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…

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 The Queen

Details

AGLC: Barton v The Queen [2015] NZHC 2643
Case: [2015] NZHC 2643
Decision Date: 28 October 2015

CaseChat Overview and Summary

In Barton v The Queen, the appellant, David Barton, appealed his sentence of home detention imposed by Judge Glubb in the Waitakere District Court. Barton was sentenced to three months and two weeks of home detention for two charges of driving while disqualified and 120 hours of community work for two charges of breaching the conditions of home detention. The appeal arose from a direction by the Department of Corrections prohibiting Barton from engaging in employment as a financial advisor, including roles such as mortgage brokerage and property consultancy. Barton argued that this prohibition rendered his sentence disproportionately severe, as it prevented him from servicing his mortgage. The High Court considered whether the prohibition was a valid condition of his sentence and whether the sentence was manifestly unjust.

The court examined the relevant provisions of the Sentencing Act 2002, which set out the standard conditions for home detention and the circumstances under which special conditions may be imposed. The court noted that the prohibition on certain employment was a standard condition of home detention, imposed by the probation officer rather than the court. The High Court held that it lacked jurisdiction to review the probation officer’s decision on appeal and that Barton's sentence did not fail to adequately take into account his circumstances. The court further explained that Barton could apply to the sentencing court for a substitution of his sentence of home detention for community detention, but this was not an issue for the High Court to decide on appeal.

The appeal was dismissed, and the sentence of home detention was ordered to resume on 30 October 2015. The court made it clear that Barton's recourse lay in applying to the District Court for a substitution of his sentence, following the specific process outlined in the Sentencing Act 2002. The High Court did not find the sentence to be manifestly excessive and affirmed the original sentence imposed by Judge Glubb.

Orders