Gibson v Police - [2017] NZHC 1975

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CRI-2017-425-000021

CRI-2017-425-000022 [2017] NZHC 1975

BETWEEN
REECE MARK POTTINGER GIBSON

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 14 August 2017

Appearances:

J A T Ross for Appellant
R W Donnelly for Respondent

Judgment:

18 August 2017

JUDGMENT OF DUNNINGHAM J

Introduction

[1] On 9 May 2017, the appellant was sentenced to 22 months imprisonment, having entered guilty pleas to one charge each of burglary, theft and receiving stolen property. He now appeals his sentence on the basis that there were errors in the sentence imposed and the end sentence was manifestly excessive.

Background facts

[2] On 29 August 2016, the appellant and Mr McCormack were at their home address in Invercargill. The appellant told Mr McCormack that he was aware that an unoccupied house down the road had tools in it and he intended to break in and take them. He asked Mr McCormack to drive him there so he could put the items in the boot. Mr McCormack did so. The appellant used a large axe to smash the back door to gain access. He entered the property and removed tools, valued at around $2,000.
The appellant put these in the trunk of Mr McCormack’s car. The two returned home

GIBSON v NEW ZEALAND POLICE [2017] NZHC 1975 [18 August 2017]

and the stolen property was stored in the appellant’s room. The next day they sold some of the items. The rest of the items were recovered on 1 September when the Police executed a search warrant of their house. The appellant was charged with burglary.

[3] On 29 January 2017, whilst on bail for the burglary, the appellant and Mr Pascoe drove in Mr Pascoe’s car to a property. Mr Pascoe removed railway sleepers from the garden and loaded them into the vehicle. The two then drove to a nursery where the appellant helped Mr Pascoe unload the sleepers and sell them. They returned to the property and Mr Pascoe loaded further sleepers which he sold to the nursery too. The total value of the sleepers was $800. This led to the receiving charge against the appellant.

[4] On 30 January, the appellant and Mr Pascoe drove to another property where together they removed two railway sleepers. These were again sold to the nursery. These sleepers were valued at less than $500. This led to the theft charge.

[5] The appellant subsequently pleaded guilty to all three charges.

District Court decision

[6] The Judge noted from the pre-sentence report that the appellant was a heroin addict who said he stole the items to pay for his addiction. He was assessed as being at a high risk of re-offending but declined an invitation to attend treatment. Given the appellant’s lack of motivation to address his drug use and the fact he had re-offended while on bail, the probation officer recommended imprisonment.

[7] When looking at the burglary, the Judge referred to the relevant factors set out by the Court of…

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.

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Details

Case: [2017] NZHC 1975
Decision Date: 18 August 2017

CaseChat Overview and Summary

Gibson, the appellant, appealed the sentence imposed by the District Court on the basis that the sentence was manifestly excessive. The District Court had sentenced Gibson to 22 months imprisonment, following his guilty pleas to one charge each of burglary, theft and receiving stolen property. Gibson argued that the seven-month uplift for the receiving and theft charges was too harsh, that the five-month uplift for previous convictions and offending while on bail was also too harsh and that the sentencing Judge did not grant adequate credit for mitigating factors such as remorse and time on bail. The Court found that while the starting point for the sentence was appropriate, the uplifts were too high, taking into account comparable cases and the principle of parity. The Court found that an uplift of three months for the other offending, and three months for previous convictions and offending while on bail, with a discount of 27 per cent for mitigating factors, resulted in an end sentence of 17 months and two weeks imprisonment. This was sufficiently different to warrant granting the appeal and imposing a different sentence.

In summary, Gibson's appeal was allowed, and the sentence of 22 months imprisonment was substituted with a sentence of 17 months and two weeks imprisonment. Gibson's arguments regarding the excessiveness of the uplifts and the inadequate credit given for mitigating factors were partially accepted by the Court. The Court found that the uplifts were too high, and that the discount for mitigating factors was appropriate. The Court imposed a new sentence that took into account the appropriate uplifts and discount, resulting in a sentence of 17 months and two weeks imprisonment.

Orders