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.
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…
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CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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