Garrett v Police

[2019] NZHC 1411

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI 2019-419-0033

[2019] NZHC 1411

BETWEEN

JONATHON THOMAS ERROL GARRETT

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	20 June 2019
Appearances:	M J James for the appellant ASC Alcock for the respondent
Judgment:	20 June 2019

ORAL JUDGMENT OF JAGOSE J

Solicitors:

Public Defence Service, Hamilton Almao Douch, Hamilton

GARRETT v NEW ZEALAND POLICE [2019] NZHC 1411 [20 June 2019]

[1]                 Jonathon Garrett appeals his sentence of nine months’ imprisonment imposed by Judge A C Roberts in the District Court at Hamilton on 1 March 2019.1

[2]                 Mr Garrett was sentenced on five charges of theft (under $500),2 one charge of receiving property (under $500),3 one breach of community work,4 and one breach of intensive supervision.5

Leave to appeal out of time

[3]                 Mr Garrett requires an extension of time to appeal,6 as his appeal was not filed within 20 working days of sentence.7 It was filed on 6 May 2019, over two months after his 1 March 2019 sentencing.

[4]                 Extensions of time are granted in the interests of justice.8 Here, the delay is short and explained.9 Mr Garrett’s counsel, Melissa James, only became aware of an apparent error in the sentence imposed when carrying out disclosure for Mr Garrett on other matters. The appeal is not without merit and the police do not object to leave being granted. Leave is granted in the interests of justice.

Approach to appeals against sentence

[5]                 I must allow the appeal only if I am satisfied both there is an error in the sentence, and a different sentence should be imposed.10 In any other case, I must dismiss the appeal.11 The approach previously taken by courts on sentencing appeals continues to apply;12 the measure of error is the sentence be “manifestly excessive” – the principle is “well-engrained” in this Court’s approach to sentencing appeals.13 I will not intervene where the sentence is within a range properly justified by accepted

1      Police v Garrett [2019] NZDC 3762.

2      Crimes Act 1961, ss 219 and 223(d).

3      Sections 246 and 247(c).

4      Sentencing Act 2002, s 71(1)(a).

5      Section 70(A)(a).

6      Criminal Procedure Act 2011, s 248(4).

7      Section 248(2).

8      Mikus v R [2011] NZCA 298 at [26].

9      See R v Lee [2006] 3 NZLR 42 (CA) at [115].

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

11     Section 250(3).

12     Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27].

13     At [33] and [35].

sentencing principle. Whether ‘manifestly excessive’ is to be assessed in terms of the sentence given, rather than the process by which it is reached.14

Offending

[6]                 Mr Garrett’s offending for sentence took place late last year. The shoplifting charges and the single charge of receiving arose out of five separate incidents at supermarkets and department stores around November 2018, of goods valued between

$40 and $120.

[7]                 Only days before the spate of offending, on 25 October 2018, Mr Garrett was sentenced to nine months’ intensive supervision for breaching court release conditions and a dishonesty offence. He also was sentenced to 140 hours community work in lieu of fines totalling over $7,000.

[8]                 Mr Garrett was instructed to report to his probation officer on 30 October 2018 as conditions of his sentences of both intensive supervision and community work. He did not do so, and defaulted five times. The probation officer said “[i]t appears that Mr Garrett has no intention of engaging with his Intensive Supervision Sentence and addressing his offending needs”.

District Court decision

[9]                 Judge Roberts saw Mr Garrett’s pattern of behaviour and level of premeditation as aggravating factors, especially when viewed against his “unfulfilled commitment to community work and to intensive supervision”.15 Mr Garrett’s offending was “otherwise unremarkable”.16

[10]             The Judge initially proposed to adopt a starting point of eight months’ imprisonment for the shoplifting charges “overall”. The receiving charge was included here, given Mr Garrett received the items from another thief. The Judge applied a four- month uplift for breach of the sentence of intensive supervision, viewing it to

14     Ripia v R [2011] NZCA 101 at [15].

15     Police v Garrett, above n 1, at [6].

16 At [4].

perpetuate Mr Garrett’s default. The Judge gave “full concession” in light of Mr Garrett’s guilty pleas to reduce that twelve-month end sentence to nine months.

[11]But the Judge formally constructed Mr Garrett’s end sentence as comprising:17

(a)four months’ imprisonment for the breach of intensive supervision;

(b)five months’ imprisonment, to be served cumulatively, in relation to the charge of receiving; and

(c)two months’ imprisonment on each of the five shoplifting charges, to run concurrently.

Mr Garrett was discharged without conviction on the charge of breaching community work, the Judge acknowledging he later had applied himself to it. The outstanding hours were remitted.

Mr Garrett’s ground of appeal against sentence

[12]             Unfortunately for the end sentence’s formal formulation, for receiving stolen goods valued at $500 or less, the maximum penalty is three months’ imprisonment.18 There is no other challenge to the Judge’s assessment of the facts or the sentences imposed in relation to the other charges.

[13]             Counsel for the police, Amy Alcock, accepts there is an error in the sentence imposed on the receiving charge, but says it is necessary to consider the “global sentencing response” to determine if a different sentence should have been imposed.19

17 At [7].

18 Crimes Act 1961, s 247(c).

19 Ms Alcock also points to s 180 of the Criminal Procedure Act 2011 as an alternative course of action available to Mr Garrett. Section 180(2) holds that if any sentence is erroneous, the District Court judge who imposed the sentence may impose a new sentence. But she acknowledges under s 180(3), the court may remove the matter into a first appeal court, who will deal with it as if it were an appeal on a question of law. And she acknowledges Mr Garrett has not elected to pursue this pathway and there is no suggestion the appeal pathway he has chosen is unavailable to him.

Discussion

[14]             Clearly, the sentence for receiving exceeds the maximum penalty prescribed by two months. The error is not insignificant; imposed cumulatively, it directly affects the length of the overall sentence. At the least, I must restructure Mr Garrett’s sentence.20

[15]             Ms James commends only substitution of two months’ imprisonment for receiving. Mr Garrett’s end sentence would be six months’ imprisonment. But, in my view, that would be to disregard the totality of his offending. Ms Alcock submits eight months’ imprisonment is available cumulatively to better reflect that totality.

[16]             Under s 84 of the Sentencing Act 2002, where the offences are of a similar kind and are a connected series of offences, concurrent sentences generally are appropriate. But the final sentence must reflect the totality of the offending and how that final sentence is constructed has “never been important”.21 Mr Garrett’s overall shoplifting and receiving culpability demanded an end sentence which exceeded the maximum penalty for theft of goods valued at under $500, if calculated concurrently.

[17]             In those circumstances, s 84 does not prevent the use of cumulative sentencing even where offences are of a similar kind or part of a connected series of offences.22 Further, s 84 only gives guidance as to where concurrent sentences “are generally appropriate”. That guidance does not ‘trump’ totality.23 Here, Mr Garrett is a recidivist offender who is assessed as being at medium risk of re-offending, which is unsurprising given the repetitive nature of his offending. Subject to the principle of totality, cumulative sentences were available.24

[18]             The Judge’s error could be described as technical. The starting point and uplifts adopted show a focus on the appropriate end sentence to be reached, with the error only occurring with the construction of that sentence. But it is error all the same, so I must assess if the end sentence was manifestly excessive.

20     See R v Henderson CA86/05, 11 October 2005 at [9] and [21].

21     R v Xie [2007] 2 NZLR 240 at [16].

22     At [19]–[20].

23 At [18].

24     See Kennedy v Police [2013] NZHC 714 at [7].

[19]             Shoplifting offending varies greatly in gravity and culpability, and for that reason limited assistance “can be obtained from comparing recidivist shoplifting cases because the circumstances are infinitely various.”25 Nonetheless, I have had regard for broadly comparable cases.26

[20]             Mr Garrett’s offending occurred within a two-month window and the value of the goods he took or attempted to take was $286, excluding the goods he received which were valued at $103. Despite his relative youth (he is 24 years old), he has amassed several convictions for various dishonesty offences, breaches of intensive supervision and community work sentences, aggravated robbery and burglary. He also has convictions for drug and driving-related offending. His substance use seems to plague him, with his parents removing their consent for him to be placed on an electronically monitored sentence at their home when he relapsed into drug use. In the pre-sentence report, Mr Garrett acknowledged his drug use has been a factor in his offending.

[21]             Viewing the gravity of the offending and Mr Garrett’s culpability against the cases I have reviewed, Mr Garrett’s end sentence of nine months’ imprisonment (after a 25 per cent discount for guilty pleas) is manifestly excessive, given its “unremarkable nature”. In cases where an inferred twelve-month starting point has been adopted, the offending itself was of a different nature and/or the offender had far more relevant previous convictions.27

[22]             Still, the frequency with which Mr Garrett continued to shoplift despite being caught is alarming. His specific breaches of intensive supervision and community

25 Kelly v Police [2013] NZHC 1250 at [31]–[32].

26 Rochford v Police HC Nelson CRI-2007-442-025, 20 February 2008 (twelve-month starting point reduced to nine months’ imprisonment on guilty pleas to eight charges of “particularly despicable” theft from charity boxes); Thornicroft v Police [2018] NZHC 2895 (six-month starting point uplifted by two months for other offending, but discounted back to six months’ imprisonment for six charges of theft under $500, one charge of breaching release conditions and four charges of wilful trespass, and there is a useful comparative table at [24]); and Winikerei v Police HC Hamilton CRI-2010-419-000032, 5 May 2010 (four-month starting point, cumulative for the theft charges, uplift by three months, and discounted by 25 per cent for guilty pleas to end sentence of five months’ imprisonment).

27 See Kelly v Police [2013] NZHC 1250 (the appellant had 23 previous convictions for shoplifting and the lead charge was theft of items valued at just over $500, which carries a higher maximum penalty); Kennedy v Police [2013] NZHC 714 (the appellant had 36 previous convictions for shoplifting); and Rochford v Police, above n 26.

work are aggravating factors as is the fact all offending occurred while he was subject to a sentence of intensive supervision. Clearly a degree of denunciation and deterrence is needed.

[23]In light of the cases I have reviewed,28 I adopt:

(a)a starting point of six months to reflect the five theft charges and the single charge of receiving stolen goods;

(b)an uplift of two months to reflect the breaches of intensive supervision and community work;

(c)an uplift of one month to reflect Mr Garrett’s relevant previous convictions, and his offending occurred while he was still subject to the sentence of intensive supervision; and

(d)a discount of 25 per cent for his early guilty pleas (this would result in a rounded discount of two months).

That produces an end sentence of seven months’ imprisonment.

[24]I formulate that as:

(a)one month’s imprisonment for each of the five theft charges to be served cumulatively on each other;

(b)a further cumulative two months’ imprisonment for the breach of intensive supervision; and

(c)one month’s imprisonment on the receiving charge, to run concurrently.

Again, as made clear by the Court of Appeal, the importance of the individual sentences imposed is “not terribly important”; what matters is arriving at an end sentence that matches the totality of the offending.29

28 With particular reference to Winikerei v Police, above n 26; and Thornicroft v Police, above n 26. See also New Zealand Police v McMurtrie [2015] NZHC 1031, and McKenzie v New Zealand Police [2015] NZHC 2742.

29 R v Xie, above n 21, at [38].

Result

[25]I allow the appeal, and substitute a sentence of seven months’ imprisonment.

—Jagose J