Brunton v The Queen
[2016] NZHC 1511
•5 July 2016
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 respondentJudgment:
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 the District Court judgment, applying existing precedent, rather than simply dismiss the appeal as being beyond the scope of this Court’s jurisdiction.
District Court judgment
[6] Judge Ingram recorded that the offending was serious.3 He also noted Mr Brunton’s lack of previous convictions and the favourable probation report. He took a 10 year starting point. He said:
[14] It is worth mentioning that you represent a very considerable problem for a sentencing Judge. The difficulties attaching to the assessment of sentence for someone in your circumstances are always significant. The reality is that you currently lead a good life, you are a working man. You have settled down, you have caused no trouble and you represent no obvious threat to the rest of the community.
[15] As against that, these offences are indubitably serious and had they been committed when you were your present age, you would be facing a substantial sentence of imprisonment in the order of eight to 10 years in my view.
[16] I consider that the practicalities of assessing sentence in your case is such that you represent an archetype for consideration of sentencing considerations for a sentencing Judge.
[7] The Judge accepted that the tariff case R v AM was decided long after Mr Brunton’s offending, but nevertheless applied the aggravating factors outlined in that case – notably vulnerable victims, breach of trust, extent of harm, multiple victims, a low scale of offending and various degrees of violation. He held that the case fell within the lower end of band 3 for unlawful sexual connection cases.
[8] The Judge recognised Mr Brunton’s prospects of rehabilitation but did not consider home detention to be available because of the seriousness of the offending. He expressed the view that home detention would have been preferable if it was an
available sentencing option.
3 R v Brunton [2016] NZDC 3709.
[9] The Judge took the charge of sexual violation by penile penetration of the anus as the lead charge. Having regard to the age of the complainant and the relatively limited duration of the behaviour, he took a starting point of 10 years’ imprisonment. He did not consider an uplift for totality for all of the offending to be appropriate because he regarded it as being a related course of conduct, even though it was spread over a period of years.
[10] The Judge then afforded a 25 per cent guilty plea discount, despite the relative lateness of the pleas, which were entered after the process of getting the case ready for trial had been undertaken. The Judge emphasised that the victims had been spared the ordeal of giving evidence and also noted the advantages in avoiding the wider financial and emotional costs of trial.
[11] A 40 per cent discount was given for youth, and a further 10 per cent discount for Mr Brunton’s childhood difficulties (including that he was himself a victim of abuse) and because of his otherwise good character in the 10 years since the offending.
[12] Taking a starting point of 10 years’ imprisonment, the Judge discounted the guilty plea first, followed by the youth discount and then the discount for other factors. This produced an end sentence of 48 and a half months, which he rounded down to four years’ imprisonment.
[13] For the other sexual violation charges the Judge took a starting point of five years’ imprisonment and a concurrent end sentence of two years’ imprisonment. For the indecent act charges an end sentence of nine months’ imprisonment was imposed (I assume taking a starting point of two years’ imprisonment).
Was the starting point within the available range?
[14] The 10 year starting point appears to have been within the available range in light of the totality of the offending. This case falls within the middle of band two of the rape bands in AM, in that it involves two or three aggravating features present to a moderate degree. The overall offending was against four vulnerable and young victims, and there are multiple incidents of offending, ranging from anal
penetration, to digital penetration, and to indecent acts of varying degrees of seriousness and violation. There is some degree of a breach of trust, given that the offending was against relatives (and sometimes in the babysitting context), but account must also be taken of Mr Brunton’s age at the time. The offending appears to be largely opportunistic. The Court of Appeal, in broadly similar cases, has taken starting points of between eight years’ imprisonment and 11 years and six months’
imprisonment.4
Were the appropriate discounts given?
[15] The 40 per cent youth discount appears to be within the available range, albeit at the upper end of it, relative to other cases.5
[16] I agree with the Judge that a 10 per cent discount is appropriate for
Mr Brunton’s good character, given his absence of offending as an adult.
[17] I consider the guilty plea discount of 25 per cent to also be relatively generous, considering that these were not early pleas. On the other hand the benefits of avoiding a trial were significant. I do not think the Judge’s assessment of the guilty plea discount should be disturbed.
Overall sentencing methodology
[18] There is an error in the Judge’s sentencing methodology, however, in that he applied the guilty plea discount first, before applying the other discounts. This was incorrect. The guilty plea discount should only have been applied after the other personal mitigating factors were taken into account. This worked against Mr Brunton. With a starting point of 10 years’ imprisonment, and applying discounts of 50 per cent for total mitigating factors, and then 25 per cent for guilty
pleas, the end sentence should have been 45 months’ imprisonment, or three years
4 M (CA844/2011) v R [2012] NZCA 352; V (CA400/2012) v R [2012] NZCA 465; Lennon v R
[2012] NZCA 551; Overton v R [2011] NZCA 648.
5 M (CA844/2011) v R, above n 4 – offender 14 years old – 34 per cent; V (CA400/12) v R, above n
4 – 14-17 years old – 30 per cent, including remorse and rehabilitation; Lennon v R, above n 4 –
14-15 years old – 33 per cent; Overton v R, above n 4 – 15-16 years old – 22 per cent; Hood v R
[2012] NZCA 212 – 14-15 years old – 33 per cent; BB (CA732/2012) v R [2013] NZCA 139 -
14-17 years old – 40 per cent; De Reeper v R [2012] NZCA 617 – 14- 15 years old – 45 per cent;
R v Alletson [2009] NZCA 205 – 15-17 years old – 43 per cent.
and nine months’ imprisonment. This is three months less than the four year end sentence reached by the Judge.
[19] Given the length of the sentence, and the generosity of the discounts applied by the Judge, it is arguable that the end sentence was still within the available range. The Crown did not pursue that argument, however, but (very fairly) took the position that Mr Brunton should have the benefit of having the error corrected. I accordingly find that the sentence imposed in the District Court was manifestly excessive. A sentence of three years nine months’ imprisonment should be substituted.
[20] The final matter is that Mr Brunton is currently on bail pending the outcome of this appeal. Given that this Court is unable to address the primary arguments that Mr Tuck wishes to advance, he sought an extension of bail pending his foreshadowed application for leave to appeal to the Court of Appeal. The Crown did not oppose a relatively short extension of bail to enable Mr Tuck to file the relevant application and seek appropriate directions from the Court of Appeal. As Mr Tuck will be overseas for the next two weeks, I am prepared to grant Mr Brunton bail until 26 July 2016.
Result
[21] The appeal is allowed to the extent that the sentence of four years’ imprisonment imposed by the District Court in respect of charge 4 is quashed and a sentence of three years and nine months’ imprisonment substituted. The sentences in respect of the other charges remain the same.
[22] Mr Brunton is granted bail on his existing bail conditions until 10:00 am on
26 July 2016. He must then hand himself in to the Tauranga Central Police Station to commence serving his sentence of imprisonment, unless the Court of Appeal has
directed otherwise.
Katz J
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