Broughton v The Queen

[2018] NZCA 70

IN THE COURT OF APPEAL OF NEW ZEALAND

CA676/2017
[2018] NZCA 70

BETWEEN	ISAAC CRUZ ERU BROUGHTON Appellant
AND	THE QUEEN Respondent

Hearing:	26 February 2018
Court:	Brown, Brewer and Collins JJ
Counsel:	G K Edgeler for Appellant J A Eng for Respondent
Judgment:	26 March 2018 at 11.30 am

JUDGMENT OF THE COURT

AThe appeal against sentence is allowed.

BThe sentence of seven years’ imprisonment with a minimum period of imprisonment (MPI) of two years is quashed and substituted with a sentence of seven years’ imprisonment, to be served concurrently with existing sentences.

____________________________________________________________________

REASONS OF THE COURT

(Given by Collins J)

Introduction

1. Mr Broughton appeals one aspect of a sentence of seven years’ imprisonment, with a two-year minimum period of imprisonment (MPI) imposed for aggravated robbery.  The seven-year sentence of imprisonment was imposed concurrently with a sentence of life imprisonment (with an MPI of 12 years) previously imposed after Mr Broughton was convicted of murder.  The two-year MPI for the aggravated robbery was imposed cumulatively on the 12-year MPI part of his sentence for murder.  Mr Broughton’s appeal challenges the cumulative aspect of the two-year MPI that was imposed when he was sentenced for the aggravated robbery.

2. The Crown properly accepts that it was not lawful for the two-year MPI for the aggravated robbery offending to be imposed cumulatively on the murder sentence.  The Crown’s acknowledgement reflects s 23 of the Sentencing Act 2002, which provides:

   23No sentence may be cumulative on indeterminate sentence of imprisonment

   No sentence of any kind may be imposed cumulatively on an indeterminate sentence of imprisonment.

3. As we agree with the Crown’s acknowledgment that it was not lawful to impose the two-year MPI cumulatively upon the murder sentence, the issues we have had to consider are:

   (a)whether we should remit the sentencing for the aggravated robbery offending back to the District Court, and if not,

   (b)what sentence should we substitute for the sentence imposed for the aggravated robbery offending.

Background

1. On 12 March 2016, Mr Broughton shot two men with a sawn-off shot gun.  One of his victims died from the wounds he suffered.  Mr Broughton was charged with murder and wounding with intent to cause grievous bodily harm.  He was granted bail.

2. On 10 February 2017, Mr Broughton entered a hotel with a sawn-off shotgun.  He stole approximately $7,000 from the hotel and robbed a patron of his wallet.  On 17 August 2017, Mr Broughton pleaded guilty to a single charge of aggravated robbery.

3. In the meantime, on 9 March 2017, Mr Broughton was convicted of murder and wounding with intent to cause grievous bodily harm in relation to the offending on 12 March 2016.  He was sentenced, on 7 April 2017, to life imprisonment with an MPI of 12 years for murder and seven years’ imprisonment for the charge of wounding with intent to cause grievous bodily harm.[1]  Those sentences were concurrent.

   [1]R v Broughton [2017] NZHC 671.

4. On 17 August 2017, Judge Ingram sentenced Mr Broughton on the charge of aggravated robbery.[2]  A sentence of seven years’ imprisonment was imposed.  That sentence was ordered to be served concurrently.  However, Judge Ingram also imposed a two-year MPI, which he ordered to be served cumulatively on the sentence for murder imposed by the High Court on 7 April 2017.  Judge Ingram’s objective was to have Mr Broughton serve a 14-year MPI in relation to both the murder and aggravated robbery offending.

Analysis

[2]R v Broughton [2017] NZDC 18669.

1. A determinate sentence of imprisonment may be imposed cumulatively on any other determinate sentence of imprisonment[3] and any sentence of imprisonment may be imposed concurrently with any other sentence of imprisonment.[4]  As previously noted, however, no sentence of any kind may be imposed cumulatively on an indeterminate sentence of imprisonment.[5]  Furthermore, the Sentencing Act does not permit the splitting of a sentence of imprisonment whereby part of a sentence is to be served concurrently and another part of the same sentence is to be served cumulatively upon an existing sentence.

   [3]Sentencing Act 2002, s 83(1).

   [4]Sentencing Act, s 83(5).

   [5]Sentencing Act, s 23.

2. Section 86 of the Sentencing Act governs the imposition of an MPI in the present case.  Section 86(2) of the Sentencing Act states:

   86Imposition of minimum period of imprisonment in relation to determinate sentence of imprisonment

   …

   (2)The court may impose a minimum period of imprisonment that is longer than the period otherwise applicable under section 84(1) of the Parole Act 2002 if it is satisfied that that period is insufficient for all or any of the following purposes:

   (a)holding the offender accountable for the harm done to the victim and the community by the offending:

   (b)denouncing the conduct in which the offender was involved:

   (c)deterring the offender or other persons from committing the same or a similar offence:

   (d)protecting the community from the offender.

   …

   (Emphasis added.)

3. In the present case, the MPI prescribed by s 84(1) of the Parole Act 2002 was two years and four months’ imprisonment, being one-third of the seven-year sentence for the aggravated robbery.

4. The sentencing process went astray in this case in the following ways:

   (a)When the Judge imposed a hybrid sentence, namely the concurrent sentence of seven years’ imprisonment together with the two-year MPI to be served cumulatively upon the sentence for murder.

   (b)When the Judge imposed a cumulative sentence on the indeterminate sentence that had been imposed for murder.

   (c)When the Judge imposed an MPI that was less than the period contemplated by s 86(2) of the Sentencing Act.

Should the District Court re-sentence Mr Broughton?

1. Mr Broughton pleaded guilty to the aggravated robbery on the basis of a summary of facts that we have before us.  We are in as good a position as the District Court to re-sentence Mr Broughton on this charge.  We accordingly will not remit Mr Broughton’s case back to the District Court for re-sentencing.

What sentence should we substitute?

1. Judge Ingram was justifiably concerned about the seriousness of Mr Broughton’s offending.  His offending in relation to both incidents involved the use of a sawn-off shotgun.  Mr Broughton murdered one victim and seriously injured the other victim.  The aggravated robbery was, by itself, a very serious incident, which occurred when Mr Broughton was on bail and awaiting trial for the charges of murder and wounding with intent to injure.  The aggravated robbery involved use of a firearm, in commercial premises, where members of the public were present.

2. Had there been a Crown appeal against sentence we may have been persuaded to increase the finite sentence imposed for the aggravated robbery.  This is because the seriousness of Mr Broughton’s offending would, under normal circumstances, have attracted an end sentence of eight or more years’ imprisonment.[6]  As the Crown has not sought to appeal the seven-year sentence in this case, we are confined to deciding what to do about the two-year MPI.

   [6]R v Repia [2017] NZHC 426; R v N [2014] NZHC 2236; R v Tuku-Inamata [2014] NZHC 2654; R v Wilson HC Hamilton CRI-2011-419-10, 9 December 2011; R v Wellington [2014] NZHC 2993; McKee v R [2014] NZCA 337.

3. We accept that in principle two or more sentences that contain MPIs may be imposed concurrently or cumulatively in cases where cumulative sentences may be lawfully imposed.  The difficulties in this case are:

   (a)The MPI for the aggravated robbery should not have been imposed cumulatively upon the indeterminate murder sentence.

   (b)The two-year MPI was less than the two years and four months’ minimum period of imprisonment Mr Broughton must serve before he could be considered for parole in relation to the sentence for aggravated robbery.  On its face, this aspect of the sentence is difficult to reconcile with s 86(2) of the Sentencing Act.

   (c)While the Crown has suggested we might consider increasing the MPI for the aggravated robbery, no application has been made by the Crown to extend the period of time to appeal the sentence imposed by Judge Ingram.

4. In view of the difficulties presented by this case, we consider the appropriate course is to quash the MPI imposed by the District Court.

Result

1. The appeal against sentence is allowed.

2. The sentence of seven years’ imprisonment with an MPI of two years is quashed and substituted with a sentence of seven years’ imprisonment, to be served concurrently with existing sentences.

Solicitors:
Crown Law Office, Wellington for Respondent