Gotz v R - [2019] NZCA 99

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA603/2018
[2019] NZCA 99

BETWEEN	TUATAHI TE PARAU GOTZ Appellant
AND	THE QUEEN Respondent

Hearing:	27 February 2019
Court:	French, Dobson and Brewer JJ
Counsel:	R W Ord for Appellant P D Marshall for Respondent
Judgment:	9 April 2019 at 10 am

JUDGMENT OF THE COURT

The appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Brewer J)

Introduction

Mr Gotz was found guilty by a jury on one charge of burglary,[1] and one charge of assault with intent to injure.[2] Judge D C Ruth sentenced him to three years and six months’ imprisonment on the burglary charge and six months concurrently on the assault with intent to injure charge.[3] Mr Gotz now appeals his sentence as being manifestly excessive.
[1]Crimes Act 1961, s 231(1)(a); maximum penalty 10 years’ imprisonment.
[2]Section 193; maximum penalty three years’ imprisonment.
[3]R v Gotz [2018] NZDC 20256.
We must allow the appeal if satisfied that, for any reason, there is an error in the sentence imposed on Mr Gotz such that a different sentence should be imposed.[4]

Background

[4]Criminal Procedure Act 2011, s 250(2).

Mr Gotz and the complainant occupied rooms in a residential complex known as the Franklyn Village. Something occurred which made Mr Gotz hostile to the complainant. Security video footage showed Mr Gotz go to the door of the complainant’s room at about 10:30 am, open the door and look in. The complainant was asleep. Mr Gotz closed the door and went away for a short time before returning. He went into the room and attacked the sleeping complainant. He struck the complainant a number of times, including to the head. The assault left visible injuries to the complainant’s face, the right-hand side of his head and the back of his head. However, they were not described as serious.
Judge Ruth took the charge of burglary as the lead charge. He adopted a starting point of three years’ imprisonment.[5] The Judge imposed an uplift of eight months’ imprisonment to take account of Mr Gotz’s criminal history and because the offending occurred while Mr Gotz was subject to release conditions. The Judge then reduced the starting point by two months to take account of the period of 22 weeks spent by Mr Gotz on electronically monitored bail.[6] The Judge refused to further reduce the sentence to take account of Mr Gotz’s mental health.[7]

The appeal

[5]R v Gotz, above n 3, at [22].

[6]At [23].

[7]At [20].

Mr Gotz contends the sentence is manifestly excessive because:
(a)The Judge adopted too high a starting point; and
(b)the Judge should have given a discount for Mr Gotz’s mental health issues.
The gravamen of the submission on starting point is this was not a burglary motivated by an intention to steal. Mr Gotz was angry with the complainant and entered his room to attack him. The attack consisted of a flurry of blows which left bruising, but…

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 Gotz v R

Details

AGLC: Gotz v R [2019] NZCA 99
Case: [2019] NZCA 99
Decision Date: 9 April 2019 at 10 am

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, the case of Gotz v R was heard by French, Dobson, and Brewer JJ. The appellant, Mr. Gotz, appealed against his sentence of three years and six months' imprisonment for burglary and six months concurrently for assault with intent to injure, arguing that the sentence was manifestly excessive. The appeal was dismissed by the court, which held that the sentence was within the range available to the Judge and there was no error in the sentence imposed.

The legal issues in the case were whether the Judge had adopted too high a starting point for the burglary charge and whether the Judge should have discounted the sentence due to Mr. Gotz’s mental health issues. The court found that it was appropriate to charge Mr. Gotz with burglary as well as assault with intent to injure, as the two charges properly addressed the criminality of Mr. Gotz's offending. The court also found that the starting point of three years' imprisonment was appropriate and that the Judge did not err in refusing to discount the starting point by reason of Mr. Gotz’s mental health difficulties.

The court noted that Mr. Gotz had antisocial personality traits, which were not uncommon with violent offenders, but mental illness or mental impairment is generally relevant to sentencing by way of mitigation where it is causative of the offending or may render less appropriate or more subjectively punitive a sentence of imprisonment. The court found that there was no indication in the two mental health reports that Mr. Gotz’s mental state was causatively linked to the particular offending or that imprisonment is likely to be especially punitive for him. The court held that the sentence of three years six months' imprisonment was within the range available to the Judge, and there was no error in the sentence imposed. The appeal was dismissed.

Orders