R v Bell

[2023] NZHC 1076

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE

CRI-2022-054-1202

[2023] NZHC 1076

THE KING

v

BRIAN JASON BELL

Hearing:

5 May 2023

Appearances:

D R Davis and G L Duncan for Crown

S J Winter and G M Stone for Defendant

Date:

5 May 2023

SENTENCING REMARKS OF McQUEEN J

Introduction

[1]    Mr Bell, you appear for sentence today having been convicted of a single charge of attempted murder, the maximum penalty for which is 14 years’ imprisonment.1

[2]    In sentencing you today, I will first describe the nature of the offending, then outline the approach that is taken in assessing a starting point for offending of this kind. I will then address discounts from the starting point arising from any matters that are personal to you. Finally, I will consider whether a minimum period of imprisonment should be imposed.

1      Crimes Act 1961, s 173.

R v BELL [2023] NZHC 1076 [5 May 2023]

[3]    The sentence I fix today must be in accordance with the principles and purposes of the Sentencing Act 2002, as recognised by counsel. Those that are relevant in your case include: the need to hold you accountable for the harm caused to the victim; to promote in you a sense of responsibility for that harm; to provide for the interests of the victim; to denounce your offending; and to deter you and others from similar offending.

[4]    I accept as Mr Winter submits and the Crown also accepts, that in the present case protecting the community from you is a less relevant purpose of your sentencing. I must consider the gravity of the offending, particularly in relation to similar circumstances, the need for consistency in sentencing outcomes; information the Court has on the effects of the offending on the victim; and your background. Your rehabilitation and reintegration are also relevant in fixing the end sentence. Finally, the law requires me to impose the least restrictive outcome that is appropriate in the circumstances.

The offending

[5]    I turn now to describe the facts of the offending, which are of course familiar to you. I too am familiar with them, having presided over the trial and having seen and heard the witnesses. But because sentencing is a public function which is required to be undertaken in open Court, it is important that I set these out.

[6]    At the time of the offending in June 2022, you had been married to the complainant, Ms Peterson, for about 24 years. You were living together at a remote rural address in Pohangina, near Palmerston North. You are a 47 year old engineer and you have not previously appeared before the Court. You and Ms Peterson have two children, a 21 year old son and an 18 year old daughter.

[7]    In mid-May 2022, Ms Peterson told you she was unhappy in your marriage and wanted it to end. You and Ms Peterson discussed this at length, but you could not accept that your marriage was over. Despite these difficulties, you and Ms Peterson continued to live in the same house.

[8]    In late May 2022, Ms Peterson travelled to Australia to visit family, at your suggestion. You told her that during this time you would do an anger management course. Ms Peterson returned to New Zealand on 9 June 2022 and was picked up by you at Wellington Airport at about 3:30 pm.

[9]    As you drove back to Manawatu in Ms Peterson’s car, you continually asked her whether she would give your marriage another chance. Ms Peterson remained resolute and insisted that it was over, but you wouldn’t accept that. At about 6:00pm you stopped in Palmerston North to have dinner with your children. You did not eat anything but did drink a coffee. About an hour later you and Ms Peterson set off for home again. You were driving, and continuing to plead with Ms Peterson, telling her that you could not live without her.

[10]   As the car neared the woolshed on the farm where  you lived, you said  to   Ms Peterson: “So our marriage is over.” Ms Peterson replied: “Yes I’m done, I’m done”. You then said: “I’ll move all my stuff out tonight so you don’t have to be with me”, and then told her twice: “I can’t live without you”. Ms Peterson told you not to be silly, saying that you had two beautiful children. During this time, Ms Peterson became aware as you approached a sharp left hand bend in the road near your home that you were going too fast. She felt the car speeding up. She told you that you were going too fast to take the corner. You said nothing.

[11]   You continued to deliberately accelerate. The car crossed the grass and broke through a fence before launching over the edge of the cliff. The car tumbled about 150 metres through trees and scrub, coming to rest near the bottom of the cliff. During the fall Ms Peterson was looking straight ahead and screaming. She thought she was going to die. You were silent.

[12]   Despite sustaining injuries, after the  car  came  to  a  halt  against  a  tree,  Ms Peterson managed to get out of the car and crawl up the cliff face. It was dark. She could hear you call her name as she climbed the cliff to escape from you. She was afraid that you would come after her and kill her. She concealed her white top and took off her watch to prevent you seeing her. When she reached the top of the cliff, and despite her injuries, she ran home and told your daughter what had happened. They

both fled to the farm owner’s house to seek help and were hidden in a bedroom. You arrived at that address about 20 minutes later calling Ms Peterson’s name. You were not let into the house. Police subsequently arrived, and you were arrested.

[13]   Ms Peterson sustained lacerations to her left wrist and bruising and cuts all over her body. When interviewed by Police, you claimed not to remember the events immediately prior to driving off the cliff, suggesting you were asleep or had lost consciousness.

Victim impact statements

[14]   You have just heard the Victim Support Adviser read Ms Peterson’s victim impact statement and Mr Winter has already said you have seen that in advance and so you have heard about the impact of the offending on Ms Peterson. She spoke of the emotional and physical injuries as a result of the crash, as well as the financial costs. She spoke of the ongoing emotional and mental effects on her, including suffering post-traumatic stress disorder. Your refusal to take responsibility for your offending has taken a toll, and she said she cannot forgive you until you take responsibility for your actions.

[15]   I accept that your children are also victims of your offending. They have both provided victim impact statements. While they were not involved in the crash itself, there is no doubt they have been affected emotionally by the crash, as well as events before and after it.

[16]   Your daughter says that it has been difficult for her to process your offending, and hard to believe it. She was angry with you at the time. She says that it has been difficult to see her mother struggle to sleep and be depressed, to see her anxiety, and “how she sometimes just completely retreats into herself”. She says Ms Peterson went through a “cycle of anger, guilt, blame, depression, and sadness”.

[17]Your daughter goes on to say:

I was gutted and quite upset that I couldn’t see Dad after he was arrested or talk to him about what happened. I was told he was physically alright, but I didn’t know what his mental state was like and was quite worried about him.

He was aware that our relationship needed improving, and he told me he’d work on it.

Even though I knew where he was, I felt like I’d lost Dad after the crash, and it made me feel numb. It worries me that Dad will be where he is for a long time, because it’ll make him angry with Mum and the situation he’s in.

[18]   Your son expresses his annoyance about the things that happened before the crash, particularly that neither you nor Ms Peterson were listening to his concerns about how the state of your marriage was impacting his sister, given that you continued to live together although Ms Peterson had decided the marriage was over. After the crash, he was worried about both of his parents, and disappointed about how the situation was handled. He says:

I felt sad as well, more for the fact of what Mum had gone through – it’s going to affect her for a long time – and how Dad was mentally in the seven weeks before the crash, and what he was like afterwards.

It was sad to see how Dad ended up, and it’s still hard for me to believe that something’s happened. He always provided for Mum, [my sister] and me, and always loved us. It’s hard to see him in prison – he doesn’t belong there – and I don’t think he’s a horrible person at all.

PAC report

[19]   You have spoken to a probation officer who has provided the Court with a report. This reveals that while you left school early, you later qualified as an engineer while you were working. Prior to the offending, you were working for an engineering company as a manager. You consider yourself a “family man” who puts his family first, and is the “breadwinner” for the family. You spent most of your time working, spending time with the children when you were not working. You were involved in their sporting activities, and engaged in the community through this, together with Ms Peterson.

[20]   However, the report writer describes your attitude towards the offending as involving a “high sense of entitlement with a mixture of impulsivity”. You regard the summary of facts of the offending as inaccurate. You do not accept Ms Peterson’s description of the circumstances. Indeed, you maintain your original position advanced at the trial, that you were tired, that you asked Ms Peterson to drive, but she wouldn’t, and that the last thing you remembered was approaching the gateway before

the bend in the road. Unsurprisingly, given your denials, you express no remorse for the harm caused to Ms Peterson by your offending. Rather, your remorse is more focused on the effect of the offending on your children.

[21]   The report writer records your sadness that you are not be able to be there for your children, and that you feel depressed as to your current situation. You are anxious in a prison environment, and about your sentencing.

[22]   Ultimately, the report writer concludes that you should be subject to a sentence of imprisonment, given the trauma and physical injuries that Ms Peterson suffered as a result of your ‘reckless offending’, adding that you were fortunate that your actions did not result in her death.

Starting point

[23]   I now turn to the first stage of the sentencing process, which is to set a starting point for the offending, taking into account the aggravating and mitigating factors of the offending. As I have already mentioned, that starting point will then be adjusted at the second stage, to take into account of your personal circumstances.

[24]   Ms Davies on behalf of the Crown submits that the appropriate starting point is around six and a half years’ imprisonment while Mr Winter, on your behalf, submits that the appropriate starting point is one of four years’ imprisonment.

[25]   Counsel addressed the relevance of the decision in R v Taueki.2 This is a decision of the Court of Appeal which established sentencing bands for grievous bodily harm offending. The Courts have also used it to assist in sentencing in relation to attempted murder.3 Ms Davies submits that it is of less assistance in the present case because of the unique circumstances which do not involve the discrete use of violence or the use of a weapon (outside of characterising a car as a weapon), but

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

3      See R v Dallison [2023] NZHC 976.

nonetheless today made submissions  as  to  its  application  to  the  present  case.  Ms Davies says instead that other case law is of more assistance.4 Mr Winter, however, submits that Taueki is helpful and relevant to sentencing attempted murder. He says that the offending in the present case falls within Taueki band one, because only two aggravating features are present,  namely  the  use  of  the  car  as  a  weapon  and  Ms Peterson being a vulnerable victim.

[26]   In my view, the appropriate approach in the present case is for me to consider both the Taueki guideline as well as comparable cases. Flexibility in the application of a guideline judgment is important.5 The evaluative task of sentencing requires reference to comparable cases (to the extent they are available) and the overall culpability of the offender. And I have listened carefully to Mr Winter’s submissions on this point as to the need to step back to consider a just sentence in all the circumstances, as well as his submission that a lengthy sentence is not needed here to facilitate healing between the four people most significantly affected by the offending.

[27]   I consider that the Taueki aggravating factors that are relevant in the present circumstances are: serious injury, use of a weapon (being the car), and a vulnerable victim. These factors are also recorded in s 9(1) of the Sentencing Act. Other factors contained in s 9(1) that are relevant in the present case are the use of violence and your abuse of a position of trust in relation to your wife.

[28]   While the Crown case did involve an allegation of premeditation, I am not satisfied that in the present case it is appropriate to include premeditation as a distinct aggravating factor, as the essential aspect of the Crown’s case was that you had ‘snapped’ immediately before he drove over the cliff. That appears to me to be a ‘reactive’ or ‘impulsive’ reaction which the Court of Appeal considered in Taueki to be of lesser seriousness. Nor am I satisfied that the present case falls into a category of ‘extreme violence’, as conceived of by the Court of Appeal.

4      R v Tamihana [2020] NZHC 1365; and R v Caleb Bell [2023] NZHC 416. I note that R v Taueki, however, was applied in R v Caleb Bell [2023] NZHC 416.

5      Orchard v R [2019] NZCA 529 at [32]–[34].

[29]   I find that the offending has resulted in serious physical and mental injuries to Ms Peterson. While she cannot be described as permanently disabled, she can, at least at this stage, no longer enjoy a number of physical activities that she used to enjoy, and she has suffered from debilitating mental illness, for which she has received diagnoses.

[30]   You also used a car as a weapon. Although it was not used as a weapon in a traditional sense in that it was used to impose force upon another person who was not inside the vehicle, I am satisfied that it was your intention to kill Ms Peterson by using the car in the way you did.6 Driving over the cliff was “exceedingly dangerous”.7

[31]   Finally, Ms Peterson was a vulnerable victim, as she was trapped in the car with you, unable to remove herself from the situation.

[32]   To this extent I agree with the Crown’s submissions on the aggravating factors, namely that, there were three of the Taueki aggravating factors (as well as the factors from s 9(1)), and that therefore your offending corresponds to band two of the guideline, which proposes a starting point of between five to ten years’ imprisonment. Your offending involved a very real risk of death to both you and Ms Peterson, and you are indeed very fortunate that you both did not die.

[33]   I do not agree with Mr Winter that the offending falls squarely within Taueki band one, given the presence of the aggravating factors I have already described and the Court of Appeal’s band one examples, which exclude situations where no weapon is used and no lasting injuries are caused.8 I do however observe that there is an overlap between the Taueki sentencing bands one and two, as band one proposes a starting point of three to six years imprisonment while, and as I have just mentioned, band two proposes a starting point of between five to ten years’ imprisonment. I also reiterate here the importance of flexibility and discretion in setting a sentence notwithstanding the existence of general guidelines.9

6      I note that the fact that a car can be used as a weapon has been previously recognised by the courts. See R v Caleb Bell, above n 4, at [16].

7 At [16].

8      Taueki, above n 2, at [37].

9      Orchard, above n 5, at [28].

[34]   I agree with counsel that there appear to be no mitigating factors of the offending which affect the position.

[35]   I have also considered the previous cases referred to me by both Ms Davies and Mr Winter in relation to the appropriate starting point.10

[36]   The most relevant cases concerning attempted murder in my view are R v Bell (I note, as counsel have, a case completely unrelated to you and to which I will refer as the Caleb Bell decision so as to avoid any confusion) and Orchard v R.

[37]   Both involved the use of a car as a weapon, an essentially spontaneous decision to cause serious harm, or attempt to kill another person or persons, and a desire by the offender to also kill themselves in the process. The starting point imposed on appeal in Orchard was six years and six months’ imprisonment. The starting point imposed in Caleb Bell was eight years’ imprisonment.

[38]   There is some sense in which your offending in the present case is less serious than in the Caleb Bell case, where the defendant also faced a drunk driving charge, and an additional attempted murder charge, given that there were two victims. However, while the victims in that case were similarly unsuspecting as Ms Peterson was, they were not in a relationship of trust as you and Ms Peterson were, owing to your marriage.

[39]   The offending in Orchard is sufficiently similar to the offending in the present case to be relevant by analogy, with the exception that Mr Orchard did not face a charge of attempted murder. Attempted murder is undoubtedly a more serious offence than wounding with intent to cause grievous bodily harm, because the Crown is required to prove that the defendant had a murderous intent, notwithstanding the fact that the maximum penalty for both offences is of 14 years’ imprisonment.11

[40]   On balance, and as result of the discussion above, I consider that the appropriate starting point in the present case is six years’ imprisonment.

10     R v Tamihana, above n 4; R v Caleb Bell, above n 4; and Orchard v R, above n 5..

11     See Crimes Act 1961, ss 173 and 188(1).

Adjusting the starting point

[41]   I now turn to the second stage of the sentencing process. Here I consider discounts from the starting point arising from any matters that are personal to you.

[42]   I accept that there are no personal aggravating factors present in your circumstances.

[43]   Mr Winter submitted that you are entitled to some credit for previous good character. I agree, as did Ms Davies. This is your first ever conviction, and although it is for a very serious offence, you are to be commended for living a life of good and proper conduct with your family and your community up until the time of this offending. The Court of Appeal has recognised that the “absence of previous convictions is, of itself, evidence of prior good character and worthy of some recognition”.12 I consider that your offending is an “isolated fall from grace”, 13 and that you are entitled to a discount for previous good character of 10 per cent.14

[44]   Ms Davies submitted that the Crown would not oppose a small discount of say, five per cent to recognise your mental health at the time of offending. Mr Winter agrees with that submission but submitted that more than five per cent was justified.

[45]   The Court of Appeal has stated that a mental disorder falling short of exculpating insanity may be capable of mitigating a sentence because, if causative of the offending, it moderates the culpability.15 The Court said that this follows from the principle that any general criminal liability is founded on conduct performed rationally by one who exercises a willed choice to offend. It also noted that discounts for mental health issues ranging from 12 per cent to 30 per cent had been seen as appropriate.16

[46]   In both the Orchard and Caleb Bell cases, discounts for mental health were applied. However, unlike those cases, this Court does not have the benefit of

12     Taylor v R [2017] NZCA 574 at [25]; citing R v Hockley [2009] NZCA 74 at [30]; Manawaiti v R

[2013] NZCA 88 at [13] and [20]; and Quinlan v R [2013] NZCA 634 at [37].

13     A v R [2020] NZCA 115 at [15].

14     Compare Faiyum v R [2020] NZCA 523.

15     E (CA689/2010) v R [2010] NZCA 13, (2011) 25 CRNZ 411 at [68].

16 At [71].

information provided by a psychologist or psychiatrist as to your mental health or state of mind at the time of the offending. And I do regard this as a somewhat limiting factor. Further, it would be most inappropriate for a discount related to your state of mental health at the time of offending to be construed as a validation of serious offending in the context of a relationship breakdown.

[47]   However, for the following reasons, I am satisfied that a small discount is available to you on the basis of your state of mind at the time of the offending:

(a)the cases of Caleb Bell and Orchard illustrate that such discounts have been awarded in similar factual circumstances, in which an offender attempts to kill or harm other persons, while also intending to kill themselves;

(b)your offending occurred in the context of the breakdown of a marriage that had lasted for over 20 years; and

(c)evidence was led at trial which established that prior to and at the time of the offending, you were likely suffering from generalised anxiety and depression.

[48]   Accordingly, I consider an additional discount of 10 per cent is appropriate under this head.

[49]   As Mr Winter recognised would be the case, I am concerned about the nature of the remorse you have expressed. Apart from the comments you made to the pre- sentence report writer, you have subsequently provided a letter to the Court in which you talk about your feelings and to which Mr Winter has referred. I note your concern about the impact of what has happened on your children, nonetheless your remorse in relation to Ms Peterson, in particular, continues to be expressed in terms of what they have had to go through as a result of your offending rather an expressing remorse for

your offending. And you say that you cannot accept that you would mean to hurt them.17

[50]In these circumstances, I am unable to give you any discount for remorse.

[51]   Finally, time spent on electronically-monitored bail (EM bail) is a mitigating factor that must be taken into account in sentencing an offender.18 In taking into account that the offender spent time on bail with an EM condition, the court must consider:19

(a)the period of time that the offender spent on bail with an EM condition;

(b)the relative restrictiveness of it, particularly the frequency and duration of the offender’s authorised absences from the electronic monitoring address;

(c)the offender’s compliance with the bail conditions during the period of bail with an EM condition; and

(d)any other relevant matter.

[52]   There is no rule about how much of a discount should be given, however the credit for time spent on EM bail is not equivalent to time spent in custody.20 The Court of Appeal has consistently held that discounts for electronically monitored bail are “an evaluative decision”, rather than an arithmetical exercise.21 Percentages “ranging between 30 and 50 percent are often used, and ... an allowance of up to 50 per cent is not uncommon”.22

[53]   You were granted EM bail effective from 16 August 2022 and restrictive conditions did apply, including a 24 hour curfew and non-association with

17     The Court has also received letters from your mother and your friend Nathan Meyer. These letters also express denial of any intention on your part to hurt Ms Peterson.

18     Sentencing Act 2002, s 9(2)(h).

19     Section 9(3A).

20     See Parata v R [2017] NZCA 48 at [10]; and Rangi v R [2014] NZCA 524 at [10].

21     Vakapora v Police [2022] NZCA 493 at [30]; citing Paora v R [2021] NZCA 559 at [45].

22     Paora v R [2021] NZCA 559 at [53].

Ms Peterson and your children. On 28 October 2022, the conditions of bail were varied to allow you to be absent from the bail address between 9.30 am and 6 pm to go to work. Some other minor variations occurred including an ability to be absent on Christmas Day in 2022.

[54]   And as counsel have said you remained on EM bail until the conclusion of your trial on 6 March 2023, at which time you were remanded in custody pending sentencing. You were therefore on EM bail between 16 August last year and 6 March 2023, being approximately seven months. You were subject to strict conditions during the first three months of that time. During the remainder, you were allowed to be absent for employment purposes. You complied with the terms of your EM bail. Indeed, there is no suggestion that your compliance was anything other than exemplary.

[55]   Mr Winter sought a discount equivalent to 50 per cent of the time spent on EM bail.

[56]   On balance, given that a portion of the time spent on EM bail was under strict conditions, I consider that a discount of three months would be appropriate recognition of your time on EM bail.

Minimum period of imprisonment

[57]   The Crown does not advocate for a minimum period of imprisonment, and I consider that a minimum period of imprisonment is unnecessary. The one-third period that you are required to spend in prison before being eligible for parole sufficiently denounces your conduct, holds you accountable for the harm you have caused and promotes in you a sense of responsibility for that harm.

Conclusion

[58]   From a starting point of six years’ imprisonment, I reach an end sentence of four years and six months imprisonment, taking into account discounts of:

(a)10 per cent for previous good character;

(b)10 per cent for mental health at the time of the offending; and

(c)three months (or about four percent) discount for time spent on EM bail.

Result

[59]Mr Bell, please stand.

[60]   I sentence you to four years and six months imprisonment on the charge of attempted murder.

[61]Please stand down.

McQueen J