GARDNER v POLICE [2023] NZHC 3683

GARDNER v POLICE [2023] NZHC 3683 [13 December 2023]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2023-404-436CRI-2023-404-437CRI-2023-404-438[2023] NZHC 3683BETWEEN BRENDAN STEWART GARDNERAppellantAND NEW ZEALAND POLICERespondentHearing: 12 December 2023Appearances: M J Hamlin for appellantJ L Gibson for respondentDate of judgment: 13 December 2023JUDGMENT OF JAGOSE JThis judgment was delivered by me on 13 December 2023 at 3.30pm.Registrar/Deputy RegistrarCounsel/Solicitors:Marek Hamlin, Barrister, AucklandMeredith Connell, Auckland[1] Brendan Stewart Gardner appeals against the 21 July 2023 decision ofJudge D J Sharp in the District Court at Auckland,1 sentencing him to 24 months'imprisonment on his guilty pleas to 41 generally transport-related charges.2Background[2] Mr Gardner's offending for sentencing spans from 2020 to 2023. It largely isconstituted by his driving while disqualified and thefts of petrol, but extends toreceiving a vehicle, theft of petrol and mail and one failure to answer District Courtbail. He has an extensive criminal history comprised of about 100 convictions forcomparable offending and repeated failures to comply with Court orders.Judgment under appeal[3] Judge Sharp took the receiving charge as the lead offence for sentencing,justifying something in the range of 15 months' imprisonment, but observedMr Gardner's "relatively uninhibited" offending and while on bail required uplifts,also to recognise Mr Gardner's failure to engage with rehabilitative measures forwhich sentencing had been deferred.3[4] The Judge uplifted the indicated 15 months by 12 months for the otheroffending and a further three months on account of his criminal history.4 He discountedthat 30-month starting point by 6 months (20 per cent) on account of Mr Gardner'sguilty pleas. No further discounts were forthcoming, although the Judge notedMr Gardner had "personal health issues and family commitments that aresignificant", which he "[did] not under rate in terms of the end result".5 Given "theweight of offending", the Judge assessed Mr Gardner was not a candidate for homedetention.61 Police v Gardner [2023] NZDC 16775.2 Theft (under $500) (x 26) (Crimes Act 1961, ss 219 and 223(d): maximum penalty, 3 months'imprisonment); receiving over $1,000 (ss 246 and 247(a): maximum penalty, 7 years'imprisonment); driving while disqualified (third and subsequent) (x 13) (Land Transport Act 1998,ss 32(1)(a) and (4): maximum penalty 2 years' imprisonment); failing to answer District Court bail(Bail Act 2000, s 38: maximum penalty, 1 year's imprisonment).3 Police v Gardner, above n 1, at [2].4 At [5].5 At [6].6 At [6].[5] For Mr Gardner, Marek Hamlin seeks leave to adduce new evidence on appealattesting to Mr Gardner's medical condition, which he submits justifies imposition ofa non-custodial sentence.Approach on appeal[6] I must allow the appeal only if I am satisfied both there is error in the sentence,and a different sentence should be imposed.7 In any other case, I must dismiss theappeal.8 The measure of error is the sentence be "manifestly excessive", a principle"well-engrained" in this Court's approach to sentencing appeals.9 I will not intervenewhere the sentence is within a range properly justified by accepted sentencingprinciple. Whether 'manifestly excessive' is to be assessed in terms of the sentencegiven, rather than the process by which it is reached.10Further evidence[7] It is well-understood prospective evidence to be adduced on appeal is to be"fresh, credible, and cogent",11 and this requirement serves to balance the interests ofthe parties and ensure the just and efficient dispatch of litigation.12 On appeal againstsentence:13[I]f the fresh evidence is not credible it should not be admitted. If it is credible,an assessment needs to be made as to whether or not it could have beenpresented to the sentencing Court with reasonable diligence. If the evidence isboth credible and fresh it should be admitted unless the appellate court issatisfied it would have had no effect on the sentence. If the evidence is crediblebut not fresh, the appellate court should assess its strength and its potentialimpact on the sentence. If the appellate court considers that the sentence couldbe manifestly excessive if the evidence is excluded, then it should be admittednotwithstanding that it is not fresh.7 Criminal Procedure Act 2011, s 250(2).8 Section 250(3).9 McCaslin-Whitehead v R [2023] NZCA 259 at [27], affirming Tutakangahau v R [2014] NZCA279, [2014] 3 NZLR 482 at [32]–[35].10 At [28], citing Tutakangahau v R, above n 9, at [36].11 Lawyers for Climate Change Action NZ Inc v Climate Change Commission [2023] NZCA 443 at[12], citing Rae v International Insurance Brokers (Nelson Marlborough) Ltd [1998] 3 NZLR 190(CA) at 192–193, and Paper Reclaim Ltd v Aotearoa International Ltd (Further Evidence) (No 1)[2006] NZSC 59, [2007] 2 NZLR 1 at [6].12 Rae v International Insurance Brokers (Nelson Marlborough) Ltd, above n 11, at 192.13 M (CA78/2022) v R [2023] NZCA 151 at [27], affirming Mark v R [2019] NZCA 121 at [16].Discussion—evidence[8] Mr Gardner wishes to adduce his own affidavit, in which he explains his morerecent comprehension of the cause of his ill-health and its prognosis as weighting thebalance in favour of a sentence of home detention. He seeks also to adduce the affidavitof a private investigator, who reports on his related enquiries.[9] Mr Gardner has had difficulty breathing since 2021, diagnosed as dyspnoea,with marked deterioration in early 2023. At the time of his sentencing on 21 July 2023,he had undergone an initial chest x-ray, but had yet to know of its report.[10] The report issued after sentencing advised the x-ray showed: severe bullous emphysema affecting most of the right lung with somecollapse in the right mid-zone. There appears to be very little functional rightlung. There was also bullous disease in the left upper lobe with some relativelynormal aerated lung in the left lower lobe. This has progressed since a chestx-ray in November 2021 and particularly since December 2021.The report recommended treatment by inhaler and possibly "pulmonary rehabilitation,but clearly not whilst on home detention". Subsequent medical examination identifiedfurther investigation was desirable for determination of possible surgical intervention.[11] Mr Attwood's enquiries establish such determination may provisionally havebeen made, but its finalisation and communication remains awaited. Mr Attwood alsoobserves there is ambulance support within five minutes' travel of Mr Gardner's prisonand hospital facilities within 45 minutes' travel. Otherwise Mr Attwood's affidavit isinadmissible hearsay.[12] Mr Gardner says he is concerned, given his deteriorating medical condition, hemay die in prison. His requests for compassionate release have been declined(expressly on grounds his disease is not considered terminal, potential treatmentoptions may extend his life, and release is premature in advance of identification ofthose treatment options). He says the treatment he has been receiving in prison isinadequate, particularly as "delayed" and "very slow", and considers he "would havebetter access to treatment and emergency service if granted home detention".[13] Thus Mr Gardner seeks an alternative sentencing outcome on the basis ofsubsequent information. While I recognise his motivations, the evidence he seeks toadduce could not have had any effect on his sentence because none of it then was inexistence at all. The most the Judge could have known was Mr Gardner was awaitingthe report of his chest x-ray if explanatory of anything in his known medical conditionof shortness of breath. There was no diagnosis or prognosis or proposed course oftreatment as might establish any error in Mr Gardner's sentence. Once sentenced, suchnew information falls for Corrections' management.[14] Mr Gardner's application to adduce new evidence on appeal will be declined.—sentence[15] Although Mr Gardner's appeal wholly is dependent on admission of thatproposed evidence, I nonetheless assess if it may have influenced the outcome.[16] Even now, the only presently available medical evidence is Mr Gardner'ssevere bullous emphysema for treatment by inhaler, plainly suitable for dispensationin prison, with other rehabilitation not being available even on home detention. Inprison, Mr Gardner has the benefit of both institutional on-site health care, andCorrections' statutory obligations to provide prisoners with all "medical treatment thatis reasonably necessary" and afford prisoners health care "reasonably equivalent to thestandard of health care available to the public".14 In Mr Gardner's circumstances,leaving aside his acknowledged mortal concerns, that likely is a better option thanhome detention without such facilities (and subject to additional complexity to achieveany required absences).[17] Accordingly, there is nothing to counterbalance the Judge's assessment againsthome detention. Only "limited" reduction in Mr Gardner's short-term sentence isavailable on account of his known ill-health.15 Not recognising it by discount does notrender his otherwise appropriate sentence "disproportionately severe".16 The fewweeks' reduction that might be available invites characterisation as tinkering, against14 Corrections Act 2004, s 75.15 Heremaia v R [2023] NZCA 232 at [60], citing M (CA91/2012) v R [2013] NZCA 325 at [54].16 Tan v R [2023] NZCA 446 at [120], citing M (CA91/2012) v R, above n 15, at [52].which I should be resolute.17 The Judge's sentence cannot be said excessive, let alonemanifestly so.Result[18] The application to adduce further evidence on appeal is dismissed.[19] The appeal is dismissed.—Jagose J17 Uruamo v R [2023] NZCA 356 at [24], citing Maihi v R [2013] NZCA 69 at [21] and Mack v R[2013] NZCA 183 at [16]; Carter v R [2023] NZCA 454 at [17]. See also R v Boyd (2004) 21CRNZ 169 (CA) at [38]: "[T]here ought to be a respectable margin of appreciation for thejudgment of the trial Judge, particularly bearing in mind that sentencing is not a science".