R v Broughton

[2019] NZHC 2141

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CRI-2018-088-440

[2019] NZHC 2141

THE QUEEN

v

GARY BROUGHTON

Hearing:

30 August 2019

Appearances:

R B Annandale for the Crown

L J Postlewaight for the Defendant

Judgment:

30 August 2019

SENTENCE OF GAULT J

Solicitors:

Mr R B Annandale, Marsden Woods Inskip Smith, Office of the Crown Solicitor, Whangarei Ms L J Postlewaight, Barrister, Wellington

R v BROUGHTON [2019] NZHC 2141 [30 August 2019]

[1]    Mr Broughton has pleaded guilty to one charge of wounding with intent to cause grievous bodily harm.1 That was an amended charge following the empanelling of a jury and the hearing of evidential matters at the commencement of his trial on a charge of attempted murder.

[2]    Disputed facts emerged and I determined which facts were proved following a hearing.2 In essence, the disputed facts related to matters of provocation and excessive self-defence.

[3]    The Crown submits that a starting point of 10 to 11 years’ imprisonment is appropriate, with a modest uplift for Mr Broughton’s previous convictions, or at least no reduction for previous good character, and up to a 10 per cent discount for his guilty plea.

[4]    Ms Postlewaight, for Mr Broughton, initially submitted the starting point should be 8 to 9 years’ imprisonment, with discounts for mitigating factors of provocation and excessive self-defence, previous good character, remorse, time on EM bail and the guilty plea. She subsequently revised this submission in a supplementary memorandum, submitting a starting point of 5 to 6 years’ imprisonment is appropriate. This morning she accepted the Crown submission that the starting point should be considered in two stages: first, the starting point for the offending, other than taking into account mitigating factors of the offending; and then with an adjustment for those factors. I consider that is correct and view the lower starting point as somewhat conflating those two stages.

Facts

[5]    On 12 February 2018 Mr Broughton and Mr Manukau were having an argument  over  the  theft  of  a  pair  of  work  boots  that  Mr Broughton  alleged  Mr Manukau had taken from him.   Their argument started across the road from     Mr Broughton’s  house.  At   approximately   6:30   pm   Mr   Manukau   followed Mr Broughton up Mr Broughton’s driveway.

1      Crimes Act 1961, s 188(1), maximum 14 years imprisonment.

2      R v Broughton [2019] NZHC 1566.

[6]    Mr Broughton went into his house through his garage. He went to his bedroom, retrieved a samurai sword, and went outside back onto his drive. As Mr Manukau walked down the drive he heard someone say “yeah”. Mr Manukau turned around and immediately saw Mr Broughton coming towards him with blood coming from his head and an angry look on his face. Mr Manukau saw Mr Broughton was holding a samurai sword between his legs with the blade pointing upwards. By this point Mr Broughton was right in front of Mr Manukau. Mr Manukau believed he was about to be stabbed and moved to his left as Mr Broughton lunged towards him with the sword in a stabbing motion towards his neck. The sword pierced the front right of Mr Manukau’s neck and exited out the back right of his neck. Mr Manukau did not immediately realise he had been stabbed.

[7]    Mr Manukau was taken to Dargaville Hospital where he was initially treated and then sent to Whangarei Hospital where he was operated on. Mr Manukau sustained an entry wound approximately three centimetres wide and an exit wound through the back of his neck approximately two centimetres wide. The sword stab caused internal damage, including a nicked vein that had to be by-passed and fixed.

[8]    In explanation, Mr Broughton stated that Mr Manukau had stolen his work boots and that,  after  Mr  Broughton  had  approached  Mr  Manukau  about  this,  Mr Manukau  had  assaulted  him  on  the  driveway  of  Mr  Broughton’s  house.  Mr Broughton said that Mr Manukau had chased him into his house. Mr Broughton stated that the injuries that he had when he was taken into custody – a gash to the front of his forehead, a lump on the left side of his head, and a few other grazes on his arm and legs – were as a result of this assault.

[9]    Mr Broughton stated that as a result of the assault he was angry and that he wanted revenge. He went to his house thinking that he wanted to kill Mr Manukau, got the sword from his bedroom thinking to himself that he would go outside and hit Mr Manukau. He later said that he returned outside to hit Mr Manukau. He said that he was acting in self-defence. Once outside Mr Broughton lifted the sword above his head. He said Mr Manukau was coming towards him. Mr Broughton stated that there was a struggle and that the victim grabbed his arm in self-defence and took the sword from him. He said that he was defenceless.

[10]   When questioned Mr Broughton initially denied stabbing Mr Manukau through the neck but later stated that he could not remember if he had, and it was possible he did but could not remember doing it.

[11]   After the disputed facts hearing, I found the Crown did not negate beyond a reasonable doubt that:

(a)Mr Manukau assaulted Mr Broughton on the driveway outside his home causing physical injury to his head.

(b)The assault by Mr Manukau involved the pushing of Mr Broughton’s head into the stones of the driveway on two or three occasions causing injury.

(c)Mr Manukau followed Mr Broughton into his house and sought to gain entry through an internal door into the house.

(d)Mr Broughton decided to get the samurai sword only after he went inside his house.

(e)When in the house, Mr Broughton feared Mr Manukau was intending to break into the house and use further violence against him.

(f)Mr Broughton initially came out to the entry of the garage door with the sword to protect himself.

Victim impact statement

[12]   I have read Mr Manukau’s victim  impact  statement dated 18 March 2019.   It states that the stabbing has had a very big  impact  on  his  life  in  many ways.  The stabbing happened on family land  and,  as  a  result  of  the  mental  distress,  Mr Manukau is unable to live at that location any more. This is a massive cross to bear for him as he has always dreamed of ending his days in that location. Also, he had just started a new job when the incident happened, and due to the assault had to leave that job and move south.

[13]   He knows how lucky he is to be alive after what happened, and he thinks about it every night. It haunts him. Mr Broughton is married to Mr Manukau’s niece and the incident has affected the whole family and put cracks in relationships. Physically, Mr Manukau still suffers all day from headaches and shoulder pain, which is worse in the mornings and evenings.

[14]   He found an ACC claim difficult so did not complete it, and for a period was financially affected. The build-up to the trial, before Mr Broughton pleaded guilty, caused him a huge amount of anxiety and stress. He could not see a time when he will be able to put this fully behind him. His suffering will continue when Mr Broughton is released from prison.

Approach to sentencing

[15]   I must have regard to the purposes and principles of sentencing as set out in the Sentencing Act 2002.3 In serious violent offending such as this, the relevant purposes of sentencing include to hold the offender accountable for harm done to the complainant; to promote a sense of responsibility for that harm; denounce the conduct in which the offender was involved; deter the offender or others from committing the same or a similar offence; to protect the community from the offender; and to assist in the offender’s rehabilitation and reintegration.

[16]   I will follow the normal sentencing process.4 First, I will set a starting point, based on the characteristics of the offending and informed by sentences given in similar cases. As mentioned already, I will break that into two parts. Secondly, I will consider whether any of Mr Broughton’s personal circumstances justify an adjustment to that starting point, up or down. Thirdly, I consider whether Mr Broughton should receive a discount for his time on EM bail and his guilty plea.

3      Sentencing Act 2002, ss 7-8.

4      R v Taueki [2005] 3 NZLR 372 (CA); and Hessel v R [2010] NZSC 135, [2011] 1 NZLR 607.

Starting point

[17]   Referring to the applicable guideline case of R v Taueki,5 the Crown submits that band 3 applies, identifying the following aggravating factors of the offending:

(a)serious injury;

(b)use of a weapon;

(c)attacking a vulnerable area of the body, the neck, close to the head;

(d)vulnerability of the victim; and

(e)impact of the offending.

[18]   The defence acknowledged use of a weapon but otherwise resist these aggravating factors. Ms Postlewaight submits that band 2 applies. For band 2, the starting point is 5 to 10 years’ imprisonment. For band 3, it is 9 to 14 years’ imprisonment.

[19]   Clearly, the use of a samurai sword involving violence is a significant aggravating factor. I also consider the injury caused is an aggravating factor. The sword went right through the victim’s neck. I accept the Crown’s submission that it was only good luck that the victim did not die, as the place of injury was millimetres away from vital vascular structures. Related to this, although I do not treat it as a stand-alone aggravating factor, the injury to the neck was to a vulnerable area of the body, close to the head. Beyond that, I do not consider that the victim was vulnerable. I acknowledge the impact of the offending on the victim. I also do not consider that this is a stand-alone aggravating factor.

[20]   I regard this case as being within band 2. I have identified two aggravating factors, and they are both serious. The combination of the samurai sword and wound fully through the neck put this towards the top of band 2. I consider that this offending

5      R v Taueki [2005] 3 NZLR 372 (CA).

warrants a starting point of 8 ½ years’ imprisonment. In coming to this figure, I have had regard to  cases referred to  me by Ms  Postlewaight,  and  I footnote two that     I consider are somewhat analogous to the present offending.6

[21]   The conduct of the victim can  be  a  mitigating  factor  of  the  offending.7 Ms Postlewaight relies on provocation and excessive self-defence, which may lead to lower starting points in GBH offending.8

Provocation

[22]   In the disputed facts judgment, I did not rule out that there was provocation in Mr Manukau’s conduct prior to Mr Broughton stabbing him, which was an operative cause of Mr Broughton’s actions. But I noted that operative cause is relevant but not determinative of culpability in relation to provocation in sentencing.9

[23]   Taking into account all relevant factors,10 the provocation referred to here can only result in a modest reduction to the starting point. Mr Broughton was clearly incensed by serious provocation in the form of being told to pack his bags and leave, and the assault, but Mr Broughton’s response was more than a sudden, let alone justified or proportionate, loss of control. Mr Broughton armed himself with the sword while alone in his  bedroom  and  went  back  outside  before  he  lunged  towards  Mr Manukau with the sword in a stabbing motion towards his neck. Mr Broughton may well have been influenced by alcohol but that is not a mitigating consideration.11 Overall, the provocative conduct somewhat reduces Mr Broughton’s culpability in all the circumstances. I deal with the related aspect of Mr Broughton’s fear in relation to excessive self-defence.

6      I do not list all of these cases here. I consider this case to be somewhat analogous to the offending in Tuau v R [2012] NZCA 146; and Garrett-Phillips v R [2015] NZCA 563.

7      Sentencing Act 2002, s 9(2)(c).

8      R v Taueki [2005] 3 NZLR 372 (CA) at [32]; and Wairau v R [2015] NZCA 215 at [29].

9      R v Broughton [2019] NZHC 1566 at [52], citing Wairau v R [2015] NZCA 215 at [29].

10     Wairau v R [2015] NZCA 215 at [29].

11     Sentencing Act 2002, s 9(3).

Excessive self-defence

[24]   I found that Mr Broughton feared further violence against him following the assault on the driveway, and a previous incident in 2014. But he acknowledges he was also angry. He came out to protect himself, but nevertheless lunged towards Mr Manukau with the sword in a stabbing motion towards his neck. That was not a defensive move. This is not a case of excessive self-defence where the attack initially commenced as an effort by Mr Broughton to defend himself but went too far.12

[25]   Considering the provocation and also Mr Broughton’s fear of further violence together, I consider in all the circumstances a reduction of 18 months is appropriate.

[26]This brings me to a starting point of 7 years’ imprisonment.

Pre-sentence report

[27]   Mr Broughton is 62 years old. He has six previous convictions between 1976 and 2014. Two of his convictions are for violence, one common assault and one male assaults female. These are his two most recent convictions. The 2014 assault occurred on the same day as the previous incident with Mr Manukau. The Crown submits that it demonstrates that Mr Broughton has a tendency to become violent when intoxicated. Mr Broughton has not previously been sentenced to imprisonment.

[28]   The pre-sentence report says that Mr Broughton grew up in East Tamaki and left school after the fifth form. He initially served in the military. He also spent time travelling overseas. He has been a truck and bus driver most of his life. He is married with three children, aged 13, 10 and 6.

[29]   There is some history of alcohol related domestic violence. Mr Broughton reports a low use of alcohol but the report refers to information taken from an EM bail report indicating alcohol has been a factor in three family harm callouts to the Broughtons’ address since January 2017. I agree with Mr Annandale, for the Crown, that alcohol is a feature of Mr Broughton’s offending. If he does not obtain treatment for that then the risk of further violent offending will remain.

12     R v Taueki [2005] 3 NZLR 372 (CA) at [32].

[30]   The report assessed Mr Broughton as having a medium to high risk of harm due to his inclination to use stabbing and cutting weapons, and a medium risk of reoffending based on his age and the fact that he is usually in stable employment.

[31]   The report indicated that Mr Broughton disputed the facts, as evidenced by the later hearing, and showed little remorse.

[32]   Mr Broughton has stated, the report said, that he has had nightmares and a lot of anxiety since the offending. I understand he has received counselling which has assisted.

Cultural report

[33]   I have also received a  cultural  report,  prepared  by  Ms  Shelley  Turner.  Mr Broughton is of English descent; he was born in New Zealand two years after his parents immigrated here. Both his parents have passed away. He has three siblings, including a twin, but does not have a strong relationship with them.

[34]   When he was growing up he suffered physical abuse at the hands of both his brother and his father. The relationship with his father was severed because of this, and he seldom saw him.   His parents returned to England when he was 16, but     Mr Broughton stayed with a best friend’s family. He assimilated into their family and Māori culture. He felt more affinity with Māori people. His wife, who he married when he was 48, is Māori. They have been together 14 years and have three children, as mentioned. They had a fourth, who very sadly only lived for a few hours.

[35]   Ms Turner writes that Mr Broughton has not been a violent man throughout his life, although he endured violence at the hands of his family. Ms Turner writes that he had successfully broken the cycle of violence, and that up until moving to the address where the offending occurred, he lived a blameless life. Since then, he has been arrested on three occasions for violent offending in relation to whānau.

[36]   Ms Turner comments on a long running  dispute  between  the  victim  and Mr Broughton over Mr Broughton living on the land. This also emerged in the disputed facts hearing. Ms Turner comments on the conduct of the victim from a

tikanga Māori perspective. This aspect of the report perhaps goes beyond what is appropriately addressed in such a report, but she says the victim’s conduct would have been deeply distressing to Mr Broughton, and may have contributed to his being provoked, which I accept, especially given his own background, and have already addressed.

[37]   Ms Turner writes that Mr Broughton is remorseful, at least to a point, but it seems his remorse is more directed to the suffering his actions have caused his wife and children. This aligns with the comments of the pre-sentence report writer.

[38]   Ms Turner concludes by noting Mr Broughton presented as a lovely, kind- hearted, hard-working man who is devoted to his wife and children. I thank Ms Turner for her efforts in preparing this thorough report.

Adjustment for personal factors

[39]   The Crown argues there should be an uplift for Mr Broughton’s previous convictions, or at least these convictions should rule out a discount for good character.

[40]   Ms Postlewaight submits that Mr Broughton has been a good provider and worked long hours six days per week for his children and family and, notwithstanding his few convictions, is entitled to the benefit of good character. She refers to letters in support.

[41]   In the circumstances, I do not consider that an uplift for previous convictions is appropriate but I agree with the Crown that Mr Broughton’s convictions, particularly his relatively recent violent ones, rule out a discount for previous good character that otherwise may have been appropriate. While it may be true that, as Ms Turner puts it, he led a blameless life until he moved onto the land, he has not behaved blamelessly while he has been there.

[42]   I  also  do  not  consider   a   further   discount   is   appropriate   to   reflect Mr Broughton’s upbringing beyond what I have recognised in relation to provocation.

[43]   In terms of remorse, Mr Broughton is not to be criticised for disputing the Crown’s summary of facts. But, based on the pre-sentence and cultural reports, I do not consider a discount for remorse is appropriate.

[44]   The net result is no adjustment, upwards or downwards, for Mr Broughton’s personal circumstances.

EM bail

[45]   Mr Broughton has been on EM bail with 24 hour curfew from April 2018 until his guilty plea in March 2019. I was told that apart from one matter involving the use of alcohol, he did not breach his electronic bail conditions. As Mr Broughton was on restrictive EM bail for  10 to 11  months,  I consider he should receive a credit of     8 months.13

[46]This brings me to a sentence of 6 years and 4 months’ imprisonment.

Guilty plea

[47]   The Crown acknowledged that the guilty plea did save the victim and other Crown witnesses from having to give evidence but submitted that at most there should be a 10 per cent discount on the basis that the guilty plea was entered on the second day of trial and, while it was a plea to an amended charge, the Crown had made the position clear in respect of that proposal for some time prior to trial. The defence submitted that the Crown had effectively retracted its initial concession as to credit for a guilty plea and sought a 20 per cent discount. Moreover, Ms Postlewaight referred to the fact that important photographs were only available a week before trial.

[48]   In the circumstances, I consider that a 15 per cent discount is appropriate for Mr Broughton’s guilty plea.

[49]That brings me to a final sentence of 5 years and 4 months’ imprisonment.

13 Courts will most often not award a discount on a one to one basis for time spent on EM bail: see the Court of Appeal's discussion in Keown v R [2010] NZCA 492.

Conclusion

[50]Mr Broughton, please stand.

[51]   On the charge of wounding with intent to do grievous bodily harm, I sentence you to 5 years and 4 months’ imprisonment.

[52]Please stand down.

Gault J