Rushton v Police - [2023] NZHC 2754

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2023-409-145

[2023] NZHC 2754

BETWEEN
JOSHUA RUSHTON

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 28 September 2023

Appearances:

J Tupaea for Appellant

A R T Garrick for Respondent

Judgment:

2 October 2023

JUDGMENT OF DUNNINGHAM J

This judgment was delivered by me on 2 October 2023 at 9.30 am, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar
Date……………

RUSHTON v NEW ZEALAND POLICE [2023] NZHC 2754 [2 October 2023]

Introduction

[1] Joshua Rushton pleaded guilty to five charges of receiving stolen property,1 escaping custody,2 threatening to injure with intent to intimidate,3 and failing to comply with conditions of intensive supervision4 and community work.5

[2] Mr Rushton was sentenced by Judge Couch on 7 June 2023 to 28 and a half months’ imprisonment and was ordered to pay reparation of $5,200.6

[3]Mr Rushton appeals this sentence on the basis of an inadequate s 27 report.

Background facts

[4]Mr Rushton received the following stolen items: a mountain bike worth

$3,000, an electric scooter worth $2,400, four leather vests and an electric bike worth
$5,200. The intimidation charge relates to a victim taking back his stolen bike when Mr Rushton attempted to sell it on Facebook marketplace. Mr Rushton sent the victim’s girlfriend a picture of a knife via Facebook messenger and said, “Return what’s not urs b4 I fuck use all up” and “ur [bloods] going to be on this next”.

[5] The escaping custody charge relates to when police came to arrest Mr Rushton for breaching his bail conditions and he locked the doors to his house, attempted to run away from police after threatening to send his dogs on them, was caught and put in a patrol vehicle, and then moved across the backseat of the car, opened the driver’s side passenger door and fled on foot.

1      Crimes Act 1961, ss 246 and 247(a): maximum penalty seven years’ imprisonment.
2      Section 120(c): maximum five years’ imprisonment.
3      Summary Offences Act 1981, s 21(1)(a): maximum penalty three months’ imprisonment or a
$2,000 fine.
4      Sentencing Act 2002, s 70A(a): maximum penalty six months’ imprisonment or a $1,500 fine.
5      Section 71(1)(a): maximum penalty three months’ imprisonment or a $1,000 fine.
6      New Zealand Police v Rushton [2023] NZDC 11503.

[6] The breaches of conditions charges relate to Mr Rushton’s sentencing for other charges of receiving stolen property. For both charges, he failed to engage in, or comply with, his obligations under a sentence of intensive supervision and community detention.

District Court decision

[7] The District Court Judge adopted a starting point of 20 months’ imprisonment for the receiving charges, noting that Mr Rushton has been convicted of very similar offending recently and was given an opportunity to reform on a sentence of intensive supervision and community work. He adopted a nine-month starting point for the escaping from police custody charges. There was a four-month uplift for the breaches of intensive…

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 Rushton v Police

Details

AGLC: Rushton v Police [2023] NZHC 2754
Case: [2023] NZHC 2754
Decision Date: 2 October 2023

CaseChat Overview and Summary

Joshua Rushton appealed the sentence imposed on him by the District Court, which had convicted him on multiple charges including receiving stolen property, escaping custody, and threatening to injure. Rushton's appeal focused on the adequacy of a s 27 report that was used in the sentencing process. The primary legal issue before the High Court was whether the District Court had erred in its consideration of the s 27 report and, if so, whether this warranted a different sentence.

The High Court considered that while a failure to properly engage with a s 27 report could justify a reconsideration of sentence, the appellant must provide specific information that was omitted and that would materially impact sentencing. The Court noted that Rushton's counsel did not elaborate on what was missing from the report or provide fresh evidence to support the claim of inadequacy. The s 27 report itself was comprehensive, detailing Rushton's background, exposure to violence, education, homelessness, criminal history, and mental health. It also addressed his disconnection from te ao Māori and the role of synthetic drugs in his offending. The report was supplemented by a pre-sentence report, and the Judge had discussed the report with counsel during the sentencing hearing. The Court concluded that there was no identified error in the sentencing process and that Rushton had not demonstrated that a different sentence should have been imposed.

The appeal was dismissed, and the original sentence was upheld. The Court emphasised that it would only intervene if the sentence was manifestly excessive and not justified by relevant sentencing principles. In this case, the Court found no such error.

Orders