R v Dempsey
[2016] NZHC 3056
•13 December 2016
IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY
CRI-2015-042-1331 [2016] NZHC 3056
THE QUEEN
v
RONAYNE JOSEPH DEMPSEY AND TIMOTHY BRUNSELL
Hearing: 13 December 2016 Counsel:
M A OʼDonoghue and R M Thomas for Crown
J C S Sandston for Mr Dempsey
A J D Bamford and T C Lyall for Mr BrunsellSentencing:
13 December 2016
SENTENCING NOTES OF CLIFFORD J
Introductory remarks
[1] Mr Dempsey and Mr Brunsell, you appear for sentence today having been convicted, after a trial before me here in the High Court at Nelson, for your respective roles in the death of Bruce Mortimer, then aged 46 years old. You were charged jointly with Mr Mortimer’s murder.
[2] Mr Dempsey, the jury found you guilty of murder, as charged. Mr Brunsell, the jury found you not guilty of murder, but guilty of manslaughter.
[3] As I think you have been told, I will sentence you separately today: Mr Dempsey you first, and then you, Mr Brunsell.
R v DEMPSEY AND BRUNSELL [2016] NZHC 3056 [13 December 2016]
[4] One of Mr Mortimer’s family, Chelsea Mortimer, has, as Mr O’Donoghue has just reminded me, prepared a victim impact statement and is here in Court today to read that statement. It is appropriate that both of you hear that statement. Accordingly, and so that she does not have to read it twice, I will ask her now to read it while you are both present in Court. When she has done so, I will adjourn the part of this sentencing hearing that relates to you, Mr Brunsell, and ask you to stand down and I will sentence Mr Dempsey. When Mr Dempsey has been sentenced, he will stand down, you will be brought back into Court and I will then impose sentence on you.
[5] So I now invite Chelsea Mortimer to read her victim impact statement to the Court. Ms Mortimer, and if you would just like to come forward and if you just want to stand at the back of the Court there, thank you.
[Ms Mortimer reads victim impact statement.]
[6] Thank you Ms Mortimer. Mr Brunsell if you would stand down please.
[7] Mr Dempsey I am now going to proceed to sentence you. You may sit down in the dock and I will ask you to stand towards the end of my sentencing Mr Dempsey, when I impose sentence on you.
Sentencing – Mr Dempsey
[8] Mr Dempsey I will first explain to you, and to all here in the Court, the decisions I must make today to determine your sentence.
[9] When a person is convicted of murder, our law requires the Court to impose a life sentence, unless such a sentence would be manifestly unjust. Such a sentence is clearly not manifestly unjust here. Therefore Mr Dempsey, you are sentenced to life imprisonment.
[10] When a Court imposes a life sentence for murder, the Court must also decide on the minimum period of imprisonment the convicted person must serve. The minimum period is the minimum term of imprisonment that the convicted person
must serve before they are eligible for parole. This is because, even though a person receives a life sentence, they can, after the defined time, apply for parole. But even when released on parole, a person sentenced to life imprisonment remains subject to that sentence for the rest of their life, and may be recalled to prison.
[11] The minimum term may not, except in very rare cases and this is not one of them, be less than 10 years.
[12] Our law also provides that for some murders the minimum period must be at least 17 years, unless the Court is satisfied that would be manifestly unjust. So I have to decide on what the minimum sentence will be and I now invite submissions from the Crown and from the defence on the questions of sentence, sentence length and associated matters. And I will start with you Mr O’Donoghue for the Crown.
[Crown and defence make oral submissions]
[13] You have heard the submissions, Mr Dempsey, and so have the people in Court. One of the difficult things about sentencing for murder is that the Court inevitably has to compare one murder with another. Now for the people affected in the particular case, that makes little or no sense. Because one murder from the victim’s point of view is just as serious as another murder. But as with so many things in the law, it has to make sense over time and we have to act fairly as between one murder and another and we have to remember that what I saw here today, what I decide here today, is not only relevant to Mr Dempsey, to Mr Mortimer’s family and to the wider victims and to the community, it will be relevant in the future. So inevitably as both Mr Sandston and Mr O’Donoghue have recognised, when it comes to this question of whether or not a minimum sentence of 17 years should be imposed or if it should, as a matter of strict law, then the law says it is not to be imposed if it is manifestly unjust, I have to compare this murder with other murders. And I do not do that thinking the exercise is meaningful in and of itself in the courtroom today. But I do it because of the way the law has to apply over time and in various different circumstances. So with that background, what I will do first is I have to determine what I take to be the facts of the case and they are pretty clear here, but I need to record them. Against that I will then consider whether or not the
section you have heard about, s 104 which applies to the most serious kinds of murders, applies here. And if it does or does not, what the minimum sentence should be.
Summary of Facts
[14] Now Mr Mortimer died as a result of bleeding on the brain associated with a fracture to his skull caused when you, Mr Dempsey, punched and kicked him to the head during a violent altercation at Franklyn Village in the early hours of the morning of Saturday 4 July 2015.
[15] The background to that assault was, on the basis of the account you gave to the police, a disagreement relating to morphine tablets that had gone missing from Mr Mortimer’s room days earlier. You said Mr Mortimer had accused you of taking those pills, you were angry about that. You said you agreed to help him if he would speak to an acquaintance of his with whom you were having difficulties. You said you would either get the pills back and return them to him, or sell them and give him the money. But it would appear you had thought, on the basis of your explanation, that he had not kept his side of that bargain.
[16] Turning to what happened, in your statement to the police, you initially attempted to downplay the extent of the violence you inflicted on Mr Mortimer. As your interview progressed you acknowledged that, as the police said you had been observed doing, you had punched and kicked him to the head, including whilst he was lying on the ground. Your position at your trial, that you accepted you were guilty of manslaughter, confirms that acknowledgement. You did not dispute in any material way the narrative the Crown presented of what happened in Mr Mortimer’s room and in the hall outside. Your defence to the charge of murder was at the time based on challenges to what the Crown said were your intentions that evening, and your appreciation of the likely consequences of your actions.
[17] And I just want to turn to some of the evidence very briefly about that.
[18] In the days leading up to Friday 3 July two people had heard Mr Dempsey say he was going to stab or smash Mr Mortimer in relation to the morphine pills.
[19] Several of your acquaintances that evening described the events. Two different groups of people had been partying in Franklyn Village. They came together, they including you, in room 214, along the corridor from your and Mr Mortimer’s rooms. A number of those people said they heard you saying the guy down the hall had $200, that you wanted that money to buy alcohol and that you were going to jump him for it or stab him to get the money.
[20] Eventually, you went to Mr Mortimer’s room. Mr Brunsell followed you. You banged and knocked loudly on the door. Witnesses heard you saying that Mr Mortimer had ripped you off. Mr Mortimer opened his door and you pushed your way in. A fight started there. It continued in the hallway. It was in the hallway that you punched and kicked Mr Mortimer to the body and the head causing the fatal injuries. That violence stopped when Mr Burgess, a neighbour, stood up to protect Mr Mortimer from you.
[21] The security guard arrived shortly after that. Mr Mortimer, helped by Mr Burgess, was able with some difficulty to return to his room. Mr Burgess wanted him to go to hospital, but he declined. He was subsequently taken to Hospital. Efforts to conduct a CT scan were unsuccessful at first. By Saturday afternoon, it was clear Mr Mortimer was suffering from the effects of bleeding on his brain. Specialist surgery was required. It was not available in Nelson. Arrangements were made to transfer Mr Mortimer to Wellington by helicopter. Unfortunately, by the time he arrived at Wellington Hospital it was too late. The damage had been done. Mr Mortimer was declared brain dead at approximately 11.00 pm.
[22] Put very simply then, Mr Dempsey you punched and kicked Mr Mortimer to the head with sufficient violence to fracture his skull, and cause his death, to get money from him which you intended to use to buy alcohol. It is on that basis I will sentence you.
[23] I turn now to some of the material that has been provided to me.
Pre-sentence report
[24] Mr Dempsey, your pre-sentence report makes for sombre reading as I am sure you are aware yourself.
[25] You have been unemployed since you were 17. You turn 29 years old I think later this week. You have two children by previous partners, but have limited contact with them. You are close to your father and your twin sister, a reason that would appear to have brought you to Nelson. You acknowledge a history of alcohol and drug abuse. You also acknowledge having attempted suicide on a number of occasions in the past.
[26] You have a lengthy history of offending, including 30 violence related offences since 2005. You have well-established difficulties with anger management and over-reaction.
[27] The report writer notes, however, you take responsibility for this offending, that you have expressed remorse towards the victim and his family and that you recognised your wrongful acts caused an innocent person’s death. And my sense is that the report writer, who will be experienced in these things, accepted your honesty and genuineness when you conveyed those feelings to him.
Victim impact statements
[28] You have heard the victim impact statement from Chelsea Mortimer this afternoon. Mr Mortimer’s older daughter, Myia, I hope I am pronouncing that the correct way, and his sister Gail Howard, have also provided victim impact statements. They naturally speak of the impact on their lives Mr Mortimer, their father and brothers death has had on them. They refer to the violence you inflicted on him, to the harm you caused to him and to the fact that you were prepared to do that over the sum of just $200. They particularly recall the trauma of having to make the decision, on medical advice, to turn off Mr Mortimer’s life support system at Wellington Hospital. That is an awful decision for any person to have to make as a family member: it is even harder where the cause of death is, as here, senseless violence.
Sentencing discussion
[29] So I turn now to the legal issues
[30] Pursuant to s 104 of the Sentencing Act, a sentence, a minimum sentence of
17 years’ imprisonment is required where particular circumstances exist, unless to impose such a sentence would be manifestly unjust. The purpose of s 104 is to ensure that people who commit the worst murders are not released for a long period of time.
[31] The Crown submits that two of those factors are here: (a) unlawful entry into, a dwelling;.
(b) And that Mr Mortimer’s murder was committed in the course of
another serious offence, namely an attempted aggravated robbery.
[32] In many of the legal cases sentences for murder where s 104 has been discussed, there has been no dispute whether or not the factors apply. That is accepted that they have. Here that is not the case. So that is an issue I must determine. And I must determine it bearing in mind not only the sad factors of this case but the significance of the law as a whole and how it should be interpreted and applied over time.
[33] The Crown says first that, because you pushed into Mr Mortimer’s room, and your assault on him started there, that Mr Mortimer’s murder involves what is commonly termed a “home invasion.
[34] The courts have frequently emphasised that it is not appropriate to take an overly technical approach to the application of this provision. As in fact the courts emphasise about law all the time. Thus in one case where a man fleeing from his assailants, was caught as he tried to enter his home through a window, dragged back and subsequently killed, the section was held to apply. For the Crown, the submission is that Mr Mortimer’s room at Franklyn Village was, to all intents and purposes, his “dwelling place”.
[35] Certainly, Mr Mortimer’s bedroom was his private space: a place to which he was entitled to control entry. So that consideration favours the approach the Crown argues for. At the same time, I am not persuaded that as a matter of law Mr Mortimer’s bedroom at Franklyn Village can be seen to be his residence or his dwelling place, as that term is used in s 104, and in other places in the Sentencing Act. Franklyn Village was Mr Mortimer’s dwelling place or residence, as it was yours. Whilst you each had your own, private, bedrooms, you shared the use of the public living spaces in the Village. In my view s 104 is not, therefore, called into play because of where your assault on Mr Mortimer began.
[36] I turn then to the question of whether Mr Mortimer’s murder occurred in the
course of you committing another serious offence.
[37] You did not actually steal any money from Mr Mortimer.
[38] As I ruled at your trial, and as you have heard referred to in Court today, the fact that you killed Mr Mortimer for the purpose of robbing him, albeit that you did not achieve that purpose, was sufficient for the purposes of the alternative murder charge you faced. The question is whether it is sufficient here also. There is no question that “robbery” is a serious offence. Here, what occurred was an attempt to rob. There are cases where in the course of an attempted burglary or robbery, a person has been killed and s 104 has been applied. The Crown referred me to one
such case.1 There the defence accepted, for good reasons that the section applied.
And the Court of Appeal, which I must follow, did not itself consider the point.
[39] It has been held in another case that an intention to commit an offence is not enough.2 And this is getting technical but I need to do this. There, I acknowledge the evidence fell short of establishing an attempt. I also note that under the three
strike regime, an attempt to commit a serious violent offence is not a strike offence.3
1 Wilson v R [2010] NZCA 360.
2 R v Kinghorn [2014] NZCA 168.
3 Simon France (ed) Adams on Criminal Law (online looseleaf ed) at [SA86A.03]. See also discussion in Fa'anunu v Police HC Auckland CRI-2010-404-460, 28 March 2011 as to the differences between party liability and attempts.
[40] So as is sometimes the case with the law, the position is a little unclear. For my part I favour the view that Mr Sandston advanced, namely that the words of the section “in the course of committing a serious offence” refer to a completed offence. But even if I were to be wrong on that, and s 104 applied because of the attempted robbery then in my view it would be manifestly unjust to sentence you to a minimum period of 17 years.
[41] I reach that conclusion on the following basis.
[42] Where s 104 does not apply, the Court is first to determine the minimum term without parole of the life sentence that a person must serve by applying what is called s 103 of the Sentencing Act.
[43] The minimum term must be the term sufficient to hold an offender accountable, denounce the conduct, deter the offender and others, and to protect the community.
[44] In imposing a sentence for murder, what are called aggravating factors referred to in s 9 of the Sentencing Act are relevant. And where violent offending is concerned, these are things like attacking the head, the use of a weapon and particular brutality.
[45] All murders involve violence. By definition they all involve very serious violence. And there was here in my view a degree of callousness and brutality in your attack on Mr Mortimer. As I have said, you punched and kicked Mr Mortimer to the head with sufficient violence to fracture his skull, and thereby cause his death. But I am not satisfied I can sentence you on the basis that a weapon was involved.
[46] Taking those matters into consideration, I consider that – putting aside s 104
– a minimum period of 12 years’ imprisonment is called for.
[47] In those circumstances, I consider it would be manifestly unjust to sentence you to 17 years. All murders, as I have said, are serious. But the courts have often emphasised that, although the proper application of s 104 will result in higher
sentences than would otherwise be the case, it is nevertheless intended to apply to the most serious of murders. And they are murders where violence is extended over a long period of time, where offenders have returned and committed violence again, and where there are other factors that, assessing matters as best I can and accepting the invidiousness of comparison, those factors are not here.
[48] So Mr Dempsey I do not assess that your murder for these purposes falls into that most serious category. Mr Dempsey please stand.
[49] For the murder of Bruce Mortimer, Mr Dempsey, you are sentenced to life imprisonment and ordered to serve a minimum term of imprisonment of 12 years.
Strike warning
[50] Mr Dempsey the offence of murder is a serious violent offence under what is called the three strikes regime. I am required to warn you of the consequences of you committing and being convicted for another serious violent offence after this warning. You will be given a written notice outlining those consequences and that written notice will list what are serious violent offences. If after this warning you commit and are convicted of any serious violent offence other than murder, and if a judge imposes a sentence of imprisonment, then you will serve that sentence without parole or early release. If you are convicted of murder again after this warning, then you must be sentenced to life imprisonment. That would also be served without parole unless that would be manifestly unjust. In that event the Judge must sentence you.
[51] Stand down.
Sentencing – Mr Brunsell
[52] Timothy Brunsell you appear before me today at the young age of 18 to be sentenced for your part in the events that caused the death of Bruce Mortimer. You were charged with Mr Mortimer’s murder along with Mr Dempsey. You were found not guilty of his murder but guilty of his manslaughter. In order to determine your sentence Mr Brunsell, I must first decide what the starting point for that sentence is. That is, the sentence here is inevitably a sentence of imprisonment that reflects the seriousness, that is the degree of wrongfulness, of what you did. I must then consider factors personal to you which may increase or reduce that sentence. At that stage of the sentencing exercise I will have regard to the report prepared by the Department of Corrections and to the various reports that have been prepared on you over time by other welfare agencies. I now request submissions first from the Crown and then from Mr Bamford for you.
[Crown and defence make oral submissions]
[53] Before I go any further Mr Brunsell, I just want to remind you of what Chelsea Mortimer said this afternoon. You have heard that. I also want to remind you of what her sister, Myia and her Aunty Gail, Mr Mortimer’s sister, said in their victim impact statements. They speak of the impact of the loss of Mr Mortimer on them. They are naturally, as daughters and sisters, upset to use a completely inadequate word, at the degree of violence that was inflicted on their father and brother. And they particularly recall the trauma of having to make the decision on medical advice to turn off the life support system. Those are things you will need to carry with you.
Starting point
[54] So I turn to the question of the starting point sentence. The Crown with reference to Taueki, a case about grievous bodily harm offending, points to premeditation, multiple attackers, home invasion, attacking the head, extreme
violence, serious injury causing death, and suggests a starting point of six years.4
Taueki is a case where, intentionally, grievous bodily harm is inflicted.
[55] For you, Mr Bamford submits that is not the correct approach given the jury’s verdict and the charges you faced. The submission is I should sentence you on the basis that although you did assist Mr Dempsey, you did that without knowledge that he either intended to cause Mr Mortimer’s grievous bodily harm or that he intended to steal and, knowing that, you intentionally assisted him when he inflicted serious bodily harm.
[56] So to decide which of those two approaches is correct, I have to consider
what the jury’s verdict represents.
[57] I have set out the facts as I find them to be with Mr Dempsey and I will now do so as regards you.
[58] On that evening of Friday 2 July last year you were relaxing with friends in Franklyn Village where you were then staying. Drugs and alcohol were consumed. You had been living there for about a month. You and Mr Dempsey had formed a relationship: I accept he was very much the dominating partner in that.
[59] At one point during the evening you lost, or thought you had lost Mr Dempsey’s keys. He was giving you a hard time about that. The evidence is that you were clearly agitated and upset about that. You eventually found those keys in your pocket.
[60] The evidence, as is often the case with events of this nature, is not absolutely clear, but I infer that at some point Mr Dempsey was talking about attacking Mr Mortimer to get money from him. You say you did not hear that. Others in the room did. What is clear is that at one point you did decline to join Mr Dempsey going to Mr Mortimer’s room. You went up to your room. You returned back to
level 2 in circumstances for which the evidence was not clear. It may be you were
4 R v Taueki [2005] 3 NZLR 372.
returning a phone to Mr Dempsey. You knocked on the fire door and then when Mr Dempsey turned around and opened the door, you followed him down the hallway. You went into Mr Mortimer’s room with him. You were there in the room and you were with him at the end of the corridor during part of the attack that ultimately caused Mr Mortimer’s death.
[61] In your statement to the police you admitted getting involved in the fight: you admitted, as I heard the evidence, helping restrain Mr Mortimer so that Mr Dempsey could get free from a headlock. The Crown has referred to that as pinning Mr Mortimer. It is not clear to me that you did that to enable Mr Dempsey to inflict the serious violence on him that he did.
[62] None of the witnesses from the hallway outside Mr Mortimer’s room saw you inflicting violence. Several of them described you as “the bystander”, and said they heard you saying “stop”.
[63] What the jury’s verdict shows as a matter of law is that you did not know what Mr Dempsey had in mind, in terms of the violence he was prepared and intended to inflict on Mr Mortimer. In my view, the jury accepted that you helped Mr Dempsey when he was fighting with Mr Mortimer: your own description of the headlock confirmed that. The jury may also have accepted Mr Mortimer’s statement that you punched him. If they did, I also record my finding that what happened in Mr Mortimer’s bedroom was something of a scuffle, a precursor to what happened outside.
[64] I record that I have considerable reservations about the reliability of Mr Grainger’s evidence as regards your involvement: in particular Mr Grainger’s evidence that he had seen you kicking Mr Mortimer to the upper body. I record that Mr Grainger was observing events from some 45 metres away through not one, but two, security doors, the second of which (closest to the far end of the corridor) had a relatively small window in it. Moreover, Mr Grainger, in his police interview at the time, said he had only seen one person standing over Mr Mortimer, and that was Mr Dempsey.
[65] So my reservations about Mr Grainger’s evidence were not based on his response to the inaccurate proposition that was put to him by defence counsel for Mr Dempsey but rather those acknowledgements of the evidence he gave as regards your involvement. Particularly, when cross-examined by Mr Bamford he said he might well have been completely wrong when he said he had seen you at the far end of the corridor.
[66] On that basis, I accept Mr Bamford’s submissions. That is, I do not think your offending is properly to be categorised as the intentional infliction, or assistance in the intentional infliction, of grievous or serious bodily harm. Rather, you did assist Mr Dempsey in his unlawful assault on Mr Mortimer. But you did so without yourself intending serious harm to Mr Mortimer or knowing what Mr Dempsey intended.
[67] Now there are no specific guidelines for manslaughter offending. My assessment of your moral culpability, which is the basis for all sentencing, is that you became involved in Mr Dempsey’s attack on Mr Mortimer somewhat unwittingly. Nevertheless, you did go into his room with him. There was no particular reason for you to do that. You did join in the fight. As a result of Mr Dempsey’s actions, in which you participated to some extent, Mr Mortimer died. You have been found guilty of manslaughter. My assessment is that a starting point sentence of four years’ imprisonment is appropriate.
[68] I turn now to personal factors that mitigate or that reduce your responsibility for what happened that night.
[69] I have read and reflected at some length on the various reports that have been prepared or provided to me for the purposes of this sentencing.
[70] In addition to the standard report I have had a report by a mental health assessor. I have been provided with reports prepared by Ms Fon, in 2015, when you had been charged. A report had been prepared for CYFS in December 2014, as regards your ability to cope following your seventeenth birthday when I infer you
probably stopped being subject to CYFS oversight. And there is the evidence
Ms Fon gave at your trial.
[71] What I take from all those materials is that you are a young man with a disturbed and unsettled background. You lived with your mother until you were just four months old. You were then cared for by your paternal grandmother, then by your father. After your father’s partner had inflicted serious head injuries on your half brother, from which he subsequently died, you were returned to your paternal grandmother’s care. You had witnessed those events. They naturally traumatised you.
[72] From October 2007 onwards you resided, as best as I can tell, with your paternal grandmother, your father and at least three separate CYFs placements.
[73] In terms of your behaviour and character, all those reports, albeit in different terms, describe you as being at the time an immature person, one who was easily led, lacking in social awareness, and one who had never had real boundaries placed on their behaviour in a way that would become part of your own social awareness, your own coping mechanisms in life. You presented in your police interview as somewhat awkward. I think Mr Bamford accurately describes, and I am not judging you in this sense, as a person having compromised social functioning. You don’t yet really know how to get on in the world. In my view, and as the Crown accepted, those are all mitigating factors, reflecting what is legally described as diminished responsibility for your actions.
[74] There is also your youth itself. At 17, and even without your developmental difficulties, the law recognises that you are less responsible than a mature person for your actions. There clearly is, however, I record a degree of overlap between your individual considerations and the mitigating factor of youth more generally.
[75] There is also your remorse and empathy which, although you struggle to express yourself at times, I accept are genuine.
[76] Taken together, I consider that a reduction from that starting point sentence of four years of 30 per cent is appropriate. By my calculation and sometimes when I am doing these on the bench I can get them wrong, but by my calculation that results in a sentence for you of imprisonment of two years and eight months.5
[77] On that basis, home detention is not viable. But even if it had been applied for, it would not have been an appropriate outcome.
[78] Mr Brunsell, for the manslaughter of Mr Mortimer you are therefore sentenced to imprisonment for a term of two years and eight months.
[79] Now you have heard my exchange with Mr Bamford. These are, for Mr Mortimer’s family, tragic events. And in my sentencing today of Mr Dempsey and Mr Brunsell, I cannot do anything to fix the harm that your father and your brother’s death has caused you. And I know that. But for you, Mr Brunsell, you are a young man. Prison may give you a structure in your life that you can benefit from and that you can build on. You will be eligible for parole either straight away or in the very near future. That will be a discussion to be had. But I want you and I encourage you to take the opportunity that a bit of stability in your life may give you, even if it is in prison, to get a hold of some of the things that you have missed out on in the past and to make sure you live a lifestyle that means that you don’t get involved in these sorts of events again.
[80] So you may now stand down.
Clifford J
5 As will be apparent, my calculation in Court was incorrect. Strictly speaking, a 30 per cent discount from a four year starting point would have produced an end sentence of approximately two years and ten months. Nevertheless, it was a sentence of two years and eight months that I imposed. In all the circumstances, I do not think it would be appropriate to re-open that sentence as imposed. Notwithstanding my arithmetic error, I confirm that in my view that sentence is, in any event, an appropriate one.
Solicitors:
Crown Solicitor, Nelson
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