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Gotty v R

Gotty v R

Case [2020] NZHC 2035 12 August 2020

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IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI-2020-419-000065

[2020] NZHC 2035

BETWEEN
JAMES DEAN JOHN GOTTY

Appellant

AND

THE QUEEN

Respondent

Hearing: 7 August 2020

Appearances:

T Sutcliffe for Appellant K Whyte for Respondent

Judgment:

12 August 2020

JUDGMENT OF WYLIE J

This judgment was delivered by Justice Wylie On 12 August 2020 at 12.00 midday
Registrar/Deputy Registrar Date:…………………………

Solicitors:
Crown Solicitor at Hamilton T Sutcliffe, Hamilton

GOTTY v R [2020] NZHC 2035 [12 August 2020]

Introduction

[1] After pleading guilty to various drug-related charges and one firearm-related charge, the appellant, James Gotty, was sentenced by Judge Cocurullo in the District Court at Hamilton on 18 June 2020 to eight months’ home detention.1

[2] Mr Gotty appeals the sentence, submitting that it is manifestly excessive. Through his counsel, Mr Sutcliffe, he argued that the Judge:

(a)failed to give him a discount for six months spent on remand in custody;

(b)failed to give him a sufficient discount for five months spent on remand on electronically monitored (EM) bail; and

(c)gave him an insufficient credit for his guilty pleas.

[3] Mr Whyte, for the Crown, argued that the end sentence of home detention was significantly less than half the sentence of imprisonment calculated by the Judge, and that the sentence was not manifestly excessive.

Relevant facts

[4] In July 2019, the police obtained a production order in relation to Mr Gotty’s mobile phone, following reports received that he was involved in drug dealing.

[5] An analysis of the data revealed that Mr Gotty had operated the phone between 1 May 2019 and 7 July 2019, and that he was dealing in both methamphetamine and cannabis. Specifically, over that period, Mr Gotty:

(a)supplied 2.95 grams of methamphetamine on eight separate occasions;

(b)offered to supply methamphetamine on 37 separate occasions. The police were able to ascertain that 38.8 grams of methamphetamine was involved in 34 of those offers;

1 R v Gotty [2020] NZDC 11420.

(c)sold and/or offered to sell cannabis on seven separate occasions. The police were unable to identify the quantities sold or offered on each occasion;

[6] On 30 July 2019, the police executed a search warrant at Mr Gotty’s home address. They found the following items in his bedroom:

(a)a ziplock bag containing .029 grams of methamphetamine;

(b)a set of digital scales;

(c)multiple containers containing empty ziplock bags;

(d)multiple empty ziplock bags;

(e)a plastic container holding 18.3 grams of a white crystallised substance;

(f)$240 cash;

(g)a broken methamphetamine pipe;

(h)a plastic bag holding 27.6 grams of dried cannabis;

(i)two ziplock bags containing a total of 0.13 grams of dried cannabis;

(j)a metal tin containing 39.3 grams of dried cannabis plant material;

(k)a glass cannabis bong;

(l)a black cannabis pipe;

(m)a yellow and brown cannabis bong;

(n)a glass methamphetamine pipe, cut straw and butane burner; and

(o)eight rounds of ammunition for a rifle.

[7] As a result, Mr Gotty was charged with supplying methamphetamine, being in possession of methamphetamine for supply,…

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 Gotty v R

Details

AGLC: Gotty v R [2020] NZHC 2035
Case: [2020] NZHC 2035
Decision Date: 12 August 2020

CaseChat Overview and Summary

The appeal by James Dean John Gotty against his sentence for various drug-related and one firearm-related charge was heard in the High Court of New Zealand. Gotty, who had pleaded guilty, was sentenced to eight months' home detention by Judge Cocurullo in the District Court. Gotty's counsel argued that the sentence was manifestly excessive as the Judge had failed to discount his sentence for the time spent on remand in custody, the time spent on electronically monitored (EM) bail, and his guilty pleas. The Crown argued that the sentence was not excessive as it was significantly less than half the calculated sentence of imprisonment.

The court examined whether the Judge had erred in not considering the time spent on remand in custody and the discount for time spent on EM bail. The court found that the Judge did not explicitly mention the time spent on remand in custody, which should have been factored into the sentence of home detention. However, the court found that the overall sentence imposed must have incorporated a credit for the time spent in custody. Regarding the discount for time spent on EM bail, the court found that the Judge's two-month credit was sufficient.

The court also examined the discount for the guilty pleas. The court held that the Judge was not at fault for adopting a discount of 20% for the guilty pleas, considering the circumstances in which the pleas were entered and the strength of the prosecution case. The court further found that the recent Court of Appeal decision in Moses did not have a significant impact on this case.

In conclusion, the court held that the end sentence of eight months' home detention imposed by the Judge was not manifestly excessive. The appeal was dismissed.

Orders