GARRETT v NEW ZEALAND POLICE [2019] NZHC 1411

GARRETT v NEW ZEALAND POLICE [2019] NZHC 1411 [20 June 2019]IN THE HIGH COURT OF NEW ZEALANDHAMILTON REGISTRYI TE KŌTI MATUA O AOTEAROAKIRIKIRIROA ROHECRI 2019-419-0033[2019] NZHC 1411BETWEEN JONATHON THOMAS ERROL GARRETTAppellantAND NEW ZEALAND POLICERespondentHearing: 20 June 2019Appearances: M J James for the appellantASC Alcock for the respondentJudgment: 20 June 2019ORAL JUDGMENT OF JAGOSE JSolicitors:Public Defence Service, HamiltonAlmao Douch, Hamilton[1] Jonathon Garrett appeals his sentence of nine months' imprisonment imposedby Judge A C Roberts in the District Court at Hamilton on 1 March 2019.1[2] Mr Garrett was sentenced on five charges of theft (under $500),2 one charge ofreceiving property (under $500),3 one breach of community work,4 and one breach ofintensive supervision.5Leave to appeal out of time[3] Mr Garrett requires an extension of time to appeal,6 as his appeal was not filedwithin 20 working days of sentence.7 It was filed on 6 May 2019, over two monthsafter his 1 March 2019 sentencing.[4] Extensions of time are granted in the interests of justice.8 Here, the delay isshort and explained.9 Mr Garrett's counsel, Melissa James, only became aware of anapparent error in the sentence imposed when carrying out disclosure for Mr Garrett onother matters. The appeal is not without merit and the police do not object to leavebeing granted. Leave is granted in the interests of justice.Approach to appeals against sentence[5] I must allow the appeal only if I am satisfied both there is an error in thesentence, and a different sentence should be imposed.10 In any other case, I mustdismiss the appeal.11 The approach previously taken by courts on sentencing appealscontinues to apply;12 the measure of error is the sentence be "manifestly excessive" –the principle is "well-engrained" in this Court's approach to sentencing appeals.13 Iwill not intervene where the sentence is within a range properly justified by accepted1 Police v Garrett [2019] NZDC 3762.2 Crimes Act 1961, ss 219 and 223(d).3 Sections 246 and 247(c).4 Sentencing Act 2002, s 71(1)(a).5 Section 70(A)(a).6 Criminal Procedure Act 2011, s 248(4).7 Section 248(2).8 Mikus v R [2011] NZCA 298 at [26].9 See R v Lee [2006] 3 NZLR 42 (CA) at [115].10 Criminal Procedure Act 2011, s 250(2).11 Section 250(3).12 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27].13 At [33] and [35].sentencing principle. Whether 'manifestly excessive' is to be assessed in terms of thesentence given, rather than the process by which it is reached.14Offending[6] Mr Garrett's offending for sentence took place late last year. The shopliftingcharges and the single charge of receiving arose out of five separate incidents atsupermarkets and department stores around November 2018, of goods valued between$40 and $120.[7] Only days before the spate of offending, on 25 October 2018, Mr Garrett wassentenced to nine months' intensive supervision for breaching court release conditionsand a dishonesty offence. He also was sentenced to 140 hours community work in lieuof fines totalling over $7,000.[8] Mr Garrett was instructed to report to his probation officer on 30 October 2018as conditions of his sentences of both intensive supervision and community work. Hedid not do so, and defaulted five times. The probation officer said "[i]t appears that MrGarrett has no intention of engaging with his Intensive Supervision Sentence andaddressing his offending needs".District Court decision[9] Judge Roberts saw Mr Garrett's pattern of behaviour and level ofpremeditation as aggravating factors, especially when viewed against his "unfulfilledcommitment to community work and to intensive supervision".15 Mr Garrett'soffending was "otherwise unremarkable".16[10] The Judge initially proposed to adopt a starting point of eight months'imprisonment for the shoplifting charges "overall". The receiving charge was includedhere, given Mr Garrett received the items from another thief. The Judge applied a four-month uplift for breach of the sentence of intensive supervision, viewing it to14 Ripia v R [2011] NZCA 101 at [15].15 Police v Garrett, above n 1, at [6].16 At [4].perpetuate Mr Garrett's default. The Judge gave "full concession" in light of MrGarrett's guilty pleas to reduce that twelve-month end sentence to nine months.[11] But the Judge formally constructed Mr Garrett's end sentence as comprising:17(a) four months' imprisonment for the breach of intensive supervision;(b) five months' imprisonment, to be served cumulatively, in relation to thecharge of receiving; and(c) two months' imprisonment on each of the five shoplifting charges, torun concurrently.Mr Garrett was discharged without conviction on the charge of breaching communitywork, the Judge acknowledging he later had applied himself to it. The outstandinghours were remitted.Mr Garrett's ground of appeal against sentence[12] Unfortunately for the end sentence's formal formulation, for receiving stolengoods valued at $500 or less, the maximum penalty is three months' imprisonment.18There is no other challenge to the Judge's assessment of the facts or the sentencesimposed in relation to the other charges.[13] Counsel for the police, Amy Alcock, accepts there is an error in the sentenceimposed on the receiving charge, but says it is necessary to consider the "globalsentencing response" to determine if a different sentence should have been imposed.1917 At [7].18 Crimes Act 1961, s 247(c).19 Ms Alcock also points to s 180 of the Criminal Procedure Act 2011 as an alternative course ofaction available to Mr Garrett. Section 180(2) holds that if any sentence is erroneous, the DistrictCourt judge who imposed the sentence may impose a new sentence. But she acknowledges unders 180(3), the court may remove the matter into a first appeal court, who will deal with it as if itwere an appeal on a question of law. And she acknowledges Mr Garrett has not elected to pursuethis pathway and there is no suggestion the appeal pathway he has chosen is unavailable to him.Discussion[14] Clearly, the sentence for receiving exceeds the maximum penalty prescribedby two months. The error is not insignificant; imposed cumulatively, it directly affectsthe length of the overall sentence. At the least, I must restructure Mr Garrett'ssentence.20[15] Ms James commends only substitution of two months' imprisonment forreceiving. Mr Garrett's end sentence would be six months' imprisonment. But, in myview, that would be to disregard the totality of his offending. Ms Alcock submits eightmonths' imprisonment is available cumulatively to better reflect that totality.[16] Under s 84 of the Sentencing Act 2002, where the offences are of a similar kindand are a connected series of offences, concurrent sentences generally are appropriate.But the final sentence must reflect the totality of the offending and how that finalsentence is constructed has "never been important".21 Mr Garrett's overall shopliftingand receiving culpability demanded an end sentence which exceeded the maximumpenalty for theft of goods valued at under $500, if calculated concurrently.[17] In those circumstances, s 84 does not prevent the use of cumulative sentencingeven where offences are of a similar kind or part of a connected series of offences.22Further, s 84 only gives guidance as to where concurrent sentences "are generallyappropriate". That guidance does not 'trump' totality.23 Here, Mr Garrett is a recidivistoffender who is assessed as being at medium risk of re-offending, which isunsurprising given the repetitive nature of his offending. Subject to the principle oftotality, cumulative sentences were available.24[18] The Judge's error could be described as technical. The starting point and upliftsadopted show a focus on the appropriate end sentence to be reached, with the erroronly occurring with the construction of that sentence. But it is error all the same, so Imust assess if the end sentence was manifestly excessive.20 See R v Henderson CA86/05, 11 October 2005 at [9] and [21].21 R v Xie [2007] 2 NZLR 240 at [16].22 At [19]–[20].23 At [18].24 See Kennedy v Police [2013] NZHC 714 at [7].[19] Shoplifting offending varies greatly in gravity and culpability, and for thatreason limited assistance "can be obtained from comparing recidivist shoplifting casesbecause the circumstances are infinitely various."25 Nonetheless, I have had regard forbroadly comparable cases.26[20] Mr Garrett's offending occurred within a two-month window and the value ofthe goods he took or attempted to take was $286, excluding the goods he receivedwhich were valued at $103. Despite his relative youth (he is 24 years old), he hasamassed several convictions for various dishonesty offences, breaches of intensivesupervision and community work sentences, aggravated robbery and burglary. He alsohas convictions for drug and driving-related offending. His substance use seems toplague him, with his parents removing their consent for him to be placed on anelectronically monitored sentence at their home when he relapsed into drug use. In thepre-sentence report, Mr Garrett acknowledged his drug use has been a factor in hisoffending.[21] Viewing the gravity of the offending and Mr Garrett's culpability against thecases I have reviewed, Mr Garrett's end sentence of nine months' imprisonment (aftera 25 per cent discount for guilty pleas) is manifestly excessive, given its"unremarkable nature". In cases where an inferred twelve-month starting point hasbeen adopted, the offending itself was of a different nature and/or the offender had farmore relevant previous convictions.27[22] Still, the frequency with which Mr Garrett continued to shoplift despite beingcaught is alarming. His specific breaches of intensive supervision and community25 Kelly v Police [2013] NZHC 1250 at [31]–[32].26 Rochford v Police HC Nelson CRI-2007-442-025, 20 February 2008 (twelve-month starting pointreduced to nine months' imprisonment on guilty pleas to eight charges of "particularly despicable"theft from charity boxes); Thornicroft v Police [2018] NZHC 2895 (six-month starting pointuplifted by two months for other offending, but discounted back to six months' imprisonment forsix charges of theft under $500, one charge of breaching release conditions and four charges ofwilful trespass, and there is a useful comparative table at [24]); and Winikerei v Police HCHamilton CRI-2010-419-000032, 5 May 2010 (four-month starting point, cumulative for the theftcharges, uplift by three months, and discounted by 25 per cent for guilty pleas to end sentence offive months' imprisonment).27 See Kelly v Police [2013] NZHC 1250 (the appellant had 23 previous convictions for shopliftingand the lead charge was theft of items valued at just over $500, which carries a higher maximumpenalty); Kennedy v Police [2013] NZHC 714 (the appellant had 36 previous convictions forshoplifting); and Rochford v Police, above n 26.work are aggravating factors as is the fact all offending occurred while he was subjectto a sentence of intensive supervision. Clearly a degree of denunciation and deterrenceis needed.[23] In light of the cases I have reviewed,28 I adopt:(a) a starting point of six months to reflect the five theft charges and thesingle charge of receiving stolen goods;(b) an uplift of two months to reflect the breaches of intensive supervisionand community work;(c) an uplift of one month to reflect Mr Garrett's relevant previousconvictions, and his offending occurred while he was still subject to thesentence of intensive supervision; and(d) a discount of 25 per cent for his early guilty pleas (this would result ina rounded discount of two months).That produces an end sentence of seven months' imprisonment.[24] I formulate that as:(a) one month's imprisonment for each of the five theft charges to beserved cumulatively on each other;(b) a further cumulative two months' imprisonment for the breach ofintensive supervision; and(c) one month's imprisonment on the receiving charge, to run concurrently.Again, as made clear by the Court of Appeal, the importance of the individualsentences imposed is "not terribly important"; what matters is arriving at anend sentence that matches the totality of the offending.2928 With particular reference to Winikerei v Police, above n 26; and Thornicroft v Police, above n 26.See also New Zealand Police v McMurtrie [2015] NZHC 1031, and McKenzie v New ZealandPolice [2015] NZHC 2742.29 R v Xie, above n 21, at [38].Result[25] I allow the appeal, and substitute a sentence of seven months' imprisonment.—Jagose J