Barton v Police - [2015] NZHC 575

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…

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] NZHC 575
Case: [2015] NZHC 575
Decision Date: 26 March 2015

CaseChat Overview and Summary

David Simon Barton sought leave to appeal to the Court of Appeal against the sentence imposed on him by the District Court, which was subsequently dismissed by the High Court. Barton sought leave to appeal on the grounds that the District Court had failed to properly consider certain factors in sentencing, including the loss of self-employment income, the age of prior convictions, and the impact on innocent third parties. The High Court considered the submissions and concluded that the matters raised by Barton related to the exercise of the District Court Judge's sentencing discretion and did not raise any questions of law of general or public importance. The High Court declined Barton's application for leave to appeal and directed him to begin serving his sentence of home detention at a new address from 5:00 pm on 30 March 2015.

The legal issues before the court were whether Barton had established that a question of law arose from the High Court judgment on his appeal against the sentence imposed in the District Court, and whether the question of law was of such general or public importance that it should be submitted to the Court of Appeal for decision. The court considered the submissions of both parties and concluded that Barton had not identified any question of law of general or public importance. The court also noted that Barton had not surrendered himself to serve his sentence of home detention and had nominated a new address for serving the sentence. The court varied the sentence to reflect the new address and directed Barton to report to a probation officer to begin serving the sentence.

Orders