Barton v Police - [2015] NZHC 68

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…

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 68
Case: [2015] NZHC 68
Decision Date: 4 February 2015

CaseChat Overview and Summary

The High Court of New Zealand heard an application by David Simon Barton, the appellant, against the New Zealand Police, the respondent. The appellant sought an order suspending his four-month home detention sentence, which was imposed for two charges of driving while disqualified. The appellant's appeal against his sentence had been dismissed, but he filed an application for leave to appeal to the Court of Appeal. The appellant subsequently sought to have his sentence suspended pending the outcome of the appeal. The court was required to determine whether the appellant's sentence could be suspended, and whether it had the jurisdiction to grant bail to the appellant who had filed an application for leave to appeal, rather than an appeal.

The court examined relevant statutory provisions, including section 403A of the Criminal Procedure Act 2011, which 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. The court also examined section 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. The court concluded that the appellant could not apply for an order suspending his sentence of home detention as he had not applied for bail. The court further concluded that section 55 of the Bail Act does not give jurisdiction to grant bail to a person in advance of leave to appeal being granted.

The court declined the appellant's application to suspend his sentence of home detention, as he had not applied for bail and section 55 of the Bail Act did not provide jurisdiction to grant bail to a person who had filed an application for leave to appeal. The court's decision was based on the relevant statutory provisions and the circumstances of the case. The court's reasoning and outcome were consistent with the relevant law and the facts of the case.

Orders