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Gardner v Police

Gardner v Police

Case [2020] NZHC 2169 25 August 2020

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IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE

CRI-2020-454-14

[2020] NZHC 2169

MATTHEW LANCE GARDNER

v

NEW ZEALAND POLICE

Hearing: 25 August 2020

Appearances:

G M Stone for the Appellant

D R Davies and T Bagnall for the Respondent

Judgment:

25 August 2020

JUDGMENT OF COOKE J

[1] Mr Gardner was sentenced to two years and three and a half months’ imprisonment in respect of a range of violent offences:1

(a)Two charges of assault on a person in a family relationship,2

(b)Assault on a child,3

(c)Three charges of wilful damage,4 and

1      New Zealand Police v Gardner [2020] NZDC 11639.
2      Crimes Act 1961, s 194A, maximum penalty two years’ imprisonment.
3      Section 194(a), maximum penalty two years’ imprisonment.
4      Summary Offences Act 1981, s 11(1)(a), maximum penalty three months’ imprisonment or $2,000 fine.

GARDNER v NEW ZEALAND POLICE [2020] NZHC 2169 [25 August 2020]

(d)One charge of intimidation.5

[2] Mr Gardner appeals his sentence on the grounds the starting point was too high, and that credit should have been given for remorse and time spent on electronically monitored bail.

Factual background

[3] The primary victim is the appellant’s ex-partner. The two had been in a relationship for approximately one year and had lived together at an address in Palmerston North along with the victim’s three children aged 4, 7 and 9. The victim was pregnant at the time of the offending.

[4] The first set of offending occurred in October 2019. At around 7.30 pm on Saturday 5 October 2019 Mr Gardner was an address in Palmerston North. Also present was the victim and her three young children. Mr Gardner and the victim began arguing over relationship issues and the use of a vehicle at the address. The victim took the keys for the vehicle and hid them in an attempt to prevent Mr Gardner from driving after consuming alcohol.

[5] Mr Gardner became upset that the victim had hidden the keys and followed her around the house. He snatched her phone from her hands and smashed the phone against a wall. The victim attempted to pick up the phone but Mr Gardner pushed her onto a bed. She repeatedly attempted to stand up but he continually pushed her back onto the bed. Mr Gardner pinned her arms down and yelled at her to return the keys. She told him to let her go and attempted to push him off her. As he did this he punched her in the left thigh.

[6] Mr Gardner then proceeded to repeatedly kick the victim’s daughter’s bedroom door. This caused the child the wake up and begin crying. The victim went into the bedroom to console her daughter but was followed by Mr Gardner, who continued to yell at her to give her back her keys. He told her to leave and shortly after she left on foot with her children and notified police after arriving at a family member’s address.

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 [2020] NZHC 2169
Case: [2020] NZHC 2169
Decision Date: 25 August 2020

CaseChat Overview and Summary

The case involves Matthew Lance Gardner, who appeals against his sentence for multiple violent offences, including assault on a person in a family relationship, assault on a child, wilful damage, and intimidation. The District Court Judge imposed a sentence of two years and three and a half months’ imprisonment, which Gardner contests on the grounds that the starting point was too high and that credit should have been given for remorse and time spent on electronically monitored bail. The High Court is required to determine if there was an error in the sentence imposed and if a different sentence should be imposed.

The court first examines the starting point for the lead charge of assault on a person in a family relationship. The Judge adopted a starting point of 14 months’ imprisonment, considering several aggravating factors, including the violence in the home, the vulnerability of the victim due to her late pregnancy, and the potential for serious harm. The court agrees that the starting point of 14 months was reasonably open to the Judge, aligning with comparable cases. However, the court notes that the Judge imposed an additional 12 months’ imprisonment for the assault on a child, which it considers excessive without considering the principle of totality. The court also identifies an arithmetical error in the calculation of the sentence, which further inflated the overall sentence. The court concludes that the Judge’s methodology of adding multiple uplifts without considering the principle of totality resulted in a sentence above the available range.

Regarding the points of remorse and credit for time spent on electronically monitored bail, the court finds that the District Court Judge was entitled to conclude that Gardner's remorse was not genuine and that any discount for the short period spent on electronically monitored bail is not necessary.

The court allows the appeal and substitutes a sentence of one year, nine months’ imprisonment, calculated as follows: a 14-month starting point for the offence of assault on a person in a family relationship, a six-month uplift for the assault on a child, a six-month uplift for the other charges, a two-month uplift for offending while on bail, and a 25 per cent discount for the guilty pleas. The court also imposes special release conditions to assist with rehabilitation upon release.

The appeal is allowed, and the sentence is substituted as specified, with special release conditions to be applied.

Orders