Barrett v Police

[2014] NZHC 1259

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 Respondent
Judgment:	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 appeal.2

[6]      The CPA essentially confirms the approach taken by the Courts under the former Summary Proceedings Act 1957.   That approach was set out in Yorston v Police, where the Court said:3

(a)      There must be an error vitiating the lower Court’s original sentencing discretion: the appeal must proceed on an “error principle”.

(b)To establish an error in sentencing it must be shown that the Judge in the lower Court made an error whether intrinsically or as a result of additional material submitted to the appeal Court.

(c)      It is only if an error of that character is involved that the appeal Court should re-exercise the sentencing discretion.

[7]      The focus of an appeal against a sentence imposed is on the correctness of the end result, not the process by which the sentence was reached.   As the Court of Appeal observed in Ripia v R:4

…this Court has consistently observed that sentence appeals will almost always turn on a consideration of whether the final outcome is manifestly excessive. The  route  by  which  the  Judge  reached  that  outcome  will  be relevant to the analysis, but seldom in itself pivotal.

[8]      The High Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles.

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

3      Yorston v Police HC Auckland CRI-2010-404-164, 14 September 2010 at [13]–[15].

4      Ripia v R [2011] NZCA 101 at [15].

Did the Judge err in imposing a sentence of home detention?

Submissions

[9]      Ms Barrett accepted that the 12 month starting point adopted by the Judge was open to him.  Counsel submitted, however, that the Judge failed to give adequate recognition to Ms Barrett’s personal mitigating factors and the need to impose the least restrictive sentencing outcome.  The specific personal mitigating factors relied on by Ms Barrett are her youth, remorse, willingness to engage in restorative justice, potential artistic career and her lack of previous convictions.  It was submitted that these factors warranted a discount of 20 per cent. A 20 per cent discount would have taken Ms Barrett’s sentence to nine and a half months’ imprisonment.  Applying a further 25 per cent discount for Ms Barrett’s prompt guilty plea would have then taken the sentence to seven months’ imprisonment.

[10]     Counsel for Ms Barrett acknowledged that the Judge did consider whether the purposes and principles of sentencing could be achieved by a sentence less than imprisonment, but  submitted that he failed  to take the next step of considering whether a sentence less restrictive than home detention could fulfil those purposes and  principles.     His  Honour  accordingly  failed  to  apply  s  15A(1)(a)  of  the Sentencing Act.   She submitted that a sentence of community detention and supervision could have achieved the purposes for which the sentence was being imposed.

[11]     The respondent submitted that the Judge did not err, and that the sentence imposed was appropriate.  The Judge took account of all available mitigating factors. The respondent submitted that a sentence of community detention would be inappropriate given the seriousness of the offence and need for general and specific deterrence.   The Judge was not required to address sentencing options below that which he considered the least restrictive outcome.   The Judge did not overlook rehabilitation, as home detention has a rehabilitative component.

Discussion

[12]     A sentence of 24 months’ imprisonment or less is considered a “short term sentence” for the purposes of the Sentencing Act.  If a person would otherwise be sentenced to a short term sentence, a Judge is entitled to sentence an offender to a sentence  of  home  detention.5  A  sentence  of  home  detention  carries  with  it “in considerable measures, the principles of deterrence and denunciation”.6

[13]     Section 15A(1)(a) of the Sentencing Act provides that if a Court is lawfully entitled to impose a sentence of home detention, it may impose a sentence of home detention only if:

(a)      the Court is satisfied that the purpose or purposes for which sentence is being imposed cannot be achieved by any less restrictive sentence or combination of sentences; and

(b)the  Court  would  otherwise  sentence  the  offender  to  a  short-term sentence of imprisonment.

[14]     This is consistent with the general sentencing principle that a Judge must impose the least restrictive outcome that is appropriate in the circumstances, in accordance with the hierarchy of sentences contained in the Act.7

[15]     A community  based  sentence  of  community  detention  falls  below  home detention in the hierarchy of sentences.8   It is open to a Judge to sentence an offender to community detention instead of home detention.9  A Judge may impose a sentence of community detention if he or she is satisfied that it would hold the offender accountable for harm done to the community, and/or promote in the offender a sense of responsibility and acknowledgement of that harm, and/or denounce the offender’s

conduct, and/or deter the offender and others from committing similar offending.10

5      Sentencing Act 2002, s 80A.

6      R v Iosefa [2008] NZCA 453 at [41].

7      Sentencing Act 2002, s 8(g).

8      Sentencing Act 2002, s 10A(2)(d).

9      Sentencing Act 2002, s 69B(1)(a).

10     Sentencing Act 2002, s 69C(1)(a)(ii)

[16]    In this case the pre-sentence report writer assessed Ms Barrett’s risk of reoffending as  being low,  and  her risk  of harm  as  being moderate.    Given  the seriousness of the offending, however, the report writer recommended a sentence of home detention coupled with community work, in order to denounce violent offending of this nature, but also meet Ms Barrett’s rehabilitative needs.

[17]     The Judge’s precise sentencing methodology is unclear from his sentencing notes.   His starting point of 12 months’ imprisonment was certainly within range (as counsel for Ms Britton accepted).  It appears that the Judge probably then applied a  “global”  two  month  discount  for  the  factors  of  guilty  plea,  youth  and  good character,  resulting  in  a  sentence  of  10  months’ imprisonment,  which  was  then commuted into a final sentence of five months’ home detention.

[18]     From a starting point of one year’s imprisonment, a discount of 10 per cent for personal mitigating factors such as youth and lack of previous convictions would, in  my view,  be  appropriate.    That  would  reduce  the  sentence  to  10.8  months. Applying a further 25 per cent discount for Ms Barrett’s guilty plea would then result in a sentence of eight months imprisonment. Applying the usual (but not immutable) “rule of thumb”11 in relation to home detention sentences, this would commute to a sentence of four months home detention.

[19]     The issue of whether a sentence less restrictive than home detention could achieve the appropriate degree of denunciation and deterrence is somewhat finely balanced.  However, as the Judge noted, this was serious offending. The blow was to the head area and a weapon (an aluminium baseball bat) was used.

[20]     The  victim  impact  statement  (dated  31  January  2014,  four  weeks  after the incident) indicates that the victim was fairly seriously impacted by the assault. She was rushed to hospital by ambulance with a severe concussion.  Following her release from hospital she suffered from ongoing health issues, including headaches and memory loss.  She was unable to attend work.  She suffered from panic attacks and was afraid to be alone.  She moved out of her flat and was advised by her doctor

not to drive.

11     Mane v Police [2012] NZHC 2946 at [16].

[21]     In view of the seriousness of the assault, and its impact on the victim, the Judge did not err, in my view, in concluding that home detention was the least restrictive   sentencing   outcome   that   could   achieve   the   relevant purposes   of sentencing. Community detention would not provide adequate denunciation and deterrence in all of the relevant circumstances of this case.

[22]     The only remaining issue, therefore, is whether five months’ home detention was a manifestly excessive sentence.   Although, approaching the issue afresh, I would have reached a slightly lower end sentence (four months’ home detention, rather than five months) the difference is not of such magnitude that it can be said that the sentence imposed was outside the range that can properly be justified by accepted sentencing principles.  It necessarily follows that the sentence imposed was not manifestly excessive.

Result

[23]     The appeal is dismissed.   Ms Barrett must accordingly resume serving her sentence of home detention, on the terms and conditions ordered by Judge Rea, as

set out in his Sentencing Notes dated 3 April 2014.

Katz J