Gerbes v The Queen - [2012] NZCA 281

IN THE COURT OF APPEAL OF NEW ZEALAND

CA59/2012
[2012] NZCA 281

BETWEEN ANTHONY JAMES GERBES
Appellant

AND THE QUEEN
Respondent

Hearing: 13 June 2012

Court: White, Rodney Hansen and Fogarty JJ

Counsel: E J Forster and A E M Reid for Appellant
J M Jelas for Respondent

Judgment: 27 June 2012 at 3.00pm

JUDGMENT OF THE COURT

The appeal against sentence is dismissed.

REASONS OF THE COURT

(Given by Rodney Hansen J)

Introduction

Mr Gerbes pleaded guilty to three charges of aggravated burglary and three associated dishonesty offences.[1] He was sentenced by Judge Rea to six years imprisonment with a minimum period of imprisonment of three and a half years.
[1]Two of attempting to use a credit card, in breach of s 228(b) Crimes Act 1961 and one of intentionally destroying telephone cables, contrary to s 269(2)(b) of the Act.
Mr Gerbes appeals against his sentence as it relates to the minimum period of imprisonment. He considers the minimum period is manifestly excessive and should be reduced to three years.

Facts

Mr Gerbes was released from custody in September 2010 after serving a sentence for offences of dishonesty. He was still subject to release conditions when, between 15 and 29 November 2010, he committed three aggravated burglaries of private homes. All offending took place at night with an accomplice. Both wore disguises and were armed.
The first burglary took place in Havelock North. The offenders went to a private house carrying two mallets and a bag containing ropes and masking tape. Outside the house they found an aluminium baseball bat which Mr Gerbes used in an unsuccessful attempt to smash the glass pane in the kitchen door. They then regrouped, cut phone cables to the house and entered through an open window. They took a number of items from the lounge and kitchen areas. As they moved to a hallway, which led to other parts of the house, they were confronted by the occupant, who had been awakened by the noise. He barricaded himself in and phoned the police.[2] Mr Gerbes and his associate then took the keys to both of the victim’s vehicles, loaded the stolen items into one of them and left the property.
[2] Despite some cables having been cut, the phone still worked.
On 28 November, again carrying a mallet and a bag containing rope and masking tape, Mr Gerbes and his associate went to a house in Napier. Outside the house Mr Gerbes found a piece of 2 x 4 timber which he took into the house, his associate having gained entry by climbing through the bathroom window. They stole a number of items from the kitchen and living room area. They found the key to a vehicle that was on the property into which they loaded the stolen items before making off.
The following evening Mr Gerbes and Richard Rameka entered the home of an elderly couple. The property had been selected by Mr Rameka who had previously worked there. Outside the house…

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 Gerbes v The Queen

Details

AGLC: Gerbes v The Queen [2012] NZCA 281
Case: [2012] NZCA 281
Decision Date: 27 June 2012

CaseChat Overview and Summary

In the New Zealand Court of Appeal, Anthony James Gerbes appealed against his sentence for three charges of aggravated burglary and related dishonesty offences. The court was asked to determine whether the minimum non-parole period of three and a half years, which was part of the overall six-year sentence imposed, was manifestly excessive. The appellant argued that the minimum non-parole period should be reduced to three years. The court was required to consider the principles of sentencing, particularly the statutory test in section 86(2) of the Sentencing Act, and the mitigating and aggravating factors in determining the appropriate length of the minimum non-parole period.

The court found that the appellant's early guilty pleas were not associated with any real insight into his offending or remorse for his actions. Therefore, they did not impact on the statutory test in section 86(2) of the Sentencing Act and were disregarded. The court also found that the absence of actual violence was not a sufficient reason to justify a reduction in the minimum non-parole period, as the appellant had a history of repeated dishonesty offences and was assessed as being at high risk of reoffending. The court was satisfied that the minimum period of imprisonment imposed by the sentencing judge was fully justified.

The appeal against sentence was dismissed, and the original sentence of six years imprisonment with a minimum non-parole period of three and a half years was upheld.

Orders