Barton v Police - [2014] NZHC 3248

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI 2014-488-000008 [2014] NZHC 3248

BETWEEN
DAVID SIMON BARTON

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 15 December 2014

Appearances:

Mr Barton, Appellant, in person
M A Jarman-Taylor for Respondent

Judgment:

18 December 2014

(RESERVED) JUDGMENT OF ANDREWS J [Appeal against sentence]

This judgment is delivered by me on 18 December 2014 at 4 pm pursuant to r 11.5 of the High Court Rules.

..................................................... Registrar / Deputy Registrar

BARTON v NEW ZEALAND POLICE [2014] NZHC 3248 [18 December 2014]

Introduction

[1] On 6 March 2014, Mr Barton was sentenced by Judge McDonald in the Whangarei District Court to four months’ home detention and was disqualified from driving for 15 months on two charges of driving while disqualified.1 He has appealed against his sentence.

Background facts

[2] I will refer to the two charges as Charge A and Charge B.

[3] Charge A was in relation to driving on 15 November 2011. He was charged with driving while disqualified on that day after he was seen at a service station by a police constable. On 3 October 2012, Mr Barton was convicted on the charge of driving while disqualified (3rd or subsequent), following a defended hearing before Judge Duncan Harvey. He was sentenced the same day to 200 hours’ community work and disqualified from driving for 12 months and one day, commencing that day. Mr Barton’s counsel applied for the disqualification to be suspended pending an appeal, but the Judge refused it.

[4] Mr Barton appealed against his conviction. He also appealed against the refusal to suspend the disqualification. The appeal regarding suspension was allowed in a judgment delivered by Peters J on 5 February 2013.2 On 26 March
2013, Heath J allowed Mr Barton’s appeal against conviction, and ordered a re- hearing.3

[5] The charge was re-heard before Judge de Ridder. On 23 October 2013

Mr Barton was found guilty and convicted.4

[6] Charge B was in relation to driving on 8 November 2012. Following a defended hearing before Judge McDonald on 13 November 2013, Mr Barton was

1      NZ Police v Barton DC Whangarei CRI 2012-011-56, 6 March 2014.
2      Barton v NZ Police [2013] NZHC 71.
3      Barton v NZ Police [2013] NZHC 607.
4      NZ Police v Barton DC Dargaville CRI 2012-011-56, 23 October 2013.

found guilty and convicted on a charge of driving while disqualified (3rd or subsequent).5

District Court sentencing

[7] Judge McDonald sentenced Mr Barton on both Charge A and Charge B. He expressed the view that on each of the two occasions when Mr Barton drove while disqualified, he had simply chosen to drive. No other reason had been advanced.

[8] The Judge took into account the purposes and principles of sentencing, especially the need to deter and denounce, to impose the least restrictive sentence, to be consistent and promote a sense of responsibility in Mr Barton.

[9] The Judge said that the starting point for driving while disqualified must be…

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 [2014] NZHC 3248
Case: [2014] NZHC 3248
Decision Date: 18 December 2014

CaseChat Overview and Summary

David Simon Barton, the appellant, appealed against his sentence imposed by Judge McDonald in the Whangarei District Court for two charges of driving while disqualified. The appeal was heard by Andrews J in the High Court of New Zealand, Whangarei Registry. The appellant argued that the sentence was manifestly excessive and that home detention was not the least restrictive sentencing option. He further contended that the Judge had taken into account irrelevant considerations, such as his unpaid fines and unrelated convictions. The respondent argued that the sentence was well within the available range and that the Judge had not erred in his consideration of sentencing options.

The court found that the starting point of eight months imprisonment adopted in Mr Barton's case was at the upper end of the available range, but it was not outside the available range for a person appearing on his third and fourth convictions for driving while disqualified, committed within a short period of time. The court did not accept the appellant's submission that the Judge had taken into account irrelevant factors, such as his unpaid fines and previous convictions on other offending. The court also found that the Judge did not err in his consideration of the material presented in support of the appellant, and that home detention was the least restrictive appropriate sentence. The court further concluded that the disqualification of 15 months was not manifestly excessive.

The appeal against sentence was dismissed, and the appellant was directed to surrender to his home detention address by 12 noon on Friday 19 December 2014 to serve his sentence of home detention. The appellant continued to be subject to the period of disqualification ordered at sentencing.

Orders