Gunn v Police - [2012] NZHC 3278

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI-2012-443-033 [2012] NZHC 3278

BETWEEN JULIAN GUNN Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing: 5 December 2012

Counsel: JC Hannam for Appellant
SA Law for Respondent

Judgment: 5 December 2012

JUDGMENT OF BREWER J

This judgment was delivered by me on 5 December 2012 at 4:30 pm pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

SOLICITORS
Hannam & Co Lawyers (New Plymouth) for Appellant
C&M Legal (New Plymouth) for Respondent

GUNN V POLICE HC NWP CRI-2012-443-033 [5 December 2012]

[1] The appellant appeals against a sentence of 18 months’ imprisonment handed

down by Judge AC Roberts in the District Court at Hawera on 1 August 2012.

Background

[2] Mr Gunn, the appellant, was 22 years old at the time of his sentencing. He has a considerable list of convictions. They include six convictions for driving while disqualified or while his licence was suspended. He has twice served sentences of imprisonment for driving while disqualified (third or subsequent offence) associated with driving with excess blood alcohol. The last sentence of this type was imposed on him in the District Court at New Plymouth on 9 February 2011.

[3] It was with that background that the appellant came before the District Court Judge on 1 August 2012. At that time he had pleaded guilty to two sets of offending. The first set comprised one charge of theft of a motor vehicle and driving while disqualified. These offences occurred on 30 March 2012 and 31 March 2012. Having been released on bail for those offences on 3 April 2012, he committed the second set of offending on 21 June 2012. In the early hours of that morning, the appellant went to commercial premises which contained motor vehicles. He and an associate obtained access to the premises and damaged a number of the motor vehicles. One was started and driven into a chained gate, smashing the lock off the gate and forcing it open. The cost of the damage to the five vehicles involved was
$6,668.98. The Police apprehended the appellant at the scene. From this event came three charges of unlawfully interfering with motor vehicles, two charges of unlawfully taking motor vehicles, and one charge of burglary.

The District Court sentence

[4] The District Court Judge paid particular attention to the appellant’s criminal history. I have already mentioned the previous convictions for driving while disqualified. There are also two previous convictions for burglary, one in May 2007 and one in June 2008. The Judge also noted quite a number of breaches of orders of

the Court including breaches of community work, breaches of supervision, and breaches of community detention.

[5] The District Court Judge took the charge of burglary as being the lead offence. He considered that aggravating factors relating to that offending were premeditation, the amount of damage done to the cars, and the fact that the offending occurred while the appellant was on bail.

[6] The District Court Judge identified an…

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.

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Details

Case: [2012] NZHC 3278
Decision Date: 5 December 2012

CaseChat Overview and Summary

In the High Court of New Zealand, Julian Gunn appeals against a sentence of 18 months’ imprisonment imposed by Judge AC Roberts in the District Court at Hawera on 1 August 2012. Mr Gunn, 22 years old at the time, has a history of convictions, including six for driving while disqualified or while his licence was suspended, and two previous convictions for burglary. The appeal focuses on the sentence imposed for two sets of offending: theft of a motor vehicle and driving while disqualified on 30-31 March 2012, and burglary and unlawful interference with motor vehicles on 21 June 2012. The District Court Judge considered the burglary charge as the lead offence, with aggravating factors including premeditation, the extent of damage, and the fact that the offending occurred while Mr Gunn was on bail. The Judge identified an appropriate starting point of 18 months’ imprisonment for the burglary charge and calculated a sentence of one year and 10 months’ imprisonment overall, after allowing for the principle of totality and pleas of guilty.

The central legal issue in this appeal is whether the District Court Judge's sentence was manifestly excessive. The appellant's counsel argued that the sentence was too long, drawing comparisons with a similar case, Iwikau v Police, in which the High Court reduced a sentence of 21 months’ imprisonment to 13-and-a-half months. However, the Court found that the present case differed significantly from Iwikau, as it involved two separate sets of offending, with the second set occurring while the appellant was on bail for the first set. The Court acknowledged that the District Court Judge adopted an unorthodox approach to calculating the sentence but held that the overall sentence of one year and 10 months’ imprisonment was within the range available to the District Court Judge. The Court also noted that the Judge had made allowances for the pleas of guilty and the totality principle, and therefore, the sentence was not manifestly excessive.

The Court dismissed the appeal, upholding the District Court Judge's sentence of one year and 10 months’ imprisonment. The Court found that the effective end sentence was well within the range available to the District Court Judge, and the allowances made for the pleas of guilty and the totality principle were generous. The Court did not resentence the appellant, as its task was to determine whether the sentence was manifestly excessive, not to recast it in the way the Court would have approached the sentencing process.

Orders