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 a Court order imposing

the disqualification.   Where the offence has been committed for the seventeenth

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

2      Criminal Procedure Act 2011, s 250(3).

3      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.

4      Larkin v Ministry of Social Development [2015] NZHC 680 at [26] per Toogood J.

5      Police v Flatley [2016] NZDC 1718.

time, it must be within the most serious of cases for which the maximum penalty of two years’ imprisonment can be imposed so that a penalty close to the maximum available has to be considered.6

[8]      The offence was committed when Mr Garlick was apprehended driving a car in Christchurch on 1 December 2015.   The charge related to just that instance of offending.  The summary of facts for a number of the charges indicated that he had borrowed a car in Oamaru on 19 November 2015 and had that car for two weeks. The summary of facts also referred to him driving a vehicle into petrol stations on 20

November 2015 and 27 November 2015.  Although the driving while disqualified charge related to his driving just at the time he was apprehended in Christchurch on

1 December 2015, the surrounding facts indicated that he had to be sentenced for a complete  and  flagrant  disregard  of  the  disqualification  imposed  on  him  on  17

November 2015, just a short time before the offence with which he was charged.

[9]      Mr Dawson referred me to several judgments from the High Court which he submitted indicated that the circumstances of the particular offending had to be more serious to justify a starting point of around 20 months.7   Mr Dawson also submitted this offence was less serious given that Mr Garlick had not been sentenced  for driving while disqualified since 2008.  Unfortunately, in the intervening period, Mr Garlick had driven without any regard for whether he was legally allowed to.  He

had three convictions in 2014 and 2015 for being an unlicensed driver and failing to comply with a prohibition.   He was sentenced  on one of those offences on 20

October 2015, only a short time prior to unlawfully taking the motor vehicle in

Oamaru and a little later being apprehended for driving while disqualified.

[10]     I am satisfied that the circumstances of this particular offending justified the Judge adopting a starting point of 20 months for a seventeenth charge of driving while disqualified and the associated offence of providing false information which

carried a maximum of three months’ imprisonment.

6      Sentencing Act 2002, s 8(c).

7      R v Fraser CA 74/06, 12 June 2006; Toby v Police HC Auckland CRI 2005-404-175, 21 October

2005; Kerr v Police HC Christchurch CRI-2011-409-000058, 3 August 2011.

[11]     Mr  Garlick  was  released  from  prison  on  9  December  2014  subject  to conditions.  He was told carefully by Community Corrections on 12 December 2014 what obligations he had as far as reporting to a probation officer was concerned.  He failed to report as directed on 30 December 2014, ignoring written instructions to do so.  He failed to report again at 2.00 pm on 16 February 2015 after earlier that day receiving a written instruction to do so.   After 16 March 2015, Mr Garlick again failed to report and stopped responding to attempts to contact him.   That further offending again showed a complete disregard for the obligations he was under following his release from prison.

[12]     Judge Flatley uplifted the starting point for the offending by a total of seven months’ imprisonment.  I do not consider that uplift to be excessive given the period over which Mr Garlick failed to comply with directions or conditions and the way he ignored instructions which had been given to him almost immediately after they had been made.

[13]     There was then an uplift of four months, one month for each of four theft offences.  On 8 October 2015, Mr Garlick decamped from a dairy in Christchurch, grabbing tobacco off the counter after initially unsuccessfully attempting to purchase it, taking the tobacco without paying for it.

[14]     On 20 November 2015 and 27 November 2015, Mr Garlick had driven into Z Energy service stations, filled up the vehicle he was driving with fuel and then left the station without paying for it.

[15]     On  25  November  2015,  Mr  Garlick  had  removed  number  plates  from  a vehicle parked at a home address in Christchurch.   That offending was the more serious by reason of Mr Garlick going to the victim’s home address in Christchurch to  do  this.    The  taking  of  the  number  plates  was  also  obviously  for  a  further dishonest purpose.

[16]     On  26  September  2013,  Mr  Garlick  was  issued  with  a  trespass  notice prohibiting him from entering all Warehouses in Christchurch.   On 3 September

2015, he entered the Warehouse at South City Mall, selected a three-pack of pliers,

opened the packaging, concealed one pair of pliers in his clothes and attempted to leave the store.  On the trespass and associated theft charge, the Judge increased the starting point by one month’s imprisonment.

[17]     While these thefts were all for modest amounts, Mr Garlick’s offending was brazen in nature and exhibited a complete disregard for the honesty which is understandably expected of all members in the community and which is essential to the way businesses have to operate, businesses of the sort that Mr Garlick took advantage of.

[18]     There was then a further uplift of two months’ imprisonment on the charge of unlawfully taking a motor vehicle.  Mr Garlick had asked to borrow a vehicle from the victim in Oamaru.  He said he needed it for two hours to pick up his sister and his children.  He collected the vehicle at 12.30 am and was to return it by 3.00 am the same morning.  It appears from the summary of facts, Mr Garlick was found to be driving this car in Christchurch later on but with different stolen number plates. The victim was without her car for two weeks, something which understandably caused her considerable distress and inconvenience.  Mr Garlick was fortunate that Judge Flatley said he regarded the facts of this taking of a motor vehicle as “not so

serious”.8    He was generous in that regard.  Mr Garlick had taken the vehicle from

someone he knew, someone who had trusted him to borrow it for the purpose he had indicated, expecting it to be returned to them.   Not only did Mr Garlick fail to honour that trust but he drove the car to Christchurch from Oamaru and kept it there until he was apprehended.  The maximum sentence for this offence was seven years’ imprisonment.   On its own, the starting point for that offence could have been significantly more than two months’ imprisonment.

[19]     The starting point for all that offending was 34 months’ imprisonment.  I do not consider that was manifestly excessive given the nature of the offending and the period over which it occurred. As pointed out by Mr Smith for the Crown, the Judge did not mention or appear to take into account, as an aggravating feature associated with much of this offending, that it was committed while Mr Garlick was subject to

conditions following his release from prison and after he had been bailed on a theft charge on 4 September 2015.

[20]     The Judge then uplifted that sentence by a further six months, having regard to Mr Garlick’s criminal history.  Mr Dawson accepted that this uplift was for Mr Garlick’s extensive history of offending for dishonesty and his previous “complete disregard to sentences and orders” that had been imposed upon him.9    The Judge noted that he had 23 convictions for such offending, including breach of release conditions, breach of community work, breach of detention convictions and so on.

There was no further uplift for Mr Garlick’s previous driving while disqualified charges so there has been no double-counting as to that.   Mr Dawson noted that, because Mr Garlick had been sentenced to imprisonment  on a number of prior convictions, care had to be taken to avoid sentencing him again for earlier offending.

[21]     It is clear from the pre-sentence reports that Mr Garlick has failed to take full advantage of support which has been made available to him in an attempt to break this longstanding pattern of criminal offending.   It is to be hoped that, on release from this current sentence of imprisonment, Mr Garlick will be able to do better in this  regard  but,  given  all  the  offending  for  which  he  had  to  be  sentenced,  the purposes of deterrence, denunciation, holding Mr Garlick accountable for his offending and protection of the public had to be given priority.   Those purposes justified a further uplift of six months’ imprisonment.

[22]     On that basis, the Judge adopted a starting point for all the offending, but also having regard to Mr Garlick’s criminal history, of 40 months’ imprisonment.  The Judge discounted that by 25 per cent in recognition of the guilty pleas.   I do not consider the Judge made any error in formulating the end sentence on that basis or that the sentence should have been reduced applying the totality principle.  I do not accept Mr Dawson’s submission that the cumulative uplift for the separate offences has resulted in a sentence which is excessive given the nature of all the offending.

[23]     The   Judge   then   added   one   month’s   imprisonment   in   cancelling   the outstanding community work sentence and in remitting fines of nearly $6,000.   In

that regard, I again consider Mr Garlick was fortunate.  The Judge added nothing in recognition of cancellation of the community hours on the basis that the hours outstanding were not significant.   Mr Smith, for the Crown, pointed out that the hours outstanding were 73 hours of a sentence of 80 hours’ community service imposed  on  17  June  2015  for  breaching  Court  release  conditions  following  a sentence of imprisonment.  In the five months since that sentence was imposed, Mr Garlick had completed just seven hours’ community work.   Effectively, with the approach taken by Judge Flatley, Mr Garlick has been able to avoid almost all the sentence of 80 hours’ community work.

[24]     The $6,000 in outstanding fines has been accumulated in regard to a number of different offences over several years.  Judge Flatley noted that normally remission of fines of around $6,000 would have justified a sentence of two to three months’ imprisonment.  He said, taking into account totality principles, he would add just one month’s imprisonment.    He also imposed only the minimum period of disqualification, expressing the hope that this might make it easier for Mr Garlick to avoid continuing offences for driving when he is not allowed to.

Conclusion

[25]     Despite the careful and thorough submissions presented by Mr Dawson, I have not been persuaded that the Judge made any error in sentencing Mr Garlick.  I have not been persuaded that a different sentence should have been imposed.  I must therefore dismiss the appeal and do so.

Solicitors:

Public Defence Service, Dunedin

RPB Law, Dunedin.