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Barnett v Police

Barnett v Police

Case [2022] NZHC 2662 17 October 2022

Sentencing

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Discounts for Personal Factors

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IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CRI-2022-488-000055

[2022] NZHC 2662

BETWEEN
SOLOMON BARNETT

Appellant

AND

NZ POLICE

Respondent

Hearing: 30 August 2022

Appearances:

M A Littlefair for the Appellant S-L Litt for the Respondent

Judgment:

17 October 2022

JUDGMENT OF POWELL J

This judgment was delivered by me on 17 October 2022 at 10 am pursuant to R 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

Solicitors/Counsel:
Rune Law, Kaikohe
MWIS, Crown Solicitor, Whangarei

BARNETT v NZ POLICE [2022] NZHC 2662 [17 October 2022]

[1] Solomon Barnett appeals a sentence of two years and six months’ imprisonment imposed by Judge D J Orchard1 after Mr Barnett pleaded guilty to charges of:

(a)strangulation;2 and

(b)assault with intent to injure (x 2).3

[2] The offending relates to two separate incidents in January 2021 and December 2021 respectively. Each incident involved a different victim, being Mr Barnett’s then partner at the time of each incident.

[3] Mr Littlefair, on behalf of Mr Barnett, submitted the end sentence imposed was manifestly unjust and excessive. He submitted that an end sentence of two years or under was appropriate and should have resulted in a sentence of home detention.

[4] In particular, in comprehensive written submissions Mr Littlefair submitted that Judge Orchard erred in five main respects:

(a)the starting point for first incident was too high;

(b)the starting point for the second incident was too high;

(c)a larger adjustment for totality would have been “more just”;

(d)the discounts for guilty pleas, cultural factors, medical and mental health factors were inadequate; and

(e)insufficient credit was given for time spent on restrictive electronically monitored (“EM”) bail.

1      Police v Barnett [2022] NZDC 11729.
2      Crimes Act 1961, s 189A. Maximum penalty seven years’ imprisonment.
3      Section 193. Maximum penalty three years’ imprisonment.

[5] Mr Barnett’s appeal against sentence is governed by the Criminal Procedure Act 2011 (“CPA”). Section 250(2) provides I must allow his appeal if satisfied that, for any reason, there is an error in the sentence imposed and a different sentence should be imposed. In any other case, I must dismiss his appeal.4 It follows that Mr Barnett must establish that Judge Orchard erred in adopting starting points that were too high, made an incorrect adjustment for totality; failed to give adequate credit for personal mitigating factors and/or failed to give a sufficient credit for time on restrictive EM bail.

The offending

[6] According to the summary of facts the first incident occurred on 17 January 2021 and resulted in the strangulation charge and the first assault charge. Shortly after midnight, Mr Barnett and the first victim were in bed. They had previously been arguing. The victim fell asleep but woke to Mr Barnett looking at messages on her phone. He pinned her down with his legs and confronted her about lying about texting other people. She became distressed and began to cry, making Mr Barnett angry. He shouted in her face, then began…

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 Barnett v Police

Details

AGLC: Barnett v Police [2022] NZHC 2662
Case: [2022] NZHC 2662
Decision Date: 17 October 2022

CaseChat Overview and Summary

Solomon Barnett appeals against a sentence of two years and six months’ imprisonment imposed by Judge D J Orchard after Mr Barnett pleaded guilty to charges of strangulation and two charges of assault with intent to injure. The offending related to two separate incidents in January 2021 and December 2021 respectively, each incident involving a different victim, being Mr Barnett’s then partner at the time of each incident. Mr Littlefair, on behalf of Mr Barnett, submitted the sentence imposed was manifestly unjust and excessive. In particular, he submitted that Judge Orchard erred in five main respects: the starting point for first incident was too high; the starting point for the second incident was too high; a larger adjustment for totality would have been “more just”; the discounts for guilty pleas, cultural factors, medical and mental health factors were inadequate; and insufficient credit was given for time spent on restrictive electronically monitored (“EM”) bail. The appeal against sentence is governed by the Criminal Procedure Act 2011. Section 250(2) provides I must allow his appeal if satisfied that, for any reason, there is an error in the sentence imposed and a different sentence should be imposed. In any other case, I must dismiss his appeal. Mr Barnett must establish that Judge Orchard erred in adopting starting points that were too high, made an incorrect adjustment for totality; failed to give adequate credit for personal mitigating factors and/or failed to give a sufficient credit for time on restrictive EM bail. Having considered Mr Littlefair’s submission on the first issue I do not consider Judge Orchard erred in assessing the seriousness of the offending and, in particular, the seriousness of the strangulation. The remaining issues raised by Mr Littlefair with regard to the starting point on the first incident, namely youth and previous criminal history, do not stand to be considered in connection with the starting point but are personal factors, and will be addressed in issue 4. I consider that the starting point adopted was in fact at the lower end of the available range. I cannot see why the modest uplift applied was not appropriate. Given, as noted, I consider the starting point in respect of the first offending was at the lower end of the available range, I see no reason for interfering with Judge Orchard’s assessment of an appropriate discount for totality. I commence my analysis of the discounts for personal factors with reference to Mr Barnett’s guilty plea. I accept that increasing the guilty plea discount is warranted in the circumstances and I fix this at a total of 15 per cent. Likewise, while I consider there to be considerable overlap between a number of the categories of discounts for personal factors identified by Mr Littlefair, I nonetheless agree that the 20 per cent allowed by Judge Orchard was inadequate. I consider a discrete discount of 30 per cent is appropriate for these issues. There is some debate as to the extent that credit should be given for time on restrictive EM bail. Accepting that Mr Barnett spent between eight and nine months on EM bail before his arrest in relation to the second incident, I am satisfied that he should have been given a credit of four months. Applying the additional discounts for personal factors detailed above leads to a notional end sentence of 28 months’ imprisonment. When the six months is deducted for the remainder of the guilty plea discount for the second incident (two months) and time spent on restrictive EM bail (four months), this results in an end sentence of 22 months’ imprisonment. I conclude therefore that the original sentence was manifestly excessive and that the appeal should be allowed. There is no presumption for or against the substitution of a short-term sentence of imprisonment for home detention. In determining whether an order granting Mr Barnett leave to apply for home detention, pending the availability of a suitable address, I have had regard to a range of relevant factors. I respectfully agree with Judge Orchard’s conclusion. In my view, the circumstances of Mr Barnett’s offending, particularly the second incident, are highly relevant in considering whether home detention is an appropriate sentence. It is particularly relevant that the conditions of electronic monitoring proved no obstacle to Mr Barnett finding a new partner, and the consequence of this was the second incident. Likewise, the fact that Mr Barnett previously had sole custody of his children does not necessarily mean that home detention is the appropriate sentence. I am concerned that Mr Barnett would face significant pressures in caring for his children whilst subject to home detention conditions, where he would be unable to care for them in the way he perhaps otherwise would. I also note that Mr Barnett has only recently begun counselling whilst in prison, and I consider that it would be beneficial for him to complete this in order to address his existing issues, rather than this be disrupted by substituting his sentence to one of home detention and the temptations and pressures that come with it. These factors, as well as recognising the difficulty in considering this application in the abstract in the absence of any pro-social address that would ensure Mr Barnett does not succumb to the temptations associated with home detention, lead me to the conclusion that it is not appropriate to grant leave for Mr Barnett to apply for home detention. The appeal is allowed in part. Mr Barnett’s sentence on the strangulation charge is set aside and substituted with a sentence of 22 months’ imprisonment. Mr Barnett is not given leave to apply for home detention.

Orders