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…

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 Brooking v Police

Details

AGLC: Brooking v Police [2020] NZHC 1035
Case: [2020] NZHC 1035
Decision Date: 19 May 2020

CaseChat Overview and Summary

In the High Court of New Zealand, Tauranga Registry, Stewart Riki Brooking, the appellant, lodged an appeal against his sentence imposed by Judge Geoghegan in the District Court. The court was tasked with determining whether the sentence imposed was manifestly excessive and whether the judge made any errors in formulating the sentence. The appellant pleaded guilty to multiple charges, including burglary, receiving stolen property, driving while disqualified, cultivating cannabis, possession of cannabis for supply, and breaching sentences of supervision and community work. The judge sentenced the appellant to four years imprisonment.

The court examined several arguments presented by the appellant's counsel, including the selection of the lead charge, the uplifts applied for remaining charges, the uplift for previous convictions, and the failure to reduce the sentence to apply totality principles. The court found that the judge did not err in selecting the burglary of the residential property as the lead charge, and the uplifts applied for remaining charges were justified. The uplift for previous convictions was deemed to be within the sentencing judge's discretion, and the sentence already incorporated a reduction to reflect totality principles.

The court also considered the arguments related to the lack of discount for remorse and factors identified in the cultural reports. The court found that whether or not a judge applies a discount for remorse is largely a matter of sentencing discretion, and the judge had a clear basis to decline to apply a discount in this case. The decision not to provide a discount based on the cultural reports was also found to be within the judge's discretion.

The appeal against sentence was dismissed by Lang J, and the original sentence of four years imprisonment was upheld.

The final orders were that the appeal against sentence was dismissed, and the original sentence of four years imprisonment imposed by the District Court was upheld.

Orders