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 supervision and community work and a one-month uplift for the intimidation charge. The Judge then adjusted the starting point down to 30 months’ imprisonment for totality.

[8]                 For personal aggravating factors, the Judge applied an uplift of 10 per cent to reflect that some offences occurred while subject to sentence and a 10 per cent uplift to reflect Mr Rushton’s extensive criminal history, including 24 dishonesty offences.

[9]                 For personal mitigating factors, the Judge adopted a 20 per cent discount for guilty pleas.

[10]              In respect of Mr Rushton’s s 27 report, the Judge noted the report was 16 pages long, but some of it was a boilerplate template used in every report. He said the report detailed some degree of Māori heritage, but it did not detail how much or the nature of it. The Judge said that Mr Rushton had a very limited connection with tikanga Māori, and his upbringing certainly did not have regard to tikanga. However, the Judge noted that Mr Rushton is now 26 and it was difficult to see the causal connection between what was described in the report and the offending. The Judge said that the generalised academic view of the report writer as to the disadvantage people with Māori heritage face in society was not sufficient to provide a solid connection between Mr Rushton’s background and the offending.

[11]              The Judge did, however, take into  account  the role  of  synthetic  drugs in Mr Rushton’s offending. He also took into account, to a limited extent, his counsel’s comments that Mr Rushton was not taking his medication when the offending occurred and gave a five per cent discount for personal mitigating factors.

[12]              This led to an end sentence of 28 and a half months’ imprisonment with an order of reparation of $5,200.

Principles on appeal

[13]              Appeals against sentence are allowed as of right by s 244 of the Criminal Procedure Act 2011 and must be determined in accordance with s 250 of that Act. An appeal against sentence may only be allowed by this Court if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.7 The Court of Appeal supported the lower court’s decision in Tutakangahau v R: “[a] court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles”.8 It is only appropriate for this Court to intervene and substitute its own views if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.9

The appeal

[14]              I first note that this appeal was filed out of time.   The appeal was filed on     4 August 2023 with the sentencing occurring on 7 June 2023. Mr Tupaea said in the notice of appeal that Mr Rushton previously attempted to engage a lawyer unsuccessfully. No issue was taken with the appeal being filed out of time, so I grant leave and go on to consider the substance of the appeal.

[15]              Mr Tupaea, for Mr Rushton, submits the sentence should be quashed and the matter remitted back to the District Court for resentence on the basis that the s 27 report was inadequate. He says the report did not cover all salient points and limited

7      Criminal Procedure Act 2011, s 250(2) and 250(3).

8      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].

9      Ripia v R [2011] NZCA 101 at [15].

the Judge in assessing a relevant discount of five per cent. He accepts this discount was appropriate on the material before the Judge. This disadvantaged the appellant. He submits the pre-sentence report provided more insight to Mr Rushton’s background than the s 27 report. However, Mr Tupaea does not elaborate in his submissions on what was missing from the report nor does he provide fresh evidence on this point.

Discussion

[16]              The Court of Appeal has held that a failure to engage s 27 of the Sentencing Act 2022 could provide a proper basis to reconsider sentence. However, the appellant must provide enough information to satisfy the appeal court that the failure to engage the s 27 process resulted in matters that may have impacted on sentence being overlooked.10 It is also generally expected that an appeal based on the failure to consider a s 27 report, or here (by analogy), a more comprehensive s 27 report, that such a report is prepared and presented to the court on appeal.11

[17]              Mr Tupaea has not provided the Court with any additional information that was missing from the s 27 report that would materially impact sentencing. Furthermore, the report itself is not obviously inadequate. It outlines Mr Rushton’s family background, his early exposure to violence from his stepmother and witnessing violence against his mother by her boyfriends, his education and leaving school after year  10,  his  experiences  with  homelessness,  crime   and   going   to  Te   Puna Wai ō Tuhinapo and his mental health. The report also touches on Mr Rushton’s disconnection with te ao Māori, although this is largely in an academic sense. There is no aspect of Mr Rushton’s circumstances that is identified as omitted. It draws the connection between his use of synthetic cannabis and his offending. Furthermore, it appears that the Judge had a discussion with counsel during the hearing about the report and gave him an opportunity to supplement that report with his submissions. In addition, as accepted by Mr Tupaea, the report is supplemented by the pre-sentence report which also covers Mr Rushton’s background and the drivers of his offending. As acknowledged by Mr Tupaea, a discount of five per cent based on that information was appropriate.

10     Akuhata v R [2020] NZCA 19 at [151].

11     Taylor v R [2020] NZCA 584 at [14].

Result

[18]              Given there is no identified error in the sentencing and the appellant has not shown a different sentence should have been imposed, the appeal is dismissed.

Solicitors:

Crown Solicitor, Christchurch

Copy to:
J Tupaea, Barrister, Christchurch