Brown v The King

[2023] NZHC 2352

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CRI-2023-412-32

[2023] NZHC 2352

BETWEEN

GARY HARIAROHA BROWN

Appellant

AND

REX

Respondent

Hearing:	21 August 2023
Appearances:	K S M Lawrence for Appellant C E R Power for Respondent
Judgment:	28 August 2023

JUDGMENT OF DUNNINGHAM J

This judgment was delivered by me on 28 August 2023 at 11 am, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

BROWN v REGINA [2023] NZHC 2352 [28 August 2023]

Introduction

[1]                 Gary Brown was sentenced on 5 April 2023 to five years’ imprisonment1 after pleading guilty to charges of injuring with intent to cause grievous bodily harm2 and indecent assault.3

[2]                 Mr Brown appeals this sentence on the grounds that there should have been no uplift for previous convictions, and the discount for personal factors was too low.

Facts

[3]                 On 6 August 2022, Mr Brown was living in his car in a Luggate campground. The two victims were also residing at the campground at the time.

[4]                 At around 5 pm, Mr Brown was drinking at the pavilion with the victim and another resident  of  the  campground.  The  victim  became  uncomfortable  with  Mr Brown’s behaviour and went to leave. Mr Brown approached her and pulled her in tightly before attempting to kiss her, putting his tongue inside her mouth. She was able to extricate herself after kicking Mr Brown in the leg.

[5]                 Later that night, around 11 pm, Mr Brown was in his car. The second victim was in his caravan roughly 30 m away but was unable to sleep due to Mr Brown’s music. The victim visited Mr Brown’s car and asked that the music be lowered.

[6]                 Soon after, Mr Brown approached the victim’s caravan, calling out to him. He stood in the doorway of the caravan and accused the victim of stealing his wallet before grabbing the victim by the neck and punching him several times in the face. He then forced the victim back while holding his neck, restricting his breathing. Mr Brown advanced on the victim with a bread and butter knife while threatening to kill him and burn down the caravan if he called Police. He proceeded to straddle the victim and repeatedly punch him in the head and face with both fists. At the same time, he sometimes squeezed the victim by the throat, making him struggle to breathe.

1      R v Brown [2023] NZDC 6710.

2      Crimes Act 1961, s 189(1); maximum penalty 10 years’ imprisonment.

3      Crimes Act, s 135; maximum penalty 7 years’ imprisonment.

[7]                 Eventually, Mr Brown got off the victim. Mr Brown began rambling incoherently and threatened to stab the victim if he called the Police. The victim gave Mr Brown $200 in an effort to make him leave, which he did at some point.

[8]                 The victim fell asleep, but Mr Brown later returned, saying he had found his wallet and was returning the $200. In doing so he smashed a window in the caravan. He then left the campground.

[9]                 The victim suffered significant injuries to his face and throat and bruising to his arm.

Principles on appeal

[10]              Appeals against sentence are allowed as of right by s 244 Criminal Procedure Act 2011 and must be determined in accordance with s 250 of that Act. An appeal against sentence may be allowed by this Court only if it is satisfied there has been an error in the imposition of the sentence and a different sentence should be imposed.4 As the Court of Appeal identified in Tutakangahau v R (quoting the lower court’s decision), a “court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles”.5 It is appropriate for this Court to intervene and substitute its own views only if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.6

District Court decision

[11]              After canvassing background matters and counsel’s submissions, the Judge adopted the injuring with intent charge as the lead offending. He noted the relevance of the guidelines in R v Taueki7 and identified the following aggravating features. First, the prolonged nature of the offending which appeared to have been drawn out over most of the night, where bouts of violence were interspersed with periods of  Mr Brown sitting in a chair, waving a knife, and making vague threats, including references to gangs. Second, both physical and psychological injury was present to a

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

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

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

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

moderate degree. Third, the attacks were to the victim’s head. Fourth, the victim was vulnerable and was using the caravan as his home, where he should have been able to feel safe. The Judge also referred to the making of threats while wielding a knife and, while not premeditated, the offending was apparently motivated by the wrongful claim that the victim stole Mr Brown’s wallet.

[12]              The Judge therefore concluded the offending fell within band 2 of Taueki and adopted a starting point of six years’ imprisonment. This was uplifted by six months, on a totality basis, to reflect the indecent assault charge.

[13]              The Judge considered Mr Brown had previous convictions for violent offending which, while aged, demonstrated a footprint of offending justifying a minor uplift of five per cent in the interest of deterrence.

[14]              In respect of Mr Brown’s guilty pleas, Judge Turner noted Mr Brown had initially pleaded not guilty but vacated these pleas about three months later. The Crown had dropped a kidnapping charge in respect of the second incident. Nevertheless, the Judge assessed these pleas to have not come at the earliest opportunity and applied a 22 per cent discount.

[15]              The Judge decided there was no scope for a remorse discount. Mr Brown had written an apology letter, but the Judge found it to be incongruent with other statements to the effect that the indecent assault was a fabrication and the injured victim was somehow responsible for the attack on him.

[16]              Finally, the Judge turned to Mr Brown’s  cultural background.  He noted the  s 27 report was based on self-reporting and a 90-minute interview, was repetitive, and contained general principles as to effects of colonisation on Māori (which were accepted). Mr Brown reporting growing up with a connection to Māori culture but had lost this connection. Material deprivation did not feature, and Mr Brown left school at age 15. He reported some physical, mental, and sexual abuse. Taken together, the Judge concluded there was no direct causal link to the offending but allowed a “generous” discount of five per cent.

[17]              Applying a 22 per cent discount to the starting point of 78 months’ imprisonment, and rounding down, the Judge reached an end sentence of five years’ imprisonment.

Submissions

Appellant’s submissions

[18]              Ms Lawrence, for Mr Brown, first submits the Judge erred in uplifting the starting point for  Mr  Brown’s  previous  convictions.  She  says  there  are  only  two relevant previous convictions; one for injuring with intent or reckless disregard in 2010 and one for assault with intent to injure in 2010. She argues that, at sentencing, both counsel had acknowledged the offending was historic and did not warrant an uplift. While previous convictions may show a need for greater deterrence as an indicator of re-offending risk, character, or culpability, this is less so when relevant convictions are aged as in the present case.

[19]              Ms Lawrence argues Mr Brown’s criminal history does not demonstrate a recent pattern of violent offending and that an uplift on that basis amounts to double punishment.

[20]              Secondly, Ms Lawrence contends for a greater recognition of background factors in Mr Brown’s sentence. She says that deprivation which causatively contributed to the offending, and is precipitated by historical dispossession and other intergenerational outcomes, can help explain criminogenic circumstances making offending more likely. She points to the s 27 report’s conclusion that systemic deprivation has been an “insidious and relentless burden” for Mr Brown. Criminogenic factors were highlighted including intergenerational whānau violence, substance exposure, abuse, gang exposure, cultural disconnect, familial instability, and diminished educational opportunities.

[21]              Consequently, she submits systemic deprivation has been a diffuse driver of offending and that a discount of 15 per cent is appropriate.

[22]              Taking these factors into account, Ms Lawrence suggests the end sentence should be four years and one month imprisonment.

Respondent’s submissions

[23]              Mr Power, for the Crown, submits the five per cent uplift for previous convictions was available to the Judge. He refers to Mr Brown’s reporting to the pre-sentence report writer that violence towards women was not in his nature, that the victims had contributed to or been the cause of the offending, and that the offending was not as bad as reported. This shows the lack of recent violence convictions is not due to a changed and rehabilitated character on the part of Mr Brown. Accordingly, an uplift for previous convictions was open to the Judge to meet the need for deterrence.

[24]              As to the discount for background matters, Mr Power refers to the case of Berkland v R, where a 10 per cent credit was granted to the appellant in a case where the full suite of criminogenic factors was present including poverty, trauma, chaotic home circumstances, and very poor educational outcomes.8 While Berkland does not operate as a ceiling on available discounts, Mr Power submits it has tempered credits available in the area and, in any event, the level of credit is an evaluative decision for the sentencing judge.

[25]              Mr Power argues that it was open to Judge Turner to place limited weight on background matters and view any causal connection with the offending as tenuous. For instance, while reference was made to a head injury in the report, there was no evidence of a cognitive injury or anything other than speculation as to possible causative contribution to offending.

[26]              In terms of cultural disconnect, Mr Power notes Mr Brown participated in Māori cultural groups through his schooling and grew up in a Māori environment. However, he stated he had no wish to engage with his cultural identity due to being too work-focused. While  Mr  Power  acknowledges  some  social  deprivation  in  Mr Brown’s background, he cautions against a conclusion that this is directly a result

8      Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509.

of cultural deprivation. Historical and continuing deprivation, he says, must be assessed in light of explanatory facts rather than ethnic assumptions. He submits it is difficult to make a connection between a measure of cultural and social deprivation and an indecent assault as well as a violent assault based on a mistaken belief as to a stolen wallet.

[27]              Mr Power also notes that Mr Brown appears aware of some of the criminogenic factors he presents with but is unwilling to address them.

[28]Mr Power submits the five per cent discount was available to the Judge.

Analysis

[29]              Counsel have not disputed the starting point adopted by the Judge. For completeness, I do not consider the Judge erred in identification of relevant aggravating factors, nor setting the starting point towards the lower end of band two of Taueki.

[30]              Turning first to the uplift for previous convictions, I  consider  there  are  three relevant convictions, all of which are historic, and all coming from offending in 2010. There is a charge of assault with intent to injure, a charge of threatening to kill, and a charge of assault with intent to injure or reckless disregard thereof. There is another violence conviction for male assaults female in 2009, but this does not appear to have been serious offending given Mr Brown was required to come up for sentence if called upon.

[31]              A sentence ought to be based primarily on the facts of the offence for which the offender is being sentenced, and it must not be increased merely because of previous convictions because doing so would be to effectively increase the sentence imposed on that previous occasion or occasions.9 In considering whether the previous convictions bear upon character and culpability, an indication of reoffending, and the need to protect society through a deterrent sentence, the courts will consider, inter alia,

9      Wipa v R [2018] NZCA 219 at [25]–[28].

the number, seriousness, and nature of the convictions and the time since the last conviction.

[32]              The decision to apply a modest uplift for previous convictions was finely balanced. There are three violence-related convictions from 2010, none of which attracted lengthy sentences of imprisonment. There have been no similar convictions for over 11 years. This is a fairly low number of relevant convictions, of apparently limited gravity, and all are historic. The fact they are all in the same year also limits the extent to which the convictions can be said to support an ongoing pattern of violent offending as might be more readily done if there were offences interspersed throughout the intervening years. The convictions have only limited connection or bearing upon the offending from 2022. That said, the uplift was modest and, on its own, could not be said to have resulted in a manifestly excessive sentence.

[33]              The second issue is whether too small a discount was afforded for background matters identified in the cultural report. The cultural report records Mr Brown attended a large number of different schools before leaving the education system at age 15. While the report does not identify material hardship, he was exposed to alcohol and drugs when young but comments that neither have been issues for him for at least the last decade. His father, who was also culturally disconnected, was involved with gangs, and Mr Brown was exposed to that life, though he is not involved with gangs in any respect.

[34]              The report writer says Mr Brown has suffered systemic deprivation. He is reported to have been exposed to sexual, physical and psychological abuse, and he had unstable parenting due to the relationship between and behaviour of his parents. His father was described as violent and “always in prison”. The relationship between his mother and father was violent. Mr Brown described his mother as good, if often absent, and leaving parenting to Mr Brown’s grandparents. His step-grandfather would hit him. His grandmother would restrict his food and kick him out at night-time. Mr Brown reported sexual abuse by a white man in Canterbury when he was five or six. The writer considers Mr Brown has carried this upbringing into his current decision-making. The report notes Mr Brown is not culturally connected but was

exposed and connected to his culture when growing up. However, he has no current interest in addressing this aspect of his life.

[35]              The report identifies a range of factors which can, in a general sense, contribute to offending. However, for many of the factors, there is no connection drawn between them and the offending, and they do not appear to be present to any significant extent. For instance, Mr Brown was exposed to gangs including through his father, but he has no association with gangs presently and there was no mention of previous membership or other affiliation which normalised antisocial behaviour such that it was contributory to the present offending. Likewise, Mr Brown was exposed to substance use in his youth but reports he has not struggled with alcohol use for a decade, and cannabis has not been a problem.

[36]              While there is no doubt Mr Brown’s background was disadvantaged, and he was exposed to both physical and sexual abuse, and this, in a general sense, would impair his decision making and make him prone to responding to certain situations with violence, there is no more specific link to be drawn between his background and this offending. Mr Brown has been able to hold down employment throughout his adult life and has not offended violently since 2010. This offending appears to be an inexplicable relapse into serious and unprovoked violence on the night in question, rather than something he was driven to, or was otherwise less culpable in doing, because of his background.  In the circumstances,  I am satisfied the discount of   five per cent which was afforded was within range.

Conclusion

[37]              On the analysis above, neither issue raised on appeal was clearly an error by the sentencing Judge. Even if the uplift for previous convictions was removed, this would only change the sentence from 60 months’ imprisonment to 57 months’ imprisonment. That does not suggest the end sentence is manifestly excessive.

[38]Accordingly, the appeal is dismissed.

Solicitors:

Public Defence Service, Dunedin Crown Solicitor, Dunedin