Broderick v Police - [2014] NZHC 133

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI 2013-488-000055 [2014] NZHC 133

BETWEEN SEAN PATRICK BRODERICK Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing: 12 February 2014

Appearances: K Ellis for Appellant
M Smith for Respondent

Judgment: 12 February 2014

(ORAL) JUDGMENT OF ANDREWS J

Counsel/Solicitor:
K Ellis, Barrister, Whangarei
Crown Solicitor, Whangarei

BRODERICK v NEW ZEALAND POLICE [2014] NZHC 133 [12 February 2014]

Introduction

[1] On 14 November 2013 the appellant, Mr Broderick, was sentenced by Judge D J McDonald in the District Court at Whangarei to ten months imprisonment on a charge of male assaults female. The Judge also imposed a concurrent sentence of one month’s imprisonment on a charge of causing intentional damage to a motor vehicle. Further, the Judge made a protection order under s 123B of the Sentencing Act 2002 in favour of the victim of the assault, Ms Tooke.

Background

[2] Both charges arose out of the same incident. At 6.30pm on 20 September

2013, Mr Broderick was at an address with his partner, Ms Tooke. Both were drinking, and Ms Tooke wanted to go and get cigarettes from down the road. This caused an argument. The Judge noted at sentencing that Mr Broderick’s solicitor had submitted that Mr Broderick did not want her driving drunk and had punched her in the face to stop her from driving. This rendered her unconscious. On awakening, Ms Tooke ran and hid under the house. Mr Broderick, being unable to locate the keys, smashed the right quarter-light window of Ms Tooke’s vehicle.

[3] Mr Broderick pleaded guilty to the two charges on his second appearance in Court. He was remanded for a pre-sentence report, but that could not be prepared in time for his sentencing, owing to Mr Broderick having been moved between correctional facilities. Mr Broderick agreed to be sentenced in the absence of a pre- sentence report. The Judge had before him Mr Broderick’s history of previous convictions, submissions from his counsel, and letters from Ms Tooke and Mr Broderick’s mother. The Court file also includes a victim impact statement, but this is not signed by either Ms Tooke or a Police Officer, nor is it dated.

[4] The Judge referred to Ms Tooke’s letter, noting that it had not been completed by a victim’s advisor or police officer. (It is, however, signed by Ms Tooke.) The Judge noted that Ms Tooke still had strong feelings for Mr Broderick, and had said that the offending was out of character. Mr Broderick and Ms Tooke had been in a relationship for two years and, despite his criminal history, Mr Broderick had not been in any trouble with the law during that time. The Judge did not refer to the

victim impact statement but Mr Smith advised that, according to advice from the prosecutor, it was before the Judge.

[5] The Judge set a starting point for Mr Broderick’s sentence at eight months imprisonment, noting that it was a serious offence, involving a blow to the victim’s…

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 Broderick v Police

Details

AGLC: Broderick v Police [2014] NZHC 133
Case: [2014] NZHC 133
Decision Date: 12 February 2014

CaseChat Overview and Summary

The appeal was brought by Mr. Broderick against the decision of the District Court to impose a protection order in favour of Ms. Tooke, the victim of his domestic violence offence. The appeal was heard by the High Court, and the decision was rendered orally on 12 February 2014. The appellant was represented by K. Ellis, and the respondent by M. Smith.

The central issue in the appeal was whether the District Court Judge properly followed the statutory requirements in s 123B of the Sentencing Act when making the protection order against Mr. Broderick. The appellant's counsel argued that the Judge did not properly consider the necessity of the order for the protection of the victim, nor did the Judge ensure that the victim did not object to the making of the order. The respondent's counsel argued that the statutory requirements were satisfied, and that the protection order was appropriate in the circumstances.

The High Court held that the District Court Judge did not properly address the statutory requirements when making the protection order. The Judge did not make any findings that would allow the Court to properly assess whether the order was necessary for the protection of the victim or whether the victim did not object to the order being made. The High Court found that the appropriate course would have been to remit the matter back to the District Court for further consideration of the protection order. However, the High Court noted that the updated victim impact statement indicated that Ms. Tooke did not object to a protection order being made. Therefore, the appeal was dismissed as, regardless of the outcome, a protection order would inevitably be made.

The final orders of the Court were that the appeal against the making of the protection order was dismissed, and that the updated victim impact statement could be disclosed, but an email provided by the respondent should not be disclosed due to potential safety concerns for the victim.

Orders