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…

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 Brazendale v The Queen

Details

AGLC: Brazendale v The Queen [2021] NZHC 397
Case: [2021] NZHC 397
Decision Date: 5 March 2021

CaseChat Overview and Summary

In the High Court of New Zealand, Clinton Brazendale appealed a sentence of two years and five months imprisonment imposed by Judge Cocurullo on charges of male assaults female, driving with excess breath alcohol, and two charges of assault with intent to injure. The appeal argued that the Judge allowed an insufficient discount for a section 27 cultural report and other personal factors, and made an excessive uplift for previous convictions. The appeal was evaluated under the standard of review that requires the appellant to show a material error and satisfy the court that a different sentence should be imposed.

The Court examined the appropriateness of the discount given for the section 27 report and for remorse. The section 27 report outlined the appellant's troubled background and exposure to alcohol and violence. However, the Court concluded that the discount of 15 per cent was appropriate, as the report did not detail severe cultural depravation to the extent seen in other cases. The Court also considered the appellant's expression of remorse, noting that he attempted to justify his actions and did not display genuine remorse. The Court held that no allowance should have been made for remorse. Regarding the uplift for previous convictions, the Court found that a three-month uplift would have been justified, but the sentence overall was within the range that can properly be justified by accepted sentencing principles.

The Court concluded that the sentence imposed was not manifestly excessive and dismissed the appeal. The Court found that the sentence of two years and five months imprisonment was within the range that can properly be justified by accepted sentencing principles, and thus no error was made by the sentencing Judge.

Orders