Barton v The Queen

[2004] NZCA 175

IN THE COURT OF APPEAL OF NEW ZEALAND

CA155/04

THE QUEEN

v

JAMES WHITIKAU BARTON

Hearing:22 July 2004

Coram:O'Regan J
Panckhurst J
Paterson J

Appearances:  K Hennessy for Appellant

J C Pike for Crown

Judgment:5 August 2004 

JUDGMENT OF THE COURT DELIVERED BY O’REGAN J

[1]       This appeal against sentence on a charge of wounding with intent to cause grievous bodily harm raises issues about the application of the decision of this Court in R v Hereora [1986] 2 NZLR 164.

[2]       The case has two very unusual features.  The first is that the appellant’s attack against the victim, a police officer on highway patrol duty, was followed almost immediately by an apology which the officer accepted was genuine.  However the appellant pleaded not guilty to the charge and was convicted after a jury trial.  The second unusual feature is that, following the District Court sentencing, the victim wrote a letter to the appellant’s counsel which was intended to be, and was, presented to this Court in support of the appellant’s appeal against sentence.  We will return to this aspect of the case later.

Facts

[3]       As already indicated, the victim of the offence, the constable, was on highway patrol duty.  He pursued a Nissan motor vehicle and, when it stopped, noticed that the occupants were changing place.  The motor vehicle was unregistered and did not have a current warrant of fitness.  None of its occupants was lawfully entitled to drive the car so the constable impounded it.  As this occurred, another vehicle containing three persons including the appellant’s brother and sister arrived on the scene.  The appellant’s brother, apparently incited by his sister, smashed the back window of the Nissan car with a wheel brace.  The constable tried to intervene and sprayed the appellant’s brother with OC spray.  The appellant then took the wheel brace and swung it at the constable.  The constable deflected the blow with his left arm, and sustained a wound to his left wrist.  By that stage another police constable had arrived on the scene, but as the Judge noted, the two police officers were in a vulnerable situation facing six aggressive people, with one officer having an injured arm.  However the constable again used OC spray, this time to subdue the appellant, and with the help of passers-by the situation was brought under control.

The Judge’s sentencing remarks

[4]       Judge Abbott recounted the facts and commended the police officers for the restraint they had shown in the face of the aggression of the appellant and his brother (the Judge based those comments on the evaluation of the incident as depicted on a video made at the time by the appellant’s sister). 

[5]       The Judge identified three aggravating factors, namely:

(a)The incident involved the use of actual violence and the use of a weapon;

(b)        The appellant had a number of previous convictions for similar offending.  The Judge accepted that the appellant’s record showed that he had been able to live in a more law-abiding way in recent times, but said the previous convictions were still relevant to the sentencing;

(c)        The fact that the assault was committed on a police officer who was doing his job.  The Judge noted that police officers are entitled to protection from the Courts when people behave violently towards them.  He noted that it was fortunate that the constable had not suffered any long term permanent injury as a result of the assault.

[6]       The Judge noted that the constable appeared to hold no grudge against the appellant and also that the constable had acknowledged that the appellant had apologised to him and that the constable had accepted the apology as genuine.  The Judge said that this was somewhat difficult to reconcile with the pre-sentence report in which the probation officer noted that the appellant maintained his innocence on the wounding charge.  It was, of course, also hard to reconcile with the appellant’s plea of not guilty.

[7]       The Judge then applied R v Hereora.  He said that, in that case, the Court of Appeal had said an impulsive act of violence involving use of a weapon or intent to inflict serious injury would generally attract a sentence of imprisonment within the range of three to five years, and that sentences of imprisonment for between five and eight years would be reserved for cases exhibiting a combination of aggravating features.  The Judge said that the appellant’s offending fitted fairly and squarely in the second category.  He sentenced the appellant to imprisonment for one year on the charge of driving while disqualified and disqualified him from holding or obtaining a drivers licence for 18 months.  On the charge of wounding with intent to cause grievous bodily harm, the appellant was sentenced to imprisonment for six years.  The prison terms were concurrent.

Appellant’s submissions

[8]       On behalf of the appellant Mr Hennessey made extensive submissions and, in addition, presented to the Court the letter from the constable to which reference has already been made.  Although he raised a great number of points in support of the appeal, two were of particular significance.  These were:

(a)The Judge should have placed this offending in category one of Hereora, rather than category two;

(b)        There were a number of personal factors relating to the appellant which were either not drawn to the Judge’s attention or to which insufficient weight was given. 

[9]       We will deal with each of these in turn. 

Hereora

[10]     Although Hereora is seen as a tariff case, there is, in fact, only one paragraph of the judgment which has that character.  The reference to categories of offending is brief.  In essence, the Court said that the first category, which will attract sentences of three to five years imprisonment, involves “an impulsive act of violence involving the use of a weapon or intent to inflict serious injury”.  The second, which would attract sentences from five to eight years imprisonment, applied to cases “exhibiting a combination of aggravating features”.  There is then a third category, attracting sentences of up to 12 years imprisonment, “when unusually grave aggravating features are present”.

[11]     In the present case, Mr Hennessey’s submission was that the Judge took into account the use of actual violence and use of a weapon as factors taking the present offending from category one into category two, when, in fact, they are characteristics of offending in category one.  We agree with Mr Hennessey that those factors would not, of themselves, justify elevating the offending to category two of Hereora.  But, as Mr Pike for the Crown pointed out, the significant factor in this case was that the offending involved a police officer in the course of his duty, and that factor itself justifies elevating the offending to category two in Hereora.  We accept Mr Pike’s submission in that regard. 

Personal factors

[12]     Another factor taken into account by the Judge in elevating the offending into category two of Hereora was the poor past record of the appellant.  Mr Hennessey said that, in fact, the appellant had made significant improvements in his conduct in recent years, and that this illustrated by the fact that his more recent offending had been of a relatively minor nature, and there had been no offending in the 18 months between the date of the present offence and sentencing. 

[13]     Mr Hennessey said that Mr Barton had developed his own family unit with his partner and her children, had taken on new responsibility in that regard and had found regular work.  He said that the probation report provided to the Judge did not adequately alert the Judge to these factors.  He provided us with a probation report prepared by a Nelson probation officer who was better acquainted with Mr Barton in 2001, which indicated a much more positive outlook. 

[14]     Mr Hennessey also emphasised the significance of the apology provided by Mr Barton to the victim of the offence at the time.  This is a highly unusual feature of the case, and the description of it by the constable in his letter to the Court is significant.  In that letter the constable says:

…The fact that Mr Barton made a sincere apology to me on the day, certainly suggests to me that he genuinely regretted what he had done.  His apology was not made in the way of so many I have witnessed in 22 years in enforcement – i.e. just to give an “appropriate appearance” of remorse – but was made in person, face to face and without witnesses.  I have never experienced this from any other gang member in all my years of front line enforcement.”

[15]     Mr Pike accepted that the sentence was a stern one in the circumstances, but said this was appropriate given the potentially serious consequences of the assault, and the fact that the victim was a police officer.  He did not seek to minimise the significance of the letter written by the constable, but noted (as the constable also acknowledged) that deterrent sentences are intended to protect all police officers, not just the victim of the present assault.

Discussion

[16]     While we agree with Judge Abbott that attacks on police officers must be met with deterrent sentences, we have reached the conclusion that, in this case, the sentence was higher than appropriate in the circumstances.  We agree that the case must be seen as being in category two of Hereora, given the fact that this was a serious attack on a police officer in the course of his duty.  However, we accept Mr Hennessey’s submission that more weight should have been given to the positive steps which Mr Barton has taken to turn around his life, as reflected in his improved record in recent years and the efforts he appears to have made to rehabilitate himself.  His apology to the victim appears to confirm this positive change.  A sentence which did not recognise these factors was, in our view, manifestly excessive.  A sentence at the low end of the range for offending in category two of Hereora ought to have been imposed.  In coming to that conclusion, we give weight to the comments made by the constable in his letter, which was not available to the Judge at sentencing. 

[17]     We therefore quash the sentence of six years imprisonment imposed on Mr Barton for the charge of wounding with intent to cause grievous bodily harm and substitute a sentence of five years imprisonment.  The concurrent sentence of one year’s imprisonment for driving while disqualified and the 18 month disqualification from holding or obtaining a driving licence remain unchanged.

Solicitors:
Hennessy Law, Nelson for Appellant
Crown Law Office, Wellington