Gunn v Police - [2014] NZHC 356

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI-2014-443-000005 [2014] NZHC 356

BETWEEN JULIAN GUNN Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing: 4 March 2014

Counsel: K M Marriner for Appellant
B C Sweetman for Respondent

Judgment: 4 March 2014

JUDGMENT OF COLLINS J

Introduction

[1] The question I have to consider is whether, when imposing a total sentence of two years’ imprisonment on Mr Gunn, the District Court made an error, and if so, whether a different sentence should be imposed.1

[2] This question arises because Mr Gunn has appealed cumulative sentences imposed on him by Judge Roberts in the Hawera District Court on 15 January 2014. The sentences were imposed after Mr Gunn pleaded guilty to three charges. Mr Gunn was sentenced to:

(1) Twelve months’ imprisonment for perverting the course of justice.2

1 Criminal Procedure Act 2011, s 250(2)(a) and (b).
2 Crimes Act 1961, s 116. Maximum penalty is seven years’ imprisonment.

GUNN v NEW ZEALAND POLICE [2014] NZHC 356 [4 March 2014]

(2) Twelve months’ imprisonment for driving while disqualified on a

third or subsequent occasion.3

As these sentences were imposed cumulatively, Mr Gunn’s total prison sentence was

24 months.

[3] A third charge, breaching prison release conditions, was also dealt with by Judge Roberts on 15 January 2014. Mr Gunn was sentenced to one month’s imprisonment in relation to that matter. That sentence was a concurrent sentence and has not been appealed.

Background

Perverting the course of justice

[4] On 13 August 2013, Mr Gunn supplied a letter for his co-offender, Mr Marriner, who was appearing in the Hawera District Court on other matters. The letter said Mr Marriner was employed by a company called HRV. The presiding Judge asked Mr Marriner’s lawyer to telephone HRV to confirm Mr Marriner was indeed employed by that company. It would appear Mr Gunn answered the lawyer’s telephone call and later, the lawyer confirmed to the presiding Judge Mr Marriner was employed by HRV.

[5] As a result of his being satisfied that Mr Marriner was employed, the District Court Judge imposed a sentence of community work instead of the prison sentence that had previously been indicated.

[6] Mr Gunn admitted his letter was fictitious. He said he wrote the letter and pretended to be a director of HRV so Mr Marriner would avoid going to prison.

Driving while disqualified

[7] Mr Gunn has seven previous convictions for driving while disqualified. His last previous conviction for driving while disqualified occurred on 1 August 2012,

3 Land Transport Act 1998, s 32(1)(a) and (4). Maximum penalty is two years’ imprisonment.

when he was disqualified from holding or obtaining a driver’s licence for 12 months

from 9 May 2013.

[8] On 24 December 2013, Mr Gunn was stopped by police while driving near Patea. He admitted he was a disqualified driver and explained he was driving to Levin.

Judge Roberts’ decision

Perverting the course of justice

[9] Judge Roberts appears to have adopted a starting point of 18…

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 Gunn v Police

Details

AGLC: Gunn v Police [2014] NZHC 356
Case: [2014] NZHC 356
Decision Date: 4 March 2014

CaseChat Overview and Summary

The case of Gunn v Police before Collins J in the High Court of New Zealand involved an appeal by Julian Gunn against the sentences imposed by the Hawera District Court. Julian Gunn had pleaded guilty to three charges: perverting the course of justice, driving while disqualified, and breaching prison release conditions. The District Court Judge, Roberts, imposed cumulative sentences for the first two charges, totaling 24 months imprisonment, and a concurrent sentence of one month for the third charge. The appeal focused on the first two sentences, which were challenged on the grounds that they contained errors and were excessive.

The legal issues revolved around whether the starting points and adjustments made by Judge Roberts were correct, and whether a different sentence should be imposed. The appeal was governed by section 250 of the Criminal Procedure Act 2011, which allows the High Court to allow an appeal if there is an error in the sentence and a different sentence should be imposed. The High Court considered whether the starting points were appropriate, whether the aggravating and mitigating factors were correctly applied, and whether the total sentence was proportionate to the offending.

Collins J found that the starting points adopted by Judge Roberts were erroneous. For the charge of driving while disqualified, the appropriate starting point should have been six months rather than 10 months. For the charge of perverting the course of justice, the starting point should have been 12 months rather than 18 months. The court also found that the increase in the provisional sentence for driving while disqualified was disproportionate, amounting to an error in sentencing principle. The increase should have been approximately 20 per cent, not 50 per cent. However, the discount for Gunn's early guilty plea was correctly applied. After making these adjustments, Collins J concluded that a sentence of 15 months imprisonment, comprising six months for driving while disqualified and nine months for perverting the course of justice, was appropriate. These sentences were to be served cumulatively.

Collins J also considered whether home detention could be an appropriate sentence but concluded that it was not suitable due to the seriousness of Gunn's previous offending and his poor response to community-based sentences. The High Court quashed the original sentences and imposed the new sentences as outlined above, while confirming that all other sentences and orders made by Judge Roberts would stand.

Orders