R v Breingan
[2024] NZHC 1737
•27 June 2024
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
I TE KŌTI MATUA O AOTEAROA
TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE
CRI-2021-070-000385
[2024] NZHC 1737
THE KING v
MARK DAVID BREINGAN
Hearing: 27 June 2024 Appearances:
P Lee for the Crown
D Niven for the Defendant
Judgment:
27 June 2024
SENTENCING NOTES OF WALKER J
Solicitors:
Pollett Legal Limited, Crown Solicitor, Tauranga D Niven, Barrister, Auckland
R v BREINGAN [2024] NZHC 1737 [27 June 2024]
[1] Mark David Breingan, you are for sentence for the manslaughter of Jamin Roemaata Harrison following the jury’s verdict at your trial.
[2] Before I go further, I acknowledge again members of Mr Harrison’s family - both those present in court today and those who are not. I was provided with victim impact statements before today’s hearing. I read those heartfelt and eloquent statements with care. I acknowledge the courage and dignity with which they were read today by family members, Jamin’s mother, father, and sister.
[3] Mr Harrison (Jamin) was a relatively young man, only 30 years old. He was a much-loved son, brother, and father. His family describe him as humble, hard-working, a gifted athlete, and generous to friends and whānau with a heart of gold. His loss is deeply felt by his family. Nothing the Court can say or do today can provide comfort for the loss of a loved one in these circumstances. I am also very conscious that the family have had to endure delays in the judicial process.
[4] The first step in this morning’s process is that I must summarise the facts of your offending because sentencing is carried out publicly on behalf of the community. As trial Judge I can make my own assessment of the evidence provided it is consistent with the jury’s verdict.1 My summary reflects that assessment.
[5] I will then move on to the framework for sentencing. There are two stages to this. The first is setting a starting point for your sentence. While the maximum term for manslaughter is life imprisonment, I will be sentencing you today to a determinate sentence. The second stage is to assess other relevant factors which I am required by law to consider before reaching an end sentence. That means that you will not know your sentence until I reach the end of my remarks today.
Facts
[6] Mr Harrison arrived by car at the gated entry to your semi-rural property outside of Tauranga late in the evening on 25 January 2021. He had been sent there
1 Section 24(1)(a); and Edwardson v R [2017] NZCA 618 at [105]–[107], citing R v Connelly [2008] NZCA 550 at [14] and B (CA58/2016) v R [2016] NZCA 432 at [76].
by a Rebels gang leader, probably to facilitate contact between you and the gang leader. There is no evidence to suggest that Mr Harrison intended you any harm. There is no evidence that he knew what had gone down that morning at your property. This is apparent by the relaxed way in which he approached the gate, called out and waved into the CCTV camera. Mr Harrison was simply a pawn of the individual pulling the strings behind the scenes, unaware that earlier that day that same person had orchestrated a savage beating of you, your partner, and another family member at your home.
[7] That assault in the morning was a catalyst for what followed though Mr Harrison was not connected with it. I will not recount the assault in detail. It is enough to say that it was only by chance that you were not killed that morning after a carload of gang associates drove onto your property. You suffered severe physical injuries including being impaled by a steel rod in your shoulder close to the artery in your neck. Your partner and another family member were also viciously assaulted. That beating abruptly came to an end when the family member managed to escape and call for help from a neighbour’s home.
[8] A neighbour called police to your home when alerted to that assault. You were not particularly co-operative with police, in part probably because the assailants that morning had warned you not to call them. You thought police involvement would make matters worse. You were also traumatised after the beating. You made statements to the police along the lines that you would be “sorting it” yourself using your own channels “if they come back”. That could have meant many different things. It did not necessarily mean that you intended some form of vigilante action. It seemed however that you had no confidence in the police’s ability to protect you and your family at your property given its semi-rural nature.
[9] You were taken to Tauranga hospital but discharged yourself prematurely. You and your partner returned to your property. You or your partner arranged to install new CCTV security devices. Two firearms were left at your property. You have not revealed the source of the firearms, but it is reasonable to infer that this was at your request, or at the very least with your approval. You do not hold a firearm’s licence.
[10] Your partner was the first to see Mr Harrison’s arrival that night on the CCTV monitor. Although Mr Harrison had not been there earlier that day you said you recognised him as someone who hung out with Rebel gang members – including the gang leader who set up the beating. You did not know for sure how many people were there with Mr Harrison. Your partner was terrified that the assailants were back. She told you that she thought she saw that Mr Harrison had a gun. In fact, he was unarmed.
[11] You moved swiftly. You checked the CCTV monitor, armed yourself with a loaded Castellani 2-gauge shotgun, turned on a floodlight and moved up to the tree line of your property towards the gate and Mr Harrison. There was some evidence at trial that you were yelling, telling Mr Harrison to leave. Within about three seconds of arriving at the tree line you fired one shot down the strip along the tree line – a distance of about 23 metres.
[12] Of the nine shotgun pellets discharged from the firearm, seven struck Mr Harrison.
[13] The car that had brought Mr Harrison reversed back down the driveway. You realised that you had hit someone. You and your partner, by that time talking to emergency services, tried to give first aid. There was confusion about how to help as emergency services relayed instructions.
[14] The lights of another car approached down the driveway. You panicked, scared that it was Rebels gang members. You and your partner both ran back to the dwelling. You removed the hard drive of the CCTV system and then ran in the dark (still with the firearm), over rough terrain and scaling a fence, to a neighbour’s home You were talking to police. You remained at the neighbour’s home until police arrived. You and your partner followed police instructions to the letter. You answered questions put to you by police. Once one noticed that you were bleeding heavily, you were taken back to Tauranga hospital.
The charge
[15] You were charged with murder. The Crown’s principal contention was that when you shot Mr Harrison you may not have intended to kill him but intended to cause him very serious injury knowing there was a risk that Mr Harrison may be killed.
[16] The jury were not satisfied that you had murderous intent and acquitted you of murder.
[17] The alternative charge of manslaughter was left to the jury on the grounds that even if you did not have murderous intent, you deliberately fired the gun which killed Mr Harrison. That was an unlawful act. You accepted that you were responsible for firing the shot. At trial, your defence was that you fired a warning shot in self-defence believing that a Rebels gang member or members had returned to your property to finish you off.
[18] Expert evidence on your behalf established the possibility that, when you fired the weapon, you were operating under acute stress disorder because of the assault that morning. Such a disorder can affect perception by altering someone’s sense of reality and impairing judgment and processing ability. In short, priming someone’s nervous system to over-react to stimulus.
[19] That raised the possibility that although Mr Harrison in fact was unarmed and did not pose a threat to you, you genuinely believed there to be a real threat because of a combination of the physical and psychological injuries you suffered that day and all the surrounding circumstances.
[20] I agree with your counsel that the jury in this case accepted that you had acted in self-defence, as defined in law. However, a majority of the jury were satisfied beyond reasonable doubt that firing a weapon in the direction of Mr Harrison down the dark and narrow passage was not reasonable, even in the circumstances that you mistakenly believed them to be.2 In other words, that the action you took was excessive self-defence.
2 This is based on the questions the jury returned with during deliberations. Notably the jury verdict was a majority verdict of 10-1, one juror having been dismissed during the proceeding.
[21]That is the basis on which I will sentence you today.
Your personal circumstances
[22] You are 55 years old with no relevant criminal history, merely historical, low-level offending which has no bearing on the matters before the Court today.
[23] However, at the time of these events, you were on electronically monitored (EM) bail facing drug charges. Some but not all of those charges have since been resolved without conviction.
Provision of advice to the Court report
[24] You were interviewed for the purposes of sentencing, and I now turn to that. You were open with the interviewer providing the Provision of Advice to Courts (PAC report). You expressed remorse and sadness at the loss of life. The report writer says you have struggled to come to terms with the outcome of the events that night. You claimed not to have any involvement with gangs but acknowledged some social interaction with the gang member who orchestrated the beating of you, your partner, and your family member that day. You earlier told police that you had recognised the assailants that morning as being associated with that gang member. It is more than likely that you minimised the extent of that social or other relationship to the report writer.
[25] The report writer described you as struggling to regulate your emotions at the interview. This is consistent with the remarks of a forensic psychologist, Dr Caleb Armstrong, who prepared a report for sentencing and had earlier given expert evidence at your trial.
[26] The report writer records that you said you never meant to kill anyone, and regarding Mr Harrison you said: “he has a family, he is someone’s son, and I did that… I just wanted them to go away.”3
3 Report of Dr Caleb Armstrong dated 7 June 2024.
[27] The PAC report writer assessed you as having a low likelihood of reoffending but that your risk of harm to others given the nature and circumstances around this offending is high. At first read, that appears contradictory, but on reflection it can be reconciled. It is likely that the risk in the immediate aftermath of the assaults on the day in question has, and will continue to be, abated by the distance of time from those events, provided there is psychological intervention as part of rehabilitation.
[28] Correspondingly, Dr Armstrong’s report addresses the potential risk that your mental disorder presents to you and any risks that it presents to others, along with identifying steps to manage or mitigate those risks.
[29] He concluded that your mental disorder presents little predictable risk to you and low risk to those people around you whom you know. He says that an unmodifiable factor is an elevated risk for violent offending by virtue of the nature of your conviction. He says that this sort of trauma response can be mitigated by appropriate treatment for post-traumatic stress disorder (PTSD) and adds that you already have considerable insight into risk mitigation strategies.
[30] Finally, there is a cultural background report prepared under s 27 of the Sentencing Act prepared by an experienced sociologist. This provides a candid insight into your background which, in material respects is remarkable only for being that of an ordinary and typical family. You have good family support. Your fiancée has written to the Court expressing her unwavering support for your rehabilitation. I pause to note that she also writes of her immense regret at Mr Harrison’s death.
[31] You have been employed most of your life. That has included running and operating various businesses. You say you have a strong relationship with your children and partner. That is, there is nothing which suggests any causal connection between your background and your offending. In that sense it tends to support the relevance of the diagnosis of acute stress disorder to the actions you took that day which led to such tragic consequences.
[32] I note the report writer records your stated willingness to engage in restorative justice with Mr Harrison’s whānau if it is something that they think would help.
Principles and purposes of sentencing
[33]I now turn to the sentencing process.
[34] The law requires that I have regard to the relevant purposes of sentencing set out in the Sentencing Act 2002 (the Act). Relevant purposes for today’s sentencing are the need to hold you accountable for what you have done, to promote in you a sense of responsibility for the harm caused, to denounce your conduct and deter similar offending and to assist in your rehabilitation and reintegration.4
[35] The sentence I impose must reflect the gravity of your offending including your degree of culpability, the general desirability of consistency with similar sentencing decisions, and the need to impose the least restrictive sentence appropriate in the circumstances.5
[36] The first step is to set a start point. The second step is to consider any matters personal to you which must be considered in arriving at an end sentence.
[37] The Crown suggests a start point of between six to seven years’ imprisonment but at the higher end of that range. It says this is appropriate based on the following aggravating features of your offending:
(a)Use of a loaded firearm.
(b)Some moderate premeditation because you had armed yourself with a loaded shotgun and moved closer to Mr Harrison standing at the gate.
(c)Serious injury and violence resulting in Mr Harrison’s death.
(d)An element of vigilante action by “sorting it” yourself and using your own channels rather than calling police.
(e)Your possession of the firearm was unlawful.
4 Sentencing Act 2002, ss 7(1)(a), 7(1)(b), 7(1)(e), 7(1)(f) and s 7(1)(h).
5 Sentencing Act 2002, ss 8(a), 8(e) and 8(g).
[38] The Crown also says that excessive self-defence is not available because you were not under any actual threat from Mr Harrison. Rather, the Crown submits that the appropriate way to deal with your fear and the impact of acute stress disorder should be at stage two of the sentencing process. For the reasons already discussed, I do not agree with that approach. While I accept on the material before the Court that there was no actual threat, your perception of a threat arising primarily from the earlier assault and your resultantly disordered mind, was a relevant circumstance of your offending going to your culpability. I accept your counsel’s submission that to divorce those matters would be artificial.
[39] Your counsel suggests a maximum starting point of six years’ imprisonment based on guidance from comparator cases but submits that a lower start point would also be in range.
[40] There is no recognised tariff or guideline case for manslaughter because the circumstances and seriousness of manslaughter offending vary greatly.6 Instead the Court of Appeal recommends having regard to comparable cases and to a case called R v Taueki, if relevant.7 Taueki is however a decision for sentencing for grievous bodily harm offending and I do not consider it relevant.
[41] I have approached the sentencing task primarily by reviewing all the cases that the Crown and your lawyers have put before me for comparison, along with others. I do so, as I say, because I consider the Taueki factors are not particularly useful in the circumstances of your offending. Nonetheless, had that case been a relevant cross-check, I would place the offending in the middle of band 2 with a starting point of between six to seven years.
[42] I am not going to here set out the detail of all the cases but limit my discussion to those which are most pertinent. I will however note the cases in the written record of my sentencing notes.8
6 R v Edwards [2005] 2 NZLR 709 (CA) at [14].
7 R v Taueki [2005] NZCA 174, [2005] 3 NZLR 372; R v Tai [2010] NZCA 598 at [12] and Murray v R [2013] NZCA 177 at [27].
8 R v Fore [2021] NZCA 28; R v Christie [HC Gisborne] (CRI-2003-016-6522, 28 October 2004); R v Flavell [2014] NZHC 3373; Hohua v R [2022] NZCA 551; R v Hohua [2021] NZHC 1242; R v McKee [2017] NZHC 2286; R v Kirk [2016] NZHC 1249; R v Pira HC Rotorua CRI-2006-063- 000329, 13 December 2006; Wang v R [2014] NZCA 251; R v Te Heuheu [2023] NZHC 506;
[43] The taking of a life is always a serious matter. I consider the relevant circumstances which inform the setting of a start point to be the following:
(a)Manslaughter involving firearms is inherently serious.
(b)Mr Harrison, while not involved in the assaults that morning had some social association with the Rebels gang, and you knew this.
(c)You genuinely believed yourself and your partner to be under threat and deliberately discharged the firearm, but you did not intend to kill or even harm Mr Harrison. The result was unintended.
(d)Your perception of threat was a result of your hypervigilant state from the acute stress of the injuries you suffered that morning.
(e)You took a loaded firearm and moved closer to Mr Harrison rather than backing away or staying put.
(f)You deliberately discharged the firearm – in other words it was not a reflexive firing – but your decision-making was significantly impaired by the acute stress disorder.
(g)Discharging the firearm in the direction of Mr Harrison down that narrow passage in the dark was grossly reckless when you knew he was out of the car and only about 23 metres away.
(h)On realising that you had injured Mr Harrison, you and your partner immediately tried to administer CPR, calling emergency services for help.
Jeffries-Smith v R [2020] NZCA 315; R v Harnwell [2021] NZHC3409; Griffin v R [2019] NZCA 422; R v Sellick [2023] NZHC 743; R v MacDonald [2021] NZHC 224; R v Dodd [2018] NZHC
343; R v Hepi [2015] NZHC 1449.
.
(i)You only stopped your efforts to aid Mr Harrison when you feared for your safety after seeing the lights of another vehicle moving down your driveway.
(j)You removed the CCTV material. Your motivation to do so was not clear but you or your partner subsequently told police where to find it after it was discarded.
[44] The concept of “excessive self-defence” is a mitigating factor where a party has acted out of self-defence but gone too far.9
[45] As you heard me indicate, comparable cases play an important role in setting a start point. The purpose is to attempt consistency in the start point of sentencing. I add that although the circumstances of your offending are different from many of the comparator cases in that there was no actual threat, the circumstances as you believed them to be remain relevant because it is your culpability which is material. In other words, I have not lost sight of the fact that Mr Harrison did not threaten you and he was unarmed.
[46] In R v McKee10 the defendant went to the address of a friend with a loaded .22 calibre pistol in his bag. The defendant saw the victim sleeping in a car in the friend’s driveway. There is no suggestion that he had known the victim would be there but there was historically bad blood between them. He woke him up. There was an altercation. The defendant attempted unsuccessfully to withdraw from the situation. At some point, the victim advanced on the defendant who drew the pistol and fired reflexively. The bullet hit the victim in the abdomen.
[47] The sentencing judge held that the defendant had intended to inflict a non-fatal injury or fire a warning shot. There was no premeditation. The defendant was sentenced based on excessive self-defence. Aggravating factors were that the defendant had taken a loaded firearm to a home and deliberately fired it when he could have turned and run in the face of the perceived threat. Materially too, he had provoked that threat. The starting point was seven years and six months.
9 R v Taueki, above n 7 at [32](b).
10 R v McKee [2017] NZHC 2286.
[48] In R v MacDonald11 the victim sent hostile messages to Mr MacDonald’s partner and then showed up unarmed at Mr MacDonald’s house the next day. Importantly the hostile messages were not necessarily seen by the partner or Mr MacDonald. A neighbour heard the victim yelling to be let in. Before he answered the door, Mr MacDonald armed himself with a loaded sawn-off pump action shotgun stored in the hallway. There was an altercation. The two men tussled. The gun discharged and hit the victim at very close range in the upper leg. Mr MacDonald’s partner called an ambulance and attended to the victim while Mr MacDonald left and tried to hide the shotgun with an associate.
[49] Initially Mr MacDonald maintained that the shooting was accidental. He later admitted he may have intentionally pulled the trigger out of fear and panic. The victim was the initial aggressor having come to the property in anger. Excessive self-defence was held to have lowered the seriousness although the Court stood back and looked at the overall circumstances. The starting point adopted was six years and six months.
[50] There are obvious differences but also similarities. In MacDonald, the victim arrived at Mr MacDonald’s house and an actual physical alteration took place. But the fact of Mr MacDonald arming himself in the first place was similarly a disproportionate response and the shotgun was discharged at very close range. Mr MacDonald’s actions afterwards were also part of the overall picture. He did not assist and instead was preoccupied with concealing his involvement.
[51] The background to the case of R v Dodd12 was a gang dispute over a car. The defendant was not a gang member, but his brothers were. After a “taxing” incident where one brother’s family home was visited by gang members in the early hours of the morning to recover the car and shots were fired, Mr Dodd grabbed a shotgun and rushed to his brother’s home. He had understood that the gang members were still at his brother’s address and the family was in danger.
[52] The gang members had in fact left but, after driving around, Mr Dodd noticed the vehicle at issue parked outside an address. From some considerable distance, he got out of his car with the loaded shotgun. He could see gang members on the
11 R v MacDonald [2021] NZHC 224.
12 R v Dodd [2018] NZHC 3432.
driveway despite poor light. He was aware they were likely armed given what had earlier occurred. There was a verbal confrontation. Those on the driveway taunted Mr Dodd who saw someone with a firearm coming towards him. He raised his gun to hip-height, fired one shot in the general direction of the driveway and sped off. The fired shot hit and killed one of the men. Mr Dodd evaded capture by police for five months. On arrest, he told police the shot was intended to be a warning shot and he did not anticipate he could have hit someone from approximately 100 metres away.
[53] The Judge there considered that there was no significant premeditation. Mr Dodd had armed himself on learning that his brother was under attack and raced to his aid; firing the weapon was a spur of the moment decision. The Judge imposed a starting point there of five years and nine months.
[54] The key differences in that case were that the shooting was from a considerable distance where the risk of harm was less obvious, and it occurred in the face of someone advancing with a firearm. Like your offending, Mr Dodd chose to arm himself in response to perceived acts of hostility. Mr Dodd’s view was obstructed by foliage, and he intended to pull the trigger. His motivation that night was anger and frustration because of the events earlier. By comparison, your motivation was borne of hypervigilance to protect yourself and your family and, unlike Mr Dodd, you had not left your home to go searching for anyone. The degree of premeditation in your situation was therefore even slighter in comparison. It was a spur of the moment, impaired decision.
[55] Your counsel submits that the case of R v Hepi is informative. In that case, a very young offender armed himself with a knife in the middle of a gang related melee and standoff. He did so to intimidate others. After an exchange of punches, Mr Hepi stabbed the victim once with such force that the victim died instantly. The starting point was six years. There were some aspects of that offending which were more serious than your offending, but there was also some contributory conduct by the victim.
[56] I consider that your offending was not as grave as the case of McKee. It was closer to the circumstances in Dodd save that you fired the shotgun at a much closer distance, albeit predominantly out of fear rather than anger. Firing a shotgun from
23 metres in the direction of someone requires a sterner response. The case of
MacDonald provides some comparison, as does Hepi.
[57] Taking all of the relevant factors into account, I have concluded that the appropriate starting point is six years and three months’ imprisonment.
Personal aggravating factors
[58]The Crown accepts there are no personal aggravating factors.
Personal mitigating factors
[59] The evidence shows that as soon as you realised you had shot Mr Harrison, you and your partner tried to assist him. Your partner called emergency services. You were intent on trying to do something to help him. You co-operated with emergency services and with police. You only left Mr Harrison when car lights appeared at the end of your drive and you and your partner ran away, fearing for your lives.
[60] The first trial took place in March 2023. The jury were discharged when they could not reach a decision. You offered to plead guilty to manslaughter both before the first trial and before the second trial. This is consistent with taking responsibility for Mr Harrison’s death.
[61] Credit for the offer to plead guilty to a lesser charge of manslaughter is available even though you denied responsibility for manslaughter during the trial.13 The offer to plead guilty was vindicated by the verdict of the jury. You are entitled to a deduction to reflect this offer. I consider that a 15 per cent deduction warranted and consistent with other cases. I note that the Crown responsibly takes no issue with that.
[62] You were remanded in custody on 25 January 2021, spending approximately four months and six days in custody. You were then granted EM bail on 31 May 2021. You were on EM bail between 31 May to 17 June 2021, but re-called into custody following a successful Crown appeal. You have been remanded in custody since 17 June 2021. That time in custody is not a matter for me to consider in calculating
13 R v Jamieson [2009] NZCA 555 at [44].
your sentence because it is accounted for by Corrections. However, it does mean that you have not been able to take advantage of rehabilitation programmes while on remand or even to obtain the full intervention required to deal with the post-traumatic stress of the assault on you.
[63] The time spent on EM bail subject to restrictive conditions sometimes requires recognition. Equivalence is not a required or even standard approach, and deductions are usually modest depending on the terms of EM bail.14 As the 17 days spent on restrictive EM bail conditions is such a limited time, I do not propose to make any deduction.
[64] The most important mitigating factor to consider is the acute stress disorder following the traumatic events on the morning of the offending. That had the single most important causative impact on your offending.
[65] The interconnectivity between the stress disorder and your offending is much closer than in the case of Hohua v R15 which has been cited to me by both the Crown and your counsel. Your instinctual reaction that night reflected the disordering effect. I accept that this warrants a deduction in line with the case authority. The more difficult exercise is to ensure that there is no operative double-counting through the consideration of this as a factor in the self-defence analysis. This is because I have considered excessive self-defence at the starting point and there is a relationship between this and the impact of your disorder.
[66] To avoid this, I approach this question based on a holistic overview of the cause of offending and the impacts of a custodial sentence on you including the lack of effective rehabilitative intervention available during the remand period. Your counsel presses for a deduction of 25 per cent. The Crown acknowledges a reduction of up to 25 per cent could be appropriate but I apprehend this position reflects their approach to the starting point, which I have not accepted. You have good prospects of rehabilitation, but only if you steer clear of the kind of people who, in the background to this offending, orchestrated your assault.
14 R v Parata [2017] NZCA 48 [10]–[13].
15 Hohua v R [2022] NZCA 550.
[67] Considering all these factors, I assess that a reduction in your sentence of 20 per cent is warranted.
[68] The Crown does not suggest that the fact that you were on electronically monitored bail at the time is an aggravating feature of offending. In the present circumstances, I agree. The reason that you had a loaded firearm was self-preservation. You had not left the property in breach of bail conditions.
[69] Your counsel submits that other factors should reduce your sentence. He says that for policy reasons there should be a discrete discount for the assistance you gave to Mr Harrison immediately after the shooting and for your co-operation with the police and other emergency responders.
[70] I regard this submission as indication of remorse which is an accepted mitigating factor. I accept that you are genuinely remorseful as opposed to merely regretful for your own situation. All the evidence and your consistent expressions of remorse make this clear. You are prepared to engage in restorative justice if that would help Mr Harrison’s whānau. I accept therefore that there should be a deduction.
[71] I do not agree that there should be a discrete discount for the assistance given to Mr Harrison because that is also part of my starting point analysis. Nor should there be a deduction for your cooperation with police and emergency services. While your actions afterwards show you in a better light than many in other cases and there is a strong public interest in encouraging offenders to engage with the authorities, I consider these factors have already been factored into the circumstances of your offending.
[72]The discrete deduction for remorse is five per cent.
Minimum period of imprisonment?
[73] Section 86(2) of the Sentencing Act 2002 provides that the Court may impose an MPI if satisfied that a one-third period of imprisonment prescribed by the Parole Act 2002 is insufficient to hold an offender accountable, denounce his conduct, deter
him and others from committing the same or similar offences and to protect the community.
[74] The Crown does not seek a minimum period of imprisonment (MPI). I agree that it would not only be unnecessary but would be inappropriate in this case.
End sentence
[75] Following a starting point of six years and three months’ imprisonment and the mitigating factors personal to you which I am required by law to take into account, I will sentence you to an end sentence of three years and nine months. Mr Breingan, please stand.
[76] On the charge of manslaughter, I sentence you to three years and nine months’ imprisonment.
[77] I also record that the matters raised in the report of Dr Armstrong are very important for your rehabilitation. I record that you do not take issue with any of the release recommendations made by the PAC report writer. Those are matters for both the Parole Board, who will be asked to consider parole, and Corrections on your release. However, I direct that Dr Armstrong’s report and recommendations be provided to Corrections to enable review for those purposes.
[78] Whilst I acknowledge the reasons why the Crown applies for destruction orders for the firearm and CCTV material, I decline those applications for procedural reasons. Any material on the Court file should be retained on the Court file. Any application by media for access to the Court file should be referred to a Judge. That concludes my sentencing remarks, please stand down.
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Walker J
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