Gibbons v Police - [2013] NZHC 2136

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI 2013-419-22 [2013] NZHC 2136

KAIYA IAN GENE GIBBONS Appellant

v

NEW ZEALAND POLICE Respondent

Hearing: 21 August 2013

Counsel:

R M McLeod for Appellant
J Tarrant for Respondent

Judgment:

2 October 2013

ORAL JUDGMENT OF RONALD YOUNG J (Appeal against sentence and order recalled and reissued 2 October 2013)

[1] Mr Gibbons appeals against a total sentence of two years and four months’ imprisonment for 15 offences spread over almost 12 months. He says that the sentence of imprisonment was manifestly excessive. In addition he was disqualified for two years and six months which, he says, was also excessive in the circumstances. Reparation orders were made which, he says, were not justified.

[2] The offences were as follows:
(a) one of possession of instruments; (b) unlawfully interfering with a car;

GIBBONS v POLICE [2013] NZHC 2136 [2 October 2013]

(c) one charge of theft of a motor vehicle;

(d)      being found without excuse in an enclosed yard; (e)    three charges of unlawfully taking motor vehicles; (f)          three charges of breaches of protection order;
(g)      cultivating cannabis and possession of cannabis; (h)    two of driving while disqualified; and
(i)       the provision of false information to the police.

[3] At sentencing the Judge helpfully summarised the facts of the offending at para [1] and [2] of her decision:1

[1] Mr Gibbons, you are 25 years of age and you are here today for sentence having pleaded guilty and been convicted on a number of matters. In date sequence they are:

(a) On 27 February 2012, unlawful taking a motor vehicle, which carries a maximum penalty of seven years’ imprisonment. The motor vehicle was valued at $5000. It had been stolen four days earlier and it had false number plate on it when you were driving it.

(b) On 2 March 2012 two charges of unlawful taking of a motor vehicle, to the value of $6500. That involved taking the same motor vehicle on two occasions on the same day. You had been arrested in that vehicle. When released on bail you simply accessed the same vehicle, which was waiting to be moved by police and returned to its lawful owner, and you drove from Tairua all the way back to Hamilton. You were subsequently arrested again and granted bail. There was also one charge of driving while disqualified. That carries a maximum penalty of three months’ imprisonment.

(c) On 11 April 2012 there was a further charge of driving whilst disqualified. It carried a maximum of three months’ imprisonment and again you were granted bail.

1 At [1](a) and [2].

(d) On 14 June 2012 there was a breach of protection order. It carries a maximum penalty of six months’ imprisonment. You were again granted bail.

(e) On 20 June 2012 there was a charge of possession of instruments for conversion. It carries a maximum penalty of one year. I make an order for destruction of those instruments. Also one of unlawfully…

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 Gibbons v Police

Details

AGLC: Gibbons v Police [2013] NZHC 2136
Case: [2013] NZHC 2136
Decision Date: 2 October 2013

CaseChat Overview and Summary

Gibbons appeals against the sentence and disqualification imposed by the District Court, arguing that they are manifestly excessive. The offences spanned a period of almost 12 months and included unlawful taking of motor vehicles, breaches of protection orders, possession of instruments for conversion, theft of a motor vehicle, driving while disqualified, and providing false information to the police. The High Court considered the appeal on the basis that the sentence of imprisonment and the disqualification period were manifestly excessive and that the reparation order was unjustified. The court found that while the sentence was severe, it was not manifestly excessive given the persistent and serious nature of the offending. The court also concluded that the disqualification period was excessive and reduced it to 18 months concurrent with a 12-month disqualification for driving while disqualified. The reparation order was deemed justified, though the court ordered the Crown to prepare a schedule identifying what reparation is properly payable to each victim.

The court found that the sentence, while severe, was not manifestly excessive. The total sentence of two years and four months was within the range of what could be justified, taking into account the persistent and serious nature of the offending. The court also found that the disqualification period of two and a half years was excessive and reduced it to 18 months concurrent with a 12-month disqualification for driving while disqualified. The reparation order was deemed justified, though the court ordered the Crown to prepare a schedule identifying what reparation is properly payable to each victim.

Orders