R v Bell

[2015] NZHC 779

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI  2014-043-680 [2015] NZHC 779

THE QUEEN

v

BRENDON LEE CHARLES BELL

Hearing:	21 April 2015
Counsel:	C E Clarke for Crown C B Wilkinson-Smith for Defendant
Judgment:	21 April 2015

SENTENCING NOTES OF HEATH J

Solicitors:

Crown Solicitor, New Plymouth
Counsel:

C B Wilkinson-Smith, Auckland

R v BELL [2015] NZHC 779 [21 April 2015]

Introduction

[1]      Brendon Lee Charles Bell, you appear before the Court today for sentence having pleaded guilty to one charge of common assault.  The incident that gave rise to the charge occurred on 1 March 2014 at Waitara.  The person whom you assaulted (Mr Reginald John Bell) was your father. Tragically, he subsequently died.

[2]      Initially,  you were charged with manslaughter, to which you pleaded not guilty.  Subsequently, the charge was amended (on 6 March 2015) to one of common assault.    That  was  done  following  a  decision  by  the  Crown  Solicitor  at  New Plymouth that the circumstances were such that you should not be held responsible for the death through a charge of manslaughter.  On the material I have read, that was a responsible decision by the Crown Solicitor and, ultimately, the Solicitor-General.

[3]      On 6 March 2015, you entered a plea of guilty to the charge of assault.  You were remanded to today for sentence.   The offence with which  you  have been charged carries a maximum penalty of imprisonment for one year.

[4]      Before I go further, I wish to acknowledge the presence of members of your family here  today.    In  particular,  I wish  to  acknowledge  Mr  Douglas  Bell  and Mr David Bell, who spoke so eloquently to the victim impact statements that have been read.  I take into account what they have said as having been said on behalf of the family as a whole.

[5]      Now, Mr Bell you may be seated while I carry on with my remarks and I will ask you to stand when I formally pass sentence at the end of the process. Thank you.

Facts

[6]      Mr Bell you are 23 years old and live in Auckland.  On 1 March 2014, you and your father were in Waitara attending a tangi for a family member who had passed away a few days earlier.  Afterwards, the two of you, and other family members, went into a bar in Waitara where alcohol was consumed.  Your father got into  an  argument  with  another  patron.    Commendably,  you  stepped  in  in  an endeavour to stop a possible fight.

[7]      You, your father and another family member left the bar at about 9.30pm and bought some beer from an off licence before returning to an address at which other family members were present.   By this stage, your father had become very intoxicated.

[8]      He decided that he wanted to get some food and indicated he intended to drive back into the township.  Again, commendably, you intervened and insisted that you drive.  Unfortunately, you too had consumed alcohol, though you believed you were in a better position to drive than your father, given his state of intoxication. You drove him to the BP service station at Waitara.  Your father began to argue with you on the way there.

[9]      Once you arrived at the service station, an argument developed about your earlier successful attempt to stop your father from fighting with the bar patron.  Your father got out of the car and approached you, abusing you verbally.  This continued for a short time, following which what has been called a “pushing match” developed.

[10]     Someone stepped in to stop your father from hitting you.  He was pushed to the ground. There was then a confrontation between you and your father. You struck him once causing him to fall to the ground.   That is the point at which it is acknowledged that you were acting in self defence.

[11]     After walking away for a few seconds, you went back to your father, grabbed him under the armpits and dragged him along the ground for approximately three to four metres before dropping his body down. As a result of being dropped from about shin height, your father’s head hit the concrete forecourt.  This is the incident that gives rise to the assault charge.  Initially your father lost consciousness but that was regained about 10 minutes later.   He was able to walk to an ambulance.   He was taken to Taranaki Base Hospital.  You went with your father but later accompanied police officers for questioning.

[12]     Your  father’s  condition  subsequently  deteriorated.     He  was  flown  to Wellington Hospital and put into a medically induced coma and on life support following an operation.  He remained on life support for about two weeks with no

sign of improvement.   He was then  transferred to Auckland for palliative care. About two days after your father was taken off life support systems, he died at Middlemore Hospital.  You spent a good deal of time with your father by his bedside in the latter days of his life.

Analysis

[13]     It is plain that you demonstrate real remorse for your actions and it is equally plain that you will feel the same way for the rest of your life.  You have imposed upon yourself a life sentence of a very different sort to that which any Court can order.   In addition, there is the very public nature of today’s sentencing exercise. That should not be underestimated as a form of denunciation of offending.1

[14]     Mr Wilkinson-Smith, on your behalf, has asked me to discharge you without conviction.2    Unusually, it is an application supported by the Crown.  It is rare for such a sentence to be passed when death has resulted, even in a case where a charge has been reduced to assault.  However, I tell you now that that is the order I propose to make.

[15]     I can only discharge you without conviction if I was satisfied that the entry of a  conviction  for  the  offence  with  which  you  have  been  charged  is  out  of  all proportion to the gravity of the offence.3    I must first consider the gravity of the offence, by reference to all aggravating and mitigating factors relating to both the offending and the offender.  I must then identify direct and indirect consequences of conviction and consider whether they are out of all proportion to the gravity of the offence.  In a case such as this, once that point is reached, there is no basis to refuse to exercise any residual discretion to grant a discharge. 4

[16]     The assault itself is at the lower end of the scale for offending of its type. You found yourself in a difficult, if not impossible, position given the way in which your father had behaved following his drinking that fateful afternoon and night.  You

attempted to keep him out of trouble, both by your actions in the bar and by driving

1      Compare R v Q [2014] NZHC 550.

2      Sentencing Act 2002, ss 106 and 107.

3      Sentencing Act 2002, s 107.

4      Z v R [2012] NZCA 599 at para [27].

in circumstances where you were also affected adversely by alcohol.   Indeed, you pleaded guilty to a charge of driving with an excess breath alcohol concentration. That was done after you had disclosed the fact of that to Police frankly when interviewed.

[17]     You have been convicted and sentenced of that offence in the District Court. The fact that you have already been dealt with by the Court in respect of one of the events  that  led  up  to  the  offending  is  something  that  I  take  into  account  in determining the appropriate sentence on this charge.   I take into account both that you volunteered information that led to the charge being brought and that you have paid the fine in full.

[18]     The events that led you to hit and drag your father were plainly borne of extreme frustration.   While I cannot excuse your actions, and they cannot be condoned, your reaction, at a human level, was understandable and your remorse for what has happened is immense.

[19]     I have now been a Judge for some 13 years.  I have never seen a case before in which all close family members support an application for discharge without conviction when someone has died. The family ask me to do what your father would have wanted me to do.  That is a powerful submission.  None of them blame you for your father’s death.  I have no doubt that you will continue to blame yourself even though you should not.  All of the family want you to get on with your life without further sanction from the Court.

[20]    Mr Bell, you are plainly of good character.  You are in a stable personal relationship.  You have strong connections with your iwi.  You have received a positive pre-sentence report.  You are assessed at low risk of reoffending.  You have been a youth leader in your church and you have also mentored young men who wish to involve themselves in careers in sport.

[21]     You are yourself a talented sportsman.   The imposition of a conviction for one charge of assault may well cause difficulties to you if you were to obtain a professional contract.

[22]     You had a close connection to your father.  It is clear that the nature of that relationship depended much on whether he had been drinking.  There is no doubt in my mind that he loved you, and you loved him.  I am sure that he would undoubtedly regret the behaviour that occurred that day which led to what happened and, I am sure from what I have read, that in retrospect he would feel that on occasion when he was drunk he did not treat you as well as he should have treated a dutiful son.

[23]     On balance, all of those factors, particularly the support you have received from family members, persuade me that this is one of the rare cases in which a discharge without conviction should be ordered.   I am satisfied that the entry of a conviction would be out of all proportion to the gravity of the offence for which you are being sentenced.

Result

[24]     Would you please stand Mr Bell.  On the charge of assaulting your father, you are discharged without conviction.

[25]     You may now stand down and you are free to go.

P R Heath J