The Queen v Gurnick [2002] NZCA 249; (2002) 19 CRNZ 627 (23 October 2002)

Last Updated: 15 December 2011

IN THE COURT OF APPEAL OF NEW ZEALAND

CA287/02

THE QUEEN

V

CLEVE GURNICK

Hearing:	21 October 2002
Coram:	Tipping J Williams J Baragwanath J
Appearances:	W N Dollimore and D Hall for Appellant K Raftery for Crown
Judgment:	23 October 2002

JUDGMENT OF THE COURT DELIVERED BY BARAGWANATH J

[1] Following his arraignment before a jury on 27 June 2002 the appellant asked to be rearraigned and pleaded guilty to counts of kidnapping his former de facto partner and physically abusing her in breach of a protection order. He pleaded guilty also to charges of dangerous driving, failing to stop and breach of bail, all committed in the early morning of 1 January 2002. He appeals the sentence imposed on 23 August 2002 of 3 years 6 months for kidnapping, 6 months for breach of a protection order and 6 months for dangerous driving, all to be served concurrently. He does not challenge the 12 months disqualification from driving.
[2] The appellant’s relationship with the complainant had extended, with intervals, for some 15 years and had resulted in the birth of four children. A protection order had been made against the appellant on 2 August 2000 and been served upon him on 31 October 2000. The complainant had nevertheless continued to associate with the appellant although by New Year’s Eve 2001/02 they had lived apart for some six months. Nevertheless the complainant agreed to go with the appellant and two other friends to the Tairua Hotel. They stayed until the early hours of New Year’s Day. They then went first to a party at Tairua and then, with the appellant driving the complainant’s car, carried on to Cooks Beach where they arrived between 4.30 and 5 am. By this time the appellant was affected by liquor. At Cooks Beach the complainant and a female friend went for a walk on the beach. When they got back to the car the appellant was fighting with the other friend, a male. The episode ended with the two men shaking hands. In view of the appellant’s apparent frame of mind, the complainant was reluctant to get back in the car with him but she and the other two did so. The appellant drove along the road from Tapu to Coroglen. After about quarter of an hour the appellant stopped the car, pulled the other male out of it and started to strike him. He told the other female also to get out of the car. Getting scared, the complainant also started to get out but was told by the appellant in abusive terms to get back into it. She did so because she thought she had no choice.
[3] The appellant then drove off with the complainant on the Tapu-Coroglen Road; the doors had automatically locked. He drove in an erratic and dangerous manner at speeds of up to 140 kph, cutting corners and driving all over the road. The complainant asked him to slow down and was verbally abused. She was very frightened and asked repeatedly that he stop and let her out. He refused, abusing and yelling at her and pulling her hair.
[4] At Tapu she again asked to be let out of the car; the appellant told her that she could not. He continued on to Thames, yelling and screaming at her on the way and letting go of the steering wheel so as to pull her hair. Having covered the approximately 50 kilometres from Coroglen to Thames, the complainant expected that the appellant would stop at the house where their children were in the care of a babysitter but he did not. She was very frightened.
[5] At about 6.55 am the appellant drove past the Thames Police Station as a police car was pulling out of the drive. The complainant raised her arms above her head to signal to the officers that she needed help. The appellant tried to pull her arms down. The police officers observed what was happening and started to follow the car, signalling that the appellant should stop. He failed to do so and accelerated, again reaching speeds in the region of 140 kph. The police lost sight of the complainant’s car. It was next seen crossing the Kauareranga Bridge in the opposite direction from that taken by the police car. After the vehicles crossed the complainant was seen waving her arms frantically. The police again followed the vehicle. The appellant told the complainant that she and he would die before the police caught them.
[6] As the appellant drove through Totara he was again travelling at speeds approaching 140 kph, this time in a 70 kph speed zone. At Kopu the appellant drove to a storage yard where he removed the complainant from the vehicle and took her between two containers. She was trying to call out but the appellant had his hand across her mouth and was telling her to be quiet. The police, arriving shortly afterwards, heard her muffled cries. They arrested the appellant.
[7] When spoken to by the police the appellant said he had asked the other occupants of the car to get out because they had had a disagreement. He denied that the complainant had asked him to stop the car and was not sure why she had been trying to attract the officers’ attention. He said he had panicked when he saw the police car and said that in the yard he and the complainant had been talking and cuddling. He denied having his hand over her mouth.
[8] The victim impact statement records that the complainant believed she was going to die; the appellant drove with such reckless disregard of safety that it was miraculous that she had got out alive. She referred to his statement that he would rather die than let the police get them and said that being in the front seat of a car with an out of control man at the wheel was just too much to bear. When the police finally found them she had collapsed in a crying heap unable to explain what had happened.
[9] She said that the appellant is a possessive, violent and jealous man who in the past had stopped at nothing to find her children and her and had repeatedly infringed the protection order. She was apprehensive that on his release the appellant would go straight to her place. She expressed herself to be sick of living her life looking over her shoulder constantly and is considering moving her children and herself to Australia to be finally away from the appellant’s influence and to give her children as normal an upbringing as possible.
[10] The pre-sentence report records that the appellant is 32 years of age. In April of this year he was convicted of contravening a protection order in October 2001 and has convictions for assault with intent to rob in 1986, of assault in 1991, 1996, 2000, 2001, for assault with intent to injure in 1990 and 1994; his other convictions include burglary, receiving, and breath alcohol offending. The probation report assesses him as having a low level of motivation to change which, with his large number of previous convictions for violence-related offending, puts him at high risk of reoffending that is accentuated by limited insight into the factors contributing to his offending
[11] The sentencing Judge recorded the principles of ss 7 and 8 of the Sentencing Act 2002. He considered that the starting point for the lead sentence for kidnapping was in the region of 4 years. Aggravating factors were the appellant’s intoxication and the danger in which the complainant was placed and her sustained period of anxiety resulting in significant emotional harm. The mitigating feature of the belated plea which ultimately avoided the complainant’s need to give evidence was reflected in a 6 month reduction of the term.
[12] The major theme of the concise and helpful written submissions prepared by Messrs Dollimore and Hall, which Mr Dollimore elaborated orally, was that the sentence was out of line with the authorities produced to the Judge: R v Gutsell (CA301/95, 28 August 1995) and Solicitor-General v Green (CA 179/99, 29 July 1999).
[13] In Gutsell the appellant pleaded guilty in the District Court to offences of kidnapping, threatening to kill, and carrying a firearm except for some lawful, proper or sufficient purpose. He appealed against concurrent sentences on the first two counts of 11 months imprisonment with 12 months supervision and a special condition of psychiatric counselling and on the third of 3 months imprisonment. The appellant had driven to the home of the complainant, his estranged partner, carrying an unloaded .270 rifle. He pushed the point of the barrel through a louvre window and made the threat to kill. He forced the complainant to go with him to talk and drove her into the country where he stopped. He then told her that the weapon was not loaded and there followed a discussion which appeased her concern. She later wrote a letter indicating that she did not fear further harm from him.
[14] In Green this Court allowed a Solicitor-General's appeal against a sentence of 21 months imposed followed pleas of guilty to charges of kidnapping, threatening grievous bodily harm, threatening to kill, breaching a protection order on six occasions, and assaulting a female on four occasions, all occurring during the final four months of the parties' nine month relationship. The offending included episodes of verbal abuse; detention for an hour while striking, slapping, and grabbing the complainant by the throat, threatening to kill, and coming close to strangulation; violent sexual activity that cracked a rib; and ultimately a final episode of grabbing her by the throat, throwing her into a car, dragging her from it at the destination, throwing her twice against a wall and forcibly detaining her for 2 1/2 hours. A new total of 3 years imprisonment was imposed, comprising concurrent sentences of 3 years for the kidnapping, six months on the first three breaches of the protection order, 12 months on the fourth and fifth breaches and 18months on the sixth which was associated with the kidnapping; 12 months on the threatening to kill and 12 months on each assault on a female.
[15] We find Gutsell of little assistance. The facts did not establish actual risk to life, even though the episode was frightening. The appeal by the prisoner did not require this Court to do more than consider whether the sentence was excessive; it expressed no view on whether it was adequate. Green is more closely in point. There the complainant's life was put at risk by the appellant's pushing his thumbs into her throat and causing her to black out. But on a Solicitor-General's appeal, as this Court observed, the 3 year sentence was fixed at the bottom of the proper range.
[16] We do not accept the appellant's submission that the present sentence is either inconsistent with Green or excessive in principle. There is undoubtedly a wide variation in seriousness among various forms of kidnapping. But we do not endorse any suggestion that the common place elements of reaction to an emotional relationship and of use of a motor vehicle allow this case to be treated as other than serious. This case combines the indignity of the detention, hair-pulling and abuse with exposure of the complainant to high risk of death or grave injury from intoxicated driving at dangerously high speeds over difficult roads for something over an hour. There is no difference in principle between use of a car in such fashion and the use of any other weapon that causes risk to life. The use of a loaded shotgun in a bank robbery is rightly viewed as warranting a long sentence. It is justified by the combination of need to deter and punish offending against the property interests of banks and against the interest in personal safety of tellers and other members of the public whose lives are put at risk. Kidnapping infringes the even higher interest of personal integrity. The added element of exposure to high risk of the complainant as well as other road users further exacerbates the offending.
[17] The fact that the complainant is the mother of the appellant's children does not justify characterising this offending as somehow of lesser significance. On the contrary, the facts that the appellant was already subject to a protection order and in terms of s9(1)(f) of the Sentencing Act 2002 was abusing a position of trust in relation to the complainant aggravate his offending. The appellant's previous criminal history and the other pointers to high risk of re-offending engage the principle of s7(1)(g) of the Sentencing Act as to the need to protect the community, in particular the complainant, from him.
[18] We are satisfied that these considerations fully justify the sentence imposed and the appeal is dismissed.
[19] We record that due compliance with the notification provisions of s43(2)(b) and (3), s44 and particularly s50 of the Parole Act 2002 is in our view of particular importance in this case so the complainant will have adequate notice of when and on what conditions the appellant is to be released. That will ensure that she has adequate opportunity to decide how she should prepare for that event.

Solicitors
Crown Solicitor, Auckland