Barbour v Police
[2020] NZHC 2707
•15 October 2020
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE
CRI-2020-419-70
[2020] NZHC 2707
BETWEEN BRETT ALEXANDER BARBOUR
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 15 October 2020 Appearances:
M Ryan for the Appellant
B Harris for the Respondent
Judgment:
15 October 2020
JUDGMENT OF HINTON J
This judgment was delivered by me on 15 October 2020 at 4:00 pm
…………………………………………………………………… Registrar/Deputy Registrar
Solicitors / Counsel
M Ryan, Barrister Auckland Hamilton Legal, Hamilton
BARBOUR v POLICE [2020] NZHC 2707 [15 October 2020]
[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 family violence convictions, including for burglary.
[8] The Judge opined that Mr Barbour’s recent offending is referable to his methamphetamine addiction, and that before Mr Barbour became addicted to methamphetamine he was “a good and hardworking farmer”.
[9] The Judge further noted that when Mr Barbour was sentenced for burglary, wilful damage, and presenting a firearm on 30 January 2019, he was sentenced to six months’ home detention. On 29 May 2019, Mr Barbour breached that sentence by cutting off his electronic monitoring bracelet. In June 2019, Mr Barbour was sentenced to four months’ imprisonment in respect of that breach. Mr Barbour was still, the Judge noted, subject to special release conditions following his release from that sentence of imprisonment at the time of the index offending, which the Judge considered to be an aggravating feature of that offending.
[10] Having addressed Mr Barbour’s recent history of offending, the Judge noted he had completed a “shortish residential rehab treatment programme” and had provided a hair follicle sample for testing which indicated he had not used methamphetamine within four months before the sentencing. The Judge had regard to Mr Barbour’s ongoing work with CAD, reports from counsellors and a forensic psychiatric report. His employer and others were in Court in support.
2 New Zealand Police v Barbour [2020] NZDC 14435.
[11] Having regard to this material, the Judge did not accept that a sentence of community detention or intensive supervision would be sufficiently restrictive. Rather, the Judge adopted a start point of 22 months’ imprisonment, uplifted by 22 per cent to recognise Mr Barbour’s previous convictions and the fact the offending was committed while subject to release conditions, before discounting by 38 per cent in recognition of the role of addiction, other mitigating factors referred to in submissions, and guilty plea. This produced a term of eighteen months’ imprisonment. Accordingly, as the Judge noted, he was instead able to impose a sentence of home detention.3
[12] The Judge regarded the question of whether he should instead impose a sentence of home detention as involving “a balance between a punitive element of denunciation and deterrence as against rehabilitation.” The Judge noted “on the rehabilitation side”, Mr Barbour’s engagement with the residential treatment programme and community treatment, the drug test indicating four months’ sobriety, and some small indicia of remorse on Mr Barbour’s part. “On the deterrence and denunciation side”, the Judge noted that this was serious property offending committed not long after Mr Barbour had completed a sentence of imprisonment and had been convicted for another burglary. Also, the Judge noted, Mr Barbour had been imprisoned because of his breach of a sentence of home detention.
[13] Weighing these factors, the Judge considered that, “by a clear margin”, the appropriate sentence was one of eighteen months’ imprisonment rather than a sentence of home detention.
Approach on Appeal
[14] This first appeal against sentence is brought pursuant to s 244(1) of the Criminal Procedure Act 2011. The appeal court must allow the appeal if satisfied that there is an error in the sentence under appeal and a different sentence should be
3 Sentencing Act 2002, s 15A.
imposed,4 and, in particular, if satisfied that the sentence imposed was manifestly excessive.5 The appeal court must dismiss the appeal in any other case.6
[15] It has been said that a substantial margin of appreciation should be afforded to sentencing judges in appeals of this type, where the only question is whether home detention should have resulted rather than imprisonment, recognising the array of considerations relevant to that determination and the advantages of the first instance Judge in observing the defendant.7 Where however, as here, the sentencing Judge did not preside at the offender’s trial, there is less reason for such deference.
Discussion
[16] As noted at the outset, Mr Barbour says Judge Cocurullo erred by imposing a short sentence of imprisonment rather than home detention. In particular, his counsel Mr Ryan submits the Judge failed to engage in the analysis required by s 16(2) of the Sentencing Act 2002 (the Act) and that the Judge gave insufficient weight to the purposes of rehabilitation and reintegration in considering whether to impose a sentence of home detention.
[17]As to Mr Ryan’s first point, s 16 provides so far as is presently relevant:
16 Sentence of imprisonment
(1)When considering the imposition of a sentence of imprisonment for any particular offence, the court must have regard to the desirability of keeping offenders in the community as far as that is practicable and consonant with the safety of the community.
(2)The court must not impose a sentence of imprisonment unless it is satisfied that,—
(a)a sentence is being imposed for all or any of the purposes in section 7(1)(a) to (c), (e), (f), or (g);8 and
(b)those purposes cannot be achieved by a sentence other than imprisonment; and
4 Criminal Procedure Act 2011, s 250(2).
5 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30]-[35].
6 Criminal Procedure Act 2011, s 250(3).
7 Palmer v R [2016] NZCA 541 at [19]; Aupouri v R [2019] NZCA 216 at [18].
8 These are the purposes of holding the offender accountable for harm done, promoting a sense of responsibility in the offender, providing for victims’ interests, denunciation, deterrence, and community protection.
(c)no other sentence would be consistent with the application of the principles in section 8 to the particular case.
……
[18] As Mr Harris accepts for the respondent, and as emerges clearly from my above summary of Judge Cocurollo’s sentencing remarks, the Judge did not expressly conclude that the purposes of deterrence and denunciation, being those identified in s 7(1)(e) and (f), could not be achieved by the imposition of a sentence of home detention.
[19] Ultimately as noted above, the focus on an appeal against sentence is on the end result and not the process by which that conclusion was reached.9 The outcome on appeal does not turn on whether the Judge did in fact engage in the analysis required by s 16(2). Rather, the focus must be on whether the Judge’s conclusion was correct.
[20] That leads on to Mr Ryan’s second submission. Here, Mr Ryan draws on evidence to seek to buttress the Judge’s inference that Mr Barbour’s offending since 2016 is referable to his methamphetamine addiction. Given this aspect of the background to Mr Barbour’s offending, Mr Ryan submits, the Judge ought to have emphasised the rehabilitative purposes of sentencing in this case and accepted the inaptness of prioritising deterrence in such a case.10
[21] In this connection, Mr Ryan notes that Mr Barbour’s rehabilitation will be materially less well supported if he is imprisoned rather than sentenced to home detention. In particular, counsel has provided correspondence from The Retreat, a residential drug rehabilitation and treatment facility in Otahuhu. This is where Mr Barbour completed the residential treatment course referred to by the Judge. Ms Thompson, the chairperson of The Retreat, confirms Mr Barbour achieved well on the course and they have offered him a place if his sentence is committed to home detention. The respondent does not object to this material being adduced on appeal, and absent opposition that appears appropriate.
9 Kumar v R [2015] NZCA 460 at [81], citing Kahui v R [2013] NZCA 124 at [25].
10 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [90] and [150].
[22] Generally speaking, I agree with Mr Ryan that it is inappropriate to emphasise considerations of deterrence and denunciation in cases of offending explicable by reference to an offender’s substance addiction, which I agree with the Judge is clearly the case here. This reduces the extent to which it is possible to say here that those objectives cannot be achieved by a sentence other than imprisonment. Also, it is well recognised that home detention is a real alternative to imprisonment and carries with it in considerable measure the principles of deterrence and denunciation.11
[23] I also agree with Mr Ryan that it is appropriate to give weight to the rehabilitation and reintegration of such offenders where they are addressing the addiction that is the primary cause of their offending. It is clear on the evidence before the Judge that Mr Barbour is motivated to address and has taken material steps towards addressing his addiction.
[24] Moreover, I agree those latter objectives are likely to be better achieved by Mr Barbour being kept in the community than imprisoned, especially if he is detained at a residential treatment facility rather than his sister’s address which was the proposal before the Judge. This is consistent with the direction in s 16(1) that, so far as doing so is consonant with community safety, it is desirable to keep offenders in the community (which is in any case the import of ss 16(2)(a)-(b)). There are clear potential benefits to the public, and to Mr Barbour, of home detention, given the apparent likelihood of his addressing his addiction and reducing his risk of reoffending.12
[25] On the other hand, the extent to which an offender is likely to realise these benefits depends in material part on the likelihood of their complying with the conditions of the sentence of home detention. This is also of obvious relevance to assessing whether that sentence is consistent with community detention in terms of s 16(1). Section 17 of the Act recognises that a sentence of imprisonment may be required, even where another sentence would otherwise be appropriate, where a Court cannot be reasonably satisfied an offender would comply with that sentence. I agree with Mr Harris it was clearly relevant for the Judge to have regard to Mr Barbour’s
11 R v Iosefa [2008] NZCA 453 at [41].
12 R v Hill [2008] NZCA 41, [2008] 2 NZLR 381 at [33].
previous breach of home detention. This was especially so given Mr Barbour was still subject to the release conditions imposed following his release from prison after that breach at the time of the index offending. The Judge was correct to say these matters “did not bode well for the imposition of a home detention sentence on this occasion”, and that considerations of denunciation and deterrence were more relevant than would otherwise have been the case.
[26] Equally however, I think it material that, on the available evidence, Mr Barbour was still in the grip of his methamphetamine addiction at the time of his prior breach of home detention and also at the time of the index offending which is in significant part explained by reference to that addiction. It appears he is earnest in his subsequent intention and steps to address that addiction. Also, he seeks to serve his home detention in the pro-social environment provided by a rehabilitation treatment programme, which I accept increases the likelihood of compliance and which is very material to this decision. He also seems to be receiving considerable support from family and other agencies.
[27] For the reasons set out above I consider it appropriate to give greater weight to considerations of reintegration and rehabilitation and lesser weight to concerns of denunciation and deterrence than did the Judge and that the Judge erred in not substituting a sentence of home detention. I am also reasonably satisfied Mr Barbour will comply with the conditions of home detention. This view will prove harder to sustain in future, should Mr Barbour fail to make use of the opportunity provided by home detention and by this decision.
Result
[28] The appeal is allowed on the basis that the sentence of eighteen months’ imprisonment entered in the District Court should have been substituted with a sentence of nine months’ home detention and I grant leave to Mr Barbour to make urgent application to the District Court under s 80I of the Sentencing Act 2002.
[29] For the record it is intended that the home detention address be at The Retreat, 158 Avenue Road East, Otahahu, subject to the usual conditions. I have considered the pre-sentence report which was provided to the sentencing Judge which relates to a
different address. There is no suitability report as to The Retreat but I am advised The Retreat and its occupants have previously been found suitable and that they have provided the necessary approvals in respect of Mr Barbour. For myself I am satisfied with all of the requirements of the Sentencing Act 2002 in this regard. I trust that Corrections can rely on previous reports or provide a very expedited report in these circumstances, so that any remaining requirements of s 26A of the Act can be met. I wish to see Mr Barbour released as urgently as possible given the length of the prison sentence he has served already.
Hinton J
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