BORELL v POLICE [2019] NZHC 1483

BORELL v POLICE [2019] NZHC 1483 [27 June 2019]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI 2018-404-000390CRI 2018-404-000391[2019] NZHC 1483BETWEEN BEAU BORELLAppellantAND THE NEW ZEALAND POLICERespondentHearing: 26 March 2019Counsel: Q Duff for AppellantH Clark for RespondentJudgment: 27 June 2019JUDGMENT OF DUFFY JThis judgment was delivered by me on 27 June 2019 at 3.30 pm..Registrar/ Deputy RegistrarSolicitors/Counsel:Matai Chambers, AucklandMeredith Connell, Auckland[1] Mr Borell appeals against a sentence of two years and eight monthsimprisonment that was imposed on him in the District Court on charges of: assaultwith intent to rob (with another), two charges of driving while disqualified (third ofsubsequent offence), failing to stop or ascertain injury, possession of an offensiveweapon, operating vehicle recklessly, failure to answer to District Court bail.1[2] At the appeal hearing Mr Borell sought to adduce fresh evidence in the formof a cultural report that was prepared pursuant to s 27 of the Sentencing Act 2002 (theAct). Initially the Crown opposed the admission of the report as fresh evidence. Theparties were given the opportunity to file further submissions following the appealhearing. This provided the parties with an opportunity to consider the matter in moredepth which has led to them both responsibly recognising that the provision of acultural report pursuant to s 27 of the Act can be received by an appellate court withoutthe need for it to be admitted as evidence. Indeed, the subject matter of a s 27 reportmay not readily lend itself to evidential proof because it may address matters ofcustomary lore relevant to an offender (for example Tikanga Maori) and it may expressthe opinions of the person/s who address the various considerations in s 27 (1)(a) to(d).Facts of the offending[3] On 4 March 2018 Mr Borrell committed the offences of assault with intent torob and one of the driving while disqualified offences. Mr Borell and Kaleina Joneswere at a Caltex service station in Otara. They were travelling in a Silver MazdaCapella, which was driven by Mr Borell. Mr Borell parked this vehicle behind a whiteMitsubishi which belonged to the victim. The victim's vehicle was parked at the endof the middle row of pumps leaving Mr Borell's vehicle waiting next to no pumps. Atthe time there were other pumps free on the forecourt and there was no need forMr Borell to park the silver Mazda where he did. He and Mr Jones left their vehicleand walked around to the victim's vehicle while the victim was filling his car withpetrol. They then went back to their vehicle and waited while the victim went insideand paid for his petrol. The other pumps on the forecourt were free.1 Police v Borrell [2018] NZDC 27349; Mr Borell was also convicted and discharged on one chargeof failing to stop for red/blue flashing lights, which is therefore outside the scope of this appeal.[4] When the victim returned to his vehicle Mr Borell and Mr Jones left theirvehicle and approached from either side of the victim's vehicle. Mr Borell attackedthe victim as he sat in his vehicle, punching him about the upper body and attemptingto drag him from his car, almost tearing the victim's shirt from his body. At the timeMr Borell repeatedly yelled at the victim "get out of your car. Give me your keys."Meantime Mr Jones entered the victim's vehicle through the passenger door andplaced a bottle to the victim's back stating "I will shoot you" further terrifying thevictim. At this time members of the public began to intervene which caused bothMr Borell and Mr Jones to leave the location. The victim sustained bruising to bothhis arms during the assault. At the time of this offending Mr Borell was a disqualifieddriver.[5] The remaining offences occurred on 9 March 2018 when Mr Borell was thedriver of a Toyota Altezza vehicle on Hillsborough Road, Mt Roskill. A police officerwho was driving behind Mr Borell activated the police vehicle's lights and sirens tostop Mr Borell. Instead of stopping, Mr Borell accelerated to speeds of at least 100kph in a 50 kph area along Hillsborough Road. He overtook vehicles on a heavilycongested road and crossed the centre line multiple times, heading into oncomingtraffic and causing those drivers to brake heavily to get out of his way.[6] He then went onto the south western motorway at Hillsborough onrampheading west. While on the motorway he travelled at dangerously high speeds andmanoeuvred between traffic causing other drivers to swerve out of their lanes to avoidcollision with his vehicle. Mr Borell left the motorway at the Maioro Street offramp.The traffic light at the end of the offramp at the intersection with Maioro Street wasred. However, Mr Borell continued to accelerate at speed straight through theintersection from the right hand turning lane. While travelling through the intersectionMr Borell crashed into the passenger's side of a Subaru Outback vehicle injuring thedriver. The force of the collision caused the Subaru Outback to cross onto the wrongside of the road over a pedestrian island narrowly missing oncoming traffic.[7] Without stopping to ascertain if the driver of the Subaru Outback was injuredor not Mr Borell and his associate ran from the scene of the crash. Shortly afterwardsthey were apprehended by the Police. While Police were searching the Toyota Altezaa large hammer and wooden handled knife with a 15 cm blade were located. Thedriver of the Subaru Outback sustained no injuries during the vehicle collision.[8] When interviewed by the Police Mr Borell said the offensive weapons were forhis protection. He initially denied all knowledge of the incident at the Caltex servicestation until he was formally charged at the end of the interview. At this time Mr Borellconfirmed the facts as outlined, stating he was being followed and needed to get a newcar.Personal circumstances[9] The PAC report did not cover the most serious offence of assault with intent torob, however in relation to the other offending it recommended imprisonment. MrBorell sought an adjournment to allow the PAC report to be updated, but this wasrefused on the ground the recommendation for imprisonment was not likely to changeonce account was taken of the assault with intent to rob offence.[10] The PAC report was prepared without contact with Mr Borell. Attempts weremade to interview him in August 2018 but by then he had absconded from his EM bailaddress and his current whereabouts were unknown. The report's assessment ofMr Borell was pessimistic. His ability to comply with community based sentences isassessed as poor, this being based on his then current lack of engagement with thereport writer, his current non-compliance with EM bail, his poor compliance with hiscurrent community work sentence and the breach of the community work sentence in2016. At the time the report was written Mr Borell had completed 6.5 communitywork hours with 83.5 hours still outstanding. The likelihood of him reoffending andhis risk of harm to others was assessed as medium based on his "recidivist offendingand his propensity for violence." The report writer identified certain offending relatedfactors, namely Mr Borell's attitude of self-entitlement, anti-social peers and apropensity for violence. The assessment was based on the summary of facts for hiscurrent offending and the nature of his current and previous offending. The reportcontained a recommendation that Mr Borell be referred for a departmentalpsychological assessment and completes suitable therapeutic programmes. However,his current risk rating was seen as being too high for any departmental programmes.A sentence of imprisonment was recommended with leave to apply for homedetention. This recommendation being based on the severity of Mr Borell's offending,his current and historic non-compliance and his recidivist offending. The writerexpressed a view the punitive aspect of the sentence may bring home to Mr Borell theseriousness of his offending.Sentencing in the District Court[11] Mr Borell had earlier received a sentencing indication from Judge Jelas whichhe had immediately accepted. Judge Jelas had adopted a starting point of three years'imprisonment and the end sentence came to two years and 10 months' imprisonment.The sentencing indication also gave him the opportunity while on EM bail to attendthe Bridge Programme to address his substance abuse problems; and had he done sosuccessfully the likely outcome would have been a sentence of home detention.However, while he was part way through this programme on 21 July 2018 he breachedthe terms of his EM bail and was arrested. Then a few days later, on 28 July 2018 hewas re-admitted to bail he removed his ankle bracelet and absconded thus bringing hisprospects of a rehabilitative sentence to an end. He was arrested on 18 September2018 and remanded in custody.[12] A sentencing hearing was scheduled to take place on 28 November 2018 beforeJudge Paul. Mr Borell asked for the sentencing adjourned so that he could re-commence EM bail and treatment at the Bridge Programme. However, by then he hadalready been refused EM bail and was appealing this refusal when the sentencing cameon before Judge Paul. He insisted the sentencing proceed.[13] Judge Paul treated the assault with intent to rob as the lead offence for whichhe adopted a three-year starting point. In doing so he adopted the starting pointidentified by Judge Jelas in the sentencing indication. For the additional charges JudgePaul applied an uplift of six months imprisonment with a further uplift of threemonths' imprisonment to reflect Mr Borell's history of violence and driving contraryto Court orders. That brought the sentence to one of three years, nine monthsimprisonment. Mr Borell was then given a full discount for his guilty plea whichreduced the sentence to one of two years, 10 months' imprisonment. A furtherreduction of two months was given to account for Mr Borell spending approximatelythree months on EM bail, which brought the end sentence to one of two years, eightmonths imprisonment.[14] Judge Paul recognised there were potentially other matters that might havereduced the end sentence further including completion of a recognised residentialprogramme and potentially restorative justice. However, those were not available toMr Borell because he had absconded from the Bridge Programme while on EM bail.Accordingly, the end sentence remained at two years, eight months imprisonment. TheJudge acknowledged that Mr Borell on completion of a third of his sentence will beseen by the Parole Board and he emphasised the need for Mr Borell to attend adependency treatment unit programme. The Judge also acknowledged that Mr Borellhas substance dependency issues which he had not been able to address in thecommunity even when given the opportunity to do so. Although reparation was soughtnone was ordered as Mr Borell was not in a position to pay any. A previous sentenceof community work was cancelled.Grounds of appeal[15] During the hearing and in the additional submissions filed afterwards it becameclear that Mr Borell now focuses his appeal on what is essentially new materialinformation, as disclosed in the s 27 report, which supports him being granted leaveto apply for home detention so that he can re-commence treatment for substance abuse.He does not seek to disturb the end sentence of two years eight months imprisonment,nor does he complain about how the Judge arrived at this end point. However,Mr Borell contends that now the s 27 report is available it raises issues as to whatdegree of credit is appropriate to reflect Mr Borell's personal, family, whanau,community and cultural background and the way in which that background may haverelated to the commission of the offending. In this regard Mr Borell seeks a 30%discount to reflect the facts identified in the s 27 report. This discount would reducethe end sentence to approximately 22 months' imprisonment which would allowMr Borell to qualify for a sentence of home detention.The s 27 report[16] The s 27 report provides a comprehensive, thorough and well prepared outlineof the factors it addresses. In written submissions Mr Borell's counsel correctlyidentified certain prominent thematic features running through the s 27 report.[17] First, Mr Borell was exposed to a catalogue of adverse childhood experiencesincluding exposure to family violence, severe physical abuse, poverty stress, parentalneglect, paternal imprisonment and transient home life.[18] Secondly, Mr Borell experienced constant upheaval as a child being movedback and forth between Palmerston North and Taumarunui according to his parents'preferences and relationship status. These consistent upheavals were combined withsevere violence at the hands of Mr Borell's father, which began from the age of threeand included beatings that rendered him unconscious.[19] Thirdly, the physical abuse conditioned Mr Borell to view violence as normaland precipitated use of drugs (initially cannabis) as a means to cope with trauma. Thisevolved into an off and on addiction to methamphetamine from 2011 onwards.Moreover, the history of violence has alienated Mr Borell from his father and hispaternal whakapapa.[20] Fourthly, in 2007 Mr Borell lost his older sister who was someone to whom hewas close and he admired. Finally, Mr Borell has experienced culturaldisconnectedness. In this regard the s 27 report described him "his limited knowledgeof his whakapapa and his culture is also illustrative of the intergenerationaldisplacement experienced by so many Maori as a result of colonisation and the socialdisadvantage that ensued."[21] Mr Borell's counsel also points to the report's details on personal and culturalfactors that may well serve to assist Mr Borell in the future from further offending.First, he has a relatively long history of work in New Zealand and Australia and adegree of additional training. Secondly, he is the father to five children andacknowledged two step-children to his current partner. Thirdly, he is very close to hiscurrent partner, Ms Kaka, who has extended him unwavering support. Possibilitiesexist for Mr Borell to locate and work with his partner's wider family in northland.Counsel notes here that Ms Kaka is pro-social and gainfully employed with GenesisEnergy. Moreover, she identifies Mr Borell as a positive influence on her childrenwho see him as a father. Fourthly, Mr Borell is motivated to complete programmework in relation to drugs and alcohol, violence, personal trauma and parenting. Hehas goals around being a better parent and family member and his highly motivated tochange generally.Submissions[22] Mr Borell contends the factors identified in the s 27 report should attract adiscount of 30%. Such a discount would appropriately reflect his childhood exposureto severe physical violence, consequent drug abuse and other biographical factors notof Mr Borell's making.[23] Mr Borell submits that he was inducted into anti-social behaviour at anextremely young age before he had developed the critical faculties to know better.This led to Mr Borell adopting violent and drug abusive behaviours. He submits thathe was in the throws of a methamphetamine fuelled paranoid fantasy at the time of thepresent offending. He acknowledges the violence he exhibited towards the victim isyet another manifestation of his earlier conviction history. However, he submits thathe is not intrinsically disposed to anti-social behaviour because he has managed tooperate property-socially for periods of his life despite the odds he has faced. Further,he is said to express genuine remorse and a desire to be a better partner, father andmember of the wider community.[24] Mr Borell refers to an affidavit he had prepared for EM bail which explainedhow the EM bail breach came about. Essentially difficulties arose between Mr Borelland the person who provided the EM bail address to the point where Mr Borellconsidered he could no longer remain there. He had earlier approached his counseland attempted to vary the bail address but that was not able to be done.[25] Mr Borell points to the fact he initially enrolled in the Bridge Programmewithout the assistance of counsel and on his own initiative, and once enrolled he fullyengaged with stage one activities. A letter from the Rachel Cusack of the BridgeProgramme indicated Mr Borell had completed 11 pre-entry sessions showing a highlevel of motivation for rehabilitation. He had been offered a place in the residentialstage two programme and it was only due to his breach of EM bail conditions that thiswas lost. Mr Borell submits that if his sentence were to be reduced by 30% he wouldbecome eligible for home detention and accordingly he requests the Court to reserveleave under s 80I of the Sentencing Act for him to apply for home detention.[26] Factors favouring reservation of leave to apply for home detention are said tobe the pro-social support he will receive from his partner, Ms Kaka and her family,particularly if permitted to reside with them, his ability to access the BridgeProgramme and his willingness to engage therein. In this regard the BridgeProgramme in Hamilton has confirmed that Mr Borell can re-enter stage one and hewill be offered a residential place in stage two as soon as one becomes available.Mr Borell submits that he has ability to comply with home detention conditionsbecause although he absconded while on EM bail this can be explained in part by thesub-optimal bail address. Further, it is submitted that Ms Karaka offers a stableenvironment and that Mr Borell was living at the address without incident for severalmonths before being apprehended by Police.[27] The Crown submits the sentence imposed by Judge Paul is not manifestlyexcessive, rather it is well within the range and indeed, the starting point adopted bythe Judge was generous to Mr Borell. The Crown had the opportunity to file furthersubmissions in relation to the s 27 report. It submits that any discount now availablethat is based on the additional information contained in the s 27 report would notrender the sentence imposed by Judge Paul manifestly excessive.Discussion[28] At the time of the offending Mr Borell was aged 30 years. His criminal historyreveals a pattern of deteriorating conduct which accelerated from 2016. Before thishis offending was more spread out. He first offended in 2005 for which he was finedand ordered to pay reparation. After that, there was no further offending until 2013when he committed five offences, the majority of which involved violence with onedisqualified driving offence. He was sentenced on all these offences in January 2014to six months home detention.[29] Mr Borell did not offend again until December 2015 when he was sentencedfor assault and class C drug offending. On this occasion he received a sentence ofcommunity work. He then offended in February 2016 when he breached thecommunity work sentence and committed wilful damage involving family violence.For this offending he received 14 days imprisonment.[30] The next offending was in mid to late 2017. It involved disorderly behaviourand driving while disqualified offending for which he again received a sentence ofcommunity work. There was no further offending until the present offending in March2018.[31] The pattern of Mr Borell's offending shows it has increased in seriousness overtime. The present offending is the first offending for which he has received asignificant sentence of imprisonment.[32] The gaps between the periods of offending, particularly earlier in his life showthere have been times in his life when he has been able to keep his life on track andavoid criminal offending. The fact he could achieve this in the past shows hisprospects for rehabilitation are not dismal provided the factors which in the past havehelped him to avoid offending can again be brought into his life. The presentoffending, which is clearly the most serious, was clearly contributed to by hissubstance abuse problems. Accordingly, his criminal history indicates some prospectsof him successfully rehabilitating himself.[33] The sentencing indication of Judge Jelas and the sentencing notes of JudgePaul all evidence a recognition by those Judges that Mr Borell needs help to overcomehis substance abuse if he is to avoid further re-offending. These views were expressedwithout the Judges having seen the s 27 report.[34] The s 27 report makes for compelling reading. When the periods during whichMr Borell has not offended are viewed in light of the s 27 report they emphasise thecredit that Mr Borell should be given for having achieved this much through his effortsalone. I consider that if Mr Borell is to break the cycle of substance abuse andreoffending he needs additional help and support. Whilst that could come after he hasserved the current sentence of imprisonment I consider this would not be enough torecognise the impact the adverse s 27 factors have had on his life.[35] As the writer of the PAC report recognised, a sentence of imprisonment oftenreflects the emphasis a Court has given to deterrence and denunciation. At the timeJudge Paul sentenced Mr Borell there was little else the Judge could do as he lackedthe informative and powerful information that is to be found in the s 27 report. Hadthe Judge known of this information I consider the sentencing outcome would havebeen different.[36] I reject the Crown's argument that the s 27 report does not make the currentsentence manifestly excessive. The Act makes provision for s 27 reports. Theinformation they may reveal can provide relevant mitigating factors, which requirerecognition in the sentencing process. Some discount for the s 27 considerationswould usually follow.[37] Here the systemic deprivation that affects Maori generally is traceable tolinkages between that deprivation, Mr Borell and his offending, which satisfies therequirements outlined in Solicitor-General v Heta2 and in Arona v R.3[38] I am satisfied that a 30% discount is both available and appropriate.4 Giventhe social and cultural background from which Mr Borell has emerged it is to his credithe has not offended more often and more seriously than his criminal history reveals.As Whata J observed in Solicitor-General v Heta:5[63] Nor is there a clear unifying principle for applying discounts fordeprivation. Rather, personal circumstances discounts tend to be informed bya multiplicity of overlapping factors, including deprivation, trauma, youth,drug and alcohol abuse, and mental health issues. "Deprivation" is in manycases difficult to separate from these other factors because it is associated withand explanatory of them. What is tolerably clear, is that larger discounts tend2 Solicitor-General v Heta [NZHC] 2453 at [49].3 Arona v R [2018] NZCA 427 at [59].4 Above n 2 at [59].5 Above n 2.to rely on identifying linkages between personal circumstances and theoffending and thus the moral culpability of the offender. Mercy is anotherapparent reason. The countervailing sentencing factors, where applicable,then curb the extent of any discount.[39] Moreover, despite his substance abuse Mr Borell has no convictions for thesupply of illicit drugs. This is to his credit as many persons when in the grip of a drugaddiction will turn to drug offending to source their own supply of drugs. Here thereis no pattern of calculated planned offending. The character of Mr Borell's offendingsuggests it happens when the adverse pressures that weigh upon him reach a flashpointand he loses control of his actions. In addition, the subject offending was moderatelyserious. It does not involve the high level of seriousness that was involved in Arona vR (sexual violation offending), which means there is more opportunity for the sentenceto be focussed on personal circumstances.6[40] Mr Borell has shown in the past that he is capable of leading a law-abiding life.I consider a sentence that places the emphasis on rehabilitation is warranted.Accordingly, I consider the end sentence on the lead offence of assault with intent torob should be reduced to a sentence of 23 months imprisonment, which reflects adiscount of approximately 30%.[41] I also consider that Mr Borell should be granted leave to apply for homedetention pursuant to s 80I of the Act. Provided a placement is available for him atthe Hamilton Bridge Programme and Ms Karaka is found to provide a suitable homedetention address I can see no reason why he should not be granted home detention.The efficacy and suitability of a sentence of home detention in circumstances wherethe focus is on rehabilitation were recognised in R v Hill:7[33] The sentence of home detention reflects a perception that society'sinterests are better served in some cases by the imposition of restrictions onliberty through home detention rather than through imprisonment. Theexplanatory note at p 5 identifies the "acknowledged advantages" of homedetention as including "low rates of re-conviction and re-imprisonment, highcompliance rates, and positive support for offenders' reintegration andrehabilitation".6 See discussion in Solicitor-General v Heta at [57] where Whata J recognised that the seriousnessof the offending may necessarily reduce the scale of any discount for personal mitigating factors.7 R v Hill [2008] NZCA 41, [2008] 2 NZLR 381.Result[42] The appeal is allowed. The sentence of two years, eight months imprisonmenton the offence of assault with intent to rob is set aside and replaced with a sentence of22 months' imprisonment, which is to take effect from the date of the originalsentencing.[43] Pursuant to s 80I of the Sentencing Act 2002 Mr Borell is granted leave toapply for home detention.Duffy J