Gibson v Police
[2024] NZHC 795
•12 April 2024
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2024-409-21
[2024] NZHC 795
BETWEEN KAIDAN TONY GIBSON
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 9 April 2024 Appearances:
T R Nicholls for Appellant
W J S Mohammed for Respondent
Judgment:
12 April 2024
JUDGMENT OF MANDER J
This judgment was delivered by me on 12 April 2024 at 3 pm pursuant to Rule 11.5 of the High Court Rules 2016
Registrar/Deputy Registrar Date: .
GIBSON v POLICE [2024] NZHC 795 [12 April 2024]
[1] The appellant, Kaidan Gibson, was sentenced by Judge Farish in the Christchurch District Court to three years’ imprisonment on a raft of dishonesty, driving and drug-related charges to which he had pleaded guilty.1 Mr Gibson appeals that sentence on the basis a two-year starting point applied in respect of charges of unlawfully possessing a firearm and dangerous driving resulted in the end sentence being manifestly excessive.
Background
[2] The sentencing Judge skilfully summarised Mr Gibson’s extensive offending, which I adopt:
[1] Mr Gibson, it took me some time to work through all of these charges. You pleaded guilty to 24 charges. They start off with offending back in April 2022 as possession of some ammunition which is fineable only. You then though conducted a series of thefts of petrol, the majority of which were under
$500. They occurred on 7 April and 8 April but on 15 April you committed another petrol drive-off theft which was in excess of $500. I note that you were not alone in relation to that offending and it appeared to me to be commercial thefts of petrol. They were reasonably large amounts and petrol cans were being used.
[2] You were finally arrested in relation to that earlier offending and, when stopped, you were asked to provide the PIN number for your phone, which you refused, so you face a charge relating to that.
[3] You then face charges of possession of cannabis, possession of methamphetamine, possession of utensils used for the grinding of cannabis and also possession of a pipe used for the smoking of methamphetamine.
[4] The majority of that is the least of your problems. You were admitted to bail and you were on bail and then the rest of the offending occurred.
[5] On 5 June you were driving while suspended which is laid in its aggravating form, so the period of disqualification, the minimum period, is 12 months, and I will return to that later.
[6] You then failed to appear and then there are a series of quite significant receiving charges. There is a receiving of a motor vehicle, which was the van, which is valued just over $10,000. That was between 29 June and 1 July.
[7] On 1 July 2023, moving forward nearly a year later, you were caught in possession of some methamphetamine. Around that time you also then started receiving and there are two charges of receiving, one in relation to two manufactured go-karts which were stolen from the University of Canterbury premises valued just on $16,000 which occurred on or about 2 April and then the Briford Trailer matter which relates to 22 May.
1 Police v Gibson [2023] NZDC 25293.
[8] On 16 June, you were arrested and found in your possession was a small amount of methamphetamine, possession of some ammunition, a charge of dangerous driving and failing to stop, which was very serious driving, you driving off at speed in an urban area and when the police tried to stop you, you kept on going, so they called off the chase but eventually caught up with you and driving whilst forbidden.
[9] Also on that date you had in your possession a sawn-off .22 rifle, which was under the driver’s seat of the motor vehicle, so that is a very serious charge. There is no reason why you would have a firearm, you are not a licensed firearm owner. The only purpose in sawing off a rifle is that you can use it illegitimately and it was loaded which is very concerning because of the area in which you were driving.
[10] So, as I said, you were admitted to bail on 16 April and then all of these other events occurred whilst you were subject to bail, so that is an aggravating feature of your offending.
[3] This offending resulted in Mr Gibson being convicted of three charges of receiving (over $1,000),2 three charges of possessing methamphetamine,3 driving while suspended,4 four charges of theft (under $500),5 and two charges of theft ($500-
$1000).6 He was also convicted on two charges of possessing utensils,7 a charge of possessing cannabis,8 possessing instruments for conversion,9 failing to carry out obligations in relation to computer search,10 and charges of being an unlicensed driver and failing to comply with a prohibition,11 failing to stop when followed by red/blue flashing lights,12 and dangerous driving.13 Finally, Mr Gibson was convicted of three charges under the Arms Act 1983, namely separate charges of unlawfully possessing a firearm, explosives and ammunition.14
2 Crimes Act 1961, s 246 & 247(a) – maximum penalty of seven years’ imprisonment.
3 Misuse of Drugs Act 1975, s 7(1)(a) and (2) – maximum penalty of six months’ imprisonment.
4 Land Transport Act 1998, ss 32(1)(c) and 32(4) – maximum penalty of two years’ imprisonment,
$6000 fine.
5 Crimes Act, s 219 and 223(d) – maximum penalty three months’ imprisonment.
6 Section 219 and 223(c) – maximum penalty one year imprisonment.
7 Misuse of Drugs Act, s 13(1)(a) and (3) – maximum penalty one year imprisonment.
8 Section 7(1)(a) and (2) – maximum penalty of three months’ imprisonment, $500 fine.
9 Crimes Act, s 227 – maximum penalty of one year imprisonment.
10 Search and Surveillance Act 2012, s 178 – maximum penalty of three months’ imprisonment.
11 Land Transport Act, s 52(1)(c) – maximum penalty of $10,000 fine.
12 Sections 52A(1)(a)(ii), 52A(6) & 114(2) – maximum penalty of $10,000 fine.
13 Section 35(1)(b) – maximum penalty of three months’ imprisonment, $4,500 fine.
14 Arms Act 1983, s 45(1) – maximum penalty of four years’ imprisonment, $5000 fine.
District Court sentencing
[4] After the Judge had adopted a starting point of 18 months’ imprisonment in respect of the receiving charges, the Judge turned to the Arms Act offending, which she described as a “significant issue”. It was noted that at the time Mr Gibson was in possession of the firearm, he had been driving in a dangerous manner while possessing drug paraphernalia. The weapon had been modified for illegitimate purposes and the Judge commented that a condign sentence needed to be imposed. An uplift of 24 months’ imprisonment was applied for this offending, which incorporated the dangerous driving that arose out of the same circumstances.
[5] Twelve months’ imprisonment was added for the petrol thefts and the driving while suspended. A further two months was added for other incidental charges which included the other drugs and paraphernalia offending. The Judge recorded that resulted in a total starting point of four years and seven months’ imprisonment.15 Three months were then added for the fact the majority of this offending occurred while Mr Gibson was on bail, and a further six months was applied to reflect his poor criminal history.
[6] While not all of the guilty pleas had been entered at an early stage, a 20 per cent credit was provided for those pleas. A further 15 per cent reduction was applied in recognition of personal mitigating factors, including Mr Gibson’s drug addiction that was viewed as being at the root of his offending. Notwithstanding the reoffending that occurred while on electronically monitored bail, a further three months was deducted. This resulted in the final sentence of three years’ imprisonment.
Approach on appeal
[7] In order for an appellant to be successful on their appeal against sentence, it is necessary to satisfy the Court there has been an error in the imposition of the sentence and that a different sentence should be imposed.16 When assessing whether the sentence being appealed is “manifestly excessive” the focus must be on whether the
15 This was a mathematical error as the total starting point at this stage in the sentencing exercise should have been four years and eight months’ imprisonment.
16 Criminal Procedure Act 2011, s 250(2) and (3).
sentence actually imposed is within range, rather than the process by which that sentence was reached, or its constituent elements.17 A court will not intervene if the ultimate sentence imposed is within the available range and one that is properly able to be justified on the application of relevant sentencing principles.18
The appeal
[8] Mr Gibson’s appeal against the starting point adopted for the possession of firearms and dangerous driving charges rested on a submission that lower starting points had been applied in cases involving more serious circumstances. Mr Nicholls, who appeared on behalf of Mr Gibson, referred in particular to two sentencing decisions in support of that proposition:
(a)Harraway v Police19 — a sentence of two years imprisonment was imposed for charges of burglary, unlawful possession of a firearm, unlawfully taking a motor vehicle, theft and driving whilst disqualified. Mr Harraway had committed a series of offences over 11 days and, when he was eventually apprehended, a search of his vehicle resulted in the location of a rifle down the side of the passenger’s seat, together with 10 rounds of ammunition. The District Court imposed 24 months’ imprisonment on the lead burglary charge, to which an uplift of 12 months’ imprisonment was applied for the unlawful possession of a firearm.
(b)R v To’a20 — Mr To’a was sentenced on four charges relating to methamphetamine offending, a cannabis charge, and two charges relating to the unlawful possession of a firearm and ammunition. The firearm, which was loaded, was located in a vehicle within reach of the driver. A significant amount of ammunition was found both in the vehicle and at Mr To’a’s house. In sentencing Mr To’a, Davison J accepted the presence of a firearm in a drug-dealing context was a
17 Islam v R [2020] NZCA 140 at [32]; and Bowring v Police [2021] NZCA 325 at [12].
18 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36]; Ripia v R [2011] NZCA 101 at [15].
19 Harraway v Police [2018] NZHC 761.
20 R v To’a [2019] NZHC 3232.
significant aggravating feature and imposed an uplift of 12 months’ imprisonment.
[9] Mr Nicholl’s, in reliance on these two cases, submitted that both involved circumstances that were significantly more serious than in Mr Gibson’s case. He noted, in particular, that in both cases the firearms were loaded and easily accessible to the driver or other people in the vehicle. While it was acknowledged that in the present case the two-year uplift also applied to the dangerous driving charge, it was Mr Nicholl’s submission that the starting point ought not to have exceeded 12 months’ imprisonment and that it was unlikely the dangerous driving, standing alone, would have attracted a further 12 months’ imprisonment. Mr Nicholls argued the dangerous driving charge should have incorporated the starting point adopted for the other driving charges and that, if any uplift was required, it ought not be more than three months’ imprisonment. It followed in his submission that the end sentence should have been in the range of between 24 and 27 months imprisonment.
Analysis
[10] I do not accept the appellant’s submission that the 24-month starting point for the firearms and dangerous driving charges was excessive. The Court of Appeal has observed that a discrete charge of possessing a single firearm generally calls for a starting point of between two and three years’ imprisonment.21 That view is commensurate with how seriously the unlawful possession of firearms is viewed, particularly when coupled with live ammunition. When treated as an aggravating feature of more serious offending, often in the context of drug-dealing, the Court of Appeal has accepted that uplifts of between 12 to 18 months’ imprisonment are appropriate.22
[11] Whether viewed as discrete offending in its own right or as an aggravating ancillary offence to more serious offending, I do not consider in the circumstances of this case that the two year starting point applied in respect of the Arms Act charge and the dangerous driving has resulted in the imposition of an erroneous sentence.
21 Campbell v R [2022] NZCA 579 at [18].
22 Joyce v R [2020] NZCA 124 at [24].
Mr Gibson was unlicensed when he drove at great speed in a residential area in an attempt to evade lawful arrest. He endangered the safety of other motorists. Other items found in the vehicle, including six point bags of methamphetamine, indicated the consumption of drugs. Importantly, the firearm had been modified for obvious illegitimate purposes and was located under the driver’s seat, together with ammunition.
[12] Arguably, the circumstances relating to Mr Gibson’s possession of the firearm, while different, were comparable to the two cases cited in support of the appeal. In To’a, the firearm was located in his vehicle when it was parked at his address, and not in a public place, after a police pursuit. In the present case, the firearm was seized when Mr Gibson’s vehicle was required to be spiked and he attempted to flee the scene. In Harraway, while the firearm was loaded, there was no suggestion it was linked with any drug offending, although its possession was part of a wider spate of offending. Other sentencing decisions indicate the starting point was within the available range.
[13] In Herewini v Police,23 the appellant’s car was stopped by police in a residential area and a sawn-off loaded shotgun located under the front passenger seat. A starting point of two and a half years’ imprisonment was upheld on appeal. Similarly, in Keenan-Fry v Police,24 a case with features comparable to the present offending, the appellant, after driving dangerously and failing to stop for police, was found in possession of ammunition, cannabis and a sawn-off double-barrelled shotgun. A methamphetamine pipe was also located. The sentencing Judge adopted a starting point of 26 months for the firearms charges, to which an eight-month uplift was added for the balance of the charges. That case involved a second weapon, — a loaded pistol that was thrown out of the driver’s side window during the police chase — but the other ancillary charges, including the dangerous driving and minor drug offences, resulted in overall starting point of 34 months’ imprisonment.
[14] Mr Gibson’s possession of the sawn-off rifle is to be viewed in the context of the unpredictable and hazardous situation arising from the police pursuit, the
23 Herewini v Police [2014] NZHC 2396.
24 Keenan-Fry v Police [2021] NZHC 562.
appellant’s dangerous driving, the presence of ammunition, and the inference of drug use, from methamphetamine and other drug paraphernalia being found in the vehicle at the time. In those circumstances, I do not consider the uplift of 24 months’ imprisonment to mark the firearm and dangerous driving charges was excessive. Nor, moreover, that this uplift resulted in the final effective sentence imposed being manifestly excessive. It follows that the appeal must be dismissed.
[15] As something of a footnote, I observe that, as identified by the Crown, to Mr Gibson’s benefit, the sentence was not calculated in accordance with the approach mandated in Moses v R.25 The sentence calculation should have resulted in a net 25 per cent discount from the starting point before the three months were deducted for time spent on electronically monitored bail. That would have resulted in an end sentence of three years and three months’ imprisonment, rather than the three year sentence actually imposed.
Result
[16]The appeal is dismissed.
Solicitors:
Crown Solicitor, Christchurch
25 Moses v R [2020] NZCA 296, [2020] 3 NZLR 583.
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