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…

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.

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Details

AGLC: The Queen v Garrett [2008] NZCA 294
Case: [2008] NZCA 294
Decision Date: 12 August 2008

CaseChat Overview and Summary

The appeal of Stephen William Garrett against his sentence was dismissed by the Court of Appeal of New Zealand. Garrett was found guilty of causing grievous bodily harm with intent to injure. The appeal was against the three and a half years' imprisonment sentence imposed by Judge Harrop, which was considered excessive by the appellant's counsel. The appeal contended that the Judge failed to give adequate credit to the appellant's offer to plead guilty to the lesser charge, his agreed reparation payment of $20,000, his good character, and other mitigating factors. It was also argued that the Judge erred in attributing a leadership role to the appellant in the offence.

The legal issues before the court were whether the sentence was manifestly excessive, whether the Judge gave proper weight to the mitigating factors and the agreed reparation payment, and whether the Judge was correct in attributing a leadership role to the appellant. The court held that the sentence was within the permissible range and not manifestly excessive. The court found that the Judge was entitled to conclude that the appellant had a leadership role in the offence, and that the mitigating factors did not warrant a greater discount than the 30% reduction applied. The reparation payment was considered substantial and appropriate, and the sentence was not unfair when compared to the co-offender's sentence.

The appeal was dismissed, and the original sentence of three and a half years' imprisonment was upheld. The court held that the sentence was not manifestly excessive and was within the permissible range, taking into account all the mitigating and aggravating factors, and the agreed reparation payment. The court found that the Judge did not err in attributing a leadership role to the appellant, and that the mitigating factors did not warrant a greater discount than the 30% reduction applied.

Orders