GEBBIE v R [2019] NZCA 540

GEBBIE v R [2019] NZCA 540 [7 November 2019]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA302/2019[2019] NZCA 540BETWEEN BRENT GAYTHORNE GEBBIEAppellantAND THE QUEENRespondentHearing: 16 October 2019Court: French, Lang and Mander JJCounsel: Appellant in personC A Brook for RespondentJudgment: 7 November 2019 at 9.30 amJUDGMENT OF THE COURTA The application for an extension of time for filing an appeal against sentenceis granted.B The 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.1On 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 alsomade 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 noticeof appeal was only against conviction. The Crown does not object to leave beinggranted to an extension of time for Mr Gebbie to file a notice of appeal againstsentence. We grant leave accordingly.Background[3] Mr Gebbie and his partner separated in mid to late 2016 but continued toremain in electronic contact during that period. They also met on at least one occasionduring that period.[4] Mr Gebbie's former partner became concerned regarding the extent to whichhe was attempting to remain in contact with her. She went to the police about herconcerns. On 29 December 2016 a police officer served a warning under s 4 ofthe Trespass Act 1980 advising Mr Gebbie that he was prohibited from visiting hisformer partner's address. In addition, the police officer delivered a letter to Mr Gebbiepointing out that he could be liable under the Harassment Act 1997 if he continued tomake electronic or other contact with his former partner in the knowledge that hisactions were likely to cause her to reasonably fear for her safety.[5] Mr Gebbie immediately contacted his former partner to let her know he hadreceived the documents. He then continued to send her emails over the nextfour months. This prompted her to contact the police again, and Mr Gebbie wasarrested on 23 April 2017.[6] Mr Gebbie's former partner also obtained an interim protection order fromthe Family Court under s 13 of the Domestic Violence Act 1995 (DVA). This wasdischarged by the Family Court on 6 September 2017, approximately 17 months priorto Mr Gebbie's trial.The appeal against conviction[7] Mr Gebbie elected trial by jury and the trial was scheduled to commence on5 March. The appeal against conviction flows from events that occurred immediatelyprior to the trial.[8] In preparing for the trial counsel for the Crown prepared a memorandum tothe Family Court seeking an order that the entire Family Court file be released to boththe Crown and Mr Gebbie. The memorandum was dated 13 August 2018.Counsel then acting for Mr Gebbie made enquiries of both the Crown andthe Family Court in October and November 2018 and again in February 2019. Itappears that no response was forthcoming from either quarter.[9] For reasons currently unknown the Family Court did not receive the Crown'smemorandum until 12 December 2018. On 20 December 2018 a Deputy Registrarissued a minute advising that the application needed to be served on Mr Gebbie bythe Registrar, and that any notice of response by him was to be filed within 10 workingdays of service being effected. The minute confirmed that the matter would then beplaced before a judge in chambers for consideration. It seems likely that the minutewas sent only to counsel for the Crown.[10] Mr Gebbie was served with the Crown's application on 19 January 2019.The Registry then referred the application to Judge Black for consideration on18 February 2019. The referral form recorded that the application had been served onMr Gebbie and he had filed an email confirming he did not object to the Crown'srequest for access to the file. On 20 February 2019 the Judge issued the followingminute:DIRECTIONS1. Application granted. Pleadings and decisions to be released as sought,and copies are to be provided to Mr Gebbie also (through counsel, if heis represented in the criminal proceedings).[11] It appears that the Family Court provided the Crown with a copy ofthe 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 threeworking days away.[12] Mr Gebbie contends the Crown deliberately delayed its request for access tothe Family Court file until December 2018 and that it is also responsible for the factthat Ms Gould did not receive her copy of the material until 28 February 2019. He saysthis led to a miscarriage of justice because Ms Gould did not have sufficient time toconsider 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 matterscontained in the file that were clearly contradictory of evidence she gave at trial.Analysis[13] There is nothing in the material before us to suggest that the Crown deliberatelydelayed its application to the Family Court for the release of the material. We do notknow why the memorandum dated 13 August 2018 was not received bythe Family Court until 12 December 2018. Thereafter, however, any delays were dueto the processes undertaken by the Family Court. Furthermore, the Family Court wasthe party responsible for any delay in providing the material to Ms Gould afterthe Judge granted the Crown's application.[14] If Ms Gould had felt compromised by the late receipt of the material we haveno doubt she would have raised the issue with the trial Judge. If necessary, she couldhave sought an adjournment to enable her to consider the material on the file beforebeing required to cross-examine the complainant. Furthermore, Mr Gebbie has notidentified any material on the file that ought to have been put to the complainant incross-examination. We are therefore satisfied no miscarriage of justice has occurredand the appeal against conviction cannot succeed.The appeal against sentence[15] The power to make a protection order is contained in s 123B of the SentencingAct 2002. At the time Mr Gebbie was sentenced this provided as follows:3123B Protection 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 againstthe offender made under the Domestic Violence Act 1995 forthe protection of the victim of the offence.3 Section 123B was amended as from 1 July 2019 to make the wording used in the section consistentwith that used in the Family Violence Act 2018.(2) The court may make a protection order against the offender if—(a) it is satisfied that the making of the order is necessary forthe protection of the victim of the offence; and(b) the victim of the offence does not object to the making ofthe order.(3) A protection order may be made under this section in addition toimposing a sentence or making any other order.(4) An order may be made under subsection (2) even though domesticviolence proceedings have been filed by the victim of the offenceagainst the offender, and those proceedings have not yet beendetermined.(5) If an order is made under subsection (2) in the circumstances describedin subsection (4), the domestic violence proceedings, in so far as theyrelate to an application for a protection order against the offender, end.[16] Section 123A contained the following definitions:domestic violence offence means an offence against any enactment (otherthan the Domestic Violence Act 1995) involving the use of violence againsta person, other than a child, with whom the offender is, or has been, ina domestic relationship.violence has the meaning given to it by section 3(2), (4), and (5) ofthe Domestic Violence Act 1995.[17] 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 psychologicalabuse:(iva) financial or economic abuse (for example, denying orlimiting access to financial resources, or preventing orrestricting employment opportunities or access toeducation):(v) in relation to a child, abuse of the kind set out insubsection (3).[18] Mr Gebbie's sole argument on the sentence appeal is that s 123B did not permitJudge Thompson to make a protection order because proceedings were already beforethe Family Court in which his former partner was seeking a final protection orderunder the DVA.[19] As Ms Brook points out for the respondent, however, s 123B(4) is cast inpermissive terms. It expressly permits a sentencing Judge to make a protection orderin favour of a complainant who has filed proceedings under the DVA. Such an ordermay 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 willcome to an end. In any event, s123B(4) does not apply to the present case andMr Gebbie was mistaken in thinking it did. From 6 September 2017, the interim orderhad been discharged and no application for a permanent order was awaiting hearing inthe Family Court.[20] We accept this argument. The Judge clearly had the power to makethe protection order in favour of Mr Gebbie's former partner when he sentencedMr Gebbie on the charge of criminal harassment.[21] The appeal against sentence cannot succeed for that reason.Result[22] The application for an extension of time for filing an appeal against sentenceis granted.[23] The appeal against conviction and sentence is dismissed.Solicitors:Crown Law Office, Wellington for Respondent