R v Browne
[2022] NZHC 509
•18 March 2022
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2021-044-001114
[2022] NZHC 509
THE QUEEN v
SEAN DANIEL BROWNE MOSES ELI HURRELL (via VMR)
Hearing: 18 March 2022 Appearances:
Ben Kirkpatrick for the Crown David Niven for Sean Browne Giles Harvey for Moses Hurrell
Judgment:
18 March 2022
SENTENCING NOTES OF MOORE J
R v BROWNE & ANOR [2022] NZHC 509 [18 March 2022]
Introduction
[1] Moses Hurrell and Sean Browne, you appear for sentence this morning both having pleaded guilty to one charge of wounding with intent to cause grievous bodily harm.1 You are both sentenced prisoners. Your victim, B, was a fellow inmate. Prior to this incident there were no recorded incidents of hostility between you.
The offending
[2] I begin by setting out the facts of your offending. Obviously, these are well known to you. But sentencing is a function which is required to be undertaken in public. For that reason, I must set out the factual basis for the sentences I fix.
[3] On 30 March 2021, you both were present with B in a shared day room at Auckland Prison. It was your recreation time. At around 11.06 am, the three of you were pacing around that room. Then, in an entirely unprovoked way, you Mr Browne, struck B in the face with a prison shank. It had been fashioned from a thin piece of metal.
[4] B fell to ground. He rolled onto his back and lifted his legs defensively. He tried to get back on his feet. But you kicked him in the head.
[5] Then you, Mr Hurrell, ran over to B. You pulled out a shank of your own. You joined Mr Browne in kicking and stomping on B’s head. You stabbed B in the head and face with the shank about nine times. You finished your assault with three or four more stomps to B’s head.
[6] During this time you, Mr Browne, restrained B by sitting on his chest. You used your shank to saw across his neck. After Mr Hurrell stepped away, you continued sawing across B’s neck for at least another 20 seconds. The entire attack spanned about 40 seconds.
[7] Mr Browne, you only stopped your attack when the prison guards intervened. The officers restrained both of you.
1 Crimes Act 1961, s 188(1). Maximum penalty of 14 years’ imprisonment.
[8] Unsurprisingly, B sustained life threatening injuries. His neck was sawed open from his right ear to just past the centre of his throat. The laceration was about 11 cm long. He also suffered several puncture wounds to his face and multiple bone fractures to his cheek bones and facial area.
What is the appropriate sentence starting point?
Approach to sentencing
[9] The first stage in the sentencing process is to set a starting point. That starting point will then be adjusted to account for your personal circumstances.
[10] As you both are currently serving prisoners, the sentences I shall fix will be imposed cumulatively upon your existing sentences. I must therefore consider the principle of totality.2 This means that while I must impose sentences which reflect the seriousness of your offending3, those sentences must not result in a total period of imprisonment which are crushing and wholly out of proportion to the gravity of your overall offending.4
[11] I note, however, that the fact you both violently offended while in prison calls for the sentencing principles of deterrence and denunciation to take priority.5 The Court of Appeal has observed that re-offending while in prison, particularly where that offending is violent in nature, must have significant consequences for the offender “notwithstanding that the outcome is a lengthy period of imprisonment”.6
[12] I turn next to consider the applicable case law and record my gratitude to counsel for their industry in referring me to those cases they submit are relevant here.
2 Sentencing Act 2002, s 85.
3 Section 85(1).
4 Section 85(2).
5 Tryselaar v R [2012] NZCA 353 at [15]–[18]. I note that the Court must nevertheless consider the purposes and principles of sentencing prescribed by ss 7 and 8 of the Sentencing Act 2002.
6 R v Connelly [2010] NZCA 52 at [31].
Legal principles on sentencing for wounding with intent to cause grievous bodily harm
[13] In R v Taueki, the Court of Appeal set out the sentencing guidelines for determining the starting point for serious violent offending.7 That Court established three sentencing bands calculated by reference to nominated aggravating features and the number of those features present.8 Of relevance today is band three.
[14] Band three is appropriate for offending involving three or more of the nominated aggravating factors, where the combination of those factors is particularly grave.9 Offending within band three requires a starting point between nine and 14 years’ imprisonment.
[15] Because I have already given Mr Hurrell a sentence indication which he has accepted and because Mr Browne’s sentence must be linked in terms of parity, I shall first discuss the starting point for Mr Hurrell’s offending, before turning to consider Mr Browne’s.
Mr Hurrell
[16] Mr Hurrell, as I have previously indicated, I consider that your offending falls towards the bottom of band three of Taueki. I adopt a starting point of nine-and-a-half years’ imprisonment. In reaching that starting point, I have considered the cases cited by your counsel and other cases similar to yours.10
[17] The starting point of nine and half years’ imprisonment reflects the extreme violence with which you and Mr Browne assaulted B. Using the shank, you targeted his head. As I have previously mentioned, this caused him to suffer very serious injuries.
7 R v Taueki [2005] 3 NZLR 372 (CA).
8 At [34].
9 At [40].
10 Waru v R [2019] NZCA 347; R v Wereta [2015] NZHC 2248; and Lake v R [2017] NZCA 39.
Mr Browne
[18] Mr Browne, your counsel submits that the appropriate starting point for your offending is also nine-and-a-half years’ imprisonment. He says it is difficult to equate actions with culpability in offending of this nature because it is common for the junior offender to assume a more significant role in the offending in order to deflect responsibility from the more senior offender. He submits that in the absence of information to account for the reasons which led to the offending, it is reasonable to assume that you and Mr Hurrell sit together as equally culpable.
[19] On the other hand, the Crown submits that you assumed a more serious and significant role than Mr Hurrell. The Crown points to the fact that you continued your attack by sawing at the victim’s neck for some 20 seconds after Mr Hurrell disengaged. The Crown therefore submits that the appropriate starting point is in the range of 10-and-a-half years’ imprisonment.
[20]I consider that the following are aggravating factors of your offending:
(a)First is the presence of multiple offenders. You and Mr Hurrell acted in concert in the course of your attack on the victim. He was outnumbered. I consider this moderately aggravating.
(b)Secondly, you used a weapon to saw across the victim’s neck. The shank was not a weapon of opportunity. It was created and carried for the purpose of inflicting injury on another. This is highly aggravating.
(c)Thirdly, the offending was premeditated. The use of a shank indicates some level of planning to attack someone. Whether you fabricated the shank anticipating this particular attack is uncertain. For that reason I consider this, at most, is moderately aggravating.
(d)Fourth, you targeted B’s head. Your part of the assault began with you shanking and kicking him in the head. You then used the shank to saw across the B’s neck, extending down from his right ear. Obviously, this is highly aggravating.
(e)Fifth, B suffered very serious injuries from your attack. It is plain that sawing across his neck with a shank would be life threatening. He required surgery for the 11 cm neck laceration among his other injuries.
(f)Sixth, is the extreme violence with which you attacked the victim. I accept the Crown’s submission that this factor is highly aggravating; more so than Mr Hurrell’s offending. You continued to saw at B’s neck for some 20 seconds after Mr Hurrell disengaged. Given the potentially lethal nature of this action, I consider that your role in the attack is properly characterised as extreme and prolonged.
[21] While I accept there is necessarily a degree of overlap when these features are described, it cannot be avoided that it is their combination which necessarily places your offending in band three of Taueki. I consider your offending to be slightly more serious than that of Mr Hurrell. Your attack was more prolonged and the way you sawed at B’s neck was particularly callous.
[22] I indicated to Mr Hurrell that his role in the offending was less serious than the attack on prison officers by the four assailants in Waru v R.11 In my view your offending is also slightly less serious than that case.12 A starting point of 10-and-a- half years’ imprisonment was adopted in Waru.13 In your case I adopt a starting point of 10 years’ imprisonment.
Adjustments to the starting point for personal circumstances
[23] I now turn to consider what adjustments need to be made to the starting point to account for both of your personal circumstances.
Mr Hurrell
[24]Mr Hurrell, I will address your personal circumstances first.
11 Waru v R [2019] NZCA 347.
12 While that case involved a lesser degree of violence and injuries, the attack was highly premeditated, involved four attackers assaulting prison officers in the course of their duty, targeting the head and the use of shanks.
13 At [28]–[29].
(a)Prior offending
[25] As previously indicated to you, it is an aggravating feature of your offending that you were subject to a sentence of imprisonment when the offending took place.14 You have four previous convictions for violent offending, including manslaughter. For that, I consider that an uplift of 10 months is appropriate.
(b)Guilty plea
[26] You are entitled to a discount for your guilty plea. I indicated to you that such a discount would be 20 per cent.
(c)Personal background circumstances
[27] When sentencing an offender, the Court is required to take into account their personal circumstances, including their personal, family, whānau, community, and cultural background.15 In Zhang v R, the Court of Appeal recognised that a person’s background may reduce their moral culpability for their offending.16
[28] Your counsel has helpfully provided the Court with a s 27 cultural report addressing this. The report is dated September 2018. The report writer identifies several key factors which are particularly significant in the context of your offending.
[29] The report writer noted that your mother and father provided you no support during your childhood. They separated when you were young. Your father was the head of the Hastings Chapter of the Mongrel Mob. You went to live with your mother. She struggled with alcohol addiction. At five years old you were uplifted and put into CYFS care. After moving around many carers, you were adopted by the Hurrell family.
14 Sentencing Act 2002, s 9(1)(c).
15 Sentencing Act 2002, s 8(i).
16 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648. See also Solicitor-General v Heta [2018] NZHC 2453, [2019] 2 NZLR 241 at [40]–[50].
[30] Your brother was kicked out of the Hurrell’s home early on during his care. Shortly afterwards you left too. From the age of 13 you were forced to support yourself. You turned to crime to survive.
[31] You left school with no qualifications. You report being expelled from two primary schools and one intermediate school. You made it through only two weeks of high school before being expelled. You never returned.
[32] From that point on you spent your life in youth justice facilities and prison. To your credit you obtained some NCEA Level 1 credits.
[33] The report writer considers that you have lived a “very unsettled life”, particularly because of your significant disconnection from your whakapapa and whānau.
[34] Your counsel has also provided a psychological assessment report prepared by Ms McFadden, a consultant psychologist. The report is dated 5 September 2018.
[35] Ms McFadden describes the breakdown of your relationship with your adoptive family as a “significant and negative event”. She considers that this likely triggered considerable attachment related distress.
[36] Ms McFadden notes that some time when you were between nine and 11 years old you began using substances to cope. She states that you regularly used synthetic cannabis. Her view is that this affected your emotional and behavioural functioning, consistent with you orientating yourself towards antisocial influences.
[37] Ms McFadden considered that your upbringing left you with “significant psycho-social vulnerabilities”. She concluded that there was compelling evidence to support the presence of attachment related and identity issues that create ongoing feelings of distress and may manifest as emotional and behavioural deregulation.
[38] Mr Hurrell, your lawyer has forwarded your letter to me. Judges see a lot of letters of remorse; some are genuine and some are cynical. Your note is less of a letter of remorse than what strikes me as a frank and honest attempt to explain how it is that
you come to be where you are today. You tell me that you are not asking for sympathy, but you are also very remorseful for causing the harm that you did, acknowledging that you did not care about your victim, his family or the outcome. All you ask of me is a degree of insight into the circumstances which led you to do what you did.
[39] Your letter provides useful support and corroboration to both the s 27 report and the psychological report.
[40] Both those reports pre-date your offending. They do not attempt to draw a linkage between your background and the offending. However, it is clear to me that your background and circumstances inextricably led you down a destructive path of offending and institutionalisation. In my view, you are deserving of a discount to reflect those factors and I set that discount at 10 per cent.
(d)Youth
[41] Your counsel submits that you should receive a discount for your youth. Youth is relevant to sentencing for several reasons:17
(a)First, there are age-related neurological differences between young people and adults, including that young people may be more vulnerable or susceptible to negative influences and outside pressures (including peer pressure) and may be more impulsive than adults.
(b)Secondly, the effect of imprisonment on young people may be crushing particularly when long sentences are imposed. The most obvious negative consequences include the disproportionate impact on gaining meaningful and sustained employment and the inability to play a worthwhile role in society.
(c)Thirdly, it is well known that young people have greater capacity for rehabilitation than older defendants.
17 R v Churchward [2011] NZCA 531 at [77]–[78].
[42] You are only 21 years of age. You have spent much of your youth in prison. As I indicated to you, I am of the view that a discount for your youth is appropriate. There is no limit to the possible youth discount.18 But any discount I consider appropriate must be moderated to account for your prior offending.19 With reference to other similar cases,20 I apply a discount of 10 per cent.
(e)Notional end sentence
[43] Applying the uplift of 10 months for prior offending and discounts of 20 per cent for your guilty plea, 10 per cent for your personal circumstances and 10 per cent for your youth to the starting point results in a notional end sentence of six years and two months’ imprisonment.
Mr Browne
[44]Mr Browne, I now turn to consider your personal circumstances.
(a)Prior offending
[45] The Crown submits that I should apply an uplift to recognise that you offended while in prison and that you have a history of violent offending.
[46] At the time of your offending, you were subject to multiple sentences of imprisonment. You have history of violent offending stretching back to 2013. Of particular concern is that you have offended while in custody several times. This assault represents an alarming escalation in your offending history. I accept the Crown’s submission that your record is worse than that of Mr Hurrell. For that reason, I apply an uplift of 12 months’ imprisonment.
18 Pouwhare v R [2010] NZCA 268 at [98].
19 In my view this is not double counting of Mr Hurrell’s prior offending. The fact that Mr Hurrell has a record of engaging in serious violent offending, including manslaughter, erodes the rationale set out in Churchward for the application of a youth discount. In particular, the effect of imprisonment on a currently serving prisoner carries less weight, and a recidivist offender has less capacity for rehabilitation.
20 See for example Hemopo v R [2016] NZCA 242 where a 21 year old offender (who was 19 years old at the time of the offence) convicted of aggravated robbery was granted an 11 per cent discount for youth, having regard to extensive record of similar offending; and Molia v R [2013] NZCA 512 where an 18 year old offender convicted of aggravated robbery was granted a 17 per cent discount (rounded) for youth, again curtailed by his record of prior offending.
(b)Guilty plea
[47] You are entitled to a discount for your guilty plea. As with Mr Hurrell, I consider a discount of 20 per cent appropriate.
(c)Personal background circumstances
[48] I now turn to consider your personal background circumstances. As I mentioned earlier, a person’s background may reduce their moral culpability for their offending. This can be recognised through the application of a discount.
[49] Your counsel has also provided a s 27 cultural report addressing these issues. The report is dated January 2022.
[50] You grew up in an unsettled environment. When you were about nine months old your parents separated. You spent time spread across your mother’s, father’s, and grandparents’ homes. Your father told the report writers that these frequent moves would have been unsettling for you. He was unemployed at the time. Once he became employed again, you predominantly stayed with your grandparents or your mother.
[51] You described having a “good childhood”. You were never abused by your parents. You said on one occasion your mother’s partner handcuffed you to a bedpost for about an hour after you misbehaved. Candidly, and frankly reassuringly, you told the report writers that at the time you were “being a little shit”.
[52] Your father was a functioning alcoholic. You said he tried to be a good dad. Your father admitted to the report writers that he had several convictions for drink driving but he had never been to prison and had worked hard all his life.
[53] Your father and his former partner had friends who were in gangs. When they hosted parties, you sometimes saw their friends drinking and fighting.
[54] You struggled at school due to your ADHD. Your grandmother told the report writers that she taught you to read and write because you were failing at school.
[55] When you were nine or 10 years old, your mother moved to Australia with her new partner. You told the report writers that you had your bags packed, only for your mother to tell you, just two days out from her departure, that you would not be going with them. I accept that experience of abandonment would have been devastating for any child. Your grandmother was unable to continue looking after you and you were sent to live with your father.
[56] Shortly after you reached the age of 12 you first became involved with police. It was for shoplifting. At 13, you began using synthetic cannabis. A friend introduced you to it. You began regularly stealing and committing burglaries to fund your habit. You joined a gang. When you were about 14 you began using methamphetamine. You became addicted. You continued to offend to fund your addiction. From that point on you became institutionalised. You were in and out of youth justice facilities and were eventually imprisoned.
[57] The report writers identify several key factors in your background that are relevant to your offending. These include the instability of care and housing during your childhood; the consequent lack of attachment with your parents; the normalisation of crime and use of drugs from a young age; your involvement in gangs and your early institutionalisation.
[58] It follows I have no difficulty accepting your counsel’s submission that there is a clear causative linkage between your background and your offending. On account of that, I apply a discount of 10 per cent.
(d)Restorative justice
[59] The s 27 report further records that you are willing to attend a restorative justice conference with the victim. Your counsel submits that you should receive a discount for this. The Sentencing Act 2002 (“the Sentencing Act”) requires the Court to take account of any offer to make amends.21 It also requires the Court to take into account any outcomes of a restorative justice process.22
21 Sentencing Act 2002, s 10.
22 Section 8(j).
[60] However, it does not appear that any restorative justice process has taken place. There do not seem to have been any steps taken to advance such a process; no restorative justice reference has been sought which is usually the first step. While an expression of willingness to participate in a restorative justice process might, in some circumstances, justify modest recognition, I am satisfied this is not such a case. Viewed contextually, B was never likely to participate given he was, and possibly remains, an inmate. You would have known that. Reflective of that feature, it is unsurprising he has not made a victim impact statement.
[61] I am not prepared to give any discount for what appears to be a somewhat cynical and very late suggestion on your part, if that is what it is, that restorative justice might be an option.
(e)Notional end sentence
[62] Applying the uplift of 12 months for prior offending and discounts of 20 per cent for your guilty plea, and 10 per cent for your personal circumstances to the starting point results in a notional end sentence of seven years and eight months’ imprisonment.
Totality adjustment
[63] As I mentioned previously, both of your notional end sentences need to be adjusted for totality. It is critical that the imposition of cumulative sentences does not result in an overall sentence that is “crushing”.23 A crushing sentence obliterates any hope of reintegration into society and is contrary to the principle of rehabilitation, a cornerstone of the Sentencing Act.24
[64] At my request, your counsel and the Crown, have provided a very informative joint memorandum setting out the offending for which you are both presently serving your sentences, advice as to release dates and supplementary submissions on the issue of totality.25 I record my gratitude to them for their considerable assistance.
23 Haywood v R [2015] NZCA 551 at [13].
24 Taylor v R [2018] NZCA 444 at [17].
25 This joint memorandum was prepared with the assistance of Karl Fisher, a senior advisor in sentence calculation at the Department of Corrections. Mr Fisher’s email setting out the relevant
[65] From this memorandum, I am aware that in your case Mr Hurrell, you are presently serving sentences for manslaughter, burglary, injuring with intent to injure, assaulting Police, and intentional damage. The length of your cumulative sentence is six years and seven months’ imprisonment. You were eligible for parole on 7 June 2019. Your statutory release date is 25 October 2023.
[66] If your notional end sentence of six years and two months’ imprisonment was imposed cumulatively without adjustment, the total sentence you would serve would be 12 years and nine months’ imprisonment. Your sentence would not end until December 2029.
[67] Mr Browne, you are currently serving sentences for aggravated robbery, three counts of burglary, two counts of injuring with intent to injure, arson, assaulting a prison officer, and resisting Police. The length of your cumulative sentence is 10 years’ imprisonment. You were eligible for parole on 22 September 2020. Your statutory release date is 22 May 2027.
[68] If your notional end sentence of seven years and eight months’ imprisonment was imposed cumulatively without adjustment, the total sentence you would serve would be 17 years and eight months’ imprisonment. Your sentence would not end until January 2035.
[69] Those sentences would be, by any measure, seriously lengthy terms of imprisonment. There can be no dispute that sentences of that magnitude would be crushing and out of proportion to the gravity of the offending when viewed as a whole. It is common ground between counsel that the appropriate totality adjustment is 30 per cent. I agree that an adjustment of that magnitude strikes the correct balance between your total sentences being proportionate to the gravity of your offending, but not so lengthy as to disregard the principle of rehabilitation. That is the level of discount I shall apply.
[70] Mr Hurrell, in your case this means that your end sentence is one of four years and four months’ imprisonment.
information about the defendants’ sentences is attached to the joint memorandum.
[71]Mr Browne, your end sentence is five years and four months’ imprisonment.
Strike warnings
[72] It seems from the file that when your convictions were entered, no strike warning was given and the explanation of that was given to me this morning. I am advised that a stage one warning is necessary for each of you and so I shall do that now.
[73] Mr Hurrell and Mr Browne, given your convictions for wounding with intent to cause grievous bodily harm, you are now subject to the three strikes law. I am now going to give you a warning of the consequences of another serious violence conviction. You will also be given a written notice outlining these consequences, which lists the “serious violent offences”.
(a)If you are convicted of any serious violent offences other than murder committed after this warning and if a Judge imposes a sentence of imprisonment then you will serve that sentence without parole or early release.
(b)If you are convicted of murder committed after this warning then you must be sentenced to life imprisonment. That will be served without parole unless it would be manifestly unjust. In that event the Judge must sentence you to a minimum term of imprisonment.
Sentence
[74] Mr Hurrell, on the charge of wounding with intent to cause grievous bodily harm you are sentenced to four years and four months’ imprisonment. That sentence is imposed cumulatively.26
26 That is imposed cumulatively on CRN 20009011676, as advised by Mr Fisher through the joint memorandum.
[75] Mr Browne, on the charge of wounding with intent to cause grievous bodily harm you are sentenced to five years and four months’ imprisonment. That sentence is imposed cumulatively.27 You may stand down.
Moore J
Solicitors:
Crown Solicitor, Auckland Mr Niven, Auckland
Public Defence Service, North Shore
27 That is imposed cumulatively on CRN 20009000475, also as advised by Mr Fisher.
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