R v Browne
[2017] NZHC 2389
•29 September 2017
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2016-090-005727 [2017] NZHC 2389
THE QUEEN
v
ANNA EIAO BROWNE
Hearing: 29 September 2017 Appearances:
N Webby and S McColgan for Crown
M Dyhrberg QC, B Hunt and K Martelli for DefendantSentenced:
29 September 2017
SENTENCING NOTES OF WYLIE J
Solicitors/counsel:
Crown Solicitor, Auckland
M Dyhrberg QC, Auckland
R v BROWNE [2017] NZHC 2389 [29 September 2017]
[1] Ms Browne, you appear today for sentence, having been found guilty by a jury of one charge of murder, pursuant to ss 167, 168 and 172 of the Crimes Act
1961. The maximum penalty for that offence is one of life imprisonment. It falls to me to pass that sentence on you. The primary issue I need to determine today is the length of the minimum term that you must serve in prison before you will become eligible to apply for parole.
Relevant facts
[2] The facts in this case are relatively straightforward.
[3] On 15 October 2016, Emmanuelle Sinclair hosted a party for her female friends at her house in Te Atatu. She had arranged for a professional nail technician to attend to give nail treatments to her guests. It was intended that the party would be a social get-together for old friends, many of whom had not seen each other for some time.
[4] You were not a close friend of many of the others in the group, but you were invited.
[5] You and the deceased, Carly Stewart, arrived at the house either late in the morning or around midday. Others arrived over the course of the afternoon.
[6] Many of the guests at the party, but not all, were drinking alcohol. Facebook live feeds taken at the time were played during the course of the trial. It is clear that the guests at the party were having a good time, and that the mood was relaxed and happy. There were a number of children present.
[7] You consumed a significant amount of alcohol during the course of the day. While there was a suggestion at trial that there may have been drugs present at the party, the evidence did not support that proposition.
[8] Over the course of the afternoon, there was tension between you and another party-goer – Justine Evans – probably because she was a Pākehā or perhaps because of her partner. Ms Sinclair remonstrated with you about this. You and she ended up in a back bedroom in the house. Your conversation with Ms Sinclair escalated into a
scuffle, in the course of which a chest of drawers was knocked over. Ms Sinclair had to call out to children playing outside the house, to get their help in getting the bedroom door open.
[9] This scuffle attracted the attention of other party-goers, including Ms Stewart, and it resulted in a further confrontation between you and Ms Stewart in the hallway outside the bedroom. Ms Stewart accused you of acting inappropriately at what was meant to be a social gathering, in a family home, when there were children present. A minor fracas developed between you and Ms Stewart. You were shouting at each other, and using various profanities. You and she grabbed each other by the clothing, and the two of you had to be separated by other people at the party. Ms Stewart said words to the effect that she would be the bigger person, and that she would walk away from the altercation.
[10] Ms Stewart and the other party-goers returned to the lounge at the end of the hallway. You initially remained in the hallway. However, shortly thereafter, you walked down the hallway towards the lounge. You did not however go directly into the lounge through an open doorway at the end of the hallway. Rather, you turned right and went through another doorway into the kitchen on the side of the house. Although nobody saw you do so, it is clear that you picked up a large knife as you walked through the kitchen. You then walked down the kitchen, and around through another doorway into one end of the lounge. When you came into the lounge you had your hands behind your back. You were holding the knife in one of your hands. It was concealed from anybody in front of you. You walked towards Ms Stewart. You muttered her name once. She stood up from the couch she was sitting on and turned towards you. You walked up to her and stabbed her in the side of her head with the knife, with an over-arm, downwards-type motion.
[11] There were a number of people present in the room at the time, including four children.
[12] Immediately after stabbing Ms Stewart, you backed out of the lounge, with the knife again concealed behind your back. You then left it in the kitchen sink, grabbed your handbag, left the property, and ran up the road.
[13] Other party-goers summoned the police and emergency services.
[14] You returned to the property a short time later, getting back at much the same time as the police arrived. You were met by other party-goers. They abused you. One threw a chair at you.
[15] Despite resuscitation attempts made by the attendees and emergency services personnel, Ms Stewart died from her injury at the scene.
[16] Ms Stewart’s death was caused by the single stab wound to the side of her head. The blade of the knife used to inflict the stab wound penetrated some 11 centimetres into Ms Stewart’s head.
[17] You were arrested, and taken to a nearby police station.
[18] When you were spoken to by the police, you claimed that you could not remember what had occurred.
Provision of Advice to Courts report
[19] I have received a helpful and detailed report from the Department of Corrections. The writer of that report advises that you are aware that a custodial sentence is inevitable.
[20] You are a 37 year old of Cook Island/Māori descent. You are a mother, and you told the reporting officer that, at the time of the offending, you were studying and residing with your partner in South Auckland.
[21] You have been in a relationship with your present partner for some 20 years. He was present when you were interviewed, and he has confirmed that he will stick by you and continue to look after your children.
[22] The reporting officer recorded that, when discussing the offending, you focussed on your view that some of the guests at the party were in relationships with gang members and/or were involved with illicit drugs. You claimed that the guests
created an anti-social mood, and suggested that that may have contributed to the build-up which resulted in your actions.
[23] You advised the report writer that you are a binge drinker, and a screening tool was used to assess your alcohol use. You were identified as posing a moderate risk in this regard. Community probation considers that your use of alcohol is harmful and problematic for you.
[24] You also have a history of abusing illicit drugs. You told the report writer that you were using methamphetamine on a daily basis during the week prior to the offending, and that you had only had two hours sleep that week.
[25] You were assessed as having a propensity for violence, and it was recorded that this is a serious concern. You acknowledged having anger issues, and agreed that you need to address this. It was considered that you pose an ongoing potential risk to public safety, that there is no specific victim type in terms of your violence- related offending, and that you are more likely to behave violently whilst under the influence of alcohol or drugs, and in circumstances where you feel attacked or challenged.
[26] It was reported that you were tearful when speaking about Ms Stewart, and that you seem genuinely apologetic for the harm you have caused to her partner, parents and children. You also talked about the wider ramifications your offending has had on other family members. You indicated that you intend to apologise in an appropriate forum, and that you are willing to do whatever is necessary to show Ms Stewart’s family how sorry you are about your actions, and that has been reiterated by your counsel, Ms Dyhrberg QC this morning.
Criminal record
[27] I was given a copy of your criminal and traffic history.
[28] You have a lengthy criminal record, mostly for dishonesty-type offending. There are however two significant matters which stand out.
[29] First, in May 1995 you appeared before the Youth Court charged with attempted murder. Your criminal history records that you were found guilty of that charge, although the Crown in its submissions suggest that you were found guilty of injuring with intent to cause grievous bodily harm. I have read the summary of facts in relation to that offending by your co-offender. Unfortunately the summary of facts for you is no longer available. It is nevertheless clear that your offending involved injuring by stabbing. I accept that you were relatively young at the time, and the matter was dealt with by a notation rather than a conviction.
[30] Secondly, in 2004, you were convicted of wounding with intent to cause grievous bodily harm. Again, I have read the summary of facts. Weapons were involved in this offending – notably a machete. You were not directly involved in inflicting the violence. Rather, you orchestrated it and acted as a get-away driver. You were sentenced to nine years’ imprisonment for this offending, along with other concurrent offending.
Victim impact statements
[31] I have received victim impact statements from Ms Stewart’s mother, father,
sister and first cousin.
[32] Those statements have been read in Court today. The pain and anguish the victims have suffered and continue to suffer as a result of your offending will be obvious to you. You have shattered their lives and their grief is inconsolable. As I have already indicated, all victims in this matter have the Court’s sympathy.
Submissions
[33] The Crown submitted that the appropriate sentence required by the Sentencing Act 2002 is one of life imprisonment. It accepted that s 104 of that Act is not engaged, but nevertheless argued that the minimum period of imprisonment, before any discounts for personal mitigating factors are considered, should be one of
12 years. It went on to argue that you should not be entitled to any discounts, either on account of your psychological conditions, your claimed remorse, or for any other reason.
[34] Ms Dyhrberg, on your behalf, accepted that you should receive a sentence of life imprisonment. She agreed with the Crown that your offending does not engage s 104 of the Sentencing Act, and she advised that you accept the Crown’s submission that the appropriate minimum period of imprisonment is one of 12 years, taking into account various aggravating factors of your offending, the Provision of Advice to Courts report and your previous criminal history. She also accepted that there is nothing of sufficient significance in the possible mitigating factors which justifies a discount from that minimum period of imprisonment.
Purposes and principles of sentencing
[35] In sentencing you, I have considered the principles set out in ss 7 and 8 of the Sentencing Act. In particular I have had regard to the need to hold you accountable for your offending, the need to promote in you a sense of responsibility for and an acknowledgment of that offending, and the need to denounce the conduct in which you were involved. I have been mindful of the need to deter others from committing the same or similar offences. I have taken into account the gravity of the offending which you were involved in, including your culpability. I have noted that protection of the community is one of the express purposes of sentencing. I have considered the seriousness of your offending, and the general desirability of consistency of appropriate sentencing levels between similar offenders committing similar offences.
[36] I have also been mindful that I must impose the least restrictive outcome that is appropriate in the circumstances and endeavour to assist your rehabilitation and reintegration back into society. I have taken into account your strong family support, and your broad acceptance of responsibility to your and Ms Stewart’s families.
Analysis
[37] As I have already noted, I am required by s 102 of the Sentencing Act to impose a sentence of life imprisonment on you, unless, given the circumstances of the offence and your circumstances, a sentence of life imprisonment would be manifestly unjust.
[38] There is nothing to suggest that a sentence of life imprisonment would be manifestly unjust in your case.
[39] As has been noted in other cases,1 people sometimes confuse the minimum term of imprisonment that the Court is required to impose with a sentence of life imprisonment. The minimum term of imprisonment is not the sentence that a sentenced prisoner must serve. It is the time that he or she must wait before he or she is entitled to apply for parole. A person who is sentenced to life imprisonment is subject to that sentence, and is liable to recall to prison for the rest of their life if they are granted parole and if they offend again after being released on parole.
[40] Under the Sentencing Act, I am required to impose a minimum term of imprisonment of not less than 10 years, unless it would be manifestly unjust to impose that minimum term.
[41] In the present case, both counsel agree that, at the least, a minimum term of imprisonment of 10 years must be imposed.
[42] As I noted at the outset, the question is whether, and if so to what extent, that minimum term should be increased.
[43] Again, counsel are largely in agreement.
[44] There are a number of aggravating factors to your offending. I note those factors as follows:
(a) First, there is your pursuit of Ms Stewart. She removed herself from the confrontation in the hallway. She walked away saying that she would be the bigger person, and that she did not intend to take any further part in the confrontation. Despite this, you sought her out in the lounge. It was your decision to continue the confrontation, and indeed to escalate it. You created the situation that resulted, and you are solely responsible for the events that occurred in the lounge.
(b)Secondly, there is your decision to seek out and use a weapon. The confrontation in the hallway was largely verbal, although there was a
minor physical scuffle between you and Ms Stewart. When you
1 See eg R v Millar HC Auckland CRI-2010-090-5044, 21 June 2011.
decided to pursue the matter, you did not take the most direct route into the lounge and confront Ms Stewart. Rather, you went via the kitchen to pick up the knife. You put yourself in a position where you could escalate matters. The decision to seek out a weapon and then to use it, is in my judgment a significant aggravating feature. It indicates a degree of pre-meditation.
(c) Thirdly, you attacked Ms Stewart to the head. It is the most vulnerable party of the body.
(d)Fourthly, you were armed with the knife. You concealed it as you approached Ms Stewart. She was unarmed and vulnerable to your surprise attack. Ms Stewart did not have time to react and to try and protect herself.
(e) Fifthly, you committed the fatal assault on Ms Stewart in front of many of her friends and family members. The witnesses included four children, including one who was sitting on a couch directly in front of Ms Stewart when the assault occurred. I disagree with Ms Dyhrberg when she suggests that this is not an aggravating feature, and that it is simply context. In my view, your violent attack on Ms Stewart, committed in front of children and the deceased’s loved ones, is an aggravating feature. Their exposure to such serious and wanton violence will have had a significant effect on them for the rest of their lives. That this is the case is clear from Patricia Stewart’s victim impact statement. She was a witness to your offending.
(f) Finally, there is the fact that you did not stop to offer assistance, but instead fled the scene. You even had the presence of mind and temerity to stop and pick up your handbag.
[45] There are no mitigating features to your offending. The incident in the hallway cannot be used to invoke provocation as a mitigating factor, given that you and Ms Stewart were separated after that scuffle, and given that Ms Stewart walked away, saying that she would be the bigger person.
[46] Clearly self-induced intoxication is not a mitigating feature.
[47] The circumstances of your offending do not engage any of the statutory aggravating factors set out in s 104 of the Sentencing Act, which, if present, would have required me to impose a minimum period of imprisonment of at least 17 years.
[48] I have considered the comparable cases referred to me by the Crown.2 I have also considered other cases.3 For similar offending, minimum periods of imprisonment imposed have ranged from 10 to 12 years.
[49] I consider that the appropriate starting point when considering a minimum term of imprisonment for you is one of 11 years, taking into account the circumstances of your offending, and the aggravating features of that offending.
Personal circumstances
[50] I now turn to consider your personal circumstances.
[51] First, I have already referred to your previous convictions. The majority of your previous convictions are for dishonesty-related offending. They are irrelevant, but your previous conviction for wounding with intent to cause grievous bodily harm, and the notation in the Youth Court, whether it be for attempted murder or for injuring with intent to cause grievous bodily injury, are matters of concern. Both involved the use of weapons. I accept that there are aspects of that previous offending that distinguish both from the present case, but in my view, your previous conviction, and the notation in the Youth Court, do justify an uplift. Your previous
conviction and the notation indicate a predisposition to violent overreaction to
2 R v Millar, above n 2 – MPI of 11 years in relation to a “one stab” murder with no provocation and a degree of premeditation; R v Ray [2014] NZHC 599 – MPI of 12 years; R v Mahuki HC Hamilton CRI-2009-019-8099, 3 September 2010 – MPI of 10 years; R v Middleton [2012] NZHC 3261 – MPI of 11 years where the defendant had previous convictions, “a little, but not a great deal of premeditation”, polysubstance abuse and mental health difficulties.
3 R v Mataki [2016] NZHC 600 – MPI of 11 years where aggravating features included use of knife, attack to the head, impact on victim’s children and the vulnerability of the victim; R v Tauariki HC Auckland CRI-2010-092-11776, 29 November 2011 (appeal against conviction dismissed in Tauariki v R [2013] NZCA 366, (2013) 26 CRNZ 621) – MPI of 11 years where aggravating factors included premeditation, vulnerable victim, children and young people present.
perceived slights, and to a readiness to use weapons. It is necessary to protect the community from the risk you pose.4
[52] I adopt an uplift of one year.
[53] I now turn to consider mitigating factors. Two are raised by counsel in their respective submissions, although neither suggests that they should result in a discount from the sentence which is otherwise appropriate.
[54] First, the evidence at trial suggested that you suffer from attention deficit hyperactivity disorder (ADHD) and anti-social personality disorder. The Crown accepted that a discount on the basis of psychological conditions albeit falling short of a mental disorder can mitigate a sentence, either because, if the condition is causative of the offending, it mitigates the offender’s culpability, or because it
renders less appropriate or more subjectively punitive a sentence of imprisonment.5
[55] Here, there was no evidence to suggest that the disorders you suffer from were the operative causes of your offending. Rather, the evidence suggested that the major cause was your consumption of alcohol and your inability to control your anger and aggression. Nor is there anything to suggest that your conditions will make a sentence of imprisonment less appropriate or subjectively punitive for you.
[56] The evidence established that you have been prescribed medication for your ADHD, but that you decided not to take the medication. Rather, you elected to drink alcohol instead. Any discount from an otherwise appropriate sentence for medical reasons must be founded on a reduction in moral culpability. Where a person deliberately refrains from taking their medication and instead intentionally consumes alcohol, there is no reduction in moral culpability. If anything, there is an increase in culpability.
[57] I decline to allow you a discount for the medical conditions you suffer from.
4 Sentencing Act 2002, s 103(2)(d).
5 E (CA689/10) v R [2010] NZCA 13, (2011) 25 CRNZ 411 at [68].
[58] The second factor which might have afforded you a discount in the sentence otherwise appropriate is remorse.
[59] It was suggested in the Provision of Advice to Courts report that you have demonstrated remorse for your offending. However, in my judgment, the evidence of that remorse is questionable. You continue to deny key aspects of your offending, and you continue to attribute the causes of your offending to others. For example you told the report writer that you had used methamphetamine on a daily basis for a week in the lead up to the party. That is at odds with what you told the various psychiatrists and the doctor who examined you shortly after the offending. Further, you told the reporting officer that you were offered drugs at the party by other guests. There was no evidence adduced at trial to support that assertion. It was put to some relevant witnesses that there were drugs at the party. Those witnesses denied the presence of drugs. You seek to attribute to others what you say was an anti-social mood at the party. There was no evidence of that and the Facebook live videos painted a very different picture of a happy and relaxed social gathering.
[60] In my judgment, these matters demonstrate that you have yet to take full responsibility for your offending. Rather, they suggest that you still seek to put others in a bad light to justify your own actions. In my judgment, you are still seeking to shift the blame.
[61] Your claimed acceptance of responsibility and remorse have to be looked at with a considerable degree of scepticism. I decline to allow you a discount for your claimed remorse.
Sentence
[62] Ms Browne, will you please stand.
[63] Ms Browne, for the murder of Carly Stewart, you are sentenced to life imprisonment. You are to serve a minimum term of imprisonment of 12 years before being eligible to apply for parole.
[64] Once the minimum term of imprisonment that I have imposed is served, it will be for the parole authorities to determine whether and when you should be released. I am sure that they will only make an order for your release if they are satisfied that you have addressed the various issues that you suffer from, including your alcohol and substance abuse issues, and your propensity to resort to violence in situations you find challenging. You have said that you want to engage in the appropriate programmes. I trust that you will carry though with that.
[65] You may stand down.
Wylie J
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