Gurnick v The Queen

[2005] NZCA 308

IN THE COURT OF APPEAL OF NEW ZEALAND

CA286/05

THE QUEEN

v

ROYAL BRUCE GURNICK

Hearing:29 November 2005

Court:William Young, Potter and Ellen France JJ

Counsel:S K Green for Appellant

H D M Lawry for Crown

Judgment:8 December 2005 

JUDGMENT OF THE COURT

The appeal is dismissed.

____________________________________________________________________

REASONS

(Given by Ellen France J)

Introduction

[1]       The appellant, Bruce Gurnick, and his co-offender, Carlos Thompson, were convicted after trial of one charge of unlawfully taking a motor vehicle.  The jury acquitted them both of two other charges relating to the same incident, namely, aggravated robbery and robbery.

[2]       The appellant and his co-offender were both sentenced by Judge R P Wolff to terms of 18 months imprisonment with leave to apply for home detention.  (The maximum penalty for this offence was seven years imprisonment.)  The appellant appeals against sentence on the grounds that the sentence was manifestly excessive.  Mr Thompson has abandoned his appeal having almost completed his term of imprisonment.

Background

[3]       The complainant, Lawrence King, was a tractor driver.  While he and his employer were working on a farm in mid 2004, they found a cannabis crop.  The complainant’s employer reported the find to the Police.  The bulk of the crop was destroyed although the complainant did keep a small amount for himself. 

[4]       Some months later, in September 2004, the appellant and Carlos Thompson arrived at King’s home.  They had some discussions with the complainant about the cannabis crop and about taking the complainant’s car.  The complainant gave evidence of being spoken to by the offenders and of Thompson making threats about what might happen to him if he did not hand over the keys to his car.

[5]       Ultimately, Thompson got the keys to the complainant’s car and the offenders drove off with it.  Before they drove off with the car, the complainant removed some of his belongings from it including the face of the car stereo unit.

[6]       The car was recovered shortly afterwards by the Police.

[7]       The thrust of the Crown case was that the appellant and Thompson were there to collect a drug debt and did so using threats. 

[8]       The defence was that Gurnick and Thompson were acting as repossession agents.  They sought to take the car in payment of a debt owed by the complainant following a car accident involving the complainant’s car.  In other words, they had a legitimate claim of right to the vehicle.

The sentence appealed

[9]       On sentencing, the appellant was treated as the principal with his co-offender as his assistant but both being equally involved.  No issue is taken with that approach. 

[10]     The appellant was sentenced on the basis that he, but not Thompson, had been involved in the cultivation of the cannabis plot.  The sentencing Judge found that the car was taken to enforce a drug connection.  This took place in circumstances where, because the complainant himself was an offender, the appellant expected he would get away with it.  These were the aggravating features which the Judge said took the offending into the category of serious property offending.

[11]     The primary mitigating feature identified by the Judge was the absence of any actual violence.  The Judge did consider there was a “threatening presence” to both offenders.  In making that observation, Judge Wolff said he would have taken a different view on the more serious charges on which the offenders were acquitted but said he was aware of the need to sentence consistently with the jury’s verdicts. 

[12]     In explaining why he accepted the complainant’s evidence for sentencing purposes the Judge placed some reliance on the fact the complainant had felt it necessary to leave New Zealand.  Judge Wolff considered that was “contributed to substantially” by the complainant’s fear of the stand-over tactics used against him.

[13]     Against this background, both the appellant and Thompson were sentenced to 18 months imprisonment with leave to apply for home detention.

Grounds of appeal

[14]     There are two broad grounds of appeal.  First, the appellant submits the Judge proceeded on a basis not available to him because it is inconsistent with the acquittals.  This relates to the Judge’s comments about the circumstances in which the car was taken.

[15]     Second, supported or not by the previous point, the appellant says the length of the term of imprisonment was manifestly excessive.

[16]     The appellant’s initial submissions were that imprisonment was not appropriate.  But, in the course of the hearing Ms Green for the appellant accepted that, given the passage of time, the only practical argument was that a lesser term was appropriate.

[17]     In terms of the effect of inconsistency with the jury’s verdicts, Ms Green submitted that, in acquitting on the more serious charges, the jury rejected the Crown case that the taking involved threats and/or violence.  The appellant also argues there is no evidence to support the Judge’s finding that the complainant felt the need to go overseas as a result of the threats against him.

Discussion

[18]     Dealing first with the complaint based on the effect of the jury’s verdicts.  The respondent initially submitted it was open to the Judge to make the findings he did about the taking being accompanied by threats.  That was because the jury’s verdicts were explicable on the basis they were not satisfied there was any intention to deprive the complainant permanently of the car.

[19]     The two more serious charges on which there were acquittals, i.e. aggravated robbery and robbery, involve a dishonest taking without claim of right accompanied by violence or threats of violence, and with the intention to deprive the owner permanently.  The charge of which the appellant was convicted was that of unlawful taking which comprises using or taking dishonestly and without claim of right but not so as to be guilty of theft.  The element of permanent deprivation is absent.

[20]     The respondent’s submission fits with the complainant’s evidence that the offenders told him they wanted to repossess the car for the price of the crop.  But, while they would take the car, they would “come back Tuesday” and see if he had some money or the crop.

[21]     The waters are muddied, however, by the questions sheet distributed to the jury by the Judge in the course of summing up.  That sheet can be read as suggesting the Judge directed the jury there was no issue about the element of permanent deprivation.  Exactly what was said is however unclear as we do not have the Judge’s summing up.  It is difficult, in any event, to see how the jury could have convicted on the unlawful taking count unless they accepted the complainant’s evidence about the basis on which he handed over the car keys.  That may well be all the Judge was saying. 

[22]     In any event, we are not persuaded this aspect is determinative.  The aggravating features identified by the Judge were the link to drug offending in a situation where the appellant took advantage of the complainant’s position.  Ms Green properly accepted that it was open to the Judge to conclude the taking was drug-related.

[23]     We agree with the appellant that there was no basis for concluding that the complainant had left New Zealand because of threats from the appellant and Thompson.  The only evidence of this came from King’s employer in his Victim Impact statement.  However, we accept the respondent’s submissions that Judge Wolff’s comments on this are not central to the sentencing decision.

[24]     This ground of appeal is not successful.

[25]     As to the length of the term imposed, 18 months was within the range available to the Judge.  The fact the taking was linked to drug offending and had an overlay of enforcement put this into the category of serious property offending.  As Judge Wolff said, a sentence which sent a “clear message” to people acting in this way was appropriate.

[26]     The appellant’s recent history of drug-related offending was also a relevant part of the context in which the seriousness of this offending was to be assessed.

[27]     This ground of appeal also fails.

Result

[28]     The appeal is dismissed.

Solicitors:
Crown Law Office, Wellington