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 allowed for the length of time (two years, four months) Mr Wibrow was subject to bail;

(b)Mr Wibrow should have received a further reduction in the sentence for the reasons set out in the psychologist’s report which confirms he was suffering from post traumatic stress disorder (PTSD);

(c)       the Judge failed to take into account Mr Wibrow’s contributions to the

community;

(d)      the  Judge  failed  to  take  into  account  Mr  Wibrow’s  prospects  for

rehabilitation.

[7]      Mrs Wright also suggested that Mr Wibrow might be regarded to have played a relatively minor role in the drug offending so that s 9(2)(d) of the Sentencing Act

2002 might be engaged and lead to a further reduction.  However, as discussed with Mrs Wright during the appeal hearing, Mr Wibrow was sentenced on the basis of the summary of facts.  That recorded his culpability and the extent of his involvement. The Judge was well aware of that and it was factored into the starting point.   No further adjustment either to the starting point or by way of reduction is warranted for that factor.

Preliminary points

[8]      The jurisdiction for this Court to hear the appeal arises from s 247, Criminal Procedure Act 2011.  The Criminal Procedure Act was not intended to change the previous approach to sentence appeals.2   An appellate Court does not start afresh nor simply substitute its own opinion for the original sentence.  It must be shown there is an error which has led to a manifestly excessive (or inadequate) sentence.

Restrictive conditions of bail

[9]      Mr Wibrow was not subject to electronically monitored bail.  Sections 9(2)(h) and  9(3A)  of  the  Sentencing Act  2002  do  not  apply.    The  Judge  nevertheless considered the length of time that Mr Wibrow had been on bail, but was not prepared to give any further discount for that.   I agree with the District Court Judge’s assessment that no further credit was required for the time on bail.  Even a restrictive

24 hour curfew will not always lead to a reduction.3   While Mr Wibrow was subject

to bail for a considerable period of time there were admitted breaches of that bail and

there were also, from time to time, variations to that bail at Mr Wibrow’s consent.

[10]     Mr Wibrow was subject to a night time curfew at the approved residence. Mrs Wright sought to suggest that Mr Wibrow missed employment opportunities as a sound engineer as a result of the night time curfew.  The pre-sentence report does not note any such employment prior to arrest.  The only evidence of it comes from the references presented at the sentence hearing which refer to Mr Wibrow working part- time for a company supplying PA and sound systems for stage events, and assisting in a recording studio.  There is no evidence that required him to be absent at night.  I also note that Mr Wibrow told the pre-sentence report writer that he was in receipt of a living payment through Work and Income and made no mention of the sound recording work.  Further Mr Wibrow did not make any application for variation of bail to enable him to work.

[11]     For all those reasons the Judge was correct not to reduce the sentence further for the length of time Mr Wibrow was on bail.

2      Tutakangahau v R (2014) 27 CRNZ 291 at [26]–[35].

3      Daniels v R [2015] NZCA 295; and Laloni v R [2015] NZCA 55.

Psychologist’s report

[12]     The Judge did not expressly refer to the psychologist’s report but I accept Mr Walker’s submission for the Crown that there is nothing of any substance in the report or other material presented on Mr Wibrow’s behalf to justify a reduction in sentence for Mr Wibrow’s psychological difficulties or the PTSD diagnosed. A clear causal link between the condition and the offending is required.4    There is no such link established in this case.  The report itself is general and speculative as to the possibility of any link.  In particular I refer to the following:

Mr Wibrow’s return to offending in 2011 after an 18 year break and his subsequent involvement with the Black Power gang and the index offending may  be  related  to  a  beating  he  received  in  mid  2012  –  when  he  was apparently attempting to break up fighting – which left him with post traumatic impacts (anxiety, depression).     Mr Wibrow’s use of methamphetamine as a method for managing his moods when he found the prescribed antidepressant medication unhelpful was also likely to have been a contributing factor to his poor decision making, judgments and choices at that time and to his increased involvement with antisocial others – perhaps in part motivated by wanting to influence his sons away from gang life.

Overall, Mr Wibrow tended to peripheralise his involvement in the index offending on both counts.

[13]     As  Mr Walker  submitted  the  report  only  shows  that  Mr Wibrow’s  poor

decision making may have been linked to his methamphetamine use.

[14]     No further reduction is required on the basis of the psychologist’s report.

Remorse

[15]     Mrs Wright referred to the comments in the pre-sentence report where the writer suggested Mr Wibrow expressed appropriate remorse.  But that is contrary to the attitude reported by the psychologist after a more in-depth interview.   The psychologist reported a lack of insight about his behaviour, particularly with regard to his involvement in the offending.  No further reduction was required for remorse

in this case.

4      R v Mohamed [2007] NZCA 170; and R v Sabuncuoglu [2008] NZCA 448.

Contribution to the community

[16]     Evidence of the contribution to the community came from various references

supplied on Mr Wibrow’s behalf. They are helpful but the Judge was aware of them.

Rehabilitation

[17]     Mrs Wright emphasised that Mr Wibrow’s rehabilitation was an important consideration.  That was related to her submission that the appropriate end sentence was one of home detention.  However (quite apart from the fact that home detention could never be in issue in this case as the end sentence would always be more than two years) as the District Court Judge recorded, a sentence of imprisonment was required as the purposes for which the sentence was being imposed could not be achieved by any less restrictive sentence or combination of sentences.

[18]     While I accept Mrs Wright’s submission that the receiving charge in 2011 could be put to one side and that Mr Wibrow has had a lengthy period without offence, the gang involvement, the possession of the firearm and the serious quantity of methamphetamine that was involved in the conspiracy, all support an end sentence of imprisonment.

Result

[19]     For the above reasons I am satisfied that the sentence imposed by the District

Court Judge was the appropriate sentence. The appeal is dismissed.

Venning J