BARNETT v NZ POLICE [2022] NZHC 2662

BARNETT v NZ POLICE [2022] NZHC 2662 [17 October 2022]IN THE HIGH COURT OF NEW ZEALANDWHANGAREI REGISTRYI TE KŌTI MATUA O AOTEAROAWHANGĀREI-TERENGA-PARĀOA ROHECRI-2022-488-000055[2022] NZHC 2662BETWEEN SOLOMON BARNETTAppellantAND NZ POLICERespondentHearing: 30 August 2022Appearances: M A Littlefair for the AppellantS-L Litt for the RespondentJudgment: 17 October 2022JUDGMENT OF POWELL JThis judgment was delivered by me on 17 October 2022 at 10 am pursuant toR 11.5 of the High Court RulesRegistrar/Deputy RegistrarDate:Solicitors/Counsel:Rune Law, KaikoheMWIS, Crown Solicitor, Whangarei[1] Solomon Barnett appeals a sentence of two years and six months'imprisonment imposed by Judge D J Orchard1 after Mr Barnett pleaded guilty tocharges of:(a) strangulation;2 and(b) assault with intent to injure (x 2).3[2] The offending relates to two separate incidents in January 2021 and December2021 respectively. Each incident involved a different victim, being Mr Barnett's thenpartner at the time of each incident.[3] Mr Littlefair, on behalf of Mr Barnett, submitted the end sentence imposed wasmanifestly unjust and excessive. He submitted that an end sentence of two years orunder was appropriate and should have resulted in a sentence of home detention.[4] In particular, in comprehensive written submissions Mr Littlefair submittedthat Judge Orchard erred in five main respects:(a) the starting point for first incident was too high;(b) the starting point for the second incident was too high;(c) a larger adjustment for totality would have been "more just";(d) the discounts for guilty pleas, cultural factors, medical and mentalhealth factors were inadequate; and(e) insufficient credit was given for time spent on restrictive electronicallymonitored ("EM") bail.1 Police v Barnett [2022] NZDC 11729.2 Crimes Act 1961, s 189A. Maximum penalty seven years' imprisonment.3 Section 193. Maximum penalty three years' imprisonment.[5] Mr Barnett's appeal against sentence is governed by the Criminal ProcedureAct 2011 ("CPA"). Section 250(2) provides I must allow his appeal if satisfied that,for any reason, there is an error in the sentence imposed and a different sentence shouldbe imposed. In any other case, I must dismiss his appeal.4 It follows that Mr Barnettmust establish that Judge Orchard erred in adopting starting points that were too high,made an incorrect adjustment for totality; failed to give adequate credit for personalmitigating factors and/or failed to give a sufficient credit for time on restrictive EMbail.The offending[6] According to the summary of facts the first incident occurred on 17 January2021 and resulted in the strangulation charge and the first assault charge. Shortly aftermidnight, Mr Barnett and the first victim were in bed. They had previously beenarguing. The victim fell asleep but woke to Mr Barnett looking at messages on herphone. He pinned her down with his legs and confronted her about lying about textingother people. She became distressed and began to cry, making Mr Barnett angry. Heshouted in her face, then began to headbutt her repeatedly. She managed to push himoff, but he trapped her against the wall. He picked her up and threw her across thelounge onto the floor.[7] Mr Barnett then tried to pull her up, but she went limp. He hit her on the sideof the head to wake her up. The victim stated it felt like she was passing out and wasseeing black and colours. Mr Barnett then threw water on the victim and put her in achair, but she fell to the floor. He put his hands around her throat and squeezed. Hestopped, said to her "Do you want me to do this?" and began to push down on herthroat again. She passed out.[8] She came to as Mr Barnett once again tried to put her in a chair. He continuedhitting her face, pushing her and spitting on her. She ended up on the bathroom floorwhere she vomited, and then fell asleep. She woke at some point and they beganarguing again. The next morning, she managed to escape and sought help at theKaikohe Police Station.4 Criminal Procedure Act 2011, s 250(3).[9] The second incident occurred on 2 December 2021. At that time Mr Barnettremained on bail from the first incident. He and the second victim, his new partner,had gone shopping. Mr Barnett refused to sign the COVID tracing paper at the shop,creating a scene with the store security guard. The victim tried to calm the situationby signing the form on his behalf. That infuriated Mr Barnett who became verballyaggressive towards her and accusing her of sleeping with the security guard.[10] When they returned home, she told him she was going to go to hergrandparents' home for the night. That also angered Mr Barnett. He struck her on theright side of her head. She fell to the ground, and he kicked her multiple times whilewearing steel-capped boots. He grabbed her by the hair and dragged her across thegravel. He made her stand up, then struck her in the chest with both hands, causingher to fall backwards and hit a fence. He told her to get in his vehicle. Inside thevehicle he made a phone call then used the phone to strike her face multiple times. Hepushed her head into the seatbelt pillar loop, causing a cut to her left ear.The sentence imposed[11] Judge Orchard took the strangulation charge from the first incident as the leadoffence. She considered a starting point for that offence of three years' imprisonmentwas appropriate, uplifted by two months given the offending took place while MrBarnett was subject to a sentence. The initial starting point was therefore 38 months'imprisonment.[12] Her Honour then set a starting point of 18 months' imprisonment for the secondincident, uplifted by two months given the offending occurred while Mr Barnett wason bail for the first incident. That resulted in a total starting point of four years and 10months' imprisonment for the two incidents. Adjusting for totality, the Judge reducedthat starting point by seven months, resulting in a final starting point of four years andthree months' (51 months total) imprisonment.[13] Judge Orchard considered that a full 25 per cent discount for Mr Barnett's earlyguilty plea in relation to the second incident was appropriate but considered a 10 percent discount generous in relation to the first. To balance those considerations, sheapplied a global 10 per cent discount for guilty pleas but indicated she would discountfurther at the end point to take into account the additional 15 per cent she regarded asappropriate for the early guilty plea for the second incident.[14] The Judge did not allow a discount for remorse. She then acknowledged thes 27 cultural report and the PAC report, and referred to the abuse suffered byMr Barnett when he was a child, his impoverished upbringing, symptoms of post-traumatic stress disorder ("PTSD") as a result of his abuse and his attention-deficit/hyperactivity disorder ("ADHD"). For those factors Judge Orchard allowed adiscount of 20 per cent.[15] That left a global discount of 30 per cent, amounting to 15.3 months but whichthe Judge rounded up to 16 months. She also deducted three months for timeMr Barnett spent on EM bail and a further two months for the guilty plea in respect ofthe second incident. The effective sentence was two years and six months'imprisonment. She attached that sentence to the lead charge of strangulation andattached lesser sentences of 12 months to the two assault charges.Issue 1 – starting point for the first incident[16] In Mr Littlefair's submission Judge Orchard overstated the seriousness of thestrangulation. In particular he contended:(a) the first incident started when the victim lashed out at and scratchedhim.(b) there was no reference in the summary of facts to the first victimsuffering any psychological harm, and Mr Barnett was not given anyopportunity to challenge the contents of the victim impact statementalleging any such harm.(c) Judge Orchard was also wrong to assert:(i) Mr Barnett threw water on the victim to make her more alert.5(ii) The victim was terrorised "throughout the night".6(iii) The victim lost consciousness as a result of the strangulation.7[17] Given this analysis, Mr Littlefair submitted with reference to variousauthorities8 that the correct starting point for the leading charge of strangulation shouldhave been between two years' imprisonment and two years and six months'imprisonment. He suggested that a starting point of two years and three months'imprisonment with a one-month uplift was ultimately appropriate.[18] Mr Littlefair went on to submit that the starting point was too high havingregard to Mr Barnett's:(a) age at the time of offending (30 years);(b) limited criminal history with no history of violence until he was 29years old; and(c) violent offending only beginning after the death of his infant child andthe ending of his relationship with the child's mother.[19] Finally, Mr Littlefair submitted the two-month uplift the Judge applied to thefirst incident was unfair or unnecessary given the high starting point and givenCorrections had not arranged rehabilitation for Mr Barnett in circumstances where hewanted such help. He submitted a one-month uplift was warranted instead.5 Police v Barnett, above n 1, at [6].6 At [10].7 At [11].8 Ackland v Police [2019] NZHC 312, (2019) 29 CRNZ 179; Houkamau v Police [2019] NZHC2743; Parker v Police [2020] NZHC 479; T v Police [2019] NZHC 3375, [2020] 2 NZLR 270;and Mokaraka v Police [2020] NZHC 718.Discussion – Issue 1[20] Having considered Mr Littlefair's submission on the first issue I do notconsider Judge Orchard erred in assessing the seriousness of the offending and, inparticular, the seriousness of the strangulation. There was no error in her Honour'sapplication of the summary of facts, on which she was required to sentenceMr Barnett.9[21] First there is no suggestion in the summary of facts that the victim in any wayassaulted Mr Barnett or otherwise provoked the assault, nor is it suggested by the firstvictim in her victim impact statement. Instead, it confirms Mr Barnett instigated thephysical violence when he held her down.[22] This is reflected in the sentencing notes. The sentencing Judge noted that thevictim at some point "noticed that [Mr Barnett] had scratches on [his] body and itseems that she herself had caused those."10 The fact that Mr Barnett told the author ofthe PAC report he received those injuries because the first victim instigated theargument by scratching and punching him is irrelevant, and could only have assumedrelevance had Mr Barnett sought a disputed facts hearing on the issue.[23] Likewise, it was not an error for Judge Orchard to conclude the first victim hadsuffered psychological harm given the offending set out in the summary of facts andthe contents of the victim impact statement, noting that the point of victim impactstatements is to provide such information to the Court. It is equally difficult to seehow Mr Barnett could have responded even if he had had more time, and indeed it isnoted Mr Barnett has not subsequently attempted to refute the first victim's victimimpact statement on appeal.[24] There is equally no error on the part of Judge Orchard in inferring that whenMr Barnett threw water on the first victim it was to make her more alert, that she hadbeen "terrorised through the night", and that she had lost consciousness.9 R v Apostolakis (1997) 14 CRNZ 492 (CA) at 494; Pokai v R [2014] NZCA 356 at [30].10 Police v Barnett, above n 1, at [7].[25] There is no other obvious conclusion to draw from Mr Barnett's actions inthrowing water on the first victim. Likewise, while Mr Littlefair is correct that thereare no precise times after the start of the first incident, it is clear it went on for someconsiderable time, albeit there were equally periods where little was happening andthat at one point the first victim fell asleep. The description is not however inaccurate.[26] Similarly, and contrary to Mr Littlefair's submissions, I found the summary tobe clear that the first victim passed out and became unconscious while being strangledby Mr Barnett. Specifically, the summary records:He got into her face and then put both hands around her throat and compressedhis hands, then stopped.In her state she just said, "just finish me."He said do you want me to do this and began pushing down on her throat moreand more. She gave up and passed out.[27] The fact that the summary of facts had previously recorded that the first victimhad thought she was losing consciousness before being strangled is irrelevant.[28] In addition to these matters, I note that the remaining issues raised byMr Littlefair with regard to the starting point on the first incident, namely youth andprevious criminal history, do not stand to be considered in connection with the startingpoint but are personal factors, and will be addressed in issue 4.[29] Given this position it follows that the strangulation cases cited by Mr Littlefairwhich did not involve unconsciousness11 were less serious than the present case.Moreover, many of the cases predated the recent decision of the Court of Appeal inShramka v R12 which confirmed the relevant aggravating factors as follows:13(a) premeditation;(b) history of strangulation or prior very serious domestic offence;11 Houkamau v Police; Parker v New Zealand Police; Mokaraka v Police; above n 8: in all threecases the High Court considered a starting point of two years' imprisonment to be appropriate fora lead charge of strangulation where there was no loss of consciousness.12 Shramka v R [2022] NZCA 299.13 At [42].(c) vulnerability of the victim;(d) home invasion/breach of protection order;(e) aggravated violence;(f) threats to kill;(g) enduring harm to the victim; and(h) harm to associated persons.[30] In this case I am satisfied that two of the factors are present, vulnerability ofthe victim and enduring harm to the victim but agree with counsel that otherwise thefacts in Shramka are not comparable. The closest comparators are in fact:(a) Ackland v Police14 which as well as involving a strangulation involvedtwo assault charges for which the High Court upheld a starting point offour years' imprisonment for all three offences.(b) T v Police15 which Doogue J noted the offending "was prolonged andescalated in nature from simple physical assault to more violentphysical assault combined with psychological control",16 withstrangulation forming one part of the assault leaving the victimunconscious and incontinent. The High Court likewise upheld astarting point of four years (three years on the strangulation charge andan uplift of one year for the other offending).[31] Having analysed the authorities I consider that the starting point adopted wasin fact at the lower end of the available range given that the three year starting pointnot only included a strangulation of moderate seriousness comparable to those in14 Ackland v Police, above n 8.15 T v Police, above n 8.16 At [54].Ackland and T but also, as in T, a prolonged assault involving a vulnerable victim,which included sustained attacks to the head.[32] In this regard I note that while Judge Orchard took the strangulation charge asthe lead offence, her Honour's analysis includes the assault without specificallyacknowledging that both offences made up the final starting point. The uplift did notrelate to the assault but rather was only a modest increase to reflect that the offendingoccurred while Mr Barnett was subject to a sentence of supervision.Issue 2 – starting point for the second incident[33] In respect of the second incident, and the second assault with intent to injurecharge, Mr Littlefair submitted that a starting point of 15 months' imprisonment wouldbe appropriate, plus the two-month uplift applied by the sentencing Judge for the factMr Barnett was on bail at the time of offending. Alternatively, he submitted as fair astarting point of 18 months' imprisonment without an uplift.Discussion – Issue 2[34] Mr Littlefair's analysis appears to be based in part on totality considerationswhich are addressed under issue 3 below, but his primary submission was that an upliftwas not warranted given "the unfortunate length of time [Mr Barnett] had been onvery restrictive bail awaiting trial on the first set of charges".[35] Leaving totality issues aside and noting Mr Littlefair did not challenge thestarting point adopted by Judge Orchard, I cannot see why the modest uplift appliedwas not appropriate. There is no dispute that Mr Barnett was on bail at the time of thesecond incident and an uplift was therefore appropriate in order to finalise the startingpoint for that offending.1717 Clunie v R [2013] NZCA 11 at [22]: Section 9(1)(c) of the Sentencing Act 2002 specificallyrecognises that the fact that the offending was committed while on bail is an aggravating feature.Such a discount is intended to reflect the fact that such offending displays disregard for Courtprocesses.Issue 3 – Totality[36] While Mr Littlefair does not dispute Mr Barnett had already received a seven-month discount for totality on the 58-month total starting point adopted byJudge Orchard, he submitted a discount for totality of some nine to 10 months wouldhave been available and "more just" in the circumstances.Discussion – Issue 3[37] The Sentencing Act 2002 requires the Court to consider the totality ofoffending when imposing a sentence, where if cumulative sentences are imposed theend sentence must not be wholly out of proportion to the gravity of the overalloffending.18 It is well established that the totality principle is to be applied flexiblyand that there is no formula.19 The end sentence is to be constructed as a matter ofdiscretion and individual assessment in the particular circumstances.20[38] No reasons are given as to why the discount for totality is inadequate in thecircumstances. In this case the seven-month adjustment represents a discount of justover 12 per cent. Given, as noted, I consider the starting point in respect of the firstoffending was at the lower end of the available range, I see no reason for interferingwith Judge Orchard's assessment of an appropriate discount for totality.Issue 4 - discounts for personal factors[39] Mr Littlefair submitted that the 10 per cent discount for the guilty plea on thefirst incident and the 20 per cent discount for factors identified in the s 27 culturalreport were inadequate. On the contrary Mr Littlefair identified the followingcategories of discounts, although emphasised in oral submissions that it was not hisintention to suggest that if these were adopted and then added to credits for time spenton restrictive bail it would result in a net zero period of imprisonment:18 Sentencing Act 2002, s 85(2).19 Enoka v R [2018] NZCA 185 at [26]; citing R v Dodd [2013] NZCA 270 at [31]–[33]; and GeoffHall Hall's Sentencing (online looseleaf ed, LexisNexis) at [SA85.1]–[SA85.2].20 R v Williams CA 91/00, 31 May 2000 at [11].(a) 20 per cent (at least more than 15 per cent) in relation to the guilty pleafor the first set of offending;(b) 30 per cent for cultural factors contained in the s 27 report;(c) 15 per cent for Mr Barnett's mental health factors;(d) 15–20 per cent for the impact on his dependent children; and(e) unquantified discounts for remorse and insight into his offending andfor prospects of redemption and rehabilitation.[40] Elaborating on these in turn Mr Littlefair submitted:(a) Although Mr Barnett did not plead guilty to the first incident at theearliest opportunity, he did so well before trial, after a thirdadjournment and after Police amended the charges, reducing the chargeof injuring with intent to assault with intent to injure.(b) In assessing the s 27 report Judge Orchard had not sufficientlyrecognised:(i) Mr Barnett's violent and abusive upbringing by his parents andthat they exposed him, either directly or by omitting to properlycare for him, to a gang lifestyle, to violence and to drug abusein the home;(ii) Mr Barnett's exposure to systemic background deprivation; or(iii) Mr Barnett's PTSD and ADHD, and other factors separate fromhis background of systemic deprivation.(c) Mr Barnett contends that he is the sole caregiving parent for his fourchildren and therefore seeks a separate and discrete discount so as tomitigate the impact of sentencing of a parent on a child.(d) Mr Barnett's guilty pleas were indicative of Mr Barnett's remorse andacceptance of his responsibility for the offending.(e) Mr Barnett has now sought and engaged with counselling to "workthrough his issues with anger and any potential mental unwellnesscaused by untreated childhood trauma".(f) Mr Barnett is entitled to a discount for his youth and previous goodcharacter given his lack of previous violent offending.21[41] In response, Ms Litt for the Crown submitted that no further adjustment forpersonal factors was warranted. In particular, she submitted the 10 per cent discountfor the guilty plea in respect of the first incident was appropriate, and while the 20 percent discount for all factors contained in the s 27 report, including ADHD and PTSD,was at the lower end of comparable discounts, it was still within range.Discussion – Issue 4[42] I commence my analysis of the discounts for personal factors with reference toMr Barnett's guilty plea. Having looked through the District Court bench notes on thecharging documents I accept Mr Littlefair's submission that Mr Barnett had beenworking towards a fixture and it was only when the judge alone trial could not proceedbecause Mr Barnett could not be produced by the prison that resolution discussionswere then explored. I likewise accept that any subsequent fixture was at the very leastsome months away and that the guilty plea followed a reduction in the assault chargein respect of the first incident. Thus, while it is clear that the guilty plea wassignificantly delayed and the first victim did have to prepare for the judge alone trial,she was not ultimately put through further months of waiting nor was she required togive evidence. As a result, increasing the guilty plea discount is warranted in thecircumstances and I fix this at a total of 15 per cent.[43] Likewise, while I consider there to be considerable overlap between a numberof the categories of discounts for personal factors identified by Mr Littlefair, I21 From Issue 1 above, see [28].nonetheless agree that the 20 per cent allowed by Judge Orchard was inadequate. Inparticular, it is not in dispute that Mr Barnett suffered from sexual abuse at a youngage and that the counselling report, not available to Judge Orchard, makes it clear thatthis has led to ongoing mental issues. The connection between these two matters alsomakes it easier to see a causal link between the sexual abuse and the subsequent earlyexpulsion of Mr Barnett from school for violence. In the circumstances I consider adiscrete discount of 30 per cent is appropriate for these issues.[44] Conversely, it is difficult to see in the s 27 report any evidence of physicalviolence by Mr Barnett's family, while there is no evidence before the Court to indicatethat Mr Barnett's children are not being appropriately cared for while he is in custody.Likewise, I do not accept that any discrete discount for remorse is warranted, notingthat in the PAC report Mr Barnett appeared to still put blame on the first victim for hisoffending. Similarly, I consider it is too early to give any discrete discount forrehabilitative steps or prospects as, apart from participating in counselling, it isdifficult to see what else has been done at present. Finally, I do not consider thatMr Barnett can properly be given any discount for youth (he is over 30 years old) norprevious good character given his family violence conviction in 2020 for which hewas still serving a sentence of supervision at the time of the first incident.[45] I therefore conclude that Mr Barnett was entitled to discounts for personalfactors amounting to 45 per cent.Issue 5 – Credit for restrictive EM bail[46] Mr Littlefair submitted the sentencing Judge clearly intended to give a 50 percent discount for time spent on EM bail but incorrectly considered that to be a six-month period. In fact, Mr Barnett spent a little under nine months on EM bail, a figurethat is not disputed. Mr Littlefair submits a 50–60 per cent discount on the actualperiod is an appropriate discount.Discussion – Issue 5[47] There is some debate as to the extent that credit should be given for time onrestrictive EM bail. In the present case it is however unexceptional as Mr Littlefairsubmitted to allow a discount to the extent sought.22 Accepting that Mr Barnett spentbetween eight and nine months on EM bail before his arrest in relation to the secondincident, I am satisfied that he should have been given a credit of four months, a figurewhich takes into account some of the other rounding undertaken by Judge Orchard inMr Barnett's favour.23 This means an additional one month's credit must be given toMr Barnett.Conclusion - end sentence[48] Applying the additional discounts for personal factors detailed above leads toa notional end sentence of 28 months' imprisonment. When the six months is deductedfor the remainder of the guilty plea discount for the second incident (two months) andtime spent on restrictive EM bail (four months), this results in an end sentence of22 months' imprisonment. I conclude therefore that the original sentence wasmanifestly excessive and that the appeal should be allowed.Home Detention[49] As the end sentence on appeal is now below two years it is accordingly a shortsentence of imprisonment and home detention is therefore a possibility.24 At the timeof hearing for the appeal there was no suitable address identified, and Mr Littlefairtherefore sought leave to apply for home detention to give Mr Barnett the opportunityto see if a suitable address is available.25[50] In considering whether the appropriate end sentence should be one of homedetention, while the Court has the ability to commute a period of home detention wherea sentence of short-term imprisonment would otherwise be imposed, the Court ofAppeal has also stated:26That does not mean that a short-term period of imprisonment must always becommuted to a sentence of home detention. That equally would be an error of22 For example see Paora v R [2021] NZCA 559 at [53]: The Court of Appeal noted that there is noguideline about the discount which should be afforded to a defendant for time spent on EM bail,observing that discounts ranging from 30 to 50 per cent are often used, although 50 per cent is notan upper limit.23 Police v Barnett, above n 1, at [27].24 Sentencing Act 2002, ss 15A and 4(1).25 Section 80I.26 Fairbrother v R [2013] NZCA 340 at [30].law. What it does mean is that the judge must make a considered andprincipled choice between the two forms of sentence, recognising that bothserve the principles of denunciation and deterrence, and identifying which ofthem better qualifies as the least restrictive sentence to impose taking intoaccount all the purposes of sentencing.[51] There is no presumption for or against the substitution of a short-term sentenceof imprisonment for home detention. In determining whether an order grantingMr Barnett leave to apply for home detention, pending the availability of a suitableaddress, I have had regard to a range of relevant factors.[52] I begin with Judge Orchard's comments in relation to home detention. In herview, the sentencing purposes of denunciation, deterrence and accountability takeprecedence over Mr Barnett's rehabilitative prospects in this case, where her Honourdid not see him as a promising candidate for rehabilitation because of the level andcircumstances of the violence that he inflicted, which in her view will not be toleratedby the community.27 She considered that Mr Barnett is a person who resorts toviolence at very little, if any, provocation. In her view, home detention would havebeen unavailable for these reasons even if Mr Barnett's initial sentence had been twoyears' imprisonment or less.[53] I respectfully agree with Judge Orchard's conclusion. In my view, thecircumstances of Mr Barnett's offending, particularly the second incident, are highlyrelevant in considering whether home detention is an appropriate sentence. Thesecond incident occurred after a relatively long stint of EM bail which, as discussed,was argued by Mr Littlefair as a factor against the imposition of an uplift for the factthat the offending occurred while on EM bail. The conditions attached to homedetention are not unlike those attached to EM bail, where the circumstances of MrBarnett's offending therefore send concerning signals about his ability to refrain fromfurther similar offending if a sentence of home detention was to replace one ofimprisonment. It is particularly relevant that the conditions of electronic monitoringproved no obstacle to Mr Barnett finding a new partner, and the consequence of thiswas the second incident.27 Police v Barnett, above n 1, at [27].[54] Likewise, the fact that Mr Barnett previously had sole custody of his childrendoes not necessarily mean that home detention is the appropriate sentence. I amconcerned that Mr Barnett would face significant pressures in caring for his childrenwhilst subject to home detention conditions, where he would be unable to care forthem in the way he perhaps otherwise would, as home detention conditions wouldprevent him from taking them to school as well as other activities outside the house.Though Judge Orchard suggested that Mr Barnett's sister may have been helping himcare for his children,28 in the absence of any evidence as to how Mr Barnett plans tocare for his children if subject to home detention conditions, I am not satisfied that hewould be able to cope with these external pressures. I also note that Mr Barnett hasonly recently begun counselling whilst in prison, and I consider that it would bebeneficial for him to complete this in order to address his existing issues, rather thanthis be disrupted by substituting his sentence to one of home detention and thetemptations and pressures that come with it.[55] These factors, as well as recognising the difficulty in considering thisapplication in the abstract in the absence of any pro-social address that would ensureMr Barnett does not succumb to the temptations associated with home detention, leadme to the conclusion that it is not appropriate to grant leave for Mr Barnett to applyfor home detention.Decision[56] The appeal is allowed in part. Mr Barnett's sentence on the strangulationcharge is set aside and substituted with a sentence of 22 months' imprisonment.Mr Barnett is not given leave to apply for home detention._______________________________Powell J28 At [30].