SEAN PATRICK BRODERICK v DEPARTMENT OF CORRECTIONS and NEW ZEALAND POLICE [2021] NZHC 1918

SEAN PATRICK BRODERICK v DEPARTMENT OF CORRECTIONS and NEW ZEALAND POLICE [2021]NZHC 1918 [17 June 2021]IN THE HIGH COURT OF NEW ZEALANDWHANGANUI REGISTRYI TE KŌTI MATUA O AOTEAROAWHANGANUI ROHECRI-2021-483-000005/6[2021] NZHC 1918BETWEEN SEAN PATRICK BRODERICKAppellantAND DEPARTMENT OF CORRECTIONS andNEW ZEALAND POLICERespondentHearing: 17 June 2021Appearances: E Copeland for the AppellantR Benic for the RespondentJudgment: 17 June 2021JUDGMENT OF GRICE J(sentence appeal)[1] Mr Broderick appeals a sentence imposed by the District Court on28 April 2021. I refer to that as the District Court April 2021 sentence.1[2] This was a replacement sentencing pursuant to s 80F of the Sentencing Act2002,2 as well as a sentencing for new offending. The final sentence imposed in April2021 was of 23 months' imprisonment which replaced the original sentence of homedetention and intensive supervision. The charges for which Mr Broderick was beingsentenced were set out in the sentencing notes of April 2021 as follows:(a) unlawful taking of a motor vehicle;31 Broderick v Police [2021] NZDC 7746 (District Court Decision; Sentencing Notes of April 2021).Written version edited for grammar and flow with footnotes added for reference.2 Sentencing Act 2002, s 80F.3 Crimes Act 1961, s 226(1)(a): maximum penalty seven years' imprisonment.(b) failing to stop;4(c) driving a motor vehicle in a dangerous manner;5(d) driving while disqualified;6 and(e) escaping from police custody.7[3] The new offences were:(a) unlawfully entering a motor vehicle;8 and(b) breaching home detention.9[4] The sentences for each of the 2020 sentenced offences were not separated, asa totality approach was taken by both the original sentencing Judge and by there-sentencing Judge in April 2021. Counsel have agreed that the same approachshould be taken here.[5] Mr Broderick appeals the re-sentencing on the following grounds:(a) First, that the end point reached was manifestly excessive and resultedfrom a departure from a principle of law;10(b) Second, that the Judge erred in failing to take into account the discountapplied by the original sentencing Judge of 17 per cent for culturalissues based on a s 27 report and for remorse.11 An end sentence of4 Search and Surveillance Act 2012, s 177(1)(a) and (b): maximum penalty three months'imprisonment.5 Land Transport Act 1998, s 35(1)(b): maximum penalty three months' imprisonment or a fine notexceeding $4,500.6 Section 32(1)(a): maximum penalty three months' imprisonment or a fine not exceeding $4,500.7 Crimes Act 1961, s 120: maximum penalty five years' imprisonment.8 Crimes Act 1961, s 226(2): maximum penalty two years' imprisonment.9 Sentencing Act 2002, s 80S: maximum penalty one year's imprisonment or a fine not exceeding$2,000.10 Sentencing Act 2002, s 8(h) and (i).11 Section 27. The cultural report was obtained for the purposes of this appeal. It was not before theDistrict Court Judge in April 2021.16 months should have been adopted in relation to the originaloffending with a further two months' cumulative imprisonment for thenew offending, resulting in an end point of 18 months' imprisonment.[6] The appellant says that the reasoning of the re-sentencing Judge as to why thes 27 mitigating factors should no longer apply departs from the reasoning given byJudge Whata in Solicitor-General v Heta.12 Finally, he says that the creditacknowledged by Judge Aitken should apply despite Mr Broderick's failure to turn hislife around indicated by his further offending.Background[7] The summary of facts as set out in the re-sentencing decision of April 2021 areas follows:13[3] Just over a month after home detention was imposed by Judge Aitken,you removed, on 20 January 2021, your electronically monitored equipmentin breach of the conditions of home detention and absconded. You left theProbation Service not knowing your whereabouts. The home detentionsentence was due to expire on 10 June this year, so we are left with effectivelyfive of the six months' sentence not served.[4] The Department of Corrections has applied to cancel thehome detention sentence. The ground for cancellation is made out by yourbreach of home detention conditions and I cancel that home detentionsentence and I will reflect the part of the home detention sentence which hasnot been served in the sentence that I am about to impose in relation to alloutstanding charges.[5] The facts that were before Judge Aitken on sentencing in the AucklandDistrict Court late last year are set out in paragraphs [3–7] of her sentencingnotes of 11 December 2020.[6] The offending took place on 6 May last year. The victim, whose nameand any other identifying details will be permanently suppressed together withthe name and any other identifying details relating to her baby, had left hervehicle at a BP Station in Whangarei. Her five-week old baby was in the backseat. She had an appointment. She needed to get petrol. She was under somestress due to the urgency. She pulled into the pump and in her rush, she turnedthe engine off but left the keys in the ignition. She went to pre-pay for thepetrol. Her baby was asleep in the car, secured in the rear back seat and as ittranspired a blanket had been placed over the baby. At that time, you weresitting outside one of the stores nearby and as soon as she left the vehicle you12 Solicitor-General v Heta [2018] NZHC 2453 at [41] to [50].13 Sentencing Notes 2021, above n 1, at [3]–[9].walked across the road to the BP forecourt, got into the vehicle, started theengine and drove off.[7] The Judge said that she stressed that you were not aware that therewas a baby in the back of the car and the victim herself acknowledged thatyou would not have been aware unless you lifted the blanket to see that therewas a baby. So the Judge concluded you were not aware when you took thecar that there was in fact a five week old child in it.[8] You travelled about three kilometres before the police sighted you.You were travelling at speed. They were aware that the car had been reportedstolen. They commenced to follow you. You travelled too fast around a rightsharp turn, you then lost control of the vehicle, it mounted the footpath andcollided with a rock retaining wall before veering back across the road andcolliding with a parked vehicle. You continued to drive. You were out ofcontrol and you crashed over the retaining wall of the neighbouring drivewayand the car dropped about a metre down a bank before coming to a rest. Yougot out of the vehicle. You got out of the vehicle and you ran. The baby wasunharmed and remained restrained in the rear of the vehicle and as best hermother can discern she looks to have slept entirely through the incident. Shewas checked by St Johns ambulance staff and deemed fit and healthy and hermother says she has no issues and her mother has no concerns that the wholeincident had any impact at all on the child. The car was extensively damaged.The victim refers to getting just over $100 for scrap metal.[9] You were subsequently identified through CCTV footage and a DNAprofile and you were later arrested by police when you were recognised by anoff-duty officer. In your interview you said there were multiple stress factorsfor you, you noticed she left her keys in the car and you saw the suddenopportunity to leave Whangarei and you took the car. You said you panickedwhen you saw the flashing lights and lost control and you said then and youmaintain, and there are no issues, that you were unaware the child was in thecar.District Court Decision[8] The District Court Judge in the April 2021 re-sentencing noted that in theoriginal sentencing in December 2020 the Judge had assessed an end point of16 months. In that respect the Judge noted that:14[10] The Judge assessed an end point sentence of16 months' imprisonment - influenced in particular by the Judge's impressionat the time of sentencing, that you were remorseful for the events that hadtaken place, you wanted to turn your life around and you were ready to dothat. An end point assessment of 16 months' imprisonment would have beenavailable. In substitution for that, she instead, having regard to the factors inyour favour, imposed a sentence of home detention for six months followedby six months of release conditions.14 Sentencing Notes April 2021, above n 1, at [10].[9] The re-sentencing Judge then set out the structure of the original sentencingand how he had reached his substitute sentence in April 2021. He said:15[11] The Judge specifically stated at paragraph [28] of her sentencingnotes, and I quote:If there is a breach of this sentence, if there is further offending whilston sentence, then it would be sensible for the matter to come backbefore me as the sentencing judge and I need to make is very clear toyou that if there is a significant breach of this sentence, the alternativeto a sentence of home detention is imprisonment.[12] The Judge asked the question to you in Court: "Do you understand,"and the response was "Yes".[13] Also, for completeness, I mention that the judge imposed an order fora period of disqualification from driving and also made an order of emotionalharm reparation in the sum of $1,000.[14] Now clearly, despite the Judge's comments, this matter that is nowbefore the Court in Whanganui, did not, for various reasons, go back beforeJudge Aitken for sentencing and instead it has come before me today.[15] In terms of determining the sentence which I must impose today, Iadopt the reasoning of Judge Aitken largely, but slightly modified to reflectthe failure by you to comply with the home detention sentence which wasimposed by Judge Aitken and imposed in terms, as she expressed in hersentencing notes, to give you a chance, given the indications that you hadgiven the Court at the time of sentencing late last year.[16] The lead charge, as Judge Aitken found, was the unlawful taking ofthe motor vehicle and the starting point sentence for that was15 months' imprisonment.[17] In relation to the other offences, there was, and I adopt, an uplift forfailing to stop, dangerous driving and driving while disqualified of fourmonths and in addition, there was a further uplift to reflect the fact that at thetime of the offending you were on intensive supervision. That is a further onemonth. Then there was an uplift for previous offending because Mr Broderick,you are, as the Judge observed, a recidivist repeat offender for these kinds ofoffences and that additional uplift was five months, which I adopt. There wasa further uplift in relation to the charge of escaping custody and that was afurther uplift of three months which produces a total of 28 months.[18] I then give you credit for your guilty pleas to the various offences of25 per cent and that is a credit of seven months, so that gets us down to21 months.[19] On top of that, and to reflect the breaches of the home detentionsentence, I add another one month's uplift.15 Sentencing Notes April 2021, above n 1, at [11]–[20].[20] In relation to the further charge of unlawfully entering amotor vehicle, I add a further one month's uplift, so that produces an overallsentence of 23 months in prison. The way I have approached it, that alsoincorporates, as part of all that, recognition of the earlier sentence ofhome detention which the Department of Corrections has today applied tocancel. I confirm that I have cancelled that earlier sentence of home detentionand the sentence of imprisonment that I just recorded reflects the sentence ofhome detention which you did not serve.[10] The re-sentencing Judge then noted that he could not practically set out all thepersonal considerations, including those in the s 27 report, which Judge Aitken hadtaken into account. He saw the earlier judgment as a chance to turn things around forMr Broderick, he had not taken. Therefore, notwithstanding attention being drawn toaspects of Mr Broderick's background,16 the re-sentencing Judge did not allow a creditdespite Mr Copeland's submission that those factors should have been taken intoaccount. The final sentence imposed was 23 months' imprisonment.17LawAppeal[11] An appeal against sentence is an appeal against a discretion. Under s 250 ofthe Criminal Procedure Act 2011 the court must allow an appeal against sentence if itis satisfied that:18(a) for any reason there is an error in the sentence imposed on conviction;and(b) a different sentence should be imposed.[12] Although s 250 does not refer to the requirement that a sentence be "manifestlyexcessive" to be reduced on appeal, it is a principle that is well-engrained in the court'sapproach to sentence appeals.19 The court cannot "tinker" with an end sentence if it iswithin range.2016 That have now been set out in the s 27 report.17 Sentencing Notes April 2021, above n 1, at [22]–[25].18 Criminal Procedure Act 2011, s 250.19 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [35].20 Ripia v R [2011] NZCA 101, at [15].[13] Under s 251 of the Act, if the court allows an appeal against sentence, it must;21(a) set aside the sentence and impose another sentence (whether more orless severe) that it considers appropriate; or(b) vary the sentence, vary any part of the sentence, or vary any conditionof the sentence; or(c) remit the sentence to the court that imposed it and direct that court totake any action of a kind described in paragraph (a) or (b) as specifiedby the first appeal court.[14] The focus is on the sentence imposed and not the process adopted to reach thatend sentence.22Submissions[15] The appellant takes no issue with the end point of 16 months' imprisonmenttaken by Judge Aitken before she commuted that to home detention and intensivesupervision. Nor is any issue taken with the discounts that she took to reach thatpoint. The appellant does not contest the approach of the April 2021 re-sentencingJudge save to say that the start point for the re-sentencing should have been the pointof 16 months' imprisonment.[16] Mr Copeland, for Mr Broderick, says that the new offending should then havebeen taken into account with two months – a month for each of the new offences –added to that starting point, leading to 18 months' imprisonment.[17] Mr Copeland says that the Judge made an error in disregarding the personaland cultural factors. This error led to a difference of five months between thesentence which would have been imposed had Judge Aitken's starting point of16 months' imprisonment been adopted, and that imposed by the re-sentencingJudge.[18] Mr Copeland points to the decision in R v Morgan23 where the resentencingJudge cancelled the sentence of community work and imposed eight months'21 Criminal Procedure Act 2011, s 251.22 Tutakangahau v R, above n 19, at [36].23 R v Morgan [2008] NZCA 232.imprisonment for the original offending. He points, in particular, to the judge'sstatement that:24where imprisonment is imposed in substitution for a community-basedsentence, there will inevitably be a greater degree of hardship for theoffender In such a case the offender will have had the benefit of a lessrestrictive alternative than imprisonment but will have failed to take advantageof it. The re-sentencing Judge is likely to weigh the various purposes andprinciples of sentencing in a way that is different to that which occurred[19] But he emphasised:25Accordingly, while we accept that there must be some proportionality betweenthe sentence originally imposed and the substituted sentence, we do notconsider that there can be any strict correlation between them, much less somemathematical formula. The essential point is that the substituted sentencemust be one that could properly have been imposed initially; and it must beimposed against the background that a sentence of community work wasthought initially to be appropriate The sentence of eight months'imprisonment bore no relationship to the sentence of 150 hours' communitywork originally imposed, or the factors which gave rise to it. The substitutedsentence reflects the Judge's understandable frustration at being misled by theappellant when he accepted the sentence indication. We acknowledge that theJudge also sentenced the appellant on other matters, in a way that did not addto the overall length of the term of imprisonment. The Judge was, thenconscious of the totality principle. Despite that, we consider that the basis onwhich the sentence was formulated was wrong in principle.[20] Mr Copeland notes that the appeal in Morgan was successful. The point of hissubmission was essentially that the re-sentencing Judge should bear in mind somerelativity or proportionality between the substituted sentence and the original sentence.He acknowledges, however, that the Judge in the re-sentencing is entitled to take theirown view of the sentence and impose a sentence which could have been, rather thanshould have been, imposed at the time of the original sentencing.[21] Mr Benic, for the respondent, agrees that the Judge made an error in not takinginto account a discount for personal and cultural mitigating factors but says that thesentence was lenient in any event, and was not manifestly excessive. He says that itis available to the court to find that the sentence imposed by the District Court was notmanifestly excessive and therefore to not specifically address the sentencing Judge'sdecision not to apply credit for personal mitigating factors. Mr Benic points to a24 R v Morgan, above n 23, at [14].25 At [15].number of decisions, in particular the decision of R v Phillips.26 In discussing theprecursor to s 80F the Court of Appeal in that decision said:27The Court on an application made under s.64 is required by s.66(1) to haveregard to the "gravity of the offence for which the sentence was imposed, theextent (if any) to which the offender has served that sentence, the amount ofany fine or reparation imposed with the sentence, and any other circumstancesthat the Court considers relevant."The Court's function is to review the sentence initially imposed making suchenquiries as to the circumstances of the case as are considered reasonable inthe event that a different Judge undertakes the review (s.66(2)). Whereanother sentence is substituted for periodic detention it may be:" any other sentence that could have been imposed on the offenderat the time when the offender was convicted of the offence for whichthe sentence was imposed (s.66(4)(c))."That subsection appears to be directed more to such substituted sentence theCourt has jurisdiction to impose than to the severity of the sentence in thecircumstances of the case. It does not exclude the obligation of the Judge onreview of sentence to form his own view as to the appropriate sentence for theoffence. The subsection does focus upon the time the original sentence wasimposed and so indicates that the substituted sentence should not include anysanction for failure to comply with the earlier sentence. That can be dealt withseparately under s.45. At the same time, however, the Judge on resentencingclearly is entitled to take a different view from the original sentencing Judgeas to leniency if it is apparent that the offender was given a chance ofrehabilitation which has been rejected. To do otherwise would be to disregarda relevant factor which under s.66(1) should be taken into account.[22] The respondent also refers to the comments of Potter J in R v Tanginoa.28 Inparticular, at [44] of that judgment the Judge said that s 84(2)(d) of the Sentencing Act2002 requires that a substituted sentence must be one that "could have been imposedon the offender at the time that the offender was convicted of the offence for whichthe sentence was imposed." The Judge therefore observed that to reconstruct thesentence with the benefit of hindsight would be inconsistent with that provision,"unfair and unjust". The Judge therefore adopted the notional end sentence ofimprisonment that the original sentencing Judge would have imposed had he notconsidered home detention appropriate. That end sentence was 19 months'imprisonment.26 R v Phillips CA 379/90.27 At 2-3.28 R v Tanginoa [2012] NZHC 3504.[23] Mr Benic notes that in that case the original offending and the new offendingfor which the original offending was being re-sentenced occurred close in time, andwere both drug-related. For that reason the offender had not had time to undergo therehabilitation that the Judge in the original sentencing had had in mind in hissentencing.Discussion[24] The statute does not direct the court to impose a sentence in substitution whichshould have been imposed on the offender at the time he was convicted. It requiresthe imposition of a sentence that could have been imposed at the time. In my view there-sentencing court must form its own view, which may well differ from that of thesentencing court. Nevertheless, the original sentence would be considered as part ofthe re-sentencing process. But, as I indicated, it is for the re-sentencing Judge to formtheir own opinion.[25] The circumstances are likely to have changed since the original sentencing. Inparticular, and relevant in this case, is that the evidence of the appellant's remorse andintention to rehabilitate that the original sentencing Judge had taken into account nolonger carried the same weight that they would have at the time of the originalsentence.[26] In the re-sentencing, the Judge cannot take into account the breach that bringsthe defendant back before the court for the substituted sentence. The court wastherefore entitled to reject, as the Judge did, any discount for remorse or prospects ofrehabilitation. They were factors which he could properly find not relevant in thepresent circumstances.[27] However, in this case I consider the Judge in the April 2021 sentencing, whilehe did not err in rejecting any recognition for remorse or rehabilitation, as those factorswere clearly not in play, did err in not taking into account the personal and culturalissues which the court was required to take into account under the Sentencing Act.2929 Sentencing Act 2002, s 8(i).[28] The Judge indicated that it was difficult to extricate the discount for thosefactors from the discount allowed by the original judge for the remorse andrehabilitation prospects. Nevertheless, the Judge was required to make an assessmentbased on the material before him which included a PAC report and counsel'ssubmissions.[29] The s 27 cultural report was obtained after the sentencing in April 2021 in theDistrict Court, although Mr Copeland did address the District Court on culturalmatters at the time of that sentencing and submitted he asked the Judge to take theminto account.[30] The cultural report has been admitted on appeal by consent and therefore I amable to take into account the issues it addresses.[31] In my view the cultural report provides a basis for a reasonable discount basedon cultural issues and deprivation.[32] The report sets out the issues that Mr Broderick faced in his upbringing,including cultural deprivation, lack of educational opportunity, abuse, druginvolvement from an early age and gang involvement. The report notes thatMr Broderick had been largely alienated from his culture. His mother was Māori andwas raised on a pā Māori settlement in South Taranaki, but Māori culture was not partof Mr Broderick's upbringing. Mr Broderick's sister reports that their mother wasraised during a time when they were taught and believed that for Māori to succeedthey needed to learn the Pākehā way. She married a Pākehā man and taught herchildren the Pākehā way. She further stated that she felt her mum was ashamed of herMāori side.[33] The report goes on to note that because of their upbringing the Broderickchildren were confused about their culture. In particular, Mr Broderick was confusedbecause he looked Māori but could not speak te reo Māori and did not understand hisMāori culture. Mr Broderick reported that he started learning more about his culturewhile in prison. He explained that he learnt about Māori bone carving and woodcarving when he was incarcerated at Paremoremo Prison. Mr Broderick has gone onto earn qualifications from Massey University and gained experience to the stagewhere he has taught kapa haka and Māori culture to other inmates in prison.Mr Broderick reported that he had done a few artworks that were commissioned byvarious organisations and which are displayed around the country. Some of hisartworks are displayed in the Invercargill Museum and the Dunedin Library.[34] As I said, the comprehensive report provides the material that enables me totrace the life that Mr Broderick has lived which has led to his present situation. Hehas spent 32 years of the last 38 years in prison, partly due to personal and culturalfactors directly attributable to the loss of his Māori identity and the consequentconfusion and deprivation visited upon him, including the lack of educationalopportunity and drug and gang involvement.[35] He has a supportive whānau and Mr Copeland indicated Mr Broderick stillhoped to be able to pay the original emotional harm reparation of $1,000 that he wasordered to pay in December 2020. He has now clearly let himself and his whānaudown by not grasping the opportunity that he was offered by Judge Aitken to turn hislife around.[36] I do not consider that the sentence was otherwise excessively lenient. I adoptthe views of Judge Aitken and the re-sentencing Judge in relation to sentence, apartfrom the discount allowed for personal and cultural issues. In my view Judge Aitkenand Judge Carter properly assessed the circumstances and applied appropriateaggravating and discounting factors, including the 25 per cent discount and additionaluplifts. However, I am satisfied that the re-sentencing Judge erred in failing to takeinto account Mr Broderick's personal and cultural factors.[37] I now have the advantage, which the re-sentencing Judge did not have, of theinformation in the cultural report. It may well be that Judge Aitken, through theiterative process that she engaged in in her sentencing process, was more aware of thecultural dimension of that background in this case than was apparent at Mr Broderick'sre-sentencing. Mr Copeland did make submissions on cultural factors atre-sentencing.[38] Mr Copeland did agree that some deduction should be made from the discountgiven by Judge Aitken, given Mr Broderick's failure to engage in rehabilitation andthe lack of remorse shown by his subsequent offending.[39] In my view an adjustment should be made by applying a 15 per cent discountfor cultural and personal issues, in view of the force of the issues raised in the culturalreport. That is in addition to the 25 per cent discount for the guilty plea applied to theoriginal 28 months starting point taken by Judge Aitken.[40] To that must be added the two months' imprisonment: one month for each ofthe new offences. That appears appropriate in the circumstances.[41] This is not a strictly mathematical exercise. Therefore, standing back, Idetermine that the final sentence should be one of 19 months' imprisonment. Thatcompares with the 23 months' imprisonment imposed in May 2021. Therefore, in myview, the sentence was manifestly excessive. There is an error in the sentence imposedand a new sentence ought to be imposed. To that I would add my judgment on thetotality also bears in mind the fact that Mr Broderick had served a month of his homedetention sentence. I also propose reinstating, or making part of his re-sentence, thedisqualification and the reparation orders that were omitted from the re-sentencing.Conclusion and Conditions of Sentence[42] My conclusion is that the cancellation of the December 2020 sentence as aresult of the April 2021 sentencing decision is confirmed but the sentence of23 months' imprisonment imposed in substitution is quashed. A sentence of19 months' imprisonment is imposed, together with a sentence of disqualification fromholding or obtaining a driving licence for eight months from 8 December 2020,together with an order for payment of emotional reparation of $1,000 to be paid to thevictim on the unlawfully taking the motor vehicle charge.[43] There is an order permanently suppressing the name of the victim and her childand an order suppressing any reference to the defendant' past trauma and anyACC-sensitive claim._____________________Grice JSolicitors:Wilkinson Smith Lawyers for the Crown