BARNEY v NEW ZEALAND POLICE [2021] NZHC 1471

BARNEY v NEW ZEALAND POLICE [2021] NZHC 1471 [21 June 2021]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2021-404-173[2021] NZHC 1471BETWEEN SHAUN KAMIRA BARNEYAppellantAND NEW ZEALAND POLICERespondentHearing: 21 June 2021Appearances: HCW Redwood for the appellantT S Jenkin for the respondentJudgment: 21 June 2021ORAL JUDGMENT OF JAGOSE JCounsel/Solicitors:HCW Redwood, Barrister, AucklandMeredith Connell, Crown Solicitor, Auckland[1] Shaun Kamira Barney appeals his sentence of 27 months' imprisonment,imposed by Judge B A Gibson in the District Court at Auckland on 18 March 2021,1on his guilty pleas to a raft of minor to moderately serious offending in Auckland'sinner-city suburbs from June to August 2020.2Judgment under appeal[2] The Judge took Mr Barney's early morning burglary of a Grey Lynn residence— obtaining keys, a bank card and woodworking equipment — as the lead offending.3Taking an initial starting point of 20 months' imprisonment, he uplifted that by sevenmonths for the other offending (which included unlawful taking of a motor vehicle,and some minor dishonesty, driving, drugs and weapon offending); three months forhis previous offending; and three months for offending while on bail and undersentence. From that 33-month starting point, the Judge applied a 20 per cent discountfor Mr Barney's guilty pleas. The end sentence was of 27 months' imprisonment (plussix months' disqualification for unlawfully taking a motor vehicle).4[3] For Mr Barney, Harry Redwood argues the Judge erred by taking too high astarting point, and failing to provide any discount for Mr Barney's personal mitigatingfactors. In supplementary submissions, he calculates the Judge's end-pointunjustifiably is 2.2 per cent above his comprehended starting point.1 Police v Barney [2021] NZDC 4961.2 Burglary (Crimes Act 1961, s 231(1)(a): maximum penalty, ten years' imprisonment); receiving(under $500) (ss 246 and 247: maximum penalty, three months' imprisonment); using a documentfor pecuniary advantage (x 3) (s 228(1)(b): maximum penalty, seven years' imprisonment);possession of methamphetamine (Misuse of Drugs Act 1975, s 7(1)(a) and (2): maximum penalty,six months' imprisonment or a $1,000 fine); possession of utensils (s 13(1)(a) and (3): maximumpenalty, one year's imprisonment or a $500 fine); possession of a knife in a public place (SummaryOffences Act 1981, s 13A: maximum penalty, three months' imprisonment or a $2,000 fine); wilfuldamage (s 11(1): maximum penalty, three months' imprisonment or a $2,000 fine); unlawfullytaking a motor vehicle (Crimes Act, s 226(1): maximum penalty, seven years' imprisonment); andfailing to comply with a prohibition as an unlicensed driver (Land Transport Act 1998, s 52(1)(c):maximum penalty, $10,000 fine).3 Police v Barney, above n 1, at [1].4 At [6].Approach on appeal[4] I must allow the appeal only if satisfied both there is error in the sentence, anda different sentence should be imposed.5 In any other case, I must dismiss the appeal.6[5] The approach previously taken by courts on sentencing appeals continues toapply;7 the measure of error is the sentence be "manifestly excessive". This principleis "well-engrained" in this Court's approach to sentencing appeals.8 I will notintervene where the sentence is within a range properly justified by acceptedsentencing principle. Whether 'manifestly excessive' is to be assessed in terms of thesentence given, rather than the process by which it is reached.9Discussion[6] Sentencing is a two-step process: first, to establish a starting point for theoffending, identifying the offending's aggravating and mitigating features; then to takeinto account all aggravating and mitigating factors personal to the offender, togetherwith a discount for guilty pleas, all calculated as a percentage of the starting point.10[7] The Judge's undifferentiated uplifts and discounts have led to some confusion.Analytically, the Judge is to be taken to have established a 27-month starting point, fora subsequent total six-month (or 22 per cent of the starting point) uplift and 20 per cent(or marginally less than five months and two weeks') discount. Rounding inMr Barney's favour, that results in a 27-month end sentence, as the Judge determined.[8] Mr Redwood takes "no issue" with the Judge's initial 20-month starting point.He says the seven-month uplift is "stern, if not excessive". But he comprehends thethree-month uplift for offending while on bail and subject to sentence means"[e]ffectively, a 10 month uplift has been applied to reflect these charges". Thus hecomplains the Judge's 30-month starting point is manifestly excessive.5 Criminal Procedure Act 2011, s 250(2).6 Section 250(3).7 Tutakangahau v R [2014] NZCA 279 at [26]–[27].8 At [33] and [35].9 Ripia v R [2011] NZCA 101.10 Moses v R [2020] NZCA 296 at [46]–[47].[9] Uplifts for previous offending, and offending on bail and while subject tosentence, are uplifts relating to the offender's personal circumstances, rather thanbeing factors aggravating the offending itself.11[10] Mr Redwood rightly takes "no issue" with the Judge's three-month uplift forprevious offending. That leaves the three-month uplift for offending while on bail andfor sentence. But, given Mr Redwood's approach, his submission is the Judge'sstarting point should have been at 26 months, incorporating a six-month uplift on theJudge's 20-month starting point "to reflect the other offences on a totality basis, andto reflect the offending while on bail" (and presumably while subject to sentence).[11] To separate them out, the Judge's seven-month uplift for totality clearly wasavailable to him. Nine to sixteen-month starting points have been taken for unlawfullytaking motor vehicles;12 a nine-month uplift has been taken for dishonest use of adocument on a burglary lead charge.13 The Court of Appeal has said "no issue [could]be taken" with a starting point of two years' imprisonment for a burglary, adjustedupwards to three years' imprisonment to reflect the totality of offending (there, anotherburglary).14 Here — where burglary is of a residential property, a distinct aggravatingfactor in relation to the offending itself15 — even a 30-month starting point could beseen as generous.[12] Offending while on bail or subject to a sentence is a discrete head of personalaggravation, which a sentencing judge must take into account.16 A three-month upliftis solidly within range,17 and could well have been higher.1811 Previous convictions are regarded as an indicator of the offender's character, going to his or herculpability: R v Power [1973] 2 NZLR 617 (CA) at 618. And offending while on bail, parole orsubject to sentence is seen as a reflection of the offender's disregard for court processes: Clunie vR [2013] NZCA 110 at [22].12 Wood v Police [2018] NZHC 1629 at [9] and [30]; O'Sullivan v Police [2015] NZHC 2032 at [3]–[5]; Edwards v Police HC Auckland CRI-2010-404-103, 11 May 2010 at [4]; and O'Rourke vPolice [2016] NZHC 273.13 Thomas v Police [2016] NZHC 2739 at [15].14 Jones v R [2012] NZCA 273 at [15].15 Sentencing Act 2002, s 9(1)(b).16 Section 9(1)(c).17 Pearson v R [2020] NZCA 573 at [17] and [31].18 R v Vailea [2010] NZCA 67 at [7] and [12].[13] I therefore turn to if the Judge should have given additional discounts forMr Barney's personal mitigating factors.[14] The Judge noted Mr Barney's lack of family support in New Zealand, hismethamphetamine problems and his wish "to try and turn [his] life around".19 I takethe last to reflect Mr Barney's expression of remorse, apparently made to the Judge(but of which no record is on the Court file). The Judge noted Mr Barney nonethelesspreviously had offended in Australia where he had family support. Corrections' pre-sentence report records his 93 convictions there, for deportation to New Zealand afterserving a sentence for violent offending.[15] There was no evidence Mr Barney's drug problem was in any way causativeof his offending,20 although Corrections' pre-sentence report also advised he wasaffected by his drug-taking and willing to engage in treatment for it. The Judge mayalso have had evidence of Mr Barney's pre-sentencing attendance at rehabilitationprogrammes and a rehabilitation centre's preparedness to accept him in its residentialprogramme. As against that there also was evidence of Mr Barney's earlier failure tomaintain such attendances, and his exclusion from the prison general muster ongrounds of violence.[16] The Judge acknowledged he should "give [Mr Barney] credit where [he]can",21 and considered his discount for guilty pleas was "generous".22 Given his trainof narrative, I infer the Judge considered all available credit was contained in that20 per cent discount.[17] Subject to consideration of all relevant circumstances identifying the truemitigatory extent of a guilty plea, a discount of up to 25 per cent is available.23Mr Redwood says the full 25 per cent discount should have been given for the guiltypleas alone, and "at least" a 30 per cent discount overall.19 Police v Barney, above n 1, at [5].20 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 658 at [147].21 Police v Barney, above n 1, at [6].22 At [7].23 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [74]–[75].[18] The bulk of Mr Barney's guilty pleas came in late November 2020, after beingcharged in July and August 2020. There is no sufficient explanation of that passage oftime, particularly as they include a second appearance. The prosecution cases werestrong, Mr Barney's conduct in the lead offending being captured on CCTV, and hebeing caught red-handed in possession of the knife and stolen card, and literally fromblood stains leading to a wilful damage charge.[19] Overall, the mitigatory extent of Mr Barney's guilty pleas only is moderate. A10 to 15 per cent discount would have been justified. A five to ten per cent discountwould have been available for his personal mitigating circumstances, which are muted(while worthy of some discount to reflect his rehabilitative steps, includingpreparedness to attend a restorative justice meeting). That aggregate 15 to 25 per centrange well accommodates the Judge's 20 per cent discount, even while disregardinghis rounding of a generous starting point further in Mr Barney's favour.[20] The Judge did not err. His end sentence is not manifestly excessive.Result[21] The appeal is dismissed.—Jagose J