Gardner v Police

[2023] NZHC 3683

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, I must dismiss the appeal.8 The measure of error is the sentence be “manifestly excessive”, a principle “well-engrained” in this Court’s approach to sentencing appeals.9 I will not intervene where the sentence is within a range properly justified by accepted sentencing principle. Whether ‘manifestly excessive’ is to be assessed in terms of the sentence given, rather than the process by which it is reached.10

Further evidence

[7]    It is well-understood prospective evidence to be adduced on appeal is to be “fresh, credible, and cogent”,11 and this requirement serves to balance the interests of the parties and ensure the just and efficient dispatch of litigation.12 On appeal against sentence:13

[I]f the fresh evidence is not credible it should not be admitted. If it is credible, an assessment needs to be made as to whether or not it could have been presented to the sentencing Court with reasonable diligence. If the evidence is both credible and fresh it should be admitted unless the appellate court is satisfied it would have had no effect on the sentence. If the evidence is credible but not fresh, the appellate court should assess its strength and its potential impact on the sentence. If the appellate court considers that the sentence could be manifestly excessive if the evidence is excluded, then it should be admitted notwithstanding that it is not fresh.

7      Criminal Procedure Act 2011, s 250(2).

8      Section 250(3).

9      McCaslin-Whitehead v R [2023] NZCA 259 at [27], affirming Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [32]–[35].

10 At [28], citing Tutakangahau v R, above n 9, at [36].

11 Lawyers for Climate Change Action NZ Inc v Climate Change Commission [2023] NZCA 443 at [12], citing Rae v International Insurance Brokers (Nelson Marlborough) Ltd [1998] 3 NZLR 190 (CA) at 192–193, and Paper Reclaim Ltd v Aotearoa International Ltd (Further Evidence) (No 1) [2006] NZSC 59, [2007] 2 NZLR 1 at [6].

12 Rae v International Insurance Brokers (Nelson Marlborough) Ltd, above n 11, at 192.

13 M (CA78/2022) v R [2023] NZCA 151 at [27], affirming Mark v R [2019] NZCA 121 at [16].

Discussion

—evidence

[8]    Mr Gardner wishes to adduce his own affidavit, in which he explains his more recent comprehension of the cause of his ill-health and its prognosis as weighting the balance in favour of a sentence of home detention. He seeks also to adduce the affidavit of a private investigator, who reports on his related enquiries.

[9]    Mr Gardner has had difficulty breathing since 2021, diagnosed as dyspnoea, with marked deterioration in early 2023. At the time of his sentencing on 21 July 2023, he had undergone an initial chest x-ray, but had yet to know of its report.

[10]The report issued after sentencing advised the x-ray showed:

… severe bullous emphysema affecting most of the right lung with some collapse in the right mid-zone. There appears to be very little functional right lung. There was also bullous disease in the left upper lobe with some relatively normal aerated lung in the left lower lobe. This has progressed since a chest x-ray in November 2021 and particularly since December 2021.

The report recommended treatment by inhaler and possibly “pulmonary rehabilitation, but clearly not whilst on home detention”. Subsequent medical examination identified further investigation was desirable for determination of possible surgical intervention.

[11]   Mr Attwood’s enquiries establish such determination may provisionally have been made, but its finalisation and communication remains awaited. Mr Attwood also observes there is ambulance support within five minutes’ travel of Mr Gardner’s prison and hospital facilities within 45 minutes’ travel. Otherwise Mr Attwood’s affidavit is inadmissible hearsay.

[12]   Mr Gardner says he is concerned, given his deteriorating medical condition, he may die in prison. His requests for compassionate release have been declined (expressly on grounds his disease is not considered terminal, potential treatment options may extend his life, and release is premature in advance of identification of those treatment options). He says the treatment he has been receiving in prison is inadequate, particularly as “delayed” and “very slow”, and considers he “would have better access to treatment and emergency service if … granted home detention”.

[13]   Thus Mr Gardner seeks an alternative sentencing outcome on the basis of subsequent information. While I recognise his motivations, the evidence he seeks to adduce could not have had any effect on his sentence because none of it then was in existence at all. The most the Judge could have known was Mr Gardner was awaiting the report of his chest x-ray if explanatory of anything in his known medical condition of shortness of breath. There was no diagnosis or prognosis or proposed course of treatment as might establish any error in Mr Gardner’s sentence. Once sentenced, such new information falls for Corrections’ management.

[14]Mr Gardner’s application to adduce new evidence on appeal will be declined.

—sentence

[15]   Although Mr Gardner’s appeal wholly is dependent on admission of that proposed evidence, I nonetheless assess if it may have influenced the outcome.

[16]   Even now, the only presently available medical evidence is Mr Gardner’s severe bullous emphysema for treatment by inhaler, plainly suitable for dispensation in prison, with other rehabilitation not being available even on home detention. In prison, Mr Gardner has the benefit of both institutional on-site health care, and Corrections’ statutory obligations to provide prisoners with all “medical treatment that is reasonably necessary” and afford prisoners health care “reasonably equivalent to the standard of health care available to the public”.14 In Mr Gardner’s circumstances, leaving aside his acknowledged mortal concerns, that likely is a better option than home detention without such facilities (and subject to additional complexity to achieve any required absences).

[17]   Accordingly, there is nothing to counterbalance the Judge’s assessment against home detention. Only “limited” reduction in Mr Gardner’s short-term sentence is available on account of his known ill-health.15 Not recognising it by discount does not render his otherwise appropriate sentence “disproportionately severe”.16 The few weeks’ reduction that might be available invites characterisation as tinkering, against

14     Corrections Act 2004, s 75.

15     Heremaia v R [2023] NZCA 232 at [60], citing M (CA91/2012) v R [2013] NZCA 325 at [54].

16     Tan v R [2023] NZCA 446 at [120], citing M (CA91/2012) v R, above n 15, at [52].

which I should be resolute.17 The Judge’s sentence cannot be said excessive, let alone manifestly so.

Result

[18]The application to adduce further evidence on appeal is dismissed.

[19]The appeal is dismissed.

—Jagose J

17 Uruamo v R [2023] NZCA 356 at [24], citing Maihi v R [2013] NZCA 69 at [21] and Mack v R [2013] NZCA 183 at [16]; Carter v R [2023] NZCA 454 at [17]. See also R v Boyd (2004) 21 CRNZ 169 (CA) at [38]: “[T]here ought to be a respectable margin of appreciation for the judgment of the trial Judge, particularly bearing in mind that sentencing is not a science”.