Barnes v The Queen
[2017] NZHC 1786
•31 July 2017
IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY
CIV-2017-412-000026 [2017] NZHC 1786
BETWEEN MATTHEW THOMAS BARNES
Appellant
AND
THE QUEEN Respondent
Hearing: 17 July 2017 Appearances:
D J More for Appellant
J Eng for RespondentJudgment:
31 July 2017
JUDGMENT OF GENDALL J
BARNES v THE QUEEN [2017] NZHC 1786 [31 July 2017]
Introduction
[1] The appellant, Mr Matthew Barnes is a young man aged 22years old. He appeals the sentence of two years and six months’ imprisonment imposed by Judge Crosbie in the Dunedin District Court on a charge of aggravated robbery to which he pleaded guilty.1 The appellant received a second strike warning for this offence. He had received a first strike warning on 22 September 2014 when he pleaded guilty to a charge of sexual connection with a young person aged between
12 and 16. As a result of the second strike warning, and pursuant to s 86C Sentencing Act 2002, the appellant must serve the full term of his current sentence without parole.
[2] The appellant submits the fact that he has to serve his sentence without parole is a matter which the Court should have been entitled to take into account in fixing the end sentence but it did not. The appellant contends that the application of s 86C in his case is a particular circumstance relating to him which means that the sentence of two years and seven months imprisonment was, in this particular circumstance, disproportionately severe.
[3] The sole issue in this appeal therefore is whether the sentence at issue should have been adjusted to reflect the fact that the appellant is a second-strike offender who is required to serve the full term of imprisonment imposed pursuant to s 86C.
Background
[4] Some brief background facts relating to the aggravated robbery offending here are useful. At about 11:20 p.m. in the evening on 4 February 2016, the victim was walking home from his work (as a security guard) on Princes Street in Dunedin. He was confronted by the appellant, who it seems was highly intoxicated, and three associates: Messrs Robinson, Aitkenhead and HL.2
[5] Mr Aitkenhead asked the victim if he had any cigarettes to which the victim replied he did not. The victim tried to move on, but Mr Aitkenhead blocked his path.
All four offenders then surrounded the victim and demanded that he empty his pockets. The victim initially refused, but was shoved by one of the offenders. He eventually dropped his phone and other items he had with him. Mr Aitkenhead told the victim he had five seconds to run away and the victim fled.
[6] The appellant, Mr Aitkenhead and HL pursued the victim. He was pulled to the ground and once on the ground he was repeatedly kicked and punched by the appellant and HL. The assault ceased when Mr Aitkenhead told them to stop and stepped between them and the victim. Then, for a second time, the victim was told in a bullying and menacing way that he had five seconds to run away. Mr Aitkenhead started counting down from five and the victim ran from the scene to escape.
[7] As a result of the offending, the victim was taken to hospital suffering from swelling and bruising to his face, neck and back. He has however also suffered emotionally and psychologically from the offending and feels anxious at night or when he is alone. He finds it difficult to trust people and experiences heightened anxiety.
District Court Decision
[8] In his sentencing decision, Judge Crosbie adopted a starting point of two years and four months’ imprisonment it seems in light of a sentence indication given earlier by Judge Phillips which was not accepted by the appellant. Judge Crosbie considered that the assault on the victim should then be dealt with by way of an adjustment to the starting point. Accordingly, an uplift of one year was applied in relation to the appellant’s sentence, leading to an uplifted starting point of three years and four months’ imprisonment. The starting point was then reduced to three years’ imprisonment for totality.
[9] The Judge acknowledged the appellant had a previous conviction for sexual connection with a young person, but considered he would not uplift the sentence on the basis of that conviction because the appellant would have to serve the whole of the term imposed due to the operation of the three-strikes regime.
[10] In relation to the relevance of the appellant’s strike status more generally,
Judge Crosbie held:3
[36] Mr Barnes, the Crown submits a starting point of three years four months’ imprisonment should be adopted for you. That arises out of equal culpability for the first event of two years and four months with an uplift of one year to reflect gratuitous violence including repeatedly kicking and punching a victim while on the ground. For you, I do not intend to uplift for previous convictions as by virtue of the second strike warning you will serve the entire sentence.
[37] I want to mention something about that second strike warning. The lawyers have spoken to me today about a High Court decision in Palalagi v Police that refers to another decision of R v Wereta. In my view both those decisions instruct me that I cannot discount your sentence for reason that you have had a second strike warning. That is because the strike warning is about how your sentence will function and be carried out. That unfortunately for you as a young man, will send to you and others a really additional and harsh message about what these strike warnings are all about and the real consequences that they can have. All I can say in relation to that is you are perhaps fortunate that the starting points that have been adopted today are not higher and the offending was not worse because at the end of the day you will still leave prison relatively young man, so you need to hold onto that.
[11] Judge Crosbie therefore considered that he could not adopt a discount for the appellant’s sentence even though he was receiving a second strike warning. The Judge was influenced by Moore J’s decision in Palalagi v Police.4
Submissions
[12] The appellant’s essential submission here is that Moore J’s approach in Palalagi is incorrect. Mr More, counsel for the appellant, contends that His Honour’s analysis of the three strikes regime is flawed, and that a sentencing court should be entitled to take that into account when fixing an end sentence. I summarise the appellant’s criticism in three broad areas. First, the appellant submits that the comment quoted by Moore J where the Hon Judith Collins said that “he or she will be sentenced as normal” does not preclude the Court taking into account the consequences of the three strikes regime during sentencing. Secondly, the appellant maintains that there is no inconsistency between s 8(h) and s 86C of the Sentencing Act. Section 86I of the Act states that where the three strikes provisions are
inconsistent with other provisions in the Sentencing Act 2002 or the Parole Act 2002, the three strikes provisions prevail over other provisions to the extent of the inconsistency. Thirdly, Mr More submits that the Court should be entitled to bear in mind parole eligibility at the time of sentencing.
[13] In response, before me Mr Eng for the Crown submitted that the appellant has failed to identify an error in the approach taken by the sentencing Judge, and there is no basis on which this Court can conclude that a different sentence ought to be imposed. In the Crown’s submission, the approach set out in Palalagi is correct. A discount in the length of a sentence on the basis suggested by the appellant would be unprincipled. The respondent submits that this would constitute a deliberate circumvention of the statutory regime and parliamentary intent. And, it is also a well settled principle that parole eligibility should have no bearing on a sentencing court’s
determination of the appropriate sentence.5
Jurisdiction
[14] Turning now to jurisdiction issues, appeals against sentence are permitted to be brought as of right by s 244 of the Criminal Procedure Act 2011, and must be determined in accordance with s 250 of that Act. An appeal against sentence may only be allowed by this Court if it is satisfied that there has been an error in the
imposition of the sentence and that a different sentence should be imposed.6 It is
only appropriate for this Court to intervene and substitute its own views if the sentence being appealed is “manifestly excessive” and not within the range that can be properly justified by relevant sentencing principles.7
Law and analysis
[15] Section 86C of the Sentencing Act 2002 sets out the consequences for an offender when they commit another serious violent offence after receiving their first
warning under s 86B. The Court must warn the offender of the consequences if the
5 R v Stockdale [1981] 2 NZLR 189 (CA); R v Mwai [1995] 3 NZLR 149(CA), R v Smith CA310/94, 19 December 1994, Miller v R [2012] NZHC 1413, Tutahi v R [2014] NZHC 3354 at [21].
6 Criminal Procedure Act 2011, ss 250(2) and 250(3).
offender is convicted of any more serious violence offence committed after the warning and record that the offender has been given their final warning.
[16] Furthermore, relevant to this appeal, s 86C(4) specifically states that, if the sentence imposed on the offender for any stage 2 offence is a determinate long-term sentence (as here), the Court must order that the offender serve the full term of sentence 2 without parole. As a consequence here, the appellant is to serve the entire two years six months’ imprisonment in full.
[17] The crux of the appellant’s argument is that the three strikes regime does not affect the principles and purposes of the Sentencing Act set out in ss 7, 8, and 9. The most relevant principles relied on by the appellant in this case are s 8(g) and (h) of the Act:
8. Principles of sentencing or otherwise dealing with offenders
In sentencing or otherwise dealing with an offender, the court–
…
(g) must impose the least restrictive outcome that is appropriate in the circumstances, in accordance with the hierarchy of sentences and orders set out in section 10A; and
(h) 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;
…
[18] Before me, Mr More submitted that the fact that Mr Barnes has to serve his sentence of imprisonment without parole means that the length of his sentence calculated in accordance with case law is disproportionately severe.
[19] In Palalagi, Moore J in this Court considered the relevance of non-eligibility for parole at sentencing. His Honour referred to an earlier decision in this Court, R v Wereta, where Courtney J did not make any adjustment to the defendant’s sentence to reflect his previous convictions.8 Courtney J accepted the submission that to
impose an uplift on account of the defendant’s previous convictions would amount to
8 R v Wereta [2014] NZHC 2555.
double counting “because it is the fact of those previous convictions that has resulted
in the effect of the second strike warning”. 9
[20] However, Moore J went on in his decision to disagree that eligibility for parole, even in the context of the three strikes regime, should be considered at the time of sentencing. His Honour noted, and it seems he paid particular attention to, a speech given by the Hon Judith Collins the Minister of Corrections at the time, at the third reading of the Sentencing and Parole Reform Bill, where she stated:10
For the benefit of the House, I will recap the main elements of the regime. When convicted of a serious violent offence for the first time, an offender will be sentenced as normal but will be very clearly warned that he or she will now be subject to the three-stage regime, and warned what will happen if he or she is convicted of a further serious violent offence, the implications are more serious. He or she will be sentenced as normal but any jail sentence will be served in full without parole. The offender will be warned again, both verbally and in writing, of the consequences of a third conviction for a serious violent offence. If the offender fails to heed the previous warnings and is convicted of a third serious violent offence, he or she will be sentenced to be maximum penalty for the offence, to be served without parole. The exception to this regime is for conviction for manslaughter, for which an offender will be required to serve a life sentence, with a minimum non-parole of at least 20 years.
[21] In light of these comments by the Hon Judith Collins, Moore J disagreed with
Courtney J’s approach for the following reasons:11
(a) First, the scheme of the three-strikes regime recognises that parole is a privilege, not a right. As the Hon Judith Collins said in the third reading of the Bill:
Parole is a privilege that will not be available to those who fail to take heed of warnings and continue to commit serious violent offences. This bill ensures that the rights of victims and their families are put before the right of offenders who choose to continue to offend in this way.
It is contrary to this principle to compensate for the effect the legislature intended. To exempt repeat offenders caught by the three-strikes regime from the usual uplift for past offending is to treat them differently from others who qualify for an uplift.
(b) Secondly, 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. Indeed, the Sentencing and Parole Reform
9 At [12].
10 (20 May 2010) 663 NZPD 1126, Hon Judith Collins (emphasis added).
11 Palalagi v Police, above n 4, at [60].
Act 2010, which incorporated the three-strikes regime into the Sentencing Act, is a reprint of the Sentencing Act. There were no consequential amendments made to the “purposes and principles” of sentencing, as set out in ss 8 and 9 of the Act, to reflect the changes brought by the three-strikes regime.
(c) Thirdly, I cannot agree an uplift for previous convictions amounts to double-counting. It is the fact of a s 86A previous conviction which gives effect to a second-strike warning. That is, the very nature of a state-2 offence assumes that an offender is convicted of a serious violent offence (listed under s 86A) for the second time. There is no consideration of the offender’s previous convictions other than the serious violent offence which led to the first warning. It does not reflect other previous convictions which might justify an uplift.
(d) Finally, I question any principle which has the effect that those convicted of stage-2 offences are exempt from any uplift for previous convictions in contrast to other offenders (not convicted of a stage-2 offence) who can expect such an uplift. This creates an arbitrary distinction not intended by Parliament and offends the principle that the sentencing process should be both consistent and predictable. There can be no guarantee that those who are subject to the ordinary principles of sentencing will be released after serving one third of their sentence. Paradoxically, if the approaches in Wereta and Muraahi were adopted, it is conceivable that some second-strike offenders could be treated more leniently than their counterparts who are not subject to the three-strikes regime.
[22] Moore J concluded that non-eligibility for parole is a consequence of the three-strikes regime which is separate to and distinct from the sentencing exercise. Previous convictions should be taken into account in the ordinary way, as required by s 9(1)(j) of the Act.
[23] Moore J further reasoned that the courts should be cautious not to artificially create a sphere of judicial discretion where one actually does not exist. Parliament’s intention is clear. There is no discretion available in s 86C. Whether the three-strike regime is morally, fiscally or rationally defensible, the effect of the law is plain and it is the duty of the courts to apply it.
[24] Subsequent decisions have agreed with the approach in Palalagi. When R v Wereta came back before the High Court, Venning J considered that the position set out in Palalagi was correct.12 In R v Peri, Downs J in this Court agreed that
previous convictions should be dealt with in the usual way notwithstanding the
12 R v Wereta [2015] NZHC 2683 at [22].
operation of a second-strike conviction.13 In Sheers v R, 14 the appellant sought a discharge without conviction in respect of aggravated robbery. The appellant was
18 years old and of low intelligence. The appeal was advanced, in part, on the basis that the consequences of a conviction for the appellant as a second-strike offender justified the outcome sought. Dismissing the appeal, Down J held:15
What then of the absence of parole by virtue of this being a second-strike offence? Here, the appellant places reliance on the decision of Allan J in Stipich v Police, in which the Judge accepted that in principle at least, the consequences of a second or third strike could found a basis for a discharge without conviction. As against this:
(a) There is some tautology in inviting attention to alleged disproportionality of consequence when the consequence necessarily follows from the commission of a serious criminal offence, and hence to all offenders who commit such offences.
(b) Parole eligibility is not normally treated as relevant in the assessment of sentence;
(c) Clear legislative commands must be obeyed by the Courts. So, granting a discharge to an offender because of what would otherwise happen under the three-strikes regime, which is limited to “serious violence offences” as defined by s 86A of the Sentencing Act 2002, would presumably require extraordinary circumstances and more particularly, a case in which the legislative objectives would not be frustrated by the outcome.
[25] Academic writers also appear to an extent to have accepted the position reached by these authorities. Recently in an article in the July 2017 New Zealand Law Journal at page 218 “R v Ratima [2017] NZHC 252 – Three Strikes and Minimum Periods of Imprisonment”16 the learned author in passing at page 221 made the following comments:
…Courts in a different context have also upheld the separation between the three strikes provisions and other parts of the sentencing process. In Palalagi v Police [2015] NZHC 1832 Moore J held that the fact that s 86C required an offender to serve the full sentence without parole should not bear on setting the level of that sentence. That is, a sentence could not be reduced simply because a sentencing Judge knew it would be served without parole. This approach was subsequently following in Peri v Police [2015] NZHC
3221 and R v Wereta [2015] NZHC 2683.
13 R v Peri [2015] NZHC 3221.
14 Sheers v R [2016] NZHC 2353.
15 At [23].
16 New Zealand Law Journal, July 2017 at page 218.
The approach in Palalagi was to the offender’s detriment. However, the general point is relevant when assessing the interpretation of s 86. On Moore J’s account, the existence of the three strikes provision is not a relevant consideration when carrying out other parts of the sentencing exercise. That reasoning supports the proposition that the fact a sentence is being passed on a stage-3 offence should not bear on s 86.
[26] I agree with this approach outlined in Palalagi, Wereta, Peri and Sheers. And in light of these authorities, I conclude that Judge Crosbie did not err in refusing to discount the appellant’s sentence because of the consequences of a second strike. In response to the appellant’s submissions, I find that “normal sentencing” as mentioned by the Hon Judith Collins (noted at [20] above) meant sentencing that does not take into account the consequences of the three strike regime. It also seems to me that if there is an inconsistency between s 8(g) and (h) of the Act on the one hand, and s 86C on the other, to that extent, the three strikes regime prevails as s 86I specifically requires. Finally, in light of the relevant authorities, and at a general level, I do not accept the appellant’s submission that the Court should be entitled to consider parole eligibility at the time of sentencing. I agree with the comment made by Moore J at [58] of Palalagi when he noted that Parliament’s clear intention in enacting the three strikes legislation was to separate the judicial function of sentencing from the statutory consequences of that new legislation.
[27] I need to say that, an interpretation of either s 8(g) or s 8(h) of the Sentencing Act that requires courts to reduce otherwise appropriate sentences, by reason only of the fact that the three strikes regime requires a second strike offender to serve all their sentence without parole, in my view undermines the purpose and effect of s
86C.
[28] However, despite the clear wording of the Act and what I consider now to be settled authorities regarding its interpretation, I make two particular observations regarding the current circumstance in this appeal. The first relates to Parliamentary intent in passing the Sentencing and Parole Reform Bill. When the Bill was introduced for its second reading, the Hon Judith Collins, Minister of Corrections,
said:17
17 (4 May 2010) 662 NZPD 10673.
The bill has two main purposes: to deny parole to repeat serious violent offenders and to offenders who are guilty of committing the worst murders, and to impose the maximum terms of imprisonment on persistent repeat offenders who continue to commit serious and violent offences.
The bill is specifically focused on offenders who show no regard for victims, their families, or the community, and who are repeatedly convicted of serious violent and sexual offending. Parole is not a right for prisoners; it is a privilege. This privilege is earned, and it should not be granted to those who demonstrate total disregard for the law by continuing to commit serious violent offending, despite being warned of the consequences. This bill ensures that the victims of repeat offenders and their families do not have to experience the additional stress of regular parole hearings or worry that an offender may be released on parole.
[29] Reviewing the appellant’s criminal history here, and the facts of his previous offending, it is difficult to conclude that his record is one even approaching the worst of its kind. The appellant only has one prior conviction before his present conviction for aggravated robbery. This is the charge of sexual connection with a young person between the ages of 12 to 16 to which he pleaded guilty and for which he received his first strike warning. As his counsel Mr More points out, the offending happened four years ago when the appellant was 18 years old and the victim was 14. Mr More says they were in a relationship and had consensual sex despite a stern warning from the victim’s parents’ against any sexual conduct. Undeniably, the appellant’s actions on that occasion were legally and morally indefensible.
[30] However, even when it comes to “serious violent offending” as defined in the Act, there is a spectrum of severity and culpability that the State needs to consider before deeming a particular individual unworthy of being considered for parole. I question whether in this case it could be truly said that the appellant falls into a category of “persistent repeat offenders who continue to commit serious and violent offences” as comprehended by the Minister of Corrections at the time of passing the Bill. I also do not find that the appellant is incapable of demonstrating remorse and has complete disregard for the victim, his family, and the community. In my view, it is possible that what might be seen as a straight-jacket approach in the three-strike regime may, on occasions like this, cause unintended consequences.
[31] My second observation relates to the sympathy similarly expressed by
Judge Crosbie at [37] and [38] of his Sentencing Remarks in the District Court. The
appellant is still a relatively young man. Mr More, his counsel, says the appellant has acknowledged he has a problem with alcohol. There are good programmes in prison that the appellant is encouraged to take full advantage of while serving his full sentence. There are also opportunities for him to learn some skills along the way. It is the sincere hope of this Court that upon release, the appellant is able to successfully rehabilitate and reintegrate into society and become a productive member of our community.
Result
[32] For all the reasons I have outlined above, I am satisfied no material error occurred here. The sentence imposed was not manifestly excessive and clearly it was in the appropriate range. Indeed, absent the second strike arguments advanced before me, Mr More accepted for the appellant that the sentence of two years six months’ imprisonment was within the appropriate range set by the Court of Appeal in R v Mako.18
[33] And it will be apparent from the foregoing too, that I have found what is an effective discount in the length of his sentence sought here by the appellant, on the basis of the three strikes regime, was both wrong and unprincipled as the line of current authority on this issue which I accept makes clear.
[34] The present appeal is therefore dismissed.
.................................................
Gendall J
Solicitors:
David More, Dunedin
Crown Law, Wellington
18 R v Mako [2000] 2 NZLR 170.
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