Bartlett v Police [2016] NZHC 746 (18 April 2016)

Last Updated: 16 June 2016

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2016-470-000002 [2016] NZHC 746

BETWEEN	AARON JAMES BARTLETT Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	18 April 2016
Counsel:	D Hall for Appellant N Tahana for Respondent
Judgment:	18 April 2016

_{JUDGMENT OF ASHER J}

Solicitors/Counsel: D Hall, Rotorua.

Gordon Pilditch, Rotorua.

BARTLETT v POLICE [2016] NZHC 746 [18 April 2016]

Introduction

[1] On 30 October 2015, Judge A J S Snell sentenced the appellant Aaron Bartlett to a total sentence of 30 months’ imprisonment.¹ He appeals that sentence as being manifestly excessive.

[2] Mr Bartlett faced a number of charges: (a) Burglary (x 2);

(b) Dishonestly taking a motor vehicle;

(c) Dishonestly and without claim of right using a credit card (x 3); (d) Unlawful possession of a weapon (x 2);

(e) Breach of release conditions (x 2);

(f) Giving false details to a law enforcement officer (x 4); (g) Driving whilst forbidden (x 2); and

(h) Possession of a Class C drug (cannabis).

[3] The major charges were the two burglaries. On Friday, 29 May 2015 when Mr Bartlett was in Wellington he entered a residential address. The victim at that address was a 66 year old male who was not known to Mr Bartlett. It seems that when Mr Bartlett entered the house he hid in a room because the victim was present. When the victim left he filled a suitcase and bag belonging to the victim with alcohol and electronic items, and also took a wallet containing a large amount of cash and multiple bank cards. He then used the bank cards to obtain cigarettes and other items on three separate occasions which make up the three dishonestly taking and

_{using a document charges.}

¹ Police v Bartlett [2015] NZDC 21847.

[4] At a time between 30 and 31 August 2015 at Paihia he entered a property and took a Mazda Lantis motor vehicle. He also located property in the basement where the vehicle was garaged, including golf clubs, tool kits, alcohol and electrical appliances. He put these in the vehicle and drove off.

[5] When he was stopped from driving the vehicle by the Police he gave false details about his identity. He had in fact been forbidden to drive a motor vehicle until he obtained a driver’s licence, and he had none.

[6] In relation to the weapons charges, when he attended the Probation Service he was searched. Cannabis and an 18 centimetre long folding pocket knife were found in his possession. Thus he has been found guilty of possession of cannabis, and also possession of an offensive weapon that he took to the Probation Service.

[7] He has breached parole and been sentenced for contravening court orders, protections orders and for common assault.

The decision

[8] To fix a starting point the Judge divided the offences into three broad groups. The burglaries were the lead offences. In respect of the daytime burglary in Wellington, Judge Snell adopted a starting point of 18 months’ imprisonment. He uplifted this by six months to 24 months to take into account the totality of the other offences in the dishonesty group of offending.

[9] The second group of charges, which included breach of parole, involved offending of less culpability and the Judge adopted a starting point of two and a half months’ imprisonment.

[10] In relation to the final group of charges, which included possession of offensive weapons, he adopted a starting point of five months’ imprisonment.

[11] Because Mr Bartlett has a number of previous convictions for dishonesty, and because some of the offending was committed while the appellant was still on parole

from earlier offending, there was an uplift of a further six months’ imprisonment to a total of 30 months’ imprisonment.

[12] There had been no personal mitigating circumstances. The guilty pleas having been entered at an early stage, there was a general discount of 20 per cent. This reduced the end sentence on the lead charges to 24 months’ imprisonment. To summarise, the Judge had fixed a starting point of 24 months, uplifted for the aggravating feature of a past record of dishonesty offences by six months to 30 months’ imprisonment. Applying a discount of 20 per cent, the 30 months on the lead offences became 24 months’ imprisonment. The end sentence was 24 months’ imprisonment.

[13] The Judge accepted that the burglaries had an opportunistic flavour, and but for that he would have imposed a longer sentence of two and a half years’ imprisonment. The Judge commented that this was “drug fuelled” offending.

[14] Mr Bartlett in lodging his appeal claims that the sentence was manifestly excessive. He claims that there was no communication of his request to make reparation and also for a restorative justice process. His letter that expressed remorse was not taken into account. He also claimed that his mental health difficulties and drug addiction problems were not properly before the Court. The reparation sentence was substantially higher than the actual value of the items.

[15] Mr Hall appeared for Mr Bartlett today. He was not able to advance matters beyond that which was in the grounds of appeal. In particular he noted that the appeal had been previously adjourned because Mr Bartlett was seeking a report on his mental state to show that he was unable to handle the institutional vicissitudes of prison life. This was confirmed in a minute of Brewer J on 15 March 2016. However, no report has been made available and Mr Hall as counsel has received no further instructions.

Discussion

[16] It seems to me that the Judge’s approach to sentencing was entirely appropriate. While the burglaries may have been opportunistic, they had severe

consequences for the victims. As a victim impact statement shows, the effect of a burglary on a person’s home can have the same consequences as a serious assault. There is a great sense of loss and disempowerment on the part of the victims and it takes a very long time to recover from such an event.

[17] The probation report relating to Mr Bartlett shows a singular lack of appreciation on his part for the damage he has caused. He seems to be fixated with his own problems. He undoubtedly has his own problems and it is undoubtedly his wish that he could break his methamphetamine habit. However, this is not a basis for any particular discount. There is no hard evidence before the Court supporting the suggestion that Mr Bartlett is in any particular was disadvantaged by being in prison because of his mental state. His offer of reparation and expressions of remorse carry little weight when they are not accompanied by proven actions.

[18] It is my conclusion that the sentence imposed upon Mr Bartlett was the result of a careful and valid process of reasoning by the Judge and well within the range. Indeed it could be thought that a combination of such a list of offences, and involving as they did two serious crimes, and the lack of mitigating factors, could have resulted in a higher sentence.

[19] It is to be greatly hoped that Mr Bartlett will change. His future is grim if he does not. However, as things stand at the moment the community needs to be protected from him, and he and other prospective offenders must be deterred. The sentence imposed upon him was entirely within the range.

Result

[20] The appeal is dismissed.

...................................

Asher J