Gibson v Police - [2024] NZHC 795

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…

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 Gibson v Police

Details

AGLC: Gibson v Police [2024] NZHC 795
Case: [2024] NZHC 795
Decision Date: 12 April 2024

CaseChat Overview and Summary

The appellant, Kaidan Gibson, appealed against the sentence imposed by the Christchurch District Court on the basis that the starting point for his unlawful possession of a firearm and dangerous driving resulted in a manifestly excessive sentence. The appeal was dismissed by the High Court. Gibson's sentence arose out of a series of dishonesty, driving and drug-related charges to which he had pleaded guilty. The District Court judge adopted a starting point of 18 months' imprisonment for the receiving charges, and a 24-month starting point for the unlawful possession of a firearm and dangerous driving. A total sentence of three years' imprisonment was imposed. Gibson argued that the starting point of 24 months was excessive as cases involving more serious circumstances had resulted in lower starting points. In particular, Gibson relied on two other cases where the judges had imposed a 12-month uplift for unlawful possession of a firearm. The Court disagreed, stating that the unlawful possession of a firearm, particularly when coupled with live ammunition, generally calls for a starting point of between two and three years' imprisonment. In the circumstances of this case, the starting point was not excessive. The appeal was dismissed.

Orders