Bartlett v Police

[2013] NZHC 880

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2013-409-13 [2013] NZHC 880

WADE BARTLETT

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         24 April 2013

Appearances: A McKenzie for the Appellant

D Orchard for the Respondent

Judgment:      24 April 2013

ORAL JUDGMENT OF FOGARTY J

[1]      This is an appeal against a sentence of the District Court (Judge Crosbie) on two charges of burglary.   The end sentence was two years and three months imprisonment on each charge concurrent.

[2]      The appeal, argued by Mr McKenzie, has as its core point that the Judge in this case was not justified in a starting point of 18 months.  The offending was described by the Judge:

[2]       ... that on 5 May last year you went to a Rolleston address, entered the house through an open garage door opening onto Verona Court and took a mountain bike and a helmet from the garage valued at $700, a short while later pawning the bicycle and helmet for $50.  When spoken to you admitted the facts, it is said you took the bike and helmet as you did not have a job.

BARTLETT V NEW ZEALAND POLICE HC CHCH CRI-2013-409-13 [24 April 2013]

[3]       At 10.50 am you were on Racecourse Road, entered a property, went down a long driveway to the rear of the property and entered a garage.  You were then confronted by the occupier of the property, also the victim.  You ran from the property and headed south on Waterloo Road.  In explanation you said you went into the property to steal something.

[3]      The reasoning of the Judge was heavily influenced by the fact that, at the time of the offending, the appellant had only been recently released from a sentence of 15 months imprisonment for burglary.  The Judge was quite aware that he was imposing a stern sentence.  He said:

[14]      Today is very much about holding you to account Mr Bartlett.  I say that because you had not been out of prison for long...

[15]      Importantly  today  is  about  deterrence.     It  is  to  send  a  clear unambiguous message to those who continue to prey upon the property of others, particularly domestic dwellings, that when they do so on a repeated basis the Courts will take a stern approach.  Today is also to a lesser extent about denouncing your conduct...

[4]      The Judge relied upon reasoning of Woolford J in Johnstone v New Zealand Police,1 where the Judge dealt with oft quoted decisions of Senior v Police,2 and Clifford and R v Columbus.3 In R v Colombus in the Court of Appeal, Harrison J for the Court did emphasise that when sentencing for burglary, the circumstances of the defendant predominate when fixing the starting point.  He mentioned that more than once.  He said also that:

Sentencing Judges must guard against the risk of undue emphasis on past dishonesty convictions, that lies in fixing the starting point by imposing a sentence which is primarily a punishment for previous offending.

[5]      I do not read Judge Crosbie as falling into that error.  He took as the context of this offending that it followed very close upon release from imprisonment, after having been sentenced to imprisonment for burglary.  He was also concerned to impose a deterrent sentence, in order to deter burglaries in the city of Christchurch post-earthquake.  I do not think that it is possible to approach sentencings of burglary on a tariff related basis, and I do not think the Court of Appeal in Colombus was saying that.  It is true that, if one sentences on a comparable basis, it is very difficult

to justify a starting point of 18 months for the offending in this case.   But, if you

1      Johnstone v New Zealand Police [2012] NZHC 551.

2      Senior v Police (2000) 18 CRNZ 340.

3      Clifford and R v Columbus [2008] NZCA 192.

approach the offending as in the setting of addressing an offender who has just received a 15 months term of imprisonment and needs to be held accountable, then it makes sense to impose a higher sentence,  a sterner sentence, in order to bring home to the offender the consequences of his behaviour.

[6]      Had this Judge imposed a sentence of below two years, then home detention would have had to have been considered.  But I am satisfied from an examination of the file, and particularly the Judge’s markings on the Department of Corrections report, that he was not attracted at all to a home detention sentence, and, from the reasoning that I have quoted, that is reinforced.

[7]      Judges in the District Court are entitled to sentence having regard to the conditions in their particular region.  We do see variations in sentences for regional reasons around the country.

[8]      The question I have been addressing is whether or not there is any error of principle here, including not following guidance of the Court of Appeal in the sentence that this Judge has imposed, which I agree is a stern sentence.  The Judge appears to me to have deliberately tipped the Parole Board to consider favourably release after one-third.  He says:

[17]      ...I am going to impose a sentence of two years and three months’ imprisonment on each.  That means Mr Bartlett that you will see the Parole Board at one-third.  In your case that will be sooner than in fact serving half your sentence had you received a two year sentence.

[9]      Those remarks need to be factored against the observation I have already made, that I am satisfied the Judge was not going to give a sentence of home detention.

[10]     For these reasons, I do not see any principled basis of intervening in the decision of Judge Crosbie.

[11]     I note that Judge Crosbie compliments counsel for his assistance, in context that is Mr McKenzie, and I should also record that Mr McKenzie has argued his case with vigour, in the best traditions of the bar today, and he has simply failed to

persuade me.  But I am obliged to Mr McKenzie for thoroughly examining the merit of this decision.

Solicitors:

Raymond Donnelly & Co, Christchurch

A McKenzie Barrister, Christchurch