Gorrie v Police - [2015] NZHC 359

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2015-463-000015 [2015] NZHC 359

BETWEEN
TONY ASHLEY GORRIE

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 5 March 2015

Appearances:

H Roose for the Appellant
A Hill for the Respondent

Judgment:

5 March 2015

JUDGMENT OF WOOLFORD J

Counsel/Solicitors:

Crown Solicitor, Rotorua
Herman Roose, Barrister, Rotorua

TONY ASHLEY GORRIE v NEW ZEALAND POLICE [2015] NZHC 359 [5 March 2015]

Summary

[1] Tony Ashley Gorrie was convicted following a Judge alone trial in the Rotorua District Court on 19 August 2014 of two charges of burglary and two charges of dishonestly using a document, namely a credit card, to obtain a pecuniary advantage.1

[2] On 14 October 2014, he was sentenced by another Judge to three years and six months imprisonment. He now appeals against sentence on the basis that it is manifestly excessive.

Factual background

[3] The charges related to two separate sets of offending. In the first, Mr Gorrie unlawfully entered backpackers’ accommodation in Rotorua. He stole the wallet of a Japanese tourist, and used a bank card from it to make purchases. In the second, he unlawfully entered backpackers’ accommodation in Taupo, stole cash and a bank card from an Australian tourist’s wallet, and used the bank card to make purchases. On one of these occasions, in order to get inside the backpackers’ accommodation, Mr Gorrie followed guests who had security cards and entered before the door closed behind them. The value of the goods obtained by use of the credit cards was less than $1000, but the inconvenience caused to these tourists was significant.

[4] Mr Gorrie’s criminal history is significant. It includes over 180 previous convictions for dishonesty and 10 for burglary. Of the burglary convictions, only two are from the last 12 years, dating from 2011 and 2013.

District Court judgment

[5] The sentencing Judge took a starting point of two years imprisonment. He uplifted that sentence by six months because of the totality of the offending (i.e. the use of the bank cards). Then he imposed a further uplift of one year’s imprisonment because of Mr Gorrie’s previous convictions to reach a final sentence of three and a
half years imprisonment.

1 Crimes Act 1961, s 228 and Crimes Act 1961, s 231.

Appellant’s submissions

[6] Mr Gorrie’s counsel accepts that the starting point of two years imprisonment is appropriate even though the sentencing Judge referred to Mr Gorrie’s targeting of tourist accommodation in relation both to the seriousness of the offending and to the disproportionate impact it had on the victims as foreigners to New Zealand. This emphasis, he says, amounted to placing undue weight on this aggravating feature of the offending.

[7] Additionally, counsel submits that the uplifts imposed were excessive in two respects:

(a) The use of the credit cards was part and parcel of the burglaries, and so the sentences should have been imposed concurrently under the totality principle; and

(b) The 12-month uplift for previous convictions was excessive.

Respondent’s submissions

[8]…

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 Gorrie v Police

Details

AGLC: Gorrie v Police [2015] NZHC 359
Case: [2015] NZHC 359
Decision Date: 5 March 2015

CaseChat Overview and Summary

In the case of Tony Ashley Gorrie v New Zealand Police, the appellant, Tony Gorrie, was convicted of two charges of burglary and two charges of dishonestly using a document to obtain a pecuniary advantage. Gorrie's appeal against his sentence of three years and six months imprisonment was based on the argument that it was manifestly excessive. The legal issues before the court were whether the starting point of two years imprisonment was appropriate, whether the uplifts imposed were excessive, and if the sentence was manifestly excessive. The court examined the appellant's criminal history and the nature of the offending, and considered relevant case law. The court found that the starting point of two years imprisonment was appropriate, and that the uplifts imposed were also appropriate. However, the court found that the final sentence of three years and six months imprisonment was manifestly excessive and reduced it to three years imprisonment. The court imposed concurrent sentences of three years imprisonment on each burglary charge and of 6 months imprisonment on the charges of using a document to obtain a pecuniary advantage.

The High Court substituted a sentence of three years imprisonment instead, imposing concurrent sentences of three years imprisonment on each burglary charge and of 6 months imprisonment on the charges of using a document to obtain a pecuniary advantage. The court found that the sentence imposed in the District Court was manifestly excessive and that a sentence of three years imprisonment was more appropriate. The court considered the appellant's criminal history and the nature of the offending in reaching its decision. The court found that the starting point of two years imprisonment was appropriate, and that the uplifts imposed were also appropriate. However, the court found that the final sentence of three years and six months imprisonment was manifestly excessive and reduced it to three years imprisonment.

Orders