RUSHTON v NEW ZEALAND POLICE [2023] NZHC 2754

RUSHTON v NEW ZEALAND POLICE [2023] NZHC 2754 [2 October 2023]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECRI-2023-409-145[2023] NZHC 2754BETWEEN JOSHUA RUSHTONAppellantAND NEW ZEALAND POLICERespondentHearing: 28 September 2023Appearances: J Tupaea for AppellantA R T Garrick for RespondentJudgment: 2 October 2023JUDGMENT OF DUNNINGHAM JThis judgment was delivered by me on 2 October 2023 at 9.30 am,pursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDateIntroduction[1] Joshua Rushton pleaded guilty to five charges of receiving stolen property,1escaping custody,2 threatening to injure with intent to intimidate,3 and failing tocomply with conditions of intensive supervision4 and community work.5[2] Mr Rushton was sentenced by Judge Couch on 7 June 2023 to 28 and a halfmonths' imprisonment and was ordered to pay reparation of $5,200.6[3] Mr Rushton appeals this sentence on the basis of an inadequate s 27 report.Background facts[4] Mr Rushton received the following stolen items: a mountain bike worth$3,000, an electric scooter worth $2,400, four leather vests and an electric bike worth$5,200. The intimidation charge relates to a victim taking back his stolen bike whenMr Rushton attempted to sell it on Facebook marketplace. Mr Rushton sent thevictim's girlfriend a picture of a knife via Facebook messenger and said, "Returnwhat's not urs b4 I fuck use all up" and "ur [bloods] going to be on this next".[5] The escaping custody charge relates to when police came to arrest Mr Rushtonfor breaching his bail conditions and he locked the doors to his house, attempted torun away from police after threatening to send his dogs on them, was caught and putin a patrol vehicle, and then moved across the backseat of the car, opened the driver'sside passenger door and fled on foot.1 Crimes Act 1961, ss 246 and 247(a): maximum penalty seven years' imprisonment.2 Section 120(c): maximum five years' imprisonment.3 Summary Offences Act 1981, s 21(1)(a): maximum penalty three months' imprisonment or a$2,000 fine.4 Sentencing Act 2002, s 70A(a): maximum penalty six months' imprisonment or a $1,500 fine.5 Section 71(1)(a): maximum penalty three months' imprisonment or a $1,000 fine.6 New Zealand Police v Rushton [2023] NZDC 11503.[6] The breaches of conditions charges relate to Mr Rushton's sentencing for othercharges of receiving stolen property. For both charges, he failed to engage in, orcomply with, his obligations under a sentence of intensive supervision and communitydetention.District Court decision[7] The District Court Judge adopted a starting point of 20 months' imprisonmentfor the receiving charges, noting that Mr Rushton has been convicted of very similaroffending recently and was given an opportunity to reform on a sentence of intensivesupervision and community work. He adopted a nine-month starting point for theescaping from police custody charges. There was a four-month uplift for the breachesof intensive supervision and community work and a one-month uplift for theintimidation charge. The Judge then adjusted the starting point down to 30 months'imprisonment for totality.[8] For personal aggravating factors, the Judge applied an uplift of 10 per cent toreflect that some offences occurred while subject to sentence and a 10 per cent upliftto reflect Mr Rushton's extensive criminal history, including 24 dishonesty offences.[9] For personal mitigating factors, the Judge adopted a 20 per cent discount forguilty pleas.[10] In respect of Mr Rushton's s 27 report, the Judge noted the report was 16 pageslong, but some of it was a boilerplate template used in every report. He said the reportdetailed some degree of Māori heritage, but it did not detail how much or the natureof it. The Judge said that Mr Rushton had a very limited connection with tikangaMāori, and his upbringing certainly did not have regard to tikanga. However, theJudge noted that Mr Rushton is now 26 and it was difficult to see the causal connectionbetween what was described in the report and the offending. The Judge said that thegeneralised academic view of the report writer as to the disadvantage people withMāori heritage face in society was not sufficient to provide a solid connection betweenMr Rushton's background and the offending.[11] The Judge did, however, take into account the role of synthetic drugs inMr Rushton's offending. He also took into account, to a limited extent, his counsel'scomments that Mr Rushton was not taking his medication when the offendingoccurred and gave a five per cent discount for personal mitigating factors.[12] This led to an end sentence of 28 and a half months' imprisonment with anorder of reparation of $5,200.Principles on appeal[13] Appeals against sentence are allowed 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 only be allowed by this Court if it is satisfied that therehas been an error in the imposition of the sentence and that a different sentence shouldbe imposed.7 The Court of Appeal supported the lower court's decision inTutakangahau v R: "[a] court will not intervene where the sentence is within the rangethat can properly be justified by accepted sentencing principles".8 It is onlyappropriate for this Court to intervene and substitute its own views if the sentencebeing appealed is "manifestly excessive" and not justified by the relevant sentencingprinciples.9The appeal[14] I first note that this appeal was filed out of time. The appeal was filed on4 August 2023 with the sentencing occurring on 7 June 2023. Mr Tupaea said in thenotice of appeal that Mr Rushton previously attempted to engage a lawyerunsuccessfully. No issue was taken with the appeal being filed out of time, so I grantleave and go on to consider the substance of the appeal.[15] Mr Tupaea, for Mr Rushton, submits the sentence should be quashed and thematter remitted back to the District Court for resentence on the basis that the s 27report was inadequate. He says the report did not cover all salient points and limited7 Criminal Procedure Act 2011, s 250(2) and 250(3).8 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].9 Ripia v R [2011] NZCA 101 at [15].the Judge in assessing a relevant discount of five per cent. He accepts this discountwas appropriate on the material before the Judge. This disadvantaged the appellant.He submits the pre-sentence report provided more insight to Mr Rushton's backgroundthan the s 27 report. However, Mr Tupaea does not elaborate in his submissions onwhat was missing from the report nor does he provide fresh evidence on this point.Discussion[16] The Court of Appeal has held that a failure to engage s 27 of the SentencingAct 2022 could provide a proper basis to reconsider sentence. However, the appellantmust provide enough information to satisfy the appeal court that the failure to engagethe s 27 process resulted in matters that may have impacted on sentence beingoverlooked.10 It is also generally expected that an appeal based on the failure toconsider a s 27 report, or here (by analogy), a more comprehensive s 27 report, thatsuch a report is prepared and presented to the court on appeal.11[17] Mr Tupaea has not provided the Court with any additional information that wasmissing from the s 27 report that would materially impact sentencing. Furthermore,the report itself is not obviously inadequate. It outlines Mr Rushton's familybackground, his early exposure to violence from his stepmother and witnessingviolence against his mother by her boyfriends, his education and leaving school afteryear 10, his experiences with homelessness, crime and going to Te PunaWai ō Tuhinapo and his mental health. The report also touches on Mr Rushton'sdisconnection with te ao Māori, although this is largely in an academic sense. Thereis no aspect of Mr Rushton's circumstances that is identified as omitted. It draws theconnection between his use of synthetic cannabis and his offending. Furthermore, itappears that the Judge had a discussion with counsel during the hearing about thereport and gave him an opportunity to supplement that report with his submissions. Inaddition, as accepted by Mr Tupaea, the report is supplemented by the pre-sentencereport which also covers Mr Rushton's background and the drivers of his offending.As acknowledged by Mr Tupaea, a discount of five per cent based on that informationwas appropriate.10 Akuhata v R [2020] NZCA 19 at [151].11 Taylor v R [2020] NZCA 584 at [14].Result[18] Given there is no identified error in the sentencing and the appellant has notshown a different sentence should have been imposed, the appeal is dismissed.Solicitors:Crown Solicitor, ChristchurchCopy to:J Tupaea, Barrister, Christchurch