Wright v Police - [2020] NZHC 3515

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CRI-2020-463-62

[2020] NZHC 3515

BETWEEN
GARY WRIGHT

Appellant

AND

NZ POLICE

Respondent

Hearing: 7 December 2020

Appearances:

C Horsley for the Appellant O M Salt for NZ Police

Judgment:

22 December 2020

JUDGMENT OF POWELL J

This judgment was delivered by me on 22 December 2020 at 3.30 pm Registrar/Deputy Registrar
Date:

WRIGHT v NZ POLICE [2020] NZHC 3515 [22 December 2020]

[1] Gary Wright has appealed his conviction and sentence on one charge of doing an indecent act within view of a public place.1

[1] Mr Wright was convicted by Judge Cameron following a judge alone trial in the District Court at Tauranga. Mr Wright was subsequently sentenced to four months’ community detention, nine months’ supervision and ordered to make an emotional harm payment in the sum of $500.2

[2] Mr Wright argues that Judge Cameron did not properly consider all the evidence, and that if it had been he could not have been found guilty. In the event his conviction is upheld, Mr Wright argues the sentence imposed was manifestly excessive given his age, previous good record and the relative seriousness of the offending.

The conviction

[3] The Crown alleged that on 9 April 2019, at the Waihi beach township, Mr Wright, whilst seated in a motor vehicle, exposed his penis to the 15 year old complainant, E.

[4]Judge Cameron summarised E’s evidence as follows:

(a)On the afternoon of 9 April she and her friend, T, got off the bus outside the Waihi dairy and waited nearby to be picked up.3

(b)While waiting, E noticed an elderly male, Mr Wright, seated in a truck- like car directly opposite where they were standing. They were separated only by the distance of the footpath between them and the vehicle.

(c)The man smiled and E said she looked at him for about 20-30 seconds before she realised “what he was doing”. She noticed that he kept

1 R v Wright [2020] NZDC 791 (“conviction decision”).
2 Police v Wright [2020] NZDC 13845 (“sentencing decision”).
3 Conviction decision at [3].

looking down at himself, and it was then that she saw the top of his penis. In her evidence E was clear that she could not see his hands or whether his pants were pulled up or down, but she inferred he was ‘playing’ with his penis or masturbating.

(d)After noticing this the girls moved away from the vehicle to a bench located directly outside the dairy and situated at the rear of the vehicle. They were soon thereafter picked up by T’s mother.

[5] Judge Cameron stated that T “gave evidence broadly consistent with [E’s] evidence but stated that she did not see what the man was doing”.4

[6] Mr Wright did not give evidence at trial but had previously undertaken an evidential video interview with Police following the incident. In that interview he stated he had arrived at the Waihi…

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 Wright v Police

Details

AGLC: Wright v Police [2020] NZHC 3515
Case: [2020] NZHC 3515
Decision Date: 22 December 2020

CaseChat Overview and Summary

Gary Wright appealed his conviction and sentence for an indecent act committed within view of a public place. The appeal was heard by Powell J in the High Court of New Zealand. Wright was convicted by Judge Cameron in a judge alone trial and subsequently sentenced to four months' community detention, nine months' supervision, and an emotional harm payment of $500.

The appeal against conviction centred on two main arguments. First, it was argued that Judge Cameron improperly reversed the onus of proof by considering Wright's lack of reasonable explanations for his conduct as lending weight to the complainant's evidence. Second, it was argued that there was insufficient evidence to establish that Wright was playing with or masturbating his penis. Powell J found that Judge Cameron did not reverse the onus of proof and that there was sufficient evidence to support the conviction. The appeal against conviction was dismissed.

The appeal against sentence argued that the sentence of community detention was manifestly excessive given Wright's age, good character, and the relatively minor nature of the offence. Powell J agreed that the sentence of community detention was excessive and quashed that part of the sentence. The remaining components of the sentence were confirmed.

In conclusion, the appeal against conviction was dismissed, and the appeal against sentence was allowed in part. The sentence of four months' community detention was quashed, while the nine months' supervision and emotional harm payment of $500 were confirmed.

Orders