Gibson v R

[2015] NZCA 57

IN THE COURT OF APPEAL OF NEW ZEALAND

CA151/2014
[2015] NZCA 57

BETWEEN	DEREK VINCE GIBSON Appellant
AND	THE QUEEN Respondent

Hearing:	5 March 2015
Court:	Harrison, Fogarty and Dobson JJ
Counsel:	W T Nabney for Appellant K J Cooper for Respondent
Judgment:	11 March 2015 at 9.30 am

JUDGMENT OF THE COURT

The appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Dobson J)

Introduction

1. On 6 March 2014, Derek Gibson was convicted and sentenced by Judge Ingram in the Tauranga District Court on a total of 37 convictions for drug offences.  The sentence on the more serious of the convictions was three years and nine months imprisonment.[1]  Mr Gibson has appealed the sentence as being manifestly excessive.

District Court

[1]R v Gibson DC Tauranga CRI-2013-070-1022, 6 March 2014.

1. The offending involved 19 counts of offering to supply methamphetamine, three of supplying methamphetamine and one of possession of methamphetamine for supply.  The Judge treated the amount of methamphetamine involved as no “more than five grams”.[2] 

   [2]At [8].

2. In addition, there were 12 convictions for offering to supply cannabis, one of possession of cannabis for supply and one of supplying cannabis.  These convictions involved a total of slightly less than 10 ounces of cannabis.  The Judge imposed a concurrent sentence of one year imprisonment on the cannabis convictions.

3. The Judge treated the methamphetamine convictions as within band one of R v Fatu and adopted a starting point of three years imprisonment.[3]  Mr Nabney accepted that starting point was appropriate. 

   [3]R v Fatu [2006] 2 NZLR 72 (CA).

4. The Judge then attributed various uplifts for aggravating features.  A substantial majority of the offending had occurred whilst Mr Gibson was serving a sentence of home detention.  The Judge considered a 12 month uplift was justified for that factor.

5. Next, the Judge considered an uplift to reflect the cannabis offending.  He considered it would justify a sentence of two years imprisonment on its own.  However, when coupled with the other offending, a modest uplift of six months was settled on.  A last uplift of six months was nominated for Mr Gibson’s prior convictions. 

6. Then, standing back and assessing the totality of the offending, the total of five years imprisonment was treated as too high, and was reduced to four and a half years.  Thereafter, the Judge allowed a credit of nine months on account of relatively late guilty pleas, arriving at the final sentence of three years and nine months. 

Decision

1. Mr Nabney argued that the 12 month uplift on account of the offending having occurred whilst on home detention was excessive.  Further, this was particularly so when Mr Gibson’s prior history of convictions attracted a separate increase of six months.  Mr Nabney argued that there was an element of double‑counting when the sentence was increased because offending had occurred while Mr Gibson was serving a sentence of home detention, when the offending that led to the home detention sentence was part of the prior criminal record that attracted a separate six month increase. 

2. It is trite that, in sentence appeals, it is the appropriateness of the end sentence that matters.  Appellants cannot make headway by criticising component parts of a sentencing process when the individual components can legitimately be seen differently by different judges.  It is the final outcome when all components have been taken into account that is to be assessed against any plea that it is manifestly excessive. 

3. For instance, Mr Nabney acknowledged that it would be difficult to criticise this sentencing if the Judge had adopted a starting point of three and a half years (which would still be well within band one of Fatu), and uplifted that by six months to reflect the offending having occurred whilst Mr Gibson was on home detention.  Certainly, a starting point uplifted for that aggravating feature to a proposed sentence of four years imprisonment is unexceptional and could not be criticised.

4. Similarly, Mr Nabney’s criticism that there was a doubling up in the recognition of aggravating features when the Judge also added a further six months for Mr Gibson’s previous conviction cannot make the overall sentence manifestly excessive.  The discrete uplifts used were open to the Judge, especially as they were applied at a point in his reasoning before standing back and assessing totality. 

5. Having regard to all the arguments, we are not satisfied that the final sentence was manifestly excessive. 

Result

1. The appeal is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent