BARTLETT v NZ POLICE [2016] NZHC 850

BARTLETT v NZ POLICE [2016] NZHC 850 [2 May 2016]ORDER PROHIBITING PUBLICATION OF NAME(S), ADDRESS(ES),OCCUPATION(S) OR IDENTIFYING PARTICULARS OF VICTIMPURSUANT TO S 202 CRIMINAL PROCEDURE ACT 2011.IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYCRI-2016-409-16[2016] NZHC 850BETWEEN NATHAN JOHN BARTLETTAppellantAND NEW ZEALAND POLICERespondentHearing: 27 April 2016Appearances: T Aickin for the AppellantS E Burdes for the RespondentJudgment: 2 May 2016JUDGMENT OF DAVIDSON JIntroduction[1] Mr Nathan Bartlett pleaded guilty to two charges of breaching a protection order1 and one charge of breaching prison release conditions.2 On 19 February 2016 His Honour Judge Couch sentenced him to 11 months imprisonment.3[2] Mr Bartlett appeals against that sentence on the basis that home detention should have been imposed, and the Judge should have allowed further enquiry as to a suitable address for that purpose.1 Domestic Violence Act 1995, ss 19(2)(e), 49(1)(b) and (3).2 Sentencing Act 2002, s 96(1).3 Police v Bartlett [2016] NZDC 2701.Background[3] In February 2015 a final protection order was issued by the Family Court infavour of Mr Bartlett's ex-partner.[4] In July that year Mr Bartlett breached the protection order three times. For that he was sentenced to imprisonment.[5] On 21 September 2015 Mr Bartlett was released from prison. A release condition was imposed not to contact or communicate with his former partner. The recent spate of offending followed soon after.6 October 2015 offending[6] On 6 October Mr Bartlett went to the victim's place of work. He engaged in a discussion, before verbally abusing her. The appellant left when the police were called. Thirty minutes after leaving the premises Mr Bartlett telephoned her and continued to abuse her. This resulted in the first charge of breaching a protection order.19 October offending[7] On 19 October the appellant sent an email to the victim asking her to contact him. This constituted a further breach of the protection order, as well as constituting a breach of release conditions as no consent had been given by the probation officer.Summary of sentencing[8] His Honour Judge Couch took a starting point of 14 months imprisonment. He reduced the sentence by three months for the relatively prompt guilty pleas, giving a total sentence of 11 months imprisonment.[9] His Honour decided against a sentence of home detention, and said:[8] As that is less than two years I must consider whether any less restrictive sentence would be appropriate. In my view it would not. Givenyour history of offending and your continued total disregard for Court orders I am not satisfied that any sentence short of imprisonment would achieve the purposes of sentencing as set out in the Sentencing Act 2002. I repeat again this was your ninth and tenth breach of protection orders within two years.SubmissionsFor the appellant[10] The appellant no longer contends that the prison term imposed is manifestly excessive but Ms Aickin for the appellant submits that the Judge erred in refusing to grant home detention.[11] Associated with that, it is submitted the Judge erred in declining to grant theappellant's application to adjourn sentencing to allow enquiry into the suitability of a proposed home detention address, and in deciding the appellant was unsuitable for a sentence of home detention without inviting submissions from defence counsel addressing his ability to comply with such a sentence.[12] The address first proposed was occupied by people who could not be contacted. There was another address advised to counsel only shortly before sentencing, too late for evaluation. The exploration of a suitable address and thedefendant's ability to comply with conditions would only require consideration if this appeal resulted in home detention being held the correct sentence.[13] The thrust of Ms Aickin's submission was that while the high risk of Mr Bartlett re-offending was properly brought to account, and indeed unarguable, a sentence of home detention has not so far been imposed on him, and therefore tested. She put it that it is an important consideration when addressing rehabilitation, and the least restrictive sentence available. Imprisonment has already been imposed for earlier breaches as set out above.[14] Ms Aickin emphasised that the offending was in the nature of harassment and verbal abuse. The background was explained as the appellant having had no access to his one year old son, and after discussion with Ms Aickin, he recognised the course that he should properly have taken. He spoke with a Family Court lawyerand has begun the process of seeking lawful contact with his son. In short, counsel put it that his conduct, while inexcusable, was the product of his having no contact with his son.[15] She says he has recently, but not always, complied with bail conditions, and is capable of compliance with conditions of home detention. She submitted that home detention would be less restrictive and the appellant would likely be subject to affirmative rehabilitative conditions which would improve his ability to address the underlying issues, which are the cause of this offending.For the respondent[16] Mr Burdes submitted that while the need for rehabilitation and reform is recognised, the need for deterrence and denunciation, and his acknowledgement of the harm he has done are predominant sentencing considerations.[17] He also submitted that the court should work on the information before it and there should be no assumption that the underlying impetus for this offending will be resolved when Family Court proceedings are concluded. The court has no idea of how Mr Bartlett will respond, and to date his response to sentences imposed has been lamentable.[18] Mr Burdes submits that Judge Couch properly considered the option of home detention. He took into account the principles of the Sentencing Act 2002 in determining that a sentence short of imprisonment would not be appropriate.Discussion[19] The Court of Appeal in James v R identified the approach on appeal against refusal to grant home detention:4[17] We record that an appeal against a refusal to grant home detention does not provide an opportunity to revisit or review the merits. The question is whether [the Judge] erred in exercising his sentencing discretion: that is, did he apply an incorrect principle, give insufficient or excessive weight to a4 James v R [2010] NZCA 206, (2010) 24 NZTC 24,271.particular factor, or was he plainly wrong? Ms Guy Kidd for the Crown properly accepts that home detention can satisfy the objectives of deterrence and denunciation, but to a degree. We are satisfied, in accordance with earlier authority in this Court, that the decision about whether home detention will meet those objectives in a particular case is a strictly evaluative exercise. It is a matter of judgment for the sentencing Judge to determine whether home detention is an adequate response to the seriousness of the offending. (footnotes omitted)[20] This approach was approved by the Court of Appeal in Manikpersadh v Rwhen the Court said:5the proper approach of an appellate Court in cases such as this is that "thechoice between home detention and a short sentence of imprisonment is the exercise of a fettered discretion, with appellate review focusing, as in other sentencing appeals to this Court, on the identification of error, if any, in thecourt below".[21] In R v D the Court of Appeal discussed how a sentencing Judge is in a far better position to determine whether the offending qualifies for imprisonment or home detention:6[66] In a case like this, the sentencing Judge is required to form a judgment on whether imprisonment is necessary or home detention can respond adequately to the seriousness of the offending. The closer one gets to the dividing line, the more difficult it becomes to articulate reasons for preferring one approach to the other. In such cases, the view of a sentencing Judge from the jurisdiction in which crimes of the type in issue are frequently tried assumes greater weight. He or she will be in a much better position than an appellate Court to determine which type of offending falls on one side of the line or another.[22] Apposite to the case at hand, the Court of Appeal in R v Nathan considered a Solicitor General appeal against a community based sentence imposed on two counts of contravention of a protection order in breach of the Domestic Violence Act 1995.7The appeal was dismissed, however the Court stated:[25] The Domestic Violence Act 1995 put in place a statutory scheme forthe protection of women. We accept the Crown's submission that repeatedbreaches of protection orders calls for a condign sentencing response. In cases where there have been repeat offending over a brief period of time a short term of imprisonment is the proper response.5 Manikpersadh v R [2011] NZCA 452 at [12].6 R v D [2008] NZCA 254.7 R v Nathan CA209/06, 29 November 2006.[23] There is some merit in Ms Aickin's submission, which has been carefullymade out as the sentences so far have achieved little except a measure of protection for the victim. The question remains whether home detention would be an adequate response to the seriousness of the offending.[24] This case represents a defiant refusal to comply with a protection order. Mr Bartlett's conduct seems to be unrestrained notwithstanding the sentences imposed and served. The two most recent convictions for breach of protection order represent Mr Bartlett's ninth and tenth convictions for this offence. Five earlier convictions resulted from offending committed in 2013. Five more, including the two most recent, were committed in the last year. On 21 September 2015, only 15 days prior to the most recent offending, Mr Bartlett was released from prison to which he had been sent for breaching the same protection order. He wasted no time in reoffending.[25] The pre-sentence report assessed Mr Bartlett as at high risk of re-offending given the short time that elapsed between his release from prison and his most recent offending, and his continual refusal to comply with court orders. An appropriate address was not then able to be found. A recommendation of imprisonment was made.[26] Judge Couch made reference to the principles and purposes of the Sentencing Act 2002. In doing so he appropriately considered Mr Bartlett's complete disregardfor the protection orders. These orders are put in place in order to protect the victim. They must be complied with, or the protection is lost. The Court must be firm in backing up an order when it is breached.[27] The Judge reached his decision with reference to the appropriate facts, and it was a decision which he was entitled to reach. Not only has Mr Bartlett demonstrated a complete inability or unreadiness to comply with protection orders, he has also demonstrated an inability to comply with other kinds of court order.[28] The primary considerations must be deterrence and denunciation while addressing all other sentencing considerations, given the need for protection of thevictim. A firm response is required and the sentence under appeal does that, and to no greater degree than is necessary. The Judge was justified in exercising his discretion to conclude that a sentence of imprisonment was the least restrictive sentence that could be imposed.Disposition[29] The appeal is dismissed.Davidson JSolicitors:T Aickin, Riverlands Chambers (Christchurch)Crown Solicitor's Office, Raymond Donnelly & Co (Christchurch)