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…

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 Barrett v Police

Details

AGLC: Barrett v Police [2014] NZHC 1259
Case: [2014] NZHC 1259
Decision Date: 5 June 2014

CaseChat Overview and Summary

In Barrett v Police, the High Court considered an appeal against sentence brought by the appellant, Melissa Barrett, who had been convicted of assault with a weapon. The District Court Judge imposed a sentence of five months’ home detention and 150 hours of community work. Ms Barrett appealed on the basis that the sentence was manifestly excessive and that she should have been sentenced to community detention instead. The Court considered the seriousness of the offence and the impact on the victim, who suffered a severe concussion and ongoing health issues. The Court held 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 found that while a slightly lower sentence might have been appropriate, the difference was not so significant as to render the sentence manifestly excessive. The appeal was dismissed, and Ms Barrett was required to resume serving her sentence of home detention.

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.

Orders