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R v Breingan

R v Breingan

Case [2024] NZHC 1737 27 June 2024

Criminal Liability

Excessive Self-Defence

Use of Deadly Force

Acute Stress Disorder

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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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Breingan

Details

AGLC: R v Breingan [2024] NZHC 1737
Case: [2024] NZHC 1737
Decision Date: 27 June 2024

CaseChat Overview and Summary

In the High Court of New Zealand, Mark David Breingan was sentenced for the manslaughter of Jamin Roemaata Harrison, following a jury verdict. Breingan was acquitted of murder but found guilty of manslaughter. The court detailed the tragic circumstances leading to the incident, where Breingan shot Harrison under the belief that his property was under threat from gang members. Breingan had been severely beaten earlier that day, leading to acute stress disorder, which impaired his judgment.

The legal issues centred on whether Breingan's actions constituted excessive self-defence and the appropriate sentencing for manslaughter. The court examined the principles of sentencing, considering the gravity of the offence, the use of a firearm, and Breingan's state of mind. The court also weighed personal mitigating factors, including Breingan's cooperation with authorities and his expressions of remorse.

After reviewing comparable cases and the unique circumstances, the court determined a starting point of six years and three months’ imprisonment. Mitigating factors such as Breingan's immediate attempt to aid Harrison, his offer to plead guilty, and his remorse led to a deduction, resulting in a final sentence of three years and nine months’ imprisonment. The court emphasized the importance of Breingan's rehabilitation, particularly addressing his post-traumatic stress disorder, and directed that relevant reports be provided to Corrections for parole consideration.

Orders