Barnes v The Queen - [2017] NZHC 1786

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 Respondent

Judgment:

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…

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 The Queen

Details

AGLC: Barnes v The Queen [2017] NZHC 1786
Case: [2017] NZHC 1786
Decision Date: 31 July 2017

CaseChat Overview and Summary

Matthew Barnes appeals the two-and-a-half-year sentence imposed on him for aggravated robbery. The District Court Judge refused to discount the sentence because the appellant is a second-strike offender under the three strikes regime and therefore required to serve his sentence without parole. The appellant contends the sentence is disproportionately severe because he must serve the full term without parole and that this should have been taken into account in fixing the sentence. The High Court dismissed the appeal. The Court held that a sentence cannot be reduced simply because it will be served without parole. The three strikes regime is intended to separate the judicial function of sentencing from the statutory consequences of that new legislation. The Court observed, however, that while the three strikes regime is a strict regime, it is possible that on occasions like this it may, in the circumstances, cause unintended consequences.

Orders