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Brown v R

Brown v R

Case [2014] NZCA 93 26 March 2014

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IN THE COURT OF APPEAL OF NEW ZEALAND

CA686/2013
[2014] NZCA 93

BETWEEN	KARL MURRAY BROWN Appellant
AND	THE QUEEN Respondent

Hearing:	18 February 2014
Court:	Ellen France, MacKenzie and Mallon JJ
Counsel:	A J Holland for Appellant J M O’Sullivan for Respondent
Judgment:	26 March 2014 at 10.30 am

JUDGMENT OF THE COURT

The appeal against sentence is allowed. The sentence of two years and eight months’ imprisonment is quashed and a sentence of two years and two months’ imprisonment is substituted.

____________________________________________________________________

REASONS OF THE COURT

(Given by Mallon J)

Introduction

Mr Brown pleaded guilty to a charge of injuring with intent to injure.[1] He was sentenced to two years and eight months’ imprisonment.[2] He appeals against that sentence. Four errors are said to have been made in arriving at that sentence, leading to an end sentence which is said to be manifestly excessive.

Background

[1]Crimes Act 1961, s 189(2).

[2]R v Brown DC Auckland CRI-2013-044-2041, 27 September 2013.

The charges arose in respect of an incident involving Mr Brown’s former partner (the complainant), who is also the mother of his children. On the evening of 1 March 2013 Mr Brown was drinking alcohol with an associate at an address in Wellsford. The complainant later joined them. Shortly before midnight all three went on a drive to visit associates in Whangaparaoa. On the way Mr Brown subjected the complainant to a sustained assault. He first punched the complainant in the face. He continued the assault, punching the complainant around the head and face several times, placing his knee on her chest which caused her to have difficulty breathing, and pulling clumps of hair from her head which caused injuries to her scalp. Mr Brown and his associate made comments which caused the complainant concern about what might happen to her. She sent a series of text messages to a friend. The police were contacted and they responded. They located the car and stopped it. They found the complainant bleeding, bruised and in a distressed state. Mr Brown and the associate were arrested. The complainant was taken by ambulance to the hospital where she received treatment and was discharged some hours later.
Mr Brown was sentenced in the District Court by Judge Collins.[3] The Judge adopted a starting point of two years and eight months’ imprisonment. He applied an uplift of eight months for previous offending and because this offending occurred while Mr Brown was subject to a sentence of supervision. He applied a discount of eight months for Mr Brown’s guilty plea. This left an end sentence of two years and eight months’ imprisonment.

Starting point

[3]R v Brown, above n 2.

The first alleged error is that the Judge’s starting point was too high. The guideline judgment is Nuku v R.[4] It is accepted that the offending fell within band two of that guideline judgment. That band applies where three or fewer aggravating factors are present.[5] The District Court Judge correctly identified three…

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 Brown v R

Details

AGLC: Brown v R [2014] NZCA 93
Case: [2014] NZCA 93
Decision Date: 26 March 2014 at 10.30 am

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard an appeal by Karl Murray Brown against his sentence for injuring with intent to injure. The appeal was against the two-year-and-eight-month imprisonment sentence handed down by the District Court Judge Collins. Four alleged errors in the sentencing were raised by Brown’s counsel, leading to the argument that the sentence was manifestly excessive. These included the starting point, the absence of a discount for provocation, the eight-month uplift for previous offending, and the lack of discount for remorse and rehabilitation.

The Court considered each of these points in turn. Regarding the starting point, the Court held that the Judge was correct to adopt a starting point of two years and eight months, which was within the guideline for band two offending. Although Brown’s counsel argued that the starting point was too high, the Court found that the Judge appropriately applied the guideline judgment of Nuku v R. The Court also found that the Judge was correct not to discount for provocation, as the complainant’s actions did not reach the threshold of serious provocation that could mitigate Brown’s culpability.

On the issue of the uplift, the Court found that the eight-month uplift for previous offending was excessive. While the previous convictions and the fact that Brown was subject to supervision at the time of the offending warranted a stern sentence, the Court held that adding eight months to the starting point was disproportionate. The Court also found that the Judge could have made a small allowance for remorse and rehabilitation, even if he was sceptical about their sincerity.

Ultimately, the Court found that the end sentence was manifestly excessive. The Court quashed the original sentence and imposed a sentence of two years and two months’ imprisonment, taking into account the starting point, the uplift for previous offending, and a discount for Brown’s guilty plea, remorse, and rehabilitation efforts.

In conclusion, the Court of Appeal of New Zealand allowed Brown’s appeal against his sentence, finding that the original sentence was manifestly excessive due to the starting point, the uplift for previous offending, and the lack of discount for remorse and rehabilitation. The Court substituted a sentence of two years and two months’ imprisonment.

Orders