Barton v Police
[2015] NZHC 575
•26 March 2015
IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
CRI-2014-488-000008 [2015] NZHC 575
BETWEEN DAVID SIMON BARTON
Appellant
AND
NEW ZEALAND POLICE Respondent
On the papers Judgment:
26 March 2015
JUDGMENT OF ANDREWS J [Application for leave to appeal to the Court of Appeal]
This judgment is delivered by me on 26 March 2015 at 3 pm pursuant to r 11.5 of the High Court Rules.
..................................................... Registrar / Deputy Registrar
BARTON v NEW ZEALAND POLICE [2015] NZHC 575 [26 March 2015]
Introduction
[1] In a judgment delivered on 18 December 2014, I dismissed Mr Barton’s appeal against the sentence of four months’ home detention, and order of disqualification for 15 months, imposed in the District Court on two charges of driving while disqualified (third or subsequent).1
[2] On 19 December 2014, Mr Barton filed an application for leave to appeal to the Court of Appeal.
Mr Barton’s sentence
[3] On 28 January 2015, Mr Barton applied to have the sentence of four months’ home detention suspended pending the outcome of his application for leave to appeal.
[4] In a judgment delivered on 4 February 2015, I declined that application.2 I noted that a sentence of home detention is not automatically suspended by the filing of a notice of appeal or an application for leave to appeal, and could only be suspended when the appellant has applied for, and been granted, bail.3 Further, s 55 of the Bail Act 2000 does not provide jurisdiction to grant bail for an applicant for leave to appeal in advance of leave to appeal being granted.4 Notwithstanding that Mr Barton’s sentence of home detention is not suspended, it is evident that he has not completed any of it.
Leave to appeal
[5] The relevant provisions as to applications for leave to make a second appeal are set out in s 144 of the Summary Proceedings Act 1957, as follows:5
1 Barton v NZ Police [2014] NZHC 3248.
2 Barton v NZ Police [2015] NZHC 68.
3 At [4].
4 At [8].
5 The charge on which Mr Barton was sentenced was laid before the Criminal Procedure Act 2011 came into effect on 1 July 2013. Hence, the Summary Proceedings Act continues to apply, rather than the Crown Procedure Act: see s 397 of the Crown Procedure Act.
144 Appeal to Court of Appeal
(1) Either party may, with the leave of the High Court, appeal to the
Court of Appeal against … any determination of the High Court on a
question of law arising in any general appeal:
Provided that, if the High Court refuses to grant leave to appeal to the Court of Appeal, the Court of Appeal may grant special leave to appeal.
(2) A party desiring to appeal to the Court of Appeal under this section shall, within 21 days after the determination of the High Court, or within such further time as that Court may allow, give notice of his application for leave to appeal in such manner as may be directed by the rules of that Court, and the High Court may grant leave accordingly if in the opinion of that Court the question of law involved in the appeal is one which, by reason of its general or public importance or for any other reason, ought to be submitted to the Court of Appeal for decision.
…
[6] Mr Barton must establish that:
(a) a question of law arises from the High Court judgment on his appeal against the sentence imposed in the District Court; and
(b)the question of law that arises is of such general or public importance that it should be submitted to the Court of Appeal for decision, or there is some other reason by which it ought to be submitted to the Court of Appeal for decision.
[7] In R v Slater, the Court of Appeal said that s 144 of the Summary Proceedings Act is not to be used to provide a general second tier of appeals from decisions of the District Court.6
Submissions
[8] I have received written submissions from or on behalf of the parties as follows:
(a) from Mr Barton, accompanied by affidavits sworn by himself and
Mr Graeme Hayward Skeates, on 25 February 2015;
6 R v Slater [1997] 1 NZLR 211 (CA).
(b) on behalf of the Police, on 5 March 2015; and
(c) from Mr Barton, being submissions in response to the submissions for the Police, accompanied by a further affidavit sworn by Mr Barton, on
16 March 2015.
[9] I have also received a memorandum from the Northern Region Corrections
Services, dated 4 March 2015.
[10] Mr Barton submitted that the matters of general or public importance which justified a second appeal are as follows:
(a) There is a wide-ranging disparity in District Court sentencing for third or subsequent convictions on driving offences, such that a guideline judgment from the Court of Appeal is in the public interest, and that the Court of Appeal should determine:
(i)what weight should be given at sentencing to the loss of self- employment income resulting from a sentence of home detention; and
(ii)the weight to be given at sentencing to the age of the prior convictions.
Mr Barton submitted that the District Court at his sentencing had failed to consider factors listed in s 8 of the Sentencing Act 2002, had failed to take into account that his offending did not involve aggravating factors, had failed to consider his obligation to pay off fines and had improperly given weight to “other offending and sentences relating to Mr Barton”.
(b)The imposition of home detention was not likely to permit Mr Barton to work, therefore constituting a further penalty outweighing the gravity of his offending.
(c) It is important to put evidence before the Court of Appeal from Corrections National Office so the Court could weigh that as a factor in determination of the appeal, and
(d)The innocent third party consequences of a home detention sentence had not determined by the District Court or the High Court, and public interest requires that evidence be placed before the Court of Appeal from Mr Barton’s clients and their solicitors, to the effect that their homes and businesses will be lost if the sentence is upheld. Mr Barton submitted that it is unlikely that there is any precedent judgment to guide sentencing Judges in such circumstances.
[11] On behalf of the Police, it was submitted that no questions of law had been raised. In particular, it was submitted that the matters raised by Mr Barton as to the weight the District Court Judge gave to various factors at sentencing are not questions of law, rather they are matters that are part of a sentencing Judge’s discretion, in respect of which an appellate court will not interfere.
[12] Further, it was submitted that a guideline judgment is not necessary. With respect to the particular matters raised by Mr Barton, that is the effect of the loss of self-employed income (or any employment), that cannot be determined in advance, given the myriad factual circumstances the court faces. Such a question, it was submitted, simply cannot be answered by the Court of Appeal.
[13] Further, it was submitted that there was no evidence before either the District Court or the High Court as to whether Mr Barton would be allowed to continue to work while serving a sentence of home detention, and it is not appropriate to seek to introduce further evidence on a second appeal. Further, it was submitted that character references and supporting statements from family members and Mr Barton’s business associates were before both the District Court and High Court, but that evidence had to be balanced against the need for a sentence to comply with the principles of deterrence and denunciation.
[14] In his reply submissions, Mr Barton submitted that a miscarriage of justice will most certainly occur if leave to appeal is not granted. This is because his own income will cease for the term of home detention, his clients, who are innocent third parties will suffer; as will Mr Barton’s immediate family. Mr Barton went on to submit that in such circumstances, his sentence does not comply with the requirement under s 8(g) of the Sentencing Act to impost “the least restrictive sentence”.
[15] In his reply submissions, Mr Barton went on to make further submissions concerning the District Court sentencing, and to refer to the sentences imposed, and the outcome of appeals, in other cases.
Discussion
[16] I am not persuaded that Mr Barton has raised any question of law that is of such general or public importance, or any other matter, which would justify leave being given to make a second appeal, to the Court of Appeal.
[17] Each of the matters raised by him in his submissions in support of the application for leave relates to the exercise of the District Court Judge’s sentencing discretion. The issues Mr Barton raised 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.
[18] The same submissions were made to me by Mr Barton in his appeal to this Court. I did not accept that there was any error in the District Court Judge’s exercise of his sentencing discretion. The starting point was not manifestly excessive, and the end sentence was within the available range. I was not persuaded that the Judge had failed to take into account and give appropriate weight to relevant matters (including the impact of a sentence of home detention) or had taken into account and given weight to irrelevant matters. Nor was I persuaded that the Judge failed to impose the least restrictive appropriate sentence.
[19] None of the above matters raises any question of law.
[20] Further, Mr Barton’s suggestion that a guideline judgment should be given by the Court of Appeal does not elevate the issues he has raised to being questions of law with sufficient public or general importance. Guidance as to sentencing is given in the Sentencing Act. Further, the circumstances in which an offender comes before a court for sentence on a third or subsequent driving offence are likely to be highly specific to the individual offender, and be reflected in different sentencing outcomes.
[21] In the light of my conclusion that Mr Barton has not identified a question of law of general or public importance, or any other matter which would justify granting leave for a second appeal, it follows that his application for leave to appeal to the Court of Appeal must be declined.
Northern Region Corrections Service memorandum
[22] It remains to refer to the memorandum from the Northern Region Corrections
Service.
[23] When Mr Barton was sentenced on 6 March 2014, the Judge had before him a pre-sentence report (dated 4 March 2014) which included an assessment of two potential home detention addresses: one in Whangarei and one at his home address in Dargaville. Home detention was ordered to be served at the Dargaville address.
[24] In my judgment delivered at 4 pm on 18 December 2014 (emailed to Mr Barton’s given address for service at 4.01 pm) I directed that Mr Barton was to surrender to his home detention address by 12 noon on 19 December 2014, to serve his sentence of home detention. The court has been advised that Mr Barton did not surrender himself at that time, and has not done so subsequently. Mr Barton appears to contend that the Dargaville address is “no longer available” as a home detention address. Mr Barton did not make any submission to the effect that his Dargaville home address was no longer available for him to serve the sentence of home detention, in his appeal submissions to this court.
[25] The Corrections memorandum records that Mr Barton has now nominated a new home detention address, at 198 Shaw Road, Oratia, Auckland. That property has been visited by a probation officer, and is deemed suitable for home detention.
The only other occupant, Mr Barton’s partner, has consented to Mr Barton’s residing with her at that address while serving home detention (as she did in respect of the Dargaville address).
[26] I regard Mr Barton’s nomination of the Shaw Road address as being in effect an application by him under s 80F of the Sentencing Act to vary the sentence of home detention, to enable him to serve it at that address rather than at his previous Dargaville address. As the address has been approved, I am prepared to vary the sentence so as to change the home detention address.
Result
[27] Before setting out this court’s formal orders, I refer to the Police submissions, referring to orders under s 80ZGD of the Sentencing Act. Following that reference, the Police suggest an order (in the event that leave to appeal is declined) that Mr Barton report to a probation officer not earlier than ten working days after the date of this judgment, to commence his sentence of home detention.
[28] Section 80ZGD applies if an appellant “has been granted bail under section
53, 54, or 55 of the Bail Act 2000”. All of these relate to applications for bail pending an appeal. As noted earlier, Mr Barton has not applied for, or been granted, bail under any of these sections pending his appeal. However, the Court records disclose that Mr Barton was charged with breaching the sentence of home detention by failing to surrender to his home detention address on 19 December 2014. He has been granted bail on that charge. However, that has no relevance to the application of s 80ZGD.
[29] The effect of s 80W(3)(d) of the Sentencing Act is that, if a variation is granted, the start date of the varied sentence cannot be deferred. Accordingly, this Court has no power to defer Mr Barton’s surrender, notwithstanding that he is presently on bail on other matters. However, for practical reasons, it is appropriate to specify that the variation of the sentence of home detention will apply as from
5.00 pm on Monday 30 March 2015.
[30] Accordingly:
(a) Mr Barton’s application for leave to appeal to the Court of Appeal is declined;
(b)Mr Barton is directed to report to a probation officer to begin serving his sentence of home detention at 198 Shaw Road, Oratia, Auckland, by 5.00 pm on Monday 30 March 2015. Until that time he remains subject to the orders already in place.
(c) Mr Barton continues to be subject to the period of disqualification ordered at sentencing, which remains outstanding.
Andrews J
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