IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY
CRI-2014-441-0015 [2014] NZHC 1259
BETWEEN MELISSA SUE BARRETT
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 4 June 2014 Counsel:
M Inwood for Appellant
C R Walker for RespondentJudgment:
5 June 2014
JUDGMENT OF KATZ
This judgment was delivered by me on 4 June 2014 at 4:30 pm
Pursuant to Rule 11.5 High Court Rules
Registrar/Deputy Registrar
Solicitors: Public Defence Service, Napier
Elvidge & Partners, Napier
BARRETT v NEW ZEALAND POLICE [2014] NZHC 1259 [5 June 2014]
Introduction
[1] In early January 2014 the appellant, Melissa Barrett, was visiting her then boyfriend in another town. There was some tension between the young couple, as Ms Barrett’s boyfriend was apparently also maintaining contact with his former girlfriend, the victim.
[2] On the morning of 2 January 2014, the former girlfriend showed up at the house. Ms Barrett’s boyfriend went outside to speak with her. Ms Barrett became angry. She picked up an aluminium baseball bat from inside the house and went outside. Without warning, she swung the bat at the victim, striking her on the back of her neck. The victim briefly blacked out. Ms Barrett then dropped the bat and advanced towards the victim, swinging punches and screaming at her. The pair struggled. Ms Barrett’s boyfriend pulled her off and pushed her inside the house.
[3] Ms Barrett pleaded guilty to a charge of assault with a weapon.1 Judge Rea, in the District Court at Napier, rejected Ms Barrett’s application for a discharge without conviction, due to the serious nature of the offending. He took a starting point of one year imprisonment and determined that Ms Barrett was entitled to credit for her guilty plea, lack of previous convictions, and youth (aged 18). The Judge concluded that these factors meant that a sentence of home detention could be considered. The final sentence he imposed was five months’ home detention and
150 hours’ community work.
[4] Ms Barrett appeals that sentence, on the basis that it is manifestly excessive. She submits that a sentence of community detention should have been imposed. In particular, Ms Barrett submits that the Judge failed to give adequate recognition to her personal mitigating factors and the need to impose the least restrictive sentence on her that was consistent with the purposes for which the sentence was being
imposed.
1 An offence against s 202C of the Crimes Act 1961 that carries a maximum sentence of five
years’ imprisonment.
Approach to appeal
[5] An appeal against sentence is an appeal against the exercise of a discretion. Under s 250 of the Criminal Procedure Act 2011 (“CPA”) the appeal Court must allow the appeal if it is satisfied that there was an error in the sentence imposed and that a different sentence should replace it. If so, the Court may set aside the sentence and impose another, vary the sentence, or remit the sentence to the Court that
imposed it. In any other case, the Court must dismiss the…
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CaseChat Overview and Summary
The Court of Appeal was required to consider whether the District Court Judge erred in imposing a sentence of home detention instead of community detention. The Court noted that a sentence of community detention falls below home detention in the hierarchy of sentences and that it is open to a Judge to sentence an offender to community detention instead of home detention. However, the Court found that the Judge did not err in concluding that home detention was the least restrictive sentencing outcome that could achieve the purposes of sentencing. The Court held that community detention would not provide adequate denunciation and deterrence in all of the relevant circumstances of this case, given the seriousness of the assault and its impact on the victim. The Court found that the sentence imposed was not manifestly excessive and dismissed the appeal.
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Background
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Evidence
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Decision
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Ratio Decidendi
Legal Principle Established
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