BARTLETT v POLICE [2016] NZHC 746

BARTLETT v POLICE [2016] NZHC 746 [18 April 2016]IN THE HIGH COURT OF NEW ZEALANDROTORUA REGISTRYCRI-2016-470-000002[2016] NZHC 746BETWEEN AARON JAMES BARTLETTAppellantAND NEW ZEALAND POLICERespondentHearing: 18 April 2016Counsel: D Hall for AppellantN Tahana for RespondentJudgment: 18 April 2016JUDGMENT OF ASHER JSolicitors/Counsel:D Hall, Rotorua.Gordon Pilditch, Rotorua.Introduction[1] On 30 October 2015, Judge A J S Snell sentenced the appellant Aaron Bartlettto a total sentence of 30 months' imprisonment.1 He appeals that sentence as beingmanifestly excessive.[2] Mr Bartlett faced a number of charges:(a) Burglary (x 2);(b) Dishonestly taking a motor vehicle;(c) Dishonestly and without claim of right using a credit card (x 3);(d) Unlawful possession of a weapon (x 2);(e) Breach of release conditions (x 2);(f) Giving false details to a law enforcement officer (x 4);(g) Driving whilst forbidden (x 2); and(h) Possession of a Class C drug (cannabis).[3] The major charges were the two burglaries. On Friday, 29 May 2015 whenMr Bartlett was in Wellington he entered a residential address. The victim at thataddress was a 66 year old male who was not known to Mr Bartlett. It seems thatwhen Mr Bartlett entered the house he hid in a room because the victim was present.When the victim left he filled a suitcase and bag belonging to the victim with alcoholand electronic items, and also took a wallet containing a large amount of cash andmultiple bank cards. He then used the bank cards to obtain cigarettes and otheritems on three separate occasions which make up the three dishonestly taking andusing a document charges.1 Police v Bartlett [2015] NZDC 21847.[4] At a time between 30 and 31 August 2015 at Paihia he entered a property andtook a Mazda Lantis motor vehicle. He also located property in the basement wherethe vehicle was garaged, including golf clubs, tool kits, alcohol and electricalappliances. He put these in the vehicle and drove off.[5] When he was stopped from driving the vehicle by the Police he gave falsedetails about his identity. He had in fact been forbidden to drive a motor vehicleuntil he obtained a driver's licence, and he had none.[6] In relation to the weapons charges, when he attended the Probation Servicehe was searched. Cannabis and an 18 centimetre long folding pocket knife werefound in his possession. Thus he has been found guilty of possession of cannabis,and also possession of an offensive weapon that he took to the Probation Service.[7] He has breached parole and been sentenced for contravening court orders,protections orders and for common assault.The decision[8] To fix a starting point the Judge divided the offences into three broad groups.The burglaries were the lead offences. In respect of the daytime burglary inWellington, Judge Snell adopted a starting point of 18 months' imprisonment. Heuplifted this by six months to 24 months to take into account the totality of the otheroffences in the dishonesty group of offending.[9] The second group of charges, which included breach of parole, involvedoffending of less culpability and the Judge adopted a starting point of two and a halfmonths' imprisonment.[10] In relation to the final group of charges, which included possession ofoffensive weapons, he adopted a starting point of five months' imprisonment.[11] Because Mr Bartlett has a number of previous convictions for dishonesty, andbecause some of the offending was committed while the appellant was still on parolefrom earlier offending, there was an uplift of a further six months' imprisonment to a total of 30 months' imprisonment.[12] There had been no personal mitigating circumstances. The guilty pleashaving been entered at an early stage, there was a general discount of 20 per cent.This reduced the end sentence on the lead charges to 24 months' imprisonment. Tosummarise, the Judge had fixed a starting point of 24 months, uplifted for theaggravating feature of a past record of dishonesty offences by six months to 30months' imprisonment. Applying a discount of 20 per cent, the 30 months on thelead offences became 24 months' imprisonment. The end sentence was 24 months'imprisonment.[13] The Judge accepted that the burglaries had an opportunistic flavour, and butfor that he would have imposed a longer sentence of two and a half years'imprisonment. The Judge commented that this was "drug fuelled" offending.[14] Mr Bartlett in lodging his appeal claims that the sentence was manifestlyexcessive. He claims that there was no communication of his request to makereparation and also for a restorative justice process. His letter that expressed remorsewas not taken into account. He also claimed that his mental health difficulties anddrug addiction problems were not properly before the Court. The reparationsentence was substantially higher than the actual value of the items.[15] Mr Hall appeared for Mr Bartlett today. He was not able to advance mattersbeyond that which was in the grounds of appeal. In particular he noted that theappeal had been previously adjourned because Mr Bartlett was seeking a report onhis mental state to show that he was unable to handle the institutional vicissitudes ofprison life. This was confirmed in a minute of Brewer J on 15 March 2016.However, no report has been made available and Mr Hall as counsel has received nofurther instructions.Discussion[16] It seems to me that the Judge's approach to sentencing was entirelyappropriate. While the burglaries may have been opportunistic, they had severeconsequences for the victims. As a victim impact statement shows, the effect of a burglary on a person's home can have the same consequences as a serious assault. There is a great sense of loss and disempowerment on the part of the victims and it takes a very long time to recover from such an event.[17] The probation report relating to Mr Bartlett shows a singular lack ofappreciation on his part for the damage he has caused. He seems to be fixated withhis own problems. He undoubtedly has his own problems and it is undoubtedly hiswish that he could break his methamphetamine habit. However, this is not a basisfor any particular discount. There is no hard evidence before the Court supportingthe suggestion that Mr Bartlett is in any particular was disadvantaged by being inprison because of his mental state. His offer of reparation and expressions ofremorse carry little weight when they are not accompanied by proven actions.[18] It is my conclusion that the sentence imposed upon Mr Bartlett was the resultof a careful and valid process of reasoning by the Judge and well within the range.Indeed it could be thought that a combination of such a list of offences, andinvolving as they did two serious crimes, and the lack of mitigating factors, couldhave resulted in a higher sentence.[19] It is to be greatly hoped that Mr Bartlett will change. His future is grim if hedoes not. However, as things stand at the moment the community needs to beprotected from him, and he and other prospective offenders must be deterred. Thesentence imposed upon him was entirely within the range.Result[20] The appeal is dismissed...Asher J