Barton v Police - [2015] NZCA 352

IN THE COURT OF APPEAL OF NEW ZEALAND

CA167/2015
[2015] NZCA 352

BETWEEN	DAVID SIMON BARTON Applicant
AND	NEW ZEALAND POLICE Respondent

Hearing:	27 July 2015
Court:	Ellen France P, Randerson and Miller JJ
Counsel:	Applicant in person G A Kelly for Respondent
Judgment:	10 August 2015 at 11.30 am

JUDGMENT OF THE COURT

The application for special leave to appeal is dismissed.

REASONS OF THE COURT

(Given by Ellen France P)

Introduction

The applicant, David Barton, was convicted of two charges of driving while disqualified (third or subsequent) under ss 32(1)(a) and 32(4) of the Land Transport Act 1998. The convictions related to incidents on 15 November 2011 and 8 November 2012. The convictions followed defended hearings before Judge de Ridder and Judge John McDonald. On 6 March 2014, Judge John McDonald sentenced Mr Barton to four months’ home detention and disqualified him from driving for 15 months in relation to these two charges.[1]
[1]New Zealand Police v Barton DC Whangarei CRI-2012-011-56, 6 March 2014.
Mr Barton appealed unsuccessfully to the High Court[2] and, subsequently, the High Court declined leave to appeal to this Court.[3] Mr Barton seeks special leave to appeal against sentence under s 144(3) of the Summary Proceedings Act 1957.
[2]Barton v New Zealand Police [2014] NZHC 3248.
[3]Barton v New Zealand Police [2015] NZHC 575.
The sentence imposed by Judge John McDonald has now been cancelled under s 80F of the Sentencing Act 2002 for non-compliance with home detention. Mr Barton is to be re-sentenced on 11 August 2015.

Basis of proposed appeal

Mr Barton wants to argue a number of points in support of his essential proposition that the sentence imposed by Judge John McDonald was manifestly excessive. The points he wishes to make can be summarised in this way.
First, Mr Barton wants to argue that Judge John McDonald did not, as required, take into account all of the principles of sentencing in s 8 of the Sentencing Act. In particular, he says that the Judge did not impose the least restrictive outcome appropriate in the circumstances (s 8(g)); did not take into account all of Mr Barton’s particular circumstances making the sentence disproportionately severe (s 8(h)); and did not consider Mr Barton’s personal and family circumstances (s 8(i)).
In developing his submissions on this first proposed point, Mr Barton says that the Judge immediately discounted community work as an option because of non-compliance with an earlier sentence of community work. Mr Barton explains he did comply with the earlier sentence and that there were reasons why it took three years to do so. Mr Barton emphasises that Judge John McDonald did not refer to all of the testimonials filed in support at sentencing. Finally, under this head, Mr Barton submits that the sentence is unduly harsh because of its impact on his ability to work. He describes his work as a specialist property and business consultant. The fact that he is not able to work on home…

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 Barton v Police

Details

AGLC: Barton v Police [2015] NZCA 352
Case: [2015] NZCA 352
Decision Date: 10 August 2015 at 11.30 am

CaseChat Overview and Summary

In Barton v Police, the applicant, David Barton, sought special leave to appeal against his conviction and sentence for driving while disqualified. The case involved two charges related to incidents in 2011 and 2012, resulting in Barton being sentenced to four months’ home detention and disqualified from driving for 15 months. Barton's initial appeal to the High Court was dismissed, and leave to appeal to the Court of Appeal was subsequently declined. Barton now seeks special leave to appeal, arguing that the sentence was manifestly excessive and that the sentencing judge failed to consider several sentencing principles.

The legal issues before the Court were whether the application met the criteria for special leave to appeal under section 144(3) of the Summary Proceedings Act 1957. Barton contended that the sentence was excessive due to the failure to consider all relevant sentencing principles and his personal circumstances. He also argued that there was a need for this Court to provide sentencing guidelines for driving while disqualified and that it was inappropriate for the same judge to handle both the appeal and the application for leave.

The Court of Appeal found that none of Barton's proposed arguments met the threshold for special leave to appeal. Firstly, the Court considered the application moot since Barton was to be re-sentenced and could raise his concerns then. Additionally, the Court held that the issues did not meet the requirement of being of general or public importance. The Court also noted that the High Court had already considered the issues on appeal and found no error in the sentencing judge's approach. Lastly, the Court found no impropriety in the judge who decided the appeal also handling the application for leave.

The Court of Appeal dismissed the application for special leave to appeal. Barton's opportunity to raise his concerns about the sentence will now occur at his re-sentencing hearing.

Orders