R v Harper-Brown
[2023] NZHC 2566
•14 September 2023
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CRI-2022-096-856
[2023] NZHC 2566
THE KING v
BRADLEY HARPER-BROWN
Hearing: 14 September 2023 Appearances:
G J Burston for the Crown
C J Nicholls for the Defendant
Judgment:
14 September 2023
SENTENCING OF COOKE J
[1] Bradley Harper-Brown you are now to be sentenced as a result of your guilty pleas to one charge of aggravated burglary1 and one charge of aggravated wounding.2
[2]In order to explain your sentence I will address three matters:
(a)First I will describe the facts of the offending.
(b)Secondly I will outline the approach that is taken in assessing a starting point for offending of that kind.
1 Crimes Act 1961, s 232(1) and 66; maximum penalty of 14 years’ imprisonment.
2 Section 191(1)(a) and 66; maximum penalty of 14 years’ imprisonment.
R v HARPER-BROWN [2023] NZHC 2566 [14 September 2023]
(c)Finally I will address discounts from that starting point arising from your guilty plea and other matters personal to you given the information now available.
The offending
[3] First the facts. On 10 January 2022 you and another person I will call Mr H were selling ecstasy through connections with the Mongrel Mob. You were a newly patched member of the Mob. Mr H was not a member.
[4] The two of you arranged to meet Akynn Eady to sell him drugs. Akynn Eady and his associates were members of the Crips gang. When you met up in the Hutt Valley near the Haywards Interchange Mr Eady and his associates produced weapons and robbed you and Mr H.
[5] You then began to plan retaliation. Mr H and yourself obtained Mr Eady’s address in Upper Hutt from an associate of Mr H.
[6] At about 8.30 in the evening you then met up with Mongrel Mob member Justin McGoldrick at the Z Mana Esplanade petrol station. You discussed what you would do. You then travelled to your address and were joined by another Mob member Teimana Tawhai. You then drove to an unknown location where you obtained a 12 gauge shotgun wrapped in a white sheet. You then returned to your address at approximately 9.35 pm.
[7] Mr H then contacted Mr S and asked Mr S to return to you his Toyota vehicle. Mr S duly did so at approximately 10.00 pm. The shotgun was placed in the rear of the Toyota. After dropping off another vehicle your group then made its way to Mr Eady’s address in the Toyota, after first stopping off at Z Energy on Mana Esplanade. Mr S was driving.
[8] You arrived at Mr Eady’s address at just after 11.00 pm where Mr Eady was hosting a birthday party. Messrs McGoldrick, Tawhai and yourself got out of the car leaving Mr H and Mr S inside. Mr McGoldrick entered the house followed by you and Mr Tawhai. An occupant walked towards the front of the house to investigate
what was going on and Mr McGoldrick then fired three rounds down the hallway. Robert Aspinall, an occupant in the house was struck by a number of pellets in the left side of his abdomen creating more than 20 wounds. All three of you then ran away from the address returning to the Toyota and the group then left in the car. Police were alerted to the incident and attempted to stop the vehicle which drove away at speed overtaking other vehicles and turning its headlights off. The vehicle was ultimately struck by a tire deflation device and you and the others were arrested.
Starting point
[9] The Crown has suggested a starting point of eight years imprisonment. Your lawyer suggests six years.
[10] I have explained in my earlier decisions in relation to this offending I do not consider that I should set a starting point using the aggravated burglary charge, and then further uplifting it for the aggravated wounding charge. That would be artificial. The facts for each of those charges are the same, and when sentencing for aggravated burglary the aggravating factors include the fact that a firearm used in the burglary was discharged wounding another person.
[11] There is no tariff decision for aggravated burglary. But it is accepted that the Court of Appeal’s guideline decision for aggravated robbery in R v Mako applies,3 notwithstanding that this is an aggravated burglary.4 I consider the following aggravating factors identified in R v Mako arise in the present offending:
(a)there was planning and premeditation given that the offending was part of a gang related dispute resolution exercise, and you armed yourselves beforehand;5
(b)there was use of a weapon and a person was wounded by its discharge;6
3 R v Mako [2000] NZLR 170 (CA).
4 See R v Watson CA 224/03, 24 October 2003; the Court of Appeal held that the principles expressed in Mako are applicable to aggravated burglary.
5 R v Mako, above n 3, at [36].
6 R v Mako, above n 3, at [39].
(c)there were a number of participants;7 and
(d)it was a home invasion at night.8
[12] I have already assessed the appropriate starting point for this offending in my decisions in relation to the other defendants, including Mr Tawhai, Mr McGoldrick and Mr H.9 When doing so I considered the comparable cases of Hay v R,10 R v Poole, R v Perry and Murphy,11 and R v Stade.12 Justice Isac also addressed this offending in relation to Mr S.13
[13] Most relevantly I concluded that Mr McGoldrick’s starting point was nine years’ imprisonment as he was the shooter, but Mr Tawhai’s starting point should be eight years as an active participant in the burglary and the shooting. I see your position is effectively identical to that of Mr Tawhai. I do not accept your counsel’s submission that your starting point should be lower than Mr Tawhai because you had been robbed which may have interfered with your ability to think straight. The fact that you had been robbed while selling illicit drugs, and were retaliating through this offending as a response, does not make your offending less serious than Mr Tawhai.
[14] In the circumstances, I consider the appropriate starting point for your involvement in this offending is eight years’ imprisonment. It would have been higher if you had been the shooter, and lower but for the fact that the firearm was discharged causing the wounding.
Personal aggravating and mitigating factors
[15] I turn to mitigating factors. The first discount arises from your guilty plea. This discount is significant because by admitting your guilt you remove the need for the victims to give evidence at a trial or trials. That is important in this kind of case. There is agreement that there should be a 25 per cent discount here.
7 At [37].
8 At [58].
9 R v Tawhai [2023] NZHC 311; R v McGoldrick [2023] NZHC 731; R v H [2023] NZHC 626.
10 Hay v R [2015] NZCA 329.
11 R v Poole, Perry and Murphy [2014] NZHC 1126.
12 R v Stade [2015] NZHC 2611.
13 R v S [2022] NZHC 2944.
[16] I have also had the advantage of a pre-sentence report, a drug and alcohol report, a s 38 psychological report and a s 27 cultural report. These reports put your offending in context by explaining your personal background.
[17] From those reports a few things are clear. You were using alcohol and methamphetamine on the night of the offending. Your use of methamphetamine started at age 16, and you have continued to use it up until your most recent remand in custody. Alcohol consumption has also been part of your daily routine. But you have expressed some interest in addressing these issues.
[18] You have had a range of mental health struggles, including being diagnosed with Attention Deficit Hyperactivity Disorder, Oppositional Defiant Disorder, and Anxiety Disorder. You were expelled from the schools you attended, and it is said that the sole professional help or intervention you received was medication. Your lawyer says that you “fell through the gaps” in the education and health systems, not returning to school after you were admitted for a period at Matairangi psychiatric unit in 2017 at age 14.
[19] You have a special affinity to whānau and to whakapapa. Your father was a descendant of the Te Rārawa people of Northland. Your mother is pakeha. The s 27 cultural report confirms that your immediate whānau have likely been subject to the intergenerational transfer of trauma which can be traced to the land wars in Northland and your genealogical connection to great leaders, including more recently Dame Whina Cooper. The cumulative cultural impact of these traumatic events, including disengagement, alienation and loss of language, is relevant historical context to the extremely adverse life situation in which you grew up.
[20] You were exposed to family violence perpetrated by your father in the home. You lost your father at the young age of 13, and were subsequently relocated to your paternal grandparents’ home. The s 27 report writer describes you as having been a disturbed, volatile child prone to outbursts of extreme anger. At your paternal grandparents’ home, you were subject to further violent behaviour, a violence which became normalised and led you to pursue a lifestyle of “work hard, hard play, live hard”. Your resorting to drug and alcohol use, and gang life cannot be divorced from
the social and cultural deprivation which is evident in your upbringing. I consider this background provides a causal connection to your offending, in accordance with the approach in Solicitor General v Heta.14
[21] However, I am also mindful that you have actively sought connection and security in the company of the Mongrel Mob no doubt driven by circumstances not of your own making, but you have had time to reflect on those choices and the path it has led you down. In the various reports you have acknowledged that much of your drive to offend, and your drug use, is influenced by your gang association. There is really no indication that you wish to break your ties with the Mongrel Mob and your family members were also members of the Mob..
[22] While you experienced disconnection within your immediate whānau following the death of your father, your mother, uncle and older sister say that you are a loving son and person, who has demonstrated support and protection of your whānau. There is an expression of hope for a positive future expressed by your mother. However, your whānau agree that distancing yourself from your current associates is key to leading a pro-social life. Your mother has done a lot for you over your life. But the information I have read suggests you do not properly understand that. That is an attitude that, in time, you will regret. She has stood by you, and does so even now, when you appear to have given up on trying to be a better person.
[23] You have shown some remorse and guilt over the offending. However there is some consensus that you believe violence is an appropriate means to settle disputes. The s 27 cultural report explains that your exposure to violence, which was normalised from a very young age has significantly shaped your attitude towards others, and your motivation to “protect”. I am advised that you will be prioritised for psychological interventions with the Corrections’ psychologist to address your own tendency to resort to physical violence.
14 Solicitor-General v Heta [2018] NZHC 2453, [2019] 2 NZLR 241; Berkland v R [2022] NZSC 143.
[24] I understand how your background partly explains why you are here. I accept in the circumstances that a 10 per cent discount on the sentence would be appropriate for social and cultural deprivation, mental health and remorse.
[25] You are also entitled to a discount for your youth at the time of your offending. You had just turned 19 years of age prior to the offending. You also have no previous convictions. In Churchward v R the Court of Appeal explained how youth is relevant to sentencing.15 The Court tries to do what it can to avoid someone as young as you being sent to prison, or if that is unavoidable to try and minimise the adverse impact that a period of time in prison can have on a young person. I accept that an additional discount of 10 per cent for youth would be appropriate.
[26] The total discount is accordingly 45 per cent. That is lower than the 60 per cent total discount that your counsel seeks, but I consider it artificial to give separate discounts for each relevant matter leading to a total discount of that size in the absence of a viable rehabilitative approach that could be adhered to outside of prison.
[27] The pre-sentence report, and your lawyer concedes that a sentence of imprisonment is the only realistic sentencing option today. This is largely against the background of your recent non-compliance with electronically monitored bail. Prior to that, you had been in breach of your bail conditions on a number of occasions. This Court has offered you a number of opportunities to prove that you were able to comply with the conditions to test the appropriateness of a sentence other than of imprisonment. At the last hearing before me the Crown supported that approach. There is a sense of frustration in sentencing you to imprisonment. You have appeared before a number of Judges of this Court. On each occasion we have been inclined to give you a break, in the hope that we can avoid having to send you to prison at such a young age. We have been trying to help you. Despite this, after the last hearing before me, you absconded from your EM bail address on 29 May 2023. You were not able to comply with the conditions of a community based sentence. So you leave me no option. I also then need to keep your sentence consistent with the other sentences I have given. The reports suggest that your time in prison has led you to reflect on
15 Churchward v R [2011] NZCA 531 at [77].
where you are going with your life. You need to think more about that. At the moment you are choosing a life of crime, violence and misery, including your own misery. Only you can change that.
Sentence
[28] Mr Harper-Brown would you please stand. On the charges of aggravated burglary and aggravated wounding I sentence you to 4 years’ and four months’ imprisonment on each charge, to be served concurrently, meaning that your effective sentence is four years’ and four months’ imprisonment.
Cooke J
Solicitors:
Crown Solicitors, Wellington
C Nicholls, Lower Hutt for Mr Harper-Brown
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