R v Bush

[2018] NZHC 1217

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI-2016-019-005890

[2018] NZHC 1217

THE QUEEN

v

LANCE TANGIARIKI BUSH

Hearing:	28 May 2018
Counsel:	J N Foster and R L Mann for the Crown P J Morgan QC for the Defendant
Sentence:	28 May 2018

SENTENCE OF EDWARDS J

Counsel:     P J Morgan, QC Hamilton

Solicitors:    Almao Douch (Office of the Crown Solicitor), Hamilton

R v BUSH [2018] NZHC 1217 [28 May 2018]

[1]    Lance Tangiariki Bush, you appear for sentencing today for murder and for aggravated robbery. You pleaded guilty to those charges in the middle of a jury trial earlier this year.

[2]    Your convictions relate to the brutal killing of Brent Brown. Before I go on, I want to acknowledge the friends and family of Mr Brown who are in Court today. The law sets out a process which I must follow in sentencing Mr Bush today. It does not, and it cannot, respond adequately to the loss of a loved one in such senseless and horrific circumstances.

[3]    I know, too, that you will be disappointed that Lance Bush Jnr is not here for sentencing today. But I hope that you will understand that the sentence which I ultimately impose, whether on Lance Bush Snr or Lance Bush Jnr, must reflect, as closely as possible, what happened that terrible night. And to go ahead today with a sentencing for Lance Bush Jnr would risk getting that sentence wrong, and that, I think you would agree, would be a much worse thing for all concerned.

[4]    I will return shortly to the victim impact statements, but for now I do want to acknowledge your presence, and extend the Court’s sympathy for your loss.

The offending

[5]Mr Bush, I now turn to summarise your offending.

[6]    Brent Brown was a quiet man who kept to himself. He was a collector of sorts, and the things that he collected were his prized possessions. One of those prized possessions was his Ford Fairmont car, which was parked outside the boarding house where he lived. It was  a car worth  $800,  which  did  not  move, and was  full  of  Mr Brown’s treasures.

[7]    Mr Bush, you and an associate, Mr Houia, formed a plan to steal Mr Brown’s car. Apparently, you wanted it for parts. You would tell someone later that the plan was to tie Mr Brown up and then take his car.

[8]    On the evening of 31 August 2016 you put that plan into action. You and your son went to the boarding house that night. You went into Mr Brown’s bedroom wearing white latex gloves and armed with a weapon. You threatened Mr Brown. You told him you were going to tie him up so that you could take his car.

[9]    Mr Brown appears to have resisted. He began throwing things at you. And you retaliated by commencing a horrific and sustained attack against him. You struck him multiple times in the head with the blunt side of a weapon. Later, you would tell someone that it was a gun that you  used.  That caused a huge hole in the back of   Mr Brown’s head and enough blood  to  leave  smears  of  it  across  the  walls  of  Mr Brown’s room and over his things. Mr Brown cried out for help, but nobody came, and you did not stop. There were multiple blows to his body. His legs were bound. And a cord was placed around his neck.

[10]   Your son came into the room during the course of the attack to help you. He held Mr Brown so that you could inflict the fatal blows. But your son became upset at the extent of the violence, and he left the room, and the house. You followed him and tried to persuade him to come back to the property, but he did not.

[11]   Mr Houia then smashed the ignition in the Ford Fairmont and hooked it up to the ute you  had  arrived  in.  Both  you  and  Mr  Houia  drove  off,  towing  the  Ford Fairmont behind. The Ford Fairmont has not been recovered.

[12]   You then returned back to the boarding house. You went into Mr Brown’s bedroom. You knew at that time he was likely dead or dying. But you did not go in  to help him. Instead, you got a glass of hot water to wipe the surface of a door handle downstairs in the house.

[13]   Later, when you returned home, you lit a fire in a metal drum at the back of your house and you burned the clothing worn by both you and your son during the attack. You exchanged texts with Mr Houia about the car that you had just stolen.

[14]   I apologise in advance to the family, but I have to go through the catalogue of injuries that your loved one suffered.

[15]   Mr Brown died of blunt force head injuries and strangulation. There were multiple injuries to Mr Brown’s head and body, including a huge open wound at the top of his head which was the source of all the blood. Mr Brown had multiple broken bones, bruises and lacerations to his face, mouth, ears and scalp. There were injuries to every plane of his head and a possible skull fracture.

[16]   There were also injuries to his body. He suffered multiple fractures to his ribs at the front, side and back of his ribcage and his left shoulder blade was also fractured. The bruising around his neck showed the use of a ligature which suggests that significant pressure was put around his neck at different times.

Victim impact statements

[17]   I turn now to the victim impact statements which I have received, and read, and which were read out by members of Mr Brown’s immediate family this morning.

[18]   Bruce Brown described his brother, Brent, as someone who was harmless. He loved guitars, V8s, Triumphs, Falcons, fishing and coming home to Mum’s for a good boil up. He describes his brother’s murder as the hardest, most heart-breaking, devastating and senseless thing that has happened to their family.

[19]   Alice Brown also talked about the huge pain you have caused her and her family. She says the images of seeing her brother’s dead body, encased in a white plastic suit, when it was returned to their family is ingrained in her memory. And she is still suffering from the loss of a much-loved brother.

[20]   We also heard from Tracey Thomas. The deep-seated anguish she feels towards you for the cowardly and brutal murder of her brother was evident to all of us here.

[21]   Helen Brown told us of sleepless nights, anxiety, and a hole in the family’s heart.

[22]   Colin Brown gave a moving account of driving past his brother’s resting place, beeping his horn, and receiving nothing in response. And he spoke about the grief- stricken parents and the hurt that you have left them with.

[23]It is abundantly clear that you have inflicted immeasurable pain on this family

– and all for a $800 car which did not work.

Approach to sentencing

[24]Mr Bush, I now turn to the approach I have taken to sentencing you today.

[25]   For the murder of Mr Brown, I must sentence you to life imprisonment unless it would be manifestly unjust to do so.1 There is nothing about your case which would make it manifestly unjust, and you will be sentenced to life imprisonment.

[26]   The law requires me to fix a minimum period of imprisonment. That is the minimum period you will spend in prison before being eligible for parole. Section 104 of the Sentencing Act 2002 provides that I must impose a minimum period of imprisonment of at least 17 years in certain circumstances. All counsel agree that your case is one which triggers s 104, and that you should stay in prison for at least 17 years. But the Crown says it should be longer. It asks me to impose a minimum period of 18 years in prison.

[27]   I am going to follow the process set out by the Court of Appeal to decide whether the minimum period should be 17 years or more.2 In doing so, I bear in mind the principles and purposes of sentencing,3 and the purposes of fixing a minimum period of imprisonment. Those purposes are to hold you accountable for the harm caused, denounce your conduct, deter you and others from such conduct, and to protect the community from you.4

1      Sentencing Act 2002, s 102.

2      R v Williams [2005] 2 NZLR 506 (CA) at [52]–[54].

3      Sentencing Act 2002, ss 7–8.

4      Sentencing Act 2002, s 103(2).

Aggravating features of offending

[28]   I start with the aggravating features of your offending. I consider there to be three such features which engage s 104. There is no dispute about the first two. The murder involved the unlawful entry into Mr Brown’s bedroom where the attack took place.5 The murder was also committed in the course of an aggravated robbery.6

[29]   As to the third aggravating feature, I agree with the Crown that your murder of Mr Brown  involved  a   high  level  of  brutality,   and  callousness.7   You   bashed Mr Brown’s head multiple times with a weapon. It caused a visible hole in his head and substantial blood. There were multiple blows to his body, and ligature marks around his neck caused by strangulation. You did not stop when he cried out for help. You continued to beat him to death. And when you finished beating him, you just left him to die.   That level of brutality and callousness is sufficiently serious to engage   s 104.

[30]   However, I do not agree with the Crown that Mr Brown’s vulnerability was an aggravating feature in this case. Mr Brown’s mental health issues did not play a part in the murder. He was a physically capable man, and he did not give up his prized possessions without some resistance. The fact that he was tied up at some point is already reflected in the seriousness of the violence you inflicted on him. I do not consider it engages vulnerability in the sense that it is used in s 104.

[31]   The Crown also points to pre-meditation as another aggravating feature of your offending. But I consider any planning involved was in relation to the aggravated robbery, and not the murder. The plan was to tie up Mr Brown in order to steal his car. I accept that the beating and the strangulation that led to his death was not part of the plan. I do not put any weight on pre-meditation in fixing the minimum period of imprisonment.

[32]Mr Bush, there are no mitigating features of your offending.

5      Sentencing Act 2002, s 104(c).

6      Sentencing Act 2002, s 104(d).

7      Sentencing Act 2002, s 104(e).

Comparison to other cases

[33]   The next step is to compare your offending to other cases of particularly serious murders. I have read all the cases referred to me by counsel,8 and some others.9 I will not read them out now, but will list them in a written copy of these notes.

[34]   The cases of Cummings v R, and Baker v R are the most comparable to yours. Both cases involved murder committed in the course of a robbery.

[35]   A minimum period of 18 years was adopted for three of the four offenders in Cummings. The fourth offender would have received a minimum period of imprisonment of 15 years, six months had it not been for s 104.

[36]   I consider the main offending in Cummings to be more serious than yours. It involved an attack by four people, and there was evidence that part of the victim’s body had been targeted with the sole purpose of causing him pain. There was also an exchange of messages which suggested that at least some of the offenders contemplated the possibility of someone being killed that night. Something less than 18 years is warranted in your case.

[37]   However, your offending was significantly more serious than that of the fourth offender, who did not inflict any physical violence on the victim. Something more than 15 years, six months is warranted in your case.

[38]   I also consider your offending to be more serious than in Baker, where a 14- year minimum period would have been imposed had it not been for s 104.10 Death in that case involved a single blow with a knife; whereas your attack involved multiple blows to Mr Brown’s head. The altercation in Baker which led to death happened in the doorway of the victim’s home; whereas you invaded the sanctity of Mr Brown’s

8      Cummings v R [2016] NZCA 509; Marteley v R [2016] NZCA 480; Baker v R [2015] NZCA 306; R v Boskell [2015] NZHC 286; R v Price [2018] NZHC 811; R v Slade [2005] 2 NZLR 526 (CA); Dawood v R [2013] NZCA 381; R v Gottermeyer [2014] NZCA 205; Uhrle v R [2015] NZCA 412; R v Frost [2008] NZCA 406; R v Korewha [2015] NZHC 308.

9      Malik v R [2015] NZCA 597; R v Holl [2013] NZHC 2932; R v Watene HC Wellington CRI-2007- 485-127, 11 December 2007; Akash v R [2017] NZCA 122; Cornelius v R [2014] NZCA 123; DD (CA595/2014) v R [2015] NZCA 304; R v Karauria [2018] NZHC 1184.

10     Baker v R [2015] NZCA 306 at [40]. See R v Innes [2014] NZHC 2780 at [44].

bedroom. Your conduct requires greater denouncement and deterrence than in Baker, and consequently a higher starting point.

[39]   On the basis of these cases, and the others I have read, I consider a starting point of 17 years for the minimum period of imprisonment is appropriate.

Personal aggravating and mitigating features

[40]   Next, I consider whether there should be any adjustments for features which are personal to you.

[41]   You are 49 years old and a father of five. Your eldest son, Lance Bush Jnr, was involved in the murder of Mr Brown and is for sentence for manslaughter. You have been in a long-term relationship for 35 years, but it has been characterised by violence and crime. The pre-sentence report writer assesses your risk of harm to others as high, but your risk of re-offending as moderate.

[42]   You have an extensive criminal history which stretches back over 30 years. This includes various domestic violence offences against your partner. I do not accept your counsel’s submission that these offences are irrelevant because they are against only one victim. They show a propensity for violence and a predilection to act in a specific way irrespective of your victim’s identity.

[43]   However, I do accept that these convictions are historic in nature, with the last conviction for offending in 2010. That was six years before Mr Brown’s murder. Given the age of those convictions, I do not consider your history poses a particular risk to society which would warrant an increased minimum period of imprisonment. I therefore decline to apply an uplift.

[44]   There are no personal mitigating features. You have not expressed any remorse at all for your offending. In fact, if the pre-sentence report is to be believed, you still blame others for what happened despite your guilty plea.

[45]   Your guilty plea came half-way through trial. Although you saved some hearing time by entering that plea, that is more than offset by the time, cost and effort

in bringing you to trial. Apart from the financial cost, you put several witnesses, including Mr Brown’s sister, through considerable stress in reliving the events of that terrible evening. Your defence involved blaming one of those witnesses for the murder, and others were cross-examined on the basis that they were somehow involved or covering up for others. I do not apply any discount for your guilty plea in those circumstances.

Minimum period of imprisonment

[46]   This leads to a 17-year minimum period of imprisonment. It is no less than the statutory minimum so I do not need to go on and consider whether there are any factors which would make it unjust to impose such a term. In any case, your counsel does not argue that such a term would be unjust. And I agree.

[47]   The minimum term is no more than the 17-year minimum period, and so there is no basis to apply something greater than this. I am satisfied that requiring you to serve at least 17 years in prison is consistent with the policy of s 104, and the purposes of imposing a minimum period of imprisonment. That is the minimum period I intend to impose.

[48]   I need to stress that this is not a cap on your sentence. It is the minimum time you will serve. Whether you get out after 17 years will be a matter for the Parole Board to decide.

Aggravated robbery

[49]That just leaves the aggravated robbery conviction.

[50]   Whatever I impose for this separate offence cannot lengthen the time you spend in prison. That is because you will be serving a sentence for life which does not have a definite end-point. Nevertheless, it is a separate offence which requires a separate sentence. It is to be sentenced on a stand-alone basis.

[51]   I have had regard to  the  four-year  starting  point  which  was  adopted  in Mr Houia’s sentencing.11 I consider you  to  be  significantly more  culpable  than  Mr Houia. You planned the robbery, you invaded the sanctuary of Mr Brown’s room, and you inflicted the most grievous and serious violence which resulted in the tragic loss of life. In line with the Court of Appeal’s decision in R v Mako, I consider a sentence of 10 years’ imprisonment is appropriate for the aggravated robbery.12

Sentence

[52]Mr Bush, please stand.

[53]   For the offence of murder, I sentence you to life imprisonment with a minimum period of imprisonment of 17 years.

[54]   For the aggravated robbery offence, I sentence you to 10 years’ imprisonment to be served concurrently with the murder sentence.

[55]Mr Bush, you may stand down.

Edwards J

11     R v Houia [2018] NZHC 1056 at [35].

12     R v Mako [2000] 2 NZLR 170 (CA) at [28] and [43].