Fairbairn v The Queen

[2011] NZCA 319

IN THE COURT OF APPEAL OF NEW ZEALAND

CA377/2011
[2011] NZCA 319

BETWEEN  LEIGHTON GAVIN BRIAN FAIRBAIRN
Appellant

AND  THE QUEEN
Respondent

Court:             Randerson, Potter and Ronald Young JJ

Counsel:         A J Bailey for Appellant
M E Ball for Respondent

Judgment

(On the Papers):         8 July 2011 at 3.30 p.m.

JUDGMENT OF THE COURT

A        The time for appealing is extended.

B        The appeal is allowed.

C        The minimum term of imprisonment of 10 years is quashed.

DA minimum term of imprisonment of 7 years 4 months is imposed on the charges of causing grievous bodily harm and discharging a firearm with intent to cause grievous bodily harm.

EOtherwise the sentences remain unchanged.

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REASONS OF THE COURT

(Given by Ronald Young J)

1. On 18 February 2003 John Hansen J sentenced the appellant to 15 years’ imprisonment with a minimum non‑parole period of ten years.  The sentence was made up as follows:

   (a)kidnapping (11 years’ imprisonment);

   (b)grievous bodily harm (11 years’ imprisonment, concurrent);

   (c)discharging a firearm with intent to cause grievous bodily harm (11 years’ imprisonment, concurrent);

   (d)unlawfully taking a motor vehicle (two years’ imprisonment, concurrent);

   (e)possession of a firearm (one year’s imprisonment, concurrent);

   (f)wilfully attempting to pervert the course of justice (two years’ imprisonment, concurrent);

   (g)wounding with intent (two years’ imprisonment, cumulative); and

   (h)assault with a weapon (two years’ imprisonment, cumulative).

2. The appellant seeks an extension of time to appeal against the minimum period of imprisonment (MPI) imposed.  The Crown accepts the MPI imposed was without jurisdiction and does not oppose the extension of time.  In the circumstances we extend the time to appeal.

3. At the time of the appellant’s sentencing, s 86 of the Sentencing Act 2002 governed the imposition of an MPI.  It provided:

   86       Imposition of minimum period of imprisonment in relation to determinate sentence of imprisonment 

   (1)If a court sentences an offender to a determinate sentence of imprisonment of more than 2 years for a particular offence, it may, at the same time as it sentences the offender, order that the offender serve a minimum period of imprisonment in relation to that particular sentence.

   (2)The court may impose a minimum period of imprisonment under this section if it is satisfied that the circumstances of the offence are sufficiently serious to justify a minimum period of imprisonment that is longer than the period otherwise applicable under section 84(1) of the Parole Act 2002.

   (3)For the purposes of this section, the circumstances of an offence may be regarded as sufficiently serious  if the court is satisfied that the circumstances take the offence out of the ordinary range of offending of the particular kind.

   (4)A minimum period of imprisonment imposed under this section must not exceed the lesser of—

   (a)       two-thirds of the full term of the sentence; or

   (b)      10 years.

   (5)For the purposes of Part 4 of the Summary Proceedings Act 1957 and Part 13 of the Crimes Act 1961, an order under this section is a sentence.

4. Both s 86(1) and the previous decisions of this Court are clear that an MPI can only be imposed on a sentence for a “particular” offence.[1]  An MPI, therefore, could only have been imposed on the sentences of 11 years’ imprisonment.  None of the other sentences exceeded two years’ imprisonment.[2]

   [1]R v Paniora, CA148/03, 30 July 2003; R v Kite [2007] NZCA 385; R v Rikiriki [2009] NZCA 217.

   [2]      Sentencing Act 2002, s 86(1).

5. The appellant and respondent are agreed that the proper course, therefore, is to quash the order of the Judge as to the MPI of ten years and impose the maximum two thirds MPI on the 11 year sentences for grievous bodily harm and discharging a firearm with intent to cause grievous bodily harm.  (A minimum non-parole period cannot be imposed on the charge of kidnapping because it does not qualify as a serious violent offence.[3])  Instead we impose a minimum non-parole period of seven years and four months.  Otherwise the sentences remain unchanged.

   [3]      Sentencing Act 2002, s 152.

Solicitors:
Crown Law Office, Wellington for Respondent