Brooking v Police - [2012] NZHC 3219

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2012-409-000094 [2012] NZHC 3219

ANTHONY JAMES BROOKING
Appellant
v

NEW ZEALAND POLICE
Respondent

Hearing: 29 November 2012

Appearances: A Bailey for Appellant
K Basire for Respondent

Judgment: 29 November 2012

ORAL JUDGMENT OF FOGARTY J

[1] This is an appeal against an end sentence of two years five months’ imprisonment imposed by the District Court Judge Holderness. The appellant had pleaded guilty to charges of assaulting a female, breach of parole and the more serious offence of wounding with reckless disregard for the safety of the victim under s 188(2). The principal difference between the appellant and the Crown on appeal is as to the starting point in the Judge’s analysis.

[2] The incident occurred when the appellant started arguing with his partner in his car. He stopped his car, his partner came out of the car and he was punching her when another woman stopped and got out of her car to go to the assistance of the woman being assaulted. The appellant’s partner was by this stage on the ground,
possibly on her knees, certainly no longer standing, and the appellant had begun

ANTHONY JAMES BROOKING V NEW ZEALAND POLICE HC CHCH CRI-2012-409-000094 [29
November 2012]

punching the partner in the stomach. The second woman tried to intervene. She yelled to stop and then she became a victim. He punched her in the face. The punch caused her to partially lose consciousness. She was spun around by the force of the punch, she fell and landed in the gutter. Her eye was lacerated, her glasses smashed, she sustained abrasions and bruising to her left forearm. Her eye was bleeding. I have seen the photo of the victim and it was clearly a very serious punch.

[3] The Judge received submissions from the Crown advising that the tariff decision was R v Taueki[1]. The judge proceeded by taking this offence, the punching of the victim I have just described, as the lead offence, and taking a starting point of two years four months, having effectively adopted the Crown submission that it is in the mid range of Band 1 Taueki. The Judge then uplifted that by seven months being offending on parole. He then allowed for a full discount of 25 per cent of nine months leaving an end sentence in relation to the wounding offence of 26 months.
He imposed a concurrent sentence for the assault of the partner of five months and then turned to breach of parole, taking a starting point of five to six months giving credit to the guilty plea, reducing it to four months and because it was a cumulative term, applied the totality principle and reduced that term to three months; giving rise to an overall term of two years five months.

[1] R v Taueki [2005] 3 NZLR 372

[4] The only part of that analysis that was challenged on appeal was the starting point. Mr Bailey argued that the…

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 [2012] NZHC 3219
Case: [2012] NZHC 3219
Decision Date: 29 November 2012

CaseChat Overview and Summary

The appeal in Brooking v Police was brought before Fogarty J in the High Court of New Zealand Christchurch Registry. The appellant, Anthony James Brooking, sought to appeal against his end sentence of two years and five months’ imprisonment, imposed by District Court Judge Holderness. Brooking had pleaded guilty to assaulting a female, breaching parole, and the more serious offence of wounding with reckless disregard for the safety of the victim under s 188(2) of the Crimes Act 1961. The primary legal issue in this case was the starting point in the sentencing analysis. The appellant argued that the starting point should have been 18 months rather than two years and four months, as effectively adopted by the Crown and the Judge, based on the decision in R v Taueki. The Court of Appeal had previously held in R v Harris and subsequent cases that a different approach was required when the maximum penalty was half or less than half of the 14 years' imprisonment referenced in Taueki.

The Court considered the arguments presented by both parties, with the appellant relying on R v Harris and related cases, and the Crown arguing that the principles in Taueki should be applied. Ultimately, the Court found that the correct approach was to be guided by the decision in MacDonald v R, which held that the maximum penalty in this case of seven years required an adjustment to the guidelines in Harris. The Court determined that the case fell within Harris band 2, where the injuries were moderate, and sentences of up to two years' imprisonment could be justified. The Court adjusted the starting point to two years, taking into account the maximum penalty of seven years in this case. The Court also noted that the Judge could have justified an aggravating uplift of four months by considering the coincident conduct of assaulting the appellant's partner. Ultimately, the Court found that it was not appropriate to intervene and disturb the sentence, and the appeal was dismissed.

The final orders of the Court were that the appeal was dismissed, and the original sentence of two years and five months' imprisonment imposed by District Court Judge Holderness was upheld.

Orders