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Barnes v R

Barnes v R

Case [2018] NZCA 42 9 March 2018

Sentencing

Parole Eligibility

Three Strikes Legislation

Disproportionate Sentence

Manifest Injustice

Criminal Law

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IN THE COURT OF APPEAL OF NEW ZEALAND

CA502/2017
[2018] NZCA 42

BETWEEN	MATTHEW THOMAS BARNES Appellant
AND	THE QUEEN Respondent

Hearing:	30 November 2017 (further submissions received 5 December 2017)
Court:	Harrison, Cooper and Gilbert JJ
Counsel:	D J More for Appellant C A Brook and J A Eng for Respondent
Judgment:	9 March 2018 at 2.30 pm

JUDGMENT OF THE COURT

A Leave to appeal is granted under s 253(1) of the Criminal Procedure Act.

B The appeal is allowed.
CThe sentence is remitted to the District Court. The District Court is directed to set aside the sentence and impose another sentence that it considers appropriate. We recommend the sentence be reconsidered by the original sentencing Judge if that is possible.

____________________________________________________________________

REASONS OF THE COURT

(Given by Cooper J)

Table of Contents

Para No
The sentence  [4]
The stage-1 offence  [9]
The stage-2 offence  [15]
The District Court sentence  [16]
The High Court appeal  [24]
The appeal to this Court  [29]
     Appellant’s submissions  [30]
     Respondent’s submissions  [34]
     Analysis  [39]
     The meaning of s 86C(4)  [39]
     Justice and proportionality  [52]
     Inconsistency  [60]
     Taking parole eligibility into account  [65]
     The appropriate approach  [77]
Disposition  [80]
Result  [83]

The appellant Matthew Barnes seeks leave to appeal against the judgment of the High Court dismissing an appeal against sentence.[1] Because his appeal is a second appeal, Mr Barnes needs this Court’s leave under s 253(1) of the Criminal Procedure Act 2011.
[1]Barnes v R [2017] NZHC 1786.
Section 253(3) of the Criminal Procedure Act provides that this Court must not give leave unless the appeal involves a matter of general or public importance or a miscarriage of justice may have occurred or may occur unless the appeal is heard. Because the appeal raises an important issue concerning the effect and application of provisions in s 86C of the Sentencing Act 2002 in relation to stage‑2 offending, we are satisfied that it involves a matter of general or public importance and the test set out in s 253(3)(a) of the Criminal Procedure Act is satisfied. We will grant leave accordingly.
The importance of the issues raised by this application has resulted in a reasonably lengthy discussion. We have however endeavoured to summarise our conclusion succinctly at [77]–[79]below.

The sentence

Mr Barnes was one of three defendants sentenced on 10 May 2017 by Judge Crosbie in the District Court at Dunedin. All three faced a charge of aggravated robbery in contravention of s 235 of the Crimes Act 1961. The maximum penalty for that offence is 14 years, and it is in the list of “serious violent offences” as set out in s 86A of the Sentencing Act.
Upon their conviction, Mr Barnes’ co‑defendants received stage-1 warnings as contemplated by s 86B of the Sentencing Act. Mr Barnes was in a different category, because he had previously been convicted of sexual connection with a young person aged between 12 and…

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 Barnes v R

Details

AGLC: Barnes v R [2018] NZCA 42
Case: [2018] NZCA 42
Decision Date: 9 March 2018 at 2.30 pm

CaseChat Overview and Summary

Matthew Thomas Barnes appeals against the judgment of the High Court dismissing his appeal against sentence. Barnes seeks leave to appeal to this Court, which is required by s 253(1) of the Criminal Procedure Act 2011 because his appeal is a second appeal. This Court must not give leave unless the appeal involves a matter of general or public importance or a miscarriage of justice may have occurred or may occur unless the appeal is heard. The appeal raises an important issue concerning the effect and application of provisions in s 86C of the Sentencing Act 2002 in relation to stage-2 offending, and the test set out in s 253(3)(a) of the Criminal Procedure Act is satisfied. We will grant leave accordingly.

Barnes was sentenced by Judge Crosbie in the District Court at Dunedin on 10 May 2017. He was convicted of aggravated robbery in contravention of s 235 of the Crimes Act 1961. The maximum penalty for that offence is 14 years, and it is in the list of “serious violent offences” as set out in s 86A of the Sentencing Act. Barnes was in a different category, because he had previously been convicted of sexual connection with a young person aged between 12 and 16 years. That is also a defined “serious violent offence” in terms of s 86A of the Sentencing Act. That meant that Judge Crosbie had to treat Barnes as an offender who had committed a stage-2 offence, defined as an offence that is a serious violent offence, and was committed by an offender at a time when the offender had a record of first warning (in relation to one or more offences) but did not have a record of final warning.

Section 86C of the Sentencing Act provides with respect to stage-2 offences other than murder as follows: When, on any occasion, a court convicts an offender of one or more stage-2 offences other than murder, the court must at the same time warn the offender of the consequences if the offender is convicted of any serious violent offence committed after that warning (whether or not that further serious violent offence is different in kind from any stage-2 offence for which the offender is being convicted); and record, in relation to each stage-2 offence, that the offender has been warned in accordance with paragraph (a). Under s 86C(4), with the imposition of a determinate sentence of imprisonment, the court must order that the offender serve the full term of the sentence, with the consequence in the case of a long-term sentence that the sentence will be served without parole.

Barnes had misgivings about the effect of the sentence he felt obliged to impose, given his particular circumstances. Barnes appealed to the High Court contending that the sentencing judge should have taken into account the fact that the sentence was to be served without parole in fixing the end sentence, and had not done so. The application of s 86C to Barnes in this case was a particular circumstance relating to him, and in the circumstances of this case meant the sentence was disproportionately severe. Barnes contended that the sentencing judge had jurisdiction to reduce what otherwise would have been an appropriate term of imprisonment for the reason that Barnes was required to serve the full term of the sentence without parole. Barnes submitted that if the sentencing court was entitled to reduce the sentence because he was a stage-2 offender, then in the particular circumstances of this case it should have done so.

Barnes relied in particular on s 8(h) which provides that in sentencing or otherwise dealing with an offender the court must take into account: any particular circumstances of the offender that mean that a sentence or other means of dealing with the offender that would otherwise be appropriate would, in the particular instance, be disproportionately severe. Barnes submitted that in the absence of a stage-2 warning, he would be eligible to be considered for parole after he had served one third of the sentence. Having regard to his age, the absence of any previous violent offending, and assuming an incident-free period of imprisonment, it is likely he would have been released on parole after serving one half of his sentence. The fact that he has to serve his sentence without parole is a particular circumstance relating to Barnes that means a sentence of two years and six months’ imprisonment was disproportionately severe. Barnes argued that there was nothing in the Sentencing Act that would have prohibited the District Court from adjusting the sentencing by application of s 8(h) because the full sentence must be served without parole. In the present case, the court should have imposed a sentence of two years or less because that would have enabled the court to impose post release conditions in accordance with s 93(2) of the Sentencing Act with the consequence that standard conditions of release would apply until the sentence expiry date, or (in terms of s 93(2A)(c)) a specified date up to six months after the sentence expiry date. The court could at the same time impose any special condition which again could expire on the sentence expiry date or up to six months thereafter. In the latter category, Barnes referred in particular to the special conditions provided for in s 15 of the Parole Act 2002 which includes, under s 15(3)(b), “conditions requiring the offender to participate in a programme … to reduce the risk of further offending by the offender through the rehabilitation and reintegration of the offender”.

For the respondent, Ms Brook submitted that Gendall J was right to affirm the approach taken in Palalagi v Police and Sheers v R, which was consistent with other High Court judgments to which she referred. Ms Brook submitted that it was clear from the Parliamentary debates on the three strike legislation that disproportionately high sentences were anticipated and intended. The Minister responsible for the Bill referred in Parliament to an escalating regime of penalties for repeat violent offenders. Ms Brook submitted that one step in the escalating regime of penalties is serving the appropriate sentence, without the possibility of parole. Barnes’ reliance on s 8(h) of the Act should be seen as an attempt to avoid the escalated outcome intended by Parliament. She contended that there could be no clearer inconsistency with s 86C than the application of s 8(h) as contended for by Barnes. In those circumstances, s 86C must prevail because of s 86I, which provides: A provision contained in sections 86B to 86E that is inconsistent with another provision of this Act or the Parole Act 2002 prevails over the other provision, to the extent of the inconsistency.

Ms Brook supplemented these submissions by arguing that there is nothing in the Act to suggest that non-eligibility for parole under s 86C was intended to affect the calculation and determination of sentence length. In reliance on this Court’s decision in R v Stockdale she submitted that in general parole eligibility should have no bearing on a sentencing court’s determination of the appropriate sentence. She claimed it would be wholly inappropriate for courts to engage in a speculative exercise about parole at the time of sentencing a stage-2 offender.

This Court is not persuaded by the respondent’s argument. The issue presented is one of

Orders