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 discharged on one charge of failing to stop for red/blue flashing lights, which is therefore outside the scope of this appeal.

[4]    When the victim returned to his vehicle Mr Borell and Mr Jones left their vehicle and approached from either side of the victim’s vehicle. Mr Borell attacked the victim as he sat in his vehicle, punching him about the upper body and attempting to drag him from his car, almost tearing the victim’s shirt from his body. At the time Mr Borell repeatedly yelled at the victim “get out of your car. Give me your keys.” Meantime Mr Jones entered the victim’s vehicle through the passenger door and placed a bottle to the victim’s back stating “I will shoot you” further terrifying the victim.  At this time members of the public began to intervene which caused both  Mr Borell and Mr Jones to leave the location. The victim sustained bruising to both his arms during the assault. At the time of this offending Mr Borell was a disqualified driver.

[5]    The remaining offences occurred on 9 March 2018 when Mr Borell was the driver of a Toyota Altezza vehicle on Hillsborough Road, Mt Roskill. A police officer who was driving behind Mr Borell activated the police vehicle’s lights and sirens to stop Mr Borell. Instead of stopping, Mr Borell accelerated to speeds of at least 100 kph in a 50 kph area along Hillsborough Road. He overtook vehicles on a heavily congested road and crossed the centre line multiple times, heading into oncoming traffic and causing those drivers to brake heavily to get out of his way.

[6]    He then went onto the south western motorway at Hillsborough onramp heading west. While on the motorway he travelled at dangerously high speeds and manoeuvred between traffic causing other drivers to swerve out of their lanes to avoid collision with his vehicle. Mr Borell left the motorway at the Maioro Street offramp. The traffic light at the end of the offramp at the intersection with Maioro Street was red. However, Mr Borell continued to accelerate at speed straight through the intersection from the right hand turning lane. While travelling through the intersection Mr Borell crashed into the passenger’s side of a Subaru Outback vehicle injuring the driver. The force of the collision caused the Subaru Outback to cross onto the wrong side of the road over a pedestrian island narrowly missing oncoming traffic.

[7]    Without stopping to ascertain if the driver of the Subaru Outback was injured or not Mr Borell and his associate ran from the scene of the crash. Shortly afterwards they were apprehended by the Police. While Police were searching the Toyota Alteza

a large hammer and wooden handled knife with a 15 cm blade were located. The driver of the Subaru Outback sustained no injuries during the vehicle collision.

[8]    When interviewed by the Police Mr Borell said the offensive weapons were for his protection. He initially denied all knowledge of the incident at the Caltex service station until he was formally charged at the end of the interview. At this time Mr Borell confirmed the facts as outlined, stating he was being followed and needed to get a new car.

Personal circumstances

[9]    The PAC report did not cover the most serious offence of assault with intent to rob, however in relation to the other offending it recommended imprisonment. Mr Borell sought an adjournment to allow the PAC report to be updated, but this was refused on the ground the recommendation for imprisonment was not likely to change once account was taken of the assault with intent to rob offence.

[10]   The PAC report was prepared without contact with Mr Borell. Attempts were made to interview him in August 2018 but by then he had absconded from his EM bail address and his current whereabouts  were unknown.  The report’s  assessment  of Mr Borell was pessimistic. His ability to comply with community based sentences is assessed as poor, this being based on his then current lack of engagement with the report writer, his current non-compliance with EM bail, his poor compliance with his current community work sentence and the breach of the community work sentence in 2016. At the time the report was written Mr Borell had completed 6.5 community work hours with 83.5 hours still outstanding. The likelihood of him reoffending and his risk of harm to others was assessed as medium based on his “recidivist offending and his propensity for violence.” The report writer identified certain offending related factors, namely Mr Borell’s attitude of self-entitlement, anti-social peers and a propensity for violence. The assessment was based on the summary of facts for his current offending and the nature of his current and previous offending. The report contained a recommendation that Mr Borell be referred for a departmental psychological assessment and completes suitable therapeutic programmes. However, his current risk rating was seen as being too high for any departmental programmes.

A sentence of imprisonment was recommended with leave to apply for home detention. This recommendation being based on the severity of Mr Borell’s offending, his current and historic non-compliance and his recidivist offending. The writer expressed a view the punitive aspect of the sentence may bring home to Mr Borell the seriousness of his offending.

Sentencing in the District Court

[11]   Mr Borell had earlier received a sentencing indication from Judge Jelas which he had immediately accepted. Judge Jelas had adopted a starting point of three years’ imprisonment and the end sentence came to two years and 10 months’ imprisonment. The sentencing indication also gave him the opportunity while on EM bail to attend the Bridge Programme to address his substance abuse problems; and had he done so successfully the likely outcome would have been a sentence of home detention. However, while he was part way through this programme on 21 July 2018 he breached the terms of his EM bail and was arrested. Then a few days later, on 28 July 2018 he was re-admitted to bail he removed his ankle bracelet and absconded thus bringing his prospects of a rehabilitative sentence to an end. He was arrested on 18 September 2018 and remanded in custody.

[12]   A sentencing hearing was scheduled to take place on 28 November 2018 before Judge Paul. Mr Borell asked for the sentencing adjourned so that he could re- commence EM bail and treatment at the Bridge Programme. However, by then he had already been refused EM bail and was appealing this refusal when the sentencing came on before Judge Paul. He insisted the sentencing proceed.

[13]   Judge Paul treated the assault with intent to rob as the lead offence for which he adopted a three-year starting point. In doing so he adopted the starting point identified by Judge Jelas in the sentencing indication. For the additional charges Judge Paul applied an uplift of six months imprisonment with a further uplift of three months’ imprisonment to reflect Mr Borell’s history of violence and driving contrary to Court orders. That brought the sentence to one of three years, nine months imprisonment. Mr Borell was then given a full discount for his guilty plea which reduced the sentence to one of two years, 10 months’ imprisonment. A further

reduction of two months was given to account for Mr Borell spending approximately three months on EM bail, which brought the end sentence to one of two years, eight months imprisonment.

[14]   Judge Paul recognised there were potentially other matters that might have reduced the end sentence further including completion of a recognised residential programme and potentially restorative justice. However, those were not available to Mr Borell because he had absconded from the Bridge Programme while on EM bail. Accordingly, the end sentence remained at two years, eight months imprisonment. The Judge acknowledged that Mr Borell on completion of a third of his sentence will be seen by the Parole Board and he emphasised the need for Mr Borell to attend a dependency treatment unit programme. The Judge also acknowledged that Mr Borell has substance dependency issues which he had not been able to address in the community even when given the opportunity to do so. Although reparation was sought none was ordered as Mr Borell was not in a position to pay any. A previous sentence of community work was cancelled.

Grounds of appeal

[15]   During the hearing and in the additional submissions filed afterwards it became clear that Mr Borell now focuses his appeal on what is essentially new material information, as disclosed in the s 27 report, which supports him being granted leave to apply for home detention so that he can re-commence treatment for substance abuse. He does not seek to disturb the end sentence of two years eight months imprisonment, nor does he complain about how the Judge arrived  at  this  end  point.  However,  Mr Borell contends that now the s 27 report is available it raises issues as to what degree of credit is appropriate to reflect Mr Borell’s personal, family, whanau, community and cultural background and the way in which that background may have related to the commission of the offending. In this regard Mr Borell seeks a 30% discount to reflect the facts identified in the s 27 report. This discount would reduce the end sentence to approximately 22 months’ imprisonment  which  would  allow Mr Borell to qualify for a sentence of home detention.

The s 27 report

[16]   The s 27 report provides a comprehensive, thorough and well prepared outline of the factors it addresses. In written submissions Mr Borell’s counsel correctly identified certain prominent thematic features running through the s 27 report.

[17]   First, Mr Borell was exposed to a catalogue of adverse childhood experiences including exposure to family violence, severe physical abuse, poverty stress, parental neglect, paternal imprisonment and transient home life.

[18]   Secondly, Mr Borell experienced constant upheaval as a child being moved back and forth between Palmerston North and Taumarunui according to his parents’ preferences and relationship status. These consistent upheavals were combined with severe violence at the hands of Mr Borell’s father, which began from the age of three and included beatings that rendered him unconscious.

[19]   Thirdly, the physical abuse conditioned Mr Borell to view violence as normal and precipitated use of drugs (initially cannabis) as a means to cope with trauma. This evolved into an off and on addiction to methamphetamine from 2011 onwards. Moreover, the history of violence has alienated Mr Borell from his father and his paternal whakapapa.

[20]   Fourthly, in 2007 Mr Borell lost his older sister who was someone to whom he was close and he admired. Finally, Mr Borell has experienced cultural disconnectedness. In this regard the s 27 report described him “his limited knowledge of his whakapapa and his culture is also illustrative of the intergenerational displacement experienced by so many Maori as a result of colonisation and the social disadvantage that ensued.”

[21]   Mr Borell’s counsel also points to the report’s details on personal and cultural factors that may well serve to assist Mr Borell in the future from further offending. First, he has a relatively long history of work in New Zealand and Australia and a degree of additional training. Secondly, he is the father to five children and acknowledged two step-children to his current partner. Thirdly, he is very close to his current partner, Ms Kaka, who has extended him unwavering support. Possibilities

exist for Mr Borell to locate and work with his partner’s wider family in northland. Counsel notes here that Ms Kaka is pro-social and gainfully employed with Genesis Energy. Moreover, she identifies Mr Borell as a positive influence on her children who see him as a father. Fourthly, Mr Borell is motivated to complete programme work in relation to drugs and alcohol, violence, personal trauma and parenting. He has goals around being a better parent and family member and his highly motivated to change generally.

Submissions

[22]   Mr Borell contends the factors identified in the s 27 report should attract a discount of 30%. Such a discount would appropriately reflect his childhood exposure to severe physical violence, consequent drug abuse and other biographical factors not of Mr Borell’s making.

[23]   Mr Borell submits that he was inducted into anti-social behaviour at an extremely young age before he had developed the critical faculties to know better. This led to Mr Borell adopting violent and drug abusive behaviours. He submits that he was in the throws of a methamphetamine fuelled paranoid fantasy at the time of the present offending. He acknowledges the violence he exhibited towards the victim is yet another manifestation of his earlier conviction history. However, he submits that he is not intrinsically disposed to anti-social behaviour because he has managed to operate property-socially for periods of his life despite the odds he has faced. Further, he is said to express genuine remorse and a desire to be a better partner, father and member of the wider community.

[24]   Mr Borell refers to an affidavit he had prepared for EM bail which explained how the EM bail breach came about. Essentially difficulties arose between Mr Borell and the person who provided the EM bail address to the point where Mr Borell considered he could no longer remain there. He had earlier approached his counsel and attempted to vary the bail address but that was not able to be done.

[25]   Mr Borell points to the fact he initially enrolled in the Bridge Programme without the assistance of counsel and on his own initiative, and once enrolled he fully engaged with stage one activities. A letter from the Rachel Cusack of the Bridge

Programme indicated Mr Borell had completed 11 pre-entry sessions showing a high level of motivation for rehabilitation. He had been offered a place in the residential stage two programme and it was only due to his breach of EM bail conditions that this was lost. Mr Borell submits that if his sentence were to be reduced by 30% he would become eligible for home detention and accordingly he requests the Court to reserve leave under s 80I of the Sentencing Act for him to apply for home detention.

[26]   Factors favouring reservation of leave to apply for home detention are said to be the pro-social support he will receive from his partner, Ms Kaka and her family, particularly if permitted to reside with them, his ability to access the Bridge Programme and his willingness to engage therein. In this regard the Bridge Programme in Hamilton has confirmed that Mr Borell can re-enter stage one and he will be offered a residential place in stage two as soon as one becomes  available.  Mr Borell submits that he has ability to comply with home detention conditions because although he absconded while on EM bail this can be explained in part by the sub-optimal bail address. Further, it is submitted that Ms Karaka offers a stable environment and that Mr Borell was living at the address without incident for several months before being apprehended by Police.

[27]   The Crown submits the sentence imposed by Judge Paul is not manifestly excessive, rather it is well within the range and indeed, the starting point adopted by the Judge was generous to Mr Borell. The Crown had the opportunity to file further submissions in relation to the s 27 report. It submits that any discount now available that is based on the additional information contained in the s 27 report would not render the sentence imposed by Judge Paul manifestly excessive.

Discussion

[28]   At the time of the offending Mr Borell was aged 30 years. His criminal history reveals a pattern of deteriorating conduct which accelerated from 2016. Before this his offending was more spread out. He first offended in 2005 for which he was fined and ordered to pay reparation. After that, there was no further offending until 2013 when he committed five offences, the majority of which involved violence with one

disqualified driving offence. He was sentenced on all these offences in January 2014 to six months home detention.

[29]   Mr Borell did not offend again until December 2015 when he was sentenced for assault and class C drug offending. On this occasion he received a sentence of community work. He then offended in February 2016 when he breached the community work sentence and committed wilful damage involving family violence. For this offending he received 14 days imprisonment.

[30]   The next offending was in mid to late 2017. It involved disorderly behaviour and driving while disqualified offending for which he again received a sentence of community work. There was no further offending until the present offending in March 2018.

[31]   The pattern of Mr Borell’s offending shows it has increased in seriousness over time. The present offending is the first offending for which he has received a significant sentence of imprisonment.

[32]   The gaps between the periods of offending, particularly earlier in his life show there have been times in his life when he has been able to keep his life on track and avoid criminal offending. The fact he could achieve this in the past shows his prospects for rehabilitation are not dismal provided the factors which in the past have helped him to avoid offending can again be brought into his life. The present offending, which is clearly the most serious, was clearly contributed to by his substance abuse problems. Accordingly, his criminal history indicates some prospects of him successfully rehabilitating himself.

[33]   The sentencing indication of Judge Jelas and the sentencing notes of Judge Paul all evidence a recognition by those Judges that Mr Borell needs help to overcome his substance abuse if he is to avoid further re-offending. These views were expressed without the Judges having seen the s 27 report.

[34]   The s 27 report makes for compelling reading. When the periods during which Mr Borell has not offended are viewed in light of the s 27 report they emphasise the

credit that Mr Borell should be given for having achieved this much through his efforts alone. I consider that if Mr Borell is to break the cycle of substance abuse and reoffending he needs additional help and support. Whilst that could come after he has served the current sentence of imprisonment I consider this would not be enough to recognise the impact the adverse s 27 factors have had on his life.

[35]   As the writer of the PAC report recognised, a sentence of imprisonment often reflects the emphasis a Court has given to deterrence and denunciation. At the time Judge Paul sentenced Mr Borell there was little else the Judge could do as he lacked the informative and powerful information that is to be found in the s 27 report. Had the Judge known of this information I consider the sentencing outcome would have been different.

[36]   I reject the Crown’s argument that the s 27 report does not make the current sentence manifestly excessive. The Act makes provision for s 27 reports. The information they may reveal can provide relevant mitigating factors, which require recognition in the sentencing process. Some discount for the s 27 considerations would usually follow.

[37]   Here the systemic deprivation that affects Maori generally is traceable to linkages between that deprivation, Mr Borell and his offending, which satisfies the requirements outlined in Solicitor-General v Heta2 and in Arona v R.3

[38]   I am satisfied that a 30% discount is both available and appropriate.4 Given the social and cultural background from which Mr Borell has emerged it is to his credit he has not offended more often and more seriously than his criminal history reveals.

As Whata J observed in Solicitor-General v Heta:5

[63] Nor is there a clear unifying principle for applying discounts for deprivation. Rather, personal circumstances discounts tend to be informed by a multiplicity of overlapping factors, including deprivation, trauma, youth, drug and alcohol abuse, and mental health issues. “Deprivation” is in many cases difficult to separate from these other factors because it is associated with and explanatory of them. What is tolerably clear, is that larger discounts tend

2      Solicitor-General v Heta [NZHC] 2453 at [49].

3      Arona v R [2018] NZCA 427 at [59].

4 Above n 2 at [59].

5      Above n 2.

to rely on identifying linkages between personal circumstances and the offending and thus the moral culpability of the offender. Mercy is another apparent reason. The countervailing sentencing factors, where applicable, then curb the extent of any discount.

[39]   Moreover, despite his substance abuse Mr Borell has no convictions for the supply of illicit drugs. This is to his credit as many persons when in the grip of a drug addiction will turn to drug offending to source their own supply of drugs. Here there is no pattern of calculated planned offending. The character of Mr Borell’s offending suggests it happens when the adverse pressures that weigh upon him reach a flashpoint and he loses control of his actions. In addition, the subject offending was moderately serious. It does not involve the high level of seriousness that was involved in Arona v R (sexual violation offending), which means there is more opportunity for the sentence to be focussed on personal circumstances.6

[40]   Mr Borell has shown in the past that he is capable of leading a law-abiding life. I consider a sentence that places the emphasis on rehabilitation is warranted. Accordingly, I consider the end sentence on the lead offence of assault with intent to rob should be reduced to a sentence of 23 months imprisonment, which reflects a discount of approximately 30%.

[41]   I also consider that Mr Borell should be granted leave to apply for home detention pursuant to s 80I of the Act. Provided a placement is available for him at the Hamilton Bridge Programme and Ms Karaka is found to provide a suitable home detention address I can see no reason why he should not be granted home detention. The efficacy and suitability of a sentence of home detention in circumstances where the focus is on rehabilitation were recognised in R v Hill:7

[33] The sentence of home detention reflects a perception that society’s interests are better served in some cases by the imposition of restrictions on liberty through home detention rather than through imprisonment. The explanatory note at p 5 identifies the “acknowledged advantages” of home detention as including “low rates of re-conviction and re-imprisonment, high compliance rates, and positive support for offenders’ reintegration and rehabilitation”.

6      See discussion in Solicitor-General v Heta at [57] where Whata J recognised that the seriousness of the offending may necessarily reduce the scale of any discount for personal mitigating factors.

7      R v Hill [2008] NZCA 41, [2008] 2 NZLR 381.

Result

[42]   The appeal is allowed. The sentence of two years, eight months imprisonment on the offence of assault with intent to rob is set aside and replaced with a sentence of 22 months’ imprisonment, which is to take effect from the date of the original sentencing.

[43]   Pursuant to s 80I of the Sentencing Act 2002 Mr Borell is granted leave to apply for home detention.

Duffy J