Borell v Police - [2019] NZHC 1483

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI 2018-404-000390

CRI 2018-404-000391

[2019] NZHC 1483

BETWEEN
BEAU BORELL

Appellant

AND

THE NEW ZEALAND POLICE

Respondent

Hearing: 26 March 2019

Counsel:

Q Duff for Appellant

H Clark for Respondent

Judgment:

27 June 2019

JUDGMENT OF DUFFY J

This judgment was delivered by me on 27 June 2019 at 3.30 pm.

Registrar/ Deputy Registrar

Solicitors/Counsel:
Matai Chambers, Auckland Meredith Connell, Auckland

BORELL v POLICE [2019] NZHC 1483 [27 June 2019]

[1] Mr Borell appeals against a sentence of two years and eight months imprisonment that was imposed on him in the District Court on charges of: assault with intent to rob (with another), two charges of driving while disqualified (third of subsequent offence), failing to stop or ascertain injury, possession of an offensive weapon, 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 form of a cultural report that was prepared pursuant to s 27 of the Sentencing Act 2002 (the Act). Initially the Crown opposed the admission of the report as fresh evidence. The parties were given the opportunity to file further submissions following the appeal hearing. This provided the parties with an opportunity to consider the matter in more depth which has led to them both responsibly recognising that the provision of a cultural report pursuant to s 27 of the Act can be received by an appellate court without the need for it to be admitted as evidence. Indeed, the subject matter of a s 27 report may not readily lend itself to evidential proof because it may address matters of customary lore relevant to an offender (for example Tikanga Maori) and it may express the 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 to rob and one of the driving while disqualified offences. Mr Borell and Kaleina Jones were at a Caltex service station in Otara. They were travelling in a Silver Mazda Capella, which was driven by Mr Borell. Mr Borell parked this vehicle behind a white Mitsubishi which belonged to the victim. The victim’s vehicle was parked at the end of the middle row of pumps leaving Mr Borell’s vehicle waiting next to no pumps. At the time there were other pumps free on the forecourt and there was no need for Mr Borell to park the silver Mazda where he did. He and Mr Jones left their vehicle and walked around to the victim’s vehicle while the victim was filling his car with petrol. They then went back to their vehicle and waited while the victim went inside and 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Borell v Police

Details

AGLC: Borell v Police [2019] NZHC 1483
Case: [2019] NZHC 1483
Decision Date: 27 June 2019

CaseChat Overview and Summary

Beau Borell appealed against his sentence of two years and eight months imprisonment that was imposed by the District Court for multiple charges, including assault with intent to rob, driving while disqualified, and possession of an offensive weapon. Borell sought to introduce a cultural report prepared under section 27 of the Sentencing Act 2002 as fresh evidence to support his appeal. The Crown initially opposed the admission of the report but later acknowledged its relevance without the need for it to be admitted as evidence. The appeal hinged on whether the cultural report should attract a 30% discount to Borell's sentence to reflect his personal, family, and cultural background, which might have contributed to his offending.

The court considered Borell's adverse childhood experiences, including exposure to family violence, severe physical abuse, and substance abuse, which had a significant impact on his life and criminal conduct. The court recognised that these factors warranted a discount to reflect Borell's challenging background. The sentencing judges had not been aware of these details when they passed the original sentence. The court held that a 30% discount was appropriate, reducing the sentence to 22 months' imprisonment, which would allow Borell to qualify for a sentence of home detention. The court also granted Borell leave to apply for home detention, considering the potential for rehabilitation and the support he could receive from his partner and her family.

The appeal was allowed, and Borell's sentence was reduced to 22 months' imprisonment. The court also granted Borell leave to apply for home detention under section 80I of the Sentencing Act 2002, provided a placement at the Hamilton Bridge Programme was available and his partner could provide a suitable home detention address.

Orders