Broughton v Police
[2022] NZHC 3376
•8 December 2022
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2022-409-133
[2022] NZHC 3376
BETWEEN HARLEY RAYMOND BROUGHTON
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 8 December 2022 Counsel:
A C Trinder for Appellant J E Lancaster for Crown
Judgment:
8 December 2022
ORAL JUDGMENT OF EATON J
Introduction
[1] Mr Broughton was sentenced1 to two years and four months’ imprisonment by Judge Callaghan on charges of burglary,2 escaping custody,3 theft (under $500),4 dishonest use of a document,5 giving false information,6 possessing utensils,7 receiving,8 obtaining by deception,9 failing to appear,10 unlawfully taking a vehicle11
1 Police v Broughton [2022] NZDC 14200.
2 Crimes Act 1961, s 231(1)(a); maximum penalty 10 years’ imprisonment.
3 Crimes Act, s 120(c); maximum penalty five years’ imprisonment.
4 Crimes Act, ss 219 and 223(d); maximum penalty three months’ imprisonment.
5 Crimes Act, s 228(1)(a); maximum penalty seven years’ imprisonment.
6 Land Transport Act 1998, ss 14 and 44; maximum penalty $10,000 fine.
7 Misuse of Drugs Act 1975, s 13(1)(a) and (3); maximum penalty one years’ imprisonment.
8 Crimes Act, ss 246 and 247(b); maximum penalty one years’ imprisonment.
9 Crimes Act, ss 240(1)(a) and 241(c); maximum penalty three months’ imprisonment.
10 Bail Act 2000, s 38(a); maximum penalty one years’ imprisonment.
11 Crimes Act, s 226(1); maximum penalty seven years’ imprisonment.
BROUGHTON v NEW ZEALAND POLICE [2022] NZHC 3376 [8 December 2022]
and failing to remain stopped.12 He appeals that decision, advancing a single ground, that he is entitled to credit for restorative justice processes engaged in after sentencing.
Facts
[2] On 21 October 2021, 30 October 2021, 10 December 2021, 30 December 2021, 6 January 2022, 14 January 2022, 19 February 2022, 22 February 2022 and 26 February 2022, Mr Broughton drove off without paying for petrol taken from various petrol stations in the Canterbury region (nine charges of theft).
[3] On 24 February 2022, between 12 pm and 5.23 pm, Mr Broughton entered a house in Papanui through a window. He stole a television worth $300 and Chromecast worth $69 (burglary).
[4] On 26 February 2022, at about midday, the first victim’s vehicle was broken into in Rolleston. A handbag was stolen containing a cell phone and wallet. The wallet contained the first victim’s driver licence and bank cards. Just after midday Mr Broughton went into NPD Rolleston and purchased items valued at $26.40 using the first victim’s card. Twenty minutes later he purchased cigarettes and a phone top-up card from a dairy, again using the first victim’s card (two charges of using a document).
[5] About one hour later, at 1.15 pm, Police stopped Mr Broughton in his vehicle. They saw the stolen wallet with the victim’s driver licence on top. Mr Broughton was told he was under arrest and subsequently put the car into gear and sped off (escapes custody, failing to remain stopped, receiving).
[6] On 29 March 2022 Mr Broughton was a passenger in a vehicle. He gave false details to a constable. He then decamped on foot. He was apprehended and arrested a short time later. During a subsequent search of his property a glass methamphetamine pipe was located (possession of utensils). When spoken to by Police he denied knowing the stolen property was stolen.
12 Land Transport Act, ss 52A(1)(b) and 114; maximum penalty $10,000 fine.
[7] On 15 April 2022, Mr Broughton offered a BBQ for sale on Facebook Marketplace using a fake profile. Following his instructions, the second victim transferred $200 to him. Mr Broughton stopped responding to the victim on Facebook (obtaining by deception).
[8] On 20 April 2022, Mr Broughton was found, appearing to be under the influence of drugs, in a vehicle that had recently been stolen (unlawfully taking). When he was processed at the Police station a methamphetamine pipe was located (possession of utensils). He said a friend had given him the vehicle to use.
District Court decision
[9] Judge Callaghan adopted a starting point of three years’ imprisonment for the burglary and unlawful taking of a motor vehicle charges. Discrete uplifts of three months were imposed for the thefts and the “unlawful use” of a motor vehicle. A further uplift of six months was adopted for the dishonest use of document charges. That resulted in an overall starting point of four years’ imprisonment. Having regard to the totality principle, the Judge did not impose an uplift for Mr Broughton’s previous convictions. Mr Broughton received 25 per cent credit for his guilty pleas, 10 per cent credit for his addiction issues and the fact that he is seeking help, and five per cent for the fact he was prepared to pay reparation. That resulted in an end sentence of two years and four months’ imprisonment.
[10] Reparation was ordered on the burglary, theft, obtaining by deception and dishonest use of a document charges. Mr Broughton was disqualified from driving for six months on the charges of failing to stop and providing false details.
Principles on appeal
[11] Appeals against sentence are permitted as of right by s 244 of the 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 that there has been an error in the imposition of the sentence and that a different sentence should
be imposed.13 It is appropriate for this 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.14
Submissions
Appellant’s submissions
[12] Ms Trinder, for Mr Broughton, sought leave to file fresh evidence on appeal – a restorative justice conference report dated 11 August 2022 between Mr Broughton and the first victim. Counsel submitted the evidence was directly relevant to the issue of remorse, is credible and there is a risk of a miscarriage of justice if it is not admitted on appeal. She highlighted the assessment report filed by Restorative Justice Services on 21 July 2022 recorded that restorative justice had not been possible prior to sentencing due to COVID.
[13] Ms Trinder submitted the conference was confronting and challenging for Mr Broughton given the victim knew his family and spoke candidly of the distress she had experienced. She submitted the conference ended positively and Mr Broughton displayed insight and remorse into his offending. She referred to Justice Whata’s comment in Solicitor-General v Heta that credit as high as 20 per cent could be appropriate for positive engagement in a restorative justice process and for remorse.15 She submitted a discrete credit of 10 per cent would be appropriate to recognise Mr Broughton’s participation in restorative justice, the letter of apology written to the pre-sentence report author and his genuine remorse. She submitted an adjusted sentence of 24 months’ imprisonment was appropriate. However, the appellant does not seek a sentence of home detention.
Respondent’s submissions
[14] Mr Alloway filed submissions on behalf of the Police and Ms Lancaster appears in support of the Police position. A neutral stance is taken on the application to offer fresh evidence. Mr Alloway submitted the Judge was correct not to allow a
13 Criminal Procedure Act 2011, ss 250(2) and 250(3).
14 Ripia v R [2011] NZCA 101 at [15].
15 Solicitor-General v Heta [2018] NZHC 2453, [2019] 2 NZLR 241 at [65].
discrete credit for remorse given the lack of relevant tangible evidence. He highlights the Judge appropriately allowed credit for both addiction issues (10 per cent) and for reparation (five per cent), reflecting ample recognition of remorse and a willingness to engage in a restorative justice process.
[15] In response to the fresh evidence and with reference to recent authorities,16 counsel acknowledged that similar restorative justice conferences have led to discounts of 10 per cent. Accepting the fresh evidence may warrant a discount in that region, counsel urged the Court to be alert to discount creep, described as:17
… a phenomenon by which closely related or interrelated mitigating features are artificially disaggregated, then each awarded full and discrete discount to achieve a desired result.
[16] Counsel noted that a 10 per cent credit as proposed on behalf of the appellant would lead to an overall deduction of 50 per cent. Ms Lancaster submits that the Judge, in taking into account both addiction at 10 per cent and reparation at five per cent has adequately taken into account the issues adduced as fresh evidence on appeal, albeit acknowledging that a further credit is available, but submits that overall the sentence imposed was not manifestly excessive.
Analysis
[17] I will deal first with the credit sought for Mr Broughton’s remorse and engagement in restorative justice.
[18] This ground of appeal first requires a ruling on the application to admit fresh evidence. The principles are well-settled. The evidence must be fresh, credible and cogent.18 The overriding test governing admission is the interests of justice.19 I am satisfied that the evidence Mr Broughton seeks to adduce is fresh, the restorative justice conference took place after the sentencing. Restorative Justice Services had been advised Mr Broughton and the first victim were willing to participate prior to
16 R v Ringdahl [2020] NZHC 1922; R v Pan [2020] 2342 and R v Manuel [2021] NZHC 250.
17 R v LB [2020] NZHC 94, at [53].
18 Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273 at [120]; and Mark v R [2019] NZCA 121 at
[16].
At [119].
sentencing but a meeting was not possible prior to sentencing due to COVID. That was a circumstance beyond the control of Mr Broughton or his counsel (not Ms Trinder). I am also satisfied the evidence is credible and cogent. The restorative justice report was prepared by a facilitator. It is accepted that it accurately records the conference. Cogency arises as the report could affect the appropriate sentence for Mr Broughton.
[19] The application to admit the restorative justice report as fresh evidence on the appeal is granted.
[20] The fresh evidence records that at the restorative justice conference Mr Broughton explained the background to his offending. The first victim articulated the fear and loss she suffered as a result of his offending. He accepted responsibility and expressed remorse. While there appears to have been a difference in the information given to the first victim by Police and Mr Broughton, it does not appear that arose from him attempting to minimise his responsibility. Mr Broughton demonstrated empathy and insight by explaining that he had been thinking selfishly. He said it was hard to hear the things that the first victim told him. He explained this was his first time in prison and that he did not realise he was hurting people. I think his position is captured in the following comment:
I am truly sorry. Words are not enough. I will remember this forever. It is disheartening that I have done this to my family, your family and my little brother. I am sorry to you and your family. I wish I could take it back. It’s character building.
[21] The restorative justice conference also demonstrated Mr Broughton’s prospects of rehabilitation. He explained prison had been salutary for him and he is focused on setting goals and ensuring he does not return to prison. He indicated an intention to work for his father, who is a builder, and that he has been participating in drug rehabilitation.
[22] The views he expressed through the report are consistent with the pre-sentence report writer’s assessment that Mr Broughton presented as motivated to accept responsibility for his offending, to tackle his drug addiction and to lead a normal life
in the community. If Mr Broughton had a suitable address, the report writer would have proposed a sentence of home detention or intensive supervision.
[23] Section 8(j) of the Sentencing Act 2002 provides the Court must take into account any outcomes of restorative justice processes that have occurred. Section 9(2)(f) states the Court must take into account remorse shown by Mr Broughton to the extent it is applicable. The Judge gave credit for Mr Broughton’s guilty pleas, his offer to pay reparation and for addiction issues. I accept in this case there is an overlap between the credit properly available for reparation and the credit that is available for participating positively in restorative justice processes. I agree with Ms Trinder that the credit the Judge gave for addiction issues is, on the facts of this case, distinct. The restorative justice report does, to my mind, demonstrate remorse at a level that was not apparent to, or considered by, the District Court Judge to the extent that a further additional discrete credit is warranted for what is Mr Broughton’s now demonstrated remorse and acceptance of responsibility. Because I consider there to be an overlap between reparation and remorse in this case, in my view a further discount of five per cent, rendering a total discount for remorse and restorative justice at 10 per cent, is appropriate.20
[24] In the course of the hearing, I raised with counsel my concern the Judge had erred in setting a starting point of four years’ imprisonment. The Judge appropriately identified the burglary as the lead offence but then took a starting point “for this burglary and for the unlawful taking and the associated issues” of three years’ imprisonment, with uplifts of 12 months for the balance of the offending, leading to the four-year starting point. The burglary and the unlawful taking of the motor vehicle were quite discrete offences. The structure of the sentence presents a challenge in assessing the starting point the Judge might have taken for the burglary alone.
[25] The more fundamental problem is that the uplift of 12 months for the additional offending included an uplift of three months for “the unlawful use of a vehicle”. Mr Broughton faced a single charge of unlawfully taking (or using) a motor vehicle.
20 Solicitor-General v Heta, above n 15; R v A [2018] NZHC 2024 at [46]; R v Martin [2017] NZHC 1571; R v Angelich [2018] NZHC 2429; R v Ringdahl, above n 16; R v Pan, above n 16; R v Manuel, above n 16.
The three-month uplift for this charge was an error, in my view, as the Judge had already factored this charge when fixing the starting point of three years’ imprisonment. The Judge therefore double-counted the unlawful taking of a motor vehicle charge. That error requires the starting point to be adjusted by three months unless the three year starting point was appropriate for the burglary charge alone.
[26] The burglary was a daytime, unsophisticated offence. No physical damage was caused and the total value of the two items stolen was $369. In my assessment, that offence is properly categorised as a low-level residential burglary, albeit by an offender with a history of three prior burglaries and seven dishonesty offences.
[27] In Arahanga v R, the Court of Appeal observed that there was no tariff for burglary because the range of circumstances in which the offence can be committed is so varied.21 However, it was observed that burglary of a domestic residence is a significant aggravating feature due to the heightened risk of confrontation with occupants.22 The Court observed dwelling house burglaries at the relatively minor end of the scale tend to attract starting points between 18 months and two years and six months’ imprisonment.23 More recently, in Taylor v R,24 where a 17-month starting point was adopted for a low-level daytime dwelling house burglary with an element of premeditation, the Court of Appeal observed that a low-level dwelling house burglary can attract a starting point from one to two and a half years’ imprisonment. In Columbus v R the Court of Appeal observed previous convictions for dishonesty offending, while aggravating personal circumstances, are often considered when setting a starting point for burglary offending.25
[28] In my view a three-year starting point for the burglary alone was too high. An appropriate starting point I have assessed for the burglary is 20 months’ imprisonment. An appropriate uplift for the unrelated charge of unlawful taking of a motor vehicle
21 Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189 at [78].
22 At [78], referring to Senior v Police (2000) 18 CRNZ 340 (HC) at [19].
23 At [78], referring to Wilson v R HC Auckland CRI-2011-404-445, 7 February 2012; Dudley v Police HC Christchurch CRI-2009-409-1, 26 February 2009, Arps v Police HC Christchurch CRI-2010-409-167, 2 September 2010; and Snowden v Police HC Hamilton CRI-2010-419-52, 15 July 2010 among others.
24 Taylor v R [2021] NZCA 606 at [39]-42], referring to Arahanga v R, above n 21, Tutakangahau v R
[2014] NZCA 279, [2014] 3 NZLR 482 at [42]–[44]; and Columbus v R [2008] NZCA 192 at [16].
25 Columbus v R, above n 24, at [14].
must reflect that the vehicle was badly damaged, it had high value of $45,000 and there were distressing consequences as recorded in the victim impact statement. I fix the appropriate uplift as nine months’ imprisonment.
[29] With the other uncontested uplifts (total nine months), the adjusted starting point is three years and two months’ (38 months) imprisonment. I agree with the Judge that there is no need for a further uplift to reflect Mr Broughton’s criminal history having regard to the totality principle.
[30] The Judge had applied a total deduction of 40 per cent. I have concluded that a further five per cent is appropriate to reflect remorse. That results in an end sentence of 21 months’ imprisonment.
Result
[31]The appeal against sentence is allowed.
[32] The sentence of two years and four months’ imprisonment on the burglary charge is quashed and substituted with a sentence of 21 months’ imprisonment. The sentences imposed are otherwise confirmed.
[33] Pursuant to s 93 of the Sentencing Act 2002 I impose the standard release conditions as set out in s 14 of the Parole Act 2002 and a special condition that Mr Broughton is to undertake any drug-related counselling and treatment as directed by a Probation officer. These standard and special conditions are to expire six months after the sentence expiry date.
...................................................
Eaton J
Solicitors/Counsel:
Aja Trinder, Christchurch Crown Solicitor, Christchurch
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