Barton v The Queen

[2015] NZHC 2643

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2015-404-300 [2015] NZHC 2643

BETWEEN

DAVID BARTON

Appellant

AND

THE QUEEN Respondent

Hearing:	27 October 2015
Appearances:	Appellant in person N J Small for Respondent
Judgment:	28 October 2015

JUDGMENT OF BREWER J

This judgment was delivered by me on 28 October 2015 at 11:30 am pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

Solicitors:           Meredith Connell (Auckland) for Respondent

(Copy to Appellant in person)

BARTON v THE QUEEN [2015] NZHC 2643 [28 October 2015]

Introduction

[1]      On 19 August 2015 the appellant, Mr Barton, appeared before Judge Glubb in the Waitakere District Court and was re-sentenced on two charges of driving while disqualified (third or subsequent).1   At the same time Mr Barton was sentenced on two charges of breaching the conditions of home detention.   The home detention sentence was the sentence originally imposed on the driving charges.2

[2]      Judge  Glubb  re-sentenced  Mr  Barton  to  three  months  two  weeks’ home detention on the two charges of driving while disqualified.3    The Judge sentenced him concurrently to 120 hours of community work on each charge of breaching the conditions of home detention.

[3]      It is not necessary for me to recount the factual background for the purposes of this appeal.

[4]      The standard conditions of home detention attached to the sentence.  One is that Mr Barton must not engage, or continue to engage, in any employment or occupation in which a probation officer has directed him not to engage or continue to engage.4

[5]      On 24 September 2015, the Department of Corrections wrote to Mr Barton to say:

In accordance with the above condition(s) you are hereby directed not to engage or continue to engage in any type of employment of a financial advisory role such as but not limited to mortgage brokerage and property consultancy.

This decision has been made in relation to assessed risk relating to historical offences and current active charges.

Should you fail to comply with this direction, it will place you in breach of your sentence which may result in enforcement up to and including legal

1      Land Transport Act 1998, s 32(4). The maximum penalty is two years’ imprisonment or a fine

not exceeding $6,000.

2      Sentencing Act 2002, s 80s. The maximum penalty is one year of imprisonment or a fine not exceeding $2,000.

3      This took account of the two weeks’ home detention already served.

4      Section 80C(2)(e).

action. This direction   is valid for the duration of your sentence unless advised otherwise in writing by a Probation Officer.

Any other employment maybe [sic] considered on a case by case basis that does not directly relate to the employment stated above.

[6]      As a result, Mr Barton appeals his sentence of home detention.

The appeal

[7]      Mr Barton appeared before me on his own behalf.  The essence of his appeal, which he prepared without the benefit of legal advice, is that the decision of the probation services to prevent him from working in his property consultancy business has rendered his sentence disproportionately severe because he will no longer be able to service his mortgage.

[8]      Mr  Barton  does  not  argue  that  Judge  Glubb’s  sentence  was  manifestly excessive.  Indeed, he acknowledges that it was the right sentence at the time.  His case is that the decision of the Probation Service has made the sentence manifestly unjust.  He asks me to quash it and replace it with one of community detention.

Discussion

[9]      Section 80C of the Sentencing Act 2002 provides that an offender who is serving a sentence of home detention is subject to detention conditions comprising:

(a)       the standard home detention conditions set out in s 80(C)(2); and

(b)      any special condition that may be imposed by the Court under s 80D. [10]     The further conditions set out in s 80D may be imposed where there is a

significant risk of further offending by the offender; the standard conditions would not  adequately  reduce  the  risk;  and  the  imposition  of  special  conditions  would

reduce the likelihood of further offending.5

5      Section 80D(2).

[11]     The scheme of the Sentencing Act 2002 is clear.  When the Court sentences an offender to home detention, the standard conditions apply automatically.   The Court cannot remove those conditions.  It can only add to them where there is a risk of reoffending that cannot adequately be addressed by the standard conditions.

[12]     So, there is a fundamental jurisdictional bar to Mr Barton’s appeal.   It is a standard condition that an offender must not engage in any occupation in which a probation officer has directed the offender not to engage.6   It is not the District Court that has imposed the condition that Mr Barton cannot work in his chosen field: it is the probation officer.   It is the probation officer who has the power to direct that Mr Barton cannot engage in any particular employment or occupation.

[13]     This Court has no jurisdiction on a sentence appeal to revisit the probation officer’s  requirement  that  Mr  Barton  not  engage  in  his  property  consultancy business.   It has no appellate jurisdiction in respect of a decision of a probation officer made in accordance with sentencing conditions that the Court must impose. The Court of Appeal has made this very clear in Mitchell v R.7   So, I cannot accept, for the purposes of s 8(h) of the Sentencing Act, that the sentence of home detention fails to adequately take into account any particular circumstances of Mr Barton that mean  that  a sentence  of home detention  which  would  otherwise be  appropriate would, in the particular instance, be disproportionately severe on the grounds that Mr Barton puts forward.8

[14]     I can only allow an appeal against sentence if I am satisfied there has been an error in the sentence imposed for any reason and that a different sentence should be imposed.9    Mr  Barton’s  sentence  will  only  be  manifestly  excessive  if  it  is

substantially or significantly more severe than it ought to have been having regard to

6      Section 80C(2)(e).

7      Mitchell v R [2014] NZCA 362. In that case the Court of Appeal refused an appeal by the appellant of a sentence of community detention in circumstances where the probation officer, pursuant to the conditions of the appellant’s sentence, required the appellant to submit to electronic monitoring. The appellant tried to appeal his sentence on the basis that the bracelet he

was required to wear for monitoring purposes was causing him discomfort and swelling.

8      Mr Barton puts forward as an additional ground of disproportionate severity that he is an important adviser to a Treaty Settlement claimant. Home detention would make it impossible for him to fulfil his role. But that is not a valid ground. The home detention restrictions are supposed to curtail freedoms.

9      Sentencing Act 2002, s 250.

the seriousness of the offending and the culpability of the offender.10    Neither the Crown nor Mr Barton take issue with the end sentence arrived at by Judge Glubb.  I am satisfied that the end sentence is within range.11

[15]     Mr Barton is really seeking to have his sentence of home detention cancelled and substituted with a sentence of community detention on the ground that he is unable to  comply with  his  detention  conditions because of his  need  to  pay his mortgage.  Section 80F(4)(d) of the Sentencing Act 2002 allows Mr Barton to apply to the District Court for an order to that effect.   But Mr Barton must follow the specific process set out in that section.  An application under s 80F(4)(d) must be

made to the sentencing Court.12   Whether the sentence of home detention should be

replaced with a sentence of community detention on the grounds put forward by Mr Barton is entirely a matter for the District Court, at least in the first instance, and not for this Court on appeal.

[16]     The appeal against sentence is dismissed.

[17]     The sentence of home detention shall resume at 4:00 pm on 30 October 2015. Pursuant  to  s 80MA of  the  Sentencing Act  2002  the  Registrar  must  notify  the

controlling officer and Mr Barton of that date and time.

Brewer J

10     Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [33] and [35].

11     Peterson v Police HC Hamilton CRI 2009-419-001, 20 February 2009; Te Puia v Police HC Palmerston North CRI 2011-454-004, 22 March 2011.

12     Case v R [2010] NZCA 518 at [11]; Moon v Commissioner of Inland Revenue HC Auckland

CRI 2011-404-205, 8 August 2011 at [9].