(b)The “Auckland offending”: unlawfully taking a motor vehicle,2 burglary,3 possession of a utensil for methamphetamine use; theft under $500;4 and offensive behaviour;5 and

(c) The “Huntly offending”:6 wilful damage,7 unlawfully being in an enclosed yard;8 two charges of unlawfully taking a motor vehicle; and burglary.

[2] In the District Court Judge Dawson sentenced Mr Gorgus to a total term of

four years’ and one month’s imprisonment. Mr Gorgus now appeals that sentence.

Background

[3] I set out the relevant background facts chronologically. I note that all but one of the offences were committed by Mr Gorgus while on bail.

The methamphetamine utensils charge

[4] In July 2014 Mr Gorgus was arrested on matters unrelated to the present appeal. He was searched and found in possession of a camera case in which there
was a glass pipe for smoking methamphetamine. He was not on bail at the time.

1      Misuse of Drugs Act 1975, ss 13(1)(a) and 13(3): maximum penalty one year’s imprisonment or
$500 fine.
2      Crimes Act 1961, s 226: maximum penalty seven years’ imprisonment.
3      Section 231: maximum penalty 10 years’ imprisonment.
4      Crimes Act 1961, s 223(d): maximum penalty three months’ imprisonment.
5      Summary Offences Act 1981, s 4: maximum penalty $1000 fine.
6      Referred to in the District Court and in counsel submissions as the “Hamilton offending”
although the offending occurred in Huntly.
7      Summary Offences Act 1981, s 11(1): maximum penalty three months’ imprisonment or $2000
fine.
8      Section 29(1)(b): maximum penalty three months’ imprisonment or $2000 fine.

The Auckland offending

[5] In the early afternoon of 17 October 2014 Mr Gorgus was at John Jennings Drive, Oteha. He noticed a Toyota Hylux vehicle parked in a shared driveway with the keys in the ignition. The vehicle belonged to the first victim, who was working nearby. Mr Gorgus got into the vehicle and drove off. Approximately 2 km away he dumped the vehicle on the side of the road. From the car he took a cellphone, a wallet with $500 in cash and the keys. The vehicle was worth $5,000, and the cellphone $39. The wallet and cash were never recovered.

[6] Later that day, at approximately 5pm, Mr Gorgus was at an address in Torbay that belongs to the second victim. He smashed a window to gain entry into the property and searched through the house, including the owner’s bedroom. He stole a laptop, worth $1,500 and jewellery, said to…

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 Gorgus v Police

Details

AGLC: Gorgus v Police [2015] NZHC 3127
Case: [2015] NZHC 3127
Decision Date: 7 December 2015

CaseChat Overview and Summary

In the High Court of New Zealand, Ashor Gorgus appeals against his sentence imposed by the District Court for multiple charges, including burglary and theft. The court was required to decide whether the District Court judge had made any errors in sentencing that warranted a re-sentencing by the High Court. Specifically, the court needed to determine whether the starting point for the Auckland burglary was too high, if the sentencing principles were correctly applied, and whether the final sentence was manifestly excessive.

The court found no error in the District Court's sentencing approach. The High Court noted that the starting point for the Auckland burglary was within the appropriate range and the 18-month uplift for the lesser charges was justified. The court also found that the District Court judge had adequately considered the totality principle and that the sentence did not result in a total period of imprisonment disproportionate to the gravity of the overall offending. The High Court rejected the appeal, affirming the District Court's sentence of four years and one month's imprisonment.

Orders