Broderick v Department of Corrections
[2021] NZHC 1918
•17 June 2021
IN THE HIGH COURT OF NEW ZEALAND WHANGANUI REGISTRY
I TE KŌTI MATUA O AOTEAROA WHANGANUI ROHE
CRI-2021-483-000005/6
[2021] NZHC 1918
BETWEEN SEAN PATRICK BRODERICK
Appellant
AND
DEPARTMENT OF CORRECTIONS and NEW ZEALAND POLICE
Respondent
Hearing: 17 June 2021 Appearances:
E Copeland for the Appellant R Benic for the Respondent
Judgment:
17 June 2021
JUDGMENT OF GRICE J
(sentence appeal)
[1] Mr Broderick appeals a sentence imposed by the District Court on 28 April 2021. I refer to that as the District Court April 2021 sentence.1
[2] This was a replacement sentencing pursuant to s 80F of the Sentencing Act 2002,2 as well as a sentencing for new offending. The final sentence imposed in April 2021 was of 23 months’ imprisonment which replaced the original sentence of home detention and intensive supervision. The charges for which Mr Broderick was being sentenced were set out in the sentencing notes of April 2021 as follows:
(a)unlawful taking of a motor vehicle;3
1 Broderick v Police [2021] NZDC 7746 (District Court Decision; Sentencing Notes of April 2021). Written version edited for grammar and flow with footnotes added for reference.
2 Sentencing Act 2002, s 80F.
3 Crimes Act 1961, s 226(1)(a): maximum penalty seven years’ imprisonment.
SEAN PATRICK BRODERICK v DEPARTMENT OF CORRECTIONS and NEW ZEALAND POLICE [2021] NZHC 1918 [17 June 2021]
(b)failing to stop;4
(c)driving a motor vehicle in a dangerous manner;5
(d)driving while disqualified;6 and
(e)escaping from police custody.7
[3]The new offences were:
(a)unlawfully entering a motor vehicle;8 and
(b)breaching home detention.9
[4] The sentences for each of the 2020 sentenced offences were not separated, as a totality approach was taken by both the original sentencing Judge and by the re-sentencing Judge in April 2021. Counsel have agreed that the same approach should be taken here.
[5]Mr Broderick appeals the re-sentencing on the following grounds:
(a)First, that the end point reached was manifestly excessive and resulted from a departure from a principle of law;10
(b)Second, that the Judge erred in failing to take into account the discount applied by the original sentencing Judge of 17 per cent for cultural issues based on a s 27 report and for remorse.11 An end sentence of
4 Search and Surveillance Act 2012, s 177(1)(a) and (b): maximum penalty three months’ imprisonment.
5 Land Transport Act 1998, s 35(1)(b): maximum penalty three months’ imprisonment or a fine not exceeding $4,500.
6 Section 32(1)(a): maximum penalty three months’ imprisonment or a fine not exceeding $4,500.
7 Crimes Act 1961, s 120: maximum penalty five years’ imprisonment.
8 Crimes Act 1961, s 226(2): maximum penalty two years’ imprisonment.
9 Sentencing Act 2002, s 80S: maximum penalty one year’s imprisonment or a fine not exceeding
$2,000.
10 Sentencing Act 2002, s 8(h) and (i).
11 Section 27. The cultural report was obtained for the purposes of this appeal. It was not before the District Court Judge in April 2021.
16 months should have been adopted in relation to the original offending with a further two months’ cumulative imprisonment for the new offending, resulting in an end point of 18 months’ imprisonment.
[6] The appellant says that the reasoning of the re-sentencing Judge as to why the s 27 mitigating factors should no longer apply departs from the reasoning given by Judge Whata in Solicitor-General v Heta.12 Finally, he says that the credit acknowledged by Judge Aitken should apply despite Mr Broderick’s failure to turn his life around indicated by his further offending.
Background
[7] The summary of facts as set out in the re-sentencing decision of April 2021 are as follows:13
[3] Just over a month after home detention was imposed by Judge Aitken, you removed, on 20 January 2021, your electronically monitored equipment in breach of the conditions of home detention and absconded. You left the Probation Service not knowing your whereabouts. The home detention sentence was due to expire on 10 June this year, so we are left with effectively five of the six months’ sentence not served.
[4] The Department of Corrections has applied to cancel the home detention sentence. The ground for cancellation is made out by your breach of home detention conditions and I cancel that home detention sentence and I will reflect the part of the home detention sentence which has not been served in the sentence that I am about to impose in relation to all outstanding charges.
[5] The facts that were before Judge Aitken on sentencing in the Auckland District Court late last year are set out in paragraphs [3–7] of her sentencing notes of 11 December 2020.
[6] The offending took place on 6 May last year. The victim, whose name and any other identifying details will be permanently suppressed together with the name and any other identifying details relating to her baby, had left her vehicle at a BP Station in Whangarei. Her five-week old baby was in the back seat. She had an appointment. She needed to get petrol. She was under some stress due to the urgency. She pulled into the pump and in her rush, she turned the engine off but left the keys in the ignition. She went to pre-pay for the petrol. Her baby was asleep in the car, secured in the rear back seat and as it transpired a blanket had been placed over the baby. At that time, you were sitting outside one of the stores nearby and as soon as she left the vehicle you
12 Solicitor-General v Heta [2018] NZHC 2453 at [41] to [50].
13 Sentencing Notes 2021, above n 1, at [3]–[9].
walked across the road to the BP forecourt, got into the vehicle, started the engine and drove off.
[7] The Judge said that she stressed that you were not aware that there was a baby in the back of the car and the victim herself acknowledged that you would not have been aware unless you lifted the blanket to see that there was a baby. So the Judge concluded you were not aware when you took the car that there was in fact a five week old child in it.
[8] You travelled about three kilometres before the police sighted you. You were travelling at speed. They were aware that the car had been reported stolen. They commenced to follow you. You travelled too fast around a right sharp turn, you then lost control of the vehicle, it mounted the footpath and collided with a rock retaining wall before veering back across the road and colliding with a parked vehicle. You continued to drive. You were out of control and you crashed over the retaining wall of the neighbouring driveway and the car dropped about a metre down a bank before coming to a rest. You got out of the vehicle. You got out of the vehicle and you ran. The baby was unharmed and remained restrained in the rear of the vehicle and as best her mother can discern she looks to have slept entirely through the incident. She was checked by St Johns ambulance staff and deemed fit and healthy and her mother says she has no issues and her mother has no concerns that the whole incident had any impact at all on the child. The car was extensively damaged. The victim refers to getting just over $100 for scrap metal.
[9] You were subsequently identified through CCTV footage and a DNA profile and you were later arrested by police when you were recognised by an off-duty officer. In your interview you said there were multiple stress factors for you, you noticed she left her keys in the car and you saw the sudden opportunity to leave Whangarei and you took the car. You said you panicked when you saw the flashing lights and lost control and you said then and you maintain, and there are no issues, that you were unaware the child was in the car.
District Court Decision
[8] The District Court Judge in the April 2021 re-sentencing noted that in the original sentencing in December 2020 the Judge had assessed an end point of 16 months. In that respect the Judge noted that:14
[10] The Judge assessed an end point sentence of 16 months’ imprisonment - influenced in particular by the Judge’s impression at the time of sentencing, that you were remorseful for the events that had taken place, you wanted to turn your life around and you were ready to do that. An end point assessment of 16 months’ imprisonment would have been available. In substitution for that, she instead, having regard to the factors in your favour, imposed a sentence of home detention for six months followed by six months of release conditions.
14 Sentencing Notes April 2021, above n 1, at [10].
[9] The re-sentencing Judge then set out the structure of the original sentencing and how he had reached his substitute sentence in April 2021. He said:15
[11] The Judge specifically stated at paragraph [28] of her sentencing notes, and I quote:
If there is a breach of this sentence, if there is further offending whilst on sentence, then it would be sensible for the matter to come back before me as the sentencing judge and I need to make is very clear to you that if there is a significant breach of this sentence, the alternative to a sentence of home detention is imprisonment.
[12] The Judge asked the question to you in Court: “Do you understand,” and the response was “Yes”.
[13] Also, for completeness, I mention that the judge imposed an order for a period of disqualification from driving and also made an order of emotional harm reparation in the sum of $1,000.
[14] Now clearly, despite the Judge’s comments, this matter that is now before the Court in Whanganui, did not, for various reasons, go back before Judge Aitken for sentencing and instead it has come before me today.
[15] In terms of determining the sentence which I must impose today, I adopt the reasoning of Judge Aitken largely, but slightly modified to reflect the failure by you to comply with the home detention sentence which was imposed by Judge Aitken and imposed in terms, as she expressed in her sentencing notes, to give you a chance, given the indications that you had given the Court at the time of sentencing late last year.
[16] The lead charge, as Judge Aitken found, was the unlawful taking of the motor vehicle and the starting point sentence for that was 15 months’ imprisonment.
[17] In relation to the other offences, there was, and I adopt, an uplift for failing to stop, dangerous driving and driving while disqualified of four months and in addition, there was a further uplift to reflect the fact that at the time of the offending you were on intensive supervision. That is a further one month. Then there was an uplift for previous offending because Mr Broderick, you are, as the Judge observed, a recidivist repeat offender for these kinds of offences and that additional uplift was five months, which I adopt. There was a further uplift in relation to the charge of escaping custody and that was a further uplift of three months which produces a total of 28 months.
[18] I then give you credit for your guilty pleas to the various offences of 25 per cent and that is a credit of seven months, so that gets us down to 21 months.
[19] On top of that, and to reflect the breaches of the home detention sentence, I add another one month’s uplift.
15 Sentencing Notes April 2021, above n 1, at [11]–[20].
[20] In relation to the further charge of unlawfully entering a motor vehicle, I add a further one month’s uplift, so that produces an overall sentence of 23 months in prison. The way I have approached it, that also incorporates, as part of all that, recognition of the earlier sentence of home detention which the Department of Corrections has today applied to cancel. I confirm that I have cancelled that earlier sentence of home detention and the sentence of imprisonment that I just recorded reflects the sentence of home detention which you did not serve.
[10] The re-sentencing Judge then noted that he could not practically set out all the personal considerations, including those in the s 27 report, which Judge Aitken had taken into account. He saw the earlier judgment as a chance to turn things around for Mr Broderick, he had not taken. Therefore, notwithstanding attention being drawn to aspects of Mr Broderick’s background,16 the re-sentencing Judge did not allow a credit despite Mr Copeland’s submission that those factors should have been taken into account. The final sentence imposed was 23 months’ imprisonment.17
Law
Appeal
[11] An appeal against sentence is an appeal against a discretion. Under s 250 of the Criminal Procedure Act 2011 the court must allow an appeal against sentence if it is satisfied that:18
(a)for any reason there is an error in the sentence imposed on conviction; and
(b)a different sentence should be imposed.
[12] Although s 250 does not refer to the requirement that a sentence be “manifestly excessive” to be reduced on appeal, it is a principle that is well-engrained in the court’s approach to sentence appeals.19 The court cannot “tinker” with an end sentence if it is within range.20
16 That have now been set out in the s 27 report.
17 Sentencing Notes April 2021, above n 1, at [22]–[25].
18 Criminal Procedure Act 2011, s 250.
19 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [35].
20 Ripia v R [2011] NZCA 101, at [15].
[13]Under s 251 of the Act, if the court allows an appeal against sentence, it must;21
(a)set aside the sentence and impose another sentence (whether more or less severe) that it considers appropriate; or
(b)vary the sentence, vary any part of the sentence, or vary any condition of the sentence; or
(c)remit the sentence to the court that imposed it and direct that court to take any action of a kind described in paragraph (a) or (b) as specified by the first appeal court.
[14] The focus is on the sentence imposed and not the process adopted to reach that end sentence.22
Submissions
[15] The appellant takes no issue with the end point of 16 months’ imprisonment taken by Judge Aitken before she commuted that to home detention and intensive supervision. Nor is any issue taken with the discounts that she took to reach that point. The appellant does not contest the approach of the April 2021 re-sentencing Judge save to say that the start point for the re-sentencing should have been the point of 16 months’ imprisonment.
[16] Mr Copeland, for Mr Broderick, says that the new offending should then have been taken into account with two months – a month for each of the new offences – added to that starting point, leading to 18 months’ imprisonment.
[17] Mr Copeland says that the Judge made an error in disregarding the personal and cultural factors. This error led to a difference of five months between the sentence which would have been imposed had Judge Aitken’s starting point of 16 months’ imprisonment been adopted, and that imposed by the re-sentencing Judge.
[18] Mr Copeland points to the decision in R v Morgan23 where the resentencing Judge cancelled the sentence of community work and imposed eight months’
21 Criminal Procedure Act 2011, s 251.
22 Tutakangahau v R, above n 19, at [36].
23 R v Morgan [2008] NZCA 232.
imprisonment for the original offending. He points, in particular, to the judge’s statement that:24
where imprisonment is imposed in substitution for a community-based sentence, there will inevitably be a greater degree of hardship for the offender… In such a case the offender will have had the benefit of a less restrictive alternative than imprisonment but will have failed to take advantage of it. The re-sentencing Judge is likely to weigh the various purposes and principles of sentencing in a way that is different to that which occurred…
[19]But he emphasised:25
Accordingly, while we accept that there must be some proportionality between the sentence originally imposed and the substituted sentence, we do not consider that there can be any strict correlation between them, much less some mathematical formula. The essential point is that the substituted sentence must be one that could properly have been imposed initially; and it must be imposed against the background that a sentence of community work was thought initially to be appropriate… The sentence of eight months’ imprisonment bore no relationship to the sentence of 150 hours’ community work originally imposed, or the factors which gave rise to it. The substituted sentence reflects the Judge’s understandable frustration at being misled by the appellant when he accepted the sentence indication. We acknowledge that the Judge also sentenced the appellant on other matters, in a way that did not add to the overall length of the term of imprisonment. The Judge was, then conscious of the totality principle. Despite that, we consider that the basis on which the sentence was formulated was wrong in principle.
[20] Mr Copeland notes that the appeal in Morgan was successful. The point of his submission was essentially that the re-sentencing Judge should bear in mind some relativity or proportionality between the substituted sentence and the original sentence. He acknowledges, however, that the Judge in the re-sentencing is entitled to take their own view of the sentence and impose a sentence which could have been, rather than should have been, imposed at the time of the original sentencing.
[21] Mr Benic, for the respondent, agrees that the Judge made an error in not taking into account a discount for personal and cultural mitigating factors but says that the sentence was lenient in any event, and was not manifestly excessive. He says that it is available to the court to find that the sentence imposed by the District Court was not manifestly excessive and therefore to not specifically address the sentencing Judge’s decision not to apply credit for personal mitigating factors. Mr Benic points to a
24 R v Morgan, above n 23, at [14].
25 At [15].
number of decisions, in particular the decision of R v Phillips.26 In discussing the precursor to s 80F the Court of Appeal in that decision said:27
The Court on an application made under s.64 is required by s.66(1) to have regard to the “gravity of the offence for which the sentence was imposed, the extent (if any) to which the offender has served that sentence, the amount of any fine or reparation imposed with the sentence, and any other circumstances that the Court considers relevant.”
The Court’s function is to review the sentence initially imposed making such enquiries as to the circumstances of the case as are considered reasonable in the event that a different Judge undertakes the review (s.66(2)). Where another sentence is substituted for periodic detention it may be:
“… any other sentence that could have been imposed on the offender at the time when the offender was convicted of the offence for which the sentence was imposed (s.66(4)(c)).”
That subsection appears to be directed more to such substituted sentence the Court has jurisdiction to impose than to the severity of the sentence in the circumstances of the case. It does not exclude the obligation of the Judge on review of sentence to form his own view as to the appropriate sentence for the offence. The subsection does focus upon the time the original sentence was imposed and so indicates that the substituted sentence should not include any sanction for failure to comply with the earlier sentence. That can be dealt with separately under s.45. At the same time, however, the Judge on resentencing clearly is entitled to take a different view from the original sentencing Judge as to leniency if it is apparent that the offender was given a chance of rehabilitation which has been rejected. To do otherwise would be to disregard a relevant factor which under s.66(1) should be taken into account.
[22] The respondent also refers to the comments of Potter J in R v Tanginoa.28 In particular, at [44] of that judgment the Judge said that s 84(2)(d) of the Sentencing Act 2002 requires that a substituted sentence must be one that “could have been imposed on the offender at the time that the offender was convicted of the offence for which the sentence was imposed.” The Judge therefore observed that to reconstruct the sentence with the benefit of hindsight would be inconsistent with that provision, “unfair and unjust”. The Judge therefore adopted the notional end sentence of imprisonment that the original sentencing Judge would have imposed had he not considered home detention appropriate. That end sentence was 19 months’ imprisonment.
26 R v Phillips CA 379/90.
27 At 2-3.
28 R v Tanginoa [2012] NZHC 3504.
[23] Mr Benic notes that in that case the original offending and the new offending for which the original offending was being re-sentenced occurred close in time, and were both drug-related. For that reason the offender had not had time to undergo the rehabilitation that the Judge in the original sentencing had had in mind in his sentencing.
Discussion
[24] The statute does not direct the court to impose a sentence in substitution which should have been imposed on the offender at the time he was convicted. It requires the imposition of a sentence that could have been imposed at the time. In my view the re-sentencing court must form its own view, which may well differ from that of the sentencing court. Nevertheless, the original sentence would be considered as part of the re-sentencing process. But, as I indicated, it is for the re-sentencing Judge to form their own opinion.
[25] The circumstances are likely to have changed since the original sentencing. In particular, and relevant in this case, is that the evidence of the appellant’s remorse and intention to rehabilitate that the original sentencing Judge had taken into account no longer carried the same weight that they would have at the time of the original sentence.
[26] In the re-sentencing, the Judge cannot take into account the breach that brings the defendant back before the court for the substituted sentence. The court was therefore entitled to reject, as the Judge did, any discount for remorse or prospects of rehabilitation. They were factors which he could properly find not relevant in the present circumstances.
[27] However, in this case I consider the Judge in the April 2021 sentencing, while he did not err in rejecting any recognition for remorse or rehabilitation, as those factors were clearly not in play, did err in not taking into account the personal and cultural issues which the court was required to take into account under the Sentencing Act.29
29 Sentencing Act 2002, s 8(i).
[28] The Judge indicated that it was difficult to extricate the discount for those factors from the discount allowed by the original judge for the remorse and rehabilitation prospects. Nevertheless, the Judge was required to make an assessment based on the material before him which included a PAC report and counsel’s submissions.
[29] The s 27 cultural report was obtained after the sentencing in April 2021 in the District Court, although Mr Copeland did address the District Court on cultural matters at the time of that sentencing and submitted he asked the Judge to take them into account.
[30] The cultural report has been admitted on appeal by consent and therefore I am able to take into account the issues it addresses.
[31] In my view the cultural report provides a basis for a reasonable discount based on cultural issues and deprivation.
[32] The report sets out the issues that Mr Broderick faced in his upbringing, including cultural deprivation, lack of educational opportunity, abuse, drug involvement from an early age and gang involvement. The report notes that Mr Broderick had been largely alienated from his culture. His mother was Māori and was raised on a pā Māori settlement in South Taranaki, but Māori culture was not part of Mr Broderick’s upbringing. Mr Broderick’s sister reports that their mother was raised during a time when they were taught and believed that for Māori to succeed they needed to learn the Pākehā way. She married a Pākehā man and taught her children the Pākehā way. She further stated that she felt her mum was ashamed of her Māori side.
[33] The report goes on to note that because of their upbringing the Broderick children were confused about their culture. In particular, Mr Broderick was confused because he looked Māori but could not speak te reo Māori and did not understand his Māori culture. Mr Broderick reported that he started learning more about his culture while in prison. He explained that he learnt about Māori bone carving and wood carving when he was incarcerated at Paremoremo Prison. Mr Broderick has gone on
to earn qualifications from Massey University and gained experience to the stage where he has taught kapa haka and Māori culture to other inmates in prison. Mr Broderick reported that he had done a few artworks that were commissioned by various organisations and which are displayed around the country. Some of his artworks are displayed in the Invercargill Museum and the Dunedin Library.
[34] As I said, the comprehensive report provides the material that enables me to trace the life that Mr Broderick has lived which has led to his present situation. He has spent 32 years of the last 38 years in prison, partly due to personal and cultural factors directly attributable to the loss of his Māori identity and the consequent confusion and deprivation visited upon him, including the lack of educational opportunity and drug and gang involvement.
[35] He has a supportive whānau and Mr Copeland indicated Mr Broderick still hoped to be able to pay the original emotional harm reparation of $1,000 that he was ordered to pay in December 2020. He has now clearly let himself and his whānau down by not grasping the opportunity that he was offered by Judge Aitken to turn his life around.
[36] I do not consider that the sentence was otherwise excessively lenient. I adopt the views of Judge Aitken and the re-sentencing Judge in relation to sentence, apart from the discount allowed for personal and cultural issues. In my view Judge Aitken and Judge Carter properly assessed the circumstances and applied appropriate aggravating and discounting factors, including the 25 per cent discount and additional uplifts. However, I am satisfied that the re-sentencing Judge erred in failing to take into account Mr Broderick’s personal and cultural factors.
[37] I now have the advantage, which the re-sentencing Judge did not have, of the information in the cultural report. It may well be that Judge Aitken, through the iterative process that she engaged in in her sentencing process, was more aware of the cultural dimension of that background in this case than was apparent at Mr Broderick’s re-sentencing. Mr Copeland did make submissions on cultural factors at re-sentencing.
[38] Mr Copeland did agree that some deduction should be made from the discount given by Judge Aitken, given Mr Broderick’s failure to engage in rehabilitation and the lack of remorse shown by his subsequent offending.
[39] In my view an adjustment should be made by applying a 15 per cent discount for cultural and personal issues, in view of the force of the issues raised in the cultural report. That is in addition to the 25 per cent discount for the guilty plea applied to the original 28 months starting point taken by Judge Aitken.
[40] To that must be added the two months’ imprisonment: one month for each of the new offences. That appears appropriate in the circumstances.
[41] This is not a strictly mathematical exercise. Therefore, standing back, I determine that the final sentence should be one of 19 months’ imprisonment. That compares with the 23 months’ imprisonment imposed in May 2021. Therefore, in my view, the sentence was manifestly excessive. There is an error in the sentence imposed and a new sentence ought to be imposed. To that I would add my judgment on the totality also bears in mind the fact that Mr Broderick had served a month of his home detention sentence. I also propose reinstating, or making part of his re-sentence, the disqualification and the reparation orders that were omitted from the re-sentencing.
Conclusion and Conditions of Sentence
[42] My conclusion is that the cancellation of the December 2020 sentence as a result of the April 2021 sentencing decision is confirmed but the sentence of 23 months’ imprisonment imposed in substitution is quashed. A sentence of 19 months’ imprisonment is imposed, together with a sentence of disqualification from holding or obtaining a driving licence for eight months from 8 December 2020, together with an order for payment of emotional reparation of $1,000 to be paid to the victim on the unlawfully taking the motor vehicle charge.
[43] There is an order permanently suppressing the name of the victim and her child and an order suppressing any reference to the defendant’ past trauma and any ACC-sensitive claim.
Grice J
Solicitors:
Wilkinson Smith Lawyers for the Crown
5
0