Ibell v The Queen - [2013] NZCA 514

IN THE COURT OF APPEAL OF NEW ZEALAND

CA449/2013
[2013] NZCA 514

BETWEEN	JESSE LEE IBELL Appellant
AND	THE QUEEN Respondent

Hearing:	15 October 2013
Court:	White, Venning and Andrews JJ
Counsel:	C J Tennet for Appellant H W Ebersohn for Respondent
Judgment:	23 October 2013 at 2.30 pm

JUDGMENT OF THE COURT

ATime is extended for the appellant’s appeal to be brought.
BThe appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Andrews J)

Introduction

On 8 November 2012, the appellant appeared for sentence in the District Court at Hamilton on 12 charges, including three charges or burglary, one charge of attempted burglary, and three charges of receiving stolen property. Judge R G Marshall sentenced him to five years’ imprisonment and ordered that he serve a minimum period of imprisonment (MPI) of two years and six months.[1] The appellant has appealed against sentence on the grounds that both the sentence and the MPI are manifestly excessive.
[1]R v Ibell DC Hamilton CRI-2012-019-1559, 8 November 2012.
The appeal was filed out of time and the appellant seeks an extension of time to appeal. The Crown does not oppose the application. Accordingly, time is extended for the appeal to be brought.

Background

On 14 September 2007, the appellant was sentenced to four years’ imprisonment on a number of charges, including ten of burglary. On 22 June 2011, he was sentenced to three months’ imprisonment, cumulative upon the four-year term, on a charge of wounding with intent to injure.
Between 27 January and 10 March 2012, the appellant committed two offences of burglary, three offences of receiving, and the offence of driving while forbidden (the January-March offending). At the time, he was subject to post‑release conditions.
On 30 April 2012, the appellant was sentenced to four months imprisonment on five charges of breaching post-release conditions, during the period from 5 January to 16 February 2012.
On 7 June 2012, the appellant escaped from Waikeria Prison with Wayne Holmes. On the same day, the appellant unlawfully took a motor vehicle in Kihikihi, committed a burglary at an address at Pukekohe, and attempted to commit a burglary at another address in Pukekohe. On 10 June 2012, the appellant was in custody at the Whangarei Police Station. He broke the leg of a metal chair. On 26 June 2012, the appellant was in custody at Springhill Prison, and caused damage to his cell (the June offending).

District Court sentencing

For the January-March offending, on a stand-alone basis, the Judge adopted a starting point of three years, six months’ imprisonment, uplifted by six months “to recognise [the appellant’s] recidivist burglary convictions and pattern of behaviour”.[2] For the June offending, again on a stand-alone basis, the Judge adopted a starting point of two years, six months’ imprisonment, uplifted by six months for “[the appellant’s] previous behaviour by way of burglaries as a personal aggravating factor”.[3] The Judge then reduced the total seven year starting point on a totality basis, “as there will be some double…

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.

Continue reading Ibell v The Queen

Details

AGLC: Ibell v The Queen [2013] NZCA 514
Case: [2013] NZCA 514
Decision Date: 23 October 2013 at 2.30 pm

CaseChat Overview and Summary

Jesse Lee Ibell, the appellant, has appealed against his sentence of five years imprisonment and a minimum period of imprisonment (MPI) of two years and six months, imposed by the District Court at Hamilton. The appeal was initially filed out of time, but the Court granted an extension for the appeal to be brought. The appellant argues that both the sentence and the MPI are manifestly excessive. The Crown does not oppose the extension of time for the appeal.

The legal issues before the Court were whether the sentence and MPI imposed on the appellant were manifestly excessive. The appellant argued that the sentence should be on par with that of his co-offender, that the starting point for the January-March offending was manifestly excessive, and that the sentence imposed was a deterrent sentence, thus making a MPI inappropriate.

The Court found that there was no lack of parity between the sentences imposed on the appellant and his co-offender, as the charges and their severity differed between the two cases. The Court also found that the starting points for both sets of offending were appropriate, given the aggravating features and the appellant's history of convictions. The Court held that the end result of the sentence, taking into account the discount for the appellant's guilty pleas, was not manifestly excessive for the appellant's offending. Finally, the Court rejected the argument that a MPI was inappropriate, as the Judge had appropriately considered the relevant factors in imposing the MPI, including the need to protect the community.

The Court dismissed the appeal and upheld the sentence and MPI imposed by the District Court.

Orders