Gibson v Police - [2012] NZHC 315

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI 2012-443-002 [2012] NZHC 315

BETWEEN GEORGE ALEXANDER GIBSON Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing: 27 February 2012

Counsel: P M Keegan for Appellant
S Law for Respondent

Judgment: 28 February 2012

JUDGMENT OF HEATH J

This judgment was delivered by me on 28 February 2012 at 2.00pm pursuant to Rule 11.5 of the High
Court Rules
Registrar/Deputy Registrar

Solicitors:
Crown Solicitor, New Plymouth
Counsel:
P M Keegan, New Plymouth

GIBSON V NEW ZEALAND POLICE HC NWP CRI 2012-443-002 [28 February 2012]

The appeal

[1] Mr Gibson appeals against an effective sentence of two years imprisonment, imposed by Judge Roberts in the District Court at New Plymouth on 13 February
2012. The sentence followed Mr Gibson’s conviction, on pleas of guilty, to two charges involving physical violence. The first was wounding a male complainant with intent to injure. The second involved an assault on a female.

[2] While there were arguable grounds of appeal based on an excessive starting point and failure to take account of all mitigating factors, Mr Keegan, for Mr Gibson, primarily advanced the appeal on the grounds that the sentencing Judge erred in imposing an inappropriate sentence. He submits that imprisonment was unnecessary to respond to the offending and that either home detention or a combination of community detention and community work would have sufficed.

The facts

[3] At about 11pm on Thursday 25 August 2011, Mr Gibson was at a bar in New Plymouth, socialising with a friend. He and his friend left a short time after and went to a carpark. Mr Gibson got into the driver’s seat of his car. His friend was in the front passenger seat.

[4] The male complainant had been drinking at the same bar. He left in close proximity to Mr Gibson, with a group of friends. He was mildly intoxicated.

[5] As the male complainant walked towards his vehicle he stumbled, falling against the back of Mr Gibson’s car. Mr Gibson and his friend alighted to find out what had happened. It appears a dent may have been caused to the rear of the car. The male complainant apologised for his actions and the two men re-entered their vehicle.

[6] The male complainant and his associates, including his sister, got into their van. The male complainant was sitting in the rear passenger seat, behind the driver.

His sister (the female complainant) sat to his left. As the vehicle reversed, Mr

Gibson’s friend got out of the vehicle and kicked the front of the van.

[7] The van continued to reverse, turning into Devon Street, heading east. Mr

Gibson and his friend drove out of the carpark and followed the van.

[8] Mr Gibson’s vehicle tail-gated the van. The male complainant, on looking around, realised the car was so close that he could not see the headlights. At the request of the male complainant, the driver pulled over to the side of the road to let…

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: [2012] NZHC 315
Decision Date: 28 February 2012

CaseChat Overview and Summary

George Alexander Gibson appeals against a sentence of two years imprisonment imposed by the District Court at New Plymouth. The sentence followed Mr Gibson's conviction, on pleas of guilty, for two charges of physical violence. The first involved wounding a male complainant with intent to injure. The second involved an assault on a female. The appeal primarily challenges the appropriateness of the sentence of imprisonment. The court must decide whether home detention or a combination of community detention and community work would have been a more suitable response to the offending. The sentencing judge considered community-based sentences but concluded that imprisonment was necessary to denounce the conduct and deter future offending. The court of appeal has emphasised that home detention should be seen as a real option to imprisonment. It must be determined whether the sentencing goals can be achieved by a sentence other than imprisonment. The seriousness of the offending, including the use of a concealed weapon and the unprovoked nature of the attack, supports the judge's conclusion that imprisonment was necessary. However, the court also considers Mr Gibson's previous good record, his remorse, and the offer of reparation. The appeal is allowed, and the sentences are set aside. In substitution, Mr Gibson is sentenced to a term of home detention of eight months on the wounding charge, concurrent with a term of two months on the assault charge.

Orders