Brooking v Police

[2020] NZHC 1035

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE

CRI-2019-463-79

[2020] NZHC 1035

BETWEEN

STEWART RIKI BROOKING

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

18 May 2020

(Heard at Rotorua)

Appearances:

C Gentleman for Appellant A Pollett for Respondent

Judgment:

19 May 2020

JUDGMENT OF LANG J

[on appeal against sentence]

This judgment was delivered by me on19 May 2020 at 3.30 pm.

Registrar/Deputy Registrar Date……………

Solicitors:
Crown Solicitor, Tauranga

BROOKING v NEW ZEALAND POLICE [2020] NZHC 1035 [19 May 2020]

[1]    Mr Brooking pleaded guilty in the District Court to six charges of burglary, four charges of receiving stolen property, three charges of driving whilst disqualified (in its aggravated form), one charge each of cultivating cannabis and being in possession of cannabis for supply and breaching sentences of supervision (x 2) and community work. On 9 April 2020 Judge Geoghegan sentenced Mr Brooking to four years imprisonment.1

[2]    Mr Brooking appeals against sentence. On his behalf Ms Gentleman contends the Judge made several errors in formulating the sentence and this has resulted in an end sentence that is manifestly excessive.

The offending

[3]    The burglary charges related to five commercial properties and one residential property. These occurred between 16 October and 14 November 2019. The burglary of the residential property occurred on the night of 13 November 2019. Mr Brooking gained entry to a rural residential address through an insecure door. He then removed a hot-water cylinder from its cupboard, causing substantial structural and water damage to the premises in the process. After taking the cylinder home he stripped it down and sold the copper components to a scrap metal dealer for $40.

[4]    Each of the other burglaries involved Mr Brooking gaining forcible entry to retail premises and then (in all but one case) stealing quantities of goods from them. Mr Brooking sold the stolen property for much less than its retail value. Property worth more than $15,000 was stolen in these burglaries. None of it has been recovered.

[5]    The receiving charges related to incidents in which Mr Brooking came into possession of property that had been recently stolen from both commercial and residential addresses. The total value of the property was more than $40,000. The items of greatest value were four kilograms of kiwifruit pollen worth approximately

$28,000 and approximately $12,000 of wine that had been stolen from a residential address. Mr Brooking sold the property for much less than its retail value. Virtually none of the property has been recovered

1      New Zealand Police v Brooking [2020] NZDC 6231.

[6]    The police went to Mr Brooking’s address on 13 October 2019. There, they noticed cannabis growing in the back yard. They removed approximately 250 cannabis seedlings from the property. These ranged from two to 12 inches in height. Mr Brooking told the police he used cannabis to ameliorate pain that he suffers from an old rugby injury.

[7]    On 18 September 2019 the police stopped a vehicle in which Mr Brooking was travelling in Opotiki. They searched a bag he was wearing around his shoulders and this was found to contain $170 in cash as well as 21 rolled-up sections of tinfoil, each of which contained approximately three grams of cannabis leaf. He told the police he was “just trying to survive”.

[8]    The charges of driving whilst disqualified were laid in its aggravated form after Mr Brooking drove a motor vehicle on 31 March, 31 October and 14 November 2019.

[9]    The charges of breaching a sentence of community work reflected incidents on 23 February and 23 July 2019 when Mr Brooking failed to attend as required to undertake community work. The charge of breaching a sentence of supervision was laid after he failed to attend a programme his probation officer had directed him to attend on 20 May 2019.

The sentence

[10]   The Judge selected the charge of burglary of the residential premises as the lead charge. He adopted a starting point of two years imprisonment on that charge. He then added an uplift of two years to reflect the five remaining burglary charges and the three charges of receiving stolen property.

[11]   The Judge applied a further uplift of 12 months to reflect the charges of cultivation of cannabis and being in possession of cannabis for supply. He then added an uplift of three months to reflect the remaining charges, which comprised the three charges of driving whilst disqualified and the charges of breaching sentences of community work and supervision. This produced a sentence of five years three months imprisonment on all charges. The Judge did not consider any reduction was warranted to reflect totality principles.

[12]   The Judge noted that Mr Brooking has numerous previous convictions for offending involving dishonesty. He added an uplift of four months to reflect this factor.

[13]   From the resulting sentence of five years seven months imprisonment the Judge applied a discount of three months to reflect the fact that Mr Brooking had cooperated with the police to the extent that he had candidly admitted his involvement in the offending. This saved the police a considerable amount of investigation.

[14]   The Judge declined to apply any reduction to reflect either remorse or factors identified in a cultural report prepared under s 27 of the Sentencing Act 2002.

[15]   The Judge then applied a discount of 16 months, or 25 per cent, to reflect guilty pleas. This resulted in the end sentence of four years imprisonment.

Decision

Inappropriate lead charge

[16]   Ms Gentleman contends that the Judge erred in selecting the burglary of the residential property as the lead charge. She submits one of the commercial burglaries would have been a more appropriate choice as a lead charge.

[17]   This submission has no real substance because it does not matter which charge the Judge selected as the lead charge. One of the burglary charges needed to be selected and then an uplift needed to be applied to reflect the remaining charges of burglary and receiving.

[18]   In any event I do not consider the Judge erred in selecting the burglary of the residential premises as the lead charge. It involved the burglary of residential premises at night when there was a risk the occupants would be present in the property. It involved premeditation because it was a targeted burglary in which Mr Brooking had already determined what he wanted to steal from the address. It also involved significant damage being caused to the property. The occupants would have been

required to repair the damage and meet the cost of purchasing and installing a new hot water cylinder.

[19]   As the Judge correctly observed,2 the burglary of a residential address will usually attract a starting point of 18 months to two and a half years imprisonment.3 The circumstances of the present case easily justified a starting point of two years imprisonment on this charge.

Uplift for remaining charges

[20]   Ms Gentleman submits an uplift of no more than 12 months was justified to reflect the remaining burglary and receiving charges. I do not accept this submission. The five burglary charges relating to commercial premises resulted in significant damage to the premises concerned and, in all but one case, the theft of valuable items from them. The receiving charges also related to stolen property having considerable value. I consider an uplift of just 12 months would have been insufficient to reflect the gravity of these charges. Furthermore, I consider an uplift of two years imprisonment to be modest. An uplift of more than that could have been justified. This ground of appeal fails as a result.

[21]   Ms Gentleman also queries the uplift applied in relation to the cannabis charges. As the Judge observed, however, the starting point for being in possession of cannabis for supply is usually not less than two years imprisonment where the offending has a commercial element.4 I therefore do not consider an uplift of 12 months to reflect charges of both being in possession of cannabis for supply and cultivating 250 cannabis seedlings to be excessive.

[22]   In any event Mr Brooking was fortunate the Judge applied an uplift of just three months to reflect the remaining charges. These related not only to breaches of sentences imposed by the Court but also the three charges of driving whilst

2      Police v Brooking, above n 1, at [27].

3      Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189 at [78].

4     R v Terewi [1999] 3 NZLR 62 (CA).

disqualified in its aggravated form. An uplift of at least six months on the remaining charges could easily have been justified.

Uplift for previous convictions

[23]   Ms Gentleman submits no uplift should have been applied to reflect previous convictions because the sentence of two years imprisonment the Judge selected on the lead charge already factored in Mr Brooking’s previous convictions. She says a community-based sentence or a sentence of home detention would have been imposed on that charge if this had been Mr Brooking’s first offence. I accept this submission as far as it goes but a starting point of two years imprisonment on the lead charge was justified regardless of whether a lesser end sentence may have been imposed if this had been his first such offence.

[24]   Furthermore, the Judge applied an uplift of just under six per cent to reflect previous convictions. I do not consider this to be excessive given the number and nature of Mr Brooking’s relevant previous convictions. Another Judge may have given applied an uplift of three months but another Judge may equally have applied an uplift of five months. Uplifts of this nature fall very much within a sentencing Judge’s discretion, and appellate courts rarely intervene in this area unless the level of uplift exceeds 15 to 20 per cent.

Totality issues

[25]   Ms Gentleman submits the Judge erred in declining to reduce the sentence to apply totality principles. These require a sentencing Judge to ensure an end sentence of imprisonment is not wholly out of proportion to the gravity of the overall offending.5

[26]   Ms Gentleman submits the Judge erred in principle by considering the issue of totality prior to the point at which he applied the uplift to reflect Mr Brooking’s previous convictions. She says the Judge may have viewed the issue differently if he

5      Sentencing Act 2002, s 85.

had considered it once he reached the resulting sentence of five years seven months imprisonment.

[27]   This submission overlooks the fact that each of the uplifts applied to the sentence selected for the lead charge already incorporated a significant reduction to reflect totality principles. By way of example, each of the five burglaries of commercial premises probably warranted a starting point of around two years imprisonment on a standalone basis. Each of the four charges of receiving stolen property would likewise also have warranted a starting point of around 12 months imprisonment on a standalone basis. Yet the Judge applied an uplift of just two years imprisonment on those nine charges.

[28]   Similarly, the cannabis charges could easily have attracted a starting point of more than two years imprisonment but the Judge applied an uplift of just 12 months on those charges. Likewise, the sentences imposed on the three charges of driving whilst disqualified were incorporated in the three month uplift the Judge applied to reflect both those charges and the charges of breaching sentences of community work and supervision. I consider this aspect of the sentence also contained a reduction to reflect totality principles given the fact that Mr Brooking has already served a sentence of imprisonment imposed in 2013 for driving whilst disqualified.

[29]   These factors effectively answer Ms Gentleman’s argument that the Judge considered the issue of totality too early in the process of constructing the sentence. If the Judge had applied any further reduction to reflect totality principles once he reached the sentence of five years seven months imprisonment Mr Brooking would have received two separate discounts for that factor. This ground of appeal fails as a result.

Remorse

[30]The Judge declined to apply a discount for remorse for the following reasons:6

[21]      Your remorse is referred to [in the pre-sentence report] as appearing superficial, something reflected in your comments that as the business you burgled would be insured, they would not have suffered any loss. There is not

6      New Zealand Police v Brooking, above n 1.

only a lack of empathy in that comment but both a level I would suggest, Mr Brooking, of arrogance and ignorance as to the effect that offending has like yours on a business community and on a community like Opotiki in general.

[22]      In referring to that I also refer to the fact that I have read your letter and I thank you for taking the time to write to the Court. Again, though, in referring to your remorse, I just observe in reading that letter that there was not one mention of the victims, there was not one mention of the people who have suffered at the hands of your offending, and that is something that I think you need to reflect on.

…

[36] As to your remorse, I have already referred to that.  As I have said to you previously, the letter which you have written to me have failed to make any mention of the victims of your remorse and I consider that it is not appropriate to provide any allowance for remorse as I am not satisfied that you are remorseful. Accordingly, I am left with a term of imprisonment of five years four months before allowance for your guilty plea.

[31]   Whether or not a Judge applies a discount for remorse is very much a matter of sentencing discretion. Given the comments in the pre-sentence report there was clearly a basis for the Judge to decline to apply discount for remorse in the present case.

[32]   Mr Brooking is now 38 years of age and has been regularly appearing before the courts for a wide range of criminal offending since 1998. Expressions of remorse begin to have a hollow ring when they are made by persons having Mr Brooking’s background of criminal activity. He has now reached the point where he should not be surprised when sentencing Judges decline to take expressions of remorse seriously.

The s 27 reports

[33]   The Judge gave the following reasons for declining to provide Mr Brooking with any discount for material contained in the two s 27 reports:7

[23] I have also had the benefit of a cultural report and that tells me about your upbringing which I acknowledge was a difficult upbringing. You have however been brought up in a very strong and cultured background. You are fluent in Te Reo. While the report writer referred to the decision to place you in mainstream schooling at the age of 11 having previously been at a Kura Kaupapa having resulted in you losing some of your identity as a Maori, that conclusion is really not explained or expanded upon in any way. Indeed, it does not sit easily with the other matters set out in the report. Specifically,

7      New Zealand Police v Brooking, above n 1.

you are described by your whanau members as a wonderful and supportive person. Clearly you are capable of showing considerable leadership. You are well-respected by the kaumatua of your marae because of your continuous contribution to it. It would appear that you choose to show leadership, supportiveness and strength when it suits you and that, in my assessment, is supported by the fact that you have remained free of dishonesty for a decade. That would suggest that you are capable of remaining largely offence-free and leading a pro-social life. Because of the conflicts raised in this report, all in all, I do not consider that the contents of the report support any allowance in terms of your sentencing.

[34]   Ms Gentleman submits the Judge ought to have applied a discount of at least 15 per cent to reflect the fact that Mr Brooking’s life has been beset with hardship and this has resulted in his ongoing issues with alcohol and drug abuse as well as a problematic gambling habit.

[35]   My   response   to   this   submission   largely   mirrors   my   response    to Ms Gentleman’s argument that the Judge ought to have given Mr Brooking a discount to reflect his remorse. First, the decision whether to grant a discount to reflect factors identified in a s 27 report is largely a matter of judicial discretion. A discount is not mandatory in every case. Secondly, Mr Brooking is now 38 years of age. He has been an active member of the Mongrel Mob organisation for a very long time. He cannot be criticised for that and his decision to make the gang a focal point of his life no doubt reflects the problems he encountered in his youth. There comes a time, however, when he must make lifestyle choices. He is plainly entitled to maintain his association with the Mongrel Mob but he needs to decide whether he wishes to continue to be involved in activities of the type that led to the present charges. He also needs to understand he has reached the point in his life where his earlier difficulties are unlikely to qualify for a discount every time he appears for sentence on charges such as these.

[36]   I therefore do not consider the Judge erred in declining to give Mr Brooking a discount to reflect factors identified in the two cultural reports.

Result

[37]The appeal against sentence is dismissed.

Lang J