Broughton v Police
[2024] NZHC 469
•6 March 2024
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
I TE KŌTI MATUA O AOTEAROA
TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE
CRI-2023-463-000125
[2024] NZHC 469
K’DHYNN-JAYSE SHAYLE BROUGHTON v
NEW ZEALAND POLICE
Hearing: 26 February 2024 Appearances:
A Bean for the Appellant
H Speight for the Respondent
Judgment:
6 March 2024
JUDGMENT OF WALKER J
This judgment was delivered by me on 6 March 2024 at 3 pm Registrar/Deputy Registrar
Solicitors:
A Bean, Bean Law, Hamilton
H Speight, Pollett Legal Ltd, Crown Solicitor Tauranga
BROUGHTON v POLICE [2024] NZHC 469 [6 March 2024]
[1] The appellant, K’Dhynn-Jayse Shayle Broughton, appeals the sentence imposed on him by Judge P G Mabey KC of two years and four months’ imprisonment in relation to the following charges:1
(a)Aggravated wounding.2
(b)Injuring with intent to injure.3
[2] Mr Broughton argues that the Judge erred by adopting a starting point of eight years on the lead charge. He argues that the appropriate starting point was five years and the appropriate end sentence ought to be 18 months’ imprisonment.
[3] The starting point is the sole issue in this appeal but it encapsulates several sub-issues. There is no challenge to the uplift of six months for the charge of injuring with intent to injure or with the discounts applied by the Judge, which were generous.
[4] The Crown opposes the appeal and submits that the end sentence was not manifestly excessive.
[5] The notice of appeal was filed approximately three weeks late. The Crown does not take issue with the delay. That delay has been adequately explained. Accordingly, I grant leave for the appeal.
The offending
[6] Mr Broughton’s offending took place on 14 March 2022 (aggravated wounding) and 30 November 2022 (injuring with intent to injury). The charges were originally dealt with in the Youth Court as part of a suite of charges. The charges which are the subject of this appeal were transferred to the District Court following a guilty plea.
1 R v Broughton [2023] NZDC 19218.
2 Crimes Act 1961, s 191(1). Maximum penalty is 14 years’ imprisonment.
3 Crimes Act 1961, s 189(2). Maximum penalty is five years’ imprisonment.
[7] The summary of offending for the lead offending is set out in the Judge’s sentencing notes as follows:
[4] The first charge has a maximum term of imprisonment of 14 years. The second a maximum term of imprisonment of five years.
[5] The facts relating to the charge of aggravated wounding require consideration. You and your friend were in the Manawatu area and over a period of not much more than 24 hours you unlawfully took motor vehicles, you damaged motor vehicles, you stole property including petrol and when you go to the Whakatāne area the police were alert to your crime spree and attempts were made to apprehend you.
[6]By that time you had committed multiple offences.
[7] Over a number of hours there were attempts by police officers to stop you. You were pursued and would not stop. There were attempts to spike your vehicle but you drove away putting officers lives at risk.
[8] A number of police officers in that area were engaged at various points, all of whom were at risk of your driving in a stolen car at speed. The final chapter in your reckless and determined attempt to avoid being arrested for what you had done throughout the mid-North Island came when Senior Constable [REDACTED] was stationed on the side of a road with others.
[9] You saw them there accelerating at pace on the wrong side of the road in their direction. They took evasive action. You crashed into one of the vehicles but kept going, deliberately it seems, in the direction of another patrol car. Senior Constable [REDACTED] was on the roadside between that particular patrol car and his driver’s door. He was deciding whether he would deploy spikes in yet another attempt to stop you and your colleague.
[10] As your vehicle got closer to the senior constable it crossed the centreline onto the wrong side of the road and was aimed directly at him. There was nothing he could do and when his vehicle was struck by yours he was crushed between them. You sped off without attempting to ascertain any injury but you must have known the constable was harmed. He ended up in hospital by ambulance with a broken leg, severe knee injury, nerve tissue and damage. You kept going determined to avoid apprehension but ultimately you were spiked and the car crashed. You were both arrested.
[11] Throughout the events in the Bay of Plenty where many police officers sought to apprehend you for the many crimes that you and your friend had committed their lives were put in constant danger and in the end Senior Constable [REDACTED] was badly hurt and, frankly, he is lucky to be alive.
[8]In his victim impact statement dated 31 August 2023, Senior Constable
[REDACTED] states that the incident had the following effects:
(a)Physical injuries: broken right fibula bone and severe damage to knee (ACL). Doctors are unable to guarantee full use of his leg after surgery.
These injuries have directly prevented him from engaging in his usual active lifestyle.
(b)Financial costs: ongoing medical support including trips to an orthopaedic specialist in Tauranga.
(c)Emotional harm: ongoing support from psychologist and aversion to talking about the incident with colleagues. He has since returned to work in his designated position as the Senior Constable [REDACTED] where he had dedicated much of his career to helping young people.
[9]The second offence occurred while the appellant was on remand at about
12.47 pm on 30 November 2022. The appellant approached another young person on remand and, without warning, punched him on the left side of his face using a closed fist around seven times, before being restrained.
[10] In his victim impact statement dated 2 December 2022, the victim of the second offence stated that:
(a)He did not know the person who punched him and does not know why the appellant rushed at him.
(b)He was required to stay at the hospital overnight.
(c)As a result of his injuries, he continues to have blurred vision in his left eye and ongoing headaches.
District Court sentencing
[11] After explaining the reason why the charges had been moved to the District Court from the Youth Court, the Judge emphasised the rehabilitative priority for a young person and the requirement to impose the least restrictive outcome. He
noted however that a community sentence is not an option “despite judicial striving to get there”.4
[12] To set the starting point, the Judge applied the guideline judgment of R v Taueki.5 He identified the following aggravating factors:
(a)serious injury;
(b)use of a weapon (a car which he described as a lethal weapon); and
(c)the victim was a police officer doing his job to keep society safe.
[13] He noted that s 191 involves primary and secondary intents – the primary intent being to avoid arrest – before turning to the bands set out in R v Taueki:
[23] That case of R v Taueki that I was talking about sets out a number of bands to do with the severity or gravity of the offending. The Crown solicitor contends that you are in the second band which has a start point of between five and 10 years and says that within that range you are near the top because of the aggravating factors.
[24] The case of R v Taueki refers itself to an attack on a police officer that might be closer to the lower end of that range of five to 10 years is where a single attacker used a weapon to avoid apprehension but the injuries were not life threatening or lasting would require a start point closer to the five years than the 10 years but the Court went on to say “Where the attack involves multiple attackers,” and in a sense it did in this case but you were driving: “Or the use of lethal weapons,” now a car is a lethal weapon: “And where injuries are lasting a starting point at the higher end would be required.”
[25] Band 2, with a range of five to 10 years, overlaps with band 3, which starts at nine years. You are not in band 3 but are certainly near the upper end of band 2.
[26] The Crown solicitor suggests a nine-year start point. I think that is too close to the top of band 2, but I think eight years is fully justified to reflect the gravity of your offence where Constable [REDACTED] was so badly injured.
[14] Dealing with the second charge, the Judge uplifted the start point by six months before turning to the available personal mitigation. The Judge applied a total discount of 70 per cent to arrive at 30 months’ as follows:
4 R v Broughton [2023] NZDC 19218 at [13].
5 R v Taueki [2005] NZCA 174, [2005] 3 NZLR 372.
(a)Guilty plea: 25 per cent
(b)Section 27 report: 20 per cent
(c)Remorse: Five per cent
(d)Age: 15 per cent
(e)Mental impairment: Five per cent
[15] The Judge then reduced the sentence by two months to recognise good behaviour on bail, for an end sentence of 28 months’ imprisonment.
[16] As noted, no issue is taken with the discounts applied. Nor could it be. The discounts can fairly be regarded as generous, reflective of a young person in dire need of rehabilitation and by reason of youth, capable of rehabilitation. I return to this point later in this judgment.
Approach to appeal
[17] Mr Broughton’s appeal against sentence must be allowed if the Court is satisfied that there is an error in the sentence imposed on conviction and that a different sentence should have been imposed. For the appellant to succeed, he must demonstrate that there was a material error that has resulted in a manifestly excessive sentence being imposed.6
[18] The Court does not start afresh and substitute its own opinion for that of the original sentencer.7 Rather the focus is on the end sentence imposed and whether it was within range. It is not on the correctness of the process by which the sentence was reached.8
6 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [32]–[35].
7 At [30].
8 At [36].
Submissions
[19] Mrs Bean, for Mr Broughton, submits that the Judge erred in his application of the Taueki guidelines.
[20] I apprehend that there are two limbs to this submission: First, in respect of the applicability of Taueki for s 191 offending. Mrs Bean properly acknowledges that the Court of Appeal anticipated the use of the guideline judgment for s 191 offending by analogy but urges caution. She contends that the sentence must be squarely directed at the charge because it sets a boundary. Further, that as a charge under s 191 does not require an intention to cause injury or an intention to wound the penalties available for dangerous or reckless driving offences are as relevant (or more relevant) than Taueki.9 Mrs Bean’s point is that there was no evidence of deliberate harm, or any evidence to suggest that Mr Broughton had any option to stay in his lane in furtherance of his effort to evade capture by Police.
[21] The second limb is in respect of the application of the Taueki factors. Mrs Bean submits that there is one, not three aggravating factors, and an element of double counting in respect of the assessment of the seriousness of the injury and level of violence. Mrs Bean submits that the injuries suffered by the victim, while serious, were not of the level contemplated by Taueki.
[22] The Crown submits that the overall starting point was appropriate and in line with established authority. It says that the victim’s injuries in this case were serious because they caused long term or serious permanent disability. As a direct result of the offending, the victim has been prevented from carrying out physical activities and will require further surgical intervention. It says the car was used as a weapon which distinguishes the case of R v Hancy10 and brings the facts of this close closer to R v Goyen. 11
9 This approach was adopted in R v Hancy [2009] NZCA 469.
10 R v Hancy, above n 9.
11 R v Goyen CA 285/05, 1 May 2006.
Analysis
[23] It is correct that the guideline judgment of Taueki was primarily directed at sentencing under s 188 of the Crimes Act 1961. However, one of the defendants/appellants had been convicted of an offence under s 191(1) and the Court expressly said:12
…but we anticipate that these guidelines will be able to be applied, by analogy, to s 191(1) and to other offences involving the infliction of serious violence, with appropriate adaptation to reflect the seriousness of the particular offence, and the maximum penalty provided for it.
[24] Materially, the maximum penalty for an offence under s 191(1) is the same as that under s 188 which reflects the seriousness of the offending. However, offences under s 191(1) can vary substantially in terms of both the level of culpability of the offender and the extent of consequences for the victim. The primary difference is that an offence under s 191(1) does not require an intention to harm the victim, but an intention to:
(a)commit or facilitate the commission of any imprisonable offence; or
(b)avoid the detection of himself or herself or of any other person in the commission of any imprisonable offence; or
(c)avoid the arrest or facilitate the flight of himself or herself or of any other person upon the commission or attempted commission of any imprisonable offence.
[25] It follows that while Taueki refers to the facilitation of a crime as an aggravating factor, it cannot be an aggravating factor in an offence under s 191(1) because this factor is already an ingredient of the offence.13
[26] The application of the Taueki guidelines must be used flexibly. Where any particular feature or combination of features has some unusual character, the starting
12 R v Taueki, above n 5, at [9].
13 R v Taueki, above n 5, at [31].
point should be adjusted to reflect that.14 Notably, in discussing band two for GBH offending featuring two or three of the aggravating factors, the Court of Appeal said of the assault on a police officer:15
A GBH offence involving an attack on a police officer in the course of their duty by a single attacker with the use of a weapon, where the attack is designed to avoid apprehension for other offending, but the injuries are not life threatening or lasting, would require a starting point at the lower end of band two. Where the attack involves multiple attackers or the use of lethal weapons, a starting point at the higher end of band two would be required.
[27] The difference between the case at hand and the case of Hancy relied on by the appellant is that it could not be said in Hancy that the defendant used his car as a weapon. He did not deliberately drive his car at the victim with the intention of causing harm. Rather, he drove through an intersection against red traffic light signals before smashing head-on at high speed into the side of a car which had been proceeding through the intersection on a green light. In that case, the victim suffered life threatening injury such that, for several days, it was doubtful she would survive.
[28] In Hancy the sentencing judge fixed the starting point at seven years, having regard to the totality of the offending, band two of Taueki and cases of death or serious injury resulting from dangerous or reckless driving.16 After discounts for youth, an early guilty plea and remorse, the end sentence was five years and three months with a minimum period of imprisonment of three years.
[29] On appeal, one of the challenges to the starting point was whether band one or band two was appropriate. The Court of Appeal agreed that the Taueki guidelines must be applied with care since the particular offending did not involve the sort of conduct that s 191(1) is primarily concerned to capture.17 There was no suggestion that the defendant deliberately set out to injure road users, although he would have foreseen that his actions were likely to expose others to the risk of harm. It added:18
It cannot be realistically said that Mr Hancy used his car as a weapon. That could have been arguable only if he had deliberately driven his car at the
14 At [42].
15 At [39].
16 The defendant faced seven charges.
17 Hancy v R, above n 9, at [19].
18 At [24]–[25].
victim with the intention of causing harm as occurred in one of the cases referred to us…
Nor can it be said that the victim in this case was particularly vulnerable. She was in the position as any other road user. It was pure chance that she became the unfortunate victim of Mr Hancy’s driving.
[30] The Court, having found only one qualifying aggravating factor, held that band one would apply with a starting point of between three and six years. In determining where within band one the starting point should be, cases involving reckless or dangerous driving causing injury or death assisted. Accounting for the aggravating features of excessive speed, prolonged, persistent and deliberate bad driving, the commission of other offences at the same time and serious injury, the Court concluded that a starting point for the driving offences should have been five years. The end sentence was therefore reduced from five years and three months to four years and three months.
[31] In my assessment, the key factor that distinguishes the Hancy type of case was Mr Broughton’s act of deliberately crossing the centreline onto the wrong side of the road and aiming directly at the victim. This takes the facts outside the ‘chance’ scenario in which the victim was harmed in Hancy. Mrs Bean forcefully submits that it cannot be known whether Mr Broughton had any other evasive option available to him. With respect, this misses the essential point. The police constable was particularly vulnerable as he was trapped. He was outside the car with no possibility of evasive action when he was crushed between Mr Broughton’s vehicle and his own vehicle, at which point Mr Broughton callously drove off. As the Judge noted, the constable was lucky to be alive. The appellant’s argument that intention to harm is not an essential ingredient of the offence does not mean that the deliberateness of the action cannot be an aggravating factor. It is the corollary of the principle that ingredients of the offence cannot be aggravating factors.
[32] In sum, the Judge was entitled to view the car as a lethal weapon and that the injuries suffered were of a lasting type affecting the quality of life of the victim. The deliberate driving at the officer could have been taken as premeditation however the Judge effectively put that to one side. I therefore find no error in the placement of this offending at the upper end of band two. While a starting point of eight years might be
regarded as severe, it is within range. Moreover, the uplift for the second offence was at the lowest end of what was available. Even more importantly, the extent and nature of discounting applied to reflect Mr Broughton’s youth and background (and therefore culpability in the eyes of the law) led to an end sentence which is not excessive.
Result
[33] Having found no error in the Judge’s analysis or application of the Taueki factors, I dismiss the appeal.
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Walker J
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