Gebbie v The Queen - [2019] NZCA 540

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA302/2019
[2019] NZCA 540

BETWEEN	BRENT GAYTHORNE GEBBIE Appellant
AND	THE QUEEN Respondent

Hearing:	16 October 2019
Court:	French, Lang and Mander JJ
Counsel:	Appellant in person C A Brook for Respondent
Judgment:	7 November 2019 at 9.30 am

JUDGMENT OF THE COURT

AThe application for an extension of time for filing an appeal against sentence is granted.
BThe appeal against conviction and sentence is dismissed.

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REASONS OF THE COURT

(Given by Lang J)

Mr Gebbie was found guilty by a jury on a charge of criminal harassment.[1] On 12 April 2019 Judge C J Thompson sentenced Mr Gebbie to four months’ community detention and six months’ supervision on that charge.[2] The Judge also made a protection order in favour of the complainant, Mr Gebbie’s former partner.
[1]Harassment Act 1997, s 8(1)(b)(i).
[2]R v Gebbie [2019] NZDC 9132.
Mr Gebbie appeals against both conviction and sentence. His original notice of appeal was only against conviction. The Crown does not object to leave being granted to an extension of time for Mr Gebbie to file a notice of appeal against sentence. We grant leave accordingly.

Background

Mr Gebbie and his partner separated in mid to late 2016 but continued to remain in electronic contact during that period. They also met on at least one occasion during that period.
Mr Gebbie’s former partner became concerned regarding the extent to which he was attempting to remain in contact with her. She went to the police about her concerns. On 29 December 2016 a police officer served a warning under s 4 of the Trespass Act 1980 advising Mr Gebbie that he was prohibited from visiting his former partner’s address. In addition, the police officer delivered a letter to Mr Gebbie pointing out that he could be liable under the Harassment Act 1997 if he continued to make electronic or other contact with his former partner in the knowledge that his actions were likely to cause her to reasonably fear for her safety.
Mr Gebbie immediately contacted his former partner to let her know he had received the documents. He then continued to send her emails over the next four months. This prompted her to contact the police again, and Mr Gebbie was arrested on 23 April 2017.
Mr Gebbie’s former partner also obtained an interim protection order from the Family Court under s 13 of the Domestic Violence Act 1995 (DVA). This was discharged by the Family Court on 6 September 2017, approximately 17 months prior to Mr Gebbie’s trial.

The appeal against conviction

Mr Gebbie elected trial by jury and the trial was scheduled to commence on 5 March. The appeal against conviction flows from events that occurred immediately prior to the trial.
In preparing for the trial counsel for the Crown prepared a memorandum to the Family Court seeking an order that the entire Family Court file be released to both the Crown and Mr…

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 Gebbie v The Queen

Details

AGLC: Gebbie v The Queen [2019] NZCA 540
Case: [2019] NZCA 540
Decision Date: 7 November 2019 at 9.30 am

CaseChat Overview and Summary

The case of Gebbie v The Queen involved an appeal by the appellant, Brent Gaythorne Gebbie, against both his conviction and sentence. The appeal was heard by the Court of Appeal of New Zealand, comprising French, Lang, and Mander JJ. The appellant was found guilty of criminal harassment, and was sentenced to four months of community detention and six months of supervision. Additionally, a protection order was made in favour of the complainant, Gebbie's former partner. The appellant appealed against both the conviction and sentence. The Court of Appeal granted leave for the appellant to extend the time for filing an appeal against sentence, but dismissed both the appeal against conviction and sentence.

The primary legal issues in this case were whether there had been a miscarriage of justice due to the late disclosure of material from the Family Court, and whether the sentencing judge had the power to make a protection order under the circumstances. Regarding the miscarriage of justice, the court found that there was no deliberate delay by the Crown in requesting access to the Family Court file. The Family Court was responsible for the delay in providing the material to the appellant's trial counsel. The court concluded that no miscarriage of justice had occurred, as the trial counsel could have sought an adjournment if necessary and the appellant had not identified any material that should have been put to the complainant in cross-examination.

As for the sentencing issue, the court found that the judge had the power to make a protection order under s 123B of the Sentencing Act 2002, as the appellant was mistaken in thinking that s 123B(4) applied to his case. The interim protection order had been discharged on 6 September 2017, and no application for a permanent order was awaiting hearing in the Family Court at the time of sentencing. The appeal against sentence could not succeed for this reason.

In conclusion, the Court of Appeal granted the appellant leave to extend the time for filing an appeal against sentence, but dismissed the appeal against both conviction and sentence. The Court found that no miscarriage of justice had occurred due to the late disclosure of material from the Family Court, and that the sentencing judge had the power to make a protection order under the circumstances.

Orders