R v Brider
[2023] NZHC 56
•1 February 2023
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2023-009-580
[2023] NZHC 56
THE KING v
JOSEPH JAMES BRIDER
Hearing: 1 February 2023 Counsel:
C J Boshier for Crown
J R Rapley KC and D M Kirby for Defendant
Judgment:
1 February 2023
SENTENCING REMARKS OF EATON J
[1] Mr Brider, you may remain seated until I complete my sentencing remarks. I will then ask you to stand at the conclusion of my remarks when I will formally impose sentence upon you.
[2] Joseph James Brider, you appear this afternoon for sentence having pleaded guilty to the murder and sexual abduction of Juliana Bonilla-Herrera and to breaching prison release conditions.
[3] Ms Bonilla-Herrera was a Colombian woman who had been living in New Zealand for about 10 years. She was a New Zealand resident. Her family reside in Colombia. They are represented in Court today by a number of her friends. I again acknowledge those friends present here in Court and I acknowledge Ms Bonilla-
R v BRIDER [2023] NZHC 56 [1 February 2023]
Herrera’s mother and her sister and other family members who have joined this hearing remotely from Colombia. I hope the family and the friends of Ms Bonilla-Herrera understand that the sentences which I am about to impose are not intended to, and could not possibly, compensate you, those persons most deeply affected by her murder, for what Mr Brider has done, nor could the sentences adequately recognise the harm, Mr Brider, that you have caused.
The facts
[4] In sentencing an offender, the Court is engaging in an important public function. It is an essential component of any sentencing that the facts of the offending are referenced in open court. And because this case was resolved short of a trial by Mr Brider’s guilty pleas, the facts that I am going to refer to are taken from the prosecution summary of facts, albeit supplemented by additional information that has come to light during the preparation of reports for the sentencing. The summary of facts is an extensive document. Its contents have been previously widely publicised. I will describe what I consider to be the essential facts of your offending.
[5] I think we all know that the facts of this case are distressing so if anybody would rather not hear the facts then I invite you to leave the Court and the security officers can call you back in again when I have finished referring to them.
[6] In the small hours of 22 January 2022, you broke into the house of your neighbour, Ms Bonilla-Herrera. You abducted her, and then you murdered her in her own home.
[7] She had been your neighbour since 10 November 2021 when you were released from prison on release conditions. One of those conditions was that you not leave your parole address between the hours of 9 pm and 6 am. In the nine weeks that you lived next door to Ms Bonilla-Herrera, it seems that you had barely spoken with her, but what we now know is that she had spoken about you. She had told a friend that she felt threatened by her new neighbour. She had told another friend, who had been living at her address, that she felt worried about the new neighbour in Flat 3, that he gave her a bad feeling, and that she felt she was being watched. She had told a third friend that when she got up to go to the gym at six o’clock in the morning, her
neighbour would get up and watch her, and that she was worried. She told her best friend that when her partner had moved out of her address, she was worried about living by herself as she was deeply concerned for her safety. She was worried about you.
[8] Those concerns were being expressed by her to her friends right up until the evening when you killed her.
[9] Although you had not spoken, it seems, directly with Ms Bonilla-Herrera, it is clear from the Police investigation that almost immediately after having moved into the adjoining flat, you took an unhealthy interest in her. On 17 November 2021, just one week after your release from prison, you conducted an internet search for “Colombia Lady”. On 8 December 2021, you purchased two rolls of distinctive yellow masking tape. On 24 December 2021, you searched Ms Bonilla-Herrera’s name on both Facebook and Google. On 18 January 2022, you purchased a box of condoms. On that same day you purchased a pair of textured latex gardening gloves, and on 19 and again on 20 January 2022, you again searched Ms Bonilla-Herrera’s name on Google.
[10] On the evening of Friday 21 January 2022, you started searching pornography just after 6 pm. Those searches were concluded shortly before 8 pm, but again between
9.40 and 9.45 pm you searched for online pornography. That gives some insight as to your state of mind at that time.
[11] At about 10.10 pm on that evening, 21 January, Ms Bonilla-Herrera returned to her flat from an evening out with a friend. She had arranged a 6 am bike-ride with another friend for the following morning. When she arrived home, she saw you sitting on your flat’s porch. This was consistent with her prior experiences of you continuously watching her. She felt uneasy. She asked her friend to drive up the driveway to her flat and to wait until she had gone inside before leaving. Ms Bonilla- Herrera was then home alone.
[12] You waited about another two hours before you broke into her flat. One of the many distressing features of this case is that Ms Bonilla-Herrera had a sleep app on
her phone which automatically recorded noise made during the night. That sleep app was triggered and commenced recording at 12.32 am on 22 January 2022. I have listened to that recording. What then transpired is reflected in the audio recording and is otherwise discernible from the forensic evidence.
[13] You entered Ms Bonilla-Herrera’s bedroom, immediately telling her to shut up and threatening to cut her throat. It is clear to me that you were then armed with a knife. She screamed loudly and an audible struggle ensued. She was crying. She was repeatedly begging for her life. In response, you repeatedly threatened to cut her throat if she would not comply with your directions. Two minutes into the recording you told her to open her mouth and “put it in”. You ripped off a piece of her bedsheet. You then tied that around her head. You blindfolded her. You repeatedly and aggressively instructed her to roll onto her stomach and to put her hands behind her back. You forcibly removed her nightwear. You have since said you cut her clothes from her body. Her ripped and bloodstained clothing was found on the floor of her bedroom. The sound of masking tape being unspooled is heard five minutes into the recording. You taped her hands together, bruising both her wrists. You used the same yellow masking tape you had purchased back on 8 December 2021. A ball of that tape was found in Ms Bonilla-Herrera’s left palm.
[14] Eight minutes into the recording is the sound of three punches or blows. Police found blood spatter on the bedsheets. That 10 minute recording concludes with you asking Ms Bonilla-Herrera if she is going to behave. She is still begging you for her life. You then told her to stand up and lie over your shoulder. There is a banging sound, Ms Bonilla-Herrera can be heard groaning in pain and the recording finishes with her asking, “where are you taking me?”
[15] Mr Brider, the intensity of the violence that you inflicted in Ms Bonilla- Herrera’s bedroom is reflected in the bed having been moved away from the wall during the attack. It is reflected in the heavily bloodstained pillow that was found on the floor between the head end of the bed and the headboard. There was extensive bloodstaining on the bed, including fingerprint drag marks left in blood, indicating that Ms Bonilla-Herrera had attempted to escape but been dragged back across the bed.
Your semen was found on the top bedsheet of the bed in a large circular deposit. It was also found on a fitted bedsheet.
[16] What is clear is that you carried Ms Bonilla-Herrera into the lounge of the address. You put her onto the couch. The forensic analysis indicates that you then straddled her. Your bloodied handprints were located on the couch, left as you knelt over her.
[17] But, exhibiting extraordinary bravery and determination, Ms Bonilla-Herrera continued to fight back throughout your attack. That is clear from the scene that the police discovered. Furniture was knocked over. We know Ms Bonilla-Herrera managed to pull down the makeshift blindfold and break the tape around her wrists. She tried to run from you. She was literally running for her life. However, you caught her in the area of the toilet, and it was there that you stabbed her multiple times about her body and in her chest, penetrating her heart. She had to tried to fight you off, she suffered significant defensive wounds on her arms. But you had stabbed her in the chest. And then you drew the knife in a downwards direction, opening her stomach, exposing her internal organs from just below her breasts down to her pubic bone area. Ms Bonilla-Herrera died in the doorway between the kitchen and the lounge of her own flat.
[18] The Police scene examination found bloodstaining in the bedroom, the hallway, and lounge, as well as significant amounts of blood in the toilet. The toilet seat had been broken and was on the floor. The cupboards and drawers in the kitchen, bathroom and bedroom were all open. Impressions in blood similar to the pattern of the latex gloves that you had purchased on 18 January 2022 were found inside her flat. You now admit that you were wearing those gloves throughout.
[19] The cause of death was multiple stab wounds. Forensic examination by a pathologist confirmed that Ms Bonilla-Herrera suffered 29 sharp force injuries and 51 blunt force injuries. The sharp force injuries were a consequence of your knife attack, the blunt force injuries reflecting your repeated punching of her about her head, face and body. She had sustained terrible defensive slicing wounds to both hands, stab wounds to her arm that went completely through one side and out the other, stab
wounds to her leg and multiple stab wounds to her torso, including the fatal stab wound that punctured her heart. She was found unclothed but for a sock on her left foot.
[20] You left her flat and returned to your own flat next door. You made attempts to conceal your involvement in the murder by showering, washing your clothes and disposing of items used during the murder. The GPS monitoring from the ankle bracelet you were wearing as a release condition confirms that you left your flat at
1.21 am, returning three minutes later at 1.24 am before leaving again at 1.29 am and returning at 1.33 am. It seems you took a black bin liner from a council bin during one of those trips. You left the address again at 4.18 am and disposed of incriminating items in the Heathcote River. The knife that you used has not been located. Neither has Ms Bonilla-Herrera’s new Garmin Smart Watch and another personal item. You purchased bleach and dishwashing liquid. You washed the footpath outside your flat. The Police found condoms in a red rubbish bin belonging to your address. One of those condoms contained Ms Bonilla-Herrera’s DNA.
[21] At 6 am the following morning, Ms Bonilla-Herrera did not arrive at a pre- arranged location for her morning bike-ride. Her friend biked a short distance to her flat and knocked on the door. You were outside your flat and spoke to that friend, suggesting that she must still be asleep.
[22] Throughout the day, attempts were made to make contact with Ms Bonilla- Herrera with no response. At around 9 pm, friends met at her address and phoned police before entering and found Ms Bonilla-Herrera naked, as I have described, in the position where she had died.
[23] When you were ultimately arrested and spoken to by the police, you said you just wanted to complete the court appearance, go to jail, and do your 20 years. You later corrected yourself to say: “It’ll probably be 30 or 40 years actually.”
Victim impact statements
[24] Mr Brider, just looking around the court, at the care and love for Ms Bonilla- Herrera, and hearing the victim impact statements this afternoon, I hope you understand the impact that your offending has had on others has been so profound.
[25] Prior to today I had received and carefully considered the victim impact statements from Ms Bonilla-Herrera’s mother, from her sister, from her close friend, Siva Prasad, and I had viewed the Truescape compilation DVD from workmates who were all such close friends of hers. What is abundantly clear is that your offending has caused so much pain, so much grief, and so much distress to so many people. The devastation caused to Ms Bonilla-Herrera’s family, who believed she was safe and secure in New Zealand, is incalculable.
[26] Juliana is remembered by all those who came into contact with her as a vibrant, fun-loving, joyful woman who cared deeply about her family and friends. She was compassionate, she was loyal, she was enthusiastic, she was creative and loved by all.
[27] Plainly, no sentence I can impose will heal the suffering and pain of her family and friends. I can simply acknowledge that this offending caused immeasurable harm to so many and I thank those who have provided the victim impact statements.
Personal background
[28] I have the benefit of a pre-sentence report and two psychological assessments providing relevant information on your personal background, your criminal history, prior efforts at your rehabilitation. Those reports detail assessments of the on-going risk that you pose to others, and in particular to women in our community.
[29] There is some inconsistency in the reports about exactly what happened to you as a child. I am prepared to accept that you suffered abuse. What is clear is that you began using substances at age 13. You left school for employment in farming aged 16 and then you followed the path that is all too familiar with people who appear in this Court. Within a short time you were drawn to the Mongrel Mob gang and you describe feelings of acceptance within that gang. Your criminal history commenced with minor driving offending as a 17-year-old in 2003. You have offended with reasonable frequency since then.
[30] Prior to 2010, your convictions related to dishonesty, multiple burglary convictions and driving offending. In 2011, you were convicted for male assaults female. In 2014, you were convicted of very serious sexual and violence offences.
You were sentenced to seven years, nine months’ imprisonment for rape, abduction for sexual connection, injuring with reckless disregard and unlawful sexual connection.
[31] You were released from that sentence on parole on 10 November 2021, which was a date very close to your release date. It really was inevitable that you had to be released in advance of your release date. On release, you were provided with extensive support, including accommodation, employment, and regular contact with a support worker and with a probation officer.
[32]You murdered Ms Bonilla-Herrera just nine weeks later.
[33] There is a consistent theme in the reports that I have referred to. That theme is you lack empathy, you have an inability to manage impulse and you have a tendency to exert control through violence.
Principles and purposes of sentencing
[34] In determining the appropriate sentence, I must consider the purposes and principles as they are outlined in our Sentencing Act 2002. The critical considerations are the need to denounce your offending and to hold you accountable for the extreme harm you have caused. The sentence I impose is intended to promote a sense of responsibility in you for causing that harm. There must be a strong element of deterrence, although that is perhaps less meaningful as regards offending by you personally because you have not been deterred by a lengthy sentence of imprisonment in the past, but deterrence in the sense of hope that the sentence might deter others who might act similarly. A very important consideration is the protection of the public.
[35] The sentence I impose on you must be consistent both in kind and length with those imposed on others who have offended in a similar way. I must consider the gravity of your offending and your personal culpability.
Murder
[36] I will deal firstly with the appropriate sentence on the charge of murder. In any case where an offender has been found guilty of murder, a sentence of life
imprisonment must be imposed unless it would be manifestly unjust for that to occur.1 That exception does not apply in your case.
[37] It is important to recognise that a sentence of life imprisonment will mean that you will spend the rest of your life in prison, and you may only be released if the Parole Board is satisfied that you no longer pose an undue risk to the safety of the community. Having regard to the seriousness of your offending, and that it occurred so shortly after you had been released from a lengthy sentence for raping and assaulting another victim, Mr Rapley KC is quite right to acknowledge that it will inevitably be a very long time before you might be able to persuade a Parole Board that you do not present an undue risk to the community. But it is still for this Court to fix the appropriate minimum period of imprisonment that you must serve before you see the Parole Board.
[38] When a court sentences an offender to life imprisonment it must also impose a minimum period of imprisonment of not less than 10 years.2 Of particular relevance to your offending, the Sentencing Act requires that I impose a minimum period of imprisonment of at least 17 years in light of the five factors outlined by Ms Boshier for the Crown. The murder of Ms Bonilla-Herrera involved calculation or lengthy planning;3 it involved the unlawful entry and presence in her home;4 the murder was committed in the course of the serious offence of abduction for sexual connection;5 the murder you committed engaged such a high level of brutality and callousness6 and your victim was highly vulnerable.7 Because those factors apply, you must be sentenced to life imprisonment with a minimum period of at least 17 years. The real issue for me today is how much higher than 17 years that minimum period should be.
[39] Having regard to the extensive aggravating factors that apply, and by reference to other comparable cases, the Crown seeks a minimum period of imprisonment of 26 years, with a modest, described as minimal, discount for your guilty pleas. Your
1 Sentencing Act, s 102(1).
2 Sections 103(1) and 103(2).
3 Section 104(1)(b).
4 Section 104(1)(c).
5 Section 104(d).
6 Section 104(1)(e).
7 Section 104(1)(g)
counsel submits the appropriate minimum period of imprisonment is around 23 years with a 15 per cent deduction for guilty pleas. Both counsel, realistically, are therefore in agreement that the features of your offending justify a starting point substantially higher than 17 years.
Aggravating factors of offending
Premeditation
[40] Mr Brider, throughout your meetings with the psychologist, Mr Hughes, and the forensic psychiatrist, Dr Norris, you explain your offending as a consequence of your uncontrolled anger or rage triggered, you say, by having only very recently learnt that the man you believed to be your father was not in fact your biological father, and that your biological father had died. You have claimed that you did not deliberately target your neighbour and that given your state of rage, you would have exacted that rage on whoever you might have come across. You told one of the report writers that you made a spur of the moment decision to kill.
[41] While I accept that you were on that evening intent on murder, I do not accept your other various explanations. In my view, it is no coincidence that you were googling “Columbia lady” within a week of your release from prison. Further, I do not accept there is an innocent or unrelated explanation for your purchasing rolls of masking tape, latex gloves, condoms, and your repeated searching of the victim’s name on Facebook and Google on the days before the murder. I do not accept that is just coincidence that you were accessing pornography websites throughout the evening and just before you committed murder. And, if there was any doubt about premeditation and the planning of a violent sexual attack, I observe that you broke into Ms Bonilla-Herrera’s flat in possession of the tape that you had purchased, wearing the latex gloves. You may well have been armed with a knife, we will never know and I make no finding in that regard. We know from the audio recording that upon confronting your sleeping victim, you did not immediately release the uncontrolled rage you speak of. Rather, you bound Ms Bonilla-Herrera’s hands together, you blindfolded her, and you cut her clothes from her body before carrying her from her bed into the lounge. The forensic evidence, coupled with the admissions you have subsequently made, confirm that you ejaculated on her bed. You say you did this after
you had killed her, but you say you did not sexually assault her. Only you will ever know the truth. You certainly had a knife when you entered the victim’s bedroom. That is clear from the repeated threats you made to cut her throat. I simply recognise the prosecution has given you the benefit of the doubt in charging the offence of abduction with intent to commit sexual connection as opposed to another sexual offence.
[42] The psychologist, Mr Hughes, concluded that from shortly after your release, you began fixating on Ms Bonilla-Herrera and that your behaviour is suggestive of a level of callous premeditation and planning combined with explosive rage when you were unable to tolerate your negative emotions.
[43] Mr Brider, I find myself in agreement with those words from Mr Hughes. The various factors I have referred to are simply irreconcilable with your explanation as to why you targeted and killed Ms Bonilla-Herrera. I am therefore satisfied that you engaged in both calculated and lengthy planning of a sexually motivated, violent offence targeting Mr Bonilla-Herrera.
In course of committing another serious offence
[44] The second aggravating factor is that this offence was committed in the course of another serious offence. The murder was committed in the course of carrying out the serious offence of abduction for the purpose of sexual connection. Your guilty plea is powerful evidence of your sexual motivation and I accept the submission made on behalf of the Crown that it is likely that you also engaged in sexual assault.
High level of brutality, cruelty, depravity or callousness
[45] The third aggravating factor is the high level of brutality engaged. Mr Brider, in that regard, the facts simply speak for themselves. In my view, your offending overwhelmingly qualifies under all four heads. That is to say, it was unspeakably cruel, it was brutal, it was depraved and it was callous.
[46] I have referred to the sleep app that recorded the first ten minutes of your attack. What is very clear from that recording is that Ms Bonilla-Herrera fought so
bravely in the face of your repeated threats to cut her throat and the escalating violence that you inflicted. But what is also clear is throughout this attack her family was very much at the forefront of her mind. She was asking you to consider that she had family. But her repeated pleas fell on deaf ears.
[47]I note the observation of Dr Norris who said:
175. Mr Brider has a hostile way of perceiving the world and is unemotional, impulsive, and callous in his presentation and actions. He displays pervasive violent attitudes and takes pleasure in harming others.
[48] There can be no doubt, the violence you inflicted was extreme. Twenty nine sharp force injuries, over 50 blunt force injuries and, in what appears to have been the final act of extreme violence and cruelty, you eviscerated the victim. This was violence that was gratuitous, it was sadistic, and it justifies the opinion expressed by Dr Norris.
Unlawful entry into victim’s home
[49] It is a highly aggravating that you broke into the victim’s home knowing she would be home alone and inevitably asleep in her own bed; a place where she should be safe. As you have heard, you told Dr Norris that, having watched Ms Bonilla- Herrera arrive home that evening, she was in your words, “an easy target”.
Victim vulnerability
[50] Ms Bonilla-Herrera was home alone, in her own bed and asleep when you attacked. She was highly vulnerable and that further aggravates your offending.
Loss and harm
[51] I also refer to the loss and harm, perhaps reflected by the number of people who are here in Court today to offer their support to each other and to the victim’s family. As I have said, it is immeasurable, the harm that you have caused. It is every parent’s worst nightmare that their child might suffer at the hands of another. That a beloved daughter and sister could be so brutally murdered, alone in her own home, in a foreign country, has changed the course of life for Julianna’s family and friends.
[52] These are all significant aggravating factors that I must take into account in fixing the minimum period of imprisonment. There are no mitigating factors of your offending so I turn to deal with your personal considerations.
Personal aggravating factors
[53] There are two factors personal to you, Mr Brider, that further aggravate this offending. The first is that it occurred only nine weeks after your release from a sentence of seven years and nine months’ imprisonment imposed for sexual violation by rape and unlawful sexual connection, abduction for sex, and injuring with intent to injure. You were on parole and subject to release conditions.
[54] From the date of your release, you were offered and received significant support in the community. Given what is now known of the planning in which you engaged to carry out the assault and murder of Ms Bonilla-Herrera, it is clear that you were able to mask the tell-tale signs of your depraved mindset from those who were tasked with offering you support in your reintegration into the community. We know you were consuming alcohol which was a breach of release conditions. There was alcohol found in your fridge. It is now clear that you were endeavouring to engage in relationships with women which was also in breach of your release conditions. And you blatantly breached the prohibition on your leaving your residence between the hours of 9.00 pm and 6.00 am over the period of 21 and 22 January 2022. It seems clear the curfew breach when you broke into your neighbour’s flat was not notified to those who were monitoring your movements. If that is indeed correct, it is a matter that requires urgent attention by the relevant agencies.
[55] To reoffend whilst subject to release conditions is an aggravating factor. But of greater aggravation is that you offended so soon after your release and in circumstances which, in significant aspects, mirror your 2014 offending.
[56] In May 2014, you engaged in very serious sexual and violent offending against a woman. I have read the sentencing notes from 16 July 2014 after you entered guilty pleas. There are alarming similarities between that offending and that for which you appear for sentence today.
[57] You commenced that attack on your victim by punching her about the head and body. She too fought back. You restrained her using tape. You bound her hands together. You covered her face with a singlet. The sentencing Judge described you as having hog-tied the victim. You carried her to a vehicle. You ignored her pleas to stop. You threatened to kill her children. Then you viciously raped her.
[58] Another feature is that at that sentencing, that victim told you through her victim impact statement that no person should have to endure what you had subjected her to. The pre-sentence report for that offending recorded that you did not accept “one ounce of responsibility” for your offending but that you were willing to undertake counselling. The report recorded that you had no remorse, no empathy.
[59] From a starting point of 10 years and three months’ imprisonment and after credit for your pleas you were sentenced to seven years and nine months’ with a minimum period of imprisonment of 50 per cent. A concurrent term of six years’ imprisonment for the abduction offending was imposed and three years for the injuring with intent to injure.
[60] The current offending represents a significant escalation in the level of violence inflicted. The rationale for treating your prior offending as highly aggravating, and therefore relevant in fixing the appropriate minimum period of imprisonment, was succinctly captured by Mander J in R v Tainui;8
[49] However, your rape and murder of Ms Tuxford does not, of course, stand in isolation, it represents a continuum of the same murderous and sexual violence that you perpetrated on your earlier victim, Ms Schroder. It is not a case of punishing you again for that earlier offending, rather your repetition of the same offending against a second young woman requires that the sentence I impose protects the community from a person who has minimal, if any, prospects of rehabilitation, yet whose risk to others, in a particular to woman (sic), is grave.
Risk to the community?
[61] I briefly turn to the risk you pose to the community because that is the last factor I consider before turning to the relevant authorities, community protection. The law recognises that community protection may justify a longer minimum period of
8 R v Tainui [2019] NZHC 626 at [49].
imprisonment.9 That is a relevant consideration in your case as both the experts who have provided reports to the Court assess you as being a very high risk of committing a serious violence and or sexual offence in the future.
[62] Mr Brider, I regret to say there is nothing in the material I have reviewed that would indicate you have any realistic prospects of successful rehabilitation. I can do no more than sincerely hope that while you are serving your sentence, you will meaningfully engage with treatment that you are offered and I hope, for your sake, that one day you might acquire some insights into the harm that you have caused. For now, however, I find myself in complete agreement with Dr Norris and Mr Hughes that you pose a grave risk to women and I am required to fix a minimum sentence of imprisonment recognising the need to protect the community from you.
Relevant Authorities
[63] As regards relevant authorities, I must have regard to those in order to reflect the need for consistency in sentencing. It is a very difficult exercise comparing one case with another, and particularly so when dealing with extremely serious and disturbing offending.
[64] I am not going to traverse each of the cases. However, I will make reference to them in the written notes of the sentencing. I have considered all the cases referred to me by your counsel and by Crown counsel.10
[65] The Crown submission that a 26-year minimum period of imprisonment is appropriate does rely significantly on R v Tainui. Mr Tainui had committed rape and murder in 1993 and was sentenced to life imprisonment. He was on parole in 2018 when he raped and murdered another young woman. The latter rape and murder had strong similarities to your offending. Mander J took a starting point in relation to the minimum period of imprisonment for the second murder and rape of 23 years with a one-year deduction for guilty pleas. But he imposed a six year uplift to reflect the
9 Sentencing Act 2002, s 103.
10 R v Robertson [2015] NZHC 1849; R v Borton [2019] NZHC 2662; R v Reid [2009] NZCA 281; R v Tainui, above n 8; R v Waihape (HC) Christchurch, CRI-2005-009-14252, 17 August 2006; R v McLaughlin [2013] NZHC2625.
previous offending and the fact Mr Tainui was on parole when he re-offended. That led to an end minimum period of imprisonment of 28 years. It was the continuation of the same murderous and sexual violence that led Mander J to fix that minimum term. I accept what Mr Rapley has submitted, that that does distinguish Tainui from your offending.
Conclusion – minimum period of imprisonment
[66] Having regard to the relevant authorities, the very significant aggravating factors of your offending and the need to protect the community from you, I have determined that the appropriate starting point of a minimum sentence of imprisonment is 23 years. I uplift that starting point by 18 months to reflect your criminal history and the fact you offended whilst subject to release conditions. That uplift is necessary to protect the community, and particularly women. I consider that uplift to be modest but consistent with the totality principle.11 That leads to a minimum period of imprisonment of 24½ years’ imprisonment.
Guilty plea
[67] The only mitigating factor that applies in your case is that you entered guilty pleas, albeit some nine months after you were first charged, and notwithstanding your frank acknowledgment to arresting Police that you just wanted to get on with what you rightly anticipated would be a very lengthy term of imprisonment. Mr Rapley, on your behalf, seeks a reduction of about 15 per cent, which on his proposed minimum period of imprisonment equates to about three and a half years. Ms Boshier, on behalf of the Crown, whilst acknowledging that credit is available, says it should be the minimum reasonably available, constrained appropriately because s 104 of the Sentencing Act is so heavily engaged in this case.
[68] In R v Williams, the Court of Appeal maintained a difference in sentencing methodology between life sentences for murder and finite sentences.12 Following the Supreme Court decision in Hessell v R,13 the approach to guilty plea deductions for
11 Sentencing Act, s 85.
12 R v Williams [2005] 2 NZLR 506 (CA).
13 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.
murder sentencings was revisited by the Court of Appeal in Malik v R.14 There, the Court of Appeal approved the general position that deductions in s 104 cases are more limited than in “ordinary” sentencings and, therefore, the guilty plea deduction scale established under Hessell was not to be followed. The rationale was, firstly, that the Hessell deduction applies to finite sentences which fix a maximum term of imprisonment after considering all relevant sentencing factors.15 By way of contrast, a minimum period of imprisonment increases the time to be served before a prisoner is eligible for parole and the applicable statutory criteria is much narrower. Secondly, the legislative policy in s 104 is intended to limit the credit that may be given for mitigating factors, including guilty pleas, when applying the manifest injustice step.16 That is an approach that has been consistently adopted by the Court of Appeal,17 and as a recent example, in R v Tainui, a case that you have heard being discussed today, a credit of one year was allowed for guilty pleas from the starting point minimum period of imprisonment of 23 years and prior to the significant uplift I just referred to.18
[69] Your pleas were entered nine months after you were charged. In my assessment, you did face an overwhelming case. The sleep app recording identifying your voice, the finding of the deceased’s blood throughout your house, your attempt to clean up, all illustrate the strength of the prosecution case. It is also a relevant factor that your guilty plea is notably devoid of remorse or empathy. In all those circumstances, I accept a discount for a guilty plea is appropriate and I fix a deduction of 18 months.
[70] That leads to a final minimum period of imprisonment on the sentence of life imprisonment of 23 years.
Preventive detention
[71] The Crown seeks a sentence of preventive detention on the charge of abduction for the purpose of sexual connection. The purpose of preventive detention is to protect
14 Malik v R [2015] NZCA 597 at [35]-[36].
15 At [35].
16 At [37].
17 Momoisea v R [2019] NZCA 528 at [37].
18 R v Tainui, above n 8, at [46], [48].
the community from persons who pose a significant and ongoing risk to the safety of its members.19
[72] Mr Brider, you qualify for a sentence of preventive detention because you have been convicted of a qualifying sexual offence, you were over the age of 18 at the time you committed that offence, and because I am satisfied that you are likely to commit another qualifying sexual offence if you are released at the sentence expiry date of any sentence that the Court would otherwise impose.
[73] In considering whether to impose a sentence of preventive detention, I am required to identify what finite sentence I would impose if I was not imposing preventive detention. Again, I have to have regard to the aggravating factors of your abduction offending. They include:
(a)significant premeditation;
(b)unlawful entry into a dwelling house;
(c)the vulnerability of the victim;
(d)you being armed with a lethal weapon;
(e)the use of tape and a blindfold to restrain the victim;
(f)the repeated threats to kill; and
(g)the extreme level of violence inflicted and harm caused.
[74] What that means is, I consider this to be a very high culpability sexual abduction case. Significantly higher than your last offence of sexual abduction. The maximum sentence for that offence is one of 14 years’ imprisonment. I consider a starting point in the region of 11 years’ imprisonment, reduced by 18 months to reflect your guilty plea, would be appropriate. In my view, the maximum minimum non-
19 Sentencing Act, s 87(1).
parole period which is one of two-thirds of that sentence would be necessary in order to protect the public.
[75] Mr Rapley has submitted both in his written submissions and oral submissions this afternoon that the level of community protection that is afforded by the life sentence of imprisonment renders a sentence of preventive detention unnecessary. I disagree with that submission. The courts have recognised that it will be appropriate to impose a sentence of preventive detention together with a sentence of life imprisonment where the offending includes both murder and a qualifying sexual offence.20 In my view, if an offender qualifies for a sentence of preventive detention, and the Court considers that sentence is called for, then it should be imposed.
[76] But before I can impose that sentence, I must have regard to five specific factors.
[77] The first is whether there is a pattern of serious offending disclosed by your history.21 I have referred to your offending in July 2014. That offending followed prior acts of violence against a woman in July 2011 and February 2014. You were released from the lengthy sentence imposed for the July 2014 offending in November 2021 and I am satisfied that, within days of your release, you began plotting a sexually motivated, violent assault on your neighbour. As I said, your offending against Ms Bonilla-Herrera has a number of similarities with your prior offending. Your history demonstrates an alarming pattern of escalating serious violent and sexual offending against women.
[78] The second factor is the seriousness of the harm to the community caused by your offending.22 Your offending, having escalated to, as I have described, being gratuitous murder, has caused very serious harm to the community.
[79] The third factor is information indicating a tendency for you to commit serious offences in the future. Of relevance, there is a common theme in each of the reports to which I have been referred. Both Dr Norris and Mr Hughes have administered a
20 R v Tainui, above n 8, at [55].
21 Section 87(4)(a).
22 Section 87(4)(b).
number of different tools to assess your risk of re-offending. It is not necessary that I detail the particular tools engaged.
[80] Dr Norris concluded that you present an ongoing risk of both violent and sexual offending in view of your past history, your personality structure, and your current presentation. Dr Norris says: “His underlying anti-social and psychopathic way of perceiving the world may mean it is more challenging for Mr Brider to engage in any meaningful treatment that would reduce his risk.”
[81] Psychologist, Mr Hughes assessed you to be a high risk of sexual re-offending, positioned at the top of the risk of distribution. He says you present a very high risk of violent re-offending. As to the endurability of the risk you pose, Mr Hughes reports that your personality style serves to maintain your risk over a long period of time as your level of superficiality and externalising of responsibility in order to support your defended sense of self has proven highly resistant to change.
[82] There is no doubt you pose a high risk of committing a serious sexual offence against an adult woman in the future.
[83] The fourth factor that I must consider is the absence or failure of efforts to address the causes of your offending. You have had the benefit of intensive treatments in the past. In 2019, you completed the Drug Treatment Programme. In 2020 through into 2021 you completed the Adult Sexual Offenders Treatment Programme. That is a high intensity treatment programme and you graduated from the programme.
[84] However, the consensus of opinion of the report writers is that you engaged merely on a superficial level. Dr Norris refers to your pattern of not engaging with treatment or supervision and to your participation either on a superficial level or when required by the Court or Parole Board during previous sentences. Tellingly, in my view, Dr Norris believes you have not maintained any of the learned skills from these programmes and it appears you have tried, in Dr Norris’ words, to “fake good” during previous treatment. Mr Hughes describes your behaviour as suggesting your level of superficiality and manipulation extended to the manner in which you engaged with treatment. He says “whilst he presented in an apparently genuine manner during
treatment, his anti-social and psychopathic personality features suggest that this was an act of deception, as was his engagement and interactions with supervisory and support staff upon his release from prison”.
[85] It is sad to have to recognise that your prospects of rehabilitation are poor. You have feigned meaningful engagement with focused rehabilitation. You still express no remorse or empathy, and I assess there to be no genuine willingness to engage in a course of treatment that might address the drivers of your offending. I consider that to be a factor that strongly favours a sentence of preventive detention.
[86] The final factor is the principle that a lengthy determinate sentence is preferable if this provides adequate protection for society. Mr Brider, I have reached the very clear view that the otherwise appropriate determinate sentence that I would impose simply would not provide adequate protection for society. As Mr Hughes has observed: “Given the very high probability of Mr Brider re-entering a high risk situation and his lack of genuine engagement with rehabilitation and supervision, effective risk management or mitigation in the community would not appear to be viable.” I agree with the experts that even the highest level of supervision in the community is unlikely to mitigate the risk that you present. I could have no confidence that you would comply with an extended supervision order. That, to my mind, is simply not a realistic alternative.
[87] The imposition of a sentence of preventive detention alongside a sentence of life imprisonment is necessary to reflect the ongoing danger you present to the community. It is not to punish you, Mr Brider. It is to protect the community.
Result
[88]Can you please stand.
[89] Joseph James Brider, on the charge of murdering Julianna Bonilla-Herrera, you are sentenced to life imprisonment with a minimum period of 23 years’ imprisonment.
[90] On the charge of abduction for the purposes of sexual connection, you are sentenced to preventive detention. On that sentence I impose a minimum period of imprisonment of six years.
[91] On the charge of breaching release conditions, you are sentenced to 12 months’ imprisonment.
[92]All sentences are to be served concurrently.
...................................................
Eaton J
Solicitors:
Crown Solicitor’s Office, Christchurch
Copy to:
James Rapley KC, Barrister, Christchurch
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