Barney v Police

[2021] NZHC 1471

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 by courts on sentencing appeals continues to apply;7 the measure of error is the sentence be “manifestly excessive”. This principle is “well-engrained” in this Court’s approach to sentencing appeals.8 I will not intervene where the sentence is within a range properly justified by accepted sentencing principle. Whether ‘manifestly excessive’ is to be assessed in terms of the sentence given, rather than the process by which it is reached.9

Discussion

[6]                   Sentencing is a two-step process: first, to establish a starting point for the offending, identifying the offending’s aggravating and mitigating features; then to take into account all aggravating and mitigating factors personal to the offender, together with a discount for guilty pleas, all calculated as a percentage of the starting point.10

[7]                   The Judge’s undifferentiated uplifts and discounts have led to some confusion. Analytically, the Judge is to be taken to have established a 27-month starting point, for a subsequent total six-month (or 22 per cent of the starting point) uplift and 20 per cent (or marginally less  than  five  months  and  two  weeks’)  discount.  Rounding  in  Mr Barney’s favour, that results in a 27-month end sentence, as the Judge determined.

[8]                   Mr Redwood takes “no issue” with the Judge’s initial 20-month starting point. He says the seven-month uplift is “stern, if not excessive”. But he comprehends the three-month uplift for offending while on bail and subject to sentence means “[e]ffectively, a 10 month uplift has been applied to reflect these charges”. Thus he complains the Judge’s 30-month starting point is manifestly excessive.

5      Criminal Procedure Act 2011, s 250(2).

6      Section 250(3).

7      Tutakangahau v R [2014] NZCA 279 at [26]–[27].

8      At [33] and [35].

9      Ripia v R [2011] NZCA 101.

10     Moses v R [2020] NZCA 296 at [46]–[47].

[9]                   Uplifts for previous offending, and offending on bail and while subject to sentence, are uplifts relating to the offender’s personal circumstances, rather than being factors aggravating the offending itself.11

[10]               Mr Redwood rightly takes “no issue” with the Judge’s three-month uplift for previous offending. That leaves the three-month uplift for offending while on bail and for sentence. But, given Mr Redwood’s approach, his submission is the Judge’s starting point should have been at 26 months, incorporating a six-month uplift on the Judge’s 20-month starting point “to reflect the other offences on a totality basis, and to reflect the offending while on bail” (and presumably while subject to sentence).

[11]               To separate them out, the Judge’s seven-month uplift for totality clearly was available to him. Nine to sixteen-month starting points have been taken for unlawfully taking motor vehicles;12 a nine-month uplift has been taken for dishonest use of a document on a burglary lead charge.13 The Court of Appeal has said “no issue [could] be taken” with a starting point of two years’ imprisonment for a burglary, adjusted upwards to three years’ imprisonment to reflect the totality of offending (there, another burglary).14 Here — where burglary is of a residential property, a distinct aggravating factor in relation to the offending itself15 — even a 30-month starting point could be seen as generous.

[12]               Offending while on bail or subject to a sentence is a discrete head of personal aggravation, which a sentencing judge must take into account.16 A three-month uplift is solidly within range,17 and could well have been higher.18

11 Previous convictions are regarded as an indicator of the offender’s character, going to his or her culpability: R v Power [1973] 2 NZLR 617 (CA) at 618. And offending while on bail, parole or subject to sentence is seen as a reflection of the offender’s disregard for court processes: Clunie v R [2013] NZCA 110 at [22].

12 Wood v Police [2018] NZHC 1629 at [9] and [30]; O’Sullivan v Police [2015] NZHC 2032 at [3]– [5]; Edwards v Police HC Auckland CRI-2010-404-103, 11 May 2010 at [4]; and O’Rourke v Police [2016] NZHC 273.

13 Thomas v Police [2016] NZHC 2739 at [15].

14 Jones v R [2012] NZCA 273 at [15].

15     Sentencing Act 2002, s 9(1)(b).

16     Section 9(1)(c).

17     Pearson v R [2020] NZCA 573 at [17] and [31].

18     R v Vailea [2010] NZCA 67 at [7] and [12].

[13]               I therefore turn to if the Judge should have given  additional discounts for   Mr Barney’s personal mitigating factors.

[14]               The Judge noted Mr Barney’s lack of family support in New Zealand, his methamphetamine problems and his wish “to try and turn [his] life around”.19 I take the last to reflect Mr Barney’s expression of remorse, apparently made to the Judge (but of which no record is on the Court file). The Judge noted Mr Barney nonetheless previously had offended in Australia where he had family support. Corrections’ pre- sentence report records his 93 convictions there, for deportation to New Zealand after serving a sentence for violent offending.

[15]               There was no evidence Mr Barney’s drug problem was in any way causative of his offending,20 although Corrections’ pre-sentence report also advised he was affected by his drug-taking and willing to engage in treatment for it. The Judge may also have had evidence of Mr Barney’s pre-sentencing attendance at rehabilitation programmes and a rehabilitation centre’s preparedness to accept him in its residential programme. As against that there also was evidence of Mr Barney’s earlier failure to maintain such attendances, and his exclusion from the prison general muster on grounds of violence.

[16]               The Judge acknowledged he should “give [Mr Barney] credit where [he] can”,21 and considered his discount for guilty pleas was “generous”.22 Given his train of narrative, I infer the Judge considered all  available credit was contained in that  20 per cent discount.

[17]               Subject to consideration of all relevant circumstances identifying the true mitigatory extent of a guilty plea, a discount of up to 25 per cent is available.23       Mr Redwood says the full 25 per cent discount should have been given for the guilty pleas alone, and “at least” a 30 per cent discount overall.

19     Police v Barney, above n 1, at [5].

20     Zhang v R [2019] NZCA 507, [2019] 3 NZLR 658 at [147].

21     Police v Barney, above n 1, at [6].

22 At [7].

23     Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [74]–[75].

[18]               The bulk of Mr Barney’s guilty pleas came in late November 2020, after being charged in July and August 2020. There is no sufficient explanation of that passage of time, particularly as they include a second appearance. The prosecution cases were strong, Mr Barney’s conduct in the lead offending being captured on CCTV, and he being caught red-handed in possession of the knife and stolen card, and literally from blood stains leading to a wilful damage charge.

[19]               Overall, the mitigatory extent of Mr Barney’s guilty pleas only is moderate. A 10 to 15 per cent discount would have been justified. A five to ten per cent discount would have been available for his personal mitigating circumstances, which are muted (while worthy of some discount to reflect his rehabilitative steps, including preparedness to attend a restorative justice meeting). That aggregate 15 to 25 per cent range well accommodates the Judge’s 20 per cent discount, even while disregarding his rounding of a generous starting point further in Mr Barney’s favour.

[20]The Judge did not err. His end sentence is not manifestly excessive.

Result

[21]The appeal is dismissed.

—Jagose J