R v Bragger HC Wellington Cri-2010-091-4438

[2011] NZHC 45

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2010-091-004438

THE QUEEN

v

SUSAN LAURA BRAGGER SEAN MICHAEL HAWKE

Counsel:         G J Burston and S McLean for Crown

I M Antunovic for Prisoner Bragger
V C Nisbet for Prisoner Hawke

Judgment:      17 February 2011

SENTENCING NOTES OF GENDALL J

[1]      Susan Laura Bragger and Sean Michael Hawke, you appear for sentence each having pleaded guilty to the crime of conspiring to cause grievous bodily harm, with intent that such grievous bodily harm be caused to a young man, Raymond Piper. Even though the maximum penalty for causing grievous bodily harm with intent is

14 years’ imprisonment,  the  law  provides  that  where  the  charge  is  only one  of conspiracy to commit that crime, then the maximum penalty is only seven years’ imprisonment.

[2]      The facts upon which I sentence you are as follows.   Raymond Piper was aged 23 and a young man who had been in a relationship for three years with your daughter Mrs Bragger, and they had a young son, he being your grandson.  Perhaps the relationship was turbulent.   Mr Hawke, you are Mrs Bragger’s brother, so the

uncle of her daughter.  On 17 April 2010 there was a 21st birthday celebration, which

was held at Mrs Bragger’s home.  An altercation involving a friend of the Bragger

R V BRAGGER HC WN CRI-2010-091-004438 17 February 2011

family and Mr Piper occurred.  Mrs Bragger for some time had not viewed Mr Piper in a favourable light, and she considered that misbehaviour at the party was the “last straw”.  So she later discussed with her brother, Mr Hawke, about how they might remove Mr Piper from the life of their daughter and niece.  They discussed finding someone  to  deal  to  him  and  Mr  Hawke  offered  to  Mrs  Bragger,  to  make arrangements for this.

[3]      Certain text messages have been read by the Crown prosecutor and I do not need to repeat them in any detail.  But it is clear that Mr Hawke told Mrs Bragger that he would sort it out and contacted a man named Anderson, and Mr Hawke asked Mrs Bragger, or words to the effect, if she wanted Mr Piper put “in hospital and have cash”.   Haggling occurred over the contract price.   Mrs Bragger advised that she could pay $4,000 if necessary but Mr Hawke, on her behalf, offered Mr Anderson

$3,500 which he accepted and an agreement or contract, if you could put it that way, was that something serious would happen to Mr Piper.  Mrs Bragger’s response was that she “definitely” wanted it to happen provided it was not linked to her and that it did  not  take  place  in  front  of  her  daughter  and  grandson.   As  a  consequence, Mrs Bragger met Mr Anderson, who really was a violent thug, and paid him $3,500. There were some later communications between Mrs Bragger and Mr Hawke as to picking the right time at which the planned attack on Mr Piper by Mr Anderson would occur.

[4]      On 15 May 2010 Mr Piper’s partner (Mrs Bragger’s daughter) and the child were absent from the home.   They apparently met Mrs Bragger.   Coincidentally, Mr Anderson went to the home, took Mr Piper in his car under false pretences, drove him to a secluded area, violently assaulted him, stabbing him to death and has been convicted of the crime of murder.  Mr Anderson buried the man’s body in a remote valley, east of the Kapiti Coast.   The police search commenced for Mr Piper on

17 May 2010 and Mrs Bragger played a part in the search over the next four weeks, appealing  from  the  public  for  information,  and  posing  as  a  grieving,  desperate mother-in-law.  The plot began to unravel when Mr Anderson was arrested a month later.   But it was four to five months before Mr Piper’s body was found.   The involvement of Mr Hawke and Mrs Bragger then became known as a result of evidence and text messages and so forth.

[5]      When initially interviewed by the police on 22 June 2010, about a month after the deceased’s death, Mrs Bragger told the police that she wanted Mr Piper to get a hiding or a bashing to teach him a lesson, and she thought he might end up in hospital with a broken rib “or something”.  Mr Hawke admitted his part in the plot saying, he was helping his sister because Mr Piper had disrespected his family.  But he expected him to receive a bit of a hiding from Mr Anderson, thinking it might involve only a couple of punches.

[6]      As I have said, Mr Anderson, who is a mature man and a thug, a former member of  the Mongrel  Mob,  and  aged  51,  pleaded  guilty to  murder  and  was sentenced to life imprisonment with a minimum non-parole period of 14 years.  The Crown,  by  the  nature  of  the  present  charge,  accepted  that  Mrs  Bragggr  and Mr Hawke did not anticipate or mean that death would occur.   They agreed or planned that there should be an attack intending grievous bodily harm to be caused. My initial instinct was that you both were fortunate not to be charged as parties to the crime of manslaughter, through procuring or inciting the infliction of an unlawful act of violence upon a person, which led to his death.  But you are only charged with conspiracy for reasons that the Crown has advanced and you are sentenced only on the basis of that charge to which you pleaded guilty.

[7]      Before  I  turn  to  deal  with  the  sentencing  exercise  that  a  Judge  must undertake, in the sense of talking about starting points and discounts and so forth, and then factoring into account aggravating and mitigating circumstances, I refer to the personal circumstances of each of you.

[8]      It is an absolute tragedy that you are sitting in the dock. Neither of you have previous convictions, are of previous good character and are well thought of.  But you are here because you were involved in a chilling, premeditated, appalling arrangement, aimed at harming another human being in return for payment or a substantial reward to the thug.

[9]      Mr Hawke, you are aged 51 and have been employed in the Bay of Plenty for

15 years and have no previous convictions.  You express remorse and the probation officer assesses you at low risk of reoffending.  It is implausible, however, that you

could have employed Mr Anderson, with a reputation for violence and not have foreseen that physical harm would result, and it is apparent that you believed that the use of violence and intimidation was appropriate in the support of your sister in dealing with what she saw as family difficulties.

[10]     Although you have one previous driving conviction it is inconsequential and I treat you as a first offender.   The probation report says that you are aware that imprisonment is an option and such is recommended by the probation officer.

[11]     For your part Mrs Bragger, you are aged 45 years and together with your husband  operate  a catering business.   You  have adult  children  from  a  previous marriage  but as  a result of what has happened  and the death of Mr  Piper, not surprisingly, your previous close relationship with your daughter has evaporated. Her victim impact statement makes poignant reading, in which she says

that while pretending to support me and my family, when all the time she was lying.  Such deceit is unimaginable.  How could she do this to me – put me through all this trauma.

...

Nobody will be able to feel as I do – the heart ache, the distraught and the betrayal that my own mother has put me through.

...

She was willing to contribute to reward money – it is all unbelievable.

[12]     You, Mrs Bragger, have no previous convictions and there are some medical and health issues, which have required medication over the past five years.  I have the benefit of a medical report submitted by your counsel and many references that speak very highly of you.  It is clear that you are presently in a very troubled state because of your distress about what has happened, the impact upon you or your and his family, and the guilt that you feel.  Although there is a reference that you do not feel guilty about the death because you were not involved in that.  The psychiatrist expresses the view that various emotional and psychological factors led you to be in a state of reduced ability to cope and might explain some of your actions after the birthday party.   Yet, I am bound to observe there was considerable premeditation, planning and time past before the plan that had been hatched by you and Mr Hawke

and Mr Anderson was brought to fruition, and ample time for passions to subside.  It is said that your anxiety and depression and previous good character is such that the offending was grossly out of character.   I think that is accurate.   Although your husband refers to your “error of judgement” it really was more than that.   Your actions were premeditated, they required you obtain substantial funds, that you pay them over, and your texts over the following week, which included “won’t be long now”, “can’t fucking wait” and “He will learn the hard way” indicate then conscious, deliberate, knowing actions.

[13]     You have described your offending to the probation officer as “disgusting”, “wrong” and “unforgiveable”, accepting responsibility for what you did.  Obviously, a key factor in your offending was the difficulties in the relationship between the deceased and your family and an intense involvement you had in your daughter’s relationship with Mr Piper.  Your risk of your reoffending is assessed as low, and as I have said you are highly regarded by many family and friends.   Nevertheless, the probation officer recommended imprisonment.

[14]     So I must turn now to starting points.  I have not yet dealt with the position of your withdrawal of instructions to Mr Anderson, but I will come to that.

Starting points

[15]     This sentencing exercise is especially difficult because there are few (if any) reported cases involving conspiracy to cause grievous bodily harm.   The only one that I have been able to locate is relatively recently, a sentencing in R v Aitken[1] where after other offending a prisoner arranged for an associate to organise a serious assault upon an inmate at Waikeria Prison with explicit text messages directed to other inmates  to  deal  to  the  victim.   As  the  text  messages  were  intercepted  nothing happened and the victim was protected.  In sentencing Woodhouse J referred to the well known authority of R v Taueki,[2]  and you have heard counsel refer to it, which deals with sentencing for causing grievous bodily harm with intent where it sets out a number of aggravating and mitigating factors, which are to be assessed in applying

to which band of sentencing offending falls.  But, of course, as to the crime itself and not as for what is described as the inchoate crime of conspiracy.

[1] R v Aitken HC Tauranga CRI 2009-070-1366, 8 October 2010.

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

[16]     In your case, if this was sentencing for the actual crime of causing grievous bodily  harm  with  intent,  the  aggravating  features  would  include  that  extreme violence was planned, hospitalisation was discussed, there was premeditation and planning, serious injury was in the end caused, the actions were vigilante actions. The offending would fall (although the Crown says into band three) certainly into band two with starting points between five and ten years’ imprisonment.   If it fell into band two the range is 9 to 14 years’ imprisonment, given there was in fact an attack to the head.

[17]     But, however, with conspiracy cases, how does the Court sentence?   The

Court of Appeal discussed the principles in R v Henry.[3]  There, Richardson P noted:[4]

Conspiracy under s 310 of the Crimes Act 1961 consists in the agreement between two or more persons to commit a statutory offence or offences.  The mens rea [mental element] is the intention to achieve a common design, the actus reus is the fact of the agreement, the translation of that intention into agreement.  ... The offence is complete when the agreement is made but the conspiracy then remains in existence until completion of its purpose or abandonment:   it continues so long as there are two or more parties to it intending to carry out the design ... it is the making of the agreement itself that is seen as inimical to the public good, whether it proceeds further or not.

[3] R v Henry [1997] 1 NZLR 150 (CA).

[4] At 152 – 153.

[18]     So one person alone cannot make a conspiracy.   You cannot agree with yourself.   There must be two or more.   In assessing culpability or starting point therefore for the purposes of sentencing, the scope of the conspiracy and its nature and the extent to which you both participated and persisted are relevant considerations.   So, too, is the fact that what was planned and agreed upon was actually carried into fruition through the attack upon the deceased.   The Crown accepted that it cannot prove beyond reasonable doubt that the claim by Mrs Bragger of her advice to Mr Anderson to “forget it” did not occur.  That is to be factored into the sentencing process and again I will come to that.  But the combination of factors makes this conspiracy a very serious case of its kind because, (and I use the word advisedly) a “hit man” was hired and paid a substantial sum by you Mrs Bragger,

with  the  intention  that  he  seriously  assault  Mr  Piper.    There  was  a  sense  of entitlement in the minds of all three of you to take the law into your hands, through the assistance of a criminal who carried it out.

[19]     The victim impact statements and reports from the family of the deceased illustrate the outrage and anguish they feel through your putting into train events that eventually led to him being killed.  That you did not intend that outcome does not alter the fact of their anguish and the fact that but for what you did, the other events would surely not have occurred and Mr Piper would be alive.   As I have said, in terms of Taueki it would be a serious case within band two.   And you let loose a violent man onto Mr Piper, paying for the anticipated action.

[20]     The  trend  of  cases  of  starting  points  involved  or  imposed  for  causing grievous bodily harm suggests a starting point in the range of eight to nine years would have been appropriate if this had not been simply a charge of conspiracy. There are many cases and need not be repeated by me in the sentencing process, but I simply record them for counsel’s benefit as being R v Connolly, R v Chankau, R v

Martin, R v Grace, R v Nepe.[5]

[5] R v Connolly [2008] NZCA 548, R v Chankau [2007] NZCA 587, R v Martin [2009] NZCA 8, R

v Grace [2008] NZCA 243, R v Nepe [2008] NZCA 98.

[21]     So, in terms of Taueki eight to nine years’ imprisonment for the complete crime would have been justified.  That has to be adjusted to account for the nature of the conspiracy offending.   Because the offending actually occurred, the discount warranted might well be less than what has been seen to have been appropriate if the attack had never gone ahead.   As I have said, I will factor into the discounting process Mrs Bragger’s  withdrawal from the agreement.    I think the appropriate starting  point  in  this  case  for  sentencing  purposes  is,  as  the  Crown  submits, five years, given that it was as serious a case of conspiracy as one could imagine, and bearing in mind the maximum sentence is one of seven years’ imprisonment.

[22]     For you, Mrs Bragger, that starting point of five years must be adjusted

because of the Crown’s acceptance of your claim that you withdrew before the attack was carried out.   The Crown whilst not necessarily accepting that, says it cannot

prove beyond  reasonable doubt,  that  that  did  not  happen.    So  you  are  given  a discount for the evidence of your claim that you told Mr Anderson to forget about it and requested your money back.  But there does not seem to be any realistic attempts to  prevent  the offence  happening.    Perhaps  you  thought  it  would  not.    Indeed, whatever you did was half-hearted.  I would have thought that if you had genuinely wished to disassociate yourself from the plan, it would have been very simple to have communicated that to your brother Mr Hawke, or to have warned Mr Piper or at least have warned your daughter, or the authorities, whether under the guise of anonymity or not, so as to protect and prevent the happening of what had been planned.  Clearly Mr Anderson did not need to go ahead if what you say is correct because he had been paid.  Clearly Mr Hawke, who initially engaged him, and put you onto him, could have been told by you to ensure that all was called off.  It was the contract of  you both, illegal as it was.   It  needed to be cancelled.    If  you Mrs Bragger genuinely wanted nothing done, something could have been done to stop it.  I accept, however, that you may have mistakenly thought that nothing would have  been  done  and  that  you  simply  proceeded  on  the  fatal  assumption  that Mr Anderson, having taken your money, would do nothing.  But your starting point is adjusted from five years to four years.  It is a significant adjustment because of that factor.

[23]     For you Mr Hawke, I was minded to fix your starting point higher, because you could receive no discount for withdrawing from the plan.  But the Crown says you  both  need  to  be  treated  the  same.    That  is  because  in  looking  at  overall culpability yours is less than that of Mrs Bragger for a number of reasons.  As I have said, you cannot call in aid any claim to withdrawal and if  you had known or believed that nothing should happen you simply would have told Mr Anderson not to go ahead.  I do not think the texts between you and Mrs Bragger after Mr Piper was killed provide support for any claim to withdraw, which you did not.  At best all you were doing were waiting to hear whether the deed had been done and not knowing one way or the other.  But the Crown has mercifully accepted that your starting point should be the same as Mrs Bragger’s and for that reason it is fixed at four years’ imprisonment.

[24]     So that you are clear, and members of the family are clear, that is the starting point which reflects the culpability of you both for the crime.  The law now requires and I factor into the sentencing exercise what is said to be personal aggravating and mitigating circumstances.

[25]   There are personal aggravating circumstances.   There is nothing in the background that requires an uplift for previous convictions and so forth.  Discounts are required to be given to reflect mitigating those matters with less mitigating circumstances, namely matters that lessen or reduce not your culpability, but your overall  sentence.    Those  discounts  are  required  to  reflect  good  records,  your personal,  family,  social,  medical,  and  psychological  matters  that  have  been  put before me.  You both have supporting and loving families and both express remorse. Often remorse is expressed because of the predicament that a criminal finds himself to be in.   In  your case there  remains considerable antipathy felt and  expressed towards the victim’s family.   But I accept that now there is insight, an awakening and genuine remorse for what you did.

[26]     You Mr Hawke, when read the summary of facts said you agreed with them and “I accept full responsibility for my part in this horrific incident”.  Your actions Mrs Bragger after the disappearance of Mr Piper and the pretence you went through over a significant period were feigned actions to appear a desperate and innocent person and do not sit easily with claims for remorse.   But I accept that over that period you were in complete turmoil and not able to make sound judgement as to what should be done, given the enormity of events that you suddenly saw unfolding before you.

[27]     There will be factored into the discount available to you both the pleas of guilty as is required in the Supreme Court judgment in R v Hessell,[6]  in the end it being  a  matter  of  judgement  for  the  sentencing  judge  based  upon  all  the circumstances that only he or she will know about.  Separate remorse that exists is to be given some recognition.  It is often said, and I say it many times, that a sentencing exercise is not a mathematical or arithmetical process.  But it must be transparent in

the sense that the parties and the public can see the pathway by which a Judge

reaches an ultimate sentence, and that is why we now have starting points and discounts and so forth.  But in the end the sentence that is imposed must be one that properly fits a crime, which in this case is conspiracy and not the ultimate outcome, and which reflects the offenders, their background, and community’s expectations.  I am mindful that the sentencing exercise by a Court is one of justice.  As one of the victims had mentioned “justice is what is warranted”.  But justice is not vengeance. You prisoners took your form of justice in the form of vengeance.  The Court does not apply that consideration, ever, when imposing sentence.

[6] R v Hessell [2010] NZSC 135.

[28]     So, Mr Hawke, dealing with you first.  From a four year starting point there is a three month deduction for your character and good record.  That results in three years nine months.  Thereafter, a total discount of 20 per cent for your guilty plea and genuine remorse is applied.  Counsel has submitted that a discount of 40 per cent was appropriate but that is out of the question.   The result is a sentence of three years’ imprisonment which represents (if one does the maths) 25 per cent from the original starting point.   That is in line with the minimum figure required by the Crown.  What I have allowed for the discount is the most that can properly be given and the sentence is necessary to hold you accountable, to acknowledge your responsibility, denounce your conduct and deter others.  Home detention is out of the question.

[29]     In respect of you Mrs Bragger, the same process is adopted.  I take a starting point of four years’ imprisonment.  But for your claimed withdrawal it would have been considerably greater.  As I have said, you could have at least told Mr Hawke to ensure that the gangster be called off.  In interview you said to the police:

Q.     What efforts did you take Sue to stop that from occurring?

A.      I just (shakes head) I just told him, and he wasn’t gonna give me my money back and I said “well that’s fine just forget about it it’s done, Son’s apologised, you know, just forget about it”.  I mean what am I going to do, the guy’s bloody hard core isn’t he?  I wasn’t going to like you know, I just said, “just forget about it.”

[30]     But for that, the starting point would have been significantly higher.  So from the starting point of four years you receive the same discount of three months for your character and personal mitigating features, together with a concession for your

guilty plea which is 15 per cent and an additional five per cent for the remorse and shame you now feel.  So the end sentence is a discount of 25 per cent from a starting point  of four  years, namely a sentence of three  years’ imprisonment.    As  with Mr Hawke that reflects a total of 25 per cent from the starting point for all factors.  I do not think a minimum non-parole period is necessary and of course no question of home detention arises.  For a crime such as this a fulltime custodial sentence has to

be imposed.

J W Gendall J

Solicitors:

Crown Solicitor, Wellington
I M Antunovic, Wellington for Prisoner Bragger
V C Nisbet, Wellington for Prisoner Hawke