Gibson v Police HC Rotorua CRI-2007-470-20

[2007] NZHC 1736

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2007-470-20

DEREK VINCE GIBSON

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         18 May 2007

Appearances: Mr N M Dutch for Appellant

Mr C H Macklin for Respondent

Judgment:      18 May 2007

(ORAL) JUDGMENT OF LANG J [on appeal against sentence]

Solicitors:

Mr N M Dutch, Tauranga

Crown Solicitor, Rotorua

DEREK VINCE GIBSON V NEW ZEALAND POLICE HC ROT CRI-2007-470-20  18 May 2007

[1]      On 2 April 2007 Mr Gibson appeared in the District Court at Tauranga on four charges.    The first of these was a charge of driving whilst disqualified on 19

October 2006.   The second was a charge of interfering with a motor vehicle on 21

December 2006.   The third was a charge of driving whilst disqualified on 15 March

2007.    The final charge was a breach of bail, the details of which are unknown to me.

[2]      The circumstances of the offending are unremarkable.    The first charge of driving whilst disqualified arose from an incident when Mr Gibson was seen driving a motor vehicle in Tauranga.     He was stopped because he was recognised as a disqualified driver.   He admitted that he was driving whilst disqualified but offered no explanation for doing so.

[3]      The charge of interfering with the motor vehicle arises as a result  of an incident that occurred late in the evening of 21 December 2006.   On that evening Mr Gibson and an associate drove to Aerodrome Road in Mt Maungaui.    Mr Gibson went up to a motor vehicle that was parked outside the Tauranga Aero Club.    He proceeded to smash the driver’s window and then leaned inside the vehicle.   At this point he was disturbed by a security guard who was patrolling the area and he and his associate decamped from the scene in their vehicle.   The security guard followed and Mr Gibson and his associate were involved in a motor vehicle accident whilst endeavouring to evade the security guard.

[4]      The incident on 15 March 2007 arose again when he was stopped whilst driving in Tauranga.

[5]      His Honour Judge Bidois took the lead offence as being the charge of driving whilst  disqualified on 19  October  2006.     He noted that  this was Mr  Gibson’s seventh  conviction  for  that  type  of  offending  and  adopted  a  starting  point  of

15 months imprisonment on it.

[6]      On the charge of unlawfully interfering with a motor vehicle the Judge said that on its own it would warrant a sentence of around nine months imprisonment.

He reduced that term significantly and sentenced Mr Gibson to three month imprisonment cumulative on the sentence imposed in respect of the first charge of driving whilst disqualified.

[7]      On the second charge of driving whilst disqualified the Judge sentenced Mr Gibson to three months imprisonment cumulative on the sentence imposed on the charge of unlawfully interfering with a motor vehicle.    The Judge convicted and discharged Mr Gibson on the charge of breach of bail.

[8]      In  all,   therefore,  Mr   Gibson  received   sentences   totalling   16   months imprisonment in respect of all of his offending.     The Judge also remitted fines totalling approximately $2,700 that were outstanding at the time that he sentenced Mr Gibson.

[9]      Mr Gibson now appeals to this Court against the sentences that were imposed upon him.

Grounds of appeal

[10]     On  appeal  Mr  Dutch  submits  that  the  starting  point   of  15   months imprisonment in relation to the first charge of driving whilst disqualified was too high.   He then submits that, when viewed in totality, the overall end sentence of 16 months imprisonment is also too high or manifestly excessive.   Finally, he contends that the Judge ought to have granted Mr Gibson leave to apply to serve his sentence by way of home detention.

Decision

Sentence

[11]     I deal first with the starting point that the Judge adopted in relation to the first charge of driving whilst  disqualified.     That  needs,  of course, to  be considered against Mr Gibson’s past record.   Mr Gibson has an unenviable record of offending involving motor vehicles.     He has seven previous convictions for driving whilst disqualified or driving whilst his licence was suspended or revoked.    He also has

convictions for driving with excess breath alcohol on two occasions.     Although detailed submissions have not been made regarding the sentencing levels that are currently utilised in the District Court for repeat offenders who drive whilst disqualified, it does not seem to me that the starting point of 15 months in the present case was not significantly untoward.     Even if it  was, however, the situation is redressed by the manner in which the Judge dealt with the other two charges.

[12]     In sentencing Mr Gibson to a cumulative term of imprisonment  of three months on the charge of interfering with a motor vehicle the Judge was, in my view, being  extraordinarily lenient.      Mr  Gibson  has  several previous  convictions  for similar offending.    Of importance, for present purposes, is the fact that on 4 April

2006  he was sentenced  to  various terms of imprisonment  on numerous  charges involving dishonesty and theft from motor vehicles.    These had occurred during a period between 5 February 2006 and 14 February 2006.

[13]     Mr Gibson must have known when he was released from prison on those charges that the Court would view future similar offending in a serious light.   The fact that he was prepared to brazenly become involved in similar offending in December 2006, which must have been shortly after his release from prison, suggests that Mr Gibson has no insight to his offending and that he is likely to remain a persistent offender.     For that reason a cumulative sentence of three months imprisonment can only be regarded as lenient.

[14]     Similarly, the Judge adopted a lenient approach in dealing with the second charge of driving whilst disqualified.    That offending occurred not only whilst Mr Gibson was on bail in respect of the earlier charges, but also in circumstances where he had pleaded guilty to the earlier charge of driving whilst disqualified and was on bail awaiting sentence on that charge.

[15]     For this reason I am satisfied that the second charge was at least as serious as the first charge, and probably more so.   It would therefore have justified a starting point of at least 12 months imprisonment or more.   A cumulative sentence of three months  imprisonment  clearly  cannot  be  seen  as  being  manifestly  excessive  in relation to this charge.

[16]     Similarly, when one stands back and views the sentences that were imposed upon Mr Gibson in totality, they cannot be regarded as excessive.     An overall sentence of 16 months imprisonment in respect of three separate sets of offending such as these appear to me to be entirely reasonable.

[17]     For these reasons I do not accept that Mr Gibson has shown that the learned District  Court  Judge was in error in the way in which  he  imposed  the  various sentences upon him.

Home detention

[18]     The remaining issue relates to the Judge’s refusal to grant Mr Gibson leave to apply to serve his sentence by way of home detention.   In support of his submission that leave ought to have been granted, Mr Dutch referred me to the decision in R v Barton [2002] NZLR 459 and to the more recent decision of Heath J in Wikeepa v New Zealand Police HC TGA CRI 2007-470-0003 9 February 2007.

[19]     In that case Heath J allowed an appeal against the decision of a District Court Judge not to grant leave to allow the appellant to serve his sentence by way of home detention.    Heath J took the view that, whilst the offending in the case before him was serious, it was nevertheless not necessarily offending that would be likely repeated if home detention was granted.

[20]     In the present case the Judge declined to grant Mr Gibson leave to serve his sentence by way of home detention.    During that part of his sentencing remarks in which  he  imposed  sentence  in  relation  to  the  first  charge  of  driving  whilst disqualified, the Judge said:

Leave to apply for home detention will be denied  given your  continued offending and the risk you pose to the community.

[21]     Section 97(3) of the Sentencing Act 2002 requires the Court to take into account the nature and seriousness of the offence, the circumstances and background of the offender and any relevant matters in the victim impact statement in the case. It has also been said that the discretion given to the sentencing Court by s 97(3) calls for the exercises of broad discretionary judgment and that appellate courts will only

interfere if there has been a wrongful or improper exercise of this discretion:   R v

Hakiwai CA19/03 30 May 2003.

[22]     In the present case there can be no doubt that Mr Gibson’s offending was serious, and that it also occurred in circumstances where he could rightly be called a repeat, or recidivist, offender.    The background to the offending also includes the fact  that  when Mr  Gibson  was  sentenced  to  various  terms  of  imprisonment  on

4 April 2006 he was denied leave to apply for home detention.

[23]     I consider that the circumstances of Mr Gibson’s present offending are such that he does pose a threat to the community and that there would be a real possibility that if he was granted home detention he would offend in a like manner again.   For this reason I consider that the Judge was correct in declining to grant Mr Gibson leave to apply for home detention, notwithstanding the brevity of his comments in relation to that aspect of his decision.

Result

[24]     None of the grounds advanced in support of the appeal persuade me that the sentence that was imposed by Judge Bidois should be disturbed on appeal.     The appeal is accordingly dismissed.

Lang J