Gilbert v Police

[2013] NZHC 2547

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2013-404-000204 [2013] NZHC 2547

BETWEEN

MICHAEL GENE GILBERT

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	30 September 2013
Counsel:	M P Hislop for Appellant R J Y See for Respondent
Judgment:	30 September 2013

JUDGMENT OF COLLINS J

Introduction

[1] The question I have to consider is whether a sentence of two and a half years’ imprisonment imposed on Mr Gilbert for injuring with intent to injure1 was in all the circumstances clearly excessive or inappropriate.2

Application for adjournment

[2]  At the commencement of the hearing of the appeal Mr Hislop advised that he had recently received instructions from Mr Gilbert to apply for an adjournment so as to enable a further psychiatric report to be obtained. In my view a further report is not necessary. There is already on file reports from Dr Hutchinson and Dr Heed. Dr Heed’s report dated 7 March 2013 is particularly comprehensive and concludes that although Mr Gilbert has a history of disadvantaged background he does not suffer a mental disorder.

1       Crimes Act 1961, s 189(2).

2       Summary Proceedings Act 1957, s 121(3)(b).

GILBERT v NEW ZEALAND POLICE [2013] NZHC 2547 [30 September 2013]

Context

[3]    The question posed in paragraph [1] of this judgment arises in the context of an appeal from a sentence imposed on Mr Gilbert by Judge Fraser on 30 April 2013.

[4] The charge arose from an argument between Mr Gilbert and the complainant which culminated in Mr Gilbert flinging boiling water at the complainant. The boiling water landed on the complainant’s back and caused her back to blister and swell.

[5] In sentencing Mr Gilbert, Judge Fraser referred to Mr Gilbert’s prior convictions for violent offending dating back to 1997 and the fact that he had amassed a total of 81 convictions since 1984.

[6] Judge Fraser described Mr Gilbert as being a person at high risk  of reoffending and that he showed no remorse. This assessment was based upon the pre-sentencing report and the psychiatric report. The pre-sentence report is particularly disquieting. It says, amongst other things:

Mr Gilbert is assessed as being at a high risk of re-offending and of harm to others due to his consistent history of offending in a violent way, his lack of remorse towards the victim and volatile behaviour ... He explained how he ... waited for the water to boil as he intended on throwing boiling water at the victim’s face. Mr Gilbert stated “I wanted to stab her to death”.

Sentencing guidelines

[7] It is accepted that the guidelines set out by the Court of Appeal in Nuku v R apply where the offending involves an intent to injure.3 It is also accepted by Mr Hislop, counsel for Mr Gilbert, that Mr Gilbert’s offending was serious and that his conduct fell within band two of Nuku, thereby triggering a starting point of up to three years’ imprisonment.

Sentence appealed from

[8] Judge Fraser adopted a starting point of two and a half years to which he added a further nine months to reflect Mr Gilbert’s previous convictions.

3       Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39.

[9]   Judge Fraser then deducted ten per cent to recognise the time that Mr Gilbert had spent on a 24 hour curfew. A further 12 per cent was deducted to reflect Mr Gilbert’s guilty plea. This produced the end sentence of 30 months’ imprisonment.

Grounds of appeal

[10]    Mr Hislop submits:

(1)that   the   correct   starting   point   should   have   been   two   years’ imprisonment.

(2)that a 15 per cent discount should have been given to reflect the time Mr Gilbert spent under 24 hour curfew.

(3)that a 10 to 15 per cent discount for Mr Gilbert’s guilty plea was warranted.

(4)that the end sentence should have been 18 months’ imprisonment.

Analysis

[11]     In assessing whether or not the sentence imposed by Judge Fraser was clearly excessive or inappropriate, I have:

(1)first assessed the appropriateness of the starting point adopted by Judge Fraser; and then

(2)considered whether or not Judge Fraser gave appropriate increases and discounts when reaching his end sentence.

Starting point

[12]     In my assessment  a  starting point  of two  and  a half  years  was  entirely appropriate.

[13] Throwing boiling water at a victim is very serious criminal behaviour. The starting point of two and a half years was possibly lower than a starting point that could have been adopted.4

[14] I also believe Mr Gilbert’s actions in walking into the kitchen to obtain the boiling water demonstrated some level of determination to inflict very serious injury to the complainant.

Uplift

[15] Mr Hislop acknowledges that Mr Gilbert’s previous offending justified “a degree of sentencing uplift”. During the course of oral submissions Mr Hislop suggested an uplift of six months’ imprisonment would have been appropriate to reflect Mr Gilbert’s previous offending.

[16] In my assessment, Mr Gilbert’s extensive and disturbing history of violent offending justified the nine month uplift applied by Judge Fraser when sentencing him.

Mitigating factors

[17] Judge Fraser was fully aware of Mr Gilbert’s personal circumstances as set out in the report prepared by Dr Heed and pre-sentence reports.

[18] Judge Fraser opted to give Mr Gilbert a ten per cent discount to reflect the time he had spent when subject to a 24 hour curfew. There is no basis for the suggestion that the ten per cent discount for the time which Mr Gilbert was subject to a 24 hour curfew was in any way inadequate.

[19] Mr Hislop submits that Mr Gilbert should have received  a  discount  of between 10 to 15 per cent for Mr Gilbert’s guilty plea. In fact a 12 per cent discount was given which was well within the range that was appropriate.

4       Police v Tule HC Rotorua AP87/02, 10 October 2002, R v Worden CA111/99, 8 July 1999 and

R v Matete CA100/06, 17 October 2006.

Conclusion

[20]     Having carefully assessed the sentence imposed, I can find no basis for criticising either the approach taken by Judge Fraser or the end result.

[21]     The question posed in paragraph [1] is answered by me concluding that the sentence imposed on Mr Gilbert was clearly not excessive or inappropriate.

[22]     The appeal is dismissed.

D B Collins J

Solicitors:

Crown Solicitor, Auckland for Respondent