Barton v Police
[2015] NZHC 68
•4 February 2015
IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
CRI 2014-488-000008 [2015] NZHC 68
BETWEEN DAVID SIMON BARTON
Appellant
AND
NEW ZEALAND POLICE Respondent
On the papers Judgment:
4 February 2015
JUDGMENT OF ANDREWS J [Application for order suspending sentence]
This judgment is delivered by me on 4 February 2015 at 4.30 pm pursuant to r 11.5 of the High Court Rules.
..................................................... Registrar / Deputy Registrar
BARTON v NEW ZEALAND POLICE [2015] NZHC 68 [4 February 2015]
Introduction
[1] Mr Barton was sentenced in the District Court at Whangarei on 6 March
2014, to four months' home detention for two charges of driving while disqualified (3rd or subsequent). In a judgment delivered on 18 December 2014, I dismissed Mr Barton’s appeal against sentence, and upheld the sentence of home detention. On 19
December 2014, Mr Barton filed an application for leave to appeal to the Court of
Appeal. That application has a nominal hearing date of 22 February 2015. On 28
January, Mr Barton filed an application to have his sentence suspended pending the outcome of the appeal.
Relevant statutory provisions
[2] The original charges against Mr Barton were commenced prior to 1 July
2013. Pursuant to s 397 (1) and (2) of the Criminal Procedure Act 2011 (the CPA), the proceeding (including any appeals) falls to be determined under the Summary Proceedings Act (the SPA).
[3] However, s 403A of the CPA sets out specific transitional provisions applying to appeals against sentences of home detention, including the present appeal. That section provides:
403ATransitional provision regarding effect of appeal on sentence of home detention
If, in any proceeding to which section 397 [of the CPA] applies, a person is convicted and sentenced to home detention and on or after the date that this section comes into force either party appeals a determination to which the sentence relates, section 397(2) has effect subject to the following:
(a) the sentence of home detention is not suspended just because a notice of appeal or application for leave to appeal has been given unless the appeal court expressly directs that the sentence be suspended; and
(b) section 399 of the Crimes Act 1961 and section 124 of the Summary Proceedings Act 1957 (as each of those provisions read before the commencement date) do not apply; and
(c) the person sentenced to home detention may apply for bail and the provisions of the Bail Act 2000 (as those provisions read before the commencement date) apply except that sections 54, 55, 58 and 59A of the Bail Act (as those provisions read at the time of the appeal) apply with any necessary modifications.
[4] As the Court of Appeal held in Din v R, s 403A of the CPA provides 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 that a person sentenced to home detention may apply for bail pending the hearing of the appeal.1 The Court went on to hold that a sentence of home detention could only be suspended when the appellant had applied for, and been granted, bail.2
[5] In the present case bail must be determined pursuant to s 55 of the Bail Act, which provides that the High Court may grant bail to a person who is appealing a sentence of home detention. Section 55 provides, as relevant to the present case:
55Granting of bail to appeallant in custody or on home detention pending appeal to Court of Appeal or Supreme Court
(1) This section applies if a person—
(a) is in custody under a conviction or is subject to a sentence of home detention; and
(b) is appealing the conviction or sentence, or both, to the court of Appeal or the Supreme Court
(2) The Court of Appeal or the Supreme Court (as the case may be) or the Judge who presided at the trial in the court below may, if it or the Judge thinks fit, on the application of an appellant and on such terms and subject to such conditions as the court or Judge thinks fit, grant bail to the appellant pending the determination of the appeal, if the appellant is in custody, or is subject to a sentence of home detention, only under the conviction to which the appeal relates.
…
Mr Barton’s application
[6] Mr Barton has not applied for bail. As the Court held in Din, he cannot, in the circumstances, apply for an order suspending his sentence of home detention.
[7] Further, it is necessary to consider whether s 55 of the Bail Act gives this
Court jurisdiction to grant bail to a person who has filed an application for leave to appeal (as Mr Barton has been required to do), rather than an appeal.
1 Din v R [2013] NZCA 610, [2014] 2 NZLR 445 (CA) at [7]–[8].
2 At [12]-[13].
[8] Where leave to appeal is yet to be granted, the question of bail must ultimately depend on the merits of the leave application and of the appeal itself. It is therefore difficult to envision that such a determination can be made as a separate and preliminary step in the proceedings. I have concluded that the words "is appealing" in s 55 of the Bail Act should not be interpreted to include applications for leave to appeal. As such, s 55 does not give jurisdiction to grant bail to a person in advance of leave to appeal being granted.
Result
[9] An order to suspend Mr Barton’s sentence of home detention cannot be made. Accordingly, his application is declined.
Andrews J