Brownlee v Police - [2018] NZCA 217

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA140/2018
[2018] NZCA 217

BETWEEN	MISHAQ FENDAR CYPRESS ARCHIE BROWNLEE Applicant
AND	NEW ZEALAND POLICE Respondent

Court:	Brown, Duffy and Katz JJ
Counsel:	C Muston for Applicant K Peirse-O’Byrne for Respondent
Judgment: (On the papers)	26 June 2018 at 12.30 pm

JUDGMENT OF THE COURT

The application for leave to bring a second appeal is declined.

____________________________________________________________________

REASONS OF THE COURT

(Given by Brown J)

Introduction

Following a Judge alone trial in the District Court at Whangarei Mr Brownlee was convicted of one charge of injuring with intent to injure and was sentenced to two years and two months’ imprisonment.[1] He received a concurrent sentence of six months’ imprisonment in respect of a charge of assault with intent to injure to which he had earlier pleaded guilty. His appeal to the High Court was dismissed.[2]
[1]New Zealand Police v Brownlee [2017] NZDC 27833.
[2]Brownlee v New Zealand Police [2018] NZHC 215.
He now seeks leave to appeal to this Court against the sentence of two years and two months’ imprisonment. The basis of his proposed appeal is that in calculating the sentence the District Court Judge made an arithmetical error with the consequence that his sentence should have been two years instead of two years two months’ imprisonment.

The District Court sentence

The final sentence of two years two months’ imprisonment was calculated in this way. First, a starting point for the injuring with intent to injure offending was taken of two years and six months’ imprisonment. A three-month deduction was allowed to take into account provocation.
Next a starting point for the assault with intent to injure charge was taken of 14 months’ imprisonment. Again a three-month deduction was allowed for provocation. Thus a combined starting point of 38 months’ imprisonment was reached.
The following discounts were then to be applied to that starting point:
·     four months for Mr Brownlee’s youth;
·     two months for remorse;
·     two months to reflect participation in rehabilitation courses and rehabilitation generally;
·     four months for pleading guilty to the assault with intent to injure charge.
Although the sum of those deductions would result in a final sentence of 26 months, the Judge erroneously calculated a figure of 28 months.[3] He then concluded as follows:[4]
I am prepared from that initial end sentence of two years and four months that I have made reference to, to reduce the sentence further to take into account the totality of the offending by a further two months, but in my view, as I have signalled, Mr Brownlee, the only sentencing option available to the Court today, given the nature of the offending and the gravity of the offending, is a term of imprisonment.

The High Court judgment

[3]New Zealand Police v Brownlee, above n 1, at [33].

[4]At [36].

In the High Court Mr Brownlee appealed his conviction on the injuring with intent charge and both sentences.

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 Brownlee v Police

Details

AGLC: Brownlee v Police [2018] NZCA 217
Case: [2018] NZCA 217
Decision Date: 26 June 2018 at 12.30 pm

CaseChat Overview and Summary

In the matter of Brownlee v Police, the applicant, Mishaq Fendiar Cypress Archie Brownlee, sought leave to appeal against his sentence of two years and two months' imprisonment for injuring with intent to injure. Brownlee's appeal against his sentence was dismissed by the High Court, and he now sought leave to appeal to the Court of Appeal of New Zealand. The basis of Brownlee's appeal was that the District Court Judge made an arithmetical error in calculating his sentence, resulting in a sentence of two years and two months' imprisonment instead of two years. The court had to determine whether the applicant's proposed appeal involved a matter of general or public importance or whether a miscarriage of justice may have occurred or may occur unless the appeal was heard.

The court found that the District Court Judge had made an arithmetical error in calculating Brownlee's sentence. However, the court found that the error was redeemed when the Judge applied the totality principle, which is designed to ensure that an offender does not receive a sentence that is out of all proportion with the overall gravity of the offending. The court found that the sentence of 26 months, which happened to accord with the sentence that would have been the product of the correct arithmetical process, was the appropriate sentence and there was no justification for a sentence less than that. The court found that the totality principle would not mandate a different outcome, and in terms of Ferris-Bromley, there could be no suggestion that the sentence was manifestly excessive.

The court declined the application for leave to bring a second appeal, stating that it was not satisfied that the proposed appeal involved a matter of general or public importance or that a miscarriage of justice may have occurred or may occur unless the appeal was heard. The court concluded that the sentence imposed was within range, and a correction to account for the arithmetical error would amount to "tinkering." The court did not find any justification for a sentence less than the sentence imposed. The court's decision was based on the totality principle and the arithmetical error, and the court found that there was no miscarriage of justice or error of law that warranted a second appeal.

Orders