Barnett v Police

[2022] NZHC 2662

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 to headbutt her repeatedly. She managed to push him off, but he trapped her against the wall. He picked her up and threw her across the lounge onto the floor.

[7]    Mr Barnett then tried to pull her up, but she went limp. He hit her on the side of the head to wake her up. The victim stated it felt like she was passing out and was seeing black and colours. Mr Barnett then threw water on the victim and put her in a chair, but she fell to the floor. He put his hands around her throat and squeezed. He stopped, said to her “Do you want me to do this?” and began to push down on her throat again. She passed out.

[8]    She came to as Mr Barnett once again tried to put her in a chair. He continued hitting her face, pushing her and spitting on her. She ended up on the bathroom floor where she vomited, and then fell asleep. She woke at some point and they began arguing again. The next morning, she managed to escape and sought help at the Kaikohe Police Station.

4      Criminal Procedure Act 2011, s 250(3).

[9]    The second incident occurred on 2 December 2021. At that time Mr Barnett remained on bail from the first incident. He and the second victim, his new partner, had gone shopping. Mr Barnett refused to sign the COVID tracing paper at the shop, creating a scene with the store security guard. The victim tried to calm the situation by signing the form on his behalf. That infuriated Mr Barnett who became verbally aggressive towards her and accusing her of sleeping with the security guard.

[10]   When they returned home, she told him she was going to go to her grandparents’ home for the night. That also angered Mr Barnett. He struck her on the right side of her head. She fell to the ground, and he kicked her multiple times while wearing steel-capped boots. He grabbed her by the hair and dragged her across the gravel. He made her stand up, then struck her in the chest with both hands, causing her to fall backwards and hit a fence. He told her to get in his vehicle. Inside the vehicle he made a phone call then used the phone to strike her face multiple times. He pushed her head into the seatbelt pillar loop, causing a cut to her left ear.

The sentence imposed

[11]   Judge Orchard took the strangulation charge from the first incident as the lead offence. She considered a starting point for that offence of three years’ imprisonment was appropriate, uplifted by two months given the offending took place while Mr Barnett was subject to a sentence. The initial starting point was therefore 38 months’ imprisonment.

[12]   Her Honour then set a starting point of 18 months’ imprisonment for the second incident, uplifted by two months given the offending occurred while Mr Barnett was on bail for the first incident. That resulted in a total starting point of four years and 10 months’ imprisonment for the two incidents. Adjusting for totality, the Judge reduced that starting point by seven months, resulting in a final starting point of four years and three months’ (51 months total) imprisonment.

[13]   Judge Orchard considered that a full 25 per cent discount for Mr Barnett’s early guilty plea in relation to the second incident was appropriate but considered a 10 per cent discount generous in relation to the first. To balance those considerations, she

applied a global 10 per cent discount for guilty pleas but indicated she would discount further at the end point to take into account the additional 15 per cent she regarded as appropriate for the early guilty plea for the second incident.

[14]   The Judge did not allow a discount for remorse. She then acknowledged the  s 27 cultural report and the  PAC  report,  and  referred  to  the  abuse  suffered  by Mr Barnett when he was a child, his impoverished upbringing, symptoms of post- traumatic stress disorder (“PTSD”) as a result of his abuse and his attention- deficit/hyperactivity disorder (“ADHD”). For those factors Judge Orchard allowed a discount of 20 per cent.

[15]   That left a global discount of 30 per cent, amounting to 15.3 months but which the Judge rounded up to  16  months.  She  also  deducted  three  months  for  time Mr Barnett spent on EM bail and a further two months for the guilty plea in respect of the second incident. The effective sentence was two years and six months’ imprisonment. She attached that sentence to the lead charge of strangulation and attached lesser sentences of 12 months to the two assault charges.

Issue 1 – starting point for the first incident

[16]   In Mr Littlefair’s submission Judge Orchard overstated the seriousness of the strangulation. In particular he contended:

(a)the first incident started when the victim lashed out at and scratched him.

(b)there was no reference in the summary of facts to the first victim suffering any psychological harm, and Mr Barnett was not given any opportunity to challenge the contents of the victim impact statement alleging any such harm.

(c)Judge Orchard was also wrong to assert:

(i)Mr Barnett threw water on the victim to make her more alert.5

(ii)The victim was terrorised “throughout the night”.6

(iii)The victim lost consciousness as a result of the strangulation.7

[17]   Given this analysis, Mr Littlefair submitted with reference to various authorities8 that the correct starting point for the leading charge of strangulation should have been between two years’ imprisonment and two years and six months’ imprisonment. He suggested that a starting point of two years and three months’ imprisonment with a one-month uplift was ultimately appropriate.

[18]   Mr Littlefair went on to submit that the starting point was too high having regard to Mr Barnett’s:

(a)age at the time of offending (30 years);

(b)limited criminal history with no history of violence until he was 29 years old; and

(c)violent offending only beginning after the death of his infant child and the ending of his relationship with the child’s mother.

[19]   Finally, Mr Littlefair submitted the two-month uplift the Judge applied to the first incident was unfair or unnecessary given the high starting point and given Corrections had not arranged rehabilitation for Mr Barnett in circumstances where he wanted such help. He submitted a one-month uplift was warranted instead.

5      Police v Barnett, above n 1, at [6].

6 At [10].

7 At [11].

8      Ackland v Police [2019] NZHC 312, (2019) 29 CRNZ 179; Houkamau v Police [2019] NZHC 2743; Parker v Police [2020] NZHC 479; T v Police [2019] NZHC 3375, [2020] 2 NZLR 270; and Mokaraka v Police [2020] NZHC 718.

Discussion – Issue 1

[20]   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. There was no error in her Honour’s application of the  summary  of  facts,  on  which  she  was  required  to  sentence  Mr Barnett.9

[21]   First there is no suggestion in the summary of facts that the victim in any way assaulted Mr Barnett or otherwise provoked the assault, nor is it suggested by the first victim in her victim impact statement. Instead, it confirms Mr Barnett instigated the physical violence when he held her down.

[22]   This is reflected in the sentencing notes. The sentencing Judge noted that the victim at some point “noticed that [Mr Barnett] had scratches on [his] body and it seems that she herself had caused those.”10 The fact that Mr Barnett told the author of the PAC report he received those injuries because the first victim instigated the argument by scratching and punching him is irrelevant, and could only have assumed relevance had Mr Barnett sought a disputed facts hearing on the issue.

[23]   Likewise, it was not an error for Judge Orchard to conclude the first victim had suffered psychological harm given the offending set out in the summary of facts and the contents of the victim impact statement, noting that the point of victim impact statements is to provide such information to the Court. It is equally difficult to see how Mr Barnett could have responded even if he had had more time, and indeed it is noted Mr Barnett has not subsequently attempted to refute the first victim’s victim impact statement on appeal.

[24]   There is equally no error on the part of Judge Orchard in inferring that when Mr Barnett threw water on the first victim it was to make her more alert, that she had been “terrorised through the night”, and that she had lost consciousness.

9      R v Apostolakis (1997) 14 CRNZ 492 (CA) at 494; Pokai v R [2014] NZCA 356 at [30].

10     Police v Barnett, above n 1, at [7].

[25]   There is no other obvious conclusion to draw from Mr Barnett’s actions in throwing water on the first victim. Likewise, while Mr Littlefair is correct that there are no precise times after the start of the first incident, it is clear it went on for some considerable time, albeit there were equally periods where little was happening and that at one point the first victim fell asleep. The description is not however inaccurate.

[26]   Similarly, and contrary to Mr Littlefair’s submissions, I found the summary to be clear that the first victim passed out and became unconscious while being strangled by Mr Barnett. Specifically, the summary records:

He got into her face and then put both hands around her throat and compressed his hands, then stopped.

In her state she just said, “just finish me.”

He said do you want me to do this and began pushing down on her throat more and more. She gave up and passed out.

[27]   The fact that the summary of facts had previously recorded that the first victim had thought she was losing consciousness before being strangled is irrelevant.

[28]   In addition to these matters,  I  note  that  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.

[29]   Given this position it follows that the strangulation cases cited by Mr Littlefair which did not involve unconsciousness11 were less serious than the present case. Moreover, many of the cases predated the recent decision of the Court of Appeal in Shramka v R12 which confirmed the relevant aggravating factors as follows:13

(a)premeditation;

(b)history of strangulation or prior very serious domestic offence;

11 Houkamau v Police; Parker v New Zealand Police; Mokaraka v Police; above n 8: in all three  cases the High Court considered a starting point of two years’ imprisonment to be appropriate for a lead charge of strangulation where there was no loss of consciousness.

12 Shramka v R [2022] NZCA 299.

13 At [42].

(c)vulnerability of the victim;

(d)home invasion/breach of protection order;

(e)aggravated violence;

(f)threats to kill;

(g)enduring harm to the victim; and

(h)harm to associated persons.

[30]   In this case I am satisfied that two of the factors are present, vulnerability of the victim and enduring harm to the victim but agree with counsel that otherwise the facts in Shramka are not comparable. The closest comparators are in fact:

(a)Ackland v Police14 which as well as involving a strangulation involved two assault charges for which the High Court upheld a starting point of four years’ imprisonment for all three offences.

(b)T v Police15 which Doogue J noted the offending “was prolonged and escalated in nature from simple physical assault to more violent physical assault combined with psychological control”,16 with strangulation forming one part of the assault leaving the victim unconscious and incontinent. The High Court likewise upheld a starting point of four years (three years on the strangulation charge and an uplift of one year for the other offending).

[31]   Having analysed the authorities I consider that the starting point adopted was in fact at the lower end of the available range given that the three year starting point not only included a strangulation of moderate seriousness comparable to those in

14     Ackland v Police, above n 8.

15     T v Police, above n 8.

16 At [54].

Ackland and T but also, as in T, a prolonged assault involving a vulnerable victim, which included sustained attacks to the head.

[32]   In this regard I note that while Judge Orchard took the strangulation charge as the lead offence, her Honour’s analysis includes the assault without specifically acknowledging that both offences made up the final starting point. The uplift did not relate to the assault but rather was only a modest increase to reflect that the offending occurred while Mr Barnett was subject to a sentence of supervision.

Issue 2 – starting point for the second incident

[33]   In respect of the second incident, and the second assault with intent to injure charge, Mr Littlefair submitted that a starting point of 15 months’ imprisonment would be appropriate, plus the two-month uplift applied by the sentencing Judge for the fact Mr Barnett was on bail at the time of offending. Alternatively, he submitted as fair a starting point of 18 months’ imprisonment without an uplift.

Discussion – Issue 2

[34]   Mr Littlefair’s analysis appears to be based in part on totality considerations which are addressed under issue 3 below, but his primary submission was that an uplift was not warranted given “the unfortunate length of time [Mr Barnett] had been on very restrictive bail awaiting trial on the first set of charges”.

[35]   Leaving totality issues aside and noting Mr Littlefair did not challenge the starting point adopted by Judge Orchard, I cannot see why the modest uplift applied was not appropriate. There is no dispute that Mr Barnett was on bail at the time of the second incident and an uplift was therefore appropriate in order to finalise the starting point for that offending.17

17 Clunie v R [2013] NZCA 11 at [22]: Section 9(1)(c) of the Sentencing Act 2002 specifically recognises that the fact that the offending was committed while on bail is an aggravating feature. Such a discount is intended to reflect the fact that such offending displays disregard for Court processes.

Issue 3 – Totality

[36]   While Mr Littlefair does not dispute Mr Barnett had already received a seven- month discount for totality on  the  58-month  total  starting  point  adopted  by  Judge Orchard, he submitted a discount for totality of some nine to 10 months would have been available and “more just” in the circumstances.

Discussion – Issue 3

[37]   The Sentencing Act 2002 requires the Court to consider the totality of offending when imposing a sentence, where if cumulative sentences are imposed the end sentence must not be wholly out of proportion to the gravity of the overall offending.18 It is well established that the totality principle is to be applied flexibly and that there is no formula.19 The end sentence is to be constructed as a matter of discretion and individual assessment in the particular circumstances.20

[38]   No reasons are given as to why the discount for totality is inadequate in the circumstances. In this case the seven-month adjustment represents a discount of just over 12 per cent. 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.

Issue 4 - discounts for personal factors

[39]   Mr Littlefair submitted that the 10 per cent discount for the guilty plea on the first incident and the 20 per cent discount for factors identified in the s 27 cultural report were inadequate. On the contrary Mr Littlefair identified the following categories of discounts, although emphasised in oral submissions that it was not his intention to suggest that if these were adopted and then added to credits for time spent on restrictive bail it would result in a net zero period of imprisonment:

18     Sentencing Act 2002, s 85(2).

19     Enoka v R [2018] NZCA 185 at [26]; citing R v Dodd [2013] NZCA 270 at [31]–[33]; and Geoff Hall Hall’s Sentencing (online looseleaf ed, LexisNexis) at [SA85.1]–[SA85.2].

20     R v Williams CA 91/00, 31 May 2000 at [11].

(a)20 per cent (at least more than 15 per cent) in relation to the guilty plea for the first set of offending;

(b)30 per cent for cultural factors contained in the s 27 report;

(c)15 per cent for Mr Barnett’s mental health factors;

(d)15–20 per cent for the impact on his dependent children; and

(e)unquantified discounts for remorse and insight into his offending and for prospects of redemption and rehabilitation.

[40]Elaborating on these in turn Mr Littlefair submitted:

(a)Although Mr Barnett did not plead guilty to the first incident at the earliest opportunity, he did so well before trial, after a third adjournment and after Police amended the charges, reducing the charge of injuring with intent to assault with intent to injure.

(b)In assessing the s 27 report Judge Orchard had not sufficiently recognised:

(i)Mr Barnett’s violent and abusive upbringing by his parents and that they exposed him, either directly or by omitting to properly care for him, to a gang lifestyle, to violence and to drug abuse in the home;

(ii)Mr Barnett’s exposure to systemic background deprivation; or

(iii)Mr Barnett’s PTSD and ADHD, and other factors separate from his background of systemic deprivation.

(c)Mr Barnett contends that he is the sole caregiving parent for his four children and therefore seeks a separate and discrete discount so as to mitigate the impact of sentencing of a parent on a child.

(d)Mr Barnett’s guilty pleas were indicative of Mr Barnett’s remorse and acceptance of his responsibility for the offending.

(e)Mr Barnett has now sought and engaged with counselling to “work through his issues with anger and any potential mental unwellness caused by untreated childhood trauma”.

(f)Mr Barnett is entitled to a discount for his youth and previous good character given his lack of previous violent offending.21

[41]   In response, Ms Litt for the Crown submitted that no further adjustment for personal factors was warranted. In particular, she submitted the 10 per cent discount for the guilty plea in respect of the first incident was appropriate, and while the 20 per cent discount for all factors contained in the s 27 report, including ADHD and PTSD, was at the lower end of comparable discounts, it was still within range.

Discussion – Issue 4

[42]   I commence my analysis of the discounts for personal factors with reference to Mr Barnett’s guilty plea. Having looked through the District Court bench notes on the charging documents I accept Mr Littlefair’s submission that Mr Barnett had been working towards a fixture and it was only when the judge alone trial could not proceed because Mr Barnett could not be produced by the prison that resolution discussions were then explored. I likewise accept that any subsequent fixture was at the very least some months away and that the guilty plea followed a reduction in the assault charge in respect of the first incident. Thus, while it is clear that the guilty plea was significantly delayed and the first victim did have to prepare for the judge alone trial, she was not ultimately put through further months of waiting nor was she required to give evidence. As a result, increasing the guilty plea discount is warranted in the circumstances and I fix this at a total of 15 per cent.

[43]   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

21 From Issue 1 above, see [28].

nonetheless agree that the 20 per cent allowed by Judge Orchard was inadequate. In particular, it is not in dispute that Mr Barnett suffered from sexual abuse at a young age and that the counselling report, not available to Judge Orchard, makes it clear that this has led to ongoing mental issues. The connection between these two matters also makes it easier to see a causal link between the sexual abuse and the subsequent early expulsion of Mr Barnett from school for violence. In the circumstances I consider a discrete discount of 30 per cent is appropriate for these issues.

[44]   Conversely, it is difficult to see in the s 27 report any evidence of physical violence by Mr Barnett’s family, while there is no evidence before the Court to indicate that Mr Barnett’s children are not being appropriately cared for while he is in custody. Likewise, I do not accept that any discrete discount for remorse is warranted, noting that in the PAC report Mr Barnett appeared to still put blame on the first victim for his offending. Similarly, I consider it is too early to give any discrete discount for rehabilitative steps or prospects as, apart from participating in counselling, it is difficult to see what else has been done at present.  Finally,  I do not consider that  Mr Barnett can properly be given any discount for youth (he is over 30 years old) nor previous good character given his family violence conviction in 2020 for which he was still serving a sentence of supervision at the time of the first incident.

[45]   I therefore conclude that Mr Barnett was entitled to discounts for personal factors amounting to 45 per cent.

Issue 5 – Credit for restrictive EM bail

[46]   Mr Littlefair submitted the sentencing Judge clearly intended to give a 50 per cent discount for time spent on EM bail but incorrectly considered that to be a six- month period. In fact, Mr Barnett spent a little under nine months on EM bail, a figure that is not disputed. Mr Littlefair submits a 50–60 per cent discount on the actual period is an appropriate discount.

Discussion – Issue 5

[47]   There is some debate as to the extent that credit should be given for time on restrictive EM bail. In the present case it is however unexceptional as Mr Littlefair

submitted to allow a discount to the extent sought.22 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, a figure which takes into account some of the other rounding undertaken by Judge Orchard in Mr Barnett’s favour.23 This means an additional one month’s credit must be given to Mr Barnett.

Conclusion - end sentence

[48]   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.

Home Detention

[49]   As the end sentence on appeal is now below two years it is accordingly a short sentence of imprisonment and home detention is therefore a possibility.24 At the time of hearing for the appeal there was no suitable address identified, and Mr Littlefair therefore sought leave to apply for home detention to give Mr Barnett the opportunity to see if a suitable address is available.25

[50]   In considering whether the appropriate end sentence should be one of home detention, while the Court has the ability to commute a period of home detention where a sentence of short-term imprisonment would otherwise be imposed, the Court of Appeal has also stated:26

That does not mean that a short-term period of imprisonment must always be commuted to a sentence of home detention. That equally would be an error of

22 For example see Paora v R [2021] NZCA 559 at [53]: The Court of Appeal noted that there is no guideline about the discount which should be afforded to a defendant for time spent on EM bail, observing that discounts ranging from 30 to 50 per cent are often used, although 50 per cent is not an upper limit.

23     Police v Barnett, above n 1, at [27].

24     Sentencing Act 2002, ss 15A and 4(1).

25     Section 80I.

26     Fairbrother v R [2013] NZCA 340 at [30].

law. What it does mean is that the judge must make a considered and principled choice between the two forms of sentence, recognising that both serve the principles of denunciation and deterrence, and identifying which of them better qualifies as the least restrictive sentence to impose taking into account all the purposes of sentencing.

[51]   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.

[52]   I begin with Judge Orchard’s comments in relation to home detention. In her view, the sentencing purposes of denunciation, deterrence and accountability take precedence over Mr Barnett’s rehabilitative prospects in this case, where her Honour did not see him as a promising candidate for rehabilitation because of the level and circumstances of the violence that he inflicted, which in her view will not be tolerated by the community.27 She considered that Mr Barnett is a person who resorts to violence at very little, if any, provocation. In her view, home detention would have been unavailable for these reasons even if Mr Barnett’s initial sentence had been two years’ imprisonment or less.

[53]   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. The second incident occurred after a relatively long stint of EM bail which, as discussed, was argued by Mr Littlefair as a factor against the imposition of an uplift for the fact that the offending occurred while on EM bail. The conditions attached to home detention are not unlike those attached to EM bail, where the circumstances of Mr Barnett’s offending therefore send concerning signals about his ability to refrain from further similar offending if a sentence of home detention was to replace one of imprisonment. 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.

27     Police v Barnett, above n 1, at [27].

[54]   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, as home detention conditions would prevent him from taking them to school as well as other activities outside the house. Though Judge Orchard suggested that Mr Barnett’s sister may have been helping him care for his children,28 in the absence of any evidence as to how Mr Barnett plans to care for his children if subject to home detention conditions, I am not satisfied that he would be able to cope with these external pressures. 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.

[55]   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.

Decision

[56]   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.

Powell J

28 At [30].