R v Brown HC Auckland CRI 2008-004-22829
[2010] NZHC 2220
•10 December 2010
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2008-004-022829
THE QUEEN
v
PAUESI LEOFA BROWN
Charges: Murder
Assault with a weapon
Plea: Guilty
Appearances: A Perkins and R Savage for Crown
B J Hart and A J Haskett for Prisoner
Sentenced: 10 December 2010
Murder – life imprisonment, minimum non-parole period of 16 years
Assault with a weapon – 2 years’ imprisonment concurrentSENTENCING NOTES OF VENNING J
Solicitors: Crown Solicitor, Auckland
Copy to: B J Hart, Auckland
A J Haskett, Auckland
R V BROWN HC AK CRI-2008-004-022829 10 December 2010
[1] Pauesi Leofa Brown, you are for sentence this morning having pleaded guilty to the murder of Austin Hemmings and the assault of Ms Nonu with a weapon.
[2] Just as a preliminary matter can I address the media and remind you that the sentence the Court will impose on Mr Brown for murder is a sentence of life imprisonment. There has been discussion this morning and in this sentencing decision I will discuss and fix a minimum non-parole period. However, the minimum non-parole period is just that. It is a condition of the sentence but the actual sentence for murder in New Zealand is life imprisonment and that is the sentence that will be imposed. At times that does seem to rather become lost in the reports of the sentencing process. I am sure it would be of assistance to the public for whom you are the ears and eyes, if that matter was made clear and I would appreciate it if it was.
[3] Also before I proceed with the sentence and matters counsel have addressed to me, I do want to acknowledge the presence in Court of Mr Hemmings’ family, in particular his wife and children and also Ms Nonu, the other victim in this matter. The victim impact statements, relating to Mr Hemmings, paint a picture of a man who had already given much to his family, and also to the business and social community and a man who still had much to offer. Considering the loss you have suffered your victim impact statements were expressed, if I might say so, in restrained and insightful terms.
[4] As far as you are concerned, a loved husband, father, son and brother has been taken from you. The sentence that this Court imposes on Mr Brown is society’s response, through the judicial system, to his action of killing Austin Hemmings. It is not meant to be, and it could never be, a measure of the value of Mr Hemmings’ life.
[5] Mr Brown, the circumstances which led to your killing Mr Hemmings, your assault on Ms Nonu and your being before this Court this morning for sentence are as follows.
[6] In September 2008 you were in a relationship with a Ms Ioane. She worked in a call centre in a building off Queen Street. Her work was on an upstairs floor in an office that backed onto and overlooked Mills Lane. She worked there with Ms Nonu. They were friends and would often take cigarette breaks together and discuss matters with each other. Ms Nonu happened to be related to you, being a cousin through adoption. Ms Ioane talked to Ms Nonu about your relationship. It seems that in the course of these discussions Ms Nonu made some negative comments about you, which Ms Ioane repeated to you.
[7] On 25 September 2008, at about half past four, you had a lengthy telephone discussion with Ms Ioane. You became angry and the call was terminated. Ms Ioane was able to sense your anger and was concerned at what you might do. She knew that you were annoyed with Ms Nonu for saying bad things about you. Ms Ioane was concerned enough to send two text messages to you urging you not to do anything stupid.
[8] About three quarters of an hour later Ms Nonu went down to the ground floor and outside the rear of the office onto Mills Lane to take her afternoon cigarette break. You were there in that area and approached her. At the time Ms Nonu was on her cell phone. She acknowledged you by nodding her head. You continued to approach her and you fronted her and tried to back her into a corner of the building. You stood inches away from her face in a threatening and aggressive manner.
[9] About this time the deceased, Mr Hemmings, came out from an adjacent building on his way to the carpark and to head home. Ms Nonu asked Mr Hemmings for help and to call the police. Mr Hemmings came over to her to give her assistance. You tried to dismiss him but Mr Hemmings came and physically put himself between you and Ms Nonu. He told Ms Nonu to run away. She went towards the lift in the carpark of her building in an attempt to escape from you. The lift was about 25 to 30 metres away. You started to chase after her until you were about five metres or so away from her.
[10] By this time Mr Hemmings was some distance away from you. He said “Get away” or words to that effect. With that, you stopped your pursuit of Ms Nonu and
turned back towards him. As you did so, you pulled out the knife that you had with you. It had a 20 centimetre blade. You walked straight back to Mr Hemmings and thrust the knife into the top left side of his chest.
[11] Immediately after stabbing Mr Hemmings the lift arrived and Ms Nonu got into it to get away from you. You left Mr Hemmings and sprinted towards the lift. You managed to get between the doors of the lift to prevent them shutting. You then pinned Ms Nonu by the neck with one of your arms holding her against the side wall of the lift. You were still holding your knife in the other hand. You punched her to the nose and cheek area and swung the knife at her stomach. She moved to her left and the knife narrowly missed her stomach. At the same time Ms Nonu was able to push you back and caused you to stumble out of the lift and you then ran away. You threw the knife away in a nearby rubbish bin.
[12] In the meantime Mr Hemmings managed to walk about 100 metres from where you had stabbed him before collapsing. The stab wound you had inflicted on him punctured his lung. Despite attention and attempts at resuscitation from passers- by and then ambulance officers, Mr Hemmings died. Ms Nonu suffered injuries and bruising to her face and swelling and bruising to her arm.
[13] You were apprehended within 24 hours. You refused to make any comment or offer an explanation at the time. You were for trial in this Court to commence on
1 November this year. At the outset of the trial you pleaded guilty to both counts.
[14] The sentence for murder is life imprisonment unless such a sentence would be manifestly unjust. It is not suggested that anything other than life imprisonment is the appropriate sentence in this case.
[15] The next question is the extent of the minimum non-parole period that the Court must impose as part of that sentence. It must be at least 10 years. The first consideration is whether s 104 of the Sentencing Act applies to require the Court to impose a minimum term of at least 17 years unless it would be manifestly unjust to do so. Before considering that issue I refer briefly to your personal circumstances.
[16] Mr Brown your personal circumstances are frankly bleak. You were born in Samoa. You experienced a violent childhood and were subject to regular beatings by your father. You have siblings living in New Zealand, Australia and Samoa. You have lived intermittently between New Zealand and Australia. You were deported from Australia after completing a sentence for a manslaughter you had committed in that country. You have spent a considerable part of your life in jail, a matter to which I will return. You have had a number of jobs including as a professional boxer. You are a heavy cannabis user but say you do not consume alcohol. You suffer from diabetes, depression and have kidney and heart problems. Your counsel obtained a psychiatric assessment of you. The psychiatrist considers that the structure of institutionalisation, the absence of drugs and alcohol and the constant supervision of male authority figures in prison actually had a redeeming and rehabilitative effect on you, but outside the prison environment and because of your personality composition, your emotional immaturity and other deficits in your coping mechanisms you are just unable to realise any positive features in day to day life such as finding and maintaining a regular job, or avoiding getting involved in criminal incidents.
[17] The Crown argue that s 104 applies and seek the imposition of a minimum period of 17 years or, in the alternative, submit that if s 104 does not apply a minimum period in the region of 13 to 14 years with an uplift of two years for your previous convictions should apply.
[18] For you Mr Hart submits s 104 does not apply and the minimum non-parole period to be imposed should be between 10 and 11 years. He has said to this Court this morning that no matter what term is imposed you accept your responsibility and will accept your sentence.
[19] The Crown submit s 104 is engaged by reason of exceptional circumstances:
s 104(1)(i).
[20] It is first necessary to determine if that subsection is triggered. In support of exceptional circumstances the Crown note that the deceased responded to an appeal from Ms Nonu. In doing so he acted as an ordinary citizen accepting a duty to
respond to a member of the public’s cry for help. The Crown say that your response was of gratuitous violence towards a man who effectively acted as a good Samaritan, who, while he may have saved Ms Nonu’s life, paid with his own. The Crown submits that those are, in summary, the highly unusual circumstances of this case and note there may be a concern that people will not come forward and act in that way in the future.
[21] Despite those submissions I am unable to agree that s 104(1)(i) is engaged in this case. The requirement is for the circumstances of the offending to be truly exceptional. In this case Mr Hemmings acted as a reasonable and decent member of the public might be expected to act and intervened to help someone who was threatened. As one of his brothers observed in his victim impact statement, it is hoped that that would be repeated by other members of the public in the future. If a similar situation did arise again in the future I am confident there are other decent New Zealanders in the community who would act just as Mr Hemmings did in this case. The circumstances of Mr Hemmings’ death were undoubtedly tragic, but they were not exceptional.
[22] I also asked counsel for submissions on whether s 104(1)(d) might apply on the basis the murder was committed in the course of another serious offence. For that a temporal element is required. In R v Slade the Court of Appeal said there must be a ‘prior event’ which is itself a serious offence.1 The Crown submits in their submissions the only way in which s 104(1)(d) could be triggered is if the initial confrontation with Ms Nonu was a serious offence or if your intention at the time
you chased Ms Nonu to the lift was to use the weapon on her and Mr Hemmings interrupted you at that time. As to the first, the Crown concede the initial confrontation was at most an assault, which would not be a sufficiently serious offence for s 104(1)(d) to apply. As to the second, the Crown concedes that it cannot contend you armed yourself with the intention of using the knife on Ms Nonu at the particular time you were chasing her to the lift before returning to Mr Hemmings. In this context I note your explanation you armed yourself because you were going to conduct a drug deal and buy drugs and you had been assaulted in the past in those circumstances.
1 R v Slade [2005] 2 NZLR 526 at [39].
[23] Mr Hart submits that s 104(1)(d) does not apply because the killing of Mr Hemmings was not committed in the course of another serious offence and submits that in any event the charge of assault with a weapon was not a sufficiently serious offence. I do not necessarily agree with the latter submission and I leave it open for a case where the matter is particularly relevant, because I accept in this case, given the Crown concessions with which on reflection I agree, s 104(1)(d) does not apply.
[24] I then turn to consider the appropriate minimum non-parole for the purposes of s 103. Under s 103, the Court is directed to have regard to the purposes of:
•holding you accountable for the harm done to the victims and the community by the offending;
• denouncing your conduct;
• deterring you and others from committing similar offences; and
• protecting the community from you.
[25] Counsel have referred to a number of cases in their submissions where the Court has considered the appropriate non-parole period for murder. I have had regard to those cases and also the need for consistency in terms of s 8(e) of the Sentencing Act. At the end of the day however, each case and each offender must be sentenced by the Court on the basis of the particular circumstances of the offending and their own individual circumstances to arrive at a sentence appropriate to the particular case.
[26] The circumstances of the offending relevant to consideration of the purposes are:
• carrying a knife in a public place during the day;
•the intention to use a knife if you were faced with a situation of conflict;
• the threatening of Ms Nonu;
•the unprovoked and deliberate attack on an innocent member of the public who had intervened to stop your further assault on a woman;
•your returning to assault and attack Mr Hemmings with the knife when there was no need to do so for any reason at all;
•the use of a knife in that attack on him and directing it to his upper chest area; and
•then, after delivering the fatal blow to Mr Hemmings, continuing an assault on Ms Nonu using the knife as a weapon on her.
[27] In my judgment the circumstances of that offending justifies a minimum non- parole period of 14 years in itself. Such a term is necessary to reflect the first three of the purposes I have referred to and to take account of the totality of the offending in this case.
[28] The last purpose, the need to protect the community is relevant to the major personal aggravating factors in this case, your propensity for violence. Mr Brown you are a dangerous and violent man. At the age of 47 you have been in and out of prison for the last 22 years. During those 22 years you have been sentenced to terms of imprisonment in New Zealand and Australia totalling just under 15 years. In New Zealand you have one conviction for wounding with intent to injure, one for threatening to kill, three convictions for either male assaults female or domestic assault, one conviction for common assault, two for assault with a stabbing or cutting instrument, and one for wounding with intent to injure using a weapon. In Australia you were convicted of manslaughter and causing serious injury. You have an established propensity for violent offending and, what is worse, for violent offending using a knife. You have sought to explain and justify carrying the knife on the basis that you were going to South Auckland to buy cannabis and you needed it for your protection because on a previous occasion you had been threatened by drug dealers and had your money taken. The fact that you seek to rationalise and justify carrying
a knife on that basis and were obviously prepared to use it when faced with a confrontation is a matter of real concern. There is a need for the Court to protect the community from people such as you. As the Court of Appeal confirmed in R v Popo in quite different circumstances but as a matter of principle, taking your relevant previous convictions into account is not to punish you twice for previous offending.2
The Court of Appeal in R v Casey noted it may be necessary to take previous
convictions into consideration because the character of the offender frequently affects the question of the nature and gravity of the crime.3 Further, at 597 of that decision the Court added:
… the previous convictions of a prisoner may indicate a predilection to commit the particular type of offence of which he is convicted, in which case it is the duty of the Court, for the protection of the public, to take them into consideration and lengthen the period of confinement accordingly.
[29] That principle is now expressly recognised by s 9(1)(j) of the Sentencing Act.
[30] Those personal aggravating features support an uplift of a further two and a half years which leads to a minimum non-parole of 16½ years before considering your personal mitigating factors.
[31] There are frankly only two features that can be referred to. The first is your plea of guilty. The Supreme Court in R v Hessell did not directly address the effect of a plea of guilty on the minimum non-parole period for murder.4 However, as a matter of principle, there must be some allowance for a guilty plea. The only way to recognise that is to reduce the minimum non-parole period. That is consistent with the Court of Appeal decision in R v Williams.5 Your guilty plea in this case had two positive effects. It has saved the deceased’s family and Ms Nonu the additional stress and trauma of a trial. It has also saved the State the cost of a trial.
[32] Balanced against that, the Crown case against you was an overwhelming case. Mr Hart submits that one reason for the late plea, which is a relevant factor, is that there were pre-trials which led ultimately to the guilty plea. But frankly even
2 R v Popo [2009] NZCA 447.
3 R v Casey [1931] NZLR 594 at 597.
4 R v Hessell [2010] NZSC 135.
5 R v Williams [2005[ 2 NZLR 506.
without the pre-trials which led to the admissibility of your previous relevant convictions, as I have said the Crown case was overwhelming. You were apprehended within 24 hours. There was no doubt you were the offender. You had no apparent defence. Your attacks were deliberate, unprovoked and cannot be justified in any way by the actions of Ms Nonu or the deceased. In those circumstances the fact your guilty plea came at the last moment on the morning of trial is a factor I take into account. If you had pleaded guilty earlier then consideration would have been given to a greater credit in terms of the minimum non-parole period.
[33] Mr Hart has also submitted on your behalf you are remorseful and has referred to a letter you provided to the Court and which was read. You say you feel remorse and regret at your wrong actions and want to say you are sorry. The probation officer also notes you said you were sorry and what you did was wrong and you take responsibility for your it.
[34] The Court is directed to take account of remorse and, as the Supreme Court has emphasised in R v Hessell, genuine remorse is a relevant factor in sentencing.
[35] Mr Brown most prisoners who are for sentence say they are sorry. Some don’t, but most do. I am sure most of those who do say they are sorry are at the moment of sentencing sorry in a way at what they have done and the situation that they are in. But that is not the sort of remorse which Parliament had in mind when providing remorse was a factor to be considered in mitigation. To be genuinely remorseful requires a deep regret, a guilt for doing something morally wrong, a feeling of sorrow for having committed an offence, as well as an acceptance of responsibility for that.
[36] As the Supreme Court observed remorse must be shown. I do not consider you have yet shown true remorse for your actions in this case. The writing of a letter two years after the event at the time of sentencing is not enough. While you have said you are sorry, in both your recent interviews with the probation officer and the psychiatrist, you still continue to justify or minimise your actions and fail to take responsibility for what you have done. You told the probation officer you felt
provoked and intimidated by Mr Hemmings. In your discussion with the psychiatrist you sought to rationalise your anger towards the person you had killed in Australia. In relation to this incident you told the psychiatrist that you had a feeling of being under scrutiny, repudiated and that the intensity of eye contact was “too much”. Those attempts to justify your actions do not suggest to me that you have shown the genuine remorse and understanding that is required.
[37] Further, while you have expressed a willingness to undergo rehabilitative measures and say you will do whatever is required to fix the problem you have, you have already had a number of opportunities to address your problem and the issues that you have. Prior to your most recent release on parole from October 2005 to October 2006 you had completed the Pacific Violence Prevention programme in prison and while on parole you completed the follow-up. Despite that you were still prepared to carry a knife in the city and to aggressively confront Ms Nonu and then to use the knife on a man who had not provoked you in any way.
[38] Mr Hart has also submitted that the Court should have regard to the requirement to impose the least restrictive outcome appropriate in the circumstances. That consideration in my judgment is outweighed in this case by the relevant purposes identified in s 103 and in particular the need to protect the community.
[39] Mr Brown please stand. For the murder of Austin Hemmings you are sentenced to life imprisonment. For the assault on Ms Nonu with a weapon you are sentenced to two years’ imprisonment to be served concurrently. You are to serve a
minimum non-parole period of 16 years. Stand down.
Venning J
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