Gosai v Police

[2025] NZHC 1548

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2025-409-133

[2025] NZHC 1548

BETWEEN

RISHAP GOSAI

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	12 June 2025
Appearances:	M G Whitford for Appellant A M Harvey for Respondent
Judgment:	12 June 2025

ORAL JUDGMENT OF EATON J

(appeal against sentence)

[1]    On 6 June 2025 Rishap Gosai (age 20) was sentenced by Judge Kellar to     10 months’ home detention following his guilty pleas to 19 charges as follows:

(a)dishonestly take/obtain/use credit card (representative) (x3)1;

(b)dishonestly take/obtain/use credit card (x2);2

(c)receive property (over $1,000) (x3);3

(d)receive property (under $500);4

1      Crimes Act 1961, s 228(1)(b)—maximum penalty seven years’ imprisonment.

2      Section 228(1)(b)—maximum penalty seven years’ imprisonment.

3      Sections 246 and 247(a)—maximum penalty seven years’ imprisonment.

4      Sections 246 and 247(c)—maximum penalty three months’ imprisonment.

GOSAI v POLICE [2025] NZHC 1548 [12 June 2025]

(e)       theft (over $1,000) (x2);5

(f)theft (under $500) (x2);6

(g)possession of a cannabis pipe;7

(h)possession of a methamphetamine pipe (x3);8

(i)wilful damage;9 and

(j)failing to stop.10

[2]    Mr Gosai appeals on the ground the Judge did not reduce the sentence to reflect pre-sentence detention and this rendered the sentence manifestly excessive.

The offending

[3]All offences were committed between December 2023 and February 2025.

[4]I adopt in full the sentencing Judge’s summary of the offending:

[3]        On 27 December 2023, you stole a laptop valued at [$1,724]. The laptop was not recovered, and reparation is sought. You entered a plea of guilty to the one charge of theft of property over $1,000 in value.

[4]        On 23 April 2024, you tried to sell a stolen Hilti laser on Facebook Marketplace. The true owner arranged to buy the laser, met you, and recovered it. You were charged with receiving stolen property and it was worth more than $1,000.

[5]        On 9 May, you entered the victim’s car and stole items. You were stopped at the scene and all items were returned. Again, you plead guilty to that charge.

[6]        There is a raft of offending between 15 May and 6 September 2024. Three victims had their cars broken into. Bank cards belonging to the three

5      Sections 219 and 223(b)—maximum penalty seven years’ imprisonment.

6      Sections 219 and 223(d)—maximum penalty three months’ imprisonment.

7      Misuse of Drugs Act 1975, ss 13(1)(a) and subs (3)—maximum penalty one years’ imprisonment or $500 fine.

8      Section 13(1)(a) and subs (3)—maximum penalty one years’ imprisonment or $500 fine.

9      Summary Offences Act 1981, s 11(1)(a)—maximum penalty three months’ imprisonment or

$2,000 fine.

10     Land Transport Act 1998, ss 114(2), 52A(1)(a)(ii) and subs (2)—maximum penalty $10,000 fine.

victims were stolen. You used those cards to complete several purchases. In relation to the first victim, $4,009.15 was stolen. Regarding the second victim, a total of $249.49 was stolen. As far as the third victim is concerned, you attempted to make a transaction but by then the card was declined. You entered pleas to the three charges of dishonestly using a bank card, one of which was representative.

[7]When you were arrested you possessed two methamphetamine pipes.

[8]        On 20 May 2024, you tried to sell a stolen laptop valued at $1,467 and some cents. The laptop was returned to the true owner.

[9]        On 5 August 2024, you dishonestly used the victim’s bank card. The total value of $183.49 was stolen. You entered a guilty plea to a representative charge of dishonestly using a bank card.

[10]      On 27 November 2024, you used the stolen bank card to make purchases totalling $231.80.

[11]      On 1 December last year, you received a stolen vehicle from an unknown person. While driving the car you stole $50 worth of petrol. The vehicle was returned to the owner. When you were arrested cannabis pipes, and a stolen bank card were found.

[12]      Finally, between 26 January and 5 February this year, you cut off your EM bracelet on 26 January.

[13]      On 5 February 2025, this pales into insignificance really, but you were riding a bike without a helmet.

The District Court decision

[5]                 The Judge adopted a starting point of 18 months’ imprisonment for the lead offence of dishonestly using a stolen credit card. An uplift of 15 months, adjusted to reflect the totality principle, was applied for the balance of the offending. From the adjusted starting point of two years and nine months’ imprisonment, the Judge imposed a 10 per cent uplift for offending on bail, offset against a 15 per cent deduction for guilty plea, a 15 per cent deduction for youth and participation in restorative justice and a 10 per cent deduction in recognition of Mr Gosai’s drug addiction and its causal nexus to his offending. The end sentence of one year and 11 months’ imprisonment was converted to 10 months’ home detention.11 The Judge imposed six months’ post-release conditions and made reparation orders.

11     That sentence was imposed on the more serious charges. For the other charges a lesser sentence of home detention was imposed.

The appeal

[6]                 Mr Gosai’s appeal was filed on 9 June 2025. It was allocated an appeal callover date of 12 June 2025. Both Mr Whitford, for Mr Gosai, and Mr Harvey, for the Police, helpfully filed callover memoranda recording their agreement that the issue on appeal was narrow, namely that the sentencing Judge omitted to make an allowance for the 163 days Mr Gosai spent in pre-sentence detention. At that stage Mr Harvey had not seen the Judge’s sentencing notes but indicated that once the notes were available, the appeal could be brought on for hearing.

[7]                 By way of minute dated 11 June, I recorded my understanding that the sentencing notes were available. I indicated that if counsel were in agreement that the allowance for pre-sentence detention was the only issue to be raised on appeal and if counsel did not wish to be heard as to whether the level of deduction should be on a two for one or one for one basis then I could, subject to counsel availability, hear the substantive appeal this morning.

[8]                 I am grateful to counsel for promptly indicating their position. Mr Whitford has filed full written submissions seeking a one for one deduction. Mr Harvey confirmed that the respondent is content for the substantive appeal to proceed this morning, that it is acknowledged the Judge overlooked allowing a deduction for pre-sentence detention and that the respondent is content to abide by the Court’s decision as to the level of deduction allowed to correct that error.

Analysis

[9]                 The issue as to the quantum of credit for time spent in pre-sentence detention and the timing of that deduction has been the subject of discussion in a number of cases.12 Not surprisingly, Mr Whitford contends for a one for one deduction, highlighting that was the position taken by Fitzgerald J in Mason v Police following a careful review of the authorities.13 As I have observed, Mr Harvey, for the Police, takes a neutral position as regards the quantum of deduction.

12 Longman v Police [2017] NZHC 2928; Pou v Police [2021] NZHC 1068; Vakapora  v Police  [2022] NZHC 493; Kidman v R [2011] NZCA 62, (2011) 25 CRNZ 268; Kirikino v Police [2023] NZHC 1821; and Mason v Police [2022] NZHC 1845.

13 Mason v Police, above n 11, at [36].

[10]              Ultimately, the Court must engage in an evaluative exercise to fix the appropriate deduction. In my view, relevant considerations include Mr Gosai’s youthful age of 18 to 19 when he offended, the fact that, other than the spree of offending the subject of the charges, he has no history of offending, and that his offending was causally connected to his drug addiction. I am satisfied a one for one credit for time spent in custody is appropriate. A custodial remand reflects the most punitive sanction in the hierarchy of sentencing. The further deduction is appropriately applied to the home detention sentence the Judge assessed as appropriate.

[11]              In this case, the Judge settled on an end sentence of 10 months’ home detention. I consider a further five-month deduction is appropriate to reflect the pre-sentence custodial remand.

Result

[12]The appeal is allowed.

[13]              Mr Gosai’s sentence of 10 months’ home detention is quashed and replaced with a sentence of five months’ home detention. The lesser sentences of home detention, all conditions referred to at [32] of the sentencing notes, and the reparation orders remain the same.

...................................................

Eaton J

Solicitors:

Crown Solicitors, Christchurch

Public Defence Service, Christchurch