Garlick v Police - [2016] NZHC 572

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI-2016-412-000005 [2016] NZHC 572

BETWEEN
BRENT LESLIE KEVIN GARLICK

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 4 April 2016

Appearances:

A M Dawson for the Appellant
R D Smith for the Crown

Judgment:

5 April 2016

JUDGMENT OF NATION J

Introduction

[1] Mr Garlick is aged 35. As at 20 January 2016, he had 99 convictions, 41 per cent of which were for offences similar in nature to the offences for which he was sentenced in the District Court on 4 February 2016.

[2] He was then sentenced on 12 charges - driving while disqualified, associated with providing false information; three charges relating to failing to meet obligations he had with probation and breach of release conditions; three charges involving shop-lifting over September and October 2015; and the unlawful conversion of a motor vehicle in November 2015. His sentence of imprisonment was also in substitution for outstanding community work hours and fines of $5,944.80.

[3] In respect of all matters, he was sentenced to imprisonment for two years and seven months. Mr Garlick appeals against that sentence as being manifestly
excessive.

GARLICK v POLICE [2016] NZHC 572 [5 April 2016]

Approach on appeal

[4] Section 250 of the Criminal Procedure Act 2011 requires that the appeal be allowed if I am satisfied that, for any reason, there is an error in the sentence imposed and a different sentence should be imposed.1 I must dismiss the appeal in any other case.2 To allow the appeal, I must be satisfied that the sentence imposed
was “manifestly excessive”.3 As has been stated:4

The High Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles. Whether a sentence is manifestly excessive is to be examined in terms of the sentence given, rather than by the process by which the sentence is reached.

Discussion

[5] Judge Flatley adopted a starting point for the different offending, treating the driving while disqualified charge offence as the lead charge.5 He increased the starting point for that offending on a cumulative basis for the other charges, to arrive at a starting point for all the offending of 34 months’ imprisonment. He uplifted that by a further six months on account of Mr Garlick’s criminal record, resulting in a starting point of 40 months’ imprisonment. He allowed for a discount of 25 per cent for guilty pleas to bring the sentence back to two years and six months’ imprisonment. He then added one month’s imprisonment in recognition of remission
of just under $6,000 in fines.

[6] I have not been persuaded that a different sentence ought to have been imposed with regard to the offending and in substitution for the community work sentence and unpaid fines.

[7] The driving while disqualified charge was Mr Garlick’s seventeenth such charge. The essence of a driving while disqualified charge for which the Court must sentence an offender is the deliberate ignoring or flouting of…

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 Garlick v Police

Details

AGLC: Garlick v Police [2016] NZHC 572
Case: [2016] NZHC 572
Decision Date: 5 April 2016

CaseChat Overview and Summary

Brent Leslie Kevin Garlick appealed against his two-year-and-seven-month sentence for various criminal offences, including driving while disqualified, theft, and breach of probation conditions, arguing it was manifestly excessive. The appeal was dismissed by the High Court. The court examined whether the sentence was within the range that could be justified by accepted sentencing principles. It found the sentence was not manifestly excessive, considering the nature of the offending, the period over which it occurred, and the offender's criminal history. The court noted the offender had a history of similar offences, particularly driving while disqualified and theft, and had failed to take advantage of support services to break this pattern. The purposes of deterrence, denunciation, holding the offender accountable, and protection of the public justified the sentence. The court also considered the offender's guilty pleas, which led to a 25% discount on the starting point for the sentence. The court concluded that the sentence was appropriate and dismissed the appeal.

Orders