R v Sweeney
[2023] NZHC 1095
•9 May 2023
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA
KIRIKIRIROA ROHE
CRI-2021-019-004725
[2023] NZHC 1095
THE KING v
PENE AMENE TE AO KAPUA HURIWAKA SWEENEY (AKA BENJAMIN SWEENEY) &
FRANK PESSY DAVID SWEENEY
Hearing: 9 May 2023 Counsel:
RL Mann for Crown
NP Chisnall KC and LA Elborough for Benjamin Sweeney DA Kemp and WJS Mohammed for Frank Sweeney
Judgment:
9 May 2023
SENTENCING REMARKS OF DOWNS J
Solicitors/Counsel:
Crown Solicitor, Hamilton. NP Chisnall KC, Auckland. LA Elborough, Auckland. DA Kemp, Auckland.
WJS Mohammed, Auckland.
R v SWEENEY [2023] NZHC 1095 [9 May 2023]
Introduction
[1] I begin by acknowledging the presence of whānau: those here on behalf of the Sweeneys, and those here on behalf of the victims. I record the obvious: no sentence can recognise the loss of Anthony Bell’s life, or the harm caused by his death.
[2] Benjamin Sweeney, you appear for sentence on two charges: assault with intent to injure; and assault with a weapon. Frank Sweeney, you appear on one charge: manslaughter. You and Benjamin are cousins.
Facts
[3] On 2 October 2021, you, Benjamin Sweeney, you, Frank Sweeney, and a third man, stopped your car on the main road in Ōtorohanga outside the service station. It was about 6.15 in the evening. It was still light.
[4] Almost immediately, Anthony Bell and his two brothers, Ethan Tumai and Victor Tumai, pulled up behind your car. Anthony Bell and Ethan Tumai had been drinking.
[5] Both of you and the third man rushed the victims’ car as they were getting out. Benjamin Sweeney, you were initially holding a beer bottle.
[6]Sadly, everyone wanted to fight. I return to why shortly.
[7] Anthony Bell was initially holding a hammer. He dropped it and bent over. As he did so, you, Benjamin Sweeney, punched him to the head twice. Your blows were hard. They knocked Mr Bell to the ground. While he was on the ground, you punched him to the head, kicked him to the head, and as he was getting up, stomped his head. You also punched his body. This violence reflects the first charge of assault with intent to injure, which carries a maximum penalty of three years’ imprisonment.1
[8] Victor Tumai was fighting the third man from your car. Benjamin Sweeney, you picked up the hammer from the ground, ran to Victor Tumai and struck him, using
1 Crimes Act 1961, s 193.
the hammer, to the back. You then ran back to Mr Bell; then back again to Mr Tumai. You again hit him in the back with the hammer. This violence is captured by the assault with a weapon charge, which carries a maximum penalty of five years’ imprisonment.2 Victor Tumai sustained swelling, bruises and grazes to various parts of his body.
[9] Frank Sweeney, you squared off with Ethan Tumai. He was holding a small screwdriver or small knife. He ran away from you. You chased him across the road. You then ran back to where Mr Bell was standing in the forecourt of the service station. You then delivered a very powerful blow, either to Mr Bell’s head or upper body. I cannot stress enough its forcefulness. It knocked Mr Bell backwards onto the ground. He died because of brain injury in consequence of your assault. You and Benjamin Sweeney fled.
[10]You did not know the victims. You had encountered them, by chance, a little
earlier on the main road leading into Ōtorohanga.
[11] What happened on the road between the two groups was a matter of contention at trial. The entire sequence cannot be reconstructed. However, I have no doubt that you, the Sweeneys, were the initial aggressors on the road. I am sure you were initially following the victims’ car and that you then tailgated it. I am also sure you passed the victims’ car at some point. A motorist driving the other way saw someone in your car making a Mongrel Mob gesture out of the window at the victims’ car. I do not doubt those in the victims’ car returned your aggression in some way or ways. By the time the two cars arrived at the service station, everyone wanted to fight because of what had happened on the road.
[12] The case went to trial. Both of you claimed you were acting in self-defence. Indeed, both said you were terrified of the victims and worried they would cause you serious bodily harm—or worse. Much of your testimony was exaggeration or outright fabrication. I have no doubt that both of you wanted to fight the victims, just as they, initially at least, wanted to fight you. That was apparent from the closed-circuit
2 Crimes Act, s 202C.
television footage from the service station. Indeed, almost everything that occurred was captured on closed-circuit television.
[13] The jury found both of you guilty, save you Benjamin Sweeney in relation to Mr Bell’s death. The jury were not sure that you helped our encouraged Frank Sweeney commit manslaughter.
Benjamin Sweeney
[14] Benjamin Sweeney, your offending discloses three aggravating factors, or things that make it more serious. First, you attacked Mr Bell to the head with significant force. Second, you administered blows while he was defenceless on the ground. Third, you used a weapon against Victor Tumai. That, of course, is an ingredient of the assault with the weapon charge, but it also aggravates the other violence charge.
[15] The Crown contends your offending discloses extreme violence. I consider it falls just short of this standard. However, it is plainly serious.
Starting point
[16] The Crown offers a global starting point of three years’ imprisonment. You offer a global starting point of between two years’ and two and a half years’ imprisonment.
[17] I adopt a global starting point of two years and nine months’ imprisonment.3 In so doing, I am mindful the incident began, essentially, as a fight by tacit agreement. Even then, your violence was serious. I also record the obvious: this violence occurred in daylight, in a main street, under the gaze of closed-circuit television and people at the service station. Violence in a public place has a ripple effect. It makes those in
3 I have considered the guideline judgment of the Court of Appeal in this area, Nuku v R [2013] 2 NZLR 39, and other sentencing examples: Tamihana v R [2015] NZCA 169; Sharma v R [2015] NZCA 468; Hurinui v R [2014] NZCA 290; Goodman v R [2016] NZCA 64; Cunningham v R [2019] NZCA 622; Tiplady-Koroheke v R [2012] NZCA 477; Bennett v R [2012] NZCA 173; and R v Taueki [2005] 3 NZLR 372 (CA).
the community feel unsafe, it compromises trust, and it contributes to a sense of lawlessness in a post-pandemic world.
[18] Benjamin Sweeney, you have a history of recent violence. In August 2017, you injured with intent to do so or with reckless disregard. In January 2018, you committed an assault in a family violence context. Each offence resulted in a term of imprisonment. It is common ground your history should be recognised by adding three months’ imprisonment. This produces an adjusted starting point of three years’ imprisonment.
Mitigating factors
[19]I now turn to things that are said to make your offending less serious.
[20] You seek a five percent reduction for remorse given a letter of apology; an offer to attend a restorative justice conference; and comments in your pre-sentence report about remorse.
[21] I am not persuaded you are genuinely remorseful. You were right next to Frank Sweeney when he struck Mr Bell. You knew Mr Bell had fallen to the ground. Yet you fled the scene with Frank Sweeney. You defended the charges. Much of your evidence was, as I have said, exaggeration or outright fabrication. Your portrayal of the victims at trial was inconsistent with remorse. Your offer to attend a restorative justice conference struck me as made for forensic advantage. I, therefore, make no deduction under this head.
[22] I now turn to your personal circumstances described in the pre-sentence report and cultural report.
[23] You are now 32. You were raised by your father, with whom you were close. Your father was a gang member, as were other members of your whānau. Despite that, you describe a loving and sheltered upbringing, devoid of violence and other forms of abuse. Your family was, however, poor. You say you became wayward about the age of 12 and went into a boys’ home. You there experienced violence. When you left the home a year later, you became actively involved with a gang of which you are still a
member. I skip ahead to February 2019, when the mother of your children was killed in a car crash. You then turned to alcohol and drugs. The offending occurred on the day you were travelling to her grave site.
[24] You seek a 15 percent discount for this mix, including prospect of rehabilitation. According to your pre-sentence report, that prospect is in doubt. I allow a total of five months, or approximately 14 percent, for your background in recognition of a causative contribution and in encouragement of rehabilitation.4
[25] You were on electronically monitored bail from 15 December 2021 until 23 February 2023, when I remanded you in custody following the trial. You seek a seven-month deduction for your time on electronically monitored bail. I consider this a little too high as deductions must remain proportionate to the seriousness of the offending. Moreover, while you did not breach electronically monitored bail, the pre- sentence report makes clear you did not follow the required procedures and were difficult. I deduct five months.
[26] You have two children for whom you ordinarily care—a six-year-old and a four-year-old. They are now in the care of their grandparents. You seek a deduction consistent with your role as caregiver.5
[27] I have given this issue great thought. However, I am not persuaded a deduction is appropriate, especially as the children are being well cared for by their grandparents.
[28]I return to what this all means shortly.
Frank Sweeney
[29] Frank Sweeney, I said earlier most of what happened was captured on closed- circuit television. A pillar and petrol bowser partially obscured your blow that killed Mr Bell. You gave evidence. You said you did not intentionally apply force to Mr Bell. Rather, you said you turned around and accidentally bumped or knocked Mr Bell. The jury rejected your account, and rightly so. The closed-circuit television
4 Berkland v R [2022] NZSC 143.
5 R v Taingahue [2016] NZHC 2788; and Zhang v R [2015] NZCA 451.
footage makes it clear that was not what happened. You deliberately struck Mr Bell, and you did so with great force. Four things make your offending more serious.
[30] First, as I have already commented on, the strength of your blow. You came to Mr Bell and delivered a very powerful blow, either to his upper body or to his head.
[31] Second, and this point I wish to emphasise, your violence was gratuitous. I say this because the fight was essentially over by this stage. Mr Bell posed no one any danger. He was not trying to fight anybody. He was just standing there, dazed, in consequence of Benjamin Sweeney’s earlier violence. Frank Sweeney, you could have left. You did not. Instead, you ran to Mr Bell and delivered a fatal blow.
[32] Third, I am quite sure you intended to cause Mr Bell actual bodily harm. The force of your blow permits no other conclusion.
[33] Fourth, victim harm is profound. In this respect, I refer to the victim impact reports from Mr Bell’s whānau. One describes Mr Bell this way:
Anthony was a respected Māori businessman who supported his children and partner and put kai on the table. As a Māori businessman, he was a leader in his community. Just by being known as a businessperson, Anthony was showing others what they could achieve, giving them inspiration and hope. His workmanship was respected in his trade across the North Island. He is sadly missed by other local businesspeople. Leaders of his calibre are so needed by our people. It is this leadership that the Māori community has lost.
[34] Mr Bell was also described as a wonderful member of the whanau, someone who loved children, and who was loved by children, and someone who was kind and generous and would gladly help others.
[35] Unsurprisingly, those left behind are struggling to come to terms with his death. Mr Bell has six children. One says he has not felt the same since his father died. He has confronted depression, flashes of anger, and “breakdowns”.
[36] Mr Bell’s parents say nothing will ease their pain—no parent should have to bury their child. They also speak of the impact on their son’s Ethan and Victor Tumai. Other members of the whānau speak of the great hole left by Mr Bell’s death, and how those to come will never know him. I repeat, victim impact is profound.
[37] The maximum penalty for manslaughter is life imprisonment.6 That said, sentences for manslaughter vary greatly. I have considered similar cases. I thank the lawyers for their industry.7 All turn on their facts. The range for a single, lethal blow is typically between three years’ imprisonment and five years’ imprisonment, or thereabouts. The Crown advances five years as a starting point. You, Frank Sweeney, say three-and-a-half years’ imprisonment. You say the offending constituted excessive self-defence and the actions of the Tumai brothers were provocative.
[38] I reject your analysis. Again, the fight was essentially over. Mr Bell posed no one any danger. He was just standing there. You could have left him alone and gone on your way. You did not. Instead, you ran over and struck him with, as I have said, great force. What I said to Benjamin Sweeney also applies to you: violence in a public place makes those in the community feel unsafe, it compromises trust, and it contributes to a sense of lawlessness in a post-pandemic world.
[39] Because of the four aggravating things I have identified, I adopt a starting point of four years and 10 months’ imprisonment.
[40] The Crown seeks an uplift of two months because of historical violence and your criminal record. I do not uplift the starting point because your violence is historical. Your most recent relevant conviction goes back to 2012, and before that, 2009.
[41] Like Benjamin Sweeney, you seek a five percent discount for remorse. You too sought a restorative justice conference, and you have written a letter of apology. As with Benjamin Sweeney, I am not persuaded you, Frank Sweeney, are genuinely remorseful. You fled the scene. You did not plead guilty. Your evidence involved exaggeration and fabrication too. Moreover, your account to the pre-sentence report writer continues to maintain a bumping into Mr Bell, not more.
6 Crimes Act, s 177.
7 R v Wickliffe [1987] 1 NZLR 55 (CA); Kaukasi v R CA 93/03, 5 September 2003; R v Leuta [2002] 1 NZLR 215 (CA); R v Murray [2013] NZCA 177 citing R v Tai [2010] NZCA 598 and Kepu v R [2011] NZCA 104; R v Feleti [2019] NZHC 94; Blacker v R [2019] NZCA 232; Everett v R [2019] NZCA 68; R v Taueki [2005] 3 NZLR 372 (CA); R v Nepia [2019] NZHC 1932; R v Tai [2010] NZCA 598; R v Larson [2020] NZHC 237.
[42] I turn to your personal circumstances as described in a letter, and in the pre-sentence and cultural reports. You are now 40. Your mother died when you were 12. Your father was in a gang, albeit I gather he later became a drug and alcohol counsellor. You experienced violence during your upbringing. You were sent to live with an uncle. You left school without qualifications. But, you gained employment, including in the Army, as a territorial soldier. You appear to have misused alcohol and cannabis. You later drifted into a gang, just like your father. You may have autism or a similar difficulty. You seek a discount of 15 percent for this mix, on the basis it contributed, at least broadly, to the offending.8
[43] I deduct seven months, or about 12 percent. This level of discount recognises the diffuse causative contribution played by your background in the offending. It also recognises the seriousness of the offence, which is constraining.
[44] You were on electronically monitored bail for 14 months. You acknowledge breaching that bail on several occasions. You seek a five percent discount for your time on that bail, a three-month deduction. I give you that. But I also observe a greater deduction would bring the administration of justice into disrepute.
Sentences
[45] I return to you Benjamin Sweeney. Your end point is two years and two months’ imprisonment. Even if home detention were available, I would not have imposed it. Your pre-sentence report speaks firmly against home detention; it says you have been unwilling to undergo any form of rehabilitation and your propensity for violence remains a concern.
[46] On your behalf, Mr Chisnall KC says I should not accept what the pre-sentence report says. I see no reason not to take it on its face. It presents as careful and considered.
8 Berkland v R [2022] NZSC 143.
[47]Please stand Mr Benjamin Sweeney. Likewise, Mr Frank Sweeney:
(a)Benjamin Sweeney, in relation to both charges, I sentence you to a term of two years and two months’ imprisonment.
(b)Frank Sweeney, for the manslaughter of Anthony Bell, I impose a term of four years’ imprisonment.
[48]Please stand down.
……………………………..
Downs J
2
17
0