Broughton v Police HC New Plymouth CRI 2010-443-10

[2010] NZHC 962

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI-2010-443-000010

JOEL JONOTHAN BROUGHTON

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         10 June 2010

Counsel:         P Keegan for appellant

S T Ellis for respondent

Judgment:      18 June 2010

RESERVED JUDGMENT OF DOBSON J

Solicitors:

S T Ellis, Auld Brewer Mazengarb & McEwen, PO Box 738, New Plymouth

(sam[email protected]z)

Counsel:

P Keegan, PO Box 8152, New Plymouth

BROUGHTON V NEW ZEALAND POLICE HC NWP CRI-2010-443-000010  18 June 2010

[1]      This  was  an  appeal  against  sentences  cumulatively  totalling  17 months’ imprisonment as being manifestly excessive.  At the sentencing on 20 May 2010 in the District Court at Hawera, Judge Grace treated the convictions in three groups, and they were addressed in that same way in the arguments on appeal.

[2]      The first group of convictions arose out of Mr Broughton’s violent response to being refused bail in the District Court at Hawera on 10 November 2009.  Those involved common assault, assaulting a Police officer, resisting an officer and threatening behaviour.   The Judge described the circumstances as Mr Broughton becoming “difficult and refused to go out the door and required the intervention of the Police and then it was all on”.  In sentencing, he treated these as the most serious group of offences that had occurred in the face of the Court and constituted a direct confrontation with the Court.

[3]      Having regard to Mr Broughton’s previous convictions, and his conduct in non-custodial sentences, as well as the pre-sentence report, the Judge imposed a term of eight months’ imprisonment on the more serious, assault, conviction.   He also imposed four months’ imprisonment for the common assault and two sentences of two months’ imprisonment for resisting the officer and for threatening behaviour. All the lesser sentences were to be served concurrently with the longest one.

[4]      Some  time  after  the  November  incident,  Mr Broughton,  who  had  been remanded in custody, was given compassionate leave to attend a funeral but did not surrender  himself  back  to  prison.    A  warrant  having  issued  for  his  arrest,  on

21 February 2010, there were protracted attempts to arrest and detain Mr Broughton. His conduct on that day gave rise to charges of escaping from custody and resisting a constable in the execution of her duty.  The Judge imposed a sentence of six months’ imprisonment in respect of the conviction for escaping from custody, and two months’ imprisonment for resisting the officer in the execution of her duty.  Those sentences were to be served concurrently with each other, but cumulatively upon the sentence of eight months imposed in respect of the most serious “in Court” conviction.

[5]      The sequence of events leading to the second group of convictions had also involved a breach of bail on which he was convicted and discharged.

[6]      Mr Broughton was also subject to a charge for breach of community work and the third aspect of the sentencing was to cancel the then current sentence of breach of community work and impose a sentence of imprisonment of three months. That sentence was directed to be served cumulatively on the second, which itself was cumulatively on the first term of imprisonment imposed.

[7]      Finally, Mr Broughton had earlier entered a plea of not guilty to assault with intent to injure in respect of an incident on 13 June 2009.  That charge had been set down for a not guilty hearing on the date on which he was being sentenced on all the other convictions.   However,  it did not proceed and on  that day Mr Broughton entered a plea of guilty to a lesser charge of being a party to an assault.   On that conviction, the Judge sentenced Mr Broughton to three months’ imprisonment but that was to be served concurrently with those already imposed.

[8]      Mr Keegan advanced four grounds of challenge to the final outcome of this sentencing.   First, that  the cumulative sentences were imposed with insufficient regard to the totality principle.  Secondly, that the lengths of the various prison terms were imposed without reference to any applicable starting points.  Thirdly, that they were excessive relative to the conduct involved.  Fourthly, that Mr Broughton was sentenced to the maximum term for conviction on breach of his community work sentence, so that no discount could have been given on that sentencing for the prompt guilty plea and imposition of the maximum was harsh when imposed cumulatively on the other sentences.

[9]      Sensibly, Mr Keegan did not challenge the Judge’s approach to sentencing, in breaking the convictions down into the three groups in which he dealt with them, and then imposing sentences that were to be served cumulatively after settling the appropriate total sentence for each group of convictions.  Consideration then turns to the  appropriateness  of  the  longest  sentence  imposed  within  each  group  of convictions.

[10]     Mr Broughton  accepted  that  the  in  Court  offending  was  of  sufficient seriousness to attract a sentence of eight months’ imprisonment, for a defendant with Mr Broughton’s history of offending, and having regard to the relatively early guilty pleas entered to the charges on which he was sentenced.

[11]     However, as to the February 2010 offending, Mr Keegan submitted that the relatively  short-lived  attempts  by  Mr Broughton  to  resist  apprehension  were relatively minor, and did not warrant a sentence of six months’ imprisonment.

[12]     For  the  Police,  Ms Ellis  disputed  the  relatively  benign  light  in  which Mr Keegan had sought to cast the activity involved in the February offending.  The summary of facts recorded that a warrant had been issued for Mr Broughton on

8 December 2009 when he failed to return to prison after being given leave to attend a  funeral  and  was  accordingly the  subject  of  an  outstanding  warrant.    He  was recognised in Palmerston North on 21 February 2010, and was placed under arrest by the  officer  involved  who  laid  hands  on  Mr Broughton  to  effect  the  arrest. Mr Broughton was uncooperative, pushed the officer away and, after a brief scuffle, ran from the Police.  Police officers caught up with Mr Broughton on a further three occasions but he avoided apprehension by climbing fences and running from the Police.   He was eventually taken into custody when the effect of pepper spraying him took effect.  The conviction for escaping from Police custody is one carrying a maximum penalty of five years’ imprisonment, and that for resisting the Police carries a maximum penalty of three months’ imprisonment.

[13]     No  particular  guideline  judgment  was  submitted  on  the  approach  to sentencing on such convictions.  Reflecting on the relative criminality of what was involved, and having some regard to the physicality of Mr Broughton (who was described   by   Mr Keegan   as   weighing   some   180   kilograms),   six   months’ imprisonment for these convictions appears tough, but I am not persuaded that it was excessively so.   Mr Broughton has previous convictions for resisting the Police in March 2009, failing to stop when being following by red and blue flashing lights in February 2008, obstructing or hindering the Police in May 2007, failing to stop after an accident in November 2003, and failing to stop when being followed by red and blue flashing lights in February 2000.  Those are in addition to a frequent pattern of

convictions for failing to answer Court bail.   Responding physically to lawful attempts to arrest suspects ought to be an unnecessary call on Police resources, and is likely in cases such as the present to put the physical safety of the officers involved at risk.  The Court is entitled to acknowledge the need for an element of deterrence in such sentencing.

[14]     As to the third group of convictions, Mr Keegan sought to invoke what he described as a more or less recognised tariff.   That is, sentences of one month’s imprisonment for conviction on the breach and a further one month for cancelling whatever period remained outstanding of the community work sentence that has been breached and is inevitably to be cancelled on the imposition of the prison term. Therefore in proportionate terms, a further third taking the sentence up to the maximum for the conviction on breach of community work was arguably not warranted, especially when it was imposed cumulatively upon the other prison terms.

[15]     The pre-sentence report observed:

Due to the ongoing nature of the offending and Mr Broughton’s history of compliance, no community based sentences have been considered.   Home detention as an alternative to imprisonment is not considered a viable option and is not sought by Mr Broughton.

[16]     As with the second group of sentences, I am persuaded that three months was relatively harsh but, viewed on its own, not excessive.

[17]     Turning to the criticisms of the Judge’s approach, his reasoning does not reveal starting points suggesting perhaps a telescoping of the sequence of considerations  mandated  by  the  purposes  and  principles  in  ss 7  and  8  of  the Sentencing Act 2002.   Ms Ellis cited the decision in Pomana v Police[1]  for the proposition that failure to identify a starting point is not an omission warranting the granting of an appeal.

[1] Pomana v Police HC Gisborne AP03/03, 7 July 2002.

[18]     Here, Mr Keegan urged that Mr Broughton was entitled to a full discount for early guilty pleas on all of the convictions (with the possible exception of the last matter dealt with, where there had been a guilty plea after a reduction in the charge),

so  working  backwards  from  an  end  point  of  17  months  necessarily  involves  a starting point of some 25 months.  That proposition may be arithmetically accurate, but I do not accept that it reveals a material flaw in the way the overall sentencing was approached.

[19]     A further point foreshadowed as a ground of appeal was that the sentencing imposed   was   inconsistent   with   a   sentencing   indication   previously  given   to Mr Broughton.   The date for hearing of the appeal was adjourned for 24 hours to enable the terms in which this matter had been traversed at an earlier hearing in the Hawera Court, to be transcribed and available to counsel and the Court.

[20]     On  the  occasion  in  question,  there  was  a  somewhat  confused  series  of exchanges  as  to  the  various  charges  being  dealt  with  and  the  extent  to  which Mr Broughton had pleaded to them.  Mr Keegan had volunteered his own view to the Court that a sentencing range, when deductions were made, would be something between six and eight months.  That drew a response from the Judge “you’re in the ballpark”.   Mr Keegan’s opinion had been volunteered without preamble, no input was invited or provided on behalf of the prosecution, and there is no indication that the exchange was intended to constitute a sentencing indication.  The exchange was before another District Court Judge and no reference was made to the exchange when  Judge  Grace  heard submissions and  completed  the  sentencing on  20 May

2010, from which decision this appeal is brought.  It is also clear that there was no endorsement on the file of a sentencing indication so that the sentencing occurred with the Judge being entirely ignorant of the brief exchange that had occurred.

[21]     Making   every   allowance   for   the   informality   with   which   sentencing indications may be traversed in a busy District Court list, I was not prepared to treat the limited exchange that occurred here as having the status of a sentencing indication.  Had I done so, then the appropriate course would have been to ascertain whether Mr Broughton wished to vacate any pleas he had entered after the relevant exchange on 16 March 2010, as would be his entitlement if pleas were entered in

reliance on a sentencing indication that did not, without material explanation, correspond with the sentence subsequently imposed.[2]

[2] See, eg, Deighton v Police HC Whangarei CRI-2005-488-24, 20 May 2005 at [10].

[22]     Nothing in that process contemplates that, rather than starting a sentencing process again where it has gone wrong in that way, the matter ought to be addressed as a makeweight for other arguments on an appeal to reduce the sentence that has been imposed.

[23]     The ground of appeal that was most inherently judgemental, but which in the end I find persuasive, was that the Judge’s reasoning did not acknowledge the need to “stand back” after imposing a sequence of cumulative sentences, to consider the totality of the period of imprisonment relative to the gravity of the overall offending under s 85(2) of the Sentencing Act.  I am persuaded that there is not sufficient in the reasons for sentencing to safely infer that that process has been undertaken.

[24]     Evaluating the totality principle in reflecting the totality of the offending and the  totality  of  the  cumulative  sentences,  I  am  persuaded  that  the  outcome  of

17 months’ imprisonment is wholly out of proportion to the gravity of the overall offending.  Ms Ellis urged that if I reached this point, no intervention was warranted because on appeals against sentence the appellate Court ought not to tinker.   I am mindful of that constraint, but nevertheless consider the importance of the totality principle warrants intervention to produce a final sentence that appropriately takes it into account.

[25]     When viewed in totality, I consider the second group of convictions (ie for the events of 21 February 2010) ought to be reduced so that the longest sentence is four and a half months, and I accordingly reduce the sentence on the conviction for escaping from custody from six to four and a half months’ imprisonment.

[26]     Further, in relation to the convictions entered for the breach of community work and cancellation of the sentence of community work, I reduce the term of imprisonment from three months to two and a half months.   All other sentences remain undisturbed.

[27]     The overall effect of those reductions is that the total sentence for the three series of convictions is reduced from 17 to 15 months’ imprisonment.  The appeal against sentence is allowed to that extent.

Dobson J