R v Bracken

[2012] NZHC 3158

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI 2011-027-000666 [2012] NZHC 3158

THE QUEEN

v

WAYNE JAMES BRACKEN

Hearing:         23 November 2012

Appearances: M Smith and B O'Connor for the Crown

Prisoner in Person

Judgment:      23 November 2012

SENTENCING NOTES OF WYLIE J

Distribution:

M Smith:  [email protected]
B O’Connor: [email protected]

G Gotlieb: [email protected]

J Krebs: [email protected]

R V BRACKEN HC WHA CRI 2011-027-000666 [23 November 2012]

[1]      Mr Bracken, you may sit until I ask you to stand.

[2]      Mr Bracken, on 28 September 2012, after a seven-week trial, a jury found you guilty of kidnapping Mr Jack Davis, and of then going on to murder him.  The jury also found you guilty of aggravated robbery, assault with intent to injure and burglary.   The victims of these three offences were a Mr Bradley Johns and his partner, Ms Melissa Cochrane.

[3]      Pursuant to the Crimes Act 1961, murder carries a mandatory penalty of life imprisonment, except in limited circumstances.  I am also required to consider the minimum term of imprisonment to impose on you, and I deal with this issue shortly. Kidnapping carries a maximum penalty of 14 years’ imprisonment.   So does aggravated robbery. Assault with intent to injure carries a maximum penalty of three years’ imprisonment and burglary carries a maximum penalty of 10 years’ imprisonment.

Relevant Facts

[4]      I start with the most serious offending, the kidnapping and the murder.

[5]      You  knew Mr Davis.    On Wednesday,  23  February 2011,  you  and  your brother, Kenneth, collected him from his residence in South Auckland.  There was talk of a fishing trip.   The three of you travelled north in two cars, stopping at another brother, Fred’s, house in Whangarei.  You left your vehicle there and you all continued north in a silver BMW.

[6]      You and Fred were moving out of a rental property you shared at Otangaroa Side Road, near Kaeo.  During the morning of 24 February 2011, you all moved your and Fred’s belongings out of the house.  Later in the morning, you, Mr Davis, and Kenneth, were at Mr Neville Dangen’s house on a farm property in Salvation Road, also near Kaeo.  Mr Dangen was also present.  For no obvious reason, you started to yell and swear at Mr Davis.   You brandished a thistle grubber at him.   You told Mr Davis to get on the garage floor and threatened to hit him with it if he did not do so.  You then told Kenneth to tie him up.  Both Mr Davis and Kenneth were asking

you what he had done.  You gave no explanation.  You simply became more angry. Mr Davis was tied with his hands behind his back.  A truck strap was used.  You forced Kenneth to put a t-shirt over Mr Davis’ head.  You then told Kenneth to pick Mr Davis up off the floor and the two of you took him a few hundred metres down to a woolshed on Mr Dangen’s property.  Throughout, Mr Davis was begging for help. You ignored his pleas.  You were continuing to wield the thistle grubber as if it were a weapon.  When the three of you got to the woolshed, you instructed Kenneth to hog-tie Mr Davis and to then tie him to a railing so that he couldn’t move.   An electrical extension cord was used.  At some stage, a yellow rope from a shearing machine was tied around Mr Davis’ neck. You and Kenneth then left.

[7]      Kenneth was acting throughout at your direction.  He had real concern for his own safety.

[8]      All of this occurred at approximately 4.00 to 4.30 pm on the afternoon of

24 February 2011.  Mr Davis was left tied up in the woolshed alone from that time until late the following morning.

[9]      You continued to act in a normal fashion. You became involved in the sale of a motorbike you had stolen from Mr Johns and Ms Cochrane.

[10]     On the night of Thursday, 24 February 2011, you and Kenneth drove around various locations in Northland and also in the mid-North.   Clearly, you were considering what to do with Mr Davis.   When Kenneth mentioned Mr Davis and asked you to let him go, you responded, “you don’t tie people up and let them go”. When Kenneth pointed out to you that one of Mr Davis’ friends had seen you pick him up from his residence in Auckland, you replied “no body, no case”.  You both visited your other brother, Fred, in Whangarei.  Kenneth wanted to stay behind with Fred.  You made the comment that you thought that that would be a good idea, “cos it might be too gruesome”.  At various stages, you mentioned getting a gun, going fishing and throwing Mr Davis overboard, and getting an axe.

[11]     You returned north.  Early on the morning of Friday, 25 February 2011, you visited your sister, Sharon Bracken.  She lives at Mangonui, a short distance north of

Kaeo.   You were at her place for a short time and again, it seems that you were behaving relatively normally.   You then returned to Mr Dangen’s Salvation Road property.

[12]     Later that morning, you and Mr Dangen went to a garage which was beside Mr Dangen’s house.  Mr Dangen got a black tarpaulin or tent fly out of the garage roof.  It was placed in the back of your Suzuki Escudo and you then drove it down to the woolshed.  You got Mr Davis out of the woolshed and put him in the back of the Suzuki.  He was still hog-tied.  You then left the Salvation Road property and drove to and a short distance up the Wairakau Track on the northern side of the Whangaroa Harbour.   You then pushed or carried Mr Davis down a steep slope into a bush gulley.  The gulley was approximately 30 metres below the track. You then assaulted Mr Davis with the same thistle grubber that you had used to threaten him with the previous day.  Mr Davis was still hog-tied with the electrical cord and the truck strap at the time.  He was defenceless.

[13]     You delivered at least seven blows to Mr Davis’ neck area.   The blows severed a muscle on the right side of his neck completely.  They also severed his carotid artery.   They cut through his trachea and damaged his thyroid cartilages. There was also a fracture of the neck vertebrae.  The pathologist, Dr Vuletic, noted that the wounds cut right through to Mr Davis’ spine.   Dr Vuletic stated that once Mr Davis’ carotid artery was severed, he would have lost blood very quickly.  She considered that it would have taken him a few minutes to become unconscious and that he would have been dead within five to 10 minutes.

[14]     Mr Dangen in his statement to the police said that after the assault with the thistle grubber, you came back up to the track dripping in blood and that you were grinning.

[15]     The  evidence  suggested  that  Mr  Davis  was  murdered  sometime  around midday, or perhaps a little later, on 25 February 2011.  On that basis, it follows that Mr Davis was tied up in the woolshed for between 19 and 20 hours before he was taken to the Wairakau Track and killed.

[16]     After  murdering  Mr Davis,  you  set  about  covering  your  tracks.     You instructed Mr Dangen to throw the thistle grubber off the Otangaroa Side Road Bridge.  You returned to the Salvation Road property.  The back of the Suzuki was washed out.  A fire was lit and you burnt Mr Davis’ belongings on the fire.  A belt buckle subsequently identified as belonging to Mr Davis was later found in the ashes.   You  also  burnt  the clothing and  the  footwear  you  had  worn  when  you murdered Mr Davis.

[17]     After this, you went with your sister, Sharon, and Mr Dangen to buy food and alcohol.  Later, you visited Sharon, had a shower at her home, and then left to travel to Auckland to visit a strip club.  You were intercepted on the way by your brothers Fred and Kenneth, and by a Mr Mano Warmington.   They accused you of killing Mr Davis and assaulted you. You were arrested a short time thereafter.

[18]     I now turn to the aggravated robbery, and the related charges.

[19]     This offending took place sometime in February 2011. You visited Mr Johns’ and Ms Cochrane’s property in the middle of the night.  You banged on their front door.  When Mr Johns answered the front door, he was confronted by you. You were holding a sawn-off shotgun.  You told Mr Johns to go into the lounge in the house. You then tried to jam a chair against the lounge door.  You were agitated and angry. Mr Johns had an injured leg.  The injuries were visible and obvious.  Nevertheless, you jammed the barrel of the shotgun into the wound on Mr Johns’ leg, using both hands.  The blow cut his skin.  Ms Cochrane pushed her way into the lounge.  You were demanding property.  You directed Mr Johns and Ms Cochrane to go outside with you.  In the process, Ms Cochrane fainted.  Once you got outside, you produced another gun, a rifle, from your car. You made Mr Johns and Ms Cochrane hook their boat trailer onto your car. You then left.

[20]     A short time later, Mr Johns and Ms Cochrane fled from the property.  They saw that their boat had fallen off the trailer and that the trailer and the boat had been left on the driveway.   They chained and padlocked the gates as they left.   When Mr Johns and Ms Cochrane returned the following day, the gate had been broken open.  Their property had been burgled and numerous items of property had been

taken,  including  another  boat  named  “Paddles”,  a  boat  motor,  a  motorbike  and

various tools.

[21]     You were subsequently involved in trying to sell some of these items, in particular, the motorbike.

Pre-Sentence Report

[22]     I have received a full pre-sentence report.

[23]     You are 35 years old.  Prior to your arrest, you had been residing with your ex-partner and two children in Northland.  You told the probation officer who interviewed you that you were not much of a drinker, and that you last used methamphetamine some two years ago.  You claimed that you only used it three or four times a year.  However, the probation officer considered that you were evasive when it came to discussing your consumption of alcohol and use of illicit drugs.  He noted that you chose not to undertake a substance abuse assessment.

[24]     I note that the evidence given in the course of the trial suggested that you were using methamphetamine on a frequent basis, at and around the time of the offending.

[25]     When the probation officer discussed the murder and kidnapping convictions with you, you tried to shift all responsibility for your actions onto Mr Dangen.  You asserted that  you have been set up, and that  you weren’t involved at all.   You justified your actions in relation to the aggravated robbery and related charges by asserting that Mr Johns and Ms Cochrane owed you money, and that they agreed to you taking their property in lieu of payment.

[26]     You accepted no responsibility for your actions at all.  Rather, you presented as being unremorseful, evasive and unmotivated to address your criminality.

[27]     The probation officer noted that you have a propensity for violence and illicit drug use, that you have a strong sense of entitlement and that you have antisocial

attitudes. You also have offending supportive associates.  He considered that you are at a high risk of further offending, given your history of violent offending, your unwillingness to accept responsibility for your actions and your lack of motivation to address your offending needs.

[28]     I pause to note that I had the opportunity to observe you closely over the course of the trial, and in particular, when you gave evidence over the course of a day and a half. The probation officer’s comments in large part echo the view which I formed of you during the trial.   It was noteworthy that you were belligerent and arrogant throughout.  You taunted the Davis family who were present in the back of the Court by singing or whistling as you were led out of the Court at each adjournment, notwithstanding directions from me and repeated requests from your counsel.   You were confrontational with witnesses, in particular, Mr Warmington. You seemed to think that you were above the law.   I trust that what is happening today will bring it home to you that you are not.

Victim Impact Statements

[29]     I have received victim impact statements from Mr Davis’ mother, his son and his brother.  They have been read in Court today.  They all speak of their sense of loss at Jack Davis’ death.  It has clearly had a significant impact on them and on the wider family.  Understandably, they express particular concern at the circumstances of his death.   They note that he had no help at the time and no chance to defend himself.  It is obvious that they have all suffered considerable emotional harm as a consequence of your actions.

Submissions

[30]     I have received a full sentencing memorandum from Mr Smith for the Crown. He has spoken to that memorandum today.  He submits that the appropriate sentence must be life imprisonment, and that a minimum period of imprisonment of between

18 and 20 years should be imposed on you.  He submits that there are a number of aggravating features to your offending, and that there are no mitigating features, either to the offending, or personal to you.  He also seeks a concurrent sentence of

seven to eight years’ imprisonment in relation to the kidnapping conviction and a concurrent  sentence  of  seven  to  eight  years’  imprisonment  for  the  aggravated robbery, assault with intent to injure and burglary convictions.

[31]     While I have received submissions from Mr Krebs, you have dismissed him as your counsel and I have not taken his submissions into account.  You chose not to address me in response to Mr Smith’s submissions.

Principles of Sentencing

[32]     In sentencing you, I have considered the principles set out in ss 7 and 8 of the Sentencing Act.  In particular, I have had regard to the need to hold you accountable for your appalling offending, the need to promote in you, even now, a sense of responsibility for and an acknowledgement of your offending, and the need to denounce the horrific conduct in which you were involved.  I am also mindful of the need to deter others from committing the same or similar offences.  In this particular case, I also need to consider the protection of the community.  In my clear view, you are a very dangerous man.

[33]     I have taken into account the gravity of the offending in which you were involved, including your culpability.  I have considered the seriousness of these types of offences, and the requirement that I should impose a penalty at, or close to, the maximum for offending which is very serious offending of its kind.   I have also considered the general desirability of consistency of appropriate sentencing levels with similar offenders committing similar offences.  Of particular relevance in this case, I need to consider the effects of your offending on the victims, especially Mr Davis’ family.

[34]     I am also required to consider s 9 of the Act. Your offending involved the use of weapons.   The aggravated robbery involved a home invasion.   The murder involved premeditation, and particular cruelty.  Mr Davis was vulnerable.  He was hog-tied and unable to take any steps to defend himself.  Both the kidnapping and murder, and the aggravated robbery and related charges, have caused significant loss

and harm.   Indeed, the murder has resulted in the ultimate loss — a life has been taken.

Analysis

[35]     The Sentencing Act sets out a statutory regime which applies to sentencing for murder.  There is a presumption of life imprisonment. A person who is convicted of   murder   must   be   sentenced   to   imprisonment   for   life,   unless,   given   the circumstances of the offence and the offender, a sentence of life imprisonment would be manifestly unjust.

[36]     There are no such circumstances in your case.  It follows that I must impose a sentence of life imprisonment on you.

[37]     The Act then requires me to go on and consider the minimum period of imprisonment which must be imposed.  The minimum term of imprisonment ordered may not be less than 10 years, and must be the minimum term necessary to satisfy all or any of four stated purposes:

(a)       to hold you accountable;

(b)      to denounce the conduct in which you were involved;

(c)       to  deter  you  and  others  from  committing  the  same  or  a  similar offence; and

(d)      to protect the community from you.

[38]     Section  104  in  the Act  requires  that  I  must  make  an  order  imposing  a minimum period of imprisonment of at least 17 years in various defined circumstances, unless I am satisfied that it would be manifestly unjust to do so.

[39]     Here, the Crown refers to two circumstances detailed in the Act which it says apply.  First, it says that the murder was committed in the course of another serious offence, namely the kidnapping.  Secondly, it says that the murder was committed

with a high level of brutality, cruelty, depravity or callousness.  Here, I am satisfied that both circumstances apply.

[40]     The murder was committed in the course of a kidnapping.   Mr Davis was kidnapped by you on the day before you murdered him.  Kidnapping is a continuing offence.  The kidnapping started when Mr Davis was first detained in the garage, and it continued through until he was murdered.  Kidnapping is a serious offence, and the murder was committed in the course of the kidnapping.

[41]     Further, the murder involved a very high degree of brutality, cruelty and callousness.

[42]     All murders are brutal, but the murder in which you were involved was particularly brutal.  The brutality and your callousness are illustrated by a number of factors:

(a)      First, Mr Davis was tied up under threat of violence on the Thursday afternoon.  He was left tied up for around 20 hours.  During that time, he must have been in a state of terror and desperation.  You forced him to endure a long, agonising and cruel wait until you eventually sent him to his death. You were utterly indifferent to his torment.

(b)Secondly, you bundled Mr Davis into the back of the Suzuki, threw a tarpaulin over him and took him to the track.   You then pushed or rolled or kicked him down the steep bank into the gully.  You had the thistle grubber with you at the time.   It must have been obvious to Mr Davis  what  was  going  to  happen.   You  were oblivious  to  his anguish.

(c)      Thirdly, Mr Davis was utterly helpless when you struck him with the thistle grubber.   He was hog-tied.   He could not defend himself or ward off your blows in any way.   Your assault was calculated and vicious.  It was, in effect, an execution.

(d)Fourthly, there are the horrific injuries suffered by Mr Davis.   Your blows were targeted to his neck.  They were repeated and they were significant.    Extreme  violence  was  used.    Mr Davis  did  not  die immediately.  Rather, he bled to death over a period of minutes.  You were  devoid  of  any  sensitivity  or  basic  feelings  of  humanity  for Mr Davis throughout.

(e)      Fifthly, your actions were premeditated.  On the Thursday night, you in effect told Kenneth that you were going to kill Mr Davis.   You suggested various weapons you might use, or ways to do it.   You clearly contemplated a gruesome end for Mr Davis.

(f)      Sixthly, there is no explanation for the murder.   It appears to have been simply cold-blooded and gratuitous.  While there were various suggestions proffered by counsel at the trial, there was no obvious reason for your attack or for its savagery.

(g)Seventhly, there are your reactions after the murder.   You came up from the gulley, having murdered Mr Davis, grinning and covered in blood.  You then set out to hide all traces of your crime.  You thought you could and would get away with it.  You were cocky and brazen. You even boasted to a fellow inmate that the police would not find your DNA on anything and that there was nothing to link you to the murder.

[43]     I consider that the murder was committed with an extremely high level of brutality, and that your actions throughout were cruel and callous.   Indeed, in my clear view, you are a very dangerous and evil man.

[44]     I have considered the various authorities referred to me by the Crown.[1]   Each case of course has to be considered on its own facts, and the facts applicable to the

murder you have committed are, in very many respects, unique.

[1] R v Cui Li & Wang HC Auckland CRI 2006-004-018412, 6 December 2007; R v Baker HC Auckland CRI 2006-044-5276, 15 December 2006; R v Shepherd HC Auckland CRI 2004-092-

013121, 2 November 2006; R v Moore HC Wellington CRI 2006-085-4361, 11 August 2008.

[45]     I adopt as an initial starting point, a minimum term of imprisonment of 20 years.

[46]     There are aggravating features personal to you which justify an increase in the minimum term of imprisonment:

(a)      First, there are your continuing denials, and as a result, your complete lack of remorse;

(b)Secondly, there is your criminal record.   You have some 18 prior convictions.  Relevantly, they include convictions for possession of an offensive weapon (2006), assault with intent to injure (2003), injuring with intent to injure (2003), and unlawfully possessing a firearm (2000);

(c)      Thirdly, there is the aggravated robbery, the assault with intent to injure and the burglary.  That offending is significant in its own right. It involved stand over tactics, violence and intimidation.  It reinforces the fact that you are a violent and dangerous man.

[47]     There are no mitigating features, either to the offending, or personal to you.

[48]     I propose to uplift the minimum term of imprisonment by one year to take account of the aggravating features  I have just noted, and  to impose on  you  a minimum term of imprisonment of 21 years in relation to the murder.

[49]     I now turn briefly to address the other offending.

[50]     Section 23 of the Sentencing Act provides that a cumulative sentence may not be imposed in addition to an indeterminate sentence of imprisonment.   Here, as I have explained, I am required to sentence you to life imprisonment.   That is an indeterminate sentence of imprisonment.

[51]     In relation to the kidnapping, the Crown suggests that a concurrent sentence

of seven to eight years’ imprisonment should be imposed.  I have considered the case

law suggested by the Crown, and in my view, a concurrent sentence of eight years is appropriate in this case.

[52]     The  aggravated  robbery  also  requires  a  stand-alone  sentence.     Having considered the relevant authorities, in my view, a sentence of eight years’ imprisonment is appropriate in this regard.  The aggravated robbery involved the use of weapons. Actual violence was used.  There was a home invasion, and there was a significant impact on the victims.

[53]     The assault with intent to injure conviction did not involve any significant injuries.  However, it was a cruel and heartless assault, inflicted on a man who was already injured.  It requires a sentence of 18 months’ imprisonment.  The burglary conviction is, in many respects, a stand-alone conviction.  It does not seem that you have any previous convictions for burglary.   In my view, the burglary requires a sentence of one year’s imprisonment.

Sentence

[54]     Mr Bracken will you please stand.

[55]     In respect of the charge of murdering Mr Davis, you are sentenced to life imprisonment. You are to serve a minimum term of imprisonment of 21 years.

[56]     In respect of the charge of kidnapping Mr Davis, you are sentenced to a term of imprisonment of eight years, to be served concurrently with the sentence imposed in respect of the murder charge.

[57]     In respect of the charge of aggravated robbery, you are sentenced to a term of imprisonment of eight years, to be served cumulative to the sentence in respect of the kidnapping, but concurrently with the sentences imposed in respect of the murder charge.

[58]     In respect of the charge of injuring with intent to injure, you are sentenced to a term of imprisonment of 18 months, to be served concurrently.

[59]     In  respect  of  the  charge  of  burglary,  you  are  sentenced  to  a  term  of imprisonment of one year, to be served concurrently.

[60]     Mr Bracken, in the end result, the minimum period of imprisonment which I have imposed is one of 21 years.   However, I want you and the members of the public present here today, to understand that the minimum term of imprisonment I have imposed does not mean that you will be automatically released from prison when you have served that term.  You will have to apply for release.  It will be for the Parole Board to determine whether or not you are then fit for release from prison. The Board will be aware of the horrific circumstances of these crimes.  It will have these sentencing notes before it and it will be aware of my view that you are a very dangerous man, and that you pose a very real risk to the community.  The Board will have to be satisfied, to a very high level, in 21 years’ time, that you no longer present a risk to society.  Only then will it be able to consider favourably any application you may make for release.  If you want to stand any chance of being released in 21 years’ time, you will have to turn your life around and engage meaningfully in the various rehabilitation programmes that will be offered to you in prison.   I hope that even now, you will reassess your position and take advantage of those opportunities.

[61]     You may take the prisoner down.

Wylie J