[1] On 23 July 2020, Judge Cocurullo sitting in the District Court at Hamilton sentenced Mr Barbour to eighteen months’ imprisonment, following Mr Barbour’s guilty pleas to two charges of burglary.1

[2] Mr Barbour now appeals against sentence, saying the Judge erred by imposing a short sentence of imprisonment rather than a sentence of home detention, and the imposition of a term of imprisonment was manifestly excessive. No issue is taken with the length of the term of imprisonment.

Background

[3] According to the summary of facts on the basis of which Mr Barbour pleaded guilty, on the evening of 26 September 2019 he was driving from Ngahinapouri to Rotorua. At about 7.30 pm his journey brought him to Pukeatua, where for a number of years he had owned a dairy farm that he had sold in June 2018. That, the Judge noted on the basis of discussions with counsel, was a sale precipitated by Mr Barbour’s separation from his wife about which Mr Barbour harboured significant resentment.

[4] Mr Barbour turned off the road and drove onto the farm, parking outside the milking shed. He then “damaged, stole, and altered a number of important and specific parts of the milking shed”. As a consequence of this, the milk collector units were rendered unusable, electrical connections were damaged, feed was emptied into a pit from a hopper, collected milk was drained onto the floor, piping was sabotaged, the milk refrigeration unit was sabotaged, colostrum was ruined, and the farm’s water bore sabotaged. Mr Barbour also stole record books and veterinary medication. The Judge noted that the record books, which were of enormous practical value to the farm owners, have proved irretrievable.

[5]The repairs required to fix the damage caused by Mr Barbour cost about

$15,000. Mr Barbour made no opposition to being ordered to pay $7,419.54 in reparation.

1 Crimes Act 1961, s 231(1)(a). Maximum penalty ten years’ imprisonment.

[6] As the Judge put it, the offending was a bizarre and “mean-spirited” expression by Mr Barbour of his resentment about having to leave the farm. That is putting it mildly.

[7] In sentencing Mr Barbour, having first set out the above facts, Judge Cocurullo noted previous convictions, which he described as “somewhat alarming.”2 Up to 2006, the most serious matter for which Mr Barbour had been convicted was drink driving and he had no convictions at all from 2006 - 2016. But from 2016, “things unravelled” – Mr Barbour received repeated…

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 Barbour v Police

Details

AGLC: Barbour v Police [2020] NZHC 2707
Case: [2020] NZHC 2707
Decision Date: 15 October 2020

CaseChat Overview and Summary

In the case of Barbour v Police, the appellant, Brett Alexander Barbour, was sentenced by Judge Cocurullo in the District Court to eighteen months' imprisonment for two charges of burglary. Barbour appealed this decision, arguing that the sentence should have been home detention rather than imprisonment, and that the imprisonment term was manifestly excessive. The primary legal issue in the appeal was whether the District Court Judge had erred in imposing a sentence of imprisonment instead of home detention, and whether the sentence was manifestly excessive.

The court considered the nature of Barbour's offending, which involved extensive damage to his former farm, and his history of methamphetamine addiction and recent criminal activity. The Judge had imposed a sentence of eighteen months' imprisonment after considering various mitigating and aggravating factors, including Barbour's addiction, his breach of a previous home detention order, and the severity of the property damage. The appeal court reviewed the sentencing principles under the Sentencing Act 2002, particularly the requirement to keep offenders in the community where practicable, and the purposes of sentencing including deterrence, denunciation, and rehabilitation.

The appeal court found that while the purposes of deterrence and denunciation were relevant, they should not have outweighed the rehabilitative purposes in this case, given Barbour's addiction and his efforts to address it. The court was persuaded by the evidence that Barbour would likely comply with a sentence of home detention if it were served at a rehabilitation facility, and that such a sentence would better support his rehabilitation. The appeal court concluded that the District Court had erred in not imposing a sentence of home detention and allowed the appeal. The sentence of eighteen months' imprisonment was substituted with a sentence of nine months' home detention, with leave granted for an urgent application to the District Court for the home detention sentence to be executed.

This decision highlights the importance of balancing rehabilitation with deterrence in sentencing, especially in cases where the offender's criminal conduct is linked to substance addiction. The appeal court's decision underscores the potential benefits of keeping such offenders in the community, where appropriate rehabilitative support is available, while also addressing the safety concerns of the community.

Orders