Brunton v The Queen - [2016] NZHC 1511

NOTE: PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS, OF COMPLAINANT(S) PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011.

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2016-463-14 [2016] NZHC 1511

BETWEEN
DANIEL CRAIG BRUNTON

Appellant

AND

THE QUEEN

Respondent

Hearing: 30 June 2016

Counsel:

C G Tuck for appellant
A J Pollett for respondent

Judgment:

5 July 2016

JUDGMENT OF KATZ J [Appeal against sentence]

This judgment was delivered by me on 5 July 2016 at 11:00am
Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

Solicitors: Hollister-Jones Lellman, Crown Solicitor, Tauranga
Counsel: C G Tuck, Barrister, Tauranga

BRUNTON v R [2016] NZHC 1511 [5 July 2016]

Introduction

[1] Daniel Brunton appeals against a sentence of four years’ imprisonment imposed by Judge T R Ingram in the Tauranga District Court on 3 March 2016 for three charges of sexual violation by unlawful sexual connection and three charges of doing an indecent act (girl under the age of 12 years).

[2] Mr Brunton is 27 years old. The offending occurred between 2002 and 2007 when he was aged between 13 and 17. The four victims were all younger than him. Most of the offending appears to have occurred when he was aged 13 to 15, with a final offence occurring when he was 17 or 18. He has not offended since.

[3] The ground of appeal is, in essence, that the sentence imposed was manifestly excessive because the Judge should not have adopted a starting point using the bands set out in the guideline judgment of R v AM1 and the sentencing
methodology set out in R v Taueki.2 Mr Tuck, counsel for Mr Brunton, submits

that Mr Brunton’s offending falls within “an archetype of offending that is not amenable to existing guideline judgments and sentencing methodology” and that “it may well be time for a higher court to review the guideline judgment and Taueki methodology in cases such as this”. Mr Tuck submits that it is contrary to the interests of justice to impose significant terms of imprisonment on persons who offended while very young, but who have subsequently outgrown their immature offending, taken responsibility for their actions, and spent many years moving on with their lives as positive and productive adult members of society.

[4] Mr Tuck accepts, as he must, that this Court is bound by the decisions in R v AM and Taueki. I am therefore unable to engage with the arguments that Mr Tuck has advanced in his written submissions. Mr Tuck has therefore foreshadowed that leave will be sought from the Court of Appeal for a second
appeal to that Court.

1 R v AM (CA27/2009) [2010] NZCA 114, [2010] 2 NZLR 750.
2 R v Taueki [2005] 3 NZLR 372 (CA).

[5] Mr Tuck did not argue that the Judge had misapplied R v AM or Taueki, for example by using incorrect inputs or sentencing methodology. I will, nevertheless, consider whether there are any errors apparent in…

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 Brunton v The Queen

Details

AGLC: Brunton v The Queen [2016] NZHC 1511
Case: [2016] NZHC 1511
Decision Date: 5 July 2016

CaseChat Overview and Summary

Daniel Brunton appealed against a sentence of four years' imprisonment imposed on him for multiple charges of sexual violation and indecent acts. The High Court reviewed the appeal to determine if the sentence was manifestly excessive. The court found that while the starting point and overall discounts were within the available range, there was an error in the application of the guilty plea discount which worked against Brunton. The court concluded that the sentence was manifestly excessive and substituted a sentence of three years and nine months' imprisonment. The court also granted Brunton an extension of bail pending a potential appeal to the Court of Appeal.

The main legal issue in this case was whether the sentence imposed by the District Court was manifestly excessive. The court examined the sentencing methodology applied by the District Court, including the starting point and the discounts applied for factors such as youth and good character. The court found that while the starting point and overall discounts were within the available range, there was an error in the application of the guilty plea discount which worked against Brunton. The court concluded that the sentence was manifestly excessive and substituted a sentence of three years and nine months' imprisonment.

The court found that the 10-year starting point was within the available range, and the 40% youth discount and 10% discount for mitigating factors were also within the available range. However, the court found that the 25% guilty plea discount should have been applied after the other mitigating factors, not before. This error worked against Brunton and resulted in a sentence that was three months longer than it should have been. The court found the sentence to be manifestly excessive and substituted a sentence of three years and nine months' imprisonment. The court also granted Brunton an extension of bail pending a potential appeal to the Court of Appeal.

Orders