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 CrownJudgment:
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…
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- AGLC
- McGarrett v The Queen [2017] NZHC 2785
- Case
- [2017] NZHC 2785
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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