Brooking v The King
[2023] NZHC 2966
•24 October 2023
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 Act 2000, s 38(1); maximum penalty one year’ imprisonment or a fine not exceeding $2,000.
14 Sentencing Act 2002, s 96(1); maximum penalty one year’ imprisonment or a fine not exceeding
$2,000.
[4] On 15 March 2022, Mr Brooking was travelling along the Waimate Highway at speeds of around 140–150 km/h. He passed on double-yellow lines and caused oncoming vehicles to pull over to evade him. After being remanded at large, he failed to appear on 10 May 2022. Following a remand on bail, he again failed to appear on 31 May 2022. He was suspended from holding a driver’s licence from 22 June 2022.
[5] In breach of release conditions, Mr Brooking failed to attend alcohol and drug counselling.
[6] On 4 July 2022, while suspended, Mr Brooking drove an associate’s vehicle from his address in Timaru to a petrol station, where he pumped $80 worth of petrol before driving off without paying. Following his arrest, Mr Brooking messaged the associate twice, asking and threatening him in order to get the charges dropped.
[7] On 7 July 2022, Mr Brooking received a stolen vehicle from an unknown associate and spray painted it with black spray paint.
[8] The perverting the course of justice charge also captured offending on 7 July 2022. Mr Brooking and a co-offender messaged and called the complainant, an ex- partner, about withdrawing charges otherwise he would send recordings to Oranga Tamariki. They attended the complainant’s address later while she was at home with her infant son. He parked in front of the complainant’s gate before revving the vehicle and driving straight into the gate, causing damage. He backed out and then accelerated until the wheels spun, creating smoke.
[9] Later that night, while driving in Waimate in the received car, Mr Brooking crashed into a power pole, causing significant damage to both the car he was driving and the pole.
[10] On 12 July 2022, Mr Brooking and an associate obtained petrol from BP Connect in Timaru valued at $218.32 without paying for it. Later that day, the vehicle was located in Darfield after it was spiked. The Police arrested Mr Brooking after he initially fled from the scene.
[11] On 26 August 2022, Mr Brooking sent messages to a former partner threatening to kill her and cause harm to her family. Days earlier he had sent her a video brandishing what appeared to be a firearm and a long-handled axe.
District Court decision
[12] Judge Robinson took the attempting to pervert the course of justice charge as the lead offending, an attempt which had sufficient impact to lead to charges being withdrawn. The Judge accounted for this factor on the basis that the summary of facts, to which Mr Brooking had pleaded guilty, noted the complainant felt considerable pressure to withdraw her complaint. The Crown advised the Judge that the complainant’s stance was a significant factor leading to these charges not proceeding.
[13] The Judge considered the aggravating features of the offending were the various types of contact and threats made against the complainant as well as the property damage which he considered were all designed to intimidate her and persuade her not to follow through on her complaint. The partial success of this intimidation was also relevant.
[14] With reference to other cases, the Judge adopted a starting point of 21 months, although he noted a higher starting point may have been available.
[15] In respect of the threat to kill, the vulnerability of the victim, the premeditated nature and specificity of the threat, the use of a weapon and the effect on the victim were all relevant in setting a 10 month uplift, reduced to five months for totality.
[16] The receiving of the car was assessed as warranting a nine month uplift, reduced to five months for totality.
[17] A much reduced uplift of five months was applied for the driving while disqualified charges.
[18] Despite the Judge’s view of the dangerous driving offending being serious, he restricted the uplift for that charge to one month. For his remaining driving offending, Mr Brooking was convicted and discharged.
[19]The end starting point was therefore one of 37 months’ imprisonment.
[20] The Judge applied uplifts of 10 and five per cent to reflect Mr Booking’s previous convictions and offending while on bail respectively.
[21] While the Judge considered a 15 per cent discount for guilty pleas was available, given their timing and the perceived inevitability of conviction, he eventually adopted a 20 per cent reduction.
[22] A five per cent discount was provided for engagement in restorative justice despite it relating to only some of the offending.
[23] The Judge had the benefit of a pre-sentence report and a s 27 report. The Judge acknowledged a troubled background and diagnoses around substance abuse, particularly methamphetamine, as well as ADHD and intellectual difficulty. The Judge accepted methamphetamine use as an operative factor in the offending and noted the s 27 report’s emphasis on Mr Brooking’s remorse. However, there was also concern about the degree of insight and self-awareness Mr Brooking possessed. The Judge considered a credit of 15 per cent was appropriate for background factors.
[24] Providing a further reduction for time spent on electronically monitored bail, the end sentence was 27 months’ imprisonment.
Discussion
[25] Appeals against sentence are allowed as of right by s 244 Criminal Procedure Act 2011 and must be determined in accordance with s 250 of that Act. An appeal against sentence may be allowed by this Court only if it is satisfied there has been an error in the imposition of the sentence and a different sentence should be imposed.15 As the Court of Appeal identified in Tutakangahau v R (quoting the lower court’s decision), a “court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles”.16 It is appropriate for this
15 Criminal Procedure Act 2011, s 250(2) and 250(3).
16 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
Court to intervene and substitute its own views only if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.17
[26] Mr Bonniface, for Mr Brooking, submitted the Judge erred in providing a cumulative five month uplift for the driving while suspended charges. Instead, he contended that offending should have been treated as aggravating of the offending it accompanied.
[27] The driving while disqualified charges were Mr Brooking’s sixth and seventh respectively. The Judge identified that sixth and seventh convictions for driving while disqualified could attract 10 month uplifts on their own. He reduced this to a single uplift of five months in order to reflect totality. A review of the cases demonstrates this uplift cannot be criticised, and it was open to the Judge to treat this offending discretely despite the driving while disqualified occurring alongside other offending.18 For instance, the Court in Whitley v Police applied uplifts of four months each for the defendant’s sixth and seventh convictions for similar offending.
[28] I am not persuaded that the starting point adopted was outside of the available range for the Judge. In my view, given the nature of the offending, cumulative sentences were warranted. The end starting point, although arguably stern, is not outside the range available to the Judge.
[29] Next, the 10 per cent uplift for previous convictions adopted by the Judge was challenged by Mr Brooking on the basis that his history was already considered when determining the starting point for the offending as a whole. There is no suggestion in the judgment of double counting, and I focus instead on the appropriateness of the uplift and its extent.
[30] A sentence ought to be based primarily on the facts of the offence for which the offender is being sentenced, and it must not be increased merely because of previous convictions because doing so would be to effectively increase the sentence
17 Ripia v R [2011] NZCA 101 at [15].
18 Whitley v Police [2016] NZHC 1025 at [31]; Iwikau v Police [2013] NZHC 2515 at [13]; and
Finch v R [2012] NZCA 446.
imposed on that previous occasion or occasions.19 In considering whether the previous convictions bear upon character and culpability, an indication of reoffending, and the need to protect society through a deterrent sentence, the courts will consider, among other things, the number, seriousness and nature of the convictions, and the time since the last conviction.
[31] From 2017, Mr Brooking has amassed over 45 convictions. Many of these convictions are for offending similar to those that are the subject of this appeal. Of particular relevance are his two convictions for attempting to pervert the course of justice in 2020 in respect of which he was imprisoned for one year and eight months.
[32] I agree with counsel for the Crown that a 10 per cent uplift was available to the Judge, given the need for deterrence. On the facts of this case, it was at the upper end of the available range but, nonetheless, within the available range.
[33] There is no challenge to the mitigating matters taken into account by the Judge or the deduction he adopted to reflect them.
[34] It follows that I am not persuaded the end sentence imposed was manifestly excessive. While there is an error in the Judge’s summary of the sentence, this error was not carried to the warrant of commitment and is of no consequence.
Result
[35]The appeal is dismissed.
Harland J
Solicitors:
JMJ Lawyers Ltd, Timaru Crown Solicitor, Timaru.
19 Wipa v R [2018] NZCA 219 at [25]–[28].
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