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 risk of harm were assessed as medium. The report writer considered he had a high ability to comply with community based sentences but, given the seriousness of the offence, a sentence of imprisonment was recommended.

[8]      The report writer noted Mr McGarrett’s responsibility for caring for his 15 year old son.  Following Mr McGarrett’s offending, his son was placed in a youth facility in Manurewa, for which Mr McGarrett feels particularly guilty.  Also acknowledged were Mr McGarrett’s reports of abuse when he himself was a child in state care and his receipt of ACC compensation in this regard.

Other reports and letters

[9]      A letter from Dr Stone, a clinical psychologist who runs voluntary programmes in prison, stated he had been seeing Mr McGarrett for two months.  During that time, he observed Mr McGarrett had struggled with low mood, grief, regret for his offending behaviours and particularly concerns about his son’s well-being.  Dr Stone reported that Mr McGarrett previously began exploring his own history of child abuse and how that played a role in his offending-related behaviours.  This resulted in a period of seven years where he did not reoffend.

[10]     Mr McGarrett made no excuses for his offending, expressed regret and remorse for the impact on the community and saw how his offending could be avoided if he developed positive strategies in relation to stressors.   He was beginning again to address his needs via programmes in prison, identifying system drivers to his offending.   In Dr Stone’s professional opinion, Mr McGarrett had the intellectual capacity to integrate treatment outcomes into pro-social change and was motivated to continue to work towards making positive changes in his life.

[11]     There are copious letters of recommendation and support from Mr McGarett’s whānau and people in the community, including one from his pastor and one from his son.

District Court decision

[12]     In sentencing Mr McGarrett, the Judge noted Mr McGarrett’s comment to the pre-sentence report writer that he did not know what was in the package.  The Judge did   not   accept   counsel’s   explanation   the   report   writer   had   misinterpreted

Mr McGarrett’s comment.

[13]     The Judge considered the need to deter and denounce drug offending, and to hold Mr McGarrett accountable for the harm which could have been caused to the community.  He set the starting point as within band two of Fatu,3 being three years and six months’ imprisonment.

[14]     The Judge acknowledged the numerous letters in support of Mr McGarrett but refused to make an allowance for good character based on a lack of true insight into the offending.

[15]     The Judge allowed a nine month discount for the 27 months and one week Mr McGarrett spent on EM bail with a 24/7 curfew.   Counsel for Mr McGarrett had advocated for a greater discount, relying on Hohipa,4 but the Judge noted the criticism of that case in R v R, where the Court of Appeal determined a four to six month discount for 12 months was potentially available.5

[16]     The Judge acknowledged other factors, such as the letter from Mr McGarrett’s son and Mr McGarrett’s engagement with treatment programmes but found they were subordinate to the principles of denunciation and deterrence. Together these warranted a two month discount in his view.

[17]     Finally, a guilty plea discount of one month was adopted.  Together with the other discounts,  that  resulted  in  an  end  sentence of  two  years  and  six  months’

imprisonment.

3      R v Fatu [2006] 2 NZLR 72 (CA).

4      Hohipa v R [2015] NZCA 485.

5      R v R [2017] NZCA 210.

Submissions

[18]     Mr Simperingham for Mr McGarrett submits the Judge erred in: (a)      giving an inadequate discount for time spent on EM bail; (b)      failing to give a discount for remorse; and

(c)       giving an inadequate discount for Mr McGarrett’s guilty plea.

[19]     Mr Simperingham has, at his client’s request, raised a further appeal point, being that the sentencing Judge ought to have taken account of the unlawful nature of the search and seizure of Mr McGarrett’s vehicle when the methamphetamine was located.

[20]     On the first point, Mr Simperingham submits that the Court of Appeal has endorsed discounts of between one-third and one-half of time spent on EM bail. Further, where there has been full compliance and heavily restrictive conditions, as in the   present   case,   discounts   should   be   weighted   towards   the   upper   end.

Mr Simperingham suggests 13 months is an appropriate discount.

[21]     On  the  second,  Mr  Simperingham  submits  the  Judge  erred  in  rejecting counsel’s miscommunication explanation for the comment noted in the pre-sentence report.  Mr McGarrett’s explanation is supported by his letter to the Judge and by the letter  of  Dr  Stone.    Even  if  the  Judge  was  entitled  to  reject  that  explanation,

Mr McGarrett has still shown considerable insight into his offending and steps towards rehabilitation.  Although personal factors do not carry much weight in this kind of offending, the recent High Court cases of Bell and Snowden indicate that discounts of

3.7–5 per cent are still available for remorse and steps towards rehabilitation.6

[22]     On the last point, Mr Simperingham submits the delay in guilty plea was the result of an appeal which had some merit. The 15 per cent discount sought was made

on the basis that Mr McGarrett pleaded guilty as soon as his sole issue with the Crown

6      R v Bell [2017] NZHC 1818; and R v Snowden [2017] NZHC 1291.

case was resolved.  At sentencing, the Crown submitted a 10 per cent discount was appropriate. Mr Simperingham points to cases where 15 per cent discounts were given despite guilty pleas only entered following pre-trial appeals (admittedly these were taken by the Crown, but the defendants nonetheless elected to await admissibility outcomes prior to pleading guilty). Here, the Judge gave what was effectively a three per cent discount.

[23]     In conclusion, Mr Simperingham submits an end sentence of 22–24 months’ imprisonment would be appropriate, based on discounts of 13 months for EM bail, two months for letters of support, two months for remorse and a 15 per cent discount for his guilty plea.

[24]     Ms Mildenhall for the Crown submits the Judge did not err and the sentence is not manifestly excessive.   First, the Court of Appeal has noted that there is no mathematical formula for discounts for EM bail.7   Ms Mildenhall points to Parata v R, where the Court of Appeal endorsed a four month discount for 10 months’ EM bail where the defendant had breached his conditions,8 and to the comments in R v R as cited by the Judge.9

[25]     On remorse, Ms Mildenhall submits no discount was necessary because the Judge was entitled to be suspicious of Mr McGarrett’s remorse.  Ms Mildenhall notes the comments in Hessell,10 and points again to R v R where the Court of Appeal upheld a refusal to give credit for remorse where the pre-sentence report and the defendant’s letter to the Judge conflicted.11   She suggests that is similar to the circumstances of this case and refusal was thus not in error.

[26]     Regarding the guilty plea, Ms Mildenhall suggests the discount was within the

Judge’s discretion, notwithstanding it being considerably less than what the Crown had submitted was appropriate at sentencing. Had a 10 per cent discount been applied,

7      Chea v R [2016] NZCA 207 at [111] cited in R v R, above n 5, at [13].

8      Parata v R [2017] NZCA 48 at [10]–[14].

9      R v R, above n 5, at [14].

10     Hessell [2010] NZSC 135 at [64].

11     R v R, above n 5, at [8]–[10].

it would have only resulted in an additional two month discount, and the relative difference between the two is not manifestly excessive.

[27]     Ms Mildenhall concludes by noting the sentence is not manifestly excessive given the offending, Mr McGarrett’s criminal history and his initial denials.   The starting point could have been higher and some of the discounts were generous given the focus on deterrence and denunciation appropriate to this type of offending.12

Law

[28]     The appeal proceeds on the basis of s 250 of the Criminal Procedure Act 2011, where the appellate court must allow an appeal if it first finds an error in the sentence and then is satisfied that a different sentence ought to be imposed.

Analysis

[29]     I will begin by addressing the discount for the guilty plea because it seems to me this is where there is an obvious error in the sentence and one which might have been inadvertent. The Judge worked through the sentencing exercise from setting the starting point to making various deductions for mitigating factors, leaving a sentence, before consideration of the guilty plea, of 31 months’ imprisonment.  The Judge then addressed the submissions of counsel to the effect 15 per cent should be deducted, noting counsel made a strong point that, soon after the Court of Appeal decision, Mr McGarrett asked to be brought to Court to plead guilty rather than wait.  The Judge said:

[15]      … That is to your credit.

[16]      In the circumstances, I am prepared to give you a discount but not at the level of 15 per cent. In my view the appropriate sentence at the end of the day is one of two years six months’ imprisonment.

[30]     The  Crown  had  submitted  a  10  per  cent  discount  for  a  guilty plea  was appropriate. I suspect the Judge made an arithmetical error. The Judge acknowledged the guilty plea was to Mr McGarrett’s credit and was prepared to give him a discount

and then gave him a discount which was effectively three per cent.  On any analysis

12     Jarden v R [2008] NZSC 69, [2008] NZLR 612 at [12]–[14].

of Hessell, that would seem to be an error.  Ms Mildenhall submits that, had 10 per cent been applied, an additional two-month discount only would have applied which, in her submission, meant the sentence imposed was not manifestly excessive. However, given the error, and it being important that recognition is appropriately given to a guilty plea, I will consider the other issues raised and what the sentence should have been.

[31]     The  starting  point  of  three  years  and  six  months’  imprisonment  was appropriate.

[32]     First, regarding EM bail, although there is not to be a mathematical formula which applies to every case, there ought to be some semblance of proportionality with like circumstances.  The Parata case is of interest, given the 40 per cent discount for restrictive EM bail, despite conditions being breached.  Here there was no breach.  In respect of restrictive EM bail for 27 months and seven days, a 12 month reduction in sentence is appropriate.

[33]     Secondly, in respect of remorse, the genuineness of Mr McGarrett’s remorse is endorsed by the letter from his psychologist.  That letter is not only more recent than the pre-sentence report but also contains the expert opinion of a trained medical professional and shows evidence of rehabilitative efforts in prison.   The Judge considered Mr McGarrett’s remorse to be based on pretence but did not refer to Dr Stone’s letter at all. However, overall, I consider the two month discount given by the Judge adequately reflects remorse and efforts at rehabilitation.

[34]     The issue raised by Mr McGarrett, that the unlawful nature of the search and seizure should have counted as a mitigating factor, somewhat detracts from his contention of remorse.  In any event, the lawfulness of the search was relevant to the admissibility of the evidence found in Mr McGarrett’s car, the methamphetamine.  It does not detract from his culpability.  No discount is warranted.

[35]     In respect of his guilty plea, a discount of around 10 per cent is warranted.

[36]     This results in an end sentence of 25 months’ imprisonment. Seen in this light, the sentence imposed of two years and six months’ imprisonment was manifestly excessive.

Result

[37]     For the reasons given, the appeal is allowed.  The sentence of two years and six months’ imprisonment is quashed and replaced by a sentence of two years and one month.

Thomas J

Solicitors:

Woodward Chrisp, Gisborne for Appellant

Crown Law, Wellington for Respondent