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 Mr Gibson pass.  Instead, he pulled in behind the van.

[9]      Mr Gibson opened the door and grabbed a steel pipe, about 40cm long, situated to the right of his vehicle.  Concealing the pipe behind his back in his right hand, he and his associate got out of the vehicle.  The female complainant walked over to Mr Gibson, asking him to leave.  He tried to push past her.

[10]     When the male complainant intervened to help his sister, Mr Gibson pushed her, causing her to fall onto the road.  He then approached the male complainant and, using the pipe he had concealed behind his back, struck him once on the forehead. That caused him to fall to his knees.  A gash to his head, measuring about 2.5cm, opened from which the male complainant bled profusely.  At that stage Mr Gibson and his friend got back into their vehicle and left.

[11]     The gash required stitches.  The male complainant also suffered a black eye. Medical attention was required.   The female complainant received grazes on her elbow from the fall.  She too sought medical attention.

[12]     When police officers located and spoke to Mr Gibson, the pipe was still in his vehicle, beside the driver’s door.  No explanation was offered for following the male complainant’s vehicle and stopping behind it, but it was suggested that the female complainant was pushed as she was preventing him from getting to his friend who was being beaten by the male complainants.  Any suggestion of defence of another was abandoned at the time the pleas of guilty were entered.

[13]     Mr Gibson was, at the time of his arrest, in employment.  He is 33 years old. He  lives  locally  and  has  not  previously  appeared  before  the  Court.    Having emigrated to New Zealand in 2009, he and his family (including his parents, who now live in the Waikato) are at risk of losing their permanent resident status, as a result of the conviction.

[14]     The probation officer who prepared the pre-sentence report characterised Mr Gibson as “extremely remorseful for the offending”.   In addition, Mr Gibson paid voluntarily reparation, totalling $1200, immediately after the sentencing.

Sentencing in the District Court

[15]     After setting out relevant facts, the sentencing Judge referred to photographs that  I  have  also  viewed.     Judge  Roberts  described  the  injury  to  the  male complainant’s forehead as “graphic”; as also was “the blackness apparent around his eye”.  The graze to the female complainant’s elbow was a lesser injury but described by the Judge as “not a trifle”.

[16]   Judge Roberts canvassed the possibility of community based sentences, involving a combination of community work, community detention and reparation. However, he said:1

Home detention is not advanced given the lack of any rehabilitative need, ....

[17]     In calculating the term of imprisonment that might otherwise be imposed, the Judge used aggravating factors identified by the Court of Appeal in R v Taueki2 as a guideline.  He said:

[13] ... The assessment on the presence of the aggravating factors would see the following factors nonetheless established:

(a)       Actual violence and the use of the weapon.   Even the presence of that photographed pipe would be difficult to rationalise at a confrontation.    Why  it  should  be  in  a  car,  again,  is  difficult  to fathom.  But its immediacy to the assault is pertinent.  You took a weapon into a situation where violence was likely.

1 R v Gibson DC New Plymouth CRI 2011-043-3227, 13 February 2012 at para [10].

2 R v Taueki [2005] 3 NZLR 372 (CA).

(b)      The second aggravating factor is pre-meditation.   This, too, is abundantly demonstrated.   Fuelled by liquor and a sense of aggrievement you and another pursued your victim.  If, and indeed it can  only have  been  no more  than  a  body fall  onto  your  car,  if damage had occurred, you had the opportunity to confront, to secure what it was you need, details, and thereafter depart.  Such, however, was your aggression the complainant was tail-gated to the degree the lights of your vehicle could not be seen from the victim’s car so close to it did you travel.  You sought confrontation and you secured it.

(c)       The third aggravating factor would be the consequential harm.   I accept from the photographs, one forehead gash to the head of the victim.   The black eye, too, is a physical manifestation, but the consequential pain and discomfort must also be recognised.  For the moment I am prepared to accept, on a perusal of the photographs though, physically the injuries fall within the moderate range.

(d)       Fourthly, however, this was an attack to the head.  That was an area where I am satisfied you sought to land your blow.

[18]     On that basis, the Judge adopted a starting point of two  years and nine months imprisonment, to accommodate the “entirely unnecessary offence against the female”  and  reached  a  provisional  sentence,  taking  account  of  all  aggravating factors, of three years imprisonment.   A credit of one year was allowed for the reparation offered (four months) and a full 25% credit for a relatively early guilty plea.3   This left an end sentence of two years imprisonment.  The assault attracted a concurrent sentence of three months imprisonment.

[19]     In considering whether home detention or a combination of community based sentences was appropriate to respond to the offending, Judge Roberts said:4

[19]      ...  I consider the offending serious, so serious, that I do not consider home or community detention to be appropriate.  I do not consider that that sentence will address the sentencing principles of holding you accountable, denouncing your conduct and deterring you.  I do not consider that any other sentence would properly reflect the elevated level of your offending.

[20]     The nature of the offence also brought into account the “three strikes” law. A

first warning was given to Mr Gibson.5

3 Hessell v R [2010] NZSC 135.

4 R v Gibson DC New Plymouth CRI 2011-043-3227, 13 February 2012 at para [19].

5 Ibid, at para [21].

[21]     As previously indicated, while Mr Keegan challenged the prison sentence imposed, the real issue, on appeal, concerns the appropriateness of the sentence of imprisonment.   In written submissions, Mr Keegan continued to advance a combination  of  community  based  sentences,  in  preference  to  home  detention. During the course of the hearing, argument was focussed on the home detention option, for reasons that will become apparent.

[22]     There appears to have been some misapprehension in the District Court as to the appropriateness of a sentence of home detention when no rehabilitative needs had been identified.   It is not clear that the Judge erred in that regard given the observations made concerning the seriousness of the offending.6    However, in contrast, the Judge had earlier noted that the “pertinent issue, ..., pertaining to a possible sentence of home detention is the fact that no rehabilitative need is identified”.7

[23]     On a number of occasions, the Court of Appeal has emphasised that home detention should be seen as a real option to imprisonment.  The primary question is whether the sentencing goals of denunciation, deterrence, accountability and safety of the community cannot be achieved by a sentence other than imprisonment.8   That question must be considered in the context of Parliament’s intention that the Court have regard “to the desirability of keeping offenders in the community as far as that is practicable and consonant with the safety of the community”.9

[24]     Dealing with a serious incident of domestic violence in R v DCA253/2008),10

the Court of Appeal observed:

[65]      Home detention is a hybrid sentence, regarded as neither custodial nor community-based.  It is not listed among the community-based sentences set out in s 44 of the Act.  On the other hand, s 80A(5) makes it clear that an

6 Ibid, at para [19] set out at para [19] above.

7 Ibid, at para [17].
8 Sentencing Act 2002, s 16(2)(d).
9 Ibid, s 16(1).

10 R v D(CA253/2008) [2008] NZCA 267.

offender who is sentenced to home detention is not in custody while that sentence is served.

[66]      In  a  case  like  this,  the  sentencing  Judge  is  required  to  form  a judgment on whether imprisonment is necessary or home detention can respond adequately to the seriousness of the offending.  The closer one gets to the dividing line, the more difficult it becomes to articulate reasons for preferring one approach to the other.  In such cases, the view of a sentencing Judge  from  the  jurisdiction  in  which  crimes  of  the  type  in  issue  are frequently tried assumes greater weight.  He or she will be in a much better position than an appellate Court to determine which type of offending falls on one side of the line or another.  The broader the base of similar offending a particular Judge sees, the more likely it is that the chosen sentencing response will be appropriate.

[25]     The objectives of a home detention sentence were considered by the Court of

Appeal in R v Hill.11   Delivering the judgment of the Court, Arnold J said:

[33] The sentence of home detention reflects a perception that society’s interests are better served in some cases by the imposition of restrictions on liberty through home detention rather than through imprisonment. The explanatory   note   identifies   the   “acknowledged   advantages”   of   home detention as including “low rates of reconviction and re-imprisonment, high compliance rates, and positive support for offenders’ reintegration and rehabilitation”: at 5.

[26]     More recently, the Court of Appeal considered the circumstances in which an (otherwise) appropriate sentence of imprisonment might be “commuted” to home detention: Doolan v R.12     With reference to the dissenting judgment of William

Young  P,  in  R  v  Vhavha,13   the  Court  confirmed  that  there  was  nothing  in  the

Sentencing Act  to  suggest  a  presumption  for  or  against  the  commutation  of  a sentence from imprisonment to home detention, either generally or in respect of particular types of offence.14   Stevens J, for the Court of Appeal in Doolan, said:

[38] ...  Those provisions of the Sentencing Act do not accord greater weight to factors such as denunciation or deterrence than the personal circumstances of  the  offender.  The  relative  weight  to  be  given  to  the  principles  and purposes of the Act is left to be determined by the sentencing judge in all the circumstances of the case.

[39] In terms of appellate review of such sentencing decisions, the court on appeal   must   focus,   as  with   other   appeals   against   sentence,   on   the identification of error, having regard to the discretionary nature of the decision.  (footnotes omitted)

11 R v Hill [2008] 2 NZLR 381 (CA) at para [33].

12 Doolan v R [2011] NZCA 542.
13 R v Vhavha [2009] NZCA 588 at para [29].

14 Ibid. See also Osman v R [2010] NZCA 199 at para [20].

[27]     In  those  circumstances,  was  it  open  to  the  Judge  to  determine  that imprisonment was necessary to meet the relevant sentencing goals?

[28]     Plainly, the Judge was right to regard this as a serious unprovoked attack involving gratuitous violence. The use of a weapon, concealed in Mr Gibson’s car, is concerning.    The  nature  of  what  appears  to  be  something  akin  to  “road  rage” suggests that Mr Gibson over-reacted significantly to the situation with which he was faced.   However, alcohol appears to have played little role in the offending.   Mr Gibson was not charged with any drink driving offence.

[29]     On the other side of the ledger is Mr Gibson’s previous good record, his remorse and his offer of reparation in a not insignificant sum, having regard to his earning capacity as a carpenter. The hardship that might be caused to his family if he were not able to work and the risk of his permanent resident status being revoked are consequences which, with respect, I consider that the sentencing Judge gave inadequate weight.  When balanced, it seems to me that there was no need to impose a sentence of imprisonment in order to respond to the particular offending, as the

sentence of home detention was sufficient, for reasons identified in R v Hill.15

[30]     I suspect  that  the District  Court Judge’s  attention  to  the choice between imprisonment  or  home  detention  was  deflected  by  the  suggestion  that  home detention might, in some way, be inappropriate through the absence of any rehabilitative needs and the emphasis on community work and community detention, neither  of  which  could  respond  appropriately  to  serious  offending  of  this  type. While it is not clear that was a determinative factor, I am left with the impression that it may have taken on some significance in the Judge’s assessment of which sentence was more appropriate.

[31]     In my view, an inappropriate sentence was imposed.  Home detention ought to have been  imposed.   This was an  out of character first offence,  to which  a

sentence of home detention is likely to respond as well as would imprisonment.

15 R v Hill [2008] 2 NZLR 381 (CA) at para [33], set out at para [25] above.

[32]     In  my view,  a  sentence  of  12  months  home  detention  would  have  been justified, but I intend to impose a term of eight months to reflect the time that Mr Gibson has spent in custody, between sentencing in the District Court and determination of the appeal.

Result

[33]     For the reasons given, the appeal is allowed and the concurrent sentences imposed in the District Court 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.  The sentence shall be served at 328

Mangorei Road, New Plymouth.  Standard conditions are imposed.

[34]     On release from imprisonment, Mr Gibson shall travel directly to the home detention address and meet with a probation officer, no later than 4pm on Wednesday

29 February 2012, for the purpose of commencing the sentence of home detention.

P R Heath J

Delivered at 2.00pm on 28 February 2012.