Gilbert v Police [2012] NZHC 873 (2 May 2012)

Last Updated: 29 May 2012

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI 2012-463-12 [2012] NZHC 873

BETWEEN PAUL NEIL GILBERT Appellant

AND NEW ZEALAND POLICE Respondent

Hearing: 2 May 2012

Counsel: No appearance by, or on behalf of Appellant

S T Simmers for Respondent

Judgment: 2 May 2012

_{(ORAL) JUDGMENT OF HEATH J}

Solicitors:

Crown Solicitor, Rotorua

Copy to:

_{Mr P N Gilbert, 4 Hill Street, Tauranga email:} [e-mail]

GILBERT V NEW ZEALAND POLICE HC ROT CRI 2012-463-12 [2 May 2012]

The appeal

[1] Mr Gilbert (also known as Mr Clarke) appeals against his conviction on a charge of breaching a condition of a sentence of home detention. He also appeals against the sentence imposed. He was convicted and sentenced on 4 July 2011, in the District Court at Tokoroa.

Background

[2] Previously, Mr Gilbert has been represented by Mr Tuck. A Deputy Registrar (Ms Ryan) advises me that Mr Gilbert telephoned the Court on the afternoon of Monday 30 April 2012 advising that Mr Tuck was no longer acting. He said that he would be representing himself. Mr Gilbert advised that he wanted the appeal transferred to Hamilton, as he was now living in that city. Some suggestion was made that legal aid may be sought. The Deputy Registrar told Mr Gilbert that he would need to make a written application to the Court. No application has been filed.

[3] Mr Gilbert was called in Court this morning. There was no appearance. My Court Taker has spoken to him. He is apparently at the Hamilton Registry of this Court seeking to make an application of the type to which he referred in his discussion with the Registrar on Monday.[1]

[4] Mr Gilbert was well aware that this hearing was set down for today. He knew on Monday afternoon that a formal application to transfer would be required. Given the nature of the issues raised on appeal I intend to proceed in his absence.

Facts

[5] Mr Gilbert was sentenced to six months’ home detention on 14 February

2011. That followed his conviction on charges of driving with an excess blood alcohol concentration, assault on a police officer, resisting arrest and wilful damage.

He was inducted into his sentence on 17 February 2011. At that time he was advised of the requirements of the sentence and of the likely consequences on breach of any conditions.

[6] One of the special conditions was that he was not to possess or consume alcohol for the period of the home detention sentence. A probation officer was advised, on 8 June 2011, that Mr Gilbert had been consuming alcohol that day. He admitted that he had when that was put to him.

[7] On 9 June 2011, Mr Gilbert was brought before the District Court. He sought bail. Judge McGuire declined to grant bail. Mr Gilbert was remanded in custody until 4 July 2011.

[8] On 4 July 2011, Mr Gilbert appeared before Judge Weir. At that time he entered a plea of guilty to the charge based on the summary of facts. Judge Weir sentenced him to three weeks imprisonment. That equated to time served. There was no need for any further period of incarceration. Given the guilty plea and the way in which the Judge dealt with the issue, there are no recorded reasons for decision.

Disposition

[9] There is nothing in the notice of appeal to indicate the basis on which Mr Gilbert disputes his conviction. As it was based on a guilty plea, the absence of any evidence as to why Mr Gilbert says an incorrect plea was entered militates against there being grounds to proceed with the appeal. In my view, the appeal should be dismissed.

[10] I am presently in the process of dictating this judgment in open Court. The Court Taker has referred to me a document which has been scanned and emailed to a Deputy Registrar from the Hamilton Registry. In that document Mr Gilbert (using the name of Mr Clarke) requests that his appeal be transferred from Rotorua to Hamilton.

[11] That request is denied. There is no reason why the appeal could not have proceeded today in Rotorua. I see no reason to change my decision to deal with the appeal today and to dismiss it.

Result

_{[12] The appeal is dismissed.}

P R Heath J

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[1] See also para [10] below.