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.

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REASONS OF THE COURT

(Given by Collins J)

Introduction

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.
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.
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

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.
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.
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.
On 17 August 2017, Judge Ingram sentenced Mr Broughton on the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Broughton v The Queen

Details

AGLC: Broughton v The Queen [2018] NZCA 70
Case: [2018] NZCA 70
Decision Date: 26 March 2018 at 11.30 am

CaseChat Overview and Summary

In the case of Broughton v The Queen, Isaac Cruz Eru Broughton appeals against a specific aspect of a sentence imposed for aggravated robbery. The case was heard in the Court of Appeal of New Zealand by Brown, Brewer and Collins JJ. The appeal focuses on the minimum period of imprisonment (MPI) imposed for the aggravated robbery, which was ordered to be served cumulatively on a previously imposed murder sentence. The Crown accepted that the imposition of the two-year MPI cumulatively on the murder sentence was unlawful under Section 23 of the Sentencing Act 2002. The court considered whether to remit the case back to the District Court for resentencing or to substitute a different sentence. The Court of Appeal decided not to remit the case for resentencing as they were in a similar position to the District Court in terms of information and evidence. The court substituted the original sentence with a seven-year imprisonment term, to be served concurrently with existing sentences.

The legal issues the court had to decide were whether to remit the case back to the District Court for resentencing and, if not, what sentence should be substituted for the one imposed for the aggravated robbery. The court considered the appropriate course of action in light of the unlawful cumulative imposition of the MPI on the murder sentence and the difficulty in reconciling the two-year MPI with Section 86(2) of the Sentencing Act. The court concluded that the most suitable course of action was to quash the MPI imposed by the District Court and substitute a new sentence.

The Court of Appeal allowed the appeal against sentence and substituted the original sentence with a seven-year imprisonment term, to be served concurrently with existing sentences. This decision was made considering the seriousness of Mr Broughton's offending, the unlawful imposition of the MPI, and the difficulty in reconciling the two-year MPI with the Sentencing Act. The final orders were made to quash the MPI imposed by the District Court and substitute a new sentence as mentioned above.

Orders