The Queen v Garrett

[2008] NZCA 294

IN THE COURT OF APPEAL OF NEW ZEALAND

CA176/2008
[2008] NZCA 294

THE QUEEN

v

STEPHEN WILLIAM GARRETT

Hearing:31 July 2008

Court:Ellen France, Gendall and Miller JJ

Counsel:A Stevens for Appellant

S J Mount for Crown

Judgment:12 August 2008 at 3.30 pm 

JUDGMENT OF THE COURT

The appeal is dismissed.

REASONS OF THE COURT

(Given by Gendall J)

[1]       Mr Garrett was sentenced to three and a half years’ imprisonment after being found guilty at trial of causing grievous bodily harm with intent to injure: DC NEL CRI‑2006-042-003467 5 March 2008.  Both he and a co-offender, Mark McCully, had also been charged with causing grievous bodily harm with intent to cause such harm but were acquitted.  Mark McCully was found guilty of the same crime as the appellant, namely causing grievous bodily harm with intent to injure.  A third co‑offender, Karl Bensemann, was found guilty of causing grievous bodily harm with intent to cause such harm and was sentenced to five and a half years’ imprisonment.

[2]       Additionally the appellant was ordered to pay reparation as an agreed sum of $20,000 and Mr McCully ordered to pay $5,000 reparation.

[3] The appellant appeals against sentence. Mrs Stevens, on behalf of the appellant, contended that the sentence of three and a half years’ imprisonment was manifestly excessive because the Judge failed to recognise or give appropriate credit to the fact that the appellant had offered to plead guilty to the lesser charge on which he was convicted; proper weight and credit was not given for the agreed reparation and substantial mitigating factors, including his good character; and the Judge erred in coming to the view that the appellant was “the leader of this operation” with the other co-offenders “subservient” to him: at [72]. Judge Harrop was trial and sentencing Judge.

Factual background

[4]       The convictions arose out of a vigilante attack by the appellant and two co‑offenders seeking retribution upon a man who they believed had been responsible for a burglary at an isolated farm property, owned by the appellant, in the Collingwood area.  The Judge said that there was no evidence to implicate the complainant in that burglary.  The co-offender, Mr Bensemann, was employed by Mr Garrett.  Mr McCully was employed as manager of a machinery syndicate formed by Mr Garrett and three other farming families.  In the course of the burglary a significant number of tools of Mr McCully, and some items belonging to Mr Bensemann, were taken from a shed on Mr Garrett’s land.  A complaint was made to the local police and the appellant regarded himself as a joint complainant because of his insurance.

[5]       Nothing came of police inquiries and as a consequence the appellant, together with Messrs McCully and Bensemann, decided to take matters into their own hands.

[6]       The three offenders had been given the name of a person who may have been responsible for the burglary and thefts.  So the appellant and his co-offenders decided to seek him out.  They travelled together from the remote Golden Bay rural area, in a vehicle of which the appellant had the use, to a cafe in Takaka where they had a meal and drank alcohol.  The 19-year-old complainant worked there as a kitchen hand.  He was pointed out to them.  They waited outside in the dark to assail him.  Mr McCully had a metal bar and Mr Bensemann had a wooden baseball bat.  The appellant’s evidence was that he was not initially aware those weapons were in the vehicle, but realised this when the trio arrived at Takaka.  The complainant was grabbed by the appellant and set upon by all three.  The two co-offenders used the weapons, with which they were armed.  The attack upon the complainant in the carpark left him with very serious injuries. 

[7]       All three offenders were charged with causing grievous bodily harm with intent to cause such harm.  Mr Bensemann (who wielded the baseball bat) was found guilty.  The appellant and Mr McCully were found not guilty of that crime but guilty of the alternative charge of causing grievous bodily harm with intent to injure.

Sentencing

[8]       The appellant was aged 43 years and had no previous convictions.  He was a man of otherwise good character, respected in the community and a successful farmer, having acquired significant assets.  The complainant had sought reparation of $20,000 from each offender, and the appellant agreed to pay reparation in this sum.  The Judge accepted the offending was completely out of character and that the appellant was very remorseful.  The Judge however, considered that issues such as premeditation, and what he regarded as the appellant’s “leadership role”, did not fix the appellant’s culpability as less than the other two, subject to the jury’s verdict. 

[9]       The Judge took as a starting point based upon the R v Taueki [2008] 3 NZLR 372 (CA) guidelines, five years’ imprisonment for both the appellant and Mr McCully. For Mr Bensemann the Judge said that a starting point of 10 years’ imprisonment was justified, with mitigating factors leading to a sentence of seven and a half years’ imprisonment. He reduced this further to five and a half years’ imprisonment to ensure some parity with the sentences for Messrs Garrett and McCully.

[10]     Counsel for the appellant correctly does not object to the starting point of five years’ imprisonment adopted by the Judge.

[11]     The Judge then fixed a term of three and a half years’ imprisonment, he said at [91]:

What I have done, on balance with mitigating factors, is offset by your leadership role, is to reduce a starting point of five years by about 30% and for someone that has not pleaded guilty I consider that the maximum discount I can reasonably give, taking into account your willingness to pay reparation.

Aggravating features

[12]     The Judge recognised the aggravating features as being a premeditated group attack by using weapons leaving the complainant seriously injured.  It was vigilante action which required, as he said, a deterrent sentence.

Mitigating factors

[13]     The mitigating factors relating to the appellant were significant and emphasised by his counsel.  He was entitled to recognition for offering to plead guilty to the alternative lesser charge upon which he was found guilty.  That is apparent from his affidavit and counsel’s communications to the prosecution.  Secondly, the agreement to, and the payment of, reparation of $20,000 had to be taken into account.  Thirdly, he had no previous convictions, good character and community support, and significant remorse.  All of these were factors which entitled him to a proper reduction from the acknowledged appropriate starting point.  Whilst the Judge did not specifically record any identifiable discount for any individual reason and nor did he refer to the offer to plead guilty on the alternative lesser charge, nevertheless, it does not necessarily follow that the overall discount for all mitigating factors, discussed by the Judge as the “maximum” of 30 per cent, was inadequate.  In the end the analysis must be whether the final sentence is manifestly excessive, viewed against proper guidelines, all mitigating and aggravating features, and any discount for a willingness to plead guilty if the more serious charge was withdrawn.

Submissions and discussion

[14]     Counsel argued that the Judge was wrong to attribute to the appellant a “leadership role”.  We do not accept that submission.  The Judge had the advantage of hearing all the evidence in the case.  This included the evidence of the appellant.  He had the distinct benefit of forming impressions from all the evidence as he saw and heard it.  The accused was in a position of authority to both co-offenders who were driven in a vehicle, that he was able to use, to the scene of the attack.  It was planned and intended that the complainant would be confronted.  It was open to the Judge to conclude that if the appellant had said to his employees “this is not a good idea and should stop”, that is what would have happened.  This was apparent from his sentence.  Although Mrs Stevens argued that the Judge reached his conclusion as to “leadership role” on the pre-sentence reports of the co-offenders, there is nothing to indicate that he did.  Rather the appellant’s own pre-sentence report refers to his wife reporting that:

She never tried to stop her husband as she knew he wouldn’t listen and he was “hell bent on sorting him out”.

[15]     Counsel made the point that both the accused and Mr McCully should not have been treated the same because the latter had a weapon, and was ordered to pay very much less by way of reparation.  But Mr McCully was 13 years younger than the accused, was an employee of or under his supervision, and of considerably less means.  Counsel argued that as the same discount of 30 per cent applied to both the appellant and Mr McCully, the appellant was unfairly discriminated against given his good character, remorse and the size of his reparation payment.

[16]     Counsel for the appellant submitted that a discount of 40 to 45 per cent should have been given.  A sentencing Judge may have given a discount of less than 30 per cent, say 25 per cent  (leaving an ultimate sentence of three years nine months) or more, say a third (which would result in a sentence of three years four months).

[17]     Mr McCully was, perhaps generously, given the benefit by the Judge of the assumption that he did not use his weapon, but that does not enable the appellant to complain that a distinction had to be drawn in the sentences of himself and Mr McCully.

[18]     The reparation payment was substantial and what the victim wanted, and the Judge had to take it into account under s 10 of the Sentencing Act 2002 as concrete evidence of contrition and mitigation of harm done to the victim.  The weight attached to the reparation was appropriate in the circumstances.  The victim suffered long-term physical harm and a deterrent sentence was called for.

[19]     Whilst the Judge erred in not referring to a discrete credit for the appellant’s willingness to plead guilty to the alternative lesser charge, the ultimate question is whether the sentence was manifestly excessive.  The offending by the appellant involved a leadership role and calculated serious vigilante group bad violence with long-term injury to the victim.  Those features offset leniency that a person of otherwise good character might be afforded; it not being a case of loss of control in circumstances of provocation.

[20]     We have concluded the sentence was within the permissible range and not manifestly excessive.

[21]     The appeal is dismissed.

Solicitors:
Crown Law Office, Wellington