R v Bourke HC Palmerston North CRI 2009-054-4180
[2010] NZHC 2167
•14 December 2010
IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY
CRI 2009-054-4180
THE QUEEN
v
DAVID JOHN BOURKE
Hearing: 1 November - 9 November 2010
Counsel: B D Vanderkolk for Crown
O S Winter, I M Antunovic and C L Parkin for Accused
Sentence: 14 December 2010
SENTENCING REMARKS OF SIMON FRANCE J
[1] Mr Bourke shot and killed his brother as he sat in the back seat of their car. The verdict of manslaughter reflects acceptance of the defence of provocation. In this case the provocation did not result in anger, but literally in a loss of control in the form of an inability to say now to the repeated efforts of his brother, the deceased Timothy, to have Mr Bourke kill him.
[2] When considering Mr Bourke’s culpability for manslaughter, there are
several features that require identification:[1]
[1] Appendix A lists the various cases I have had regard to
R V DAVID JOHN BOURKE HC PMN CRI 2009-054-4180 [14 December 2010]
a) the victim, Mr Bourke’s loved brother, wanted to die. His is a very sad tale. A lifetime sufferer from depression, Timothy’s mental state had deteriorated throughout 2009 following the death of his mother. It is plain he lost the will to live, and his physical health also declined. Already a very thin man, in the month before his death his weight went from 61 kg to 55 kg;
b)second, Timothy placed a lot of pressure on his brother David to convince David to kill him. Timothy wanted to die and join his mother; after sustained pressure, in the last few weeks he effectively haunted his brother’s existence. When David woke, Timothy would be there, sitting at the end of the bed in the small bedroom they shared, staring at him. David’s long work hours would mean he would go to bed around 6.30 p.m. in order to be ready for a 2 a.m. start. In the period before his death Timothy changed his habits, and would go to bed at the same time, thereby impacting on David’s ability to sleep;
c) third, the family believed outside help was not available. This is not a commentary on the correctness of that belief. The fact is that the family took Timothy to hospital and left thinking they were alone in dealing with Timothy’s declining state;
d)fourth, David resisted as anyone would and should. Sentencing must proceed on the jury verdict, which is that on the fateful morning David suddenly gave in. He knew when they visited the rural car park that killing was on the agenda. He took the loaded guns necessary to do it, but he hoped he would talk his brother out of it. He failed and Timothy’s last efforts broke through David’s resistance, and he shot Timothy, as Timothy wanted;
e) finally, Timothy had plainly exploited the relationship with his brother. To speak of close ties between brothers would not be to capture the unique situation that existed here. The two men
complemented each other such that each undertook to off-set the other’s limitations. David worked long hours, and earned the money which was then available for both. It was used for living and holidays. Timothy, on an invalid’s benefit since his late teens, was too nervous to drive. However, David bought the car that Timothy loved, and thereafter drove them everywhere. David, with minimal literacy, could not operate his bank accounts, or withdraw money so Timothy looked after all that. His mobile had just a few pre-entered numbers and Mr Bourke was taught to access those so he could contact Timothy or his other family, and they him. Grown men they shared a small bedroom, despite there being a spare room. I describe this situation solely to emphasise the extraordinary close bond and dependency between these men, the pressures that Mr Bourke must therefore have been under with limited skills and indeed capacity to cope, and the impact that shooting his brother must have had on him;
f) each loved the other completely, but in his terribly unwell state Timothy could not see the cruelty in what he was doing to his brother, and indeed the cruelty in the situation he has now left his brother in.
[3] Whilst in some ways this death could be seen as an assisted suicide, the differentiating feature is that the perpetrator resisted assisting until finally provoked into it. The deliberate taking of a life is never to be minimised, and rarely is it to be excused. I do neither but do acknowledge this to be a manslaughter that is unique and comes at the low end of personal culpability.
[4] In rejecting the need today for any sort of statement of denunciation, I point to the following things:
a) the victim manipulated Mr Bourke, and exploited him;
b)Mr Bourke resisted, until circumstances existed that led Mr Bourke to a point where he could not say no, he was unable to;
c) the family, as they saw it, had sought outside help and believed they had been told none was available.
[5] These three matters, taken together, mean it is correct in my view to see the killing in a merciful light. If that were the only charge I make it plain I would not have imposed a full time custodial sentence on Mr Bourke.[2]
[2] The Crown proposed a starting point of five to seven years, it emphasised the sanctity of life as a key feature, and drew support from factors recognised in other provocation cases. It recognises the provocation to be in the substantial to high range but submits this is offset to some extent by the degree of planning involved prior to the loss of control. I have set out my reasons for differing, support for which I consider can be found in the numerous cases listed in Appendix A.
[6] Regretfully that is not the end of the story. Assessing the correct way to deal with the aftermath has troubled me the most. I will first describe what happened, and then consider the implications.
[7] Mr Bourke had shot his brother while he sat in the back seat of their car. He covered Timothy with his favourite blanket. His intention was to take him to his mother’s graveside, and place Timothy on the ground beside her. However, he could not bear the thought of leaving him, so he drove off with Timothy dead on the back seat. He went from Whanganui almost to Wellington, and then back onto the road that leads to the Hawkes Bay.
[8] He drove dangerously, causing great alarm. Reports kept coming to the police about his driving. Eventually he was pulled over and breath tested. Told he had failed the test and would have to go with the police, Mr Bourke drove off, his brother still in the back seat. There was an abandoned pursuit, and then near Norsewood an accident. Mr Bourke’s car clipped a trailer going the other way. The trailer was loaded with wood and significantly damaged the driver’s side of Mr Bourke’s car. He stopped in the middle of the road.
[9] The driver of the other vehicle came back, trying to clear the road and ascertain if Mr Bourke was OK. By then Mr Bourke was standing by the front passenger door, the other driver near the damaged driver’s door. He observed
Mr Bourke seemed to be ignoring him, and indeed was oblivious to his presence.
[10] A police car arrived and pulled in behind. The police officer got out and approached Mr Bourke. It is to be recalled Mr Bourke was by then a wanted man. No-one knew that he had shot his brother, or that Timothy lay dead on the back seat. But Mr Bourke had already fled the police, when he was breath tested.
[11] Getting no response the officer approached Mr Bourke. The circumstances led him to use pepper spray. Whether it connected and to what extent is not clear, but it had little impact. Mr Bourke responded by leaning into the passenger seat and taking out a shotgun. This was a different gun from that which he had used to kill his brother.
[12] The police officer ran off. Mr Bourke fired the gun. The load of pellets passed nearby or over the officer.
[13] There then followed a trek across farmland, with the gun presented at close range to four people on three different occasions. Each time its purpose was to scare them off, and no doubt reinforce the threat he posed.
[14] On the last of these occasions Mr Bourke shot the gun in the direction of a nearby car. The occupants were already fleeing in the car. The blast hit the panel between the passenger side doors. Six pellets hit the driver in his left shoulder. Mr Bourke was charged with deliberately shooting the man; the jury acquitted, thereby accepting the possibility it was again a warning shot. Accepting that, the fact that a man was shot highlights the dangerousness of this period.
[15] And then finally, about 36 hours later, Mr Bourke was located in a toilet at a nearby golf club. He was holding a loaded shotgun. The officer courageously, and with remarkable restraint that New Zealander’s should be proud of, grappled for control of it; Mr Bourke tried to stab him, hitting him three times with a knife which fortunately did not penetrate the protective clothing. He was then overpowered.
Victim impact
[16] There are five victim impact statements that have been filed concerning this sequence of events. The pool of victims is much wider and includes family members of those most traumatised, the numerous members of the driving public who came upon the scene, and the large pool of people impacted on by the closure of roads and a protracted manhunt.
[17] The impact on those who have filed reports has generally been profound. The police officers involved have found that this event has impacted on them like none other they have encountered. It has affected them professionally and personally, caused loved ones to feel greater concern about the jobs their partners do. The civilian victims have found their sense of security greatly affected, and this is a cost that should never be minimised because it can greatly affect one’s quality of life.
[18] I suspect that for some anyway today’s sentencing outcome will be less than satisfactory. For them the fear, the concern that their life was in jeopardy, was rightly very real. It is cold comfort to have it suggested later that it was perhaps not so and that Mr Bourke would not have shot them. Nor do I overlook that Mr Bourke’s actions created great danger; the fact that more were not seriously hurt is due to the sensible reactions of the victims. But how a person will react in a volatile situation cannot be known, and all are fortunate nothing unexpected happened to bring the danger to reality.
Crown submissions on this activity
[19] Concerning the sequence of offending the Crown suggests that standing alone the offending against the police officers requires at least a six year starting point, with a higher figure possible.
[20] Concerning the first shot fired, at the scene of the car accident, in the direction of the fleeing officer, the Crown submits it was luck that the Constable was not hurt. The second occasion of use against a police officer involved the time when
Mr Bourke was arrested. He pointed a loaded gun at the police officer, who as noted with considerable restraint sought to disarm him rather than respond in kind.
[21] The cases make it plain that deterrent sentences are to be expected.
[22] Concerning the other offending, the Crown rightly points to the great danger involved in Mr Bourke’s actions both with the firearm, and the driving.
Assessment of further offending
[23] I generally accept the thrust of the Crown’s assessment of the correct response in normal circumstances to this sequence of offending. Putting to one side for the moment Mr Bourke’s state of mind, I would assess the correct total starting point at around seven years. Had anyone been seriously hurt, and I do not ignore the injuries suffered by Mr Hinga, the figure would be significantly higher. In identifying that figure I have particular regard to:
a) the need to protect law enforcement officers;
b)the great fear that the members of the public who were confronted by Mr Bourke must have felt. This is emphasised by the victim impact statements which show experienced professionals have been significantly affected;
c) the significant danger created by his actions. That danger is evidenced by what happened to Mr Hinga;
d) the fact that no serious physical harm otherwise occurred.
[24] The issue then arises whether Mr Bourke’s liability is to be assessed against normal standards. I have been assisted by reports from experts who assessed Mr Bourke around the time of these events. I note such assessments could not be immediately done because of Mr Bourke’s damaged mental health.
[25] Dr Every-Palmer was Mr Bourke’s responsible clinician from the time of his arrest when he was transferred from prison under the mental health legislation. At the end of her assessment Dr Every-Palmer observed:
2.At the time of the alleged offences it seems likely that Mr Bourke was mentally ill with a depressive illness. This was superimposed on his limited intellectual abilities and an unusually close and dependent relationship with his brother, in which his brother was the dominant party. Although I do not think that Mr Bourke was mentally impaired to the extent that he was ‘incapable’ of understanding moral wrongfulness, it seems likely that he was suffering some mental incapacity short of total impairment. If the Court accepts Mr Bourke’s version of the offence, it may find that there are significant mitigating factors, particularly relating to the murder charge. I respectfully suggest that the Court might consider taking these factors in terms of sentencing.
[26] Dr Rees Tapsell interviewed Mr Bourke some months later. By this time Mr Bourke was much improved in terms of mental health. His report was not used at trial so I make conservative use of it. The report has a focus on the provocation defence but likewise noted that Mr Bourke had been suffering from a major depressive episode for months either side of the time when he killed his brother. Dr Tapsell noted that Mr Bourke:
was of low intelligence with a tendency to very inflexible, quite concrete interpretations of, and responses to his environment.
[27] It is apparent from the evidence that Mr Bourke wanted to be killed. His actions were designed to create an appearance of risk, so that the probability he would be shot by authorities increased. One cannot in any sense condone such thinking; it is a terrible burden to impose on the people who seek to ensure the safety of our community. But Mr Bourke was plainly not thinking in a rational way. The trauma of what he had done was no doubt playing greatly on an already diseased thought process. He was a man in shock.
[28] The Crown very fairly points out that much of this subsequent offending shows a clarity of purpose and apparent rationality of thought. There is validity in that. But while there was some clarity of purpose in the intermediate steps, as already noted I consider that the end goal of inducing the police to kill him was
unacceptable but also the product of a mind significantly affected by trauma and damaged by a transitory illness.
[29] As I have said I have no wish to down play in any sense the wrongfulness of his actions, but nor can a just system ignore the significantly reduced personal culpability that flows from the damaged mental state Mr Bourke was in. It cannot absolve him from all responsibility. Mr Bourke does not seek that and there are necessarily other messages that must also be weighed in the mix. I propose to reduce the starting point by 50% to reflect this diminished culpability.
[30] The end result is a figure of 3 years six months, to which credit for factors such as the guilty plea and remorse must be given. Mr Bourke has a previous conviction which means he cannot gain credit for an offending free past. He was subject to a sentence of supervision but the total disconnect between that offending and the circumstances giving rise to this the killing of his brother means that I do not see it as an aggravating feature. This is a situation where as regards these subsequent offences the Crown case was overwhelming and I consider a reduction of around 20% sufficient to embrace all these matters. The end result is a sentence of two years 10 months.
[31] I will now proceed to impose that as regard the various offences. The outcome of all the talk, Mr Bourke, will be a sentence of two years 10 months in jail, plus a period of time prohibiting you from driving.
Sentences
Manslaughter One year imprisonment Using a firearm against a police officer (x2)
Two years 10 months imprisonment
Assault with a weapon
Two years 10 months imprisonment
Aggravated assault (x3)
Two years imprisonment
Dangerous driving
One month imprisonment
Six months disqualification from driving
Failing to accompany
Convicted and discharged Six months disqualification Cumulative on earlier disqualification.
Apart from the periods of disqualification, all sentences are concurrent.
Simon France J
Solicitors:
B D Vanderkolk, Ben Vanderkolk & Associates, PO Box 31, Palmerston North email: [email protected]
O S Winter, WinterWoods Lawyers, PO Box 12067, Palmerston North,
email: [email protected]
I M Antunovic and C L Parkin, Wellington, email: [email protected]
Appendix A
Set out below are a number of cases which have some features in common with the present case. As always there are variations. My assessment is that the usual outcome for cases at the lower end of the culpability range is either a short term of imprisonment, or home detention, or a supervision type sentence.
R v Law (2002) 19 CRNZ 500 (HC)
R v Martin CA 199/04, 14 February 2005
R v Stead (1991) 7 CRNZ 291
R v Simpson HC Auckland T010609, 12 October 2001
R v Bell HC Whanganui S011886, 8 March 2002
R v Ruscoe (1992) 8 CRNZ 68 (CA)
R v KJK HC Christchurch CRI 2009-009-14397, 18 February 2010
R v Port HC Auckland CRI 2005-044-3479, 2 April 2007
R v Crutchley HC Hamilton CRI 2007-069-83, 9 July 2008
R v Gargett HC Christchurch CRI 2009-209-580, 12 February 2010
R v Albury-Thomson (1998) 16 CRNZ 79 (CA)
R v Meikle HC Nelson S11/96, 7 October 1996
R v Karnon HC Auckland S14/99, 29 April 1999
R v Novis HC Hamilton T42/87, 5 February 1988