R v Taylor - [2014] NZHC 1165

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI 2013-412-36

CRI 2013-412-37 [2014] NZHC 1065

BETWEEN
JASON SAMUEL GIDEON

Appellant

AND

NEW ZEALAND POLICE AND DEPARTMENT OF CORRECTIONS COMMUNITY PROBATION SERVICE Respondents

Hearing:
8 May 2014

(via audio-visual link)

Appearances:

S G Vidal for Appellant
R P Bates for Respondents

Judgment:

21 May 2014

JUDGMENT OF MANDER J

Introduction

[1] This is an appeal from a sentence imposed by Judge Crosbie of 18 months imprisonment for the unlawful taking of a motor vehicle and breach of release conditions. The appellant argues that the sentence is manifestly excessive.

Factual background

[2] On the night of 15 October 2013, the appellant approached a vehicle parked in Leith Street, Dunedin. After gaining entry, the appellant used a screwdriver to break the lock and start the motor vehicle. On 18 October, the appellant was stopped on the highway between Cromwell and Queenstown. When initially spoken to by the Police, the appellant claimed that he had purchased the vehicle, although
subsequently he admitted he had stolen it some three days previous in Dunedin. In

GIDEON v NEW ZEALAND POLICE & ANOR [2014] NZHC 1065 [21 May 2014]

explanation the appellant stated he needed a vehicle to get to a job interview in

Central Otago.

District Court Judge’s sentencing remarks

[3] In sentencing the appellant, Judge Crosbie noted that the offence of unlawfully taking a motor vehicle carries a maximum penalty of seven years and is considered a relatively serious offence. While not as serious as burglary, the Judge observed the importance and value of motor vehicles to most people and the impact of such offending on a victim.

[4] The learned District Court Judge observed the difficulty at times to distinguish between the theft of a motor vehicle and the charge of unlawfully taking. In the present circumstances it was apparent that the appellant intended to retain the vehicle both in order that he could get to his work in Central Otago and for the purpose of his continued employment. A comparison was made with burglaries relating to “bland industrial commercial type properties” which attract sentences of around 12 to 18 months, whereas sentences are higher for domestic burglaries. The seven year maximum for unlawfully taking a motor vehicle was considered in that context.

[5] The District Court noted the damage done to the vehicle and that the offence was committed at a time when the appellant was subject to release conditions. The Judge took a starting point of 12 months imprisonment to which he added a further 3 months for the separate breach of release conditions charge. In that regard, Judge Crosbie noted the need to take into account the totality principle and considered the breach represented separate offending.

[6] On top of the 15 months, it appears on the face of the sentencing notes that a further 3 months were added for what the Judge considered to be the aggravating feature of the unlawful taking having occurred while the appellant was subject…

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 R v Taylor

Details

AGLC: R v Taylor [2014] NZHC 1165
Case: [2014] NZHC 1165
Decision Date: 21 May 2014

CaseChat Overview and Summary

The case of R v Taylor involved an appeal against a sentence imposed by Judge Crosbie of 18 months imprisonment for the unlawful taking of a motor vehicle and breach of release conditions. The appellant, Jason Samuel Gideon, argued that the sentence was manifestly excessive. The court was required to determine whether the sentence imposed by the District Court was appropriate and whether the starting point and uplift for aggravating factors were justified. The court found that while the starting point of 12 months imprisonment was within the range available to the sentencing judge, the uplift of 9 months for prior convictions was excessive. The court reduced the uplift to 5 months and substituted a sentence of 15 months imprisonment, allowing the appeal in part. The special conditions originally imposed remained, together with standard conditions, and the order for reparation in the sum of $424.15 also stood.

The court considered the nature of the offence and the impact on the owner of the vehicle, as well as the appellant's history of dishonesty. The court found that the starting point of 12 months imprisonment was less than 15% of the maximum available and was appropriate given the circumstances. However, the court found that the uplift of 9 months for prior convictions was excessive and reduced it to 5 months. The court also found that the breach of release conditions should not have been counted twice, and that the sentence should be reduced to 15 months imprisonment. The appeal was allowed in part, and the sentence was substituted to 15 months imprisonment.

Orders