Gibb v R

[2017] NZCA 532

IN THE COURT OF APPEAL OF NEW ZEALAND

CA320/2017
[2017] NZCA 532

BETWEEN	NATHANIEL JON GIBB Appellant
AND	THE QUEEN Respondent

Hearing:	16 November 2017
Court:	Harrison, Lang and Ellis JJ
Counsel:	E J Riddell for Appellant R K Thomson for Respondent
Judgment:	21 November 2017 at 2 pm

JUDGMENT OF THE COURT

The appeal against sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Lang J)

1. Nathaniel Gibb pleaded guilty in the District Court to a charge of breaching a protection order.  He subsequently stood trial on a charge of burglary, and was found guilty on that charge by the jury.  On 26 May 2017, Judge Ruth sentenced Mr Gibb to two years and three months’ imprisonment on both charges.[1]  He now appeals against sentence.

Background

[1]R v Gibb [2017] NZDC 11025 [Sentencing notes].

1. The burglary charge was laid as a result of events that occurred on 22 July 2016.  On that evening Mr Gibb drove to the address of his former partner and parked his vehicle outside.  He then entered the address and stole a number of items, including a laptop computer.  These had a value of approximately $1,800.  Mr Gibb was discovered at the address when another occupant of the address arrived and called the police.  Mr Gibb then attempted to leave the scene but was arrested before he could do so.

2. In going to his former partner’s address Mr Gibb also breached the terms of a protection order that the Family Court had issued in favour of his former partner and their children.  The present offending occurred just two days after Mr Gibb had been released from prison after serving a sentence of imprisonment imposed on 12 charges of breaching the same protection order.

The sentence

1. The Judge acknowledged at the outset that the events forming the basis for the two charges were “very much intertwined”.[2]  He accepted the Crown submission that the burglary charge fell at the lower end of the range — referred to by this Court in Arahanga v R[3] — and warranted a starting point of 18 months’ imprisonment.[4]  Taking into account Mr Gibb’s previous convictions for similar offending, he selected the same starting point in respect of the charge of breaching the protection order. 

   [2]At [1].

   [3]Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189 at [78].

   [4]Sentencing notes, above n 1, at [15].

2. Having regard to totality principles, the Judge reduced both starting points by three months, resulting in a sentence of two years and six months’ imprisonment.[5]  He then reduced that by three months to reflect the guilty plea entered prior to the trial in respect of the charge of breaching the protection order.[6]  This resulted in an end sentence of two years and three months’ imprisonment on the burglary charge and a concurrent sentence of one year’s imprisonment on the charge of breaching the protection order.[7]

Argument on appeal

[5]At [16].

[6]At [17]–[18].

[7]At [20].

1. On Mr Gibb’s behalf, Ms Riddell submits that the Judge adopted an overall starting point that was too high.  She submits that an 18-month starting point on the burglary charge should have been uplifted by no more than six months to reflect the charge of breaching the protection order.  This would produce an end sentence of around two years’ imprisonment.

2. Ms Riddell also submits that the Judge ought to have provided further discounts to reflect rehabilitative efforts Mr Gibb has made whilst in custody, and to reflect his personal circumstances as described in a report prepared by a psychologist in concurrent proceedings in the Family Court relating to Mr Gibb’s children.  In addition, Ms Riddell contends that Mr Gibb should have received a discrete discount to reflect the fact that he had spent five months subject to stringent conditions of electronic monitoring (EM) on bail prior to the trial. 

Decision

1. We agree with the Judge that a starting point of at least 18 months’ imprisonment was warranted on the burglary charge.  It involved Mr Gibb brazenly entering his former partner’s address and stealing valuable items from it.  The real issue, as counsel acknowledge, is the extent to which that starting point should be increased to reflect the charge of breaching the protection order.

2. In our view the gravity of that charge is underscored by the fact that Mr Gibb committed the offence so shortly after being released from prison after serving a sentence imposed in May 2016 for very similar offending.  Mr Gibb was subject to release conditions imposed in relation to that sentence when he committed the present offence.  In addition, Mr Gibb has been subject to a sentence of nine months’ supervision imposed in September 2015 on another charge of breaching a protection order, as well as charges of assaulting and threatening his former partner.  He was still serving that sentence when he committed the offences that led to his imprisonment in May 2016.  He had also served a sentence of home detention imposed in December 2011 on a charge of injuring with intent to injure.

3. Given that background we consider that an uplift of just 15 months, or one third of the maximum available sentence, can rightly be regarded as generous.  This means that the starting point of 30 months that the Judge ultimately selected to reflect Mr Gibb’s overall culpability could well be regarded as lenient.  It was certainly well within the available range.

4. The Judge acknowledged that Mr Gibb had undertaken rehabilitative efforts whilst in custody but did not give any further discount to reflect that fact.  Given Mr Gibb’s past response to rehabilitative initiatives we do not consider he erred in that respect.

5. The psychologist’s report prepared for the Family Court proceedings was not before the Judge when he sentenced Mr Gibb on the present charges.  We do not consider the report assists Mr Gibb for present purposes, however, because it raises more questions than answers regarding his risk of offending in a similar way in the future. 

6. We accept that the Judge appears to have overlooked the fact that Mr Gibb had spent five months before trial subject to stringent EM bail conditions.  That may ordinarily have warranted a modest reduction of the end sentence.  We consider that this omission is adequately remedied by the fact that the Judge could easily have applied a significantly greater uplift to reflect Mr Gibb’s culpability in respect of the charge of breaching the protection order.

7. The ultimate question is always whether the end sentence is manifestly excessive.  As will be apparent, we are satisfied that the end sentence imposed in the present case was not. 

Result

1. The appeal against sentence is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent