Barton v Police
[2015] NZCA 352
•10 August 2015 at 11.30 am
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA167/2015 [2015] NZCA 352 |
| BETWEEN | DAVID SIMON BARTON |
| AND | NEW ZEALAND POLICE |
| Hearing: | 27 July 2015 |
Court: | Ellen France P, Randerson and Miller JJ |
Counsel: | Applicant in person |
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 detention has, he contends, an adverse impact both on his family and on his clients.
The second proposed question of law is the need for this Court to give guidelines for sentencing for driving while disqualified. Mr Barton says there is a public interest in this Court providing guidance and he draws in aid what he argues are widely diverging sentences in this area.[4]
[4]He contrasts the approach in his case with that taken in Maniapoto v Police HC Rotorua CRI-2008-463-1, 18 April 2008 and in New Zealand Police v Body [2013] NZHC 1586.
Third, Mr Barton wants to argue it was not appropriate for the Judge who dealt with his appeal to also determine his application for leave in the High Court.
Finally, Mr Barton is concerned to have these matters addressed to ensure his re-sentencing on 11 August takes place on a proper footing.
Discussion
Special leave to appeal under s 144(3) can only be granted if there is a question of law that is of general or public importance or which, for some other reason, ought to be submitted to this Court. This Court has emphasised the importance of these requirements and the reasons for them.[5]
[5]R v Slater [1997] 1 NZLR 211 (CA) at 214–215.
We accept the submissions for the respondent that none of the matters Mr Barton wishes to argue raise a question of law that meets the test under s 144(3).
The first point is that the proposed appeal is moot. Mr Barton is to be re‑sentenced. He can raise the points he wants to make about the severity of the sentence of home detention before the District Court. We note in this respect that Mr Barton advises the disqualification has now been served. Further, we understand that he will also be sentenced on 11 August for two charges of breaching home detention, to which he pleaded guilty. Against this background, it would be artificial to use the proposed appeal as an opportunity for sentencing guidelines in this area, assuming for these purposes that this might be an appropriate exercise for this Court to undertake.
Second, even if the proposed appeal was not moot, the issues raised are not of any general or other importance. As Andrews J said in declining leave to appeal, the issues Mr Barton wants to raise “amount to a submission that the District Court Judge did not give sufficient weight to some matters and gave too much weight to other matters”.[6] Further, the matters particular to his case that Mr Barton wishes to raise were addressed by Andrews J on the appeal against sentence. The Judge took the view that the starting point of eight months’ imprisonment adopted was stern but not outside the available range. Andrews J was not persuaded that Judge John McDonald had failed to consider the reasons why Mr Barton had breached the earlier community work sentence. She added:[7]
Having read the judgment of Lang J in which Mr Barton was re-sentenced to community work, I am not persuaded that the Judge was wrong, in the present case, to express caution as to Mr Barton’s likely compliance with a sentence of community work.
However, it is evident that that was not determinative in his decision to sentence Mr Barton to home detention.
[6]Barton v New Zealand Police, above n 3 , at [17].
[7]Barton v New Zealand Police, above n 2, at [34]–[35] (footnote omitted).
Andrews J also considered this was a case where matters of personal circumstances had to be balanced against the demonstrated need for a sentence responding to “the principles of deterrence and denunciation”.[8]
[8]At [36].
Finally, consideration of an application for leave in the High Court by the Judge who decided the appeal is common practice.[9]
Decision
[9]R v Guy CA91/04, 19 May 2004 at [2].
For these reasons the application for special leave to appeal is dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent
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