BROOKING v NEW ZEALAND POLICE [2020] NZHC 1035

BROOKING v NEW ZEALAND POLICE [2020] NZHC 1035 [19 May 2020]IN THE HIGH COURT OF NEW ZEALANDTAURANGA REGISTRYI TE KŌTI MATUA O AOTEAROATAURANGA MOANA ROHECRI-2019-463-79[2020] NZHC 1035BETWEEN STEWART RIKI BROOKINGAppellantAND NEW ZEALAND POLICERespondentHearing: 18 May 2020(Heard at Rotorua)Appearances: C Gentleman for AppellantA Pollett for RespondentJudgment: 19 May 2020JUDGMENT OF LANG J[on appeal against sentence]This judgment was delivered by me on19 May 2020 at 3.30 pm.Registrar/Deputy RegistrarDateSolicitors:Crown Solicitor, Tauranga[1] Mr Brooking pleaded guilty in the District Court to six charges of burglary,four charges of receiving stolen property, three charges of driving whilst disqualified(in its aggravated form), one charge each of cultivating cannabis and being inpossession of cannabis for supply and breaching sentences of supervision (x 2) andcommunity work. On 9 April 2020 Judge Geoghegan sentenced Mr Brooking to fouryears imprisonment.1[2] Mr Brooking appeals against sentence. On his behalf Ms Gentleman contendsthe Judge made several errors in formulating the sentence and this has resulted in anend sentence that is manifestly excessive.The offending[3] The burglary charges related to five commercial properties and one residentialproperty. These occurred between 16 October and 14 November 2019. The burglaryof the residential property occurred on the night of 13 November 2019. Mr Brookinggained entry to a rural residential address through an insecure door. He then removeda hot-water cylinder from its cupboard, causing substantial structural and waterdamage to the premises in the process. After taking the cylinder home he stripped itdown and sold the copper components to a scrap metal dealer for $40.[4] Each of the other burglaries involved Mr Brooking gaining forcible entry toretail premises and then (in all but one case) stealing quantities of goods from them.Mr Brooking sold the stolen property for much less than its retail value. Propertyworth more than $15,000 was stolen in these burglaries. None of it has been recovered.[5] The receiving charges related to incidents in which Mr Brooking came intopossession of property that had been recently stolen from both commercial andresidential addresses. The total value of the property was more than $40,000. Theitems of greatest value were four kilograms of kiwifruit pollen worth approximately$28,000 and approximately $12,000 of wine that had been stolen from a residentialaddress. Mr Brooking sold the property for much less than its retail value. Virtuallynone of the property has been recovered1 New Zealand Police v Brooking [2020] NZDC 6231.[6] The police went to Mr Brooking's address on 13 October 2019. There, theynoticed cannabis growing in the back yard. They removed approximately 250cannabis seedlings from the property. These ranged from two to 12 inches in height.Mr Brooking told the police he used cannabis to ameliorate pain that he suffers froman old rugby injury.[7] On 18 September 2019 the police stopped a vehicle in which Mr Brooking wastravelling in Opotiki. They searched a bag he was wearing around his shoulders andthis was found to contain $170 in cash as well as 21 rolled-up sections of tinfoil, eachof which contained approximately three grams of cannabis leaf. He told the police hewas "just trying to survive".[8] The charges of driving whilst disqualified were laid in its aggravated form afterMr Brooking drove a motor vehicle on 31 March, 31 October and 14 November 2019.[9] The charges of breaching a sentence of community work reflected incidents on23 February and 23 July 2019 when Mr Brooking failed to attend as required toundertake community work. The charge of breaching a sentence of supervision waslaid after he failed to attend a programme his probation officer had directed him toattend on 20 May 2019.The sentence[10] The Judge selected the charge of burglary of the residential premises as thelead charge. He adopted a starting point of two years imprisonment on that charge.He then added an uplift of two years to reflect the five remaining burglary charges andthe three charges of receiving stolen property.[11] The Judge applied a further uplift of 12 months to reflect the charges ofcultivation of cannabis and being in possession of cannabis for supply. He then addedan uplift of three months to reflect the remaining charges, which comprised the threecharges of driving whilst disqualified and the charges of breaching sentences ofcommunity work and supervision. This produced a sentence of five years threemonths imprisonment on all charges. The Judge did not consider any reduction waswarranted to reflect totality principles.[12] The Judge noted that Mr Brooking has numerous previous convictions foroffending involving dishonesty. He added an uplift of four months to reflect thisfactor.[13] From the resulting sentence of five years seven months imprisonment theJudge applied a discount of three months to reflect the fact that Mr Brooking hadcooperated with the police to the extent that he had candidly admitted his involvementin the offending. This saved the police a considerable amount of investigation.[14] The Judge declined to apply any reduction to reflect either remorse or factorsidentified in a cultural report prepared under s 27 of the Sentencing Act 2002.[15] The Judge then applied a discount of 16 months, or 25 per cent, to reflect guiltypleas. This resulted in the end sentence of four years imprisonment.DecisionInappropriate lead charge[16] Ms Gentleman contends that the Judge erred in selecting the burglary of theresidential property as the lead charge. She submits one of the commercial burglarieswould have been a more appropriate choice as a lead charge.[17] This submission has no real substance because it does not matter which chargethe Judge selected as the lead charge. One of the burglary charges needed to beselected and then an uplift needed to be applied to reflect the remaining charges ofburglary and receiving.[18] In any event I do not consider the Judge erred in selecting the burglary of theresidential premises as the lead charge. It involved the burglary of residential premisesat night when there was a risk the occupants would be present in the property. Itinvolved premeditation because it was a targeted burglary in which Mr Brooking hadalready determined what he wanted to steal from the address. It also involvedsignificant damage being caused to the property. The occupants would have beenrequired to repair the damage and meet the cost of purchasing and installing a new hotwater cylinder.[19] As the Judge correctly observed,2 the burglary of a residential address willusually attract a starting point of 18 months to two and a half years imprisonment.3The circumstances of the present case easily justified a starting point of two yearsimprisonment on this charge.Uplift for remaining charges[20] Ms Gentleman submits an uplift of no more than 12 months was justified toreflect the remaining burglary and receiving charges. I do not accept this submission.The five burglary charges relating to commercial premises resulted in significantdamage to the premises concerned and, in all but one case, the theft of valuable itemsfrom them. The receiving charges also related to stolen property having considerablevalue. I consider an uplift of just 12 months would have been insufficient to reflectthe gravity of these charges. Furthermore, I consider an uplift of two yearsimprisonment to be modest. An uplift of more than that could have been justified.This ground of appeal fails as a result.[21] Ms Gentleman also queries the uplift applied in relation to the cannabischarges. As the Judge observed, however, the starting point for being in possession ofcannabis for supply is usually not less than two years imprisonment where theoffending has a commercial element.4 I therefore do not consider an uplift of 12months to reflect charges of both being in possession of cannabis for supply andcultivating 250 cannabis seedlings to be excessive.[22] In any event Mr Brooking was fortunate the Judge applied an uplift of justthree months to reflect the remaining charges. These related not only to breaches ofsentences imposed by the Court but also the three charges of driving whilst2 Police v Brooking, above n 1, at [27].3 Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189 at [78].4 R v Terewi [1999] 3 NZLR 62 (CA).disqualified in its aggravated form. An uplift of at least six months on the remainingcharges could easily have been justified.Uplift for previous convictions[23] Ms Gentleman submits no uplift should have been applied to reflect previousconvictions because the sentence of two years imprisonment the Judge selected on thelead charge already factored in Mr Brooking's previous convictions. She says acommunity-based sentence or a sentence of home detention would have been imposedon that charge if this had been Mr Brooking's first offence. I accept this submissionas far as it goes but a starting point of two years imprisonment on the lead charge wasjustified regardless of whether a lesser end sentence may have been imposed if thishad been his first such offence.[24] Furthermore, the Judge applied an uplift of just under six per cent to reflectprevious convictions. I do not consider this to be excessive given the number andnature of Mr Brooking's relevant previous convictions. Another Judge may havegiven applied an uplift of three months but another Judge may equally have appliedan uplift of five months. Uplifts of this nature fall very much within a sentencingJudge's discretion, and appellate courts rarely intervene in this area unless the level ofuplift exceeds 15 to 20 per cent.Totality issues[25] Ms Gentleman submits the Judge erred in declining to reduce the sentence toapply totality principles. These require a sentencing Judge to ensure an end sentenceof imprisonment is not wholly out of proportion to the gravity of the overalloffending.5[26] Ms Gentleman submits the Judge erred in principle by considering the issue oftotality prior to the point at which he applied the uplift to reflect Mr Brooking'sprevious convictions. She says the Judge may have viewed the issue differently if he5 Sentencing Act 2002, s 85.had considered it once he reached the resulting sentence of five years seven monthsimprisonment.[27] This submission overlooks the fact that each of the uplifts applied to thesentence selected for the lead charge already incorporated a significant reduction toreflect totality principles. By way of example, each of the five burglaries ofcommercial premises probably warranted a starting point of around two yearsimprisonment on a standalone basis. Each of the four charges of receiving stolenproperty would likewise also have warranted a starting point of around 12 monthsimprisonment on a standalone basis. Yet the Judge applied an uplift of just two yearsimprisonment on those nine charges.[28] Similarly, the cannabis charges could easily have attracted a starting point ofmore than two years imprisonment but the Judge applied an uplift of just 12 monthson those charges. Likewise, the sentences imposed on the three charges of drivingwhilst disqualified were incorporated in the three month uplift the Judge applied toreflect both those charges and the charges of breaching sentences of community workand supervision. I consider this aspect of the sentence also contained a reduction toreflect totality principles given the fact that Mr Brooking has already served a sentenceof imprisonment imposed in 2013 for driving whilst disqualified.[29] These factors effectively answer Ms Gentleman's argument that the Judgeconsidered the issue of totality too early in the process of constructing the sentence.If the Judge had applied any further reduction to reflect totality principles once hereached the sentence of five years seven months imprisonment Mr Brooking wouldhave received two separate discounts for that factor. This ground of appeal fails as aresult.Remorse[30] The Judge declined to apply a discount for remorse for the following reasons:6[21] Your remorse is referred to [in the pre-sentence report] as appearingsuperficial, something reflected in your comments that as the business youburgled would be insured, they would not have suffered any loss. There is not6 New Zealand Police v Brooking, above n 1.only a lack of empathy in that comment but both a level I would suggest, MrBrooking, of arrogance and ignorance as to the effect that offending has likeyours on a business community and on a community like Opotiki in general.[22] In referring to that I also refer to the fact that I have read your letterand I thank you for taking the time to write to the Court. Again, though, inreferring to your remorse, I just observe in reading that letter that there wasnot one mention of the victims, there was not one mention of the people whohave suffered at the hands of your offending, and that is something that I thinkyou need to reflect on.[36] As to your remorse, I have already referred to that. As I have said toyou previously, the letter which you have written to me have failed to makeany mention of the victims of your remorse and I consider that it is notappropriate to provide any allowance for remorse as I am not satisfied that youare remorseful. Accordingly, I am left with a term of imprisonment of fiveyears four months before allowance for your guilty plea.[31] Whether or not a Judge applies a discount for remorse is very much a matterof sentencing discretion. Given the comments in the pre-sentence report there wasclearly a basis for the Judge to decline to apply discount for remorse in the presentcase.[32] Mr Brooking is now 38 years of age and has been regularly appearing beforethe courts for a wide range of criminal offending since 1998. Expressions of remorsebegin to have a hollow ring when they are made by persons having Mr Brooking'sbackground of criminal activity. He has now reached the point where he should notbe surprised when sentencing Judges decline to take expressions of remorse seriously.The s 27 reports[33] The Judge gave the following reasons for declining to provide Mr Brookingwith any discount for material contained in the two s 27 reports:7[23] I have also had the benefit of a cultural report and that tells me aboutyour upbringing which I acknowledge was a difficult upbringing. You havehowever been brought up in a very strong and cultured background. You arefluent in Te Reo. While the report writer referred to the decision to place youin mainstream schooling at the age of 11 having previously been at a KuraKaupapa having resulted in you losing some of your identity as a Maori, thatconclusion is really not explained or expanded upon in any way. Indeed, itdoes not sit easily with the other matters set out in the report. Specifically,7 New Zealand Police v Brooking, above n 1.you are described by your whanau members as a wonderful and supportiveperson. Clearly you are capable of showing considerable leadership. You arewell-respected by the kaumatua of your marae because of your continuouscontribution to it. It would appear that you choose to show leadership,supportiveness and strength when it suits you and that, in my assessment, issupported by the fact that you have remained free of dishonesty for a decade.That would suggest that you are capable of remaining largely offence-free andleading a pro-social life. Because of the conflicts raised in this report, all inall, I do not consider that the contents of the report support any allowance interms of your sentencing.[34] Ms Gentleman submits the Judge ought to have applied a discount of at least15 per cent to reflect the fact that Mr Brooking's life has been beset with hardship andthis has resulted in his ongoing issues with alcohol and drug abuse as well as aproblematic gambling habit.[35] My response to this submission largely mirrors my response toMs Gentleman's argument that the Judge ought to have given Mr Brooking a discountto reflect his remorse. First, the decision whether to grant a discount to reflect factorsidentified in a s 27 report is largely a matter of judicial discretion. A discount is notmandatory in every case. Secondly, Mr Brooking is now 38 years of age. He has beenan active member of the Mongrel Mob organisation for a very long time. He cannotbe criticised for that and his decision to make the gang a focal point of his life no doubtreflects the problems he encountered in his youth. There comes a time, however, whenhe must make lifestyle choices. He is plainly entitled to maintain his association withthe Mongrel Mob but he needs to decide whether he wishes to continue to be involvedin activities of the type that led to the present charges. He also needs to understand hehas reached the point in his life where his earlier difficulties are unlikely to qualify fora discount every time he appears for sentence on charges such as these.[36] I therefore do not consider the Judge erred in declining to give Mr Brooking adiscount to reflect factors identified in the two cultural reports.Result[37] The appeal against sentence is dismissed.Lang J