R v Gibson [2017] NZDC 18041 (16 August 2017)

Last Updated: 16 July 2018

EDITORIAL NOTE: CHANGES MADE TO THIS JUDGMENT APPEAR IN [SQUARE BRACKETS].

IN THE DISTRICT COURT AT TAURANGA

CRI-2016-070-003501

[2017] NZDC 18041

THE QUEEN

v

DEREK VINCE GIBSON

Hearing:	16 August 2017
Appearances:	S Davison for the Crown W Nabney for the Defendant
Judgment:	16 August 2017

NOTES OF JUDGE T R INGRAM ON SENTENCING

[1] Mr Gibson, you are for sentence today at the age of 35 years on a number of drugs charges. I gave you a sentence indication, which you accepted, which was that there be a maximum high point of seven and a half years with appropriate discount for your plea and an appropriate minimum period of imprisonment.

[2] I have received a probation report on you. I have seen more glowing reports but I have got to be realistic, Mr Gibson. It seems to me the evidence is just absolutely overwhelming that you have been an addict for a long time and you have been doing what you have been doing to feed your addiction. The only way you are ever going to get free of your addiction is by making up your mind that you are going to deal with it.

R v DEREK VINCE GIBSON [2017] NZDC 18041 [16 August 2017]

[3] Your record is long and relatively poor. You have a large number of prior convictions which justify an uplift in your sentence.

[4] The circumstances of your apprehension and the seriousness of the matter is well-known to you and I do not propose to go in to detail. You were apprehended and an examination of text and phone traffic shows a good deal of drug sales activity, offering to supply and conspiracy to supply substantial quantities of methamphetamine and you were found with more than a pound of cannabis. That is just a continuation of a pattern which I see from your record. I count your prior drug-related convictions as totalling some 38 and you have been to prison for this sort of thing previously.

[5] The pre-sentence report that I have received says that you are at high risk of further offending. I could not agree more given your history and the circumstances here.

[6] As against that, Mr Gibson, you and I both know that you are 35 years of age and one of these bright sunny days you are going to wake up and decide that hanging around in prison is not really the best thing you can do with your life. If you ever decide that I have little doubt that you have got the talent and ability to make a go of it in society at large. But as a methamphetamine addict you are very vulnerable to relapse towards this sort of thing. It seems to me there is at least a prospect in the coming period when you are in prison that you may well make your mind up about getting yourself free of your drug addiction. If you do, you know very well that there are things that can be done in prison and you can advance your case in front of the Parole Board if you make suitable arrangements prior to your Parole Board hearing.

[7] The Crown submitted that the appropriate starting point here would be something in the order of five to six years for the methamphetamine with an uplift of a year for the cannabis and another year for your prior record. Your counsel has sought to persuade me that an end sentence of six and a half years would be appropriate.

[8] The authorities are straightforward. They include R v Te Rure.1 Another leading case is Jarden v R,2 all dealing with the issues raised in R v Fatu.3 Everybody accepts that this is a band 2 case and the driving factor here is not so much the quantities involved but the totality of the circumstances and the fact that you have got a substantial record for this sort of thing.

[9] The Sentencing Act 2002 requires me to hold you accountable and promote a sense of responsibility in you. I need to denounce your conduct, deter you and others and protect the community. You are a man who badly needs rehabilitation, Mr Gibson. It is to be hoped that you will figure that out this time around and try and make a substantial effort to free yourself of the drug addiction which has blighted your life so far. It is a pretty serious type of offence and as I say it falls fairly and squarely within band 2 of R v Fatu. I need to be consistent with sentencing levels imposed on others in similar circumstances. A sentence of imprisonment is required for this sort of offending.

[10] There are some aggravating factors here. You are still subject to a Court sentence. This is premeditated behaviour and of course you have got that record that I have spoken about. You are entitled to proper credit for your guilty plea. That was not delivered at the earliest possible opportunity and, accordingly, I cannot make it as long as I might have had you pleaded to the charges earlier on.

[11] I consider that an appropriate starting point here would be six years and six months’ imprisonment on the totality of the offending, including the cannabis charges. I consider that an uplift of 12 months to account for your prior record is required. That takes me to seven and a half years (or 90 months). I would allow 15 percent discount – for ease of calculation I round that up to 14 months from 13 and a bit – and I allow you a discrete discount of 14 months for your guilty plea. That produces an end sentence of six years and four months.

1 R v Te Rure [2007] NZCA 305; [2008] 3 NZLR 627

2 Jarden v R [2008] NZSC 69; [2008] 3 NZLR 612

3 R v Fatu [2005] NZCA 278; [2006] 2 NZLR 72 (CA

[12] On all of the methamphetamine charges you will be convicted and sentenced to six years and four months’ imprisonment.

[13] On the charge of possession of cannabis for supply, you will be convicted and sentenced to imprisonment for a period of 12 months to be served concurrently.

[14] In relation to the cannabis conspiracy, you will be convicted and discharged.

[15] Counsel had addressed me on the question of a minimum period of imprisonment. I consider, having regard to your record and the nature and quantity of drugs involved here, that a minimum period of imprisonment is required, particularly by reference to your prior record. Neither counsel have sought to dissuade me from the proposition that a 50 percent minimum period of imprisonment is appropriate. I am satisfied in terms of the statute that 50 percent is the appropriate level of the minimum period. Accordingly, on each of these charges you will be subject to a 50 percent minimum period of imprisonment.

[16] The net result for you, therefore, is six years and four months’ imprisonment and a 50 percent minimum period of imprisonment, that is, three years and two months.

[17] You will be seeing the Parole Board in due course, Mr Gibson, as you have before. I just invite you to think long and hard about what you are going to say to them when you get there and the best thing to say to them usually is, “I’ve done [every] single course that I can whilst I have been in prison this time and I want to go to a full- time residential rehab programme on release.” If you are able to say that the Board may very well be interested in discussing release on parole with you at that point. If you are not able to say that I should be surprised if they are terribly interested in discussing it with you but that will be a matter for them. I am simply passing on my take on what I have learnt in all the years of doing this job.

[18] There will be an order for the destruction of the scales, the zip lock bags and the ZTE mobile phone.

T R Ingram

District Court Judge