Wibrow v The Queen - [2016] NZHC 480

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

CRI-2016-416-000008 [2016] NZHC 480

BETWEEN
IAN ANDREW WIBROW

Appellant

AND

THE QUEEN Respondent

HearingbyAVL: 21 March 2016

Appearances:

N Wright for Appellant
C Walker for Respondent

Judgment:

21 March 2016

JUDGMENT OF VENNING J

This judgment was delivered by me on 21 March 2016 at 4.00 pm, pursuant to Rule 11.5 of the High
Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors: Nicola Wright, Gisborne
Elvidge & Partners, Napier

WIBROW v THE QUEEN [2016] NZHC 480 [21 March 2016]

Introduction

[1] Mr Wibrow pleaded guilty to a charge of conspiring to supply methamphetamine and a charge of unlawful possession of a pistol. Judge W P Cathcart sentenced him to 14 months’ imprisonment on each charge.1 The sentences were cumulative. The total sentence was 28 months’ imprisonment. The imposition of the 28 months’ imprisonment followed a sentence indication before Judge Adeane. Judge Adeane had given an indication of a total sentence of 30 months’ imprisonment. Mr Wibrow appeals against the sentence imposed by Judge W P Cathcart.

Background

[2] The summary of facts records that in relation to the conspiracy to supply methamphetamine Mr Wibrow telephoned a co-offender Ms Edwards on 21 October
2013 to advise that the price for one kilogram of methamphetamine to be sourced from China was currently $400,000 and that it could be available later that week. Over the next two days Mr Wibrow was observed by the police visiting the address of Ms Edwards and Mr Hohipa (another co-offender) on a number of occasions. On
23 October 2013 Mr Wibrow called an associate in Auckland and advised that “they just want a big amount for Christmas” and that they were hoping to get it cheaper. As the Judge observed Mr Wibrow was involved in the crime of conspiring or agreeing to supply methamphetamine at a very serious level.

[3] The charge of unlawful possession of a pistol followed the execution of a number of search warrants in Gisborne. During the search of a vehicle Mr Wibrow was driving the police found a sawn-off .22 rifle. Mr Wibrow admitted the bag was his but initially declined to comment further in relation to the firearm.

The District Court decision

[4] The Judge took the same starting point as that indicated by Judge Adeane on the sentence indication but increased the discount for the guilty plea from 15 to 20
per cent given Mr Wibrow’s co-offender Mr Hohepa’s successful appeal on that

1 R v Wibrow [2016] NZDC 1391.

aspect of his sentence. Mrs Wright accepted the 20 per cent reduction was appropriate.

Grounds of appeal

[5] Mrs Wright confirmed that no challenge was taken to the starting point but

rather the appeal was focused on Mr Wibrow’s personal circumstances.

[6] The appeal is directed at reducing the sentence to one where home detention was available. Mrs Wright submits the appropriate end sentence in this case was one of home detention. She submits in particular:

(a) a discount should have been…

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 Wibrow v The Queen

Details

AGLC: Wibrow v The Queen [2016] NZHC 480
Case: [2016] NZHC 480
Decision Date: 21 March 2016

CaseChat Overview and Summary

In the case of Wibrow v The Queen, the appellant, Ian Andrew Wibrow, contested the sentence imposed by the District Court Judge, W P Cathcart, who sentenced him to 28 months' imprisonment for conspiring to supply methamphetamine and unlawful possession of a pistol. Wibrow's counsel, Nicola Wright, appealed against the sentence, arguing that it should be reduced to a sentence involving home detention, contending that various mitigating factors were overlooked by the District Court Judge. These factors included the length of time Wibrow was on bail, his psychological condition, his contributions to the community, and his prospects for rehabilitation. Additionally, counsel suggested that Wibrow's role in the drug offense might warrant a further reduction under section 9(2)(d) of the Sentencing Act 2002.

The High Court, presided over by Justice Venning, examined the grounds of appeal, starting with the District Court Judge's refusal to further reduce the sentence for the time Wibrow spent on bail. The Court found that Wibrow was not subject to electronically monitored bail and that the breaches of bail and variations to bail at Wibrow's consent negated any additional discount. The psychologist's report was also considered, but the Court determined that there was no clear causal link between Wibrow's PTSD and the offending, and thus, no further reduction was warranted. The Court further noted that Wibrow exhibited a lack of insight into his behavior, which precluded a reduction for remorse. Finally, while acknowledging Wibrow's contributions to the community and his rehabilitation prospects, the Court concluded that a sentence of imprisonment was necessary to achieve the purposes of the sentence, particularly in light of Wibrow's gang involvement and the serious nature of the offenses.

In light of the above, the Court upheld the sentence imposed by the District Court Judge and dismissed the appeal, finding no merit in the arguments presented by Wibrow's counsel.

Orders