Barber v The the Queen
[2022] NZHC 1435
•16 June 2022
IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY
I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE
CRI-2022-454-8
[2022] NZHC 1435
BETWEEN RICHARD STUART BARBER
Appellant
AND
THE QUEEN
Respondent
Hearing: 16 June 2022 Appearances:
J N Olsen for Appellant
M M Wilkinson-Smith for Respondent
Judgment:
16 June 2022
ORAL JUDGMENT OF GENDALL J
This judgment was delivered by me on at Registrar/Deputy Registrar
Date:
BARBER v R [2022] NZHC 1435 [16 June 2022]
Introduction
[1] The appellant, Mr Barber, pleaded guilty to one charge of sexual violation by unlawful sexual connection.1 On 22 April 2022, in the District Court at Palmerston North, he was sentenced to one year, 10 months and two weeks’ imprisonment.2
[2] The appellant now appeals his sentence. He submits the sentence was manifestly excessive and a sentence of home detention ought to have been imposed.
Background to the offending
[3] The background to the offending is not in dispute. Judge Northwood in the District Court summarised the facts as follows:3
The complainant, her family and others were at Mr Barber’s home in Foxton for a social occasion. Alcohol was consumed. The complainant became intoxicated and was taken to a bed by her husband around midnight. Allegedly, she awoke in the early hours of the morning to find the defendant sexually violating her with a finger or fingers.
District Court decision
[4] In the District Court, Judge Northwood adopted a starting point of 2 years and six months’ imprisonment, for his sentencing decision.4 The Judge then applied a 20 per cent discount for Mr Barber’s guilty plea,5 and a five per cent discount for previous good character.6 The Judge refused to allow any discount for remorse.7 This resulted in an end sentence of one year, 10 months and two weeks’ imprisonment. Despite the end sentence being a sentence of short imprisonment, the Judge concluded the presumption of imprisonment in s 128B of the Crimes Act 1961 could not be overcome and imposed a sentence of imprisonment.8
1 Crimes Act 1961, ss 128 and 128B — maximum penalty 20 years’ imprisonment.
2 R v Barber [2022] NZDC 7128 [the sentencing decision].
3 R v Barber DC Te Papaioea | Palmerston North CRI-2020-031-686, 3 November 2021 [the sentencing indication] at [1].
4 The sentencing decision, above n 2, at [2].
5 At [2].
6 At [28].
7 At [19].
8 At [38].
Submissions
Appellant's submissions
[5] Turning now to the appellant submissions before me, the appellant brings their appeal on the following grounds:
(a)first the Judge erred by making factual findings as to aggravating factors without following the mandatory process in s 24 of the Sentencing Act 2002 and by failing to find those facts proved beyond reasonable doubt;
(b)secondly, the Judge further erred by taking into account an unproven propensity allegation that was admissible for the trial, but was not proved beyond reasonable doubt for the purposes of affecting the appellant’s previous good character discount;
(c)thirdly, the Judge erred by discarding the appellant’s genuine remorse and insight into his offending, instead conflating other issues; and
(d)fourthly, the Judge relied on an unestablished aggravating factor to find that the appellant could not displace the presumption of imprisonment (which he had otherwise met in all other respects).
[6] For the appellant, Mr Munro and Mr Olsen say that but for these errors he would have received a sentence of home detention.
Respondent’s submissions
[7] In response the respondent submits that Judge Northwood made no error. Ms Wilkinson-Smith for the Crown suggests it is incorrect to characterise the Judge’s comments about the appellant’s dishonesty as an aggravating factor and that these are better seen as the absence of a mitigating factor, namely a factor relevant to remorse and the prospects of rehabilitation.
Crown’s submissions
[8] The Crown position is the Judge made no error too in considering the propensity evidence in the context of a discount for previous good character. Ms Wilkinson-Smith contends it would be incorrect to find that the appellant had previously demonstrated good character in his dealings with women, and that in any case the Judge did allow a discount for his lack of previous convictions.
[9] Submissions are also advanced for the Crown that the evidence suggests a lack of any real acknowledgement of wrongdoing by the appellant within his own community, but rather concern for his own situation.
[10] Finally, Ms Wilkinson-Smith maintains the end sentence was not manifestly excessive. She says the appellant had a hurdle to overcome, namely the presumption of imprisonment for charges of sexual violation, and that the decision by the Judge not to exercise his discretion to commute the sentence to one of home detention was a decision that was available to him and not plainly wrong.
Relevant law
[11] Turning now to the relevant law in this matter, s 128B(2) of the Crimes Act 1961 is a reverse onus provision which provides that a person convicted of sexual violation must be sentenced to imprisonment unless the Court thinks that the person should not be imprisoned, having regard to the matters stated in subs (3). Those matters under subs (3) are first the particular circumstances of the person convicted; and secondly, the particular circumstances of the offence, including the nature of the conduct constituting it.
[12] The Court of Appeal in Fairbrother v R stated that the choice to commute a short sentence of imprisonment to displace the presumption “must be intelligible”, which requires that the “factors that really count must be identified and weighed”.9
9 Fairbrother v R [2013] NZCA 340.
Approach to appeal
[13] I turn now to the approach to be adopted on this appeal. The appeal is brought pursuant to s 244 of the Criminal Procedure Act 2011. Under s 250 an appeal against sentence is an appeal against a discretion and must only be allowed if the Court is satisfied that, for any reason, there was an error in the sentence imposed and a different sentence should have been imposed and I refer to Tutakangahau v R.10 The Court must dismiss the appeal in any other case.11 The focus is on the final sentence and whether that was in the available range, rather than the exact process by which it was reached, and I refer to the decision of the Court of Appeal in Ripia v R.12 An appellate Court will not intervene unless a sentence was outside the range available to the sentencing Judge.13
[14] Where the sentencing involves an exercise of discretion, the approach was set out by the Supreme Court in Kacem v Bashir in the following way:14
In this context a general appeal is to be distinguished from an appeal against a decision made in the exercise of a discretion. In that kind of case the criteria for a successful appeal are stricter: (1) error of law or principle; (2) taking account of irrelevant considerations; (3) failing to take account of a relevant consideration; or (4) the decision is plainly wrong.
[15]In Wilson v R, a decision of the Court of Appeal in 2016, the Court stated:15
The characterisation of sentencing decisions as discretionary recognises that, to reach the end result, the sentencing court must balance numerous and sometimes conflicting considerations, and that the range of outcomes within which reasonable disagreement is possible is frequently wide.
[16] An appellate court must therefore exercise an appropriate degree of restraint and will intervene only where the sentence imposed is manifestly excessive on the basis of some material error, and I refer to Kumar v R.16
10 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27].
11 Criminal Procedure Act 2011, s 250(3).
12 Ripia v R [2011] NZCA 101 at [15]; and Tutakangahau, above n 10, at [36].
13 Tutakangahau, above n 10, at [36].
14 Kacem v Bashir [2010] NZSC 112 at [32].
15 Wilson v R [2016] NZCA 377 at [45].
16 Kumar v R [2015] NZCA 460 at [81].
[17]If the appeal is allowed, the appeal Court must:17
(a)set aside the sentence and impose another sentence (whether more or less severe) that it considers appropriate; or
(b)vary the sentence, any part of the sentence, or any condition of the sentence; or
(c)remit the sentence to the court that imposed it and direct that court to take any action as specified by the Appeal Court.
[18] While s 250(2) makes no express reference to “manifestly excessive”, in Tutakangahau v R the Court of Appeal said the concept of “manifestly excessive” was “simply a means of examining the significance of the error to decide whether a different sentence should be imposed”,18 a claim which “is inevitably premised on the contention of a prior error” such as a starting point which is too high, incorrect discounts being given, or a lack of parity with co-offenders.19
[19] Thus, for the appeal to be successful in this case, it must be shown that the end sentence imposed of one year, 10 months and two weeks’ imprisonment without consideration of a home detention sentence was “manifestly excessive”.
Discussion
“Aggravating factor” — the appellant’s alleged dishonesty
[20] Turning now to my discussion in his matter, the first area I will address is the aggravating factor, said to be the appellant’s alleged dishonesty. As Judge Northwood said in sentencing in the District Court, a “plank” of the appellant’s case was that, as he had told his probation officer and his psychologist, he was unable to remember what happened.20 As the psychologist advised, the appellant accepted full responsibility for his conduct despite self-reporting that he had no memory of his
17 Sentencing Act 2002, s 251.
18 Tutakangahau, above n 10, at [32].
19 At [32].
20 The sentencing decision, above n 2, at [11].
behaviour or thinking at the time.21 However, the Judge then described the transcript of a police interview with the appellant held on 5 January 2022. In that interview, the appellant gave a number of details about the evening of the incident which the Judge said “undermine[d] completely” the appellant’s assertions that he did not remember what happened. Although the appellant’s recollections as described in that interview differed from the Crown case, Judge Northwood stated that the appellant “close to the time of the offending … had a differing view of what occurred” and was “able to articulate to some degree of detail as to what the appellant said occurred in the room.”22 The Judge found the appellant to be dishonest in stating that he could not remember what happened.23
[21] The appellant submits Judge Northwood considered this to be an aggravating factor and ought therefore to have gone through the statutory process for aggravating factors as set out in s 24 of the Sentencing Act. However, in my view this is not correct. The Crown is right when it says here this was not an aggravating factor but rather a relevant consideration in the assessment of mitigating factors for discounting the sentence, particularly remorse in the sense of insight into the effect of the offending and taking responsibility for what happened.
[22] Judge Northwood made no error in this respect. While different Judges may have come to different conclusions as to whether the evidence meant the appellant was dishonest, this was a finding the Judge was entitled to make on the basis of the evidence before him.
Good character
[23] I turn now to the issue of good character. The Judge in his decision in the District Court agreed with the Crown that the appellant’s character, when considering his sexual attitude towards women, was “not good at all.”24 He concluded that the appellant behaved in a “sexually opportunistic way, particularly when drunk.”25 The appellant’s “clear lack of care about consent”, when considered alongside the other
21 At [11].
22 At [14].
23 At [28].
24 At [26].
25 At [26].
incidents of sexual offending, “significantly impacted” as I see it the Judge’s assessment of the appellant’s character as far as sexual behaviour was concerned.26
[24] Judge Northwood was again cognisant also of what he had found to be dishonesty on the part of the appellant.27 However, the Judge did state, and I quote: “while that could affect my judgment, I stand back and do see some good aspects in your character.”28 All in all, the Judge allowed a small discount of five per cent to reflect the appellant’s “otherwise good circumstances”.29
[25] As to these aspect, Mr Olsen for the appellant submits the Judge fell into error in relying on unproven propensity allegations. However, I accept here the Crown’s submission that the propensity evidence was relevant for the purposes of a good character assessment. In Hore v Police, her Honour Justice Dunningham stated that while a diversion could not be equated to an admission of guilt on that offence, it was “not irrelevant” and could have a bearing on the gravity of the current offending.30
[26] As the respondent points out, the appellant produced no evidence of good character apart from a lack of previous convictions. The Crown goes on to submit that a plea of good character is a plea in mitigation, on which a defendant bears the burden to establish and that good character encompasses more than a mere lack of proven criminal behaviour. I accept the suggestion from the Crown here that while the facts of the earlier events, which were not disputed, do not necessarily prove criminal offending, in any case they do not support a general assertion of good character, particularly where behaviour towards women are concerned.
[27] I am therefore satisfied Judge Northwood made no error in providing only a five per cent discount for previous good character. On this I accept the relevance in this respect of the Court of Appeal’s statement in R v Howe that:31
26 At [26].
27 At [28].
28 At [28].
29 At [28].
30 Hore v Police [2015] NZHC 2313 at [22].
31 R v Howe [1982] 1 NZLR 618 (CA) at 629.
… [p]ersons who have shown themselves generally law-abiding citizens of good character are usually entitled to invoke their creditable record in mitigation when they come before the Courts, even for quite serious offences.
[28] Ultimately, in any case however, the real issue in the present case is whether the presumption of imprisonment here was displaced in favour of home detention. The Judge was entitled to find, on the basis of the evidence of the appellant’s previous good character, that it was not.
Remorse
[29] I turn now to remorse. As noted above, Judge Northwood in sentencing refused to allow any discount for remorse.32 The Judge considered “genuine regret could have and perhaps should have come earlier”,33 and “a prompt expression of contrition would have held more weight than your comments you make at this late stage.”34 However, the fundamental reason the Judge declined to provide the appellant with a discount for remorse appears to be that his Honour did not accept the appellant’s claims that he did not recall what happened. Accordingly, Judge Northwood concluded that “the generous reduction I have allowed you for the guilty plea will suffice to capture any expressions or understanding of remorse on your part.”35
[30] The Judge does appear to have made an error of law in this respect however. As the appellant rightly points out, courts are required to treat discounts for a guilty plea and remorse separately, and I refer to s 9(2)(f) of the Sentencing Act and the decision in Hessell v R.36 In Hessell v R the Supreme Court stated that the upper limit of 25 per cent for a discount for guilty plea “reflects the fact that remorse is dealt with separately.”37
[31] The law is clear on this point. The Judge in the District Court here erred in his assessment that any remorse could be covered by the discount provided for the appellant’s guilty plea. The two are separate.
32 The sentencing decision, above n 2, at [19].
33 At [17].
34 At [18].
35 At [19].
36 Sentencing Act, s 9(2)(f); and Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [75].
37 At [75].
[32] I turn now to the issue as to whether the Judge ought to have provided a discount for remorse. As the Court of Appeal said in Moses v R:38
Remorse need not be extraordinary to earn a discount, but it does require something more than the bare acceptance of responsibility inherent in the plea. Courts look for tangible evidence, such as engagement in restorative justice processes.
[33] The Court of Appeal has emphasised that the focus of the inquiry should be on the genuineness of the offender’s acceptance of responsibility for the offending.39
[34] In R v Hohua his Honour Justice Muir granted the defendant a discount of five per cent for his genuine remorse, notwithstanding that the charge had gone to trial and the defendant had been convicted.40 The discount was given on the basis of comments the defendant had made to the pre-sentence report writer, namely that “there’s no amount of words that I can give to the victim’s family, no amount of words can bring him back”.41
[35] In this case, perhaps the best example of the appellant’s alleged contrition is a letter the appellant wrote to the complainant. In the letter, the appellant apologises to the complainant at some length for his actions and the impact it has had on her. I accept the letter surfaced so far as the Court was concerned only a few days before sentencing at the District Court. I accept too the contentions advanced before me by Ms Wilkinson-Smith for the Crown that the provision of this letter may well have been seen as tactical on the part of the appellant. Nevertheless, I accept also that, at one level, this letter actually does show some insight from the appellant into his offending and the impact this has had on the complainant. By a fine margin I reach the view the letter presents some “tangible evidence” of remorse in the terms expressed in the decision in Moses v R.42
[36] Judge Northwood at sentencing, however, did not refer to the letter at all in sentencing the appellant. It appears therefore the Judge may not have taken the letter
38 Moses v R [2020] NZCA 296, [2020] 3 NZLR 583 at [26].
39 Millar v R [2019] NZCA 570 at [36].
40 R v Hohua [2021] NZHC 1242.
41 At [46].
42 Moses v R, above n 38.
into account at all in declining to provide the appellant with any discount for remorse, although what an appropriate discount might have been had the Judge taken it into account, is a matter which could reasonably differ. It appears the Judge in this case might be seen to have erred in failing to consider the letter of apology at all. In my view this might appear to be to some extent a failure to take account of a relevant consideration, namely some evidence of remorse as required by s 9(2)(f) of the Sentencing Act.
[37] As I have noted I have accepted the apology letter was filed in the District Court only some two days prior to sentencing in April 2022, and therefore may be considered belated and to carry limited weight accordingly. On that I refer to the decision in the Court of Appeal in 2002 of R v T43. However, this letter in my view should have been taken into account, even if only to a limited extent. I am satisfied therefore the Judge erred in this respect.
[38] Taking these matters into account it does appear to me the appellant may have been to some extent remorseful and I am minded here to grant him a further but small allowance for this remorse.
Home detention
[39] I turn now to the issue of home detention. The presumption under s 128B provides that in a case such as the present, ordinarily a sentence of imprisonment will be appropriate, unless the circumstances of the offence or the offender warrant otherwise.
[40] There is a similar counterpart provision in the Misuse of Drugs Act 1975. In Zhang v R, a Full Court of the Court of Appeal made it clear that even where a presumption of this sort applies, low-level offending could result in a starting point being adopted of a community-based sentence.44
43 R v T (CA 251/02) (2002) 20 CRNZ51 (CA) at [14].
44 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [123] and [125].
[41] In R v Hill,45 the Court of Appeal also noted that sentences of home detention have usually been imposed in cases where the offender has accepted responsibility for the offending by entering a guilty plea, and the sentencing judge has been persuaded that the offender’s real prospects of rehabilitation were sufficient to justify a sentence of home detention. These comments in R v Hill were cited with approval by the Court of Appeal in the Zhang decision.
[42] An appeal against a sentence of 21 months’ imprisonment for unlawful sexual connection was allowed in a decision in this Court, which has been quoted to me, A v R. In that decision her Honour Clark J substituted a sentence of imprisonment for one of home detention.46 In that case, the sentencing Judge had adopted a starting point of four years’ imprisonment for offending significantly more serious than the present offending.
[43] On appeal, Clark J also cited R v Hill with approval. Her Honour stated that while that case was a decision in the context of the Misuse of Drugs Act, it was relevant for its approach to the sentencing process in the context of a statutory presumption of imprisonment.47 As her Honour stated:
[45] The Court of Appeal in R v Hill observed that where end sentences meet the definition of a “short-term” sentence for the purpose of s 15A of the Sentencing Act the cases are likely to be at the lower end of the spectrum. In such cases:
a sentencing judge may properly give significant, even decisive, weight to the prospects for rehabilitation. This will be particularly so if the assessment that there are good prospects for rehabilitation is based not simply on conjecture or expressions of intent or hope but on evidence which demonstrates that the offender has made a real commitment to change and is working towards that in specific and realistic ways.
[44] In the present case before me, I accept that the appellant has clear prospects of rehabilitation. His lack of previous convictions suggests he will be able to lead a pro-social life in the future and be able to take steps to rehabilitate himself, in
45 R v Hill [2008] NZCA41 at [30].
46 A v R [2018] NZHC 543.
47 At [44].
particular in relation to his use of alcohol. Engagement in rehabilitative programmes will undoubtedly assist in this regard.
[45] The writer of the pre-sentence report recommended home detention here because:
… this would hold the appellant to account for his actions as well as offer him a rehabilitative aspect in which he can get the necessary help he needs, in particular his excessive alcohol use as well as any other counselling that may be deemed necessary by his Probation Officer.
[46]I accept this assessment.
[47] Dr Rogers, the clinical psychologist engaged by the appellant, according to the Crown rather late and perhaps for tactical reasons (which issue I will leave on one side however), agreed and also recommended a community-based sentence. The psychologist said, and I quote this was because:
… to facilitate Mr Barber’s ongoing engagement in a prosocial lifestyle, a custodial sentence is not recommended given destabilising social supports, increased exposure to antisocial peers and potential for increased recidivism.
[48] Dr Rogers was of the opinion the appellant’s risk of re-offending could be further mitigated by continued employment within the community, prosocial support from his partner and family, and engagement in further treatment for his offending and alcohol abuse while on a community sentence.
[49] Dr Rogers considered too that the appellant would likely be compliant with a community sentence and display willingness to travel to attend to his treatment needs as well as to gain benefit from the support of his Probation Officer.
[50] As the Court of Appeal stated in Parkin v R, in deciding whether to impose a sentence of imprisonment or home detention, a sentencing Judge must “evaluate all relevant purposes and principles of sentencing”.48 Notably too, a sentence of home detention the Court of Appeal said in Parkin, “is capable of meeting any purpose or principle of sentencing specified in ss 7 or 8 of the Act”.49
48 Parkin v R [2018] NZCA 404 at [42].
49 At [42].
[51] I am satisfied the purposes and principles of sentencing could have been adequately met in this case through a sentence of home detention. The ultimate question, however, is whether the facts in this case should have displaced the presumption of imprisonment.
[52] In her decision in A v R, her Honour Clark J held that the presumption was displaced by the appellant because:
(a)the rehabilitation prospects were real;
(b)the appellant was a senior member of the community and assisting young Māori men;
(c)the appellant had accepted the offending, expressed remorse, undertaken voluntary counselling and pleaded guilty; and
(d)the sentence of home detention would adequately meet the purposes of sentencing, including providing for the interests of the victim.
[53] As I have said, I am satisfied home detention here would adequately meet the purposes of sentencing in this case. As noted, I accept the PAC report writer’s assessment that a sentence of home detention would hold the appellant to account, and I consider too that a conviction and such a sentence would provide for the interests of the victim here. The appellant has written a letter of apology and, notwithstanding its timing, I also take that into account here.
[54] In terms of other factors, I am also satisfied the appellant has a real prospect of rehabilitation. Although possible suggestions are advanced here of a number of instances in the past of sexual offending on the part of the appellant, it does seem these have largely occurred in the context of consuming alcohol, although this does not excuse in any way such matters which may have occurred. I am satisfied however that if the appellant is able to address his drinking problems, the prospects of any further offending may very well diminish considerably. I am of the view that a community-based sentence would be most effective in addressing this issue.
[55] I put limited stock on Mr Olsen’s suggestion however that home detention is appropriate because the appellant is a business owner and is thereby supporting the community through employment. I consider something more than this would be necessary to equate to the situation in A v R in which the appellant was actively supporting members of his community.
[56] In terms of the appellant’s remorse, I consider this also fails to reach the level that influenced her Honour Clark J in A v R. In that case, as I note, the appellant had accepted the offending, expressed remorse early, undertaken voluntary counselling and pleaded guilty early on. This is in contrast to the appellant’s remorse in relation to the present offending, which was more belated and arguably influenced at least in part by considerations of self-interest.
[57]Nevertheless, I am satisfied — although perhaps only by a narrow margin here
— and for the reasons I have already given, that the circumstances support a displacement of the presumption of imprisonment in favour of a sentence of home detention and a small remorse discount of three per cent should be allowed. In particular, I consider a home detention sentence will have the best chance of achieving the appellant’s rehabilitation while adequately meeting the purposes and principles of sentencing including to hold the appellant to account.
Conclusion
[58] In conclusion, as is apparent, I find the Judge in the District Court here proceeded on an error of law or principle and failed to take into account certain mandatory relevant considerations. Consequently, I am satisfied there was an error in the sentence imposed and a different sentence should have been imposed, namely a sentence of home detention.
[59] For the reasons I have outlined above, again albeit perhaps by only a narrow margin in this case, I would allow the appeal.
[60] The sentence of one year 10 months two weeks’ imprisonment is quashed and set aside. In its place the appellant Mr Barber is sentenced to 10 months’ home detention to commence from tomorrow, 17 June 2022. This is to take into account the
three per cent remorse discount I have allowed and the almost 10 weeks he has presently spent in custody.
[61] This home detention sentence is to be served at the approved home detention address.
[62] Arrangements are to be made for the appellant to be collected from the Manawatu Prison where he resides at present tomorrow, 17 June 2022, and to be taken straight to the address where he is to await the attendance of a probation offer and the installation of the electronic monitoring bracelet.
[63] The standard conditions imposed by s 80C(2) of the Sentencing Act are to apply.
[64] I impose a further special condition under s 80D that the appellant is to attend and complete any further counselling, treatment or programme as recommended and directed by, and to the satisfaction of, his probation officer.
[65] In addition a further special condition is imposed that the appellant is not to communicate in any way or associate with his victim in this case without the prior written approval of a probation officer.
Gendall J
Solicitors:
Wilkinson Smith Lawyers, Whanganui John Munro Barrister, Auckland
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