R v Bush
[2018] NZHC 1354
•8 June 2018
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE
CRI-2016-019-005890
[2018] NZHC 1354
THE QUEEN v
LANCE ATI JACKSON BUSH
Hearing: 8 June 2018 Counsel:
J N Foster and R L Mann for the Crown
T Sutcliffe and L F Walkington for the Defendant
Sentence:
8 June 2018
SENTENCE OF EDWARDS J
Counsel: T Sutcliffe, Hamilton
L F Walkington, Hamilton
Solicitors: Almao Douch (Office of the Crown Solicitor), Hamilton
R v BUSH [2018] NZHC 1354 [8 June 2018]
[1] Lance Bush, you appear for sentencing today for manslaughter. You may remain seated until I ask you to stand to pass sentence.
[2] Your conviction relates to the brutal killing of Brent Brown. Regrettably, for the family, this is the third sentencing resulting from the death of their loved one. They are here again for your sentencing and I want to acknowledge their presence here today.
The offending
[3] The manslaughter conviction arises out of events on the evening of 31 August 2016.
[4] Your father and a co-defendant, Mr Houia, formed a plan to steal Mr Brown’s treasured Ford Fairmont car. It was a car worth $800, which did not work, and was parked outside the boarding house where Mr Brown lived.
[5] On 31 August 2016, you went with your father to the boarding house at his request. The summary of facts to which you pleaded guilty records that you did not know the purpose of the visit at that stage.
[6] When you arrived, you waited outside, and your father went into Mr Brown’s bedroom armed with a weapon. He threatened Mr Brown, telling him he intended to tie him up and take his treasured car. Mr Brown responded by throwing things at him. Your father then retaliated with a vicious and brutal assault.
[7] You went into the bedroom to assist your father. You held Mr Brown so that your father could continue his assault. That assault involved your father striking Mr Brown hard in the head with a weapon causing a visible hole in Mr Brown’s skull and significant bleeding. Those injuries were one of the causes of death. In addition, your father inflicted multiple blows to Mr Brown’s body, and his legs were also bound during this period.
[8] Three of your palm prints and a right thumb print were found in Mr Brown’s blood on the bedroom walls above Mr Brown’s head. Another of your palm prints was found on a computer monitor in the room.
[9] In the course of this attack, you became upset at the extent of the violence being inflicted by your father, and you left the room. You went outside the boarding house and crossed the road. Your father remained inside, and it appears that the attack continued, because you could still hear noises coming from Mr Brown’s bedroom.
[10] Your father came over to you. He asked you to return to the property. You hesitated. But eventually you decided to walk home.
[11] Mr Houia then smashed the ignition in the Ford Fairmont and hooked it up to the ute that you and your father had arrived in. Your father and Mr Houia drove off, towing the Ford Fairmont behind. The Ford Fairmont has not been recovered.
[12] Tragically, Mr Brown died of his injuries. The cause of death was determined to be strangulation and blunt force head injuries. There were multiple injuries to Mr Brown’s head and body, and multiple broken bones. He had a substantial open wound to the top of his head.
[13] You were arrested on 21 September 2016. Initially you claimed you had not been at the boarding house that night. When confronted with evidence of your palm print on the computer monitor, you asked what your father had said and brought the interview to a close.
[14] You were initially charged with murder and aggravated robbery together with your father. Through your counsel’s statement to the jury on the first day of trial, you indicated your defence would be that you were in the room that night and that you tried to intervene between your father and Mr Brown. You denied taking any part in the beating of Mr Brown.
[15] Your father pleaded guilty to murder and aggravated robbery halfway through trial. I sentenced him to life imprisonment with a minimum period of imprisonment
of 17 years for the murder, and a concurrent sentence of 10 years’ imprisonment for the aggravated robbery.
[16] You pleaded guilty to manslaughter shortly after your father changed his plea. The murder and the aggravated robbery charges were withdrawn.
Personal circumstances
[17] Mr Bush, you are 29 years of age. You left school at the age of 14 without any formal qualifications. The pre-sentence report notes that you grew up in impoverished circumstances under the care of your parents. You were exposed to harsh physical punishment, substance abuse, criminal behaviour and gang culture. That was due in large part to your father’s association with a gang. Both your parents have extensive criminal histories with numerous prison sentences. Clearly, neither parent could be considered to be a pro-social influence in your life.
[18] The pre-sentence report notes that you blame your father for the fatal assault on the victim, stating that his behaviour was “way out of the gate” and that it scared you. In attempting to justify your involvement in the assault, you told the pre-sentence report writer that it was out of a “force of habit” that you reacted to help your father. The pre-sentence report notes that you had a misplaced sense of loyalty to your father which resulted in you taking the actions that you did. Your risk of harm and reoffending is assessed as high to very high. That is largely due to your criminal history which includes 12 violence-related convictions.
[19] Finally, in terms of remorse, the pre-sentence report notes that you stated that you knew your actions were not right and that you feel terrible about everything. You have said you feel sorry for Mr Brown’s family as they have lost someone they love, and you also feel sorry for your infant son because you are not there for him.
Victim impact statements
[20]I turn now to the victim impact statements.
[21] We heard raw and moving expressions of grief from Mr Brown’s family members today and, indeed, at the sentencing of your father, Mr Bush Snr. There was deep pain and anguish, and real anger, at the role you played in the death of their brother and son.
[22] Clearly, Mr Brown was a much-loved son, brother, cousin, uncle and friend. Those who were closest to him have struggled to come to grips with his death. It has caused anxiety, sleeplessness and an inability to work. Your actions have contributed to the worst type of pain that a family can feel. I hope you listened to those statements today, Mr Bush, and that you reflect on them in the time to come.
Approach to sentencing
[23]The process I am going to follow in sentencing you today is:
(a)First, to set a starting point. I do that by considering the aggravating and mitigating features of your offending, and comparing your offending to the starting points adopted in other cases.
(b)Next, I adjust that starting point for aggravating and mitigating factors which are personal to you.
(c)Then, I consider whether there should be a discount for your guilty plea.
(d)Once I have determined an appropriate sentence, I will then consider whether to impose a minimum period of imprisonment.
[24] The law requires me to have regard to the purposes and principles of the Sentencing Act 2002 in sentencing you today. The purposes which are particularly relevant in your case are to hold you accountable for the harm done to the victim and the community, to promote a sense of responsibility in you for that harm, to denounce your conduct, to deter you and others from engaging in such conduct in the future, and to protect the community from you.
[25] I must also take into account the general desirability of consistency with appropriate sentencing levels, the effect on the victims of your offending, and your particular circumstances. I must impose the least restrictive sentence in all the circumstances.
Starting point
[26]I turn now to the starting point.
[27] The maximum penalty for manslaughter is life imprisonment. But there is no guideline judgment for cases of manslaughter because it covers such a wide range of situations.
[28] I need to set a sentence which reflects your culpability or blameworthiness. The focus is on the intentional conduct which caused the risk of harm, rather than the unintended consequence of death.1 With that focus, I consider there to be three aggravating features arising out of your offending.
[29] The first and most significant aggravating feature is that by holding Mr Brown you enabled your father to inflict horrific injuries on him. This was not holding Mr Brown back to stop him from hitting your father, or to somehow protect your father from harm. This was active participation in an assault which allowed brutal injuries to be inflicted, with a weapon, to Mr Brown’s head, ultimately resulting in death.
[30] The strikes to Mr Brown’s head caused substantial blood loss. You must have been there when that happened because that is the only explanation for your bloodied palm prints and thumb prints found at the scene. So, although you were not there for the entire duration of the assault, you were there and enabled the most brutal part of it. This is the key marker of your culpability in my view.
[31] Furthermore, you did not give any assistance to Mr Brown either at the time or afterwards. You did not try to stop your father or intervene to save Mr Brown’s life. You did not get help afterwards. You simply left Mr Brown there to die.
1 R v Leuta [2002] 1 NZLR 215 (CA) at [63].
[32] The second aggravating feature is that your involvement meant there were multiple offenders involved in the attack. It created a two-on-one situation. Mr Brown did not have a chance against those odds. And, as the Court of Appeal has noted, that means your culpability is to be assessed according to the culpability of the group as a whole.2
[33] The third aggravating factor is the fact that you entered Mr Brown’s bedroom. You invaded the sanctity of his room where he had the right to feel safe from harm, and you assisted in a vicious and horrific assault.
[34] There are some aggravating features which are not present in your case. You were not directly involved in inflicting the injuries on Mr Brown which resulted in his death. The Crown does not say that you restrained him with a cord, either around the neck or the ankles. Nor is it contended that you are directly responsible for any of the injuries to Mr Brown’s head or body.
[35] The Crown says to me today that but for your involvement, Mr Bush Snr may never have had the opportunity to inflict the injuries which led to Mr Brown’s death. In essence, Crown counsel submits that Mr Brown may well still have been alive but for your involvement. But, in sentencing you today, I am constrained by the summary of facts. I cannot make that inference based on the summary of facts before me, and I decline to do so.
[36] Another aggravating factor not present in your case is the element of pre- meditation. There was no plan to inflict the sort of violence which was meted out to Mr Brown. Your actions appear to have been a spur of the moment decision to assist your father, rather than any pre-determination to join in on the violence.
[37] A lack of pre-meditation is consistent with your withdrawal from the assault when the violence got too extreme. The fact that you were not present from start to finish is also relevant in assessing your culpability.
2 Kupa-Caudwell v R [2010] NZCA 357 at [100].
[38] Although your role in the assault assisted your father and Mr Houia to steal Mr Brown’s car, I place no weight on that factor in sentencing you today. You were not aware of the plan to steal the car, at least not initially, and that was not your motivation for joining in on the assault. Furthermore, you did not actually participate in stealing the car, which is why the aggravated robbery charge was withdrawn.
[39] Finally, in sentencing you today, I take into account that you were somewhat beholden to your father. It is clear from the pre-sentence report that neither of your parents have been a positive influence in your life, and your upbringing has been characterised by crime and violence. The fact that you were at the house at your father’s request, went in to the bedroom to assist him, had a moment of indecision when he asked you to return, demonstrates the influence that he had over you. That factor reduces your overall culpability, although it does not excuse what you did or absolve you from responsibility. It is simply another factor to be considered in setting the appropriate sentence.
[40] Having identified those features of your offending, the next step is to consider the starting point it should attract. There is a large gap between the starting point of eight to nine years adopted by the Crown and the three-and-a-half to four years adopted by your counsel.
[41] One approach is to consider where your offending would fit within the Taueki bands that you heard counsel speak about this morning.3 I agree with the Crown that the offending as a whole, that is, including your father’s vicious assault, would fit within band three. That would attract a starting point of between nine and 14 years’ imprisonment. But that would need to be reduced to account for your particular role in what happened. Those adjustments may well bring it within band two which attracts a starting point of between five and 10 years’ imprisonment.
[42] But I do not consider Taueki to be particularly helpful in your case given your conduct involves the enabling of serious harm, rather than the direct infliction of that harm. I consider a comparison of your offending to other manslaughter sentencings is a better standard by which to fix a starting point.
3 R v Taueki [2005] 3 NZLR 372 (CA) at [34]–[41].
[43] I have read all the cases referred to me by counsel,4 and a number of others.5 I do not intend to refer to them in detail in sentencing you today, but I will need to briefly touch on those which I have relied on in fixing your sentence. I will include the names of the cases I have read in the written copy of my sentencing notes.
[44] The Crown relies on the nine-year starting point adopted for Mr Reuben in R v Betham. Unlike you, Mr Reuben did not actively participate in the violence and was simply present throughout. On the other hand, there were a number of aggravating factors which are not present in your case. Those are: that the attack was pre- meditated; it involved three offenders; Mr Reuben was there throughout the assault; there was an element of vigilante action in the assaults; and the fact that it took place inside a prison, by serving prisoners, was a seriously aggravating factor. Something less than the nine-year starting point is warranted in your case.
[45] Your counsel has referred me to a number of cases with starting points ranging between four and five years. But I consider that those cases also have features which do not make them good comparators.
(a)The circumstances in Te Tomo and McNaughton are too dissimilar to be of any assistance. And the place of the attack and the age of the offender in Carruthers distinguish that case from yours.
(b)Your active involvement in the assault which led to death makes you more blameworthy than the drivers of the cars in Madams and Ahsin.
(c)I also consider your involvement to be more serious than the defendants who were merely present during the assault, as was the case in Pomare.
4 R v Betham [2016] NZHC 2107 (appeal allowed in part: Reuben v R [2017] NZCA 138); R v Ahsin [2015] NZHC 1884; R v Carruthers [2012] NZHC 1662; R v Innes [2016] NZHC 1195; R v Madams [2017] NZHC 81; R v McNaughton [2012] NZHC 815 (appeals against conviction allowed: McNaughton v R [2013] NZCA 657; Gillbanks v R [2014] NZCA 567; Warren v R [2013] NZCA 669); R v Pomare [2016] NZHC 1346; R v Te Tomo [2017] NZHC 1628.
5 R v AJN HC Hamilton CRI-2009-019-9786, 30 September 2010; R v Parker [2012] NZHC 2458; R v Maxwell CA359/02, 31 March 2003; R v Selby HC Auckland CRI-2007-092-20293, 4 February 2010; R v Jamieson [2009] NZCA 555; R v Brider HC Wellington CRI-2004-241-116, 3 September 2009; Kupa-Caudwell v R [2010] NZCA 357; R v Dempsey [2016] NZHC 3056; R v Tafutu [2014] NZHC 657; R v Barlow HC Auckland CRI-2003-19-01, 27 April 2007; R v Hamilton HC Whangarei T030025, 28 May 2004.
It is clearly more serious than Mr Innes’ involvement in Innes, who was not even present when the fatal blows were inflicted.
[46] Although some of these cases involved pre-meditated violence, I consider your active involvement, and the degree of harm enabled by your actions, is more significant in determining your culpability. Something higher than the four to five years’ starting point adopted in these cases is warranted.6
[47] I have found the case of Tafutu to be of some assistance in fixing a starting point. That involved an attack by two offenders who kicked and punched the deceased in his home. A starting point of seven years, six months was adopted for the secondary offender.
[48] As your counsel submits, that starting point reflects a degree of pre-meditation in the assault, whereas your actions were not planned. The secondary offender also directly participated in the assault, rather than just enabling it. Nevertheless, the violence involved was not as serious in that case as in this case, and the injuries were not directly causative of death. Overall, I consider your culpability to be on a par with that of the secondary offender in Tafutu.
[49] A starting point of seven years, six months is broadly consistent with the starting points adopted for L in Madams and the defendant in Kupa-Caudwell. It is also consistent with a starting point within band two of Taueki. On this basis, and on the basis of all the cases I have read, I consider a starting point of seven years, six months to be appropriate.
Personal aggravating and mitigating features
[50] Next, I consider whether there should be any adjustments for features which are personal to you.
[51] As I earlier mentioned, you have an extensive criminal history, amassing some 50 previous convictions. These include 12 violence-related convictions, with the most
6 R v Tafutu [2014] NZHC 657.
recent being a conviction for assaulting police in October 2014. This history shows a propensity for violence, and an uplift is appropriate. However, the uplift should not be so high that it effectively punishes you twice for your offending. I apply a six- month uplift for this criminal history.
[52] Your counsel seeks a discount for remorse. I consider your statements to the pre-sentence report writer reflect regret for yourself and your infant son for the circumstances you find yourself in, rather than genuine remorse. You have not taken any other steps to demonstrate remorse, and to the extent that you have accepted responsibility for what you have done, it is to be reflected in any discount to be given for your guilty plea. I decline to apply a separate discount for remorse.
[53] I turn now to consider the discount for your guilty plea. I cannot apply the full 25 per cent discount as your counsel seeks. The guilty plea came halfway through trial, and in the middle of the sixth witness of fact. The forensic evidence put you in the room and to that extent, the Crown case against you was strong. It was open to you to indicate to the Crown that you would be prepared to plead guilty to a manslaughter charge, but you did not do so.
[54] On the other hand, I accept that you pleaded guilty as soon as the charge of manslaughter, rather than murder, was on the table and the aggravated robbery charge was subsequently withdrawn. Your defence at trial was consistent with your subsequent plea at least up to the point of your actual involvement in the assault. And, unlike your father, your defence did not involve stress and angst for the witnesses who gave evidence. Your pleas also saved the State further trial time. Taking all of those circumstances into account, I apply a 15 per cent discount, or [just more than] 14 months, for your guilty plea.
[55] This brings the sentence to six years, nine months’ imprisonment and that is the sentence I intend to impose.
Minimum period of imprisonment
[56] The final step is to decide whether to set a minimum period of imprisonment. The fact that you did not inflict any injuries yourself, and were susceptible to the
influence of your father at the time, is relevant to this assessment. So too is your guilty plea and your acceptance that what you did was wrong.
[57] In light of those factors, I consider the sentence I intend to impose is sufficient to hold you accountable for the harm you have caused, to denounce your conduct and deter others from such conduct, and to protect the community from you.7 I do not consider a minimum period of imprisonment is required in your case.
Sentence
[58]Mr Bush, please stand
[59] For the offence of manslaughter, I sentence you to six years, nine months’ imprisonment.
[60]Mr Bush, you may stand down.
Edwards J
Postscript: At the Crown’s request, I formally discharged the murder charge against Mr Bush.
7 See Sentencing Act 2002, s 86(2).
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