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Barber v The the Queen

Barber v The the Queen

Case [2022] NZHC 1435 16 June 2022

Presumption of Imprisonment

Criminal Law

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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…

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.

Continue reading Barber v The the Queen

Details

AGLC: Barber v The the Queen [2022] NZHC 1435
Case: [2022] NZHC 1435
Decision Date: 16 June 2022

CaseChat Overview and Summary

The appellant, Mr Barber, appeals his sentence for sexual violation, arguing that the sentence of imprisonment was manifestly excessive and that he should have received a sentence of home detention. The District Court Judge imposed a sentence of one year, ten months, and two weeks’ imprisonment, after finding that the presumption of imprisonment in s 128B of the Crimes Act 1961 could not be overcome. The Court of Appeal must decide whether there was an error in the sentence imposed, and if so, whether the sentence should be different. The Court of Appeal finds that the sentence imposed was manifestly excessive due to several errors in the sentencing process. Firstly, the Court of Appeal finds that the appellant's alleged dishonesty should not have been considered an aggravating factor, but rather a relevant consideration in assessing mitigating factors, particularly remorse. Secondly, the Court of Appeal finds that the Judge erred in failing to consider the appellant's letter of apology, which presented some tangible evidence of remorse. Finally, the Court of Appeal finds that the Judge erred in failing to displace the presumption of imprisonment in favour of home detention, as the purposes and principles of sentencing could have been adequately met through a sentence of home detention. The Court of Appeal allows the appeal and sentences the appellant to ten months’ home detention, taking into account the three per cent remorse discount and the almost 10 weeks the appellant has presently spent in custody.

The Court of Appeal's decision highlights the importance of considering all relevant mitigating factors, including remorse, and the need for sentencing judges to carefully evaluate the purposes and principles of sentencing when deciding whether to impose a sentence of imprisonment or home detention. The Court of Appeal's decision also emphasises the importance of ensuring that the sentence imposed is not manifestly excessive and that the appellant's prospects of rehabilitation are adequately addressed.

Orders