Barton v Police
[2014] NZHC 3248
•18 December 2014
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 RespondentJudgment:
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 the reason for the initial disqualification. He observed that disqualification is an important tool for dealing with irresponsible driving, and that adherence to such an order is essential if the integrity of the driver licensing system is to be preserved.
[10] The Judge noted that Mr Barton was disqualified for six months on
13 October 2011 for driving with excess breath alcohol. His level was high, at 734. The Judge made it clear that in sentencing Mr Barton for driving while disqualified, he was not re-punishing him for that, but it was a factor that he would take into account. He noted that one month after that disqualification, Mr Barton was caught driving while disqualified.
[11] The Judge considered that Mr Barton’s attitude is that he did not care what the Court had said. He referred to a probation officer’s report that Mr Barton failed to recognise the impact of his offending behaviour on the community, and failed to comprehend any connection between the current offending and his previous offending. Mr Barton had presented with an attitude of entitlement that allowed him to think and act as he did, without consideration of the law or the community. As such, Mr Barton was assessed as being at a high risk of re-offending in a similar manner.
[12] The Judge then referred to the submissions made by Mr Barton’s then counsel, and to letters stressing the importance of Mr Barton being given a lenient sentence, so that he could continue to work and support his family.
[13] Having noted that there is no tariff or guideline judgment for sentencing in this area, the Judge noted that sentencing must be based on Mr Barton and his offending. He took into account the maximum penalty available (two years’ imprisonment on each charge), the fact that there were two sets of offending (one of which was one month after Mr Barton has been disqualified for driving with excess breath alcohol, the other shortly after he had been convicted of driving while disqualified). The Judge concluded that the offences showed a clear disregard for Court orders, and were blatant examples of driving while disqualified.
[14] The Judge noted his counsel’s submission that Mr Barton’s previous convictions for driving while disqualified were historic – being in 1994 and 1996 – and that they should not be weighed too heavily in the final sentence. The Judge also referred to Mr Barton’s other driving convictions, and the fact that he owed some $25,207.89 in fines.
[15] The Judge then considered Mr Barton’s other offending. In 1989 Mr Barton was sentenced to three years and six months’ imprisonment for a series of frauds. In
2005 he was sentenced to six months’ imprisonment for loss by deception and obtaining by deception. In 2008 he was ordered to complete community work for burglary, and in 2011 he breached that community work. In the Judge’s view, a sentence of community work would not be completed by Mr Barton.
[16] Finally, the Judge considered totality, the need to be consistent and the requirement to impose the least restrictive sentence. Considering all the factors, he took a starting point of eight months’ imprisonment, before sentencing Mr Barton to four months’ home detention. He also disqualified Mr Barton from driving for
15 months. In setting that length of disqualification, the Judge took into account the four months’ of disqualification Mr Barton had served pursuant to Judge Harvey’s sentence, saying that Mr Barton should be given some credit for that.
Approach on appeal
[17] Mr Barton’s appeal is to be considered pursuant to the relevant provisions of the Summary Proceedings Act 1957. The appeal is by way of re-hearing. The Court may quash or vary a sentence where it is “clearly excessive or inadequate or inappropriate” or if the Court is “satisfied that substantial facts relating to the offence or the offender’s character or personal history were not before the Court imposing sentence”.
[18] The approach to be taken to sentencing appeals was set out in Yorston v
Police where the Court said: 6
a) There must be an error vitiating the lower Court’s original sentencing discretion: the appeal must proceed on an “error principle.”
b) To establish an error in sentencing it must be shown that the Judge in the lower Court made an error whether intrinsically or as a result of additional material submitted to the appeal Court.
c) It is only if an error of that character is involved that the appeal
Court should re-exercise the sentencing discretion.
The High Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles.
Submissions
[19] Mr Barton submitted in his written submissions that: (a) The sentence was manifestly excessive.
(b) Home detention was not the least restrictive sentencing option.
A sentence of community work was open to the Judge.
(c) The Judge took into account irrelevant considerations, such as the fraud, burglary and deception charges he has and the amount he owes in fines.
(d)The Judge did not consider the background as to why he had breached community work. Mr Barton submitted that the probation service determined that he should serve his sentence in such a way that it interrupted with his work day. Further, after the breach, Lang J re- sentenced him to community work and these hours were completed.
(e) Because his appeal against his conviction on Charge A on 3 October
2012 succeeded, the Judge should have proceeded on the basis that Mr Barton should never have been convicted on that day. Thus, Mr Barton submitted, the charge of driving while disqualified on
8 November 2012 would never have arisen.
(f) The disqualification of 15 months was excessive.
(g)The Judge also failed to take into account the bail conditions which he submitted were imposed on him immediately before his sentencing hearing on 6 March 2014. He submitted that these were “harsh and punitive”, and were imposed “as a punishment for no pre-sentence report being available by that date”.
[20] In support of his appeal, Mr Barton referred me to the judgment of Mallon J in NZ Police v Body.7 That judgment concerned the exercise of the Court’s discretion under s 94 of the Land Transport Act 1998 to substitute a community- based sentence for a period of disqualification. Five sentences were before her Honour, in each of which the lower Court Judge had ordered varying periods of community work but not a further disqualification. The Judge concluded that the
Judge did not err in exercising his discretion to order community-based sentences in any of the five cases. I do not consider that that judgment is of assistance in the present case. The issue of a community-based sentence rather than disqualification did not arise in this case, and was not argued on appeal.
[21] In his oral submissions, Mr Barton submitted that the Judge had erred in that he had failed to weigh and balance all the relevant factors and, as a result, had failed
to impose the least restrictive sentence. The “relevant factors”, he submitted, included the volume of material before the Judge in the form of affidavits testifying to Mr Barton’s work and good character. They also included the fact that no alcohol was involved in his driving, there was no associated driving offence, and no injury had been suffered. Mr Barton submitted that, in the circumstances, home detention was not the least restrictive sentence and would be disproportionately severe on himself, his family, and clients who are relying on him. He submitted that the Judge should have imposed a further sentence of community work.
[22] Mr Barton further submitted that as a result of the Judge’s error, this Court should re-sentence him. He submitted that an appropriate sentence would be one of community work (in the order of 200 hours), together with a disqualification for eight months (starting from the day of hearing). He arrived at the period of eight months by starting from a longer period than was imposed by the Judge, then allowing credit for the four months disqualification served between 3 October 2013 and 5 February 2012, and the nine months served since his sentencing in March
2014.
[23] For the respondent, Ms Jarman-Taylor submitted that the starting point of eight months’ imprisonment cannot be said to be manifestly excessive, and the end sentence of four months’ home detention was the least restrictive outcome that was appropriate in the circumstances, and cannot be said to be manifestly excessive.
[24] Ms Jarman-Taylor referred me to the sentencing judgments (on appeal) in Peterson v NZ Police,8 and Te Puia v NZ Police9 as providing guidance. In Peterson the 23 year old appellant successfully appealed against a sentence of 18 months’ imprisonment on a charge of driving while disqualified. In that case, it was Mr Peterson’s sixth driving while disqualified offence. Over nine years, Mr Peterson had acquired a total of 76 convictions. Duffy J took a starting point of 10 months’ imprisonment, which was then uplifted by seven months for his criminal history.
[25] In Te Puia the appellant was appealing a sentence of 22 months’
imprisonment for a third or subsequent conviction for driving while disqualified,
8 Peterson v Police HC Hamilton CRI 2009-419-11, 20 February 2009.
9 Te Puia v Police HC Palmerston North CRI 2011-454-4, 22 March 2011.
theft and for making a false statement. Mr Te Puia had accumulated four driving while disqualified charges between October 2008 and April 2010 and chose to drive again in December 2010. The Judge in the District Court had taken a starting point of ten months’ imprisonment on the driving while disqualified, which Miller J held to be “well within range”. The Judge also upheld the District Court Judge’s uplift to the starting point on account of Mr Te Puia’s conviction history. In both Peterson and Te Puia the end sentence was imprisonment, notwithstanding that in each case, a discount was applied for guilty pleas.
[26] On the basis of those decisions, Ms Jarman-Taylor submitted that a starting point of eight months imprisonment for a sentencing on two charges of driving while disqualified (3rd or subsequent) committed over a very short period of time, with two previous convictions for that type of offending, was well within the available range.
[27] Ms Jarman-Taylor further submitted that the Judge did not err in relation to his consideration of sentencing options other than home detention. She first submitted that, where the starting point is imprisonment, the Judge was not required to start from the lowest sentence in the sentencing hierarchy and work upwards. Rather, if the Judge concluded that imprisonment was not necessary to meet the purposes and principles of sentencing, the proper process was to consider whether a less restrictive sentence would meet the purposes and principles. Secondly, she submitted that the Judge had considered a sentence of community work, had rejected it, and had not erred in doing so.
Discussion
Home detention
[28] Mr Barton’s submission that the Judge should have sentenced Mr Barton on the basis that the offence on 8 November 2012 had never occurred (because the conviction on 3 October 2012 was subsequently overturned) is misconceived. On
8 November 2012 Mr Barton had been convicted and a disqualification imposed. His disqualification had not been suspended. The fact that the disqualification was later suspended cannot alter the fact that Mr Barton drove while he was subject to a disqualification.
[29] Mr Barton contended that the two cases referred to by Ms Jarman-Taylor are very different from his offending. However, while the offending in both those cases was more serious that was Mr Barton’s, so, too, were the sentences imposed in those cases. The starting point was higher in each case, and uplifts were applied to the starting points to recognise the need for additional deterrence shown by the offender’s previous conviction history.
[30] A similar result to those in Peterson and Te Puia can be seen in the judgment of Brewer J in Dew v Police.10 His Honour upheld the District Court Judge’s starting point of ten months’ imprisonment, which was uplifted for previous convictions, for an offender who had accumulated 17 convictions for driving while prohibited or disqualified over a 14 year period. His Honour cited the Peterson and Te Puia cases as supporting the sentence, and noted that it may well have been that another Judge would have reached a slightly lesser position but that, nonetheless, the sentence was
within range.
[31] In Iwikau v Police, Collins J considered the appropriate starting point for an offender being sentenced on his sixth conviction for driving while disqualified.11
The District Court Judge had adopted a starting point of ten months’ imprisonment. His Honour concluded that the starting point was too high, but did not indicate what would have been appropriate. The end sentence for the driving while disqualified charge, after reductions for totality and guilty pleas, was three months’ imprisonment. In that case the lead offending was burglary, for which his Honour considered a starting point of 15 months was appropriate.
[32] The starting point of eight months’ imprisonment adopted in Mr Barton’s case was, as Ms Jarman-Taylor acknowledged, at the upper end of the available range, but I am not persuaded that it was 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. Even taking into account all of the factors referred to by Mr Barton in his submissions, I am not persuaded that the starting
point was manifestly excessive.
10 Dew v NZ Police [2012] NZHC 2915.
11 Iwikau v NZ Police [2012] NZHC 2027.
[33] Further, I do not accept Mr Barton’s submission that the Judge took into account irrelevant factors, such as his unpaid fines and previous convictions on other offending. The Judge was simply setting out Mr Barton’s history. I accept Ms Jarman-Taylor’s submission that the detail of Mr Barton’s unpaid fines could have lent support to the concerns expressed in the pre-sentence report, and in the Judge’s sentencing comments, as to Mr Barton’s readiness to comply with a sentence such as community work. However, there is no indication in the Judge’s sentencing comments that either Mr Barton’s unpaid fines or his convictions for unrelated offending played any part in the determination of the nature and length of the sentence imposed on Mr Barton for his two convictions for driving while disqualified.
[34] I turn next to consider Mr Barton’s submission that a sentence of home detention was not the least restrictive appropriate sentence, as a sentence of community work was available to the Judge. In the course of his sentencing comments, the Judge noted that Mr Barton had breached an earlier sentence of community work. I am not persuaded that the Judge failed to give consideration to the reasons why Mr Barton had breached his earlier community work sentence. Having read the judgment of Lang J in which Mr Barton was re-sentenced to
community work,12 I am not persuaded that the Judge was wrong, in the present
case, to express caution as to Mr Barton’s likely compliance with a sentence of community work.
[35] However, it is evident that that was not determinative in his decision to sentence Mr Barton to home detention. The Judge started from the starting point of eight months imprisonment, but then concluded that a sentence of home detention for four months was sufficient to denounce Mr Barton’s conduct, and was the least restrictive appropriate sentence.
[36] Further, I am not persuaded that the Judge erred in his consideration of the material presented in support of Mr Barton. The nature of the charge of driving
while disqualified is such that character references, and supporting statements from
12 See Dept of Corrections v Waymouth (aka Barton) HC Auckland CRI 2007-404-299, CRI 2006-004-2354, 5 August 2011.
family members and business associates, must be balanced against the demonstrated need for a sentence that responds to the principles of deterrence and denunciation.
[37] Mr Barton also submitted that the Judge failed to take account of the time he spent on restrictive bail conditions between 13 February 2014 and his sentencing on
6 March. During this period Mr Barton was subject to a curfew which, he submitted, caused significant disruption to his life. In supplementary sentencing submissions Ms Jarman-Taylor noted that this was a condition of bail pending sentencing, in respect of which Mr Barton had the onus of satisfying the Court that bail should be granted. However, Mr Barton maintained his submission that the curfew was not warranted for the purpose of addressing any identified bail risk, and that a reduction in sentence was justified.
[38] The Judge made no reference to this submission in his sentencing comments, and I therefore assume that he made no reduction. However, a reduction for restrictive bail conditions would normally be given only if the offender had been subject to conditions much more restrictive than those applying to Mr Barton – for example, a 24-hour confinement to the bail address. That was not the case here and as such I conclude that the Judge did not err in making no reduction. Further, in the light of the very short period in which the restriction applied, any possible reduction would have been minimal, and would not have affected the overall sentence.
[39] I am not persuaded that the sentence of home detention imposed on
Mr Barton was manifestly excessive.
Disqualification
[40] I turn now to Mr Barton’s submission that the period of 15 months disqualification was excessive. In his written submissions, he contended that he should have been sentenced to an 11 month disqualification as the four months he has already been disqualified for should act as a credit. That is, he submitted that the disqualification ordered started at 19 months, then was reduced to 15 months to take account of the four months served before it was suspended, but should have started at 15 months, then been reduced to 11 months.
[41] I note that at sentencing, Mr Barton’s counsel acknowledged that as both of the offences on which Mr Barton was being sentenced required minimum disqualification periods of 12 months, there might be limits to the extent the disqualification served could be taken into account. He submitted at sentencing that the appropriate duration of disqualification would be 14 months on each charge, to be served concurrently. This is, of course, only one month less than was in fact imposed. This submission must have taken into account the period of disqualification already completed, to the extent possible.
[42] I am not persuaded that disqualification for 15 months was manifestly excessive.
[43] As recorded earlier Mr Barton, in his oral submissions, submitted that if I were to accept his submission that the Judge erred in his sentencing judgment, I should re-sentence him to what would be, in effect, a longer period of disqualification (albeit reduced to take account of the periods of disqualification already completed) together with an order to complete community work. As I have not found that the Judge was in error in sentencing Mr Barton, I will not consider whether such a sentence would be appropriate.
Result
[44] The appeal against sentence is therefore dismissed. Mr Barton is directed to surrender to his home detention address by 12 noon on Friday 19 December 2014 to serve his sentence of home detention. Mr Barton continues to be subject to the
period of disqualification ordered at sentencing.
Andrews J
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