Brazendale v The Queen

[2021] NZHC 397

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI-2020-419-000100

[2021] NZHC 397

BETWEEN

CLINTON BRAZENDALE

Appellant

AND

THE QUEEN

Respondent

Hearing:

10 February 2021

Appearances:

C Bean for the Appellant

A Alcock and S Hames for the Respondent

Judgment:

5 March 2021

JUDGMENT OF HINTON J

This judgment was delivered by me on 5 March 2021 at 3:00 pm

…………………………………………………………………… Registrar/Deputy Registrar

Solicitors/Counsel: Hamilton Legal, Hamilton Bean Law, Hamilton

BRAZENDALE v R [2021] NZHC 397 [5 March 2021]

[1]    Mr Brazendale appeals against the sentence of two years and five months imprisonment imposed upon him by Judge Cocurullo on 27 October 2020 on charges of male assaults female,1 driving with excess breath alcohol,2 and two charges of assault with intent to injure.3

[2]    The grounds of appeal are that the Judge allowed an insufficient discount for a section 27 cultural report and other factors personal to the appellant; and made an excessive uplift for previous convictions.

[3]    Section 250 of the Criminal Procedure Act (the Act) governs a first appeal against sentence.

[4]    The Court of Appeal in Palmer v R outlined the position with respect to sentence appeals as follows:4

" ... the standard of appellate review in sentence appeals ... requires that the appellant show a material error was made and satisfy the appellant court that a different sentence ought to be imposed. Sentencing is not a science and an appellate court will not ordinarily interfere unless the end sentence was outside the range available to the sentencing judge. For that reason, it is not an error to describe sentencing decisions as discretionary, so long as it is clear that “discretion” means only the sentence enjoys an appropriate margin of appreciation.

(Emphasis added.)

[5]    In Tutakangahau, the Court of Appeal noted that the concept of “manifestly excessive” continues to apply,5 and that the Court would not intervene where the “sentence is within the range that can properly be justified by accepted sentencing principles”.6

1      Crimes Act 1961, s 194(b); maximum penalty 2 years’ imprisonment.

2      Land Transport Act 1998, ss 56(1) and 56(4); maximum penalty 2 years’ imprisonment.

3      Crimes Act 1961, s 193; maximum penalty 3 years’ imprisonment.

4      Palmer v R [2016] NZCA 541, at [17].

5      Tutakangahau v R [2014] NZCA 279, at [35].

6 At [36].

Sentencing in the District Court

[6]    The offending involved a number of assaults by Mr Brazendale on his partner over the month of May 2020. Some of these assaults were of a vicious nature, and one included stabbing a lit cigarette into the side of his partner’s eye.

[7]    Judge Cocurullo adopted the charge of injuring with intent to injure as the lead charge and set a global starting point of 36 months imprisonment taking into account all of the violent offending on a totality basis.

[8]    The Judge did not uplift the starting point to reflect the charge of driving with excess breath alcohol but, observing the appellant is a recidivist drink driver, he uplifted the sentence by six months on account of the appellant's previous convictions, in which he included six prior convictions for driving with excess breath alcohol.

[9]    For mitigation, an overall 35 per cent discount was given, 20 per cent for the entry of guilty pleas and 15 per cent for all matters raised in the section 27 report and additional mitigating factors such as remorse. This resulted in the end sentence of two years five months imprisonment.

Submissions

[10]   The appellant does not take issue with the starting point or the discount of 20 per cent for the entry of guilty pleas. The dispute is over the discounts for the s 27 report and for remorse.

[11]   The respondent says there is no error and the sentence was not manifestly excessive.

Section 27 report

[12]   As noted the discount given of 15 per cent incorporated the factors outlined in the section 27 report as well as remorse. The appellant contends that a discount of 15 to 20 per cent would be appropriate for the factors identified in the section 27 report alone.

[13]   As the Court of Appeal said in Whittaker v R, entitlements to a discount on account of matters raised in section 27 reports are very much fact specific to each case.7

[14]   I accept as outlined in the report that the appellant had a troubled background, an unsettled environment and was exposed to alcohol and violence as a youngster. However I agree with the respondent that the s 27 report does not detail severe cultural depravation to the extent of Poi v R on which the appellant relies,8 nor establish the same degree of linkage.

[15]   In Poi, the section 27 report described the offender’s personal, whanau, community and cultural background in considerable detail. It described a number of years spent in foster care and a number of extremely traumatic experiences in his formative years. The report writer was of the view that those experiences had caused profound and lifelong damage, that contributed significantly to the offender's trajectory into the criminal justice system. The Court of Appeal concluded that a 20 per cent discount would appropriately recognise the offender’s background of severe depravation and his rehabilitative prospects given the material steps he had taken to try to address his past trauma and to build a more constructive life moving forward. That discount was then increased to 25 per cent for the factors outlined in a psychological report, in particular that Mr Poi’s IQ score was within borderline range of intellectual functioning.

[16]   In the present case, the sentencing Judge acknowledged the factors raised in the section 27 report, noting that the appellant faced challenges growing up. But these factors did not approach those in Poi, nor did the additional psychological factors apply to the same extent. In my view a discount of approximately 15 per cent was not out of range, nor did the appellant’s counsel contend otherwise.

7      Whittaker v R [2020] NZCA 241, at [51].

8      Poi v R [2020] NZCA 312.

Remorse

[17]   The appellant contends that he was genuinely remorseful for his actions and the impact they had upon the victim. The writer of the s 27 report noted that the appellant was “extremely remorseful”.

[18]   However, as the Judge observed, the following comments were made by the writer of the pre-sentence report:

Mr Brazendale admits the offending occurred but not how it has been outlined in the summary of facts, he claims the victim has blown most of the events out of proportion.

Of concern he tried to justify one of the events by saying “I didn't pick her up and put her in the van”. “Before I wrote the van off, she was in the seat next to me with the seatbelt wrapped around her neck saying I'm unkillable”.

Mr Brazendale states the victim needs to “work on herself” that she is “dependant on methadone and that her body needs it”.

[19]   Further, the pre-sentence report writer considered that overall the appellant was minimising or attempting to justify his offending and did not display any remorse for his offending during this interview.

[20]   It is particularly concerning that Mr Brazendale claimed the complainant had blown events out of proportion. In circumstances where she was approached by Police, not the reverse, and did not file a victim impact statement, I consider any exaggeration by her very unlikely.

[21]   I agree with the respondent that any expression of remorse needs to be treated with caution in these circumstances. In fact, in my view, no allowance should have been made in this regard.

[22]   It follows that overall, the discount of 15 per cent was appropriate to recognise personal mitigating circumstances.

Uplift for previous convictions

[23]   The appellant contends that the uplift of six months for previous convictions was manifestly excessive and that it should have only been three months.

[24]   The appellant’s more recent previous convictions included four charges of contravening a protection order between 2014 and 2017, one charge of male assaults female in 2014 and a charge of behaving threateningly in 2013. As noted, the appellant is a recidivist drink driver and faced sentence on his seventh conviction for driving with excess breath alcohol. His previous breath alcohol convictions were in 1997, 1998, 1999, 2009, 2012 and 2017.

[25]   An uplift for prior convictions usually focuses more on convictions of a similar type. I consider an uplift of three months for previous convictions would have been justified.

[26]   However, in addition an uplift to the starting point would have been justified on account of the breath alcohol conviction (being the appellant’s seventh). The Judge did not proceed on that basis because he did not consider that charge would have warranted a sentence of imprisonment on its own. That is not necessarily so. I agree with the Crown that the starting point for that charge could have been nine months imprisonment, justifying an uplift of three months.

[27]   Further, I consider the starting point of 36 months for the violent offending was at the low end given the vicious and repeated nature of that offending.

[28]Overall, I consider the sentence was within range.

Conclusion

[29]   The sentence imposed in the District Court of two years and five months imprisonment was not manifestly excessive in the circumstances.

[30]The appeal is dismissed.

Hinton J