BROUGHTON v NEW ZEALAND POLICE [2022] NZHC 3376

BROUGHTON v NEW ZEALAND POLICE [2022] NZHC 3376 [8 December 2022]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECRI-2022-409-133[2022] NZHC 3376BETWEEN HARLEY RAYMOND BROUGHTONAppellantAND NEW ZEALAND POLICERespondentHearing: 8 December 2022Counsel: A C Trinder for AppellantJ E Lancaster for CrownJudgment: 8 December 2022ORAL JUDGMENT OF EATON JIntroduction[1] Mr Broughton was sentenced1 to two years and four months' imprisonment byJudge Callaghan on charges of burglary,2 escaping custody,3 theft (under $500),4dishonest use of a document,5 giving false information,6 possessing utensils,7receiving,8 obtaining by deception,9 failing to appear,10 unlawfully taking a vehicle111 Police v Broughton [2022] NZDC 14200.2 Crimes Act 1961, s 231(1)(a); maximum penalty 10 years' imprisonment.3 Crimes Act, s 120(c); maximum penalty five years' imprisonment.4 Crimes Act, ss 219 and 223(d); maximum penalty three months' imprisonment.5 Crimes Act, s 228(1)(a); maximum penalty seven years' imprisonment.6 Land Transport Act 1998, ss 14 and 44; maximum penalty $10,000 fine.7 Misuse of Drugs Act 1975, s 13(1)(a) and (3); maximum penalty one years' imprisonment.8 Crimes Act, ss 246 and 247(b); maximum penalty one years' imprisonment.9 Crimes Act, ss 240(1)(a) and 241(c); maximum penalty three months' imprisonment.10 Bail Act 2000, s 38(a); maximum penalty one years' imprisonment.11 Crimes Act, s 226(1); maximum penalty seven years' imprisonment.and failing to remain stopped.12 He appeals that decision, advancing a single ground,that he is entitled to credit for restorative justice processes engaged in after sentencing.Facts[2] On 21 October 2021, 30 October 2021, 10 December 2021, 30 December 2021,6 January 2022, 14 January 2022, 19 February 2022, 22 February 2022 and26 February 2022, Mr Broughton drove off without paying for petrol taken fromvarious petrol stations in the Canterbury region (nine charges of theft).[3] On 24 February 2022, between 12 pm and 5.23 pm, Mr Broughton entered ahouse in Papanui through a window. He stole a television worth $300 and Chromecastworth $69 (burglary).[4] On 26 February 2022, at about midday, the first victim's vehicle was brokeninto in Rolleston. A handbag was stolen containing a cell phone and wallet. The walletcontained the first victim's driver licence and bank cards. Just after middayMr Broughton went into NPD Rolleston and purchased items valued at $26.40 usingthe first victim's card. Twenty minutes later he purchased cigarettes and a phonetop-up card from a dairy, again using the first victim's card (two charges of using adocument).[5] About one hour later, at 1.15 pm, Police stopped Mr Broughton in his vehicle.They saw the stolen wallet with the victim's driver licence on top. Mr Broughton wastold he was under arrest and subsequently put the car into gear and sped off (escapescustody, failing to remain stopped, receiving).[6] On 29 March 2022 Mr Broughton was a passenger in a vehicle. He gave falsedetails to a constable. He then decamped on foot. He was apprehended and arresteda short time later. During a subsequent search of his property a glassmethamphetamine pipe was located (possession of utensils). When spoken to byPolice he denied knowing the stolen property was stolen.12 Land Transport Act, ss 52A(1)(b) and 114; maximum penalty $10,000 fine.[7] On 15 April 2022, Mr Broughton offered a BBQ for sale on FacebookMarketplace using a fake profile. Following his instructions, the second victimtransferred $200 to him. Mr Broughton stopped responding to the victim on Facebook(obtaining by deception).[8] On 20 April 2022, Mr Broughton was found, appearing to be under theinfluence of drugs, in a vehicle that had recently been stolen (unlawfully taking).When he was processed at the Police station a methamphetamine pipe was located(possession of utensils). He said a friend had given him the vehicle to use.District Court decision[9] Judge Callaghan adopted a starting point of three years' imprisonment for theburglary and unlawful taking of a motor vehicle charges. Discrete uplifts of threemonths were imposed for the thefts and the "unlawful use" of a motor vehicle. Afurther uplift of six months was adopted for the dishonest use of document charges.That resulted in an overall starting point of four years' imprisonment. Having regardto the totality principle, the Judge did not impose an uplift for Mr Broughton's previousconvictions. Mr Broughton received 25 per cent credit for his guilty pleas, 10 per centcredit for his addiction issues and the fact that he is seeking help, and five per cent forthe fact he was prepared to pay reparation. That resulted in an end sentence oftwo years and four months' imprisonment.[10] Reparation was ordered on the burglary, theft, obtaining by deception anddishonest use of a document charges. Mr Broughton was disqualified from driving forsix months on the charges of failing to stop and providing false details.Principles on appeal[11] Appeals against sentence are permitted as of right by s 244 of the CriminalProcedure Act 2011 and must be determined in accordance with s 250 of that Act. Anappeal against sentence may be allowed by this Court only if it is satisfied that therehas been an error in the imposition of the sentence and that a different sentence shouldbe imposed.13 It is appropriate for this Court to intervene and substitute its own viewsonly if the sentence being appealed is "manifestly excessive" and not justified by therelevant sentencing principles.14SubmissionsAppellant's submissions[12] Ms Trinder, for Mr Broughton, sought leave to file fresh evidence on appeal –a restorative justice conference report dated 11 August 2022 between Mr Broughtonand the first victim. Counsel submitted the evidence was directly relevant to the issueof remorse, is credible and there is a risk of a miscarriage of justice if it is not admittedon appeal. She highlighted the assessment report filed by Restorative Justice Serviceson 21 July 2022 recorded that restorative justice had not been possible prior tosentencing due to COVID.[13] Ms Trinder submitted the conference was confronting and challenging forMr Broughton given the victim knew his family and spoke candidly of the distress shehad experienced. She submitted the conference ended positively and Mr Broughtondisplayed insight and remorse into his offending. She referred to Justice Whata'scomment in Solicitor-General v Heta that credit as high as 20 per cent could beappropriate for positive engagement in a restorative justice process and for remorse.15She submitted a discrete credit of 10 per cent would be appropriate to recogniseMr Broughton's participation in restorative justice, the letter of apology written to thepre-sentence report author and his genuine remorse. She submitted an adjustedsentence of 24 months' imprisonment was appropriate. However, the appellant doesnot seek a sentence of home detention.Respondent's submissions[14] Mr Alloway filed submissions on behalf of the Police and Ms Lancasterappears in support of the Police position. A neutral stance is taken on the applicationto offer fresh evidence. Mr Alloway submitted the Judge was correct not to allow a13 Criminal Procedure Act 2011, ss 250(2) and 250(3).14 Ripia v R [2011] NZCA 101 at [15].15 Solicitor-General v Heta [2018] NZHC 2453, [2019] 2 NZLR 241 at [65].discrete credit for remorse given the lack of relevant tangible evidence. He highlightsthe Judge appropriately allowed credit for both addiction issues (10 per cent) and forreparation (five per cent), reflecting ample recognition of remorse and a willingnessto engage in a restorative justice process.[15] In response to the fresh evidence and with reference to recent authorities,16counsel acknowledged that similar restorative justice conferences have led todiscounts of 10 per cent. Accepting the fresh evidence may warrant a discount in thatregion, counsel urged the Court to be alert to discount creep, described as:17 a phenomenon by which closely related or interrelated mitigating featuresare artificially disaggregated, then each awarded full and discrete discount toachieve a desired result.[16] Counsel noted that a 10 per cent credit as proposed on behalf of the appellantwould lead to an overall deduction of 50 per cent. Ms Lancaster submits that theJudge, in taking into account both addiction at 10 per cent and reparation atfive per cent has adequately taken into account the issues adduced as fresh evidenceon appeal, albeit acknowledging that a further credit is available, but submits thatoverall the sentence imposed was not manifestly excessive.Analysis[17] I will deal first with the credit sought for Mr Broughton's remorse andengagement in restorative justice.[18] This ground of appeal first requires a ruling on the application to admit freshevidence. The principles are well-settled. The evidence must be fresh, credible andcogent.18 The overriding test governing admission is the interests of justice.19 I amsatisfied that the evidence Mr Broughton seeks to adduce is fresh, the restorativejustice conference took place after the sentencing. Restorative Justice Services hadbeen advised Mr Broughton and the first victim were willing to participate prior to16 R v Ringdahl [2020] NZHC 1922; R v Pan [2020] 2342 and R v Manuel [2021] NZHC 250.17 R v LB [2020] NZHC 94, at [53].18 Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273 at [120]; and Mark v R [2019] NZCA 121 at[16].19 At [119].sentencing but a meeting was not possible prior to sentencing due to COVID. Thatwas a circumstance beyond the control of Mr Broughton or his counsel (notMs Trinder). I am also satisfied the evidence is credible and cogent. The restorativejustice report was prepared by a facilitator. It is accepted that it accurately records theconference. Cogency arises as the report could affect the appropriate sentence forMr Broughton.[19] The application to admit the restorative justice report as fresh evidence on theappeal is granted.[20] The fresh evidence records that at the restorative justice conferenceMr Broughton explained the background to his offending. The first victim articulatedthe fear and loss she suffered as a result of his offending. He accepted responsibilityand expressed remorse. While there appears to have been a difference in theinformation given to the first victim by Police and Mr Broughton, it does not appearthat arose from him attempting to minimise his responsibility. Mr Broughtondemonstrated empathy and insight by explaining that he had been thinking selfishly.He said it was hard to hear the things that the first victim told him. He explained thiswas his first time in prison and that he did not realise he was hurting people. I thinkhis position is captured in the following comment:I am truly sorry. Words are not enough. I will remember this forever. It isdisheartening that I have done this to my family, your family and my littlebrother. I am sorry to you and your family. I wish I could take it back. It'scharacter building.[21] The restorative justice conference also demonstrated Mr Broughton'sprospects of rehabilitation. He explained prison had been salutary for him and he isfocused on setting goals and ensuring he does not return to prison. He indicated anintention to work for his father, who is a builder, and that he has been participating indrug rehabilitation.[22] The views he expressed through the report are consistent with the pre-sentencereport writer's assessment that Mr Broughton presented as motivated to acceptresponsibility for his offending, to tackle his drug addiction and to lead a normal lifein the community. If Mr Broughton had a suitable address, the report writer wouldhave proposed a sentence of home detention or intensive supervision.[23] Section 8(j) of the Sentencing Act 2002 provides the Court must take intoaccount any outcomes of restorative justice processes that have occurred.Section 9(2)(f) states the Court must take into account remorse shown byMr Broughton to the extent it is applicable. The Judge gave credit for Mr Broughton'sguilty pleas, his offer to pay reparation and for addiction issues. I accept in this casethere is an overlap between the credit properly available for reparation and the creditthat is available for participating positively in restorative justice processes. I agreewith Ms Trinder that the credit the Judge gave for addiction issues is, on the facts ofthis case, distinct. The restorative justice report does, to my mind, demonstrateremorse at a level that was not apparent to, or considered by, the District Court Judgeto the extent that a further additional discrete credit is warranted for what isMr Broughton's now demonstrated remorse and acceptance of responsibility. BecauseI consider there to be an overlap between reparation and remorse in this case, in myview a further discount of five per cent, rendering a total discount for remorse andrestorative justice at 10 per cent, is appropriate.20[24] In the course of the hearing, I raised with counsel my concern the Judge haderred in setting a starting point of four years' imprisonment. The Judge appropriatelyidentified the burglary as the lead offence but then took a starting point "for thisburglary and for the unlawful taking and the associated issues" of three years'imprisonment, with uplifts of 12 months for the balance of the offending, leading tothe four-year starting point. The burglary and the unlawful taking of the motor vehiclewere quite discrete offences. The structure of the sentence presents a challenge inassessing the starting point the Judge might have taken for the burglary alone.[25] The more fundamental problem is that the uplift of 12 months for the additionaloffending included an uplift of three months for "the unlawful use of a vehicle".Mr Broughton faced a single charge of unlawfully taking (or using) a motor vehicle.20 Solicitor-General v Heta, above n 15; R v A [2018] NZHC 2024 at [46]; R v Martin [2017] NZHC1571; R v Angelich [2018] NZHC 2429; R v Ringdahl, above n 16; R v Pan, above n 16;R v Manuel, above n 16.The three-month uplift for this charge was an error, in my view, as the Judge hadalready factored this charge when fixing the starting point of three years'imprisonment. The Judge therefore double-counted the unlawful taking of a motorvehicle charge. That error requires the starting point to be adjusted by three monthsunless the three year starting point was appropriate for the burglary charge alone.[26] The burglary was a daytime, unsophisticated offence. No physical damage wascaused and the total value of the two items stolen was $369. In my assessment, thatoffence is properly categorised as a low-level residential burglary, albeit by an offenderwith a history of three prior burglaries and seven dishonesty offences.[27] In Arahanga v R, the Court of Appeal observed that there was no tariff forburglary because the range of circumstances in which the offence can be committed isso varied.21 However, it was observed that burglary of a domestic residence is asignificant aggravating feature due to the heightened risk of confrontation withoccupants.22 The Court observed dwelling house burglaries at the relatively minor endof the scale tend to attract starting points between 18 months and two years and sixmonths' imprisonment.23 More recently, in Taylor v R,24 where a 17-month startingpoint was adopted for a low-level daytime dwelling house burglary with an elementof premeditation, the Court of Appeal observed that a low-level dwelling houseburglary can attract a starting point from one to two and a half years' imprisonment.In Columbus v R the Court of Appeal observed previous convictions for dishonestyoffending, while aggravating personal circumstances, are often considered whensetting a starting point for burglary offending.25[28] In my view a three-year starting point for the burglary alone was too high. Anappropriate starting point I have assessed for the burglary is 20 months' imprisonment.An appropriate uplift for the unrelated charge of unlawful taking of a motor vehicle21 Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189 at [78].22 At [78], referring to Senior v Police (2000) 18 CRNZ 340 (HC) at [19].23 At [78], referring to Wilson v R HC Auckland CRI-2011-404-445, 7 February 2012; Dudley vPolice HC Christchurch CRI-2009-409-1, 26 February 2009, Arps v Police HC ChristchurchCRI-2010-409-167, 2 September 2010; and Snowden v Police HC Hamilton CRI-2010-419-52,15 July 2010 among others.24 Taylor v R [2021] NZCA 606 at [39]-42], referring to Arahanga v R, above n 21, Tutakangahau v R[2014] NZCA 279, [2014] 3 NZLR 482 at [42]–[44]; and Columbus v R [2008] NZCA 192 at [16].25 Columbus v R, above n 24, at [14].must reflect that the vehicle was badly damaged, it had high value of $45,000 andthere were distressing consequences as recorded in the victim impact statement. I fixthe appropriate uplift as nine months' imprisonment.[29] With the other uncontested uplifts (total nine months), the adjusted startingpoint is three years and two months' (38 months) imprisonment. I agree with the Judgethat there is no need for a further uplift to reflect Mr Broughton's criminal historyhaving regard to the totality principle.[30] The Judge had applied a total deduction of 40 per cent. I have concluded thata further five per cent is appropriate to reflect remorse. That results in an end sentenceof 21 months' imprisonment.Result[31] The appeal against sentence is allowed.[32] The sentence of two years and four months' imprisonment on the burglarycharge is quashed and substituted with a sentence of 21 months' imprisonment. Thesentences imposed are otherwise confirmed.[33] Pursuant to s 93 of the Sentencing Act 2002 I impose the standard releaseconditions as set out in s 14 of the Parole Act 2002 and a special condition thatMr Broughton is to undertake any drug-related counselling and treatment as directedby a Probation officer. These standard and special conditions are to expire six monthsafter the sentence expiry date....................................................Eaton JSolicitors/Counsel:Aja Trinder, ChristchurchCrown Solicitor, Christchurch