory 12-month disqualification.
5      Sections 52A(1)(c), 52A(4), 52A(6) & 114(3)(b) – maximum penalty: $10,000 fine and mandatory 12-month disqualification.
6      Crimes Act, s 120(c) – maximum penalty: five years’ imprisonment.

(b)on the false information charge — two years’ disqualification, cumulative on the previous disqualification (that is, commencing from 7 August 2024).

[6] Additionally, the Judge issued a notice under s 129B Sentencing Act 2002 to the owner of the motorcycle referred to in the March charges.

[7] Mr Gordon appeals the total length of the imprisonment sentence on the grounds:

(a)the total is manifestly excessive; and

(b)there were errors in the calculation of the sentences imposed.

[8] Mr Gordon also appeals the second disqualification period (imposed on the false information charge) on the basis it was incorrectly set at two years instead of one year.

[9] The Crown concedes the end sentence of imprisonment was manifestly excessive and the appeal should be granted.

[10] The Crown also recognises the second disqualification period was incorrectly set at two years.

Facts

The January charges

[11] At around 2.15 am on 22 January 2023, Mr Gordon was at the Ibis Hotel in Christchurch when police were called due to a dispute between him and his partner. It was established his contact was in breach…

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 Gordon v Police

Details

AGLC: Gordon v Police [2023] NZHC 2053
Case: [2023] NZHC 2053
Decision Date: 4 August 2023

CaseChat Overview and Summary

Gordon v New Zealand Police [2023] NZHC 2053 involves an appeal against sentences imposed by the District Court on Jade Henry Gordon, who pleaded guilty to multiple charges including assaulting police, resisting police, driving while disqualified, providing false information to police, and escaping police custody. Gordon appeals the total length of the imprisonment sentence, arguing it was manifestly excessive and that there were errors in its calculation. He also contests the disqualification period imposed on the false information charge. The Crown concedes that the total sentence of imprisonment was manifestly excessive and that the disqualification period was incorrectly set.

The legal issues before the court were whether the District Court erred in its calculation of the sentence and whether the total sentence imposed was manifestly excessive. The court examined the starting points, uplifts, discounts, and the application of personal mitigating factors to determine if the sentence was justified. The court also considered whether the disqualification period imposed on the false information charge was correctly determined.

The court found that while the starting point of 16 months for the disqualified driving and false information charges was appropriate, the Judge erred in not applying a discount for personal mitigating factors. The court accepted the Crown's submission that a 10 per cent discount was appropriate, resulting in a net sentence of 17 months. The court found the total sentence of 20 months' imprisonment to be manifestly excessive and substituted a sentence of one year and five months' imprisonment for the disqualified driving charge. The court also quashed the disqualification period imposed on the false information charge and substituted a one-year disqualification period.

The final orders of the court were that the appeal was allowed, the sentence of one year and eight months' imprisonment on the disqualified driving charge was quashed and substituted with a sentence of one year and five months' imprisonment, the disqualification on the false details charge was quashed, and a one-year disqualification period was imposed on the false details charge.

Orders