TASHINA GINETTE BARRINGTON (nee NORRIS) AND NEW ZEALAND POLICE
[2024] NZHC 3211
•31 October 2024
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE
CRI-2024-419-000046
[2024] NZHC 3211
BETWEEN TASHINA GINETTE BARRINGTON (nee NORRIS)
AppellantAND
NEW ZEALAND POLICE
Respondent
Hearing: 10 October 2024 Appearances:
E J Saunders for Appellant A J Ewing for Respondent
Judgment:
31 October 2024
JUDGMENT OF VAN BOHEMEN J
[application for extension of time to appeal conviction and sentence]
This judgment was delivered by me on 31 October 2024 at 3 pm pursuant to r 11.5 of the High Court Rules 2016.
Registrar/Deputy Registrar
……………………………..
Counsel/Solicitors:
Mark Jepson Law, Hamilton Crown Law, Wellington
BARRINGTON (nee NORRIS) v POLICE [2024] NZHC 3211 [31 October 2024]
[1] On 22 February 2002, Tashina Barrington (née Norris) was convicted on her guilty plea to one charge of arson1 and sentenced to 15 months’ imprisonment.2
[2] Ms Norris seeks leave to appeal her conviction and sentence out of time. She says she should have received a discharge without conviction but that her counsel did not inform her of that possibility and that this amounted to a miscarriage of justice. She also says the sentence was disproportionate and did not take sufficiently into account her limited role in the offending.
Relevant background
[3]In August 2001, Ms Norris was 16 years’ old.
Police summary of facts
[4] The police summary of facts, which was the basis on which Ms Norris entered her guilty plea, records that, on 10 August 2001, Ms Norris, together with three co- defendants, set fire to the gymnasium at Fraser High School in Hamilton. The gymnasium had been undergoing extensive construction works and was nearing completion.
[5] According to the summary of facts, on the evening of 10 August 2001, Ms Norris and two of her co-defendants were at Ms Norris’s address in Hamilton. They discussed setting fire to the gymnasium and agreed to carry out that plan. They left the address and met up with the third co-defendant who had been buying drinks at a service station. They discussed the plan with that person, had a drink at his house and, at approximately 11:30 pm, the group walked to Fraser High School. En route, they collected pamphlets from letterboxes and one of Ms Norris’s co-defendants took a phonebook from a phonebooth.
[6] The group entered the school grounds and, after checking there was no security present, they entered the gymnasium and arranged the pamphlet and other debris on the wooden floor. The group then placed a sheet of plywood on top of the papers and
1 Crimes Act 1961, s 294 (as at 10 August 2001). Maximum penalty 14 years’ imprisonment.
2 R v Norris DC Hamilton T020509, 22 February 2002 [Sentencing notes].
set it alight. Ms Norris had a plastic lighter that was thrown onto the fire, exploding and accelerating the burn of the fire.
[7] The group left the building. Two of Ms Norris’s co-defendants returned several minutes later and added further material to the fire. The group then walked away from the school grounds.
[8] The fire was discovered by a police patrol at approximately 11.45 pm. Despite the efforts of 60 fire fighters, the fire severely damaged the building. Initial estimates of replacement of the building ranged between $3 and $5 million.
[9] When Ms Norris was questioned by police, she admitted to her involvement. She could offer no explanation for her actions other than not wanting to be the one who “wimped out” of setting fire to the gymnasium.
Sentencing of co-defendants
[10] On 28 November 2002, Ms Norris’s three co-defendants were sentenced to 15 months’ imprisonment with leave to apply for home detention. All co-defendants were taken into custody but subsequently applied for and were granted home detention in lieu of imprisonment.
Sentencing of Ms Norris
[11] On Friday, 22 February 2002, Judge D C Clark sentenced Ms Norris to 15 months’ imprisonment with leave to apply for home detention.3
[12] The Judge said one of the main considerations in setting the sentence was the principle of deterrence and the need to stop Ms Norris and other young people from behaving in a similar way. The Judge also said the purpose of sentencing was to make Ms Norris think and act responsibly in the future, and to recognise what she had done.4
3 Sentencing notes, above n 1.
4 At 4.
[13] The Judge noted the great damage caused by the fire, the financial cost to the school which ran into the millions, the emotional upset caused to staff and students, the disruption to learning and the feelings by many of betrayal and of being let down.5
[14] The Judge said the sentence involved a balancing exercise between imposing a sentence that reflected the views of the community but also considered Ms Norris’s situation and also took into consideration the nature and gravity of the offence. The Judge accepted that Ms Norris probably did not appreciate the scale of what took place, but Ms Norris did know what she was doing and did know what was going to happen.6
[15] The Judge said she had regard to Ms Norris’s personal circumstances and noted the reports before the Court, including a psychological assessment, which outlined some factors, and a counsellor’s report. The Judge noted that it had been said that Ms Norris had a low level of maturity less than her chronological age and that, for that and other reasons, Mr Ewen, Ms Norris’s counsel, had said Ms Norris should be dealt with differently than the other co-defendants. The Judge noted that Ms Norris had had no difficulties at school and that Ms Norris was remorseful and had apologised publicly to the school, which the Judge accepted would not have been easy.7
[16] The Judge recorded that Mr Ewen had accepted on Ms Norris’s behalf that a sentence of 15 months’ imprisonment ought to be imposed but had submitted that, because of features regarding Ms Norris’s background and personal circumstances and her role in the incident, Ms Norris should be dealt with differently. The Judge noted that differing roles had been discussed and that Mr Ewen placed Ms Norris at a lower level of culpability. However, the Judge noted that the Judge who had sentenced the other three co-defendants had decided they should be dealt with in the same way.8
[17] The Judge accepted that the other female involved was probably the ringleader and that there were probably distinctions in roles after that. However, the Judge noted that Ms Norris had been involved in the planning and that, although she may well have turned her back as the fire was about to be lit, she had stayed very close by and had
5 At 4–5.
6 At 5.
7 At 5–6.
8 At 7.
not left the vicinity of the school. Notwithstanding Mr Ewen’s submission that there were steps Ms Norris could have taken but had not because of her immaturity, the Judge said her view was that there was no reason for allowing a sentence different from that imposed on Ms Norris’s co-defendants.9
[18] The Judge also declined an application to defer the commencement of the sentence and Ms Norris was taken into custody.10 .
Ms Norris released from custody and granted home detention
[19] Mr Ewen immediately filed an appeal against the refusal to defer commencement of the sentence.
[20] On Tuesday, 26 February 2002, Ms Norris’s appeal against deferral of commencement was granted and Ms Norris was released from custody.11 In allowing the appeal, Salmon J said he had concluded there were special reasons for ordering the deferral of commencement of the sentence. The first was that Ms Norris was at high risk if withdrawn from her family environment. The second was that, given that the other three co-defendants had been released on home detention, the chances of that not occurring in Ms Norris’s case seemed quite remote.12
[21] Ms Norris subsequently applied for and was granted home detention in lieu of imprisonment.
The proposed appeal
[22] Ms Norris’s primary contention is that she should have been discharged without conviction. She explains that her then counsel, the late Doug Ewen KC,13 did not tell her that she could have made an application for discharge. In an affidavit sworn on 21 June 2024, Mr Ewen confirms he did not advise Ms Norris of the possibility of discharge. He said he did not see this as a remotely available option.
9 At 8-9.
10 At 10.
11 Norris v Police HC Hamilton AP.11/01, 26 February 2002 (Judgment of Salmon J).
12 At [12].
13 Mr Ewen KC died on 3 August 2024 after a brief illness.
[23] Ms Norris also considers that her culpability was not properly assessed and that the orthodox approach to sentencing was not followed. She says her culpability in the offending was much lower than that of her co-offenders, by way of her actual involvement and her personal circumstances at the time of the offending.
[24] Ms Norris points to adverse consequences of her conviction and sentence that she says have only become apparent in recent years. She says that, although she is currently in stable full-time employment, because of the requirement to disclose any convictions, she had to apply for many jobs in order to find her current one. She also says the need to obtain a visa every time she travels to Australia to visit family has been a significant burden.
Legal principles
[25] Because Ms Norris’s conviction and sentence predate the Criminal Procedure Act 2011, the application for leave to appeal falls to be dealt under the provisions of the Summary Proceedings Act 1957.14
[26] Under s 115 of that Act, any appeal from the conviction should have been brought within 28 days of the imposition of the sentence. The notice of appeal was filed on 16 May 2024, more than 22 years out of time.
[27] The general principles in relation to an application to extend time for a criminal appeal were stated by the Court of Appeal in R v Knight:15
The touchstone is the interests of justice in the particular case. … The overall interests of justice in a particular case may call for balancing the wider interest of society in the finality of decisions against the interests of the individual applicant in having the conviction reviewed.
[28] In determining where the interests of justice lie, the Court may consider factors including:16
(a)the length of the delay and whether it is adequately explained;
(b)whether there is a compelling reason to extend time to appeal;
14 Criminal Procedure Act 2011, s 397(2).
15 R v Knight [1998] 1 NZLR 583 (CA) at 587.
16 McCarthy v R [2023] NZCA 399 at [12], citing Ellis v R [2019] NZSC 83 at [15].
(c)the need for finality in litigation;
(d)where the liberty of the subject is involved;
(e)prejudice to the Crown in conducting the appeal and any retrial;
(f)the impact of granting leave to appeal on others, including victims; and
(g)the strength of the proposed appeal.
[29] The Court will only entertain an appeal that is many years out of time in exceptional circumstances:17
Applications for leave to appeal out of time involve a balancing test, in which relevant considerations include the wider interests of society in the finality of decisions, the strength of the proposed appeal, whether the liberty of the subject is involved, and the practical utility of any remedies sought. The extent of the impact on others affected and on the administration of justice, and any prejudice to the Crown are also relevant. A long delay can be a major factor weighing against leave, and, where unexplained, can be decisive.
[30] It is well-established that an appeal against sentence will be successful only if the appellant can point to an error, either intrinsic to the Judge’s reasoning, or as a result of materials submitted on the appeal, that is material to the exercise of the lower court’s sentencing discretion.18 Unless there is a material error in the end sentence, the Court will not intervene.19
Submissions
Submissions for Ms Norris
[31] Ms Saunders, counsel for Ms Norris, submits there is significant merit in the appeal. She says it appears that the Judge erred by relying heavily upon parity in coming to her determination of sentence rather than applying the orthodox sentencing methodology. Ms Saunders submits that, had the orthodox approach been followed, it is likely that the Ms Norris’s end sentence would have been less than her co- offenders, given that her culpability was accepted as being lower. She says, had that
17 Butcher v R [2015] NZCA 102 at [7] (footnotes omitted).
18 R v Shipton [2007] 2 NZLR 218 (CA) at [138]; Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30]; Tamihana v R [2015] NZCA 169 at [14]; and Carter v R [2023] NZCA 454 at [17].
19 Tamihana v R, above n 18, at [14], citing Te Aho v R [2013] NZCA 47 at [30].
approach been followed, it is highly likely that Ms Norris’s end sentence would have been less than 12 months’ imprisonment, which would have prevented her ongoing difficulties travelling to Australia as a “behaviour concern non-citizen”.
[32] Ms Saunders also says there is additional material before the Court that demonstrates the Judge erred at sentencing. She points to the greater understanding of youth brain development and how that corresponds to impulsive criminal behaviour, the first mention of a discharge without conviction application to be considered and the affidavits in support that outline the offending and the consequences of the conviction on Ms Norris.
[33] Applying, by analogy, Miller v Police,20 Ms Saunders submits the conviction and sentence have had a disproportionately harsh and delayed impact on Ms Norris’s ability to visit and travel to Australia and to other countries where family members reside. She notes that, at the time of sentencing, home detention was not a stand-alone sentence and, because it is not recorded on her criminal history, she cannot rely on it to avoid being labelled a “behaviour concern non-citizen”, despite only spending one weekend in custody. Accordingly, Ms Saunders submits that a discharge without conviction is the remedy with the most utility.
[34] Ms Saunders explains the reason for the delay in bringing this appeal is that Ms Norris was not put on notice about the consequences of a conviction at the time of her sentencing and was only informed of her right to apply for a discharge without conviction recently. Ms Saunders says the full extent of the consequences only became fully apparent when Ms Norris faced barriers in attempting to travel to Australia.
[35] Ms Saunders submits the facts of this case are specific enough to prevent the floodgates issues with the grant of appeals out of time. She points to Ms Norris’s young age when the offending occurred, culpability in the offending, exemplary conduct since the sentence was imposed and specific hardships on her family travels.
20 Miller v Police [2017] NZHC 1994.
Submissions for the Crown
[36] Ms Ewing, Crown counsel, submits Ms Norris has not explained the reason for the delay in bringing this appeal. She says Ms Norris’s affidavit merely points to the consequences that have crystallised many years later and that it was always predictable that an arson conviction would impact her employment prospects and ability to travel. She points McNeil v Police where Jagose J observed that the fact that a conviction of a 17-year-old was entered at a time where the consequences would not have been as significant or the exact impact of those consequences was ambiguous, was not a compelling or understandable reason for delay.21
[37] Ms Ewing notes appeals periods serve the purpose of ensuring finality in decision making and the orderly administration of justice. She says there are floodgates consequences in routinely permitting belated appeals of this kind, and a convicted person will often have better prospects of showing concrete consequences once those consequences have materialised.
[38] Ms Ewing submits it is far from clear that Ms Norris would have obtained a discharge without conviction had she applied for one in 2002. She says the offending was self-evidently serious, being premeditated arson causing millions of dollars’ worth of damage to the school. However, she recognises Ms Norris had considerable mitigation in her favour — she was just 16 years’ old, did not appear to be the ringleader, pleaded guilty, expressed remorse and apologised to the school. Balancing those factors, Ms Ewing submits Ms Norris’s personal mitigation reduces — but does not entirely extinguish — the seriousness of her offending. She suggests the consequences outlined by Ms Norris are not obviously out of all proportion to her offending and that, despite her conviction, she has been able to find employment and travel with her family.
[39] Ms Ewing accepts that leave has been granted in some cases where similar arguments have been mounted, despite lengthy delay. However, she says that was in cases where the consequences were far more significant, including being career-
21 McNeil v Police [2018] NZHC 1685 at [23].
ending,22 and resulting in separation from children.23 Ms Ewing distinguishes Ms Norris’s consequences from those cases noting Ms Norris has found stable employment and is able to travel provided she first obtains a visa.
[40] As a retrial is not in issue in this case, Ms Ewing accepts prejudice to the Crown does not arise.
Analysis
[41] The issue for the Court is whether it is in the interests of justice to extend time to Ms Norris to bring her appeal, having regard to the considerations identified in Ellis v R.24
The length of and the explanation for the delay
[42]The delay is over 20 years, which is a considerable period.
[43] It is clear from Mr Ewen’s affidavit that Ms Norris was not informed at the time of sentence of the possibility of seeking a discharge without conviction because Mr Ewen did not consider that a realistic possibility. I accept that, in such circumstances, the consequences of conviction would not have been discussed because they would have been regarded as unavoidable.
[44] However, it is apparent that Ms Norris has been aware of the consequences of conviction for some considerable time. In his affidavit sworn on 10 July 2024, Anthony Barrington, whom Ms Norris married in 2011, says he and Ms Norris were not able to travel anywhere for their honeymoon other than New Zealand because of Ms Norris’s conviction. He also says that they first left New Zealand in 2019 and had been unwilling to try earlier because they did not wish to tempt fate and have Ms Norris sent home on arrival.
[45] Given that acknowledgment, it is difficult to give weight to the submission that the full extent of the consequences only became apparent when Ms Norris faced
22 C v New Zealand Police [2021] NZHC 3560.
23 Miller v Police, above n 20.
24 Ellis v R, above n 16, at [15].
barriers in attempting to travel to Australia. Rather, it appears from Ms Norris’s affidavit that, now that she and her husband have decided that they would like to travel more regularly to Australia to see his family, they are finding that Australian immigration procedures that apply to people convicted and sentenced to a term of over 12 months’ imprisonment are a significant challenge and burden.
[46] I am not persuaded, therefore, that there is a satisfactory explanation for the delay in seeking leave to appeal. Ms Norris has known of the challenges that her conviction poses for travel and had put up with them. Understandably, she would now prefer to avoid those challenges but that does not adequately explain the reason for delay. Nor do the difficulties Ms Norris faced when seeking employment adequately explain the reason for delay.
Is there is a compelling reason to extend time?
[47] Ms Saunders says the impact of the conviction has been disproportionately severe, principally because of the difficulties encountered in travel to Australia and because of the challenges Ms Norris has faced when having to disclose her convictions when seeking employment.
[48] I do not consider these reasons to be particularly compelling. I accept that having to comply with the additional procedures required by and the scrutiny exercised by Australian Department of Home Affairs is a major inconvenience. However, as Ms Norris herself has demonstrated, provided sufficient time is allowed and appropriate effort applied, the conviction does not prevent Ms Norris from travelling to Australia. Nor has it prevented her from obtaining employment once she returned to the work force after having children.
[49] In this respect, Ms Norris’s situation is very different from that in Miller v Police, where Ms Millar’s conviction for much more minor offending 37 years earlier, was preventing Ms Miller from obtaining a visa for the United States, where she was formerly resident.25
25 Miller v New Zealand Police [2017] NZHC 2183 at [4].
Need for finality in litigation / impact of granting leave to appeal on others
[50] I consider these considerations weigh strongly against granting leave. Given the seriousness of the offence for which Ms Norris was convicted, it would be a significant development for leave to be granted, particularly when the consequences of conviction are more issues of inconvenience, albeit significant, than actual barriers to travel or employment. To grant leave in such circumstances would be inconsistent with the need for finality in litigation and would be likely to encourage others who now regret the consequences of previous offending to seek to have their convictions reviewed.
Liberty of the subject / prejudice to the Crown
[51] It is common ground that these considerations are not relevant to Ms Norris’s application for leave.
Strength of the appeal
[52] Ms Saunders places the most weight on this consideration, arguing that Judge Clark erred in prioritising parity of sentence with the other co-defendants and deterrence over consideration of Ms Norris’s individual culpability and her personal circumstances.
[53] I do not consider that is what the Judge did. Although the Judge did decide to align Ms Norris’s sentence with that handed down to the other three co-defendants, she did so after considering Ms Norris’s individual circumstances, as discussed in the reports before the Court, and Mr Ewen’s submissions in support of Ms Norris being given a lesser sentence.
[54] The Judge referred to the psychological assessment, which discussed Ms Norris’s family background and life experiences and assessed how those had impacted on Ms Norris. The Judge also referred to the counsellor’s report, which discussed some of those elements in greater detail. While, for understandable reasons, the Judge did not set out any of those matters in her sentencing notes, they were clearly before her. The Judge also accepted there were distinctions among the roles of the
four co-defendants but decided that Ms Norris was personally and substantially culpable, notwithstanding those distinctions.
[55] For these reasons, I do not accept that the case for Ms Norris on appeal, that the sentencing judge made an error vitiating the exercise of her sentencing discretion, is strong.
[56] In addition, even if the Judge had accepted that some distinction should have been made between Ms Norris’s sentence and those of the other three co-defendants, I also consider it would have been highly unlikely that the Judge would have imposed a non-custodial sentence on Ms Norris, given the seriousness of the charge, the extent of the damage caused and Ms Norris’s participation in the planning and preparations for the fire and her presence throughout the fire. I consider it even more unlikely that the Judge would have been prepared to grant Ms Norris a discharge without conviction. The Judge’s refusal to suspend the commencement of the sentence rather confirms that assessment.
[57] In these circumstances, I am not at all surprised at Mr Ewen’s acknowledgement that he did not consider that seeking a discharge without conviction was a realistic possibility. Indeed, I agree with him and do not consider that he made any error in not raising this possibility with Ms Norris. For obvious reasons, Mr Ewen’s focus was on keeping Ms Norris out of custody pending consideration of her application for home detention.
[58] In this respect too, Ms Norris’s case is very different from that in Miller v Police where, as Churchman J held, Ms Miller had been given incorrect legal advice as to the consequences of conviction for her immigration status in the United States and should have been advised that she had the option of seeking a discharge without conviction and should have been given correct advice as to the legal consequences of conviction on her immigration status.26 It was these factors that led Churchman J to conclude that a miscarriage of justice had occurred.27
26 Millar v New Zealand Police, above n 25,at [11]–[12].
27 At [13].
[59] Accordingly, I do not consider that it is strongly arguable that a miscarriage of justice has occurred.
[60] For all these reasons, I do not consider that it is in the interests of justice to extend time to Ms Norris to bring her appeal.
Result
[61] Ms Norris’s application for leave to extend time to bring her appeal is dismissed.
G J van Bohemen J
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