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…

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 [2013] NZHC 880
Case: [2013] NZHC 880
Decision Date: 24 April 2013

CaseChat Overview and Summary

In the case of Bartlett v Police, the appellant, Wade Bartlett, appealed against the sentence imposed by the District Court Judge Crosbie on two charges of burglary. Bartlett was sentenced to two years and three months imprisonment on each charge, to be served concurrently. Bartlett's legal representative, Mr McKenzie, argued that the starting point of 18 months was unjustified. Bartlett had been recently released from a 15-month imprisonment for burglary and had committed the current offences shortly after. The District Court Judge, Crosbie, took into account the appellant's recent release from prison, and imposed a stern sentence to act as a deterrent and denounce Bartlett's conduct.

The High Court was required to determine whether there was any error of principle in the District Court's imposition of the sentence. The Court noted that the circumstances of the defendant are paramount when fixing the starting point for sentencing in burglary cases, and that undue emphasis on past dishonesty convictions should be avoided. However, the Court found that Judge Crosbie had not erred in principle, as he had taken into account the recent release from imprisonment and the need to deter burglaries in the Christchurch region post-earthquake. The Court also noted that Judge Crosbie had not considered home detention as an alternative sentence and was satisfied with the reasoning behind the imposed sentence.

The High Court found that there was no principled basis to intervene in the decision of Judge Crosbie. The Court acknowledged the vigorous arguments presented by Mr McKenzie, but ultimately concluded that the sentence imposed was justified and appropriate given the circumstances of the case. The appeal was dismissed, and the original sentence of two years and three months imprisonment on each charge, to be served concurrently, was upheld.

Orders