Gibbs v Police - [2015] NZHC 2460

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2015-409-000087 [2015] NZHC 2460

BETWEEN
JASON GIBBS

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 7 October 2015

Appearances:

R G Glover for Appellant
K B Bell for Crown

Judgment:

8 October 2015

JUDGMENT OF DUNNINGHAM J

[1] Mr Gibbs appeals against his sentence of 53 months’ imprisonment, imposed by Judge Neave, on 21 charges.1 The appellant says that the end sentence was “both manifestly excessive and otherwise inappropriate and a lesser sentence of imprisonment should have been imposed”.

Background

[2] The sentence imposed on Mr Gibbs related to the following charges: (a) two charges of unlawfully taking a motor vehicle;2
(b) driving while disqualified (third or subsequent);3

(c) theft;4

1      Police v Gibbs [2015] NZDC 14235.
2      Crimes Act 1961, s 226(1).
3      Land Transport Act 1998, s 32(1)(a) and (4).
4      Crimes Act 1961, ss 219 and 223(b).

GIBBS v NEW ZEALAND POLICE [2015] NZHC 2460 [8 October 2015]

(d) two charges of burglary;5 (e) receiving (laptop bag);6 (f) receiving (wallet);7
(g) seven charges of dishonestly using a document;8

(h) three charges of attempting to dishonestly using a document;9

(i) driving in a dangerous manner;10

(j) failing to stop for red and blue flashing lights;11

(k) failing to comply with a prohibition by an enforcement officer.12

[3] The facts which gave rise to the charges can be summarised as follows:

(a) 25 August 2014 - the appellant stole a motor vehicle in Christchurch.

He subsequently went on to abandon the vehicle in Waimate. This gave rise to the first charge of unlawfully taking a motor vehicle.

(b)10 September 2014 – the appellant was found driving a stolen motor vehicle. He exited the vehicle and attempted to escape on foot but was located a short distance away. This gave rise to a further charge of unlawfully taking and the charge of driving while disqualified, third or subsequent.

(c) 16 October 2014 – while on bail, the appellant stole a mountain bike.

He was charged with theft.

5      Crimes Act 1961, s 231(1)(a).
6      Crimes Act 1961, ss 246 and 247(a).
7      Crimes Act 1961, ss 246 and 247(b).
8      Crimes Act 1961, s 228(b).
9      Crimes Act 1961, ss 228(b) and 72(1).
10     Land Transport Act 1998, s 35(1)(b).
11     Land Transport Act 1998, s 52(1)(c) and (4).
12     Land Transport Act 1998, s 52(1)(c).

(d)18 October 2014 – the appellant broke into a dwelling house in Sheppard Place. He jemmied open a lounge window in order to gain access. This resulted in the burglary charge.

(e) 18 October 2014 – 14 November 2014 – sometime during this period, Mr Gibbs received a wallet containing credit cards, ID cards, cash in Korean and Malaysian currency and a SIM card. The wallet was stolen from a dwelling house located in Sheppard Place, Christchurch. The appellant used the SIM card after receiving it resulting in the complainant receiving a large phone bill.

(f) 26 October 2014 – the appellant broke into…

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 Gibbs v Police

Details

AGLC: Gibbs v Police [2015] NZHC 2460
Case: [2015] NZHC 2460
Decision Date: 8 October 2015

CaseChat Overview and Summary

Gibbs appealed against the sentence of 53 months’ imprisonment imposed by the District Court. The appellant claimed that the sentence was both manifestly excessive and otherwise inappropriate, and that a lesser sentence of imprisonment should have been imposed. The District Court had imposed the sentence on the appellant for 21 charges, including two charges of unlawfully taking a motor vehicle, driving while disqualified, theft, two charges of burglary, receiving stolen property, seven charges of dishonestly using a document, three charges of attempting to dishonestly use a document, driving in a dangerous manner, failing to stop for red and blue flashing lights, and failing to comply with a prohibition by an enforcement officer. The District Court took the burglary charges as the lead offence and decided that four years was an appropriate starting point. It then imposed an additional penalty of 18 months’ imprisonment for the associated dishonesty offences, and a further year’s imprisonment to reflect the appellant’s previous convictions. The Court then added a credit for time spent on electronically monitored bail with a 24-hour curfew and for the appellant’s willingness to attend restorative justice. Finally, the Court gave a credit of 22 and a half per cent for the appellant’s plea of guilty. The High Court held that there was an error in the sentence imposed on conviction and that a different sentence should be imposed. The Court accepted that the starting point for the burglary offences was too high, and that the sentence of 53 months was manifestly excessive. The appeal was allowed, and the sentence of 53 months’ imprisonment was quashed and a sentence of 43 months imprisonment was substituted. The sentence on the burglary charges was reduced to three years, four months’ imprisonment, and the sentence on the driving while disqualified charge was increased to three months’ imprisonment cumulative on the burglary charge. In all other respects, the sentences and other penalties imposed by Judge Neave remained unaltered.

Orders