Gebbie v The Queen

[2005] NZCA 24

IN THE COURT OF APPEAL OF NEW ZEALAND

CA452/04

THE QUEEN

v

BRENT GAYTHORNE GEBBIE

Hearing:23 February 2005

Court:O’Regan, Robertson and Panckhurst JJ

Counsel:N J Sainsbury for Appellant

A  Markham for Crown

Judgment:2 March 2005 

JUDGMENT OF THE COURT

The appeal is allowed.  The sentence of imprisonment for seven months is quashed and a sentence of imprisonment for one month is substituted.

REASONS

(Given by O’Regan J)

Introduction   

[1]       The appellant, Mr Gebbie, pleaded guilty in the District Court at Wellington to one charge of cultivation of cannabis.  He was sentenced on the basis that the charge related to one cannabis plant which Mr Gebbie was growing for his own use: there was no commercial element to the cultivation.  Mr Gebbie was sentenced to a term of imprisonment of seven months.  He now appeals against that sentence.

[2]       The imposition of a sentence of imprisonment, let alone a term of imprisonment of seven months, is unusual in cases of this kind, as Crown counsel acknowledged.  However, there were some unusual features in this case.

[3]       The first was that Mr Gebbie had an extensive criminal history, had failed to comply with an earlier sentence of community work and had unpaid fines of $20,265.56.  Accordingly, it was accepted by his counsel that a custodial sentence was the only reasonable sentencing option available to the sentencing Judge.  The Judge, Judge Behrens QC, indicated that the appellant’s offending would normally attract a community based sentence, and that the above factors influenced his decision to impose a term of imprisonment. 

[4]       The second factor is that Mr Gebbie sought remission of his unpaid fines totalling in excess of $20,000.  The Judge determined that the appropriate course was to remit all of Mr Gebbie’s fines, and imposed a sentence on the cannabis charge of seven months imprisonment.  Although not stated in the sentencing notes, this appears to have been set at a level to accommodate both the cannabis charge and the remission of fines.

[5]       Counsel for the appellant, Mr Sainsbury said that the procedure set out in s 88 of the Summary Proceedings Act 1957 was duly followed and that the remission of the fines was therefore undertaken in accordance with the necessary statutory requirements.  However, he said that the sentence of seven months imprisonment can be justified only on the basis that it reflects the imposition of a term of imprisonment in lieu of the payment of fines, which is not permitted under the relevant legislation.  He said that Mr Gebbie would accept the sentence of seven months if it reflected the remission of fines, but that, as a matter of principle, he appealed on the basis that a sentence of seven months imprisonment was manifestly excessive for his offending if it was not permitted for the Judge to take into account the remission of fines. 

[6]       Counsel for the Crown, Ms Markham, accepted that there was no basis on which imprisonment could be imposed in lieu of payment of fines.  Section 106E(2) of the Summary Proceedings Act makes it clear that imprisonment cannot be imposed on a person for non-payment of fine unless, among other things, the Judge is satisfied that the defendant has the means to pay the fine and that all other methods of enforcing the fine have been considered or tried and are inappropriate or unsuccessful.  That is clearly not the situation in this case.

[7]       It is not open to a Judge to remit fines imposed for unrelated offending as part of the exercise of sentencing for a different offence: R v King CA23/01 21 June 2001 at [4], Hemara v Police HC NP AP17/03 15 September 2003 Chambers J at [22].  In the latter case, the sentencing Judge had imposed on Mr Hemara a sentence of imprisonment for one month in lieu of unpaid fines, cumulative on the sentence which had been imposed for Mr Hemara’s current offending.  Chambers J quashed the remission of fines and the sentence of imprisonment.  However, in that case the procedure in s 88 of the Summary Proceedings Act for the remission of fines had not been followed, whereas, in the present case, it had. 

[8]       This leads us to the obvious conclusion (which was accepted by Crown counsel) that the appeal must be allowed and the sentence of imprisonment reduced to one which is appropriate for the offending, ignoring the remission of fines.  In our view, the appropriate sentence was one months imprisonment and we therefore quash the term of seven months imprisonment and substitute a term of one month.  There is no basis to interfere with the remission of fines and we do not do so.  On the face of it, that gives the appearance that Mr Gebbie has had the benefit of the remission of fines without the detriment of the increased prison term.  But we were told from the bar that he had, in fact, already served the seven month term of imprisonment so that is not the case in fact.

Solicitors:
Crown Law Office, Wellington