Brownlee v Police [2018] NZHC 215 (22 February 2018)

Last Updated: 15 March 2018

IN THE HIGH COURT OF NEW ZEALAND WHANGAREIWHANGAREI REGISTRY I TE KŌTI MATUA O AOTEAROA WHANGĀREI TERENGA PARĀOA ROHE

CRI-2017-488-000055 [2018] NZHC 215

BETWEEN	MISHAQ BROWNLEE Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	13 February 2018
Appearances:	Chris Muston for the Appellant Sarah Barnaart for the Respondent
Judgment:	22 February 2018

JUDGMENT OF MOORE J

[Appeal against conviction and sentence]

This judgment was delivered by me on 22 February 2018 at 2:30 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar Date:

BROWNLEE v NEW ZEALAND POLICE [2018] NZHC 215 [22 February 2018]

Introduction

[1] Mishaq Brownlee, the appellant, was employed as a security guard at a bar in Whangārei.

[2] In the early hours of Saturday, 19 November 2016 a fight broke out at the bar involving patrons and security officers. The principal aggressor was a Mr Tau. In the course of the fight he was knocked to the ground. While he was on the ground he was twice stomped or kicked in the head by Mr Brownlee.

[3] The events were recorded on a security camera. At his trial before Judge G L Davis in the Whangārei District Court the video footage formed the primary basis of the prosecution’s case. In his defence, Mr Brownlee said his actions were undertaken in defence of himself and others to protect them from Mr Tau’s aggression. He claimed the force used was, in the circumstances as he believed them to be, proportionate and reasonable.

[4] Judge Davis rejected this defence and convicted him of injuring with intent to injure. At the time of sentencing, in addition to the bar assault, Mr Brownlee also appeared for sentence in respect of a previous incident to which he had pleaded guilty to assault with intent to injure. The Judge imposed concurrent sentences of two years and two months’ imprisonment and six months’ imprisonment respectively.

[5] Mr Brownlee appeals his conviction on the injuring with intent charge, and both sentences.

Background facts

15 October 2016

[6] In the early hours of the morning of 15 October 2016 Mr Brownlee was in the mall area of downtown Whangārei. He was not on duty as a security guard. A fight erupted outside the Rynoz Bar. In the course of the melee one of those involved began to abuse Mr Brownlee. Mr Brownlee responded by striking the aggressor in the face with his left fist. The two men then engaged in a fight which led to them both falling to the ground, with Mr Brownlee landing on top of the other man. Mr Brownlee got
to his feet and kicked the victim twice in the head. Others pushed him away. The victim was reported as suffering from bruising to his head and face as a result of the assault on him by Mr Brownlee. In respect of these events Mr Brownlee pleaded guilty to a charge of assault with intent to injure.

19 November 2016

[7] In the early hours of 19 November 2016 Mr Brownlee was employed as a security guard at the same bar. He was one of five on duty at the time. A video camera situated outside the bar captured the events which are at issue on this appeal.¹ I was told by Mr Muston, for Mr Brownlee, that the camera was operated remotely from the nearby central Police station. The operator was able to move the camera in order to capture the events as they unfolded.

[8] It is common ground the victim, Mr Tau, was drunk. He is readily identifiable on the video not only because he discarded his top garments and was naked from the waist up but also because his activities were the principal focus of the camera operator.

[9] Mr Tau had been behaving in an aggressive and belligerent way. Despite a number of warnings his anti-social conduct continued, culminating in him punching two members of the bar staff in the face.

[10] He was then ejected, but despite ejection remained on the footpath immediately outside the bar.

[11] The camera’s field vision picked up an area immediately outside the bar adjacent to the footpath. It was bordered by a number of portable, steel framed panels which formed a barricade behind which stood security staff and bar patrons. The panels were arranged in such a way that every person entering or leaving the bar was required to pass between them under the scrutiny of security staff.

[12] The account which follows is taken from my observations of the recorded footage. Given the nature of the appeal, both counsel were agreed the proper approach

¹ No sound accompanied the video.

was for me to undertake my own, independent, assessment and evaluation of the primary evidence in the form of the recording. Counsel also agreed I would be assisted by viewing the unedited DVD recording of the incident. Mr Muston submitted that to do so would provide me with an invaluable appreciation of the context in which Mr Brownlee’s actions should be assessed. He submitted the slow-motion version produced at the trial provides more limited assistance to the fact-finder. Notwithstanding the absence of an application for leave to adduce further evidence, in the absence of opposition I agreed to admit this evidence on appeal.

[13] Mr Muston’s assessment of the value of the unedited footage is correct. Viewing the whole footage several times in Court, together with counsel’s commentary, proved to be extremely helpful. Furthermore, at the invitation of counsel, I examined the footage frame by frame as described above. What follows is my conclusion of the captured events.

[14] Having been ejected Mr Tau could be seen walking up and down the footpath in front of the barricade behind which stood security staff and a large number of curious patrons. Mr Tau was plainly agitated and aggressive. He taunted those standing behind the barrier to come out and fight him.

[15] At one point Mr Tau picked up a steel-framed panel and threw it into the area behind the barrier where patrons stood. Mr Brownlee responded immediately. He picked the panel up and threw it at Mr Tau. He then assumed a fighting stance as he and Mr Tau faced each other down. After this Mr Brownlee moved out of view. A few seconds later he could be seen picking up another panel, which he attempted to throw at Mr Tau, but was thwarted by the intervention of an unidentified third party.

[16] These actions appear to have incensed Mr Tau who, from this point, focused his aggression on Mr Brownlee. Mr Tau, with four supporters behind him, approached Mr Brownlee who by this time had retreated into the group. He mouthed words at Mr Tau and gestured. It is possible, as Mr Muston submitted, that those actions were consistent with an attempt by Mr Brownlee to defuse the escalating situation. But that inference is not clearly available, particularly as there is no sound in the recording.
[17] At this point Mr Tau and Mr Brownlee were separated by a distance of about three metres. The unidentified third party stood between the two men, facing Mr Brownlee with both hands out, apparently attempting to placate Mr Brownlee. As the intervenor stepped aside Mr Brownlee and Mr Tau exchanged words. The intervenor then moved towards Mr Brownlee and appeared to push him back. Mr Brownlee took a couple of steps backwards and put his hands up before the intervenor turned to face Mr Tau.

[18] Mr Tau continued to hurl abuse and make gestures in Mr Brownlee’s direction before he picked up another panel and threw it behind the barricade. He was then lost from view as the camera re-positioned. When the image was restored Mr Tau could be seen in the background lifting up another panel before dropping it, walking past the intervenor and moving out of the field of view.

[19] By the time the camera re-focused a brawl had erupted. Mr Tau could be seen throwing a right armed punch at Mr Brownlee following which Mr Tau fell backwards and rolled onto his left side protecting his head with his left hand and arm. As Mr Tau fell Mr Brownlee moved towards him. He leaned over him before pushing his head onto the footpath with his left hand. He then lifted his right leg and foot to at least waist height before bringing it down, forcibly. His heel struck Mr Tau’s head. Whether this was a kick or a stomp is not clear. What is clear is that it was a rapid and forcible action directed at Mr Tau’s head.

[20] Mr Brownlee then stepped across the top part of Mr Tau’s body. By this time Mr Tau was face down. Mr Brownlee took a step back and then, in an action similar to that of a rugby goal kicker, moved his right leg back before swinging it forward, striking the back left of Mr Tau’s head. The force of the impact was readily visible. Mr Tau’s head could be seen to jerk forward following the delivery of the blow.

[21] After the kick Mr Tau slumped face down onto the pavement. Immediately afterwards Mr Brownlee retreated into the area behind the barricades pursued by a number of irate men, likely to have been Mr Tau’s supporters.
[22] Mr Tau was assisted to his feet by two bystanders who lifted him from his arm pits. It is plain from the footage that he was groggy, dazed and unable to walk unassisted.

[23] Photographs of Mr Tau, taken after his arrest for his part in the fight shortly afterwards, reveal bruises and scratches across his face. His left eye is partially closed. He has cuts and bleeding below his left eye and under his chin.

[24] Mr Brownlee was spoken to by Police later that evening. He gave a statement following which he was charged.

Conviction appeal

The trial

[25] At a Judge-alone trial Mr Brownlee acknowledged he had stomped and kicked Mr Tau. However, he said these actions were justified on the basis he was acting in the defence of others. Judge Davis found Mr Tau was “defenceless” at the time the actions were administered.²

[26] The prosecution called just one Police witness, the constable who dealt with Mr Brownlee on the night and who took a statement from him. The constable also produced a slow-motion DVD recording of the video footage, for which he provided an oral commentary. Mr Tau was not called.

[27] Mr Brownlee gave evidence. He said he started working as a security guard with Armourguard in 2015 where he received some training. He described the night in question and Mr Tau’s actions. He said that immediately before he used force on Mr Tau he had stepped back with the result that when Mr Tau lunged forward he was unable to do anything. He said that he was scared for himself but more scared for others in the vicinity. When asked why he kicked Mr Tau for a second time he said:

“I just froze and I was blank I didn’t actually know what I was doing ... he was moving, he went to get back up ...”

² R v Brownlee [2017] NZDC 15883 at [17].

Judge Davis’ decision

[28] On the question of self-defence the Judge outlined the three questions he was required to answer:

(a) What were the circumstances as Mr Brownlee believed them to be?

(b) Given those circumstances, have the Police proved beyond reasonable doubt that Mr Brownlee was not acting in self-defence?³

(c) If no, have the Police proved beyond reasonable doubt that the force used was not reasonable, having regard to the circumstances as Mr Brownlee believed them to be?

[29] In addressing these questions the Judge was satisfied Mr Brownlee believed Mr Tau posed a danger to himself and patrons, describing the circumstances as a “rapidly developing melee which involved a number of patrons and that had all the hallmarks of escalating”.⁴ He also described Mr Tau’s behaviour as “appalling”.⁵ However, turning to Mr Brownlee’s conduct, the Judge was not satisfied the gestures Mr Brownlee was seen to be making in the direction of Mr Tau were consistent with endeavouring to help. The Judge observed that viewed in the light of Mr Brownlee’s subsequent conduct, the explanation “flies in the face of all of the evidence”.⁶

[30] The Judge found that Mr Brownlee positioned the victim’s head before stomping on it and kicking it. He concluded that Mr Brownlee could not be said to have been acting in self-defence from that point on because he stomped and kicked the head of a “defenceless” person. These actions, Judge Davis described as “cowardly”.⁷ He thus concluded that the Police had satisfied their onus of proving Mr Brownlee was not acting in self-defence, commenting that even if he was wrong the force was, in any event, not reasonable in the circumstances as Mr Brownlee perceived them.

³ Judge Davis noted if the answer to this question was yes, then self-defence was not established.

⁴ R v Brownlee, above n 2, at [27].

⁵ At [23].

⁶ At [26].

⁷ At [28].

Jurisdiction

[31] This is a first appeal against conviction. As such, I must allow the appeal if I am satisfied that the Judge erred in his assessment of the evidence to such an extent that a miscarriage of justice has occurred, or because a miscarriage has occurred for any reason.⁸

[32] Miscarriage of justice is defined in s 232(4) of the Criminal Procedure Act 2011 (“the CPA”) as:

“(4) In subsection (2), miscarriage of justice means any error, irregularity, or occurrence in or in relation to or affecting the trial that—

(a) has created a real risk that the outcome of the trial was affected; or

(b) has resulted in an unfair trial or a trial that was a nullity.”

[33] As Tipping J stated in R v Sungsuwan, a real risk exists if “there is a reasonable possibility that a not guilty (or more favourable) verdict might have been delivered if nothing had gone wrong.”⁹

Grounds of appeal

[34] Mr Muston advances two primary grounds in support of the appeal:

(a) the Judge was wrong to find Mr Tau was rendered unconscious, and conclude that Mr Brownlee injured him; and

(b) the Judge misdirected himself as to the threshold test for self-defence, and ought to have found Mr Brownlee was acting in self-defence.

[35] Mr Muston also raised a number of other criticisms he had with the conviction. These are addressed later in this judgment.

⁸ Criminal Procedure Act 2011, s 232(2).

⁹ R v Sungsuwan [2005] NZSC 57, [2006] 1 NZLR 730 at [110]. In Wiley v R [2016] NZCA 28,

[2016] NZCA 28; [2016] 3 NZLR 1 at [27] the Court of Appeal confirmed that this statement is an accurate description of the threshold at s 232(4) of the Criminal Procedure Act 2011.

Analysis

[36] Mr Muston’s first submission is that the elements of injuring with intent to injure are not made out on the evidence. He submits there is no direct evidence Mr Tau lost consciousness or that his injuries were caused by Mr Brownlee’s actions; he had been involved in fights earlier that evening and it is possible that his injuries and apparent grogginess may have been the sequelae of earlier, unrelated incidents.

[37] This submission, in my view, is an ambitious one. It is clear from the video footage that Mr Tau, despite being intoxicated, was steady on his feet, physically co- ordinated and reasonably alert prior to Mr Brownlee’s actions. Immediately after Mr Brownlee struck Mr Tau he slumped face down on the pavement and required the assistance of two bystanders to get back on his feet. He was unable to walk unassisted. Furthermore, the physical injuries evident in the photographs are consistent with a forceful assault to his head and face. The only logical inference is that he suffered these injuries through the actions of Mr Brownlee.

[38] Furthermore, anyone striking another in the fashion adopted by Mr Brownlee on the footage intended the consequences of his actions; here bodily injury. For these reasons the essential elements of the charge are easily met.

[39] This leaves only the question of self-defence. On the correct approach to self- defence, the authors of Adams on Criminal Law observe that three questions are engaged:¹⁰

(a) Did the defendant use force for the purpose of defending himself or herself or another?

(b) What were the circumstances as the defendant believed them to be?

(c) Was the force used reasonable in those circumstances?

¹⁰ Simon France (ed) Adams on Criminal Law (online looseleaf ed, Thomson Reuters) at [CA48.01].

[40] However, the Adams commentary also notes that the order of these questions is not fixed. The formula adopted by Judge Davis is one which has been endorsed as correct by the Court of Appeal on numerous occasions.¹¹ Indeed, it may be preferable to ask the second question first because it raises the subjective issue of what the defendant perceived to be the circumstances before the objective question of whether the force is reasonable is posed.

[41] I am not satisfied that the Judge misdirected himself. He posed the three essential questions which require an answer on the facts and he correctly directed himself that a conviction cannot be entered unless the Crown has disproved the defence beyond reasonable doubt.

[42] In any event a detailed and exhaustive analysis of Judge Davis’ approach is unnecessary in this appeal as both counsel accepted. Indeed, the focus of Mr Muston’s submissions was that given the nature of the appeal, I should review the evidence afresh and come to my own independent conclusion. Having done so I am easily satisfied that Judge Davis’ conclusion on the facts was correct for the reasons which follow.

[43] First, while I accept that the physical altercation between Mr Tau and Mr Brownlee occupied only a few seconds, the context is informative.

[44] Adopting the formula set out in Adams, Mr Muston’s primary submission on this aspect of the defence was that Mr Brownlee was acting in defence of others. In that sense I understood him to be referring to the patrons and others in the vicinity that evening. Having carefully reviewed the video evidence I find myself aligned with Judge Davis’ conclusion that Mr Brownlee believed Mr Tau presented a danger to others. However, the inquiry does not end there. The question is whether, at the time Mr Brownlee struck Mr Tau, he was acting in defence of himself or others. I am satisfied he was not. Once Mr Tau fell backwards onto the pavement he was vulnerable, although I accept not completely incapacitated. Whether Mr Brownlee was acting in self-defence needs to be viewed from that point in the sequence; specifically whether, in pushing or positioning Mr Tau’s head on the pavement, then

¹¹ See, for example, R v Bridger [2003] 1 NZLR 636 (CA), and R v Li CA 140/00. 28 June 2000.

heel kicking or stomping into his head and inflicting a further swinging “goal kick”, he was acting in defence of others.

[45] While I am prepared to give Mr Brownlee the benefit of doubt in respect of the first of these three actions, it is plain from the evidence that the heel kick or stomp and the “goal kick” to Mr Tau’s unprotected head that followed were inflicted after Mr Tau no longer posed any form of threat to any person. That must have been apparent to Mr Brownlee.

[46] I also regard it as noteworthy that in his evidence at trial Mr Brownlee was unable to give a cogent explanation for his actions at that point.

[47] Furthermore, to the extent it requires any comment, I do not accept Mr Muston’s submission that Judge Davis overlooked the statement Mr Brownlee gave the Police on the night of the offending and in doing so failed to consider the reasonable possibility Mr Brownlee may have genuinely feared a future assault. As Ms Barnaart for the Police submits, Mr Brownlee also gave evidence at trial. It was unnecessary for the Judge to rely on his earlier consistent statement. In any event, Judge Davis fairly accepted that Mr Brownlee perceived a danger to himself and the patrons at the time of his offending and that the situation was a fast moving one with the real potential to escalate. In that way he accurately characterised the circumstances as Mr Brownlee perceived them to be and the likelihood the situation might escalate. The Judge adequately considered the possibility Mr Brownlee was protecting others but rightly found that at the point he stepped forward towards the victim, pushed his head down and struck him twice he could not have been acting in self-defence. Certainly, in respect of the two subsequent kicks, I agree with the Judge. These actions go well beyond self-defence or the defence of others.

[48] The next question involves an assessment of the circumstances as Mr Brownlee believed them to be. To a considerable extent I have already covered this issue. I am satisfied that by the time Mr Brownlee struck Mr Tau he no longer perceived him as posing a threat to anyone. He was lying on the ground and although he was not completely immobilised he was, most certainly, vulnerable. Mr Brownlee was standing just a few metres away from Mr Tau as he lay on the pavement. The absence
of any threat would have been plain to him. For these reasons I am satisfied beyond reasonable doubt that Mr Brownlee was not acting in defence of himself or any other person.

[49] And even if I am wrong I am not satisfied that the force deployed by Mr Brownlee was reasonable having regard to the circumstances as Mr Brownlee believed them to be. The sequence of events following Mr Tau falling to the ground illustrates this. Once Mr Tau was on the ground Mr Brownlee approached the top half of his body and forcibly pushed his head onto the pavement. He then turned and delivered what can only be described as a very forceful kick or stomp to Mr Tau’s head. He then stepped across Mr Tau’s body, stepped back and delivered a powerful kick to Mr Tau’s head.

[50] Even if the first action might, on a very charitable basis, avoid criminal censure, the second two cannot. These were forceful blows delivered to the head of a man who, by that time, was lying on his chest. He was unable to protect himself from the force of the second blow which was sufficient to throw his head forward. It was, as Judge Davis rightly observed, a cowardly action. It was gratuitous and seemingly delivered in retribution. It was, most certainly, not an act undertaken in self-defence.

[51] For those reasons I am satisfied beyond a reasonable doubt that the force was unreasonable in the circumstances. There has been no miscarriage of justice. The charge was rightly found to have been proved.

[52] Thus the conviction appeal must fail.

Sentence appeal

Decision of Judge Davis

[53] Judge Davis correctly identified Nuku v R as the tariff decision for injuring with intent to injure offending.¹² He identified extreme violence, injury (although not serious), an attack to the head, and vulnerability as aggravating factors. He found the attack to the head and vulnerability were the most serious of those factors. He then

¹² Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39.

described the attack as “gratuitous ... designed to injure Mr Tau to a significant extent”, and commented on the potential for the victim to be injured or killed.¹³

[54] He thus placed the offending between bands two and three of Nuku, and identified a starting point of two years and six months’ imprisonment. He then commented that there was room for a reduction to take into account provocation, discounting by three months for this factor.

[55] As to the earlier assault with intent to injure charge, the Judge set a starting point of 14 months’ imprisonment, before adjusting for three months to take account of the provocation he found present in that offending. That lead to a combined starting point of 38 months’ imprisonment.

[56] Turning to mitigating factors, Judge Davis applied discounts of four months for Mr Brownlee’s youth, and two months for remorse. For participation in rehabilitative courses and prospects of rehabilitation generally, he applied a further two month discount. Finally, he found a four month discount for pleading guilty to the assault with intent to injure charge was appropriate.

[57] This led the Judge to a sentence of two years and four months’ imprisonment, before applying a further two month discount for totality.

[58] It is appropriate to note at this point, as Ms Barnaart for the Police conceded, this constituted an arithmetical error. In fact the end sentence based on the discounts the Judge applied (prior to the totality adjustment) ought to have been two years and two months’ imprisonment.

Jurisdiction

[59] This is a first appeal against sentence. The appeal must be allowed if the Court is satisfied that for any reason there is an error in the sentence, and a different sentence should be imposed.¹⁴ The touchstone is whether the sentence imposed is manifestly

¹³ Police v Brownlee [2017] NZDC 27833 at [21].

¹⁴ Criminal Procedure Act 2011, s 250(2).

excessive.¹⁵ The focus is on the sentence imposed, rather than the process or methodology by which it was reached.¹⁶

Grounds of appeal

[60] Mr Brownlee appeals against the sentence imposed on the following grounds:

(a) the Judge made a number of incorrect factual statements;

(b) it was contradictory to find extreme violence but not serious injury, and there was double-counting involved in the finding of extreme violence coupled with identifying an attack to the head;

(c) any vulnerability was temporary, and the evidence of Mr Tau being unconscious was bare; and

(d) the Judge gave no weight to provocation and excessive self-defence in his sentencing.

Analysis

[61] Mr Muston rails against a number of the factual statements made by Judge Davis in sentencing, including that Mr Tau was unconscious, that Mr Brownlee “ran towards” him before kicking him, and that Mr Brownlee stomped on Mr Tau’s head. In my view none of these criticisms affects the outcome. Mr Muston is correct that there is no incontrovertible evidence Mr Tau was unconscious. However, as discussed earlier, I am easily satisfied that the blows to Mr Tau’s head significantly affected his levels of consciousness to the extent he was unable to get to his feet without assistance. The footage reveals that his motor skills were significantly affected and he appeared groggy. Secondly, I agree with Mr Muston that the footage does not reveal that Mr Brownlee ran towards Mr Tau. However, the relevant portion of the recordings shows Mr Brownlee must have moved quickly towards Mr Tau because within a very short space of time he changed his position from being beside the barricades to pushing

¹⁵ Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [32].

¹⁶ At [36].

Mr Tau’s head to the pavement. Thus, while there is no direct evidence Mr Brownlee ran, he certainly must have moved quickly. For these reasons I am not satisfied that there was any material error in the Judge’s determinations.

[62] This leads to the next ground of appeal; the identification of aggravating factors. There can be no doubt that the offending constituted a serious attack to Mr Tau’s head. Moreover, irrespective of whether Mr Tau was unconscious at the time, he was certainly vulnerable. He could do nothing to stop Mr Brownlee’s attack on him, particularly the second kick. Those two factors alone would justify placement in band two of Nuku, for which a starting point of up to three years’ imprisonment is appropriate. The offending was also gratuitous, justifying the Judge’s identification of extreme violence as an aggravating factor.¹⁷ Finally, Judge Davis was correct in finding while there was injury, it was not serious. In that context, the starting point identified by the Judge of two years and six months’ imprisonment was well within range.

[63] Additionally, Mr Muston is incorrect to submit no discount was given for provocation; the Judge gave a three month discount for that factor.

[64] Although not directly raised by Mr Muston, the imposition of a separate 14 month starting point for the assault with intent to injure charge, despite apparently sentencing on a concurrent basis,¹⁸ was stern, and perhaps out of range as an uplift. While, as the decision in Tamihana v R indicates,¹⁹ such a term may be available as a discrete starting point, typically uplifts are not set at that point.

[65] Although the Judge’s approach to this charge may have been unorthodox and the uplift excessive, I do not consider it resulted in a manifestly excessive sentence. Judge Davis applied generous discounts for a number of factors, which produced, in my view, an end sentence which was well within range given the seriousness of the offending.

¹⁷ See R v Taueki [2005] NZCA 174; [2005] 3 NZLR 372 (CA) at [31](a).

¹⁸ See [38].

¹⁹ Tamihana v R [2015] NZCA 169. In that case the Court of Appeal surveyed starting points for assault with intent to injure offending. A sentence of 13 months’ imprisonment was imposed on one charge of assault with intent to injure, from a starting point of 12 months’ imprisonment.

[66] I have considered whether to allow the appeal on the basis the Judge’s arithmetical error places this case into the rare category where what has gone wrong requires correction albeit the sentence imposed is within range. Indeed the Court in Tutakangahau contemplated such a result where the sentencing Judge has made an explicit arithmetical error.²⁰ But the rationale for such an adjustment, that in allowing the appeal the appellate court is giving effect to the sentencing judge’s intentions, is not germane in the present context. After erroneously reaching an end sentence of two years and four months’ imprisonment, the Judge applied a further two month reduction to reflect the totality of Mr Brownlee’s offending. This brought the end sentence in line with the arithmetically correct result; two years and two months’ imprisonment. In my view, the Judge’s totality adjustment signals he did not consider a lesser sentence was available. As such, a correction to account for the arithmetical error would not give effect to Judge Davis’s intentions, and would amount to “tinkering”.

Result

[67] The appeal against conviction is dismissed.

[68] The appeal against sentence is dismissed.

Moore J

Solicitors/Counsel:

Mr Muston, Auckland Crown Solicitor, Whangarei

²⁰ Tutakangahau v R, above n 15, at [36].