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…

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 The King

Details

AGLC: Brown v The King [2023] NZHC 2352
Case: [2023] NZHC 2352
Decision Date: 28 August 2023

CaseChat Overview and Summary

The case of Brown v The King involved an appeal by Gary Hariaroha Brown against his sentence, which was imposed following his guilty pleas to charges of injuring with intent to cause grievous bodily harm and indecent assault. The sentencing judge had imposed a sentence of five years’ imprisonment, which Brown appealed on the grounds that the uplift for previous convictions was unwarranted and that the discount for personal factors was too low. The appeal was heard in the High Court of New Zealand at Dunedin, with judgment delivered by Dunningham J on August 28, 2023.

The court examined two main legal issues: the appropriateness of the uplift for previous convictions and the adequacy of the discount for personal factors. The appellant argued that the uplift for previous convictions should not have been applied because the convictions were historic and not indicative of a recent pattern of violent offending. The appellant also contended that a greater discount should have been applied for personal factors, citing systemic deprivation and cultural background as mitigating factors. The Crown, on the other hand, argued that the uplift for previous convictions was justified to meet the need for deterrence and that the discount for personal factors was within the sentencing judge’s discretion.

The court found that while the uplift for previous convictions was finely balanced, it was not excessive given the limited number and recency of the relevant convictions. The court also determined that the five percent discount for personal factors was appropriate, noting that while Brown’s background was disadvantaged and exposed him to various forms of abuse, there was no direct causal link to the offending. The court concluded that neither issue raised on appeal constituted an error that would justify a different sentence.

In light of the analysis, the appeal was dismissed, and the original sentence of five years’ imprisonment was upheld. The court found that even if the uplift for previous convictions were removed, the sentence would only reduce marginally, and it was not manifestly excessive. Therefore, the appeal did not succeed in altering the sentence imposed by the sentencing judge.

Orders