Gorgus v R - [2016] NZCA 508

IN THE COURT OF APPEAL OF NEW ZEALAND

CA706/2015
[2016] NZCA 508

BETWEEN	ASHOR GORGUS Appellant
AND	THE QUEEN Respondent

Hearing:	21 September 2016
Court:	Harrison, Brown and Brewer JJ
Counsel:	D M Goodlet for Appellant K S Grau for Respondent
Judgment:	19 October 2016 at 10 am

JUDGMENT OF THE COURT

The application for leave to bring a second appeal is declined.

____________________________________________________________________

REASONS OF THE COURT

(Given by Harrison J)

Introduction

Ashor Gorgus applies for leave to appeal against his sentence of imprisonment imposed by Judge N R Dawson in the Auckland District Court following conviction for a range of associated dishonesty and drug offences.[1] The sentence was upheld on appeal to the High Court by Muir J.[2] Mr Gorgus now seeks a second appeal in this Court, relying on the ground that a miscarriage of justice might otherwise occur.[3]

Background

[1]R v Gorgus [2015] NZDC 20428 [Sentencing notes].

[2]Gorgus v Police [2015] NZHC 3127 [First appeal].

[3]Criminal Procedure Act 2011, s 253(3)(b).

Mr Gorgus pleaded guilty in the District Court to three separate sets of offending. The first was in September 2014 when he committed the offence of possession of utensils for methamphetamine.[4] The second was in the Auckland region in October 2014 when he committed the offences of unlawfully taking a motor vehicle, burglary, theft, possession of a utensil for methamphetamine use and offensive behaviour.[5] The third was in the Huntly area in May 2015 when he committed the offences of wilful damage, unlawfully being in an enclosed yard, unlawfully taking a motor vehicle and burglary.[6]
[4]Sentencing notes, above n 1, at [9].
[5]At [5]–[8].
[6]At [10]–[12].
At the time he pleaded guilty Mr Gorgus was aged 29 years; he was sentenced shortly after his thirtieth birthday. He had over 100 previous convictions, many for burglary and other dishonesty offences.
Judge Dawson sentenced Mr Gorgus to a total term of four years and one months’ imprisonment.[7] He first considered the Auckland offending, treating the burglary charge as the lead offence. Mr Gorgus had gained entry to a residential property by smashing a window and stole a laptop and jewellery, valued at $1,500 and $800 respectively.[8] He also stole a wallet containing cash of $500 and a cell phone.[9]
[7]At [33].
[8]At [7].
[9]At [6].
The Judge adopted a starting point of two years’ imprisonment.[10] He applied an uplift of 18 months to reflect the other Auckland offending and a 15 per cent discount for the guilty pleas. The Judge imposed an end sentence of three years’ imprisonment together with a cumulative sentence of one month imprisonment on the separate charge of possessing utensils.[11] He then added an extra year for the burglary at Huntly — where Mr Gorgus had broken into a residential address but was disturbed before he could steal anything — and concurrent sentences for the other charges committed there.[12] It was also relevant that Mr Gorgus offended while on bail.[13] Finally, the Judge remitted Mr Gorgus’ outstanding fines and reparation.[14]
[10]At…

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 R

Details

AGLC: Gorgus v R [2016] NZCA 508
Case: [2016] NZCA 508
Decision Date: 19 October 2016 at 10 am

CaseChat Overview and Summary

Ashor Gorgus sought leave to appeal against the four-year-one-month imprisonment sentence imposed by Judge Dawson in the Auckland District Court, following his conviction for various dishonesty and drug offences. The High Court had previously upheld the sentence, and Gorgus now sought a second appeal in the Court of Appeal, arguing that a miscarriage of justice might otherwise occur. The legal issues before the Court were whether the sentence was too severe and whether the starting point adopted for the Auckland burglary was too high. The Court of Appeal found that the threshold for granting leave to appeal was high, and that the applicant must identify a reasonably available argument that the lower courts were in error. The Court found no error in the sentencing process and held that the starting point adopted by Judge Dawson was consistent with previous cases. The Court also found that the end sentence was well within the available range, and that the separate sentencing consideration for the Auckland and Huntly offending was justified. The application for leave to bring a second appeal was declined.

The Court of Appeal found no error in Judge Dawson's sentencing process and held that the starting point adopted for the Auckland burglary was consistent with previous cases. The Court found that the end sentence was well within the available range, and that the separate sentencing consideration for the Auckland and Huntly offending was justified. The Court also noted that the offender had been the beneficiary of a relatively generous sentence for the Huntly offending, especially given that it occurred while on bail. The Court concluded that the sentencing process had not gone awry, and that the offender's application for leave to appeal did not reach the required threshold. The application for leave to bring a second appeal was declined, and the original sentence was upheld.

Orders