Brenna v Police - [2023] NZHC 1004

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2023-404-000072

[2023] NZHC 1004

IN THE MATTER OF an appeal against s 106 decision

BETWEEN

PASQUALE BRENNA

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 1 May 2023

Appearances:

N K B N Petrie for Appellant S E Cann for Respondent

Judgment:

1 May 2023

(ORAL) JUDGMENT OF EDWARDS J

Solicitors:
Ministry of Justice (Public Defence Service), Auckland Meredith Connell (Office of the Crown Solicitor), Auckland

BRENNA v POLICE [2023] NZHC 1004 [1 May 2023]

[1] Mr Brenna pleaded guilty to one charge of breaching a protection order in the North Shore District Court.1 His application for a discharge without conviction was declined by Judge Fitzgibbon.2 Mr Brenna now appeals.

Offending

[2] Mr Brenna was subject to a protection order issued by the Waitakere District Court in February 2021.

[3] Between 14 January and 21 January 2022, Mr Brenna sent multiple text messages to the victim, verbally abusing her, and stating: “I’m proud of kicking you around”; “You are a fucken pos!”; “Mental and amoral = of shit.”; “fuck up public toilet on legs.”; “Kill yourself! Do it!”.

[4]Mr Brenna initially denied the offending when spoken to by police.

District Court decision

[5]The application came before Judge Fitzgibbon on 19 January 2023.

[6] The Judge considered the offending to be of moderate seriousness. The aggravating factors were the nature of the text messages (which were extremely abusive and threatening) and the number of them sent over a period of a week.

[7] The Judge turned to consider aggravating and mitigating features. She referred to Mr Brenna’s two previous (unrelated) convictions for driving related offending from 2007 and 2009. The Judge noted Mr Brenna was remorseful, had completed a non-violence programme with Shine, and was intending to complete a parenting programme. She also referred to the victim’s view that she no longer wanted Mr Brenna to be convicted given his positive progress.3

1 Family Violence Act 2017, ss 90(a) and 9 and 112(1)(a), maximum penalty three years’ imprisonment.
2 Police v Brenna [2023] NZDC 861.
3 At [7].

[8] Taking those factors into account, the Judge assessed the gravity of the offending to be low to moderate.

[9] As for the direct and indirect consequences of the conviction, the Judge noted that Mr Brenna had been an Uber driver for five years and wanted to return to that career. Waka Kotahi would undertake a background check to ensure Mr Brenna was fit and proper. Waka Kotahi was aware of the offending but had not taken any steps so far, but reserved their right to do so after the Court hearing. The Judge noted that if Mr Brenna lost his passenger endorsement, he would not be able to work as an Uber or a taxi driver. The Judge considered that to be a real and appreciable risk.4

[10] Turning to the disproportionality test, the Judge considered that any consequences arose out of the offending, rather…

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 Brenna v Police

Details

AGLC: Brenna v Police [2023] NZHC 1004
Case: [2023] NZHC 1004
Decision Date: 1 May 2023

CaseChat Overview and Summary

Pasquale Brenna has appealed against the decision of the North Shore District Court to decline his application for a discharge without conviction for breaching a protection order. The District Court found the offending to be of low to moderate seriousness, but concluded that the consequences of a conviction would not be out of all proportion to the gravity of the offence. This appeal was heard on 1 May 2023 and a written judgment was delivered on the same day. The appeal was dismissed. The appeal concerns the application of sections 106 and 107 of the Sentencing Act 2002. The Court was required to determine whether the District Court erred in assessing the gravity of the offending and the direct and indirect consequences of conviction. The Court found that the District Court did not err in its assessment of the gravity of the offending. It found that the District Court did err in not sufficiently considering the impact of the Clean Slate Act on the consequences of conviction, but that this did not affect the proportionality assessment.

The appeal was dismissed. No orders as to costs were made.

Orders