Brophy v Police

[2024] NZHC 1864

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2024-404-271

[2024] NZHC 1864

BETWEEN

TROY BROPHY

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	8 July 2024
Appearances:	H F Brockway and G A Harvey for appellant L Seybold for respondent
Date of judgment:	8 July 2024

ORAL JUDGMENT OF JAGOSE J

Solicitors:

Public Defence Service, North Shore, Auckland Meredith Connell, Auckland

BROPHY v POLICE [2024] NZHC 1864 [8 July 2024]

[1]                 Troy Brophy appeals the 10 May 2024 decision of Judge A M Manuel in the District Court at North Shore,1 sentencing him to nine months’ imprisonment on his guilty pleas to charges of trespass,2 criminal damage,3 aggravated assault,4 theft,5 and breach of supervision.6

Background

[2]                 Mr Brophy is 22 years old. Late last year, he had been living with his father and his father’s partner in Auckland’s Long Bay. He repeatedly failed to report in response to a 4 September 2023 sentence of intensive supervision — the most recent of a series of such sentences, all of which he breached by further offending — during which time police also recorded his involvement in a family harm incident.

[3]                 On 30 December 2023, Mr Brophy’s father trespassed him from the property, which Mr Brophy disregarded on returning to it the following afternoon, kicking its front door for a period and breaking its handle, then going to the property’s storage area and taking a trolley-jack from it. When police located him nearby and told him he was under arrest, he initially ran away before surrendering into custody. He still resisted being put into the police car, spitting into its interior and at police and removing a spit hood, with a custody van then being required for his transport.

[4]                 Mr Brophy has an extensive criminal history, predominantly of dishonesty and traffic offending, but including multiple assaults and other family violence, escapes from custody and breaches of sentence conditions, none previously resulting in his imprisonment.

1      Police v Brophy [2024] NZDC 10973.

2      Trespass Act 1980, ss 3(1) and 11(2)(a). Maximum penalty: three months’ imprisonment or $2,000 fine.

3      Summary Offences Act 1981, s 11(1)(a). Maximum penalty: three months’ imprisonment or

$2,000 fine.

4      Crimes Act 1961, s 192(2). Maximum penalty: three years’ imprisonment.

5      Sections 219 and 223(d). Maximum penalty: three months’ imprisonment.

6      Sentencing Act 2002, s 70A. Maximum penalty: six months’ imprisonment or $1,500 fine.

Judgment under appeal

[5]                 After summarising Mr Brophy’s background, Judge Manuel had regard for Corrections’ “unusually negative” pre-sentence report,7 which recommended “a short term of imprisonment with release conditions”, on account of Mr Brophy’s unwillingness and lack of motivation to engage with rehabilitation and his demonstration of “limited insight and responsibility for his offending”.8

[6]                 The Judge considered there were “difficulties” with home detention proposed at Mr Brophy’s mother’s Christchurch address, given his involvement in multiple incidents of family violence, including against her, extending to convictions for criminal damage as recently as February 2021.9 Her Honour recorded the mother’s support nonetheless for Mr Brophy’s electronically monitored sentence at her address, where  he  had  been  bailed   on   not   particularly   restrictive   conditions   since  22 January 2024, but observed “[t]he best that can be said is [Mr Brophy] has refrained from using family violence toward either of his parents for about four months” while awaiting sentencing.10 She assessed neither Mr Brophy nor his mother’s address were “suitable” for electronic monitoring.11

[7]                 Taking   the  aggravated  assault  as  the  lead  offence,   the  Judge  adopted   a four-month starting point, uplifted by three months for the other offending and      a further two months for the breach of intensive supervision, noting “most of this offending took place when Mr Brophy was subject to the last of several sentences of intensive supervision”.12 She discounted that starting point by two months for his early guilty pleas and uplifted it by two months on account of his prior offending, leading to an end sentence of nine months’ imprisonment.13 The Judge granted leave for commutation of the sentence to one of home detention at a suitable address,14 and cancelled the persisting intensive supervision sentence.15

7      Police v Brophy, above n 1, at [8].

8 At [11].

9 At [12].

10 At [13].

11 At [14].

12 At [15].

13 At [16].

14 At [17].

15 At [18].

[8]                 For Mr Brophy — in reliance on the “fresh” evidence of Mr Brophy’s mother, Aroha Mauger — Henry Brockway contends Judge Manuel erred only in concluding the proposed address was unsuitable. Ms Mauger acknowledges Mr Brophy’s violent history toward her, which led to her moving from Auckland to Christchurch “to keep [her]self safe and to put distance between [them]”. But, saying “time is a great healer”, she had renovated her garage to provide accommodation for him, as “[her] way of reaching out as his mother and to open the family unit up again”. She notes he had stayed there without incident for brief periods and during his most recent bail, leading to what she perceives to be his sincere apology for his conduct, and observing his newly changed “ownership and responsibility” for his accommodation and in her household and the community. She says, in preference to continued imprisonment, he also has employment and exercise prospects in Christchurch, all of which she says his father supports as keeping Mr Brophy away from his Auckland associates.

Approach on appeal

[9]                 I must allow the appeal only if satisfied both there is error in the sentence, and a different sentence should be imposed.16 In any other case, I must dismiss the appeal.17 The measure of error is the sentence be “manifestly excessive”, a principle “well-engrained” in this Court’s approach to sentencing appeals.18 I will not intervene where the sentence is within a range properly justified by accepted sentencing principle. Whether the sentence is “manifestly excessive” is to be assessed in terms of the sentence given; the process by which it is reached will rarely be decisive.19

Further evidence

[10]              Analogously with r 8.8 of the Criminal Procedure Rules 2012,20 it is well-understood prospective evidence to be adduced on appeal is to be “fresh, credible,

16     Criminal Procedure Act 2011, s 250(2).

17     Section 250(3).

18     Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [33] and [35].

19     Ripia v R [2011] NZCA 101 at [15].

20     Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273 at [119]; Bain v R [2007] UKPC 33, (2007) 23

CRNZ 71 at [34]; Thomas v Police [2020] NZHC 2926 at [15]–[17].

and cogent”,21 and this requirement serves to balance the interests of the parties and to ensure the just and efficient dispatch of litigation.22 On appeal against sentence:23

[I]f the fresh evidence is not credible it should not be admitted. If it is credible, an assessment needs to be made as to whether or not it could have been presented to the sentencing Court with reasonable diligence. If the evidence is both credible and fresh it should be admitted unless the appellate court is satisfied it would have had no effect on the sentence. If the evidence is credible but not fresh, the appellate court should assess its strength and its potential impact on the sentence. If the appellate court considers that the sentence could be manifestly excessive if the evidence is excluded, then it should be admitted notwithstanding that it is not fresh.

Discussion

—evidence

[11]              Ms Mauger’s evidence is not fresh. Except for its advice of Mr Brophy’s opportunities on release from imprisonment, it entirely relates to matters significantly preceding Judge Manuel’s decision. But Ms Mauger’s evidence plainly is credible: it attests to her plain and heartfelt wish for and expectation of Mr Brophy’s resumption of constructive presence in her family.

[12]              Ms Mauger’s evidence substantiates the Judge’s comprehension Ms Mauger had “no reservations about [Mr Brophy] receiving an electronically monitored sentence at her home”, against which the Judge “weighed … a long history of family violence directed by [Mr Brophy] against his mother and when he lived with his father and his partner [in] Auckland”, to determine Ms Mauger’s address was not a suitable address for a sentence of home detention.24

[13]              While Ms Mauger’s evidence is strong, the Judge’s acknowledgement of her lack of reservation provides a good basis on which to consider it has no potential

21 Lawyers for Climate Change Action NZ Inc v Climate Change Commission [2023] NZCA 443 at [12], citing Rae v International Insurance Brokers (Nelson Marlborough) Ltd [1998] 3 NZLR 190 (CA) at 192–193, and Paper Reclaim Ltd v Aotearoa International Ltd (Further Evidence) (No 1) [2006] NZSC 59, [2007] 2 NZLR 1 at [6].

22 Rae v International Insurance Brokers (Nelson Marlborough) Ltd, above n 21, at 192.

23 M (CA78/2022) v R [2023] NZCA 151 at [27], affirming Mark v R [2019] NZCA 121 at [16]. See

also Lundy v R, above n 20, at [120].

24 Police v Brophy, above n 1, at [13]–[14].

impact on sentence. Nonetheless, against the prospect it may have such impact on appeal, I admit it.

—sentence

[14]              I see no error in the Judge’s assessment, which is not manifestly excessive on any view.

[15]              Given no issue is taken with the Judge’s starting point of a term of imprisonment, and the Judge reserved leave for that sentence’s cancellation and substitution of a home detention sentence on identification of a suitable address,25 the Judge must be taken to have identified a sentence of home detention the least restrictive outcome appropriate in the circumstances, if achievable.26

[16]              From  that  perspective,  the  Judge’s  declination  of  home  detention   at   Ms Mauger’s address cannot be characterised “manifestly excessive”. Rather, it was an assessment plainly open to the Judge on the information before her of Mr Brophy’s family violence and (non-)compliance history. And, although the Judge did not expressly refer to it, electronically monitored confinement is the source of significant compliance stress,27 which exacerbates family violence risk at the electronically monitored address.28 Irrespective of Mr Brophy’s brief uneventful bail on more liberal conditions at that address, Ms Mauger’s more specific explanation now of her lack of reservation is not determinative; neither does it compel a different result.

[17]              Ms Mauger’s address is not a suitable address for Mr Brophy’s electronically monitored confinement. The Judge was right to sentence him to a short term of imprisonment absent a suitable residence for a home detention sentence.

25     Sentencing Act, s 80I.

26     Sentencing Act, s 8(g).

27     Tapu v R [2015] NZHC 2688.

28     Kingi v R [2021] NZHC 1698 at [16].

Result

[18]The appeal is dismissed.

—Jagose J