Gibbons v Police [2013] NZHC 2136 (2 October 2013)

Last Updated: 18 October 2013

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI 2013-419-22 [2013] NZHC 2136

KAIYA IAN GENE GIBBONS Appellant

v

NEW ZEALAND POLICE Respondent

Hearing:	21 August 2013
Counsel:	R M McLeod for Appellant J Tarrant for Respondent
Judgment:	2 October 2013

ORAL JUDGMENT OF RONALD YOUNG J (Appeal against sentence and order recalled and reissued 2 October 2013)

[1] Mr Gibbons appeals against a total sentence of two years and four months’ imprisonment for 15 offences spread over almost 12 months. He says that the sentence of imprisonment was manifestly excessive. In addition he was disqualified for two years and six months which, he says, was also excessive in the circumstances. Reparation orders were made which, he says, were not justified.

[2] The offences were as follows:

(a) one of possession of instruments; (b) unlawfully interfering with a car;

GIBBONS v POLICE [2013] NZHC 2136 [2 October 2013]

(c) one charge of theft of a motor vehicle;

(d) being found without excuse in an enclosed yard; (e) three charges of unlawfully taking motor vehicles; (f) three charges of breaches of protection order;

(g) cultivating cannabis and possession of cannabis; (h) two of driving while disqualified; and

(i) the provision of false information to the police.

[3] At sentencing the Judge helpfully summarised the facts of the offending at para [1] and [2] of her decision:1

[1] Mr Gibbons, you are 25 years of age and you are here today for sentence having pleaded guilty and been convicted on a number of matters. In date sequence they are:

(a) On 27 February 2012, unlawful taking a motor vehicle, which carries a maximum penalty of seven years’ imprisonment. The motor vehicle was valued at $5000. It had been stolen four days earlier and it had false number plate on it when you were driving it.

(b) On 2 March 2012 two charges of unlawful taking of a motor vehicle, to the value of $6500. That involved taking the same motor vehicle on two occasions on the same day. You had been arrested in that vehicle. When released on bail you simply accessed the same vehicle, which was waiting to be moved by police and returned to its lawful owner, and you drove from Tairua all the way back to Hamilton. You were subsequently arrested again and granted bail. There was also one charge of driving while disqualified. That carries a maximum penalty of three months’ imprisonment.

(c) On 11 April 2012 there was a further charge of driving whilst disqualified. It carried a maximum of three months’ imprisonment and again you were granted bail.

1 At [1](a) and [2].

(d) On 14 June 2012 there was a breach of protection order. It carries a maximum penalty of six months’ imprisonment. You were again granted bail.

(e) On 20 June 2012 there was a charge of possession of instruments for conversion. It carries a maximum penalty of one year. I make an order for destruction of those instruments. Also one of unlawfully interfering with a motor vehicle, one of unlawfully in an enclosed yard and one of possession of cannabis. They were all related. You had entered onto a private property. You had then broken into a vehicle and tried to get it started. You damaged the door, the ignition and the surrounds. You fortunately were either apprehended before you could get it started or you were unable to get it started. Each of those last three matters carries a maximum of three months’ imprisonment. Again you were granted bail.

(f) On 12 and 13 February 2013 there were two charges of breach of protection order. They each carry a maximum penalty of six months’ imprisonment. Also one of cultivation of cannabis; it also carries six months. Again you were granted bail.

(g) On 7 February 2013 there was one theft of a motor vehicle.

Along with two others you stole this vehicle. You were driving it from Te Awamutu. You stole it at 10 o’clock in the

morning from outside retail premises in Te Awamutu and drove it to Hamilton, where you had an accident with

another vehicle. You left that vehicle. You were given a lift by unsuspecting visitors to the country. Nearly every panel in the vehicle was damaged and it was uninsured. The

driver of the second vehicle, which whom you had the accident, a 67 year old woman, was not physically injured

but suffered from shock.

[2] Finally you were remanded in custody and you are for sentence on all matters today. When I look at all of the unlawful taking of the motor vehicles, the value of the damage and loss was well over $20,000. I have asked about payment of reparation and it is accepted that reparation ought to be suspended whilst you are in custody, repayment can commence upon your release. You will need to report for a repayment programme assessment within four weeks of your release.

[4] However, some additional information about the relevant facts needs to be added, in my view, to the Judge’s summary.

[5] As to the offending in February 2012, there was significant damage to one of the motor vehicles taken and the charges involved the taking of a car on two occasions. The appellant entered private property to take the motor vehicles. The loss was $4,800 and $400 worth of personal items. In addition, the victim says he

lost $650 in wages. At that stage the appellant drove a vehicle while he was disqualified.

[6] On 11 April, just over a month after being stopped for driving while disqualified, he was stopped and ultimately charged again.

[7] As far as the June 2012 offending was concerned, again there was significant loss and damage caused to that vehicle and the appellant entered onto private property to take the car. Entry onto private property to unlawfully take motor vehicles is an aggravating feature.

[8] In February 2013 there was the theft of a motor vehicle. There does not appear to be any reparation report prepared but there would have been significant loss. The car that was stolen was valued at $3,700 and the summary of facts says that nearly every panel was damaged. Further, there may have been damage to the other vehicle that the appellant hit.

[9] As far as the cannabis cultivation charges are concerned, as I understand it, plants were found in a wardrobe. This was relatively minor offending.

[10] As far as the unlawful taking of the van in February 2012 was concerned, this was the situation where a van and carpet laying equipment were taken. The owner of the van, a carpet layer had to buy new equipment. When the van was recovered with minor damage much but not all of the carpet laying equipment had been stolen. The value of the equipment was some $8,000 and wages lost by the owner of the van of

$1,000 to $1,500.

[11] In addition, the summary of facts provided by the sentencing Judge did not specifically refer to the breaches of the protection order. The June 2012 breach of the protection order occurred because the appellant apparently refused to attend a programme designed to deal with the reasons why the protection order was required in the first place.

[12] On 12 and 13 February there were two further charges of breaches of protection order. The victim and the appellant met with the appellant’s young son. An argument occurred and there was then an abusive response by the appellant. He said that he hated the victim, wanted to kill her, threatened to assault her and there was other aggressive abusive behaviour. The next day there were abusive text messages also from the appellant to the victim.

[13] At sentencing the Judge identified the value of the damage and loss to the various motor vehicles at over $20,000. She ordered reparation of $6,000. This, the Judge said, did not go anywhere near the real damage but the Judge accepted that most of the offending was triggered by the appellant’s drug habit. She said also that much of the offending had occurred while the appellant was on bail and there was as she said considerable economic loss.

[14] The Judge approached the sentencing on the basis that there were offences which could be grouped together where there were concurrent sentences within a group but cumulative between them. She took a starting point of two years and three months for the unlawful taking of the motor vehicles, increased that by six months by virtue of the fact that the offending occurred while the appellant was on bail and by virtue of the fact that the appellant had previous convictions for unlawfully taking a motor vehicle.

[15] She then increased the sentence with respect to the breaches of protection order, possession and cultivation of cannabis, noting there were two convictions for drug dealing, increasing the sentence by a further five months to two years, nine months.

[16] As far as the two driving while disqualified offences were concerned, she imposed a two month cumulative sentence. In assessing mitigation the Judge took account of the appellant’s guilty plea and the fact that he had some insight into his offending.

[17] The appellant says that the sentence of two years and four months imprisonment was excessive and that a proper starting sentence would have been in the vicinity of one year. The appellant says that a further lengthy disqualification could not be justified and that the Judge had failed to adequately take into account the lack of seriousness of the facts at sentencing. As far as reparation was concerned, the Judge had simply wrongly assessed the amount involved.

Reparation

[18] I deal with reparation firstly. The total loss assessed by the Judge at somewhere near $20,000 was based on the summaries of fact and the victim impact statements. It would have been preferable for the Judge to have obtained a reparation schedule or ordered a reparation report for a full assessment of reparation to have been obtained. But it is clear from reading the facts that substantial damage was done to a number of vehicles. For example, in one the unlawful taking of a motor vehicle almost $8,000 worth of carpet laying equipment was either taken or had to be replaced. In another there was a loss of some $4,800. And yet another, a

$3,500 vehicle was seriously damaged.

[19] If the appellant wished to dispute the assessment of damage, then there was ample opportunity for him to do so at the District Court. I accept that Mr Gibbons is unemployed and that he has in prospect a sentence of imprisonment and then a rehabilitation programme. But it is clear from reading the probation report that he has considerable skills and it is difficult to understand other than lack of motivation, why he has not to date obtained employment. The fact that a defendant has no employment will often mean that a reparation order should not be made. But in this case, there was, in my view, a basis for doing so. Mr Gibbons has stressed throughout that he is motivated to change. One of the ways in which he can illustrate that is meeting reparation payments which are less than a third of the actual loss suffered.

[20] Each of the victim impact reports have provided detailed information as to the loss suffered. I accept that there is some confusion about precise amounts and exactly those who should receive any reparation orders. But I am satisfied that overall the reparation order was justified and not manifestly excessive.

[21] I, therefore, reject this ground of appeal save to make this order. Given the order for $6,000 reparation (but the uncertainty as to its allocation amongst the victims) the appropriate way is for the Crown in consultation with the police to file in this Court and in the District Court a schedule identifying what reparation is properly payable to each victim, proportioning the reparation ordered so that each of those who have suffered loss are compensated in proportion to the loss that they have suffered.

Disqualification

[22] I now turn to the driving while disqualified portion of the appeal.

[23] The appellant pleaded guilty to two charges of driving while disqualified. He as a record of disqualification. He was convicted of driving while disqualified in October 2011; he had a breath alcohol conviction in February 2011 and an earlier one in 2005. This is a bad driving record but not the worst I have seen. Obviously the Judge in imposing the disqualification period, had in mind that part of it would be served while Mr Gibbons was in prison and it would have little affect or bite. But on the other hand it seems likely, without certainty, that Mr Gibbons will be released after serving one third of his sentence to go to drug rehabilitation. I am satisfied that the overall disqualification period of two and a half years is manifestly excessive.

[24] On the three charges of unlawfully taking a motor vehicle, one charge of theft of a motor vehicle, the appellant was disqualified for a period of two and a half years. On the driving while disqualified charges he was disqualified for period of

12 months. The disqualification for two and a half years is quashed. I impose instead on the unlawful taking and theft charges 18 months disqualification. On each charge concurrent. That 18 month period is also concurrent on the 12 month disqualification of the driving whilst disqualified charges.

Sentence manifestly excessive?

[25] To assess whether the overall sentence was manifestly excessive, it can be convenient to reassess the appropriate sentence based on the facts and the aggravating and mitigating features, and then compare that with the sentence imposed by the Judge.

[26] This was a somewhat complicated sentencing because there was a large range of offences, none of which immediately stood out as much more serious than others, spread over a 12 month period.

[27] My approach to the sentencing is this. I combine all of the offending involving the theft, unlawful taking and other offending relating to motor vehicles. There are, I think, seven such offences arising from this offending, the theft of a car, three of unlawfully taking them, one of unlawfully interfering with them, one of possession of instruments clearly intended to break into cars, and one of unlawfully on premises as a precursor to taking a car.

[28] This offending caused something like $18,000 to $20,000 worth of damage. It involved, in the unlawful taking charges, the appellant going onto private property to steel vehicles. It was often accompanied by a form of joy riding which damaged the vehicle taken and sometimes caused other damage. It happened persistently over the 12 month period. Given the loss, the persistent offending and the inherent seriousness, I think a start sentence in the range of two and a half years’ imprisonment for this offending could easily be justified.

[29] There are two driving while disqualified charges and one of false information which fall to be considered together. The appellant was perhaps fortunate that some of the offending did not allege previous offending increasing the maximum penalty. But that is the way the offending happened. The appellant is entitled to be sentenced on the basis of the actual charges. An increase in the two and a half year sentence by two months for driving while disqualified is appropriate.

[30] The breaches of protection order also require clear condemnation. As with other areas of Mr Gibbons’ life, he simply ignored the Court orders to attend the programme. His breaches of the protection order were vicious, aggressive abusive. I accept that there was no violence but there were serious threats that would have been extremely frightening for the young woman. This offending justifies a further two month increase.

[31] The possession of cannabis and cultivation charges, were relatively minor and although justifying a prison sentence would not, in my assessment, justify a cumulative sentence. This deals with the offending.

[32] Much of the offending occurred while the appellant was on bail and shortly after the appellant had been sentenced for other unlawful taking charges. An uplift of six months from the start sentence is justified for the fact that the offending was while on bail and repeat offending. These were aggravating features.

[33] This makes a total start sentence in the range of three years and four months’ imprisonment. Totality must also be taken into account. Looked at overall I consider a proper start sentence in the range of three years would adequately fit all offending. The appellant appears to have received a significant discount for his guilty pleas. At 25 per cent, that would be generous, it reduces the start sentence to two years and three months’ imprisonment, well within the range actually imposed by the Judge here.

[34] I would in the circumstances be prepared to make any deduction for the rehabilitation programme. I accept that there are some signs that the appellant is motivated to change. The original probation report of August 2012 said that Mr Gibbons had a significant drug problem. This was followed up by a further report of December 2012 when it is said Mr Gibbons had stopped using drugs that he was on the right track and was said to be a “star” pupil.

[35] Mr Gibbons at that stage said he had never been violent or even aggressive towards his former partner. Regretfully that changed, it seems, given his actions in February 2013 with regard to the breaches of protection order and given the offending of stealing and seriously damaging a car.

[36] For the reasons given, therefore, I am not satisfied that the sentence was manifestly excessive. That aspect of the appeal will be dismissed.

_{Ronald Young J}

Solicitors:

R M McLeod, Barrister, Hamilton

Crown Solicitor, Hamilton