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)

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].

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.
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

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].
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].

On Mr Gibb’s behalf, Ms Riddell submits…

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 Gibb v R

Details

AGLC: Gibb v R [2017] NZCA 532
Case: [2017] NZCA 532
Decision Date: 21 November 2017 at 2 pm

CaseChat Overview and Summary

Nathaniel Gibb was the appellant in a case heard by the Court of Appeal of New Zealand, which was established to hear appeals from the District Court. Gibb appealed against the sentence imposed on him by Judge Ruth. The appeal was heard by Harrison, Lang, and Ellis JJ on 16 November 2017. Gibb pleaded guilty to a charge of breaching a protection order and was subsequently found guilty on a charge of burglary. The appeal was against the sentence of two years and three months’ imprisonment imposed on both charges. The legal issues before the Court of Appeal were whether the starting point and uplift adopted by the sentencing judge were appropriate, and whether the sentence imposed was manifestly excessive. The Court of Appeal found that the starting point of 18 months' imprisonment was appropriate for the burglary charge. The gravity of the charge of breaching the protection order was underscored by the fact that Gibb committed the offence so shortly after being released from prison after serving a sentence imposed in May 2016 for very similar offending. The Court of Appeal considered that an uplift of just 15 months was generous, and that the starting point of 30 months that the sentencing judge ultimately selected to reflect Gibb's overall culpability could well be regarded as lenient. The Court of Appeal found that the end sentence imposed was not manifestly excessive and dismissed the appeal against sentence.

Orders