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…

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 Bartlett v Police

Details

AGLC: Bartlett v Police [2023] NZHC 3624
Case: [2023] NZHC 3624
Decision Date: 11 December 2023

CaseChat Overview and Summary

Walter James Bartlett has appealed against his sentence in the High Court of New Zealand. Bartlett was originally sentenced to nine months' home detention for supplying methamphetamine, but his sentence was revoked after he breached the conditions by testing positive for drugs. He was re-sentenced to 17 months' imprisonment, which he now appeals on the grounds that the judge did not properly account for the time remaining on his original home detention sentence. The appeal focuses on whether the re-sentence was excessive given the portion of the original sentence that remained unserved.

The legal issues before the court were whether the judge erred in his approach to re-sentencing and whether the re-sentence was manifestly excessive. The court considered whether the substituted sentence equated with the remaining portion of the original sentence and whether the uplift for the breach of home detention was appropriate.

The court found that the substituted sentence of 17 months' imprisonment did not properly account for the five months remaining on the original home detention sentence. The court held that a sentence of 11 months' imprisonment was appropriate, reflecting the time remaining on the original sentence and applying the principle of totality. The court also found that a one month uplift for the breach of home detention was available, though a greater uplift may have been justified given the appellant's persistent drug use.

The appeal was allowed and the substituted sentence of 17 months' imprisonment was quashed. A sentence of 11 months' imprisonment was imposed on the representative charge of supplying methamphetamine. The conviction and concurrent sentence for breaching home detention conditions remained.

Orders