Bartley v Police HC Invercargill CRI 2010-425-22

[2010] NZHC 1603

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CRI-2010-425-000022

JONATHAN RHYS BARTLEY

Appellant

v

POLICE

Respondent

Hearing:         31 August 2010

Appearances: K L McHugh for Appellant

M Sinclair for Respondent

Judgment:      31 August 2010

ORAL JUDGMENT OF HON. JUSTICE FRENCH

Introduction

[1]      This is an appeal against sentence.

[2]      Following a plea of guilty the appellant, Mr Bartley, was convicted in the

District  Court  on  a  charge  of  injuring with  reckless  disregard  for  the  safety of another.  He was sentenced to a term of imprisonment of 16 months.

BARTLEY V POLICE HC INV CRI-2010-425-000022  31 August 2010

Facts of the offending

[3]      The  facts  of  the  offending were  that  Mr  Bartley was  at  home  watching television with a number of other people and drinking beer.  By his own admission he had consumed as many as 12 cans of beer.  His partner’s three year old son was having difficulty settling down to sleep in what was a new bedroom.  The child came out of the bedroom and Mr Bartley walked him back to bed.

[4]      When the child, however, came out a second time, Mr Bartley picked him up by the back of his pyjamas and threw him two to three metres onto the bed.  The child struck either the wall, the window sill or the floor – it is unknown which.

[5]      Later that evening Mr Bartley checked the child and found him asleep on the floor next to his bed.   He noticed the child had a bleeding nose, which he then cleaned up with a towel.

[6]      The next morning the victim’s mother noticed some marks on the child’s face which at the time she believed to be some sort of spider bite and a rash.  For his part, Mr Bartley had left to play in a rugby tournament.

[7]      The little boy was eventually taken to hospital, but because of the long wait, he was removed by his mother and then taken into CYFS care.

[8]      As a result of the incident the victim suffered a bleeding nose, bruising to his left ear and bruising to the left side of his head.  He also suffered cuts and abrasions to his nose and face, and a red mark on his right cheek.

[9]      According to the police summary of facts, when interviewed by the police Mr Bartley denied intentionally wanting to hurt the child and said he had put him back to bed that way before.  It appears the child’s previous bedroom had a double bed in it.

[10]     I pause here to note that it was not, however, suggested that on those previous occasions Mr Bartley was taking that action as a disciplinary measure or because he was annoyed, as he must have been on the occasion of the offending.

The sentence in the District Court

[11]     The  information  before  the  District  Court  Judge  included  a  pre-sentence report which told the Judge that the appellant, Mr Bartley, is a 33 year old freezing worker, currently on ACC.

[12]   His previous convictions include two for common assault in 1997 and convictions for assault with intent to injure and assaulting the police in 2002.  He was sentenced to three months’ imprisonment for the 2002 assaults.

[13]     According  to  the  pre-sentence  report,  all  of  the  offending  history  has involved alcohol as the major contributing factor.  The report assesses Mr Bartley at high risk of reoffending unless he addresses his drinking problem.  On the positive side, the report says he presented as remorseful and showed empathy for his victim. Also to Mr Bartley’s credit is the fact that he has self-referred to a local alcoholism and drug addiction provider and has also undertaken a parenting programme.

[14]     In his sentencing notes the Judge described the appellant’s explanations as

“minimisation”, saying:

[4]       …   You were drunk and you wanted the child “out of there” and with your size, his age and his little size, you managed to secure that by throwing him away.

[15]     The Judge found there was a high degree of recklessness, aggravated by a high level of intoxication.  He identified the aggravating features as being the violent act, the fact Mr Bartley was intoxicated, the fact of premeditation and the vulnerability of the victim, stating:

[8]       I find there was a high degree of recklessness aggravated by a high level of intoxication.  I find that the victim was a very young child.  You in the manner of throwing this young child into an area which you were not sure of, not sure where the walls and windowsills were, raises that level of recklessness as does the fact that you were drunk.  I am required, Mr Bartley, to consider a number of matters both as to the purposes of and the principles of sentencing.  I consider that it is of importance to this community that you be seen to have been held accountable.  I think that it is important that this community is aware that this Court has strongly denounced this type of conduct  to  the  vulnerable  of  our  society  despite  what  type  of  living conditions  they are  within.    There  has  to  be  a  strong denunciation  and deterrent message sent out that persons will not treat young children in the

manner that you did this particular night.   In relation to principles of sentencing I think that this type of offending, under s 189(2), is particularly grave, comparatively serious by the fact of the age of the victim and the fact that he was in a position (you to him) where you should have been protecting him not treating him in this manner.   The aggravating factors of your offending are the violent act; the fact of your intoxication at the time; the vulnerability of the victim and the fact of the throwing being a premeditated act.   I note your guilty plea.   your prior convictions a further aggravating factor.

[16]     In the Judge’s view an appropriate starting point was a term of imprisonment of two years, three months, uplifted by a further four months on account of the previous convictions.  The Judge then gave Mr Bartley the benefit of a discount of four months for the steps he had taken to address his offending, followed by a third discount on account of the early guilty plea, thereby arriving at an end sentence of one year and four months.

[17]     That rendered Mr Bartley eligible to be considered for home detention.  On that subject, the Judge had this to say:

[10]     I am urged by Ms McHugh that that sentence should be able to be served by you by the means of home detention.  The report says that your address is suitable for such a sentence and that you are a person capable of undertaking such a sentence.   It is whether the principles and purposes of sentence which I have tried to set out would be met by you being allowed to serve your sentence on home detention.  I have regard to all of the applicable authorities, all of the statutory factors including the provisions of s 9A.  I am driven to the conclusion that this is not a case where the principles and purposes set out in s 7 and s 8 would be met by allowing you to serve the sentence by way of home detention.   I do not impose home detention.   I impose a term of imprisonment upon you of one year and four months.   I decline the application for home detention.  I do not give you leave to apply for substitution of sentence.

Grounds of appeal

[18]     On appeal, Ms McHugh, on behalf of Mr Bartley, submits first that the sentence of 16 months was manifestly excessive, and secondly that the Judge erred in his consideration of home detention in that he:

i)Undervalued  the  deterrent  and  punitive  aspects  of  home detention.

ii)       Insufficiently analysed the requirements of the Sentencing Act

2002 relating to home detention.

iii)Gave   insufficient   weight   to   Mr   Bartley’s    rehabilitative prospects.

[19]     In support of her submission that the sentence was manifestly excessive, Ms

McHugh referred me to three decisions: Allen v Police HC Auckland CRI 342/03, 28

November 2003, Ronald Young J; R v Peauvale HC Auckland T022287, 6 March

2003,  Baragwanath  J;  R  v  Thorburn  HC  Auckland  T023763,  30  July  2003, Randerson J

[20]     Ms McHugh also provided me with a number of letters in support of Mr Bartley, as well as a copy of a family group plan.  The letters speak of the effect his being in prison has had on the family, and the desire for the family to be back together again.

Discussion

[21]     The sentencing Judge was highly critical of Mr Bartley’s conduct, and in my view rightly so.  I fully endorse the sentiments expressed by the Judge.

[22]     However, I also have an obligation to ensure consistency.  Having regard to the comparator cases cited, in particular that of Thorburn, the Judge’s starting points and hence his end sentence do appear to be too high and out of range.

[23]   In Thorburn, for example, the child was seriously brain damaged, had permanent moderate to severe intellectual impairment, his visual impairment was likely to be ongoing and moderate to severe in extent, he had ongoing significant problems in the control of his limbs and it was far from certain that he would ever walk again.  That is a very different situation from the one at issue here, and yet the end sentence was two years’ imprisonment.

[24]     In my view, the fact that the offender in Thorburn was not intoxicated and did immediately seek help cannot be a sufficient distinguishing point.  Nor, in my

view, can changes in the law since Thorburn was decided justify such a discrepancy. I refer there in particular to what is colloquially known as the “anti-smacking” legislation and the enactment of s 9A Sentencing Act.   Further, as Ms McHugh points out, the factors specified in the new s 9A are factors that are not present to any extent in the factual situation here.

[25]     For all those reasons, I have decided that the appeal should be allowed and the term of imprisonment reduced.

[26]     I am not, however, prepared to interfere with the Judge’s decision against granting home detention.  Even allowing for my finding that the length of the prison sentence was out of range, the decision relating to home detention still retains its character as the exercise of a discretion.

[27]     In my view, the Judge was not saying the sentence of home detention is without a deterrent aspect, but simply that in this case the particular circumstances required more.  That was a view that was clearly open to him, and indeed it is a view I would have taken myself on the same material.  As has been emphasised in Court of Appeal decisions, there is no prevailing presumption as such in favour of home detention, and that in cases where denunciation, individual and general deterrence are of particular significance, an appellate Court will seldom interfere in the sentencing Judge’s assessment of home detention as a realistic alternative or not: see R v Edmonds [2009] NZCA 152; R v Taiepa [2009] NZCA 120. There is also the further consideration that an appellate Court should afford greater weight to the views of the sentencing Judge from the jurisdiction in which cases of the type in issue are frequently tried: R v D [2008] NZCA 254.

[28]     In short, I consider the decision the Judge reached in this case about home detention was one that was open to him.   There is no basis on which it would be proper for me to interfere, and in any event,  as I have said,  I too would have independently come to that same conclusion, given the seriousness of the offending. Appellate intervention is not warranted in relation to the home detention issue.

Outcome

[29]     The outcome of this appeal therefore is that it is allowed.  The sentence of 16 months’ imprisonment is quashed and replaced with a sentence of 12 months’ imprisonment.

Solicitors:

McKenzie Gray, Invercargill

Crown Solicitor’s Office, Invercargill