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Barney v Police

Barney v Police

Case [2021] NZHC 1471 21 June 2021

Aggravated & Exemplary Damages

Criminal Law

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2021-404-173

[2021] NZHC 1471

BETWEEN
SHAUN KAMIRA BARNEY

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 21 June 2021

Appearances:

HCW Redwood for the appellant T S Jenkin for the respondent

Judgment:

21 June 2021

ORAL JUDGMENT OF JAGOSE J

Counsel/Solicitors:
HCW Redwood, Barrister, Auckland
Meredith Connell, Crown Solicitor, Auckland

BARNEY v NEW ZEALAND POLICE [2021] NZHC 1471 [21 June 2021]

[1] Shaun Kamira Barney appeals his sentence of 27 months’ imprisonment, imposed by Judge B A Gibson in the District Court at Auckland on 18 March 2021,1 on his guilty pleas to a raft of minor to moderately serious offending in Auckland’s inner-city suburbs from June to August 2020.2

Judgment under appeal

[2]The Judge took Mr Barney’s early morning burglary of a Grey Lynn residence

— obtaining keys, a bank card and woodworking equipment — as the lead offending.3 Taking an initial starting point of 20 months’ imprisonment, he uplifted that by seven months for the other offending (which included unlawful taking of a motor vehicle, and some minor dishonesty, driving, drugs and weapon offending); three months for his previous offending; and three months for offending while on bail and under sentence. From that 33-month starting point, the Judge applied a 20 per cent discount for Mr Barney’s guilty pleas. The end sentence was of 27 months’ imprisonment (plus six months’ disqualification for unlawfully taking a motor vehicle).4

[3] For Mr Barney, Harry Redwood argues the Judge erred by taking too high a starting point, and failing to provide any discount for Mr Barney’s personal mitigating factors. In supplementary submissions, he calculates the Judge’s end-point unjustifiably is 2.2 per cent above his comprehended starting point.

1      Police v Barney [2021] NZDC 4961.
2      Burglary (Crimes Act 1961, s 231(1)(a): maximum penalty, ten years’ imprisonment); receiving (under $500) (ss 246 and 247: maximum penalty, three months’ imprisonment); using a document for pecuniary advantage (x 3) (s 228(1)(b): maximum penalty, seven years’ imprisonment); possession of methamphetamine (Misuse of Drugs Act 1975, s 7(1)(a) and (2): maximum penalty, six months’ imprisonment or a $1,000 fine); possession of utensils (s 13(1)(a) and (3): maximum penalty, one year’s imprisonment or a $500 fine); possession of a knife in a public place (Summary Offences Act 1981, s 13A: maximum penalty, three months’ imprisonment or a $2,000 fine); wilful damage (s 11(1): maximum penalty, three months’ imprisonment or a $2,000 fine); unlawfully taking a motor vehicle (Crimes Act, s 226(1): maximum penalty, seven years’ imprisonment); and failing to comply with a prohibition as an unlicensed driver (Land Transport Act 1998, s 52(1)(c): maximum penalty, $10,000 fine).
3      Police v Barney, above n 1, at [1].
4 At [6].

Approach on appeal

[4] I must allow the appeal only if satisfied both there is error in the sentence, and a different sentence should be imposed.5 In any other case, I must dismiss the appeal.6

[5] The approach previously taken…

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 Barney v Police

Details

AGLC: Barney v Police [2021] NZHC 1471
Case: [2021] NZHC 1471
Decision Date: 21 June 2021

CaseChat Overview and Summary

Shaun Kamira Barney appealed his sentence of 27 months' imprisonment, imposed by Judge B A Gibson in the District Court at Auckland on 18 March 2021, for his guilty pleas to a series of minor to moderately serious offending in Auckland's inner-city suburbs from June to August 2020. The primary offence was a burglary of a Grey Lynn residence, where the appellant obtained keys, a bank card, and woodworking equipment. Barney's sentence was calculated by an initial starting point of 20 months' imprisonment, uplifted by seven months for other offences, three months for previous offending, and three months for offending while on bail and under sentence, resulting in a 33-month starting point. A 20 per cent discount for guilty pleas was then applied, leading to a final sentence of 27 months' imprisonment.

The central legal issue was whether the Judge erred in establishing the starting point for sentencing and in the discount applied for Barney's guilty pleas. Barney's counsel argued that the starting point was too high and that there should have been additional discounts for personal mitigating factors. The court examined whether the Judge's starting point and discount were within the range properly justified by accepted sentencing principles, specifically whether the sentence was "manifestly excessive."

The court found that the Judge's approach to the sentencing process was analytically sound, despite some confusion caused by undifferentiated uplifts and discounts. The court concluded that the 30-month starting point was within the proper range, as even a 30-month starting point could be seen as generous given the nature of the offences. The court also found that the Judge had adequately considered Barney's personal mitigating factors and that the 20 per cent discount for guilty pleas was within the appropriate range, considering the strength of the prosecution cases and the timing of the guilty pleas. The court held that the Judge did not err, and the sentence was not manifestly excessive.

Accordingly, the appeal was dismissed.

Orders