R v Gibbons HC Auckland CRI 2009-090-9224
[2010] NZHC 1450
•27 July 2010
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2009-090-009224
CRI-2009-090-009216
THE QUEEN
v
ALLEN GRAEME GIBBONS
Charges: Aggravated burglary x1; Kidnapping x1;
Offering to supply a Class A drug methamphetamine x1
Plea: Guilty
Appearances: C Paterson for Crown
L Brown for Prisoner
Sentenced: 27 July 2010
Aggravated burglary – 4 years’ imprisonment; Kidnapping – 1 year’s imprisonment concurrent;
Offering to supply methamphetamine – 6 months’ imprisonment cumulative on the 4 years’ imprisonment.
Total – 4 years, 6 months’ imprisonment
SENTENCING NOTES OF VENNING J
Solicitors: Crown Solicitor, Auckland
Copy to: L Brown, Auckland
R V GIBBONS HC AK CRI-2009-090-009224 27 July 2010
[1] Allen Graeme Gibbons you are for sentence in this Court having pleaded guilty to one charge of aggravated burglary, one of kidnapping and one of offering to supply a Class A drug methamphetamine. The maximum sentence for the burglary and kidnapping charges is 14 years’ imprisonment. The maximum sentence for the offering to supply methamphetamine is life imprisonment but counsel rightly accept that in the circumstances of this case the most serious offending is the aggravated burglary and kidnapping offending.
[2] On 22 January 2009 you and an associate went to Mr Auld’s home. You were known to Mr Auld and accordingly when you turned up at the house he offered you a coffee. You responded by producing a sawn-off rifle and pointed it in his face. You made it clear during the time that you were there that it was loaded. You then detained Mr Auld and his flatmate while your associate searched the address. The flatmate managed to escape. Then, as you and your associate were leaving the address another victim, a Mr Gray approached your vehicle. Mr Gray was then made to walk to the top of the driveway with the sawn-off rifle pointed at him. He was kept there and had to remain with you while you were looking for your car keys.
[3] On 9 March 2009 the police found you in a car at an address that they had been called to. On searching the car they found a point bag containing methamphetamine. Further enquiries led to your pleading guilty to one charge of offering to supply methamphetamine. The police located evidence that you had sent a text message to a Mr Mills asking if he wanted to buy a “dola bag” or a “2 dola bag” of P. It was accepted that the quantities referred to were a point or .2 of a gram of methamphetamine.
[4] You pleaded guilty at depositions to the aggravated burglary and kidnapping charges. I accept counsel’s submission that there were a number of negotiations with the prosecution before those pleas were entered and that practically it was only at depositions they were able to be entered although you were prepared to plead guilty at an earlier stage. You have also pleaded guilty to the offering to supply methamphetamine. Again I note and accept counsel’s submissions that although that came at a later date you were facing an indictment with five counts and you have been discharged in relation to four of them. Again there was a degree of discussion
between counsel to lead to that resolution so I accept that you are entitled to more of a discount for those guilty pleas than otherwise might appear from the record as to when they were entered.
[5] The pre-sentence report raises a number of matters of concern to the Court. At the age of 46 you have a lengthy history of criminal offending and a lot of it violent offending. It seems from the report that your recent offending has been driven or caused in large part by your dependence on methamphetamine. You spoke of using methamphetamine daily prior to your remand and spending all your wages on the drug. It seems that you would work hard for a period of time, save money from your wages to buy a large quantity of P and then take time off work just to indulge or binge on it. You have been addicted to drugs in one form or another since the age of 14. Your offending has had an effect on your family and those close to you. Until your arrest you lived at home with your parents, both of whom are elderly. Your parents have felt intimidated from time to time by those people associated with drugs that have been around to their property and you yourself have been assaulted as a result of your association with such people.
[6] You explained the kidnapping and aggravated burglary charges on the basis that a person had taken money from you and you had gone to the address to get some information about where that person might have gone to with your money. You considered you were going to get back what was yours.
[7] Obviously Mr Gibbons you must accept that there is no way that you can take things into your own hands in that way.
[8] As noted it is a matter of concern that you have a number of previous offences for violence. You have spent quite lengthy times in prison in the past for such violent offending. You accept you have a propensity for violence and the probation officer notes that while you are motivated to address your offending you lack complete insight into it and that, coupled with your addiction to drugs, presents as a barrier to your future rehabilitation.
[9] You have responded well to courses in the past, including Community, Alcohol and Drug Services and Narcotics Anonymous and Alcoholics Anonymous courses but obviously you have relapsed back into drug taking and offending associated with it. Again in this case counsel has provided the Court with evidence that you have completed a number of courses successfully whilst you have been in custody on this occasion. You are a conundrum in some ways Mr Gibbons because you seem to be intelligent enough to respond well and achieve when you are in the regime of prison and have a degree of supervision but when you are left to your own devices out in the community you fall back into drug and other serious offending.
[10] The probation officer notes that you are at high risk of reoffending because of that drug offending. The short point is that the only person that can change that Mr Gibbons is you and at the age of 46 you are getting close to the point of no return.
[11] In sentencing you I am directed to take account of the purposes and principles of the Sentencing Act. That means I need to fix a sentence which will:
• hold you accountable for the offending you have been involved in;
• promote responsibility;
• denounce your conduct; and
• deter you and others from engaging in similar conduct in the future. [12] In terms of the principles I am required to have regard to the gravity of the
offending and your culpability. I am also required to consider the consistency with other sentences imposed by the Court for similar offending and to take into account the effect of the offending on the victims. The victim impact reports show that your offending, particularly the aggravated burglary and kidnapping had a serious impact on the people that you threatened.
[13] The Crown have also referred to a number of aggravating features associated with the offending, namely that you were not there on your own, you were there with
others. You went into Mr Auld’s home. You threatened the use of a firearm. You made it clear the firearm was loaded. There was also a degree of planning to what you did. There was also of course the theft of some property associated with it although I accept it was limited to a jacket, some other clothing and a phone.
[14] The Crown submit that an appropriate start point for that offending is in the range of five to six years and that there must be an uplift for the methamphetamine offending before giving you credit for your guilty pleas. The Crown also submit an uplift is appropriate for your past record of violent offending.
[15] Your counsel has submitted strongly that a start point of no more than five years should be taken and that an end sentence of closer to four years would still be appropriate and perhaps the Court might be minded to impose a lesser sentence than that.
[16] In sentencing you I have had regard to a number of other cases. I refer to them briefly. Of course I refer to the case of R v Mako,1 which is a Court of Appeal decision which sets out a number of factors the Court must consider in relation to aggravated robbery but it is accepted such principles are appropriate to aggravated burglaries such as this case.
[17] I have also had regard to the cases of R v Patrick;2 R v Drewett;3 and R v Gore4 and R v Lafai,5 all Court of Appeal decisions involving aggravated burglary. The starting point in those cases range from three years nine months to five years six months.
[18] Each case is of course different and you are to be sentenced on your own facts but those cases give the Court a background to the appropriate start point for sentence. In this case I accept that there was no actual violence inflicted by you in the course of the offending but the firearm was used to threaten. I also accept that it is not a case necessarily of you breaking into the home because Mr Auld was known
1 R v Mako [2002] 2 NZLR 170.
2 R v Patrick [2008] NZCA 115.
3 R v Drewett [2007] NZCA 48 at [19].
4 R v Gore CA414/05, 2 March 2006.
5 R v Lafai CA272/04, 1 November 2004/
to you and in fact as I have noted offered you a coffee at the outset. Nevertheless this was serious offending and calls for a start point of the aggravated burglary of four and a half years’ imprisonment but when the associated kidnapping, albeit brief, is to be taken into account, the start point must be five years’ imprisonment for that offending.
[19] You then have your previous record that I have referred to. You have nine previous convictions for violent offending, including assault with a weapon, three counts of male assaults female and threatening to kill and common assault charges for convictions. That shows that you have propensity to facilitate offending using weapons and threats of violence and actual violence. The Court is conscious not to double-count offending but the stage has come for you Mr Gibbons where that counts against you and there must be some uplift. There will be an uplift of four months for that.
[20] I accept counsel’s submission, however, in relation to this offending that you are entitled to a discount of approximately 25 per cent for your guilty plea in the circumstances that you entered them. That reduces the sentence for this aggravated burglary and kidnapping offending to four years. I am then obliged to deal with the offer to supply methamphetamine. I accept on its own it was a very modest amount and a start point in the range of nine to 12 months might be appropriate given the small amount involved. It may well be in certain circumstances that such offending might in fact lead to a community sentence. That is not appropriate in your case but nevertheless, taking everything into account, I am satisfied in this case the criminality is recognised by a further uplift of six months to take account of your guilty plea in relation to that offending.
[21] Would you please stand Mr Gibbons. Mr Gibbons, the end result is that on the charge of aggravated burglary you are sentenced to imprisonment for four years. On the kidnapping charge you are sentenced to imprisonment for one year. They are concurrent. On the charge of offering to supply methamphetamine you are sentenced to imprisonment for six months. That is cumulative on the four. The total term is four years, six months.
[22] You have asked in the course of your pre-sentence report for fines to be remitted. I do not have a report to enable me to do that but you should, with the assistance of counsel, make the appropriate application Mr Gibbons so that when you are released from prison you will have a clean slate and can start afresh. Stand
down.
Venning J
0