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Gardner v Police

Gardner v Police

Case [2023] NZHC 3683 13 December 2023

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2023-404-436 CRI-2023-404-437

CRI-2023-404-438 [2023] NZHC 3683

BETWEEN
BRENDAN STEWART GARDNER

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 12 December 2023

Appearances:

M J Hamlin for appellant J L Gibson for respondent

Date of judgment:

13 December 2023

JUDGMENT OF JAGOSE J

This judgment was delivered by me on 13 December 2023 at 3.30pm.

………………………… Registrar/Deputy Registrar

Counsel/Solicitors:
Marek Hamlin, Barrister, Auckland Meredith Connell, Auckland

GARDNER v POLICE [2023] NZHC 3683 [13 December 2023]

[1] Brendan Stewart Gardner appeals against the 21 July 2023 decision of Judge D J Sharp in the District Court at Auckland,1 sentencing him to 24 months’ imprisonment on his guilty pleas to 41 generally transport-related charges.2

Background

[2] Mr Gardner’s offending for sentencing spans from 2020 to 2023. It largely is constituted by his driving while disqualified and thefts of petrol, but extends to receiving a vehicle, theft of petrol and mail and one failure to answer District Court bail. He has an extensive criminal history comprised of about 100 convictions for comparable offending and repeated failures to comply with Court orders.

Judgment under appeal

[3] Judge Sharp took the receiving charge as the lead offence for sentencing, justifying something in the range of 15 months’ imprisonment, but observed Mr Gardner’s “relatively uninhibited” offending and while on bail required uplifts, also to recognise Mr Gardner’s failure to engage with rehabilitative measures for which sentencing had been deferred.3

[4] The Judge uplifted the indicated 15 months by 12 months for the other offending and a further three months on account of his criminal history.4 He discounted that 30-month starting point by 6 months (20 per cent) on account of Mr Gardner’s guilty pleas. No further discounts were forthcoming, although the Judge noted Mr Gardner had “personal health issues and … family commitments that are significant”, which he “[did] not under rate … in terms of the end result”.5 Given “the weight of offending”, the Judge assessed Mr Gardner was not a candidate for home detention.6

1      Police v Gardner [2023] NZDC 16775.
2      Theft (under $500) (x 26) (Crimes Act 1961, ss 219 and 223(d): maximum penalty, 3 months’ imprisonment); receiving over $1,000 (ss 246 and 247(a): maximum penalty, 7 years’ imprisonment); driving while disqualified (third and subsequent) (x 13) (Land Transport Act 1998, ss 32(1)(a) and (4): maximum penalty 2 years’ imprisonment); failing to answer District Court bail (Bail Act 2000, s 38: maximum penalty, 1 year’s imprisonment).
3      Police v Gardner, above n 1, at [2].
4 At [5].
5 At [6].
6 At [6].

[5] For Mr Gardner, Marek Hamlin seeks leave to adduce new evidence on appeal attesting to Mr Gardner’s medical condition, which he submits justifies imposition of a non-custodial sentence.

Approach on appeal

[6] I must allow the appeal only if I am satisfied both there is error in the sentence, and a different sentence should be imposed.7 In any other case,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Gardner v Police

Details

AGLC: Gardner v Police [2023] NZHC 3683
Case: [2023] NZHC 3683
Decision Date: 13 December 2023

CaseChat Overview and Summary

In the High Court of New Zealand Auckland Registry, Brendan Stewart Gardner appealed against his 24-month imprisonment sentence, imposed on guilty pleas to 41 transport-related charges. The appeal was heard by Jagose J, who delivered judgment on 13 December 2023. The central issue was whether the sentencing judge erred in not imposing a non-custodial sentence and whether Mr Gardner's appeal should be allowed on the basis of new evidence concerning his medical condition. The court assessed whether the new evidence was credible, fresh, and likely to have influenced the sentence.

The court found that the proposed new evidence, which included Mr Gardner's affidavit and a private investigator's report, was not fresh as it did not exist at the time of sentencing. While Mr Gardner had a severe medical condition, the evidence did not establish any error in his sentence. The court concluded that the available medical evidence only showed the need for inhaler treatment, which could be managed in prison. The court also noted that Corrections had statutory obligations to provide necessary medical treatment to prisoners. Given these considerations, the court found that the sentence was not manifestly excessive and dismissed the appeal. The application to adduce further evidence was also dismissed.

Orders