Barwell v Police - [2019] NZHC 2071

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI 2019-409-0086

[2019] NZHC 2071

BETWEEN
KANE JAMES BARWELL

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 22 August 2019

Appearances:

C Eason for the Appellant

J Whitcombe for the Respondent

Judgment:

22 August 2019

ORAL JUDGMENT OF JAGOSE J

The judgment was delivered by me on 22 August 2019.

……………………………… Registrar/Deputy Registrar

Counsel/Solicitors:
C Eason, Barrister, Christchurch Raymond Donnelly & Co

BARWELL v NEW ZEALAND POLICE [2019] NZHC 2071 [22 August 2019]

[1] Kane Barwell appeals his sentence of two years and nine months’ imprisonment, imposed by Judge A D Garland in the District Court at Christchurch on 4 June 2019.1 The sentence related to four discrete driving offences in January and February 2019, all for recidivist driving while disqualified,2 and associated offending.3 He appeals the sentence as in arithmetical error, manifestly excessive, and inappropriately custodial.

Background

[2] Mr Barwell was disqualified from driving for twelve months from 16 April 2018. He was stopped by police while driving early in the morning of 20 January 2019. Two days later – early in the morning of 22 January 2019, driving a car nearly a year out of warrant – he drove away from police signalling him to stop. He drove through a red light, at speeds seriously exceeding the 50 km/h limit, on the wrong side of the road towards oncoming traffic, and with the car’s lights off. The police abandoned pursuit, later stopping his car by laying spikes in his path. A week later, late morning on 29 January 2019, Mr Barwell was again stopped by police. After appearing in Court on 21 February 2019, and being granted bail with a condition not to drive, he was yet again stopped in the late afternoon.

[3] Judge Garland identified Mr Barwell’s extreme and escalating recidivism, presenting serious risk of harm to the public, in what would be his fourteenth conviction for driving while disqualified, among nearly 60 convictions since 2011. The Judge took the 22 January 2019 offending as the lead charge, imposing the maximum two-year term of imprisonment. He uplifted that by six months, to reflect the totality of the driving while disqualified charges. He applied a further twelve months to reflect Mr Barwell’s aggravating history, his thirteen prior driving while disqualified convictions including 18 months’ imprisonment on 23 August 2017. He applied a ten-month discount for Mr Barwell’s guilty pleas, and sentenced Mr Barwell to two years and nine months’ imprisonment.

1      Police v Barwell [2019] NZDC 10732.
2      Land Transport Act 1998, s 32(1)(a) and (4): maximum two years’ imprisonment.
3      Operation of vehicle on a road without displaying current evidence of vehicle inspection (Land Transport Act 1998, s 34(1)(b): maximum $2,000 fine); dangerous driving (Land Transport Act 1998, s 35(1)(b): maximum three months’ imprisonment); failure to stop when required by enforcement officer (Land Transport Act 1998, s 52A(1)(a)(ii): maximum $10,000 fine).

Issues on appeal

[4] Mr Barwell’s counsel, Colin Eason,…

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 Barwell v Police

Details

AGLC: Barwell v Police [2019] NZHC 2071
Case: [2019] NZHC 2071
Decision Date: 22 August 2019

CaseChat Overview and Summary

Kane Barwell appeals his sentence of two years and nine months’ imprisonment imposed by the District Court for four driving offences committed while he was disqualified from driving. The High Court must determine whether the appeal should be allowed, focusing on whether the sentence is mathematically correct, manifestly excessive, and appropriately custodial. The appeal hinges on whether the Judge's calculations resulted in an arithmetical error and whether the sentence was manifestly excessive or disproportionate.

The court first corrects the arithmetical error in the sentence, reducing it from two years and nine months to two years and eight months. The court then considers whether the Judge failed to properly consider a non-custodial sentence. The court finds that the Judge did consider a non-custodial sentence but found it inappropriate due to Barwell’s history of non-compliance with conditions. The court also examines whether the Judge’s uplift of the sentence for Barwell’s history of driving while disqualified was permissible. The court holds that the Judge’s approach was orthodox and that the uplift was not disproportionate, resulting in a sentence that was not manifestly excessive.

The court dismisses the appeal but corrects the sentence to two years and eight months’ imprisonment.

Orders