Brooking v The King - [2023] NZHC 2966

IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY

I TE KŌTI MATUA O AOTEAROA TE TIHI-O-MARU ROHE

CRI-2023-476-15

[2023] NZHC 2966

BETWEEN
JOSIAH DAVID BROOKING

Appellant

AND

THE KING

Respondent

Hearing: 12 October 2023

Appearances:

M R Bonniface for the Appellant A-M McRae for the Respondent

Judgment:

24 October 2023

JUDGMENT OF HARLAND J

[1] Josiah Brooking appeals a sentence of 27 months’ imprisonment imposed on him in the Timaru District Court on 19 July 2023.1 The appeal is opposed by the Crown.

The charges and the facts relating to them

The charges

[2] Mr Brooking appeared for sentence having pleaded guilty to the following charges arising from events which occurred on several dates between March and August 2022:
(a) on 15 March 2022, a charge of dangerous driving;2

1 R v Brooking [2023] NZDC 18004.
2 Land Transport Act 1998, s 35(1)(b); maximum penalty three months’ imprisonment or a fine not exceeding $4,500. The Court must order the person to be disqualified from holding or obtaining a driver licence for six months or more.

BROOKING v R [2023] NZHC 2966 [24 October 2023]

(b) on 4 July 2022, theft of petrol3 and driving while suspended, - having been convicted at least twice previously;4
(c) between 5 and 7 July 2022, attempting to pervert the course of justice;5

(d) on 7 July 2022, intentional damage,6 sustained loss of traction,7 driving while suspended - having been convicted at least twice previously;8 and careless driving;9
(e) between 4 and 8 July 2022, receiving;10

(f) on 12 July 2022, theft of petrol;11

(g) on 26 August 2022, threatening to kill;12

(h) breach of bail (x2);13and

(i) breach of release conditions.14

The offending

[3] Mr Brooking was released from prison on 10 February 2022 and was subject to release conditions for six months.

3      Crimes Act 1961, ss 219 and 223(d); maximum penalty three months’ imprisonment.
4      Land Transport Act, s 32(1)(c); maximum penalty two years’ imprisonment or a fine not exceeding
$6,000. The Court must order the person to be disqualified from holding or obtaining a driver licence for one year or more.
5      Crimes Act, s 117(a); maximum penalty seven years’ imprisonment.
6      Crimes Act, s 269(2)(a); maximum penalty seven years’ imprisonment.
7      Land Transport Act, s 36A(1)(c); maximum penalty five years’ imprisonment or a fine not exceeding $20,000. The Court must order the person to be disqualified from holding or obtaining a driver licence for one year or more.
8      Land Transport Act, s 32(1)(c); maximum penalty two years’ imprisonment or a fine not exceeding
$6,000. The Court must order the person to be disqualified from holding or obtaining a driver licence for one year or more.
9      Land Transport Act, s 38; maximum penalty three months’ imprisonment or a fine not exceeding
$4,500.
10     Crimes Act, ss 246 and 247(a); maximum penalty seven years’ imprisonment.
11     Crimes Act, ss 219 and 223(d); maximum penalty three months’ imprisonment.
12     Crimes Act, s 306; maximum penalty seven years’ imprisonment.
13     Bail…

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 The King

Details

AGLC: Brooking v The King [2023] NZHC 2966
Case: [2023] NZHC 2966
Decision Date: 24 October 2023

CaseChat Overview and Summary

In this case, Josiah David Brooking appealed against his sentence of 27 months' imprisonment, which was imposed by the Timaru District Court on 19 July 2023. The appeal was opposed by the Crown. Brooking pleaded guilty to multiple charges, including dangerous driving, theft of petrol, attempting to pervert the course of justice, and threatening to kill, among others. The High Court of New Zealand had to decide whether the sentence imposed was an error and if a different sentence should be imposed.

The court examined the arguments presented by Brooking's counsel, M R Bonniface, who contended that the Judge erred in providing a cumulative five-month uplift for the driving while suspended charges. The court found that the Judge was within his discretion to treat the driving while disqualified charges discretely, as there was no double counting. The court also considered the argument that a 10 per cent uplift for previous convictions was not appropriate, given that the history was already considered when determining the starting point for the offending as a whole. However, the court found that the 10 per cent uplift was within the available range, given the need for deterrence.

The court concluded that the end sentence imposed was not manifestly excessive and there was no error in the imposition of the sentence. Therefore, the appeal was dismissed.

The final orders of the court were that the appeal is dismissed, and the sentence of 27 months' imprisonment imposed by the Timaru District Court on 19 July 2023 is upheld.

Orders