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…

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 Garrett v Police

Details

AGLC: Garrett v Police [2019] NZHC 1411
Case: [2019] NZHC 1411
Decision Date: 20 June 2019

CaseChat Overview and Summary

Jonathon Thomas Errol Garrett appealed against his sentence of nine months’ imprisonment, imposed by the District Court for several theft and receiving charges, as well as breaches of intensive supervision and community work. The appeal was lodged outside the 20 working days prescribed by statute. The appeal was permitted to proceed despite the delay because it was short, explained, and not without merit. The sentencing appeal was assessed against the principle that the sentence must be manifestly excessive to warrant alteration. The Court found an error in the sentence for the receiving charge, which exceeded the maximum penalty prescribed by statute. The Court considered the totality of the offending and decided a cumulative sentence was appropriate, resulting in a sentence of seven months’ imprisonment.

The Court held that the appeal should be allowed and the sentence should be substituted with seven months’ imprisonment. The sentence was formulated as one month’s imprisonment for each of the five theft charges to be served cumulatively on each other, a further cumulative two months’ imprisonment for the breach of intensive supervision, and one month’s imprisonment on the receiving charge, to run concurrently. The Court emphasised that the importance of the individual sentences imposed was not terribly important; what mattered was arriving at an end sentence that matched the totality of the offending.

Orders