BARBOUR v POLICE [2020] NZHC 2707

BARBOUR v POLICE [2020] NZHC 2707 [15 October 2020]IN THE HIGH COURT OF NEW ZEALANDHAMILTON REGISTRYI TE KŌTI MATUA O AOTEAROAKIRIKIRIROA ROHECRI-2020-419-70[2020] NZHC 2707BETWEEN BRETT ALEXANDER BARBOURAppellantAND NEW ZEALAND POLICERespondentHearing: 15 October 2020Appearances: M Ryan for the AppellantB Harris for the RespondentJudgment: 15 October 2020JUDGMENT OF HINTON JThis judgment was delivered by me on 15 October 2020 at 4:00 pmRegistrar/Deputy RegistrarSolicitors / CounselM Ryan, Barrister AucklandHamilton Legal, Hamilton[1] On 23 July 2020, Judge Cocurullo sitting in the District Court at Hamiltonsentenced Mr Barbour to eighteen months' imprisonment, following Mr Barbour'sguilty pleas to two charges of burglary.1[2] Mr Barbour now appeals against sentence, saying the Judge erred by imposinga short sentence of imprisonment rather than a sentence of home detention, and theimposition of a term of imprisonment was manifestly excessive. No issue is takenwith the length of the term of imprisonment.Background[3] According to the summary of facts on the basis of which Mr Barbour pleadedguilty, on the evening of 26 September 2019 he was driving from Ngahinapouri toRotorua. At about 7.30 pm his journey brought him to Pukeatua, where for a numberof years he had owned a dairy farm that he had sold in June 2018. That, the Judgenoted on the basis of discussions with counsel, was a sale precipitated by Mr Barbour'sseparation from his wife about which Mr Barbour harboured significant resentment.[4] Mr Barbour turned off the road and drove onto the farm, parking outside themilking shed. He then "damaged, stole, and altered a number of important and specificparts of the milking shed". As a consequence of this, the milk collector units wererendered unusable, electrical connections were damaged, feed was emptied into a pitfrom a hopper, collected milk was drained onto the floor, piping was sabotaged, themilk refrigeration unit was sabotaged, colostrum was ruined, and the farm's water boresabotaged. Mr Barbour also stole record books and veterinary medication. The Judgenoted that the record books, which were of enormous practical value to the farmowners, have proved irretrievable.[5] The repairs required to fix the damage caused by Mr Barbour cost about$15,000. Mr Barbour made no opposition to being ordered to pay $7,419.54 inreparation.1 Crimes Act 1961, s 231(1)(a). Maximum penalty ten years' imprisonment.[6] As the Judge put it, the offending was a bizarre and "mean-spirited" expressionby Mr Barbour of his resentment about having to leave the farm. That is putting itmildly.[7] In sentencing Mr Barbour, having first set out the above facts, Judge Cocurullonoted previous convictions, which he described as "somewhat alarming."2 Up to2006, the most serious matter for which Mr Barbour had been convicted was drinkdriving and he had no convictions at all from 2006 - 2016. But from 2016, "thingsunravelled" – Mr Barbour received repeated family violence convictions, includingfor burglary.[8] The Judge opined that Mr Barbour's recent offending is referable to hismethamphetamine addiction, and that before Mr Barbour became addicted tomethamphetamine he was "a good and hardworking farmer".[9] The Judge further noted that when Mr Barbour was sentenced for burglary,wilful damage, and presenting a firearm on 30 January 2019, he was sentenced to sixmonths' home detention. On 29 May 2019, Mr Barbour breached that sentence bycutting off his electronic monitoring bracelet. In June 2019, Mr Barbour wassentenced to four months' imprisonment in respect of that breach. Mr Barbour wasstill, the Judge noted, subject to special release conditions following his release fromthat sentence of imprisonment at the time of the index offending, which the Judgeconsidered to be an aggravating feature of that offending.[10] Having addressed Mr Barbour's recent history of offending, the Judge notedhe had completed a "shortish residential rehab treatment programme" and hadprovided a hair follicle sample for testing which indicated he had not usedmethamphetamine within four months before the sentencing. The Judge had regard toMr Barbour's ongoing work with CAD, reports from counsellors and a forensicpsychiatric report. His employer and others were in Court in support.2 New Zealand Police v Barbour [2020] NZDC 14435.[11] Having regard to this material, the Judge did not accept that a sentence ofcommunity detention or intensive supervision would be sufficiently restrictive.Rather, the Judge adopted a start point of 22 months' imprisonment, uplifted by 22 percent to recognise Mr Barbour's previous convictions and the fact the offending wascommitted while subject to release conditions, before discounting by 38 per cent inrecognition of the role of addiction, other mitigating factors referred to in submissions,and guilty plea. This produced a term of eighteen months' imprisonment.Accordingly, as the Judge noted, he was instead able to impose a sentence of homedetention.3[12] The Judge regarded the question of whether he should instead impose asentence of home detention as involving "a balance between a punitive element ofdenunciation and deterrence as against rehabilitation." The Judge noted "on therehabilitation side", Mr Barbour's engagement with the residential treatmentprogramme and community treatment, the drug test indicating four months' sobriety,and some small indicia of remorse on Mr Barbour's part. "On the deterrence anddenunciation side", the Judge noted that this was serious property offendingcommitted not long after Mr Barbour had completed a sentence of imprisonment andhad been convicted for another burglary. Also, the Judge noted, Mr Barbour had beenimprisoned because of his breach of a sentence of home detention.[13] Weighing these factors, the Judge considered that, "by a clear margin", theappropriate sentence was one of eighteen months' imprisonment rather than a sentenceof home detention.Approach on Appeal[14] This first appeal against sentence is brought pursuant to s 244(1) of theCriminal Procedure Act 2011. The appeal court must allow the appeal if satisfied thatthere is an error in the sentence under appeal and a different sentence should be3 Sentencing Act 2002, s 15A.imposed,4 and, in particular, if satisfied that the sentence imposed was manifestlyexcessive.5 The appeal court must dismiss the appeal in any other case.6[15] It has been said that a substantial margin of appreciation should be afforded tosentencing judges in appeals of this type, where the only question is whether homedetention should have resulted rather than imprisonment, recognising the array ofconsiderations relevant to that determination and the advantages of the first instanceJudge in observing the defendant.7 Where however, as here, the sentencing Judge didnot preside at the offender's trial, there is less reason for such deference.Discussion[16] As noted at the outset, Mr Barbour says Judge Cocurullo erred by imposing ashort sentence of imprisonment rather than home detention. In particular, his counselMr Ryan submits the Judge failed to engage in the analysis required by s 16(2) of theSentencing Act 2002 (the Act) and that the Judge gave insufficient weight to thepurposes of rehabilitation and reintegration in considering whether to impose asentence of home detention.[17] As to Mr Ryan's first point, s 16 provides so far as is presently relevant:16 Sentence of imprisonment(1) When considering the imposition of a sentence of imprisonment forany particular offence, the court must have regard to the desirabilityof keeping offenders in the community as far as that is practicable andconsonant with the safety of the community.(2) The court must not impose a sentence of imprisonment unless it issatisfied that,—(a) a sentence is being imposed for all or any of the purposes insection 7(1)(a) to (c), (e), (f), or (g);8 and(b) those purposes cannot be achieved by a sentence other thanimprisonment; and4 Criminal Procedure Act 2011, s 250(2).5 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30]-[35].6 Criminal Procedure Act 2011, s 250(3).7 Palmer v R [2016] NZCA 541 at [19]; Aupouri v R [2019] NZCA 216 at [18].8 These are the purposes of holding the offender accountable for harm done, promoting a sense ofresponsibility in the offender, providing for victims' interests, denunciation, deterrence, andcommunity protection.(c) no other sentence would be consistent with the application ofthe principles in section 8 to the particular case.[18] As Mr Harris accepts for the respondent, and as emerges clearly from my abovesummary of Judge Cocurollo's sentencing remarks, the Judge did not expresslyconclude that the purposes of deterrence and denunciation, being those identified ins 7(1)(e) and (f), could not be achieved by the imposition of a sentence of homedetention.[19] Ultimately as noted above, the focus on an appeal against sentence is on theend result and not the process by which that conclusion was reached.9 The outcomeon appeal does not turn on whether the Judge did in fact engage in the analysis requiredby s 16(2). Rather, the focus must be on whether the Judge's conclusion was correct.[20] That leads on to Mr Ryan's second submission. Here, Mr Ryan draws onevidence to seek to buttress the Judge's inference that Mr Barbour's offending since2016 is referable to his methamphetamine addiction. Given this aspect of thebackground to Mr Barbour's offending, Mr Ryan submits, the Judge ought to haveemphasised the rehabilitative purposes of sentencing in this case and accepted theinaptness of prioritising deterrence in such a case.10[21] In this connection, Mr Ryan notes that Mr Barbour's rehabilitation will bematerially less well supported if he is imprisoned rather than sentenced to homedetention. In particular, counsel has provided correspondence from The Retreat, aresidential drug rehabilitation and treatment facility in Otahuhu. This is whereMr Barbour completed the residential treatment course referred to by the Judge.Ms Thompson, the chairperson of The Retreat, confirms Mr Barbour achieved well onthe course and they have offered him a place if his sentence is committed to homedetention. The respondent does not object to this material being adduced on appeal,and absent opposition that appears appropriate.9 Kumar v R [2015] NZCA 460 at [81], citing Kahui v R [2013] NZCA 124 at [25].10 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [90] and [150].[22] Generally speaking, I agree with Mr Ryan that it is inappropriate to emphasiseconsiderations of deterrence and denunciation in cases of offending explicable byreference to an offender's substance addiction, which I agree with the Judge is clearlythe case here. This reduces the extent to which it is possible to say here that thoseobjectives cannot be achieved by a sentence other than imprisonment. Also, it is wellrecognised that home detention is a real alternative to imprisonment and carries withit in considerable measure the principles of deterrence and denunciation.11[23] I also agree with Mr Ryan that it is appropriate to give weight to therehabilitation and reintegration of such offenders where they are addressing theaddiction that is the primary cause of their offending. It is clear on the evidence beforethe Judge that Mr Barbour is motivated to address and has taken material steps towardsaddressing his addiction.[24] Moreover, I agree those latter objectives are likely to be better achieved byMr Barbour being kept in the community than imprisoned, especially if he is detainedat a residential treatment facility rather than his sister's address which was the proposalbefore the Judge. This is consistent with the direction in s 16(1) that, so far as doingso is consonant with community safety, it is desirable to keep offenders in thecommunity (which is in any case the import of ss 16(2)(a)-(b)). There are clearpotential benefits to the public, and to Mr Barbour, of home detention, given theapparent likelihood of his addressing his addiction and reducing his risk ofreoffending.12[25] On the other hand, the extent to which an offender is likely to realise thesebenefits depends in material part on the likelihood of their complying with theconditions of the sentence of home detention. This is also of obvious relevance toassessing whether that sentence is consistent with community detention in terms ofs 16(1). Section 17 of the Act recognises that a sentence of imprisonment may berequired, even where another sentence would otherwise be appropriate, where a Courtcannot be reasonably satisfied an offender would comply with that sentence. I agreewith Mr Harris it was clearly relevant for the Judge to have regard to Mr Barbour's11 R v Iosefa [2008] NZCA 453 at [41].12 R v Hill [2008] NZCA 41, [2008] 2 NZLR 381 at [33].previous breach of home detention. This was especially so given Mr Barbour was stillsubject to the release conditions imposed following his release from prison after thatbreach at the time of the index offending. The Judge was correct to say these matters"did not bode well for the imposition of a home detention sentence on this occasion",and that considerations of denunciation and deterrence were more relevant than wouldotherwise have been the case.[26] Equally however, I think it material that, on the available evidence, Mr Barbourwas still in the grip of his methamphetamine addiction at the time of his prior breachof home detention and also at the time of the index offending which is in significantpart explained by reference to that addiction. It appears he is earnest in his subsequentintention and steps to address that addiction. Also, he seeks to serve his homedetention in the pro-social environment provided by a rehabilitation treatmentprogramme, which I accept increases the likelihood of compliance and which is verymaterial to this decision. He also seems to be receiving considerable support fromfamily and other agencies.[27] For the reasons set out above I consider it appropriate to give greater weight toconsiderations of reintegration and rehabilitation and lesser weight to concerns ofdenunciation and deterrence than did the Judge and that the Judge erred in notsubstituting a sentence of home detention. I am also reasonably satisfied Mr Barbourwill comply with the conditions of home detention. This view will prove harder tosustain in future, should Mr Barbour fail to make use of the opportunity provided byhome detention and by this decision.Result[28] The appeal is allowed on the basis that the sentence of eighteen months'imprisonment entered in the District Court should have been substituted with asentence of nine months' home detention and I grant leave to Mr Barbour to makeurgent application to the District Court under s 80I of the Sentencing Act 2002.[29] For the record it is intended that the home detention address be at The Retreat,158 Avenue Road East, Otahahu, subject to the usual conditions. I have consideredthe pre-sentence report which was provided to the sentencing Judge which relates to adifferent address. There is no suitability report as to The Retreat but I am advised TheRetreat and its occupants have previously been found suitable and that they haveprovided the necessary approvals in respect of Mr Barbour. For myself I am satisfiedwith all of the requirements of the Sentencing Act 2002 in this regard. I trust thatCorrections can rely on previous reports or provide a very expedited report in thesecircumstances, so that any remaining requirements of s 26A of the Act can be met. Iwish to see Mr Barbour released as urgently as possible given the length of the prisonsentence he has served already.Hinton J