Bartlett v Police

[2023] NZHC 3624

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CRI-2023-412-087

CRI-2023-412-088 [2023] NZHC 3624

BETWEEN

WALTER JAMES BARTLETT

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	11 December 2023
Appearances:	J A Westgate for the Appellant R Smith for the Respondent
Judgment:	11 December 2023

ORAL JUDGMENT OF PRESTON J

(Appeal against sentence)

This judgment was delivered by me on 11 December 2023 at pm, pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date……………

BARTLETT v NEW ZEALAND POLICE [2023] NZHC 3624 [11 December 2023]

Introduction

[1]                  Walter Bartlett was re-sentenced on a representative charge of supplying methamphetamine1 following a breach of home detention conditions.2 Judge Turner sentenced him to 17 months’ imprisonment.3

[2]                  Mr Bartlett appeals this decision on the basis the Judge erred in his approach to re-sentencing and failed to properly account for the fact that Mr Bartlett had only five months left on his home detention sentence.

Background

[3]                  On 5 April 2023, Mr Bartlett had been sentenced after entering a guilty plea to a representative charge of supplying methamphetamine.4 Between March and August 2021, he had supplied at least 10 grams of methamphetamine to around 15 persons in Dunedin. In so doing, he profited by between $8,000 and $10,000. The Judge considered the offending placed Mr Bartlett in Band 2 of Zhang,5 the Court of Appeal guideline decision for offending involving methamphetamine, having a lesser role and adopted a two-year starting point.

[4]                  Following adjustments, a sentence of nine months’ home detention was imposed with a rehabilitative goal and including a special condition prohibiting possession or use of non-prescribed drugs.

[5]                  On 22 June 2023, and following several warnings for noncompliance with conditions of his sentence, Mr Bartlett was asked to undertake a urine test. Results were received on 7 July 2023 and returned a positive test for amphetamine, methamphetamine, and cannabis. This led Corrections to apply to cancel the sentence of home detention.

1      Misuse of Drugs Act 1975, s 6(1)(c) and (2)(a); maximum penalty life imprisonment.

2      Sentencing Act 2002, s 80S; one year imprisonment or a fine not exceeding $2,000.

3      Department of Corrections v Bartleet [2023] NZDC 21950.

4      R v Bartlett [2023] NZDC 6693.

5      Zhang v R [2019] NZCA 507; [2019] 3 NZLR 648.

District Court decision

[6]                  Judge Turner adopted the end-sentence of 18 months’ imprisonment he had previously reached and deducted two months to reflect the four months Mr Bartlett had spent on home detention. The Judge then applied an uplift of one month to reflect the breach of home detention, yielding a sentence of 17 months’ imprisonment.

Principles on appeal

[7]                  Appeals against sentence are available as of right by s 244 Criminal Procedure Act 2011 and must be determined in accordance with s 250 of that Act. An appellate court may only allow an appeal if it is satisfied there has been an error in the imposition of the sentence and that a different sentence should be imposed.6 It will not intervene where the sentence is within the range that can properly be justified when applying accepted sentencing principles. Only if the sentence is “manifestly excessive” will it be appropriate for this Court to intervene and substitute its own views.7

Analysis

[8]                  Counsel this morning have addressed a helpfully limited scope of appeal. The parties are agreed that the approach under the Sentencing Act and case law requires a judge at re-sentencing to consider the portion of the original sentence that remains unserved. The Crown acknowledges an end sentence of 17 months was not available with this in mind, but submits that a sterner uplift for the breach of sentence charge was available.

[9]                  Section 80G(2) Sentencing Act requires that the Court take into account the portion of the original sentence that remains unserved at the time of the order. While a mathematical approach is not necessary,8 this Court in Hough v Police allowed the appeal against sentence on the grounds that the substituted sentence did not “equate” with the remaining portion of the appellant’s sentence.9 Any substituted sentence must

6      Criminal Procedure Act 2011, ss 250(2) and 250(3).

7      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36]; and Ripia v R [2011] NZCA 101 at [15].

8      R v Morgan [2008] NZCA 232 at [15].

9      Hough v Police [2017] NZHC 93.

have some proportionality with the time remaining to be served, though a modicum of increase may be appropriate.10 The Judge, no doubt in a busy sentencing court, appears to have focused instead on the time Mr Bartlett had served.

[10]              Justice Jagose in R v Nelson-Bell substituted a sentence of home detention, with six and a half months remaining, with a sentence of imprisonment of 13 months’ imprisonment.11 I consider that a similar approach is appropriate in Mr Bartlett’s case, leading to a sentence of ten months’ imprisonment.

[11]              An uplift of one month on the breach of the drug use condition was available to the Judge.  In  Condon  v  Department  of  Corrections,12  Mallon  J  referred  to Ms Condon having been sentenced to one month imprisonment for breaching a condition of her home detention by being found at her address in a highly intoxicated state.

[12]              There is some force in the Crown’s submission that the one month uplift on the breach of the drug use condition was insufficient. It occurred just two months into the rehabilitative sentence imposed for the methamphetamine offending. The appellant’s explanation to the probation officer included that he had found some methamphetamine “while tidying up” and the admission that he was using liquid cannabis and pills, which were not prescribed.

[13]              Having regard to the other non-compliances recorded in the affidavit of the probation officer, there was a sound basis for the view that Mr Bartlett had very promptly returned not only to methamphetamine use but also to selling it to support his own habit. This could support a greater uplift, of two to three months, as the Crown contend. However, I consider one month was available, and any greater uplift would for the same reason warrant an adjustment to recognise that, notwithstanding his persistent denials, Mr Bartlett apparently remains in the grip of addiction.

10 At [20].

11     R v Nelson-Bell [2023] NZHC 799.

12     Condon v Department of Corrections HC Whanganui CRI-2010-483-68, 2 November 2010.

[14]              Given the substitution of the full custodial sentence and applying the principle of totality, I consider the appropriate end sentence is one of 11 months’ imprisonment.

Conclusion

[15]              I am satisfied that there was an apparent error in re-sentencing, and the substituted sentence was manifestly excessive.

[16]              The appeal is allowed, and the substituted sentence imposed on the representative charge of supplying methamphetamine is quashed. I order:

(a)A sentence of 11 months’ imprisonment is imposed on the representative charge of supplying a Class A drug, methamphetamine.

(b)Standard release conditions and special release conditions are imposed as set out at p 5 of the pre-sentence report, for a period of six months after the sentence expiry date.

(c)There is no leave to apply for a substituted sentence of home detention.

(d)The conviction and concurrent sentence of one month imprisonment on the breach of home detention conditions remains.

………………………………………

Preston J

Solicitors:

J A Westgate Barrister, Dunedin Crown Solicitor, Dunedin