Bartlett v Police
[2024] NZHC 1234
•17 May 2024
IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY
I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE
CRI-2024-441-007
[2024] NZHC 1234
BETWEEN TARANAKI BARTLETT
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 16 May 2024 Counsel:
E J Forster for Appellant
M J M Mitchell for Respondent
Judgment:
17 May 2024
JUDGMENT OF GRAU J
[Sentence appeal]
Appeal against sentence
[1] Mr Bartlett appeals his sentence of 16 months’ imprisonment imposed in the Hastings District Court on 16 April 2024 for three charges of breaching a protection order. 1 The grounds of his appeal are that the starting point of 18 months was too high and there should not have been an uplift for his other offending against the same victim and for his criminal history in general.
The offending
[2] Mr Bartlett and the victim were in a relationship for about 18 years but were not living together or in a relationship at the time of the protection order breaches. They have two children together.
1 Police v Bartlett [2024] NZDC 8525. The charges are pursuant to the Family Violence Act 2018, ss 90(b) and 112(1)(a) (maximum penalty of three years’ imprisonment).
BARTLETT v NEW ZEALAND POLICE [2024] NZHC 1234 [17 May 2024]
[3] The protection order has been in place since 24 June 2007. Mr Bartlett has 24 previous convictions for breaching the order.2 He also has a significant number of convictions for other offending against the victim; both for violent and sexual offending.
[4] The first protection order breach forming these charges occurred on 12 January 2024. Mr Bartlett arrived unannounced and uninvited to the victim’s home where she was eating a meal with the two children. He entered the home and approached the victim, hugging her from behind. He ended up staying the night. In the morning, she told Mr Bartlett to leave and that there would be no more contact. She also said she would call the Police. Mr Bartlett said he showed up because she was not responding to his friend requests or calls. He left when she said she would call the Police.3
[5] Then, between 12 and 14 January 2024, Mr Bartlett sent a number of abusive text messages to the victim, calling her very demeaning and derogatory names. On 13 January, he also made several phone calls to her over a period of about 90 minutes, which she did not answer.
The sentencing decision
[6] Judge Edwards began her decision by noting that the starting point for offending involving breach of a protection order is calculated to include previous breaches of the same protection order so as to reflect the ongoing pattern of unwanted contact.4 She recorded Mr Bartlett’s 24 previous convictions for breaching the order, as well as eight other convictions for breaching orders that applied to other women.5
[7] Turning to assess the seriousness of the breaches, the Judge acknowledged that, while none involved violence, the first involved Mr Bartlett walking into the victim’s home uninvited. There were three breaches over a short period of time and Mr Bartlett was on release conditions following a period of imprisonment for earlier breaches.6
2 Police v Bartlett, above n 1, at [2]–[3].
3 At [4].
4 At [6].
5 At [7]; the breaches in respect of the other protection orders occurred between 1998 and 2003.
6 At [8].
[8] The Judge said she had considered a number of cases, although there were few where there were so many previous breaches. Starting points had been up to two years. She noted the cases she had been referred to in support of a submission that the appropriate starting point should be 10-12 months involved offenders with nowhere near the number of previous convictions that Mr Bartlett had.7
[9] Judge Edwards considered that a starting point for Mr Bartlett “cannot be any less than 18 months’ imprisonment”.8 She also considered there must be an uplift for Mr Bartlett’s other violent offending against the same victim in the past and for Mr Bartlett’s criminal history generally.9 Bearing in mind the need to keep any uplift proportionate, she set it at three months.10 Mr Bartlett received a full credit for his guilty plea, being a four-and-a-half-month reduction.11
[10] The Judge then noted Mr Bartlett’s PAC report. In the writer’s view, Mr Bartlett blamed the victim for the breaches and took little responsibility for the distress and impact on her and their children. Mr Bartlett did not offer any address to be considered for an electronic sentence or provide details of any whānau members who could provide information or support him. Because of Mr Bartlett’s repeated contraventions and poor engagement with community-based sentences, the likelihood of reoffending was assessed as high.12 No other mitigating features were apparent.13
[11] An end sentence of 16 and a half months’ imprisonment resulted, which the Judge rounded down to 16 months, with standard and special release conditions to apply until six months after the sentence expiry date.14
Approach on appeal
[12] Sentence appeals are governed by s 250 of the Criminal Procedure Act 2011. A first appeal court must allow the appeal if satisfied that, for any reason, there is an
7 At [9]–[11].
8 At [12].
9 At [13].
10 At [14].
11 At [15].
12 At [16]–[18].
13 At [20].
14 At [22].
error in the sentence imposed on conviction and a different sentence should be imposed. If those criteria are not met the Court must dismiss the appeal.
[13] When considering whether a different sentence should be imposed, the Court will have regard to the end sentence, rather than the process by which it was reached. It is appropriate for the Court to intervene where the sentence being appealed is “manifestly excessive” and is not justified by the relevant sentencing principles.15 It must be shown that there has been an error made by the sentencing Judge.16 The Court cannot “tinker” with a sentence imposed where that end sentence is nevertheless in range.17
Positions of the parties
Mr Bartlett
[14] Mr Forster for Mr Bartlett submits that it is an error of principle to use previous convictions both to set the starting point and when imposing an uplift for personal circumstances. Mr Forster acknowledges that there is authority for the fixing of a starting point for breach of a protection order with reference to previous convictions for breaches of the same protection order, but he says in those cases any other uplift for previous convictions were for convictions that did not relate to the same protection order or the same victim.18 He also notes that a breach of a protection order is often charged alongside another offence, such as assault. In his submission this means a “premium” is already attached to the violent offending, and so imposition of an uplift for the violence offending amounts to a “premium on top of a premium”.
[15] Mr Forster acknowledged there are decisions of this Court which have imposed an uplift for previous offending against the same victim (other than breaches of the relevant protection order), but he considers the Court of Appeal has imposed a “rule” against such an approach in the case of Mitchell v R.19
15 Tutakangahau v R [2014] NZCA 279 at [32]–[35].
16 Tutakangahau v R, above n 15, at [27].
17 R v Boyd (2004) 21 CRNZ 169 (CA) at [38].
18 Mr Forster relied on Mitchell v R [2013] NZCA 583 and Tetau v Police [2015] NZHC 1284 for this proposition.
19 Mitchell v R, above n 18.
[16] Mr Forster also contends the end sentence is manifestly excessive when Mr Bartlett did not physically harm anyone and he left when he was asked. In his submission, with reference to a number of cases, a 10 to 12 month starting point was appropriate.20
Police
[17] For the Police, Ms Mitchell observes it is well established that prior breaches of a protection order are appropriately taken into account when setting a starting point on a charge of breaching a protection order. Where, as in this case, there were three breaches in three days, including uninvited entry to the home, abusive messages, and a barrage of phone calls, they cannot be dismissed as minor or technical. Given the 24 previous breaches a stern response was warranted and a starting point of half of the maximum penalty cannot be said to be excessive. The uplift for previous convictions clearly related to other offending beyond previous protection order breaches and required recognition, when Mr Bartlett has not been deterred by previous sentences, he is unremorseful, and he presents a high risk of future family violence offending. The three-month uplift was proportionate and did not represent double counting.
Discussion
[18]I make four general points first:
(a)It is well established that previous breaches are relevant to assess the culpability of an offender when setting an appropriate starting point for another breach of a protection order.21
(b)It is also well established that breaches of a protection order used to calculate an appropriate starting point cannot be taken into account
20 Williams v Police [2014] NZHC 3255 (seven month starting point); Smart v Police [2016] NZHC 3092 (12 month starting point); Morris-Stewart v Police [2016] NZHC 1030 (12 month starting point); Narayan v Police [2014] NZHC 1241 (15 month starting point); Wallace-Joe v Police [2016] NZHC 3060 (12 month starting point) and Palmer v Police [2015] NZHC 143 (14 month starting point).
21 Mitchell v R, above n 18, at [12]–[14]; Tetau v Police, above n 18; Crean v Police [2015] NZHC 3203; Mitchell v R [2022] NZCA 159 at [50].
again when aggravating personal circumstances are assessed at the second stage of the sentencing process.22
(c)There is no tariff case for the offence of breach of a protection order. Relatedly, other cases may be only of limited assistance because it may often not be particularly helpful to compare cases with reference only to the acts involved in the breach. That is because conduct by an offender such as visiting uninvited or contacting by phone may be considered as relatively mild if it has not happened before, but the same conduct may be viewed as sinister (and thus significantly more serious) if it is the latest incident in a long course of unwanted contact.
(d)Fourthly, breaches of protection orders are inherently serious. Breaches, particularly repeated breaches, are appropriately met with a stern response, otherwise a protection order would be worthless.23
[19] I am unable to accept Mr Forster’s submission the Court of Appeal created a “rule” in Mitchell v R prohibiting the application of an uplift to a starting point on a charge of breach of protection order to reflect an offender’s previous different offending against the same victim. Instead, on my reading, the Court was simply noting that Ms Mitchell had a significant history of other offending involving violence and defiance of authority, so that there was no double counting involved.24
[20] The Court did not say in Mitchell that previous different offending against the same victim could not be the subject of an uplift. But this Court has clearly said it can:
(a)In Tetau, Mander J considered a six-month uplift was appropriate to reflect Mr Tetau’s previous convictions for violence, which included six convictions for male assaults female and at least eight for assault. I consider it extremely unlikely that at least some of that offending did not relate to the person protected by the protection order. The only
22 See for example in Tetau v Police, above n 18; and Crean v Police, above n 21.
23 Palmer v Police, above n 20, at [24].
24 Mitchell v R, above n 18, at [17].
error identified by Mander J in that case was that the sentencing Judge had taken previous breaches into account both in setting the starting point and in justifying a nine-month uplift.25
(b)In Crean, Brewer J, who was undertaking the sentencing exercise again on appeal, expressly noted he had already taken into account Mr Crean’s previous convictions for breaching protection orders, and that it was appropriate to uplift the sentence by four months for other relevant previous convictions; being three convictions for male assaults female, one for common assault, and one for failure to answer bail. He did so to deter Mr Crean from violent offending, to encourage him to comply with orders of the court, and to protect the community.26
[21] The cases cited by Mr Forster do not assist in selecting an appropriate starting point for the same reason Judge Edwards was not assisted by the cases that were referred to her at sentencing—none of the offenders in those cases have anywhere near the number of previous convictions for breaching protection orders.
[22] Instead, I am guided by the two High Court decisions I have already referred to above:
(a)Tetau: where a starting point of two years was upheld for two breaches of a protection order representing the tenth and eleventh breaches of the same order. The breaches, which occurred in close succession, did not involve violence, although there was intimidating behaviour.27
(b)Crean: where Brewer J adopted a (concurrent) starting point of 15 months’ imprisonment for each of two breaches, nine days apart, and following closely after two other breaches of the protection order.28
25 Tetau v Police, above n 18, at [42] and [44].
26 Crean v Police, above n 21, at [21].
27 Tetau v Police, above n 18, at [41].
28 Crean v Police, above n 21, at [19].
[23] In my view, Mr Bartlett’s offending is of a similar nature to that in Tetau and Crean when the conduct is looked at by itself. However, his history of breaching protection orders makes his latest offending markedly more serious. Thus, an 18-month starting point might be considered as relatively lenient. It is certainly not manifestly excessive.
[24] The three-month uplift for previous offending against the victim was available and proportionate to reflect seven charges of assault, assault with intent to injure, assault with a blunt instrument, attempted rape, attempted sexual violation, and threats to kill. As well there are eight charges of breaching release conditions that demonstrate a continued disregard for authority.29 There is an obvious need to deter Mr Bartlett and to protect the victim.
[25] Finally, I note the ultimate issue is whether the end sentence is in range.30 In my view, an end sentence of 16 months’ imprisonment falls well short of being manifestly excessive. There is no basis to interfere with it.
Result
[26]The appeal is dismissed.
Grau J
Solicitors:
Crown Solicitor, Napier for Respondent
cc: E J Forster, Hastings for Appellant
29 The charges listed in this paragraph have all accrued since 2007.
30 Ripia v R [2011] NZCA 101 at [15].
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