Barnes v R

• Jurisdiction: New Zealand
• Judge: Cooper J
• Judgment Date: 09 March 2018
• Neutral Citation: [2018] NZCA 42
• Court: Court of Appeal
• Docket Number: CA502/2017
• Date: 09 March 2018

Between

Matthew Thomas Barnes

Appellant

and

The Queen

Respondent

[2018] NZCA 42

Court:

Harrison, Cooper and Gilbert JJ

CA502/2017

IN THE COURT OF APPEAL OF NEW ZEALAND

Criminal — appeal against sentence — appellant sentenced as a stage-two offender under the Sentencing Act 2002 — whether appellant's sentence should have been reduced to take into account he was required to serve the full term of the sentence without parole as a stage-2 offender under s86A Sentencing Act 2002

Counsel:

D J More for Appellant

C A Brook and J A Eng for Respondent

• A Leave to appeal is granted under s 253(1) of the Criminal Procedure Act.

• B The appeal is allowed.

• C The sentence is remitted to the District Court. The District Court is directed to set aside the sentence and impose another sentence that it considers appropriate. We recommend the sentence be reconsidered by the original sentencing Judge if that is possible.

JUDGMENT OF THE COURT

REASONS OF THE COURT

(Given by Cooper J)

Table of Contents

	Para No
The sentence	[4]
The stage-1 offence	[9]
The stage-2 offence	[15]
The District Court sentence	[16]
The High Court appeal	[24]
The appeal to this Court	[29]
Appellant's submissions	[30]
Respondent's submissions	[34]
Analysis	[39]
The meaning of s 86C(4)	[39]
Justice and proportionality	[52]
Inconsistency	[60]
Taking parole eligibility into account	[65]
The appropriate approach	[77]
Disposition	[80]
Result	[83]

1 The appellant Matthew Barnes seeks leave to appeal against the judgment of the High Court dismissing an appeal against sentence. 1 Because his appeal is a second appeal, Mr Barnes needs this Court's leave under s 253(1) of the Criminal Procedure Act 2011.

2 Section 253(3) of the Criminal Procedure Act provides that this Court must not give leave unless the appeal involves a matter of general or public importance or a miscarriage of justice may have occurred or may occur unless the appeal is heard. Because the appeal raises an important issue concerning the effect and application of provisions in s 86C of the Sentencing Act 2002 in relation to stage-2 offending, we are satisfied that it involves a matter of general or public importance and the test set out in s 253(3)(a) of the Criminal Procedure Act is satisfied. We will grant leave accordingly.

3 The importance of the issues raised by this application has resulted in a reasonably lengthy discussion. We have however endeavoured to summarise our conclusion succinctly at [77]–[79] below.

The sentence

4 Mr Barnes was one of three defendants sentenced on 10 May 2017 by Judge Crosbie in the District Court at Dunedin. All three faced a charge of aggravated robbery in contravention of s 235 of the Crimes Act 1961. The maximum penalty for that offence is 14 years, and it is in the list of “serious violent offences” as set out in s 86A of the Sentencing Act.

5 Upon their conviction, Mr Barnes' co-defendants received stage-1 warnings as contemplated by s 86B of the Sentencing Act. Mr Barnes was in a different category, because he had previously been convicted of sexual connection with a young person aged between 12 and 16 years. That is also a defined “serious violent offence” in terms of s 86A of the Sentencing Act. That meant that Judge Crosbie had to treat Mr Barnes as an offender who had committed a stage-2 offence, defined as:

stage-2 offence means an offence that—

• (a) is a serious violent offence; and

• (b) was committed by an offender at a time when the offender had a record of first warning (in relation to 1 or more offences) but did not have a record of final warning

6 Section 86C of the Sentencing Act provides with respect to stage-2 offences other than murder as follows:

86C Stage-2 offence other than murder: offender given final warning and must serve full term of imprisonment

(1) When, on any occasion, a court convicts an offender of 1 or more stage-2 offences other than murder, the court must at the same time—

• (a) warn the offender of the consequences if the offender is convicted of any serious violent offence committed after that warning (whether or not that further serious violent offence is different in kind from any stage-2 offence for which the offender is being convicted); and

• (b) record, in relation to each stage-2 offence, that the offender has been warned in accordance with paragraph (a).

7 Under s 86C(4), with the imposition of a determinate sentence of imprisonment, the Court was required to order that the offender serve the full term of the sentence, with the consequence in the case of a long-term sentence that the sentence will be served without parole:

(4) If the sentence imposed on the offender for any stage-2 offences is a determinate sentence of imprisonment, the court must order that the offender serve the full term of the sentence and, accordingly, that the offender,—

• (a) in the case of a long-term sentence (within the meaning of the Parole Act 2002), serve the sentence without parole; and

• (b) in the case of a short-term sentence (within the meaning of the Parole Act 2002), not be released before the expiry of the sentence.

8 On the basis of reasoning we will discuss later, the Judge arrived at a sentence of two years seven months' imprisonment, and in accordance with his obligation under s 86C(4) directed that the sentence be served without parole.

The stage-1 offence

9 The first offence committed by Mr Barnes was a “serious violent offence” within the meaning of s 86A of the Sentencing Act because it was listed in the definition of serious violent offences. But there was nothing “violent” about the offence, at least in the normal and relevant sense of that word given in The Oxford English Dictionary: “Senses relating to physical force. Of action, behaviour, etc.: characterized by the doing of deliberate harm or damage; carried out or accomplished using physical violence …” 2

10 Mr Barnes had been charged with sexual connection with a young person contrary to s 134(1) of the Crimes Act 1961, an offence punishable by a maximum term of imprisonment not exceeding 10 years. That offence may often be associated with actual or inherent violence. However, in this case the general nature of the offending was not of that character. This may be ascertained from the observations of Judge Coyle who sentenced Mr Barnes on 22 September 2014. At sentencing, the Judge said: 3

[3] The facts of the matter are set out in the summary of facts. In essence you and the victim knew each other. At the time of your offending she was 14 and you were 18. You considered that you were in a relationship together but that relationship has now ended. At the start of the relationship you and she met with her parents and talked about the fact that you wanted to be in a relationship together, but her parents had some concerns around that relationship given the age difference, and in particular that their daughter was only 14. So they made it clear to you and her and they did not want there to be any sexual activity.

[4] It appears from what is set out there was an agreement by both you and her that your relationship would continue on that basis and that there would be no sexual relationship at all between you. In breach of that, within a number of days after that meeting with her parents had taken place, you and she began a sexual relationship. That sexual relationship occurred on a number of occasions over a period of time.

[5] The relationship ended and in the PAC report you said to the report writer that the relationship with her ended when you discovered she had embarked on a relationship with one of your friends. For reasons that are still not clear to me the matter came to the attention of the police and you were questioned by the police. Initially you denied having been in a sexual relationship and initially you denied that you knew how young she was.

11 In assessing the sentence to be imposed, the Judge stressed the need for deterrence, referring to the immaturity of the complainant and the fact that Mr Barnes was in his “late teens”. 4 He thought the offending was aggravated by the number of occasions on which sexual activity had occurred, and by abuse of trust. 5 The trust abused was that of the complainant's parents. There was no suggestion of a breach of the complainant's trust.

12 Judge Coyle said he was “entirely satisfied” that a sentence of imprisonment would not be appropriate. 6 He described Mr Barnes as a young man of otherwise good character who had made some bad choices. He observed: 7

This Court has many people who appear before it who in sentencing the Court has an enormous amount of concern as to whether they will see them back again, particularly in relation to sexual offending. You do not fit in that category at all.

13 The final sentence imposed was home detention for a period of five months and 200 hours' community work. The home detention was subject to conditions that

Mr Barnes not consume alcohol and that he attend and complete counselling or treatment if directed by the probation officer, including counselling or treatment to address the use of alcohol. The Judge gave a stage-1 warning as required by the statute

14 It appears that the sentence of home detention was not able to be completed because of the deterioration of Mr Barnes' relationship with his mother at whose address he was serving the sentence. Judge Crosbie said that “poor physical and mental health” had undermined compliance with the original sentence. 8 The sentence was subsequently cancelled, and a term of eight months' imprisonment substituted. For a first offender, this was a stern outcome.

The stage-2 offence

15 The stage-2 offence was of a completely different character. Mr Barnes pleaded guilty to a charge of...