R v Browne - [2022] NZHC 509

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…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading R v Browne

Details

AGLC: R v Browne [2022] NZHC 509
Case: [2022] NZHC 509
Decision Date: 18 March 2022

CaseChat Overview and Summary

Moses Hurrell and Sean Browne were sentenced by Moore J in the High Court at Auckland for an offence of wounding with intent to cause grievous bodily harm. The incident took place while the defendants were serving sentences in Auckland Prison. The victim, another prisoner, was attacked in an unprovoked assault, which left him with life threatening injuries. The court was required to determine an appropriate sentence starting point for each defendant, taking into account the relevant aggravating and mitigating factors. The court also had to consider the principle of totality in sentencing the defendants who were already serving time for other offences. The court found that the defendants' offending fell into the most serious band of sentencing guidelines. The court determined that the defendants' personal circumstances warranted some discount to their sentences but that the overall sentences must not be crushing. The court sentenced Hurrell to four years and four months' imprisonment and Browne to five years and four months' imprisonment. Both sentences were imposed cumulatively on the defendants' existing sentences.

Orders