McGarrett v The Queen - [2017] NZHC 2785

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

I TE KŌTI MATUA O AOTEAROA TŪRANGANUI-A-KIWA ROHE

CRI-2017-416-21 [2017] NZHC 2785

BETWEEN
PHILLIP MCGARRETT

Appellant

AND

THE QUEEN Respondent

Hearing: 14 November 2017

Counsel:

A M Simperingham for Appellant
J E Mildenhall for Crown

Judgment:

14 November 2017

JUDGMENT OF THOMAS J

Introduction

[1] On 7 September 2017, Mr McGarrett was sentenced to two years and six months’ imprisonment in the Gisborne District Court following a guilty plea on a single charge of possession of methamphetamine for supply.1 He now appeals on the basis that the Judge erred in providing insufficient discounts for time spent on EM bail, remorse, unlawful search and seizure, and guilty plea.

Factual background

[2] Mr McGarrett was driving between Tauranga and Gisborne with an associate on the night of 20-21 January 2015. In Gisborne at approximately midnight, he was

1 R v McGarrett [2017] NZDC 20294; Misuse of Drugs Act 1975, ss 6(1)(f) and 6(2), maximum penalty life imprisonment.

stopped by police. The car was searched and police found 28 grams of methamphetamine in the glove box. They calculate it had a street value of approximately $28,000 (based on being sold at $1,000 per gram). Police also found a set of scales and several mobile phones in the car, and $2,200 in cash on
Mr McGarrett’s person.

[3] Mr McGarrett denied all knowledge of the drugs. His associate said she knew it was in the glove box but denied it was hers. Subsequent enquiries by police revealed Mr McGarrett had travelled to Tauranga to pick up the methamphetamine for the purpose of supplying it to known drug dealers in Gisborne.

[4] Mr McGarrett was charged in 21 January 2015. Given problems with the way in which the search was conducted (conceded by the Crown), he challenged the legality of the search. In May 2017, the Court of Appeal upheld the decision finding the evidence admissible.2 Mr McGarrett then pleaded guilty. He wrote a letter to the Judge accepting responsibility and outlining his remorse and concern for the harm methamphetamine causes to families, and the harm his actions have caused his son. He also noted his engagement with counselling following the offending.

[5] Mr McGarrett is 57 years old and has a significant criminal history. Most of that history is pre-2000, including two convictions for possession of cannabis for supply in the 1980s. The more recent convictions are for property and violence offences.

Pre-sentence report

[6] Mr McGarrett claimed to the pre-sentence report writer that he was gullible in picking up the package and did not know what was in it. The report writer was somewhat sceptical, referring to the planning associated with the offending and identifying peer association, entitlement, and anti-social attitudes as contributing
factors in his offending.

2 In the District Court R v McGarrett [2016] NZDC 16244; and R v McGarrett [2016] NZDC 15138.
In the Court of Appeal McGarrett v R [2017] NZCA 204.

[7] Mr McGarrett’s risk of reoffending and…

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 McGarrett v The Queen

Details

AGLC: McGarrett v The Queen [2017] NZHC 2785
Case: [2017] NZHC 2785
Decision Date: 14 November 2017

CaseChat Overview and Summary

Phillip McGarrett appealed his sentence of two years and six months’ imprisonment imposed by the Gisborne District Court for possession of methamphetamine for supply. He argued the Judge had erred in providing insufficient discounts for time spent on EM bail, remorse, unlawful search and seizure, and guilty plea. The Crown maintained the sentence was not manifestly excessive and was within the Judge’s discretion. The appeal was heard in the High Court of New Zealand, Gisborne Registry.

The legal issues before the court were whether the Judge erred in providing insufficient discounts for time spent on EM bail, remorse, unlawful search and seizure, and guilty plea. The court considered the submissions from both parties and relevant case law.

The court found an obvious error in the sentence regarding the discount for the guilty plea. The Judge had acknowledged the guilty plea was to Mr McGarrett’s credit but gave him a discount which was effectively three per cent, rather than the 15 per cent sought by counsel. The court found this to be an error and considered the other issues raised. The court found that a 12-month reduction in sentence for the 27 months and one week Mr McGarrett spent on EM bail was appropriate, and that the two-month discount given by the Judge adequately reflected remorse and efforts at rehabilitation. The court found no discount was warranted for the unlawful nature of the search and seizure, as it did not detract from Mr McGarrett’s culpability. The court found a discount of around 10 per cent was warranted for the guilty plea.

The court found that the sentence imposed of two years and six months’ imprisonment was manifestly excessive. The appeal was allowed, the sentence was quashed, and replaced by a sentence of two years and one month.

The final orders of the court were that the appeal was allowed, the sentence of two years and six months’ imprisonment was quashed and replaced by a sentence of two years and one month.

Orders