R v Broughton

[2017] NZHC 671

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2016-092-002890 [2017] NZHC 671

THE QUEEN

v

ISAAC CRUZ ERU BROUGHTON

Hearing:	7 April 2017
Appearances:	E J McCaughan and JJ Rhodes for Crown D Niven on instructions from I Jayanandan for Defendant
Sentenced:	7 April 2017

SENTENCING NOTES OF VENNING J

Solicitors:           Kayes Fletcher Walker Ltd, Auckland

Copy to:            I Jayanandan and D Niven, Auckland

R v BROUGHTON [2017] NZHC 671 [7 April 2017]

[1]      Isaac Cruz  Broughton  you  are for sentence having been  found  guilty of murder and wounding with intent to cause grievous bodily harm.  On 12 March 2016 you shot and killed Shon Wanahi and shot and grievously injured Bunji Fenton.  You have heard from the victim impact statements from Mr Wanahi’s family the impact that your actions have had on them.

[2]      There are a number of issues for the Court to consider regarding sentence this morning:  first, whether it would be manifestly unjust to impose a sentence of life imprisonment for murder;   next, if life imprisonment is not imposed what the appropriate finite sentence should be;  and finally, if life imprisonment is imposed for the murder what the minimum non-parole period should be.  I start with the facts.

[3]      On 12 March 2016 at around 12.50 in the morning you and two associates Laren Walker and  Jamie Sylva  were driving to Papakura to see another  friend. Apparently he owed some money and you thought he may also have some cigarettes. You had a loaded sawn-off shotgun with you in the car.  Your explanation for having the weapon was that it was for your protection.  You had an association with a gang but had fallen out with members of it and had left Auckland for a time.  When you returned to Auckland you brought the gun back with you for your protection.

[4]      Just before you arrived at your friend’s place you saw some people in the park.  You thought they were your friends, you stopped the car, jumped out with the shotgun, went up to them and pointed the gun at them saying words to the effect of “what’s up motherfucker” which I accept was intended as some sort of joking bravado.

[5]      That was a major mistake on your part.  The people you confronted with the gun were not your friends or associates. There were at least four people, one or more of whom were or had been members of another gang.  They did not take kindly to being confronted by a person wielding a shotgun and pointing it at them.   They initially stood their ground and then advanced on you.  You went back to your car. Although the ignition key was broken the car was able to be operated and there was evidence the engine was in fact running.  But it seems you did not have time to drive off.  You were punched through the driver’s window by Bunji Fenton.  Your friend

Laren Walker, who had briefly got out of the car, was in the front passenger’s seat. Your other friend Jamie Sylva was in the back seat.  As I say four of the other group surrounded the car.  Apart from Bunji Fenton, the deceased was also outside the car as was Codan Kingi and Jordan Paul.  Codan Kingi went to the passenger’s window and Jordan Paul was standing in front of the car.  Although the car was surrounded by these four people and they were punching and kicking at the car they were not armed.  You were the only one who was physically attacked.  The attack on you was limited to Mr Fenton punching you through the window.  The passenger’s window was largely up and Mr Sylva, who was in the back seat, said he had just moved across the back seat.

[6]      You said in your interview with the police that at this point “I just pushed the safety and I was like tryna – ‘cos they were giving me a hiding and then I just shot, like not at him but like by him but, boom, I musta got him.” and shot Bunji Fenton. He initially did not realise he had been shot and continued to try and punch you. You then fired the second fatal shot which killed Mr Wanahi.  I interpolate here that there was a suggestion during the trial in your defence that the gun went off accidentally. The jury rejected that,  which  I agree with.   Taken overall the evidence clearly pointed to you deliberately discharging the shotgun which you had directed towards the people outside the car.

[7]      The Court must impose a sentence of life imprisonment for murder unless it would be manifestly unjust in the circumstances of the offence and your circumstances.   Mr Niven has submitted strongly it would be manifestly unjust to impose life imprisonment on you for the murder.  He argues your response was an example of excessive self defence.   That phrase is a convenient shorthand for the situation where a person is acting in self defence but has used force which is not objectively reasonable in light of the threat posed.

[8]      The threshold of manifestly unjust has been considered in a number of cases involving the excessive use of force in self defence.1    In Daken v R the Court of

1      R v Taueki [2005] 3 NZLR 372 (CA); R v Rapana [2015] NZHC 3331; R v Rapira [2003] 3

NZLR 794 (CA);  R v Madams [2017] NZHC 81; R v Cole [2017] NZHC 517; Daken v R [2010] NZCA 212; R v Murray [2015] NZHC 2179; R v Howse [2003] 3 NZLR 767; R v Cunnard [2014] NZCA 138.

Appeal confirmed that excessive self defence may fall within the second limb of s 102 of the Sentencing Act 2002 so that a sentence of life imprisonment would be manifestly unjust.2  The question is one of fact and judgment in each case.

[9]      The Court also acknowledged the following statement from R v Rapira:3

The test is that the sentence of life imprisonment is manifestly unjust. That conclusion has to be made on the basis of the circumstances of the offence and the offender. It is an overall assessment. The injustice must be clear, as the use of “manifestly” requires. The assessment of manifest injustice falls to be undertaken against the register of sentencing purposes and principles identified in the Sentencing Act 2002 and in particular in the light of ss 7, 8 and 9. It is a conclusion likely to be reached in exceptional cases only, as the legislative history of s 102 suggests was the expectation.

[10]     Mr Niven submits your case is similar to the case of R v Cunnard & R v McNaughton.4   In that case two opposing groups had met for an arranged fight.  Mr Cunnard had brought a loaded shotgun and pointed it at the other group but he did not use it.  Mr McNaughton then took it off him and used it.  Mr McNaughton was sentenced to life imprisonment but the Court accepted it would be manifestly unjust to sentence Mr Cunnard to life imprisonment.  Despite Mr Niven’s submissions Mr Broughton I have to say I consider your case to be quite different to that of Mr Cunnard. The telling features of your case are:

(a)      You were deliberately carrying a loaded shotgun with apparent intent to use it to defend yourself if necessary.  That was the purpose you had it.

(b)You confronted the group in the park with the weapon and pointed it at them, albeit you were mistaken as to their identity.

(c)      The other group was unarmed.  They had no knowledge whether the shotgun was loaded or what threat you posed them.

(d)Their attack on you was in response to the threat that you posed with the weapon.

2      Daken v R, above n 1.

3      R v Rapira, above n 1, at [121].

4      R v Cunnard, above n 1, and R v McNaughton [2012] NZHC 815.

(e)      While the tables may have turned, and I accept you and the car were surrounded and under attack, you were the only one physically assaulted and that was with the use of fists.

(f)      You were not at all badly injured as is apparent from the photographs taken of you on the night.

(g)You fired the shotgun deliberately towards the people outside the car on not one, but two, occasions, the second the fatal occasion.

(h)As to your personal circumstances although you are only 29 years old you have a substantial list of previous convictions, and most significantly including convictions for aggravated assault from 2012, and two convictions for common assault from 2010.

[11]     I am satisfied that given the above factors and having regard to the purposes and principles of the Sentencing Act, particularly the need for denunciation and deterrence and to recognise your culpability, it would not be manifestly unjust to impose life imprisonment.  This is not an unusual or exceptional case.  You will be sentenced to life imprisonment for the murder of Shon Wanahi.

[12]     That leaves the issue of the minimum non-parole period.  Having regard to the factors I have referred to, the circumstances of your offending, including that it involved the use of excessive self defence and your personal circumstances disclosed in the pre-sentence report, and the references that counsel referred to, on the murder charge alone a minimum period of 10 years imprisonment would be appropriate.

[13]     It is however necessary to impose a sentence that reflects your additional culpability for the offence of wounding Bunji Fenton with intent to cause grievous bodily harm.  I do not accept Mr Niven’s submission that that offence is sufficiently taken account of by the minimum term of 10 years.  A finite sentence on that charge alone would be in the region of seven to eight years.  In my judgment the totality of your offending requires a further minimum non-parole period of an additional two years.

[14]     There is nothing in your personal circumstances which supports a reduction. While you have expressed remorse you do not appear to have full insight into your offending.  You refer to it as a simple mistake.   The pre-sentence report does not suggest that you have accepted full responsibility for your offending.

[15]     Mr Broughton please stand.  On the charge of murder you are sentenced to life imprisonment.  On the charge of wounding with intent to cause grievous bodily harm you are sentenced to seven years concurrent.  On the lead charge of murder you are to serve a minimum non-parole period of 12 years imprisonment.  Please stand

down.

Venning J