Barrett v Police HC Auckland CRI 2010-404-261

[2010] NZHC 1877

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2010-404-261

CRI 2010-404-262

TANE BARRETT

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         18 October 2010

Appearances: H D M Lawry for Appellant

J Carlyon for Respondent

Judgment:      27 October 2010

JUDGMENT OF KEANE J

This judgment was delivered by Justice Keane on 27 October 2010 at 12pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

Date:

Solicitors:

Crown Solicitor, Auckland

BARRETT V POLICE HC AK CRI 2010-404-261  27 October 2010

[1]      On 8 May 2009 Tane Barrett was sentenced in the District Court, Manukau, to imprisonment for five years for wounding SB on 2 September 2008 with intent to cause her grievous bodily harm and to a two-thirds minimum term, three years, four months. He was sentenced concurrently for assaulting RA with a weapon, a hammer, to three years imprisonment.

[2]      Mr Barrett seeks to appeal the minimum term imposed, contending it is manifestly excessive. For that he requires an extension of time, and that is opposed. He did not file his appeal until 10 August 2010, in excess of a year after sentence. I will resolve that issue with the appeal itself, as it necessarily goes to the merits and

whether, if leave were not granted, there could be a miscarriage of justice.[1]

Offences for sentence

[1] Summary Proceedings Act  1957, s  123;  Cleggs Ltd  v  Department of  Internal Affairs HC Auckland M1032/84, 5 September 1984.

[3]      Mr Barrett pleaded at depositions and was sentenced on a summary of facts that, as he said in his pre-sentence report, he did not agree with, but could not dispute either, because he had no memory of what had happened except in main outline.

[4]      On 2 September 2008, at 10 am, according to the statement, Mr Barrett and his then partner, who lived in the same block as SB and RA, went to their unit at 10 am with others and began drinking. At midday RA went to bed. He remained there until well into the night. SB and the others continued drinking. During the day, according to his pre-sentence report, Mr Barrett and his partner returned to her unit to have something to eat. Their meal proved burnt and inedible. He recalled them arguing about that. Evidently they returned to SB's unit.

[5]      At some time after 10.30 pm, and for no identified reason, Mr Barrett left and returned with a claw hammer. He set upon SB. A person in the room went to wake RA. When he and RA returned Mr Barrett was standing over SB, the hammer in his right hand, his left hand on her shoulder holding her down. He hit her twice causing her two scalp wounds. She also suffered bruising to her back and legs.

[6]      The assault stopped when RA tackled Mr Barrett. They both fell over. Mr Barrett swung the hammer at RA, but missed him. RA wrested the hammer away from Mr Barrett, who ran from the unit, but returned shortly after and was still aggressive. He yelled and screamed at RA until the police arrived. When spoken to he offered no explanation.

[7]      SB, in her victim impact statement, said that she had to visit hospital twice. She received four stitches to her scalp but, fortunately, everything had healed by the time she completed her statement. She remained in fear of Mr Barrett and intended to move out of the area.

Pre-sentence report

[8]      Why  Mr  Barrett  assaulted  SM  was  not  made  any  more  plain  by  his pre-sentence report. Early in the day, he recalled, he cleaned his partner's apartment and gave her $20 to buy alcohol. A friend came over, he recalled, and brought with him two boxes of beer, and some Valium and 'rollys', perhaps Rohypnol.

[9]      Mr Barrett recalled that, before leaving his partner's unit, he consumed the drugs  and  began  to  drink.  Later  in  the  day,  he recalled,  as  I have said,  eating something but he still considered that he had not eaten that day. He had not, he said, taken his diabetes medication either. He said, 'I was not myself'. He expressed some remorse.

[10]     The sentence recommended in the pre-sentence report, given the seriousness of the offending, was imprisonment, coupled with measures to address Mr Barrett's real issues with alcohol and drugs.

Sentence under appeal

[11]     On sentence counsel for the police contended  that Mr Barrett's principal offence, the wounding offence, warranted an eight year starting point, towards the

higher end of band two, R v Taueki[2], which sets a range of starting points lying between five - ten years imprisonment. Mr Barrett's then counsel contended for a band one starting point, lying between four - five years imprisonment.

[2] R v Taueki [2005] 3 NZLR 372.

[12]     The Judge saw the offence as lying within band two and took a seven and a half year starting point, identifying the following four aggravating features:

(i) the use of a claw hammer which you went out and retrieved to use for the purpose, (ii) an unprovoked and without warning attack - (iii) attacking the head of the victim twice and being forcibly prevented from doing so on further occasions, and (iv) of course the vulnerability of the victim who was in a position where she had no idea what was happening and required her partner to assist her to fight you off.

[13]     The Judge then reviewed Mr Barrett's some 40 previous convictions, amongst them one for wounding with intent to injure in 1998, and six assaults, four between

1996 - 1999 and two in 2003. He contrasted with these Mr Barrett's expressed remorse. The only real mitigating factor, he said, was Mr Barrett's early plea. Allowing for that, he imposed for this the principal offence five years imprisonment and imposed other sentences concurrently.

[14]     None of that attracts any criticism on this present application. The point taken by Mr Barrett is as to the fact that the Judge imposed, unannounced, a minimum term. He said simply this:

It seems to me that a person with your background and a propensity to violence that it is also appropriate to deal with the non-parole period and under s 84(1) of the Parole Act I am going to set a minimum non-parole period of two-thirds of your sentence so that you cannot be released early.

[15]     The effect of that exercise of discretion was, as the Judge next said, tangible. Mr Barrett, he said, would not become eligible for parole until he had served imprisonment for three years, four months.

Submissions

[16]     On this application Mr  Lawry,  who  was instructed very late,  after other counsel had been instructed but had not pursued Mr Barrett's appeal, submits the Judge ought not to have imposed a minimum term without giving Mr Barrett the chance to be heard. The prosecution had not sought it and it had not been anticipated by Mr Barrett's then counsel. That omission, Mr Lawry submits, constituted a breach of natural justice and that apart, he submits, the Judge gave insufficient reasons for this adverse exercise of discretion, that he ascribed to s 84 of the Parole Act 2002, not s 86 of the Sentencing Act 2002.

[17]     Ms Carlyon, in response, submits that the Judge was entitled to impose a minimum term in the exercise of his own discretion on sentence. It might have been preferable, she accepts, had he invited submissions first, but a minimum term was plainly right for an offence of this order of violence. The difficulty, she properly said, was that the cases support a minimum term of one half at most.

Discretion as to minimum term

[18]     Section 86(1) enables a sentencing Judge who imprisons for more than two years to impose a minimum period of imprisonment. In such a case as this the maximum term able to be imposed is two-thirds of the full term of the sentence.[3] The discretion is expressed by s 86(2) in this way:

[3] Section 86(4).

The court may impose a minimum period of imprisonment that is longer than the period otherwise applicable under section 84(1) of the Parole Act

2002 if it is satisfied that that period is insufficient for all or any of the following purposes:—

(a)       holding the offender accountable for the harm done to the victim and the community by the offending:

(b)      denouncing the conduct in which the offender was involved:

(c)deterring the offender or other persons from committing the same or a similar offence:

(d)      protecting the community from the offender.

[19]     In R v Taueki the Court endorsed minimum terms being imposed in cases of serious violence:

In cases of serious violence, where denunciation and deterrence are both important sentencing values, and where protection of the community from the offender may well be a relevant factor, it can be expected that minimum periods of imprisonment will not be rare or even uncommon.[4]

[4] At [57].

[20]     Section 86(2) is only able to be invoked, the Court of Appeal said there, and recently reiterated in R v Nguyen,[5] after the Judge has first fixed the term of imprisonment to be imposed having regard to ss 7, 8 and 9 of the Sentencing Act and then decided, having considered those provisions afresh, that the statutory minimum would be insufficient to achieve one or more of the four purposes s 86(2) identifies.

[5] R v Nguyen [2009] NZCA 239.

[21]     In Taueki the Court of Appeal deprecated imposing the maximum minimum term, two-thirds, as a matter of reflex. The maximum term should only, the Court said, be imposed after 'careful review'. It continued, however, to say:

There is no presumption against the imposition of a minimum period of imprisonment of two-thirds of the sentence, and no reason for inhibition about  imposing  such  a  minimum  term  in  appropriate  cases,  particularly where ... offending involves the intentional inflicting of serious injury.[6]

[6] R v Taueki at [58].

[22]     Pertinent to whether the Judge was right to impose the maximum minimum term in this case, as Ms Carlyon says, are three other decisions of the Court of Appeal, each concerning the principal offence for which Mr Barrett was sentenced, wounding with intent to cause grievous bodily harm.

[23]     In R v Wi[7] the appellant struck a police officer six - ten times to the head with a beer handle. The Judge saw this as lying at the top of R v Taueki band two, or even in band three. He sentenced the appellant to seven years imprisonment and imposed a four year minimum term, slightly in excess of one half. He imposed 18 months concurrently for assault on another officer with intent to injure. The Court of Appeal upheld the sentence and the minimum term imposed.

[7] R v Wi [2009] NZCA 81.

[24]     In R v Konui,[8] after a confrontation in a flat and on the street, the appellant, a bystander, obtained a large knife, returned to the street and stabbed the complainant three times in the back and struck him about the head and throat. The Judge saw this as at the top of Taueki band two or the bottom of band three. He imposed a sentence of eight years, three months and a five year minimum term. The Court of Appeal upheld the sentence. It considered excessive the minimum term imposed, one month less than two-thirds of the sentence. It substituted a one half minimum term, four years.

[8] R v Konui [2008] NZCA 401.

[25]     In R v Service[9] the appellant, after being ejected from a party, returned armed with a metal spirit level. He hit the owner once to the head, causing a 100 millimetre cut to the forehead, right to the bone. A second blow was deflected. The Judge saw the offence as lying towards the top of Taueki band two. He imposed a sentence of seven years, and a minimum term of four years, slightly in excess of one half. The Court of Appeal reduced the sentence to six years but upheld the minimum term as a proportion.

[9] R v Service [2008] NZCA 314.

Conclusions

[26]     When he imposed the maximum minimum term in this case, the Judge was exercising a discrete discretion on sentence that had a tangible effect on the sentence Mr Barrett has actually to serve and Mr Barrett was entitled to be heard. That omission constituted a material breach of natural justice, of itself entitling Mr Barrett on this appeal to a review of the term imposed.

[27]     A minimum term was, I agree, called for. Whatever prompted Mr Barrett to act as he did, he was sufficiently in command of himself to leave the victims' unit to obtain the hammer, to return with it, to subdue SB and to hit her twice. It is very fortunate that he did not cause her any greater injury. This was an offence of serious violence for which the statutory minimum term was inadequate to achieve one or more of the four purposes set out in s 86(2).

[28]     The  Judge  did  not,  however,  then  say,  why  he  considered  this  offence warranted the maximum minimum term, as opposed to something less, and the offence, though serious, was unremarkable. It equates in the violence inflicted and the injury with that in one of the three cases to which I have referred and is less serious than the other two. At most a one-half minimum term would have been appropriate and the term the Judge imposed, therefore, was manifestly excessive.

[29]     Mr Barrett is granted leave to appeal out of time and his appeal will be allowed. The minimum period of imprisonment imposed will be quashed. A one-half

minimum term of two years, six months is imposed in its place.

P.J. Keane J