Gerber v Police

[2013] NZHC 773

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2013-463-000027 [2013] NZHC 773

BETWEEN  JUSTIN TERGH GERBER Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         16 April 2013

Counsel:         T A Penman for Appellant

A D Hill for Respondent

Judgment:      16 April 2013

ORAL JUDGMENT OF COLLINS J

Introduction

[1]      This appeal raises two issues:

(1)       Should Mr Gerber be granted leave to appeal out of time a sentence of

14 months’ imprisonment imposed upon him when he pleaded guilty

to a charge of indecent assault?

(2)If  so,  should  his  sentence  of  imprisonment  be  replaced  with  a sentence of home detention?

Background facts

[2]      On the evening of Friday 6 January 2012 the victim was socialising with friends at a bar in Taupo.  At about 2.30am she started walking to a friend’s house

alone.  The victim sensed that someone was walking behind her.  That person was

GERBER V NEW ZEALAND POLICE HC ROT CRI-2013-463-000027 [16 April 2013]

Mr Gerber.  Mr Gerber began to engage the victim in conversation and walked with her for about 500 metres.  When the victim indicated to Mr Gerber she was going to cross the road, he grabbed her from behind and pulled her down onto the grass.  As the victim struggled to break free, Mr Gerber pushed his hand under her dress, into her underpants, and touched her genitalia.  The victim was able to escape after she hit Mr Gerber with her shoe.

[3]      Mr Gerber initially denied that he was involved in the offending but later pleaded guilty.

District Court Judge’s decision

[4]      In his judgment dated 14 February 2013 Judge Cooper:

(1)discussed  Mr  Gerber’s  personal  circumstances.     He  noted  that Mr Gerber wanted the Court to take into account his remorse for his offending.   However, Judge Cooper considered that Mr Gerber’s expressions of remorse ran counter to his actions such as his attempts to get friends to cover for him and his posting a message on Facebook which was “less than sensitive as far as the complainant was concerned”;

(2)erroneously said Mr Gerber had no previous convictions.   In fact Mr Gerber  has  a  previous  conviction  for  disorderly behaviour  for which he received 40 hours’ community work;

(3)recognised  that  the  victim  had  been  profoundly  affected  by  the offending, as is evident from her victim impact statement;

(4)       reasoned that Mr Gerber’s gross intoxication on the night in question

was not a mitigating factor;

(5)determined the starting point by acknowledging that there was no tariff  case  for  indecent  assault.     His  Honour  considered  that

Mr Gerber’s attack on the victim in circumstances where she was

walking home at night alone was serious;

(6)adopted  a  starting  point  of  18  months’  imprisonment  which  he discounted by four months to reflect Mr Gerber’s guilty plea.

[5]      Judge Cooper declined to convert the sentence of 14 months’ imprisonment

into home detention.  Judge Cooper stated:[1]

[1] Police v Gerber DC Taupo CRI-2012-092-13642, 14 February 2013 at [11].

I have to impose a sentence which deters and denounces what you have done and which holds you accountable to not only the complainant, but also to society for your offending.  In my view, because of the serious circumstances of your offending, a sentence of home detention would not meet those sentencing needs of accountability and promoting in you a sense of responsibility and of denunciation and deterrence.

Leave to appeal out of time

[6]      Mr Gerber applies for leave to appeal out of time.   Mr Gerber’s notice of

appeal should have been filed by 14 March 2013.  In fact it was filed on 15 March

2013.  Counsel for Mr Gerber has filed a memorandum explaining that the notice of appeal was filed late because she was under the impression Mr Gerber had 30 days to file his appeal when in fact he only had 28 days to file his notice of appeal.

[7]      Section 123(1) of the Summary Proceedings Act 1957 gives me power to extend any time prescribed or allowed under Part 4 of that Act  which governs appeals.

[8]      When deciding whether to extend time for the filing of a notice of appeal, the following principles are applied:[2]

[2] Cleggs Ltd v Department of Internal Affairs HC Auckland M1032/84, 5 September 1984 cited more recently in Mika v New Zealand Police [2012] NZHC 2668 at [3].

(1)The  onus  is  on  the  applicant  to  show  that  there  existed  special circumstances why the sentence appealed from should not stand.

(2)The discretion is given essentially for the purpose of avoiding miscarriages of justice.

(3)      All the circumstances of the particular case have to be considered.

(4)One of the matters which must be established is that there is a real likelihood an appeal would succeed if leave is granted.   Some authorities go far as to say that the likelihood must be such that the applicant will establish a probability of success.

[9]      Finality  to  litigation  is  the  factor  which  weighs  most  heavily  against extending time to file notices of appeal.  Those who advocate the concept of finality argue that it is in the interests of victims, witnesses and society generally for cases to be heard, determined and for appeal times to be strictly adhered to.   The countervailing concern is the need for appellate courts to avoid perpetrating miscarriages of justice.

[10]     I have decided to grant leave to appeal.  The delay in filing was minor and due solely to an understandable oversight by counsel.  In these circumstances I think it is important that Mr Gerber’s appeal be fully and properly examined by me.

Appeal against sentence

[11]     My jurisdiction to hear and determine the appeal is derived from s 121 of the Summary Proceedings Act 1957.  In the circumstances of this appeal, I may allow the appeal if I consider that the sentence imposed by the District Court was “clearly excessive or inadequate or inappropriate” (“manifestly excessive”).

[12]     In  R  v  Monkman  the  Court  of  Appeal  explained  the  term  “manifestly excessive” in the following way:[3]

[3] R v Monkman CA445/02, 3 March 2003 at [6].

Whether a sentence can be said to be manifestly excessive turns on the maximum  sentence  prescribed  by  law  for  the  offence;     the  level  of sentencing customarily observed with respect to that offence;   the place which  the  conduct  in  question  assumes  on  the  scale  of  seriousness  of

offences of that type;  and the personal circumstances of the offender (to the extent that they are relevant with respect to the particular kind of offending).

...

[13]     When considering if a sentence was manifestly excessive the focus is on the correctness of the end result, not the process by which the sentence was reached.  As the Court of Appeal observed in Ripia v R:[4]

[4] Ripia v R [2011] NZCA 101 at [15].

... this Court has consistently observed that sentence appeals will almost always turn on a consideration of whether the final outcome is manifestly excessive.   The route by which the judge reached that outcome will be relevant to the analysis, but seldom in itself pivotal.

Different considerations apply when cogent new evidence emerges on appeal.  This is what has happened in the present case, and as a result I am placed in the position of considering important factors that were not brought to Judge Cooper’s attention.

Appeal against refusal to grant home detention

[14]     Mr Gerber only appeals against Judge Cooper’s decision to sentence him to prison instead of sentencing him to home detention.   In adopting this approach Mr Gerber accepts that the starting point of 18 months’ imprisonment was entirely appropriate and that in normal circumstances the end sentence of 14 months’ imprisonment would be unimpeachable.

[15]     Mr  Gerber  is  very  realistic  in  his  acknowledgement  that  Judge  Cooper adopted an appropriate starting point and that the end sentence would, in normal circumstances, have been appropriate.   The cases I have examined[5]  are entirely consistent with the approach followed by Judge Cooper.  However, the present case has some unusual features which were not brought to Judge Cooper’s attention.  The matters I am about to outline have led the Crown to advise me that it does not oppose

Mr Gerber’s appeal.

[5] R v Lunjevich [2012] NZCA 454; R v Taane [2008] NZCA 461; Champion v Police HC Christchurch CRI-2007-409-99, 24 May 2007 and Mattock v New Zealand Police HC New Plymouth AP44/98, 5 February 1999.

[16]     I now have the benefit of an affidavit from Mrs Gerber.  She explains:

(1)Mr Gerber (the appellant) was born in June 1993 in South Africa and taken under the care of Mr and Mrs Gerber when he was about seven or eight months old.

(2)The appellant had been born in a field to an alcoholic mother who did not wish to care for him. The appellant’s biological mother apparently attempted to kill him soon after he was born. The appellant still has a scar on his throat from where his mother attempted to cut his throat.

(3)Mrs Gerber understands that the appellant spent the first two months of his life in a piggery before he was abandoned to the care of a neighbour who lived in very poor circumstances.

(4)That neighbour was unable to continue to care for the appellant so he was placed in an orphanage called “The Van Rhyne Place of Safety”. Mrs Gerber has said that facility left a lot to be desired.

(5)Mrs Gerber and her husband discovered the appellant in The Van Rhyne Place of Safety and were moved by his circumstances. They began the process of adopting him.  Ultimately Mrs Gerber, her husband, their two biological children and three other children whom they adopted (including the appellant) moved to New Zealand.

(6)As a consequence of his extremely deprived circumstances in the first months of his life the appellant:

(a)     suffered major developmental difficulties; (b)      remained underweight;  and

(c)     has intellectual impairments caused through poor nutrition and foetal alcohol syndrome.

(7)Unfortunately, the appellant has struggled academically.   Mrs Gerber explains that he has always struggled with comprehension and with being able to express himself verbally and in writing.  He can read and write in a basic fashion but has extremely limited mathematical and numerical skills.

(8)The appellant now suffers from a social attachment disorder.   He has difficulty in engaging with others in normal social ways.

[17]     Mrs Gerber has explained that because she and her husband wished to shield the appellant from the horrific details of his first year of life she has not previously told him about the matters contained in the affidavit now made available to me.

[18]     To compound matters, Mrs Gerber could not make her and her husband’s home available to the appellant if he was sentenced to home detention because of strict conditions imposed in their tenancy agreement.  However, I am told that the appellant’s older brother and his wife who also live in Taupo have a suitable home and are willing to accommodate the appellant if he is sentenced to home detention.

Analysis

[19]     When a defendant seeks to be sentenced to home detention, the sentencing Judge must decide that, but for the availability of home detention, the defendant would otherwise be sentenced to a short term sentence of imprisonment.[6]   In effect, the Court is given a discretion to commute to home detention what would otherwise be a sentence of imprisonment.[7]    There is nothing in the Sentencing Act 2002 to suggest a presumption for or against commuting a prison sentence to one of home detention, either generally or in respect of particular types of offences.[8]     Therefore, there must be an exercise of sentencing discretion in a way which gives effect to the purposes and principles of sentencing in ss 7 and 8 of the Sentencing Act 2002 when

a  decision  is  made  on  whether  or  not  to  impose  home  detention.    It  is  well

established that home detention can satisfy the objectives of denunciation and deterrence.   But whether home detention will meet these objectives in a particular case is an evaluative exercise.[9]

[6] Sentencing Act 2002, s 15A.

[7] R v Vhavha [2009] NZCA 588 at [29] per William Young P dissenting endorsed in Osman v R

[2010] NZCA 199 and Manikpersadh v R [2011] NZCA 452 at [10].

[8] R v Vhavha at [29].

[9] James v R [2010] NZCA 206, (2010) 24 NZTC 24,271 endorsed in Manikpersadh v R, above n 7 at [11].

[20]     Like Judge Cooper, I am very concerned about Mr Gerber’s offending on the night in question.   Attacking an innocent young woman in the early hours of the morning in the way he did justifies the Court responding in the most severest of ways.  Under normal circumstances I would have had no hesitation in endorsing the sentence of imprisonment imposed by Judge Cooper.   However, the information contained in Mrs Gerber’s affidavit, leads me to the conclusion that a prison sentence is not the appropriate sentence for Mr Gerber on this occasion.   His personal circumstances justify me in allowing his appeal and sentencing him to home detention.

Conclusion

[21]     The home to which it is proposed Mr Gerber serve a sentence of home detention has been assessed as being appropriate:

(1)Mr Gerber is to be sentenced to six months’ home detention at 11A Otupai Street, Two Mile Bay, Taupo.

(2)He is to travel directly from Waikeria Prison to the address at 11A Otupai Street, Two Mile Bay, Taupo and there await the arrival of a probation officer and security monitoring company.

(3)He is to remain at that address for the duration of his home detention and not to leave that address without the prior approval of a probation officer.

(4)He is not to consume, purchase or possess alcohol or illicit drugs for the duration of his home detention sentence.

(5)He is to attend an assessment for alcohol and drug rehabilitative programme and attend and complete an appropriate alcohol and drug rehabilitative programme as recommend by his probation officer and the programme provider.

(6)He   is   to   undertake   and   complete   appropriate   treatment   and counselling to the satisfaction of the probation officer and treatment provider.

[22]     The sentence of six months’ home detention reflects the fact that Mr Gerber has already served two months in prison as a result of the sentence imposed by Judge Cooper on 14 February 2013.

[23]     The appeal is therefore allowed.   Mr Gerber is sentenced to six months’

home detention.

D B Collins J

Solicitors:

Malcolm Mounsey Clarke, Taupo for Appellant
Crown Solicitor, Rotorua for Respondent