Gebbie v The Queen

[2019] NZCA 540

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

 CA302/2019
 [2019] NZCA 540

BETWEEN	BRENT GAYTHORNE GEBBIE Appellant
AND	THE QUEEN Respondent

Hearing:	16 October 2019
Court:	French, Lang and Mander JJ
Counsel:	Appellant in person C A Brook for Respondent
Judgment:	7 November 2019 at 9.30 am

JUDGMENT OF THE COURT

AThe application for an extension of time for filing an appeal against sentence is granted.

BThe appeal against conviction and sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Lang J)

1. Mr Gebbie was found guilty by a jury on a charge of criminal harassment.[1]  On 12 April 2019 Judge C J Thompson sentenced Mr Gebbie to four months’ community detention and six months’ supervision on that charge.[2]  The Judge also made a protection order in favour of the complainant, Mr Gebbie’s former partner.

   [1]Harassment Act 1997, s 8(1)(b)(i).

   [2]R v Gebbie [2019] NZDC 9132.

2. Mr Gebbie appeals against both conviction and sentence.  His original notice of appeal was only against conviction.  The Crown does not object to leave being granted to an extension of time for Mr Gebbie to file a notice of appeal against sentence.  We grant leave accordingly.

Background

1. Mr Gebbie and his partner separated in mid to late 2016 but continued to remain in electronic contact during that period.  They also met on at least one occasion during that period.

2. Mr Gebbie’s former partner became concerned regarding the extent to which he was attempting to remain in contact with her.  She went to the police about her concerns.  On 29 December 2016 a police officer served a warning under s 4 of the Trespass Act 1980 advising Mr Gebbie that he was prohibited from visiting his former partner’s address.  In addition, the police officer delivered a letter to Mr Gebbie pointing out that he could be liable under the Harassment Act 1997 if he continued to make electronic or other contact with his former partner in the knowledge that his actions were likely to cause her to reasonably fear for her safety.

3. Mr Gebbie immediately contacted his former partner to let her know he had received the documents.  He then continued to send her emails over the next four months.  This prompted her to contact the police again, and Mr Gebbie was arrested on 23 April 2017. 

4. Mr Gebbie’s former partner also obtained an interim protection order from the Family Court under s 13 of the Domestic Violence Act 1995 (DVA).  This was discharged by the Family Court on 6 September 2017, approximately 17 months prior to Mr Gebbie’s trial. 

The appeal against conviction

1. Mr Gebbie elected trial by jury and the trial was scheduled to commence on 5 March.  The appeal against conviction flows from events that occurred immediately prior to the trial. 

2. In preparing for the trial counsel for the Crown prepared a memorandum to the Family Court seeking an order that the entire Family Court file be released to both the Crown and Mr Gebbie.  The memorandum was dated 13 August 2018.  Counsel then acting for Mr Gebbie made enquiries of both the Crown and the Family Court in October and November 2018 and again in February 2019.  It appears that no response was forthcoming from either quarter. 

3. For reasons currently unknown the Family Court did not receive the Crown’s memorandum until 12 December 2018.  On 20 December 2018 a Deputy Registrar issued a minute advising that the application needed to be served on Mr Gebbie by the Registrar, and that any notice of response by him was to be filed within 10 working days of service being effected.  The minute confirmed that the matter would then be placed before a judge in chambers for consideration.  It seems likely that the minute was sent only to counsel for the Crown.

4. Mr Gebbie was served with the Crown’s application on 19 January 2019.  The Registry then referred the application to Judge Black for consideration on 18 February 2019.  The referral form recorded that the application had been served on Mr Gebbie and he had filed an email confirming he did not object to the Crown’s request for access to the file.  On 20 February 2019 the Judge issued the following minute:

   DIRECTIONS

   1.Application granted.  Pleadings and decisions to be released as sought, and copies are to be provided to Mr Gebbie also (through counsel, if he is represented in the criminal proceedings).

5. It appears that the Family Court provided the Crown with a copy of the Family Court file on 20 February 2019 but Mr Gebbie’s trial counsel, Ms Gould, did not receive it until Friday 28 February 2019.  By that date the trial was just three working days away. 

6. Mr Gebbie contends the Crown deliberately delayed its request for access to the Family Court file until December 2018 and that it is also responsible for the fact that Ms Gould did not receive her copy of the material until 28 February 2019.  He says this led to a miscarriage of justice because Ms Gould did not have sufficient time to consider the contents of the Family Court file before the commencement of the trial.  As a result, she was unable to cross-examine Mr Gebbie’s former partner about matters contained in the file that were clearly contradictory of evidence she gave at trial.

Analysis

1. There is nothing in the material before us to suggest that the Crown deliberately delayed its application to the Family Court for the release of the material.  We do not know why the memorandum dated 13 August 2018 was not received by the Family Court until 12 December 2018.  Thereafter, however, any delays were due to the processes undertaken by the Family Court.  Furthermore, the Family Court was the party responsible for any delay in providing the material to Ms Gould after the Judge granted the Crown’s application.

2. If Ms Gould had felt compromised by the late receipt of the material we have no doubt she would have raised the issue with the trial Judge.  If necessary, she could have sought an adjournment to enable her to consider the material on the file before being required to cross-examine the complainant.  Furthermore, Mr Gebbie has not identified any material on the file that ought to have been put to the complainant in cross-examination.  We are therefore satisfied no miscarriage of justice has occurred and the appeal against conviction cannot succeed.

The appeal against sentence

1. The power to make a protection order is contained in s 123B of the Sentencing Act 2002.  At the time Mr Gebbie was sentenced this provided as follows:[3]

   [3]Section 123B was amended as from 1 July 2019 to make the wording used in the section consistent with that used in the Family Violence Act 2018.

   123BProtection order

   (1)This section applies if—

   (a)an offender is convicted of a domestic violence offence; and

   (b)there is not currently in force a protection order against the offender made under the Domestic Violence Act 1995 for the protection of the victim of the offence.

   (2)The court may make a protection order against the offender if—

   (a)it is satisfied that the making of the order is necessary for the protection of the victim of the offence; and

   (b)the victim of the offence does not object to the making of the order.

   (3)A protection order may be made under this section in addition to imposing a sentence or making any other order.

   (4)An order may be made under subsection (2) even though domestic violence proceedings have been filed by the victim of the offence against the offender, and those proceedings have not yet been determined.

   (5)If an order is made under subsection (2) in the circumstances described in subsection (4), the domestic violence proceedings, in so far as they relate to an application for a protection order against the offender, end.

2. Section 123A contained the following definitions:

   domestic violence offence means an offence against any enactment (other than the Domestic Violence Act 1995) involving the use of violence against a person, other than a child, with whom the offender is, or has been, in a domestic relationship.

   …

   violence has the meaning given to it by section 3(2), (4), and (5) of the Domestic Violence Act 1995.

   …

3. Section 3(2) of the DVA contained the following definition of “violence”:

   (2)In this section, violence means—

   (a)physical abuse:

   (b)sexual abuse:

   (c)psychological abuse, including, but not limited to,—

   (i)     intimidation:

   (ii)     harassment:

   (iii)    damage to property:

   (iv)    threats of physical abuse, sexual abuse, or psychological abuse:

   (iva)  financial or economic abuse (for example, denying or limiting access to financial resources, or preventing or restricting employment opportunities or access to education):

   (v)     in relation to a child, abuse of the kind set out in subsection (3).

4. Mr Gebbie’s sole argument on the sentence appeal is that s 123B did not permit Judge Thompson to make a protection order because proceedings were already before the Family Court in which his former partner was seeking a final protection order under the DVA. 

5. As Ms Brook points out for the respondent, however, s 123B(4) is cast in permissive terms.  It expressly permits a sentencing Judge to make a protection order in favour of a complainant who has filed proceedings under the DVA.  Such an order may be made even though the DVA proceedings have not yet been determined.  Section 123B(5) goes on to provide that, when this occurs, the DVA proceedings will come to an end.  In any event, s123B(4) does not apply to the present case and Mr Gebbie was mistaken in thinking it did.  From 6 September 2017, the interim order had been discharged and no application for a permanent order was awaiting hearing in the Family Court.

6. We accept this argument.  The Judge clearly had the power to make the protection order in favour of Mr Gebbie’s former partner when he sentenced Mr Gebbie on the charge of criminal harassment.

7. The appeal against sentence cannot succeed for that reason.

Result

1. The application for an extension of time for filing an appeal against sentence is granted.

1. The appeal against conviction and sentence is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent