The Queen v Brown
[2002] NZCA 243
•25 September 2002
IN THE COURT OF APPEAL OF NEW ZEALAND
238/02
THE QUEEN
v
HAYDEN KARL BROWN
Hearing:3 September 2002
Coram:Gault P
Blanchard J
Tipping J
McGrath J
Glazebrook JAppearances: J C Pike for the Crown
G T Winter for Respondent
Judgment:25 September 2002
JUDGMENT OF THE COURT DELIVERED BY GAULT P
[1] The Solicitor-General seeks leave to appeal against the sentence imposed upon the respondent in the High Court at Whangarei on 3 July 2002. The respondent had pleaded guilty to the offences of attempted murder and arson. He was sentenced to imprisonment for nine years. The appeal is not directed to that sentence, but to the determination of the sentencing Judge not to impose, under s86 Sentencing Act 2002, a minimum period of imprisonment before the respondent becomes eligible for parole.
[2] The offences were committed on 20 June 2001. That was before the Sentencing Act came into force. The respondent was to be sentenced in accordance with that Act (s5(3)), but subject to the benefit of any lesser penalty if the penalty had been varied between the commission of the offence and the sentencing (s6(1)). In s152 it is provided that s86 does not apply where the offence was committed before the commencement date of the Act except where the offence is a serious violent offence as defined in s2 Criminal Justice Act 1985. There is no doubt that the offence of attempted murder with which we are concerned is within that definition, so that s86 applies. It reads:
86 Imposition of minimum period of imprisonment in relation to determinate sentence of imprisonment
(1)If a court sentences an offender to a determinate sentence of imprisonment of more than 2 years for a particular offence, it may, at the same time as it sentences the offender, order that the offender serve a minimum period of imprisonment in relation to that particular sentence.
(2)The court may impose a minimum period of imprisonment under this section if it is satisfied that the circumstances of the offence are sufficiently serious to justify a minimum period of imprisonment that is longer than the period otherwise applicable under section 84(1) of the Parole Act 2002.
(3)For the purposes of this section, the circumstances of an offence may be regarded as sufficiently serious if the court is satisfied that the circumstances take the offence out of the ordinary range of offending of the particular kind.
(4)A minimum period of imprisonment imposed under this section must not exceed the lesser of –
(a)two-thirds of the full term of the sentence; or
(b)10 years
(5)For the purposes of Part 4 of the Summary Proceedings Act 1957 and Part 13 of the Crimes Act 1961, an order under this section is a sentence.
[3] At the time of sentencing the Judge expressed concern that the imposition of a minimum sentence might be precluded by s6. It is now accepted that it was not because under s80(4) Criminal Justice Act, which was in force when the offence was committed, a minimum sentence (in fact a longer minimum sentence) could have been imposed for a serious violent offence.
[4] The Judge did go on to consider whether, if he had jurisdiction to do so, he would have imposed a minimum period before the respondent would become eligible for parole after serving one-third of the sentence in accordance with s84 Parole Act 2002. He did not do so. He said:
I have some concerns as to whether s6 would apply to make the application of the section inappropriate in this case. However, of more importance, is that I consider that the seriousness of the offence has been sufficiently taken into account in the length of the sentence that I have indicated that I intend to impose. The seriousness is reflected in the sentence. It is in my view, a matter for the Parole Board to determine whether or not you are fit for release when you are first eligible for parole and the Parole Board will obviously be concerned to determine at that stage whether you represent a continuing danger to the public, and the Parole Board, of course, will not release you at the earliest of the opportunities available if they do come to that conclusion.
[5] The Judge plainly had in mind the provisions of s7(1) and (2)(a) Parole Act which read:
7 Guiding principles
(1)When making decisions about, or in any way relating to, the release of an offender, the paramount consideration for the Board in every case is the safety of the community.
(2)Other principles that must guide the Board’s decisions are:
(a)that offenders must not be detained any longer than is consistent with the safety of the community, and that they must not be subject to release conditions or detention conditions that are more onerous, or last longer, than is consistent with the safety of the community
[6] Mr Pike for the Solicitor-General submitted that in approaching the matter in this way the Judge did not take sufficient account of the context in which s86 is to be applied. He contended that the sentencer must consider whether the seriousness of the offence calls for a non-parole period of more than one-third of the nominal sentence quite apart from the consideration of the seriousness of the offence in fixing a nominal sentence. In that respect, he submitted that the approach to the former provisions in s80 Criminal Justice Act, determined in R v Rongonui (CA321/80, judgment 9 May 2001), is inapt for applying s86.
[7] Mr Winter, for the respondent, did not directly contest that view. He submitted, however, that s86 should not be employed by the courts to defeat the clear intention of the Legislature that, except where there is an issue of the safety of the community, offenders should be released on parole after serving one-third of their sentences. It was his case for the respondent that it was for the Parole Board to determine whether his client will present a risk to the community if released on parole after three years.
The offending
[8] Before dealing with the role of s86 in the sentencing process and its application to the respondent in this case, we review the sentencing case presented to the Judge. The respondent, 21 years old at the time, and without any criminal history, on 21 June 2001 committed the offences for which he eventually pleaded guilty and was subsequently sentenced. The circumstances of the offending were that the respondent visited his mother in her home at Hukerenui, it seems to seek her help to deal with a depressive episode he was experiencing. He had taken a hammer with him in his car. He arrived late in the evening. He felt his mother did not exhibit the understanding and support he was seeking. She told him to go to bed and that they would discuss matters in the morning. His mother returned to her bed.
[9] The respondent watched television for about an hour. He then went to his mother’s bedroom and saw she was asleep. He went to his car and uplifted the hammer. After a time he struck his mother’s head with the hammer several times, he told the police, “as hard as I could”. Her skull was shattered. The hammer entered the brain causing severe trauma.
[10] The respondent obtained a plastic bag from the kitchen and placed the hammer in it. Before leaving the house he draped newspaper and towels over the stove elements and kitchen bench and turned the elements on high.
[11] He left the house and disposed of the hammer in scrub on the roadside. The fire self-extinguished without major damage to the house. The victim was found the next morning. She was hospitalised but so severe were her injuries that recovery was limited. A medical report records that it is extremely unlikely that she will ever regain the ability to live independently outside the hospital system. She is blind in one eye and is unable to walk independently or speak. She is severely cognitively impaired and is dependent for all personal cares and activities of daily living.
[12] After the attack the respondent visited the victim a number of times and made a number of statements to the police conveying his desire to assist in finding the offenders. However, after about three days he began making admissions and subsequently directed the police to the location of the hammer and provided a full description of his conduct.
The sentence imposed
[13] The Judge had available to him a pre-sentence report and full reports from three psychiatric assessments of the respondent. He also had reports on the devastating impact of the offending on the victim’s family. There was a letter written to the sentencing Judge by the respondent. Notwithstanding all of this material, the Judge described the offending as “to a large extent, inexplicable”. He did express this view:
Because of the inexplicable nature of this offending, there have been a number of psychiatric reports obtained and I have read each of them. They all seem to agree that at the time of the attack you were suffering from a depressive illness. The most recent report by Dr Goodwin seems to me to provide the greatest degree of insight into your behaviour. He, in addition to mentioning the depressive illness, says that there are strong elements of what would be termed a narcissistic personality structure present in your case. That people with that personality structure have a chronic need to feel that they are wanted and cared for and can become extremely angry when they perceive they are being rejected by others. That does seem to me to be the closest that any of the psychiatrists have been able to come to providing some explanation for what happened.
[14] The Judge referred to features of aggravation in the offending. There was premeditation in taking the hammer to the house and in waiting until the victim went to sleep. There was the continuing intent to kill evidenced by the attempt to set fire to the house. There were the abuse of trust, the vulnerability of the victim because of the trust, the use of a weapon and the seriousness of the consequences. The Judge added:
And there must be, for the Court, and for the public, the concern that having done this once, it might happen again, in other words, there is the element of danger to the public.
[15] On the other side, the Judge referred to mitigating factors. He accepted there was remorse and a developing insight into his behaviour by the respondent. There was also the plea of guilty and ultimate co-operation with the police. It was noted the respondent was a first offender.
[16] By reference to the relevant principles he was directed to take into account by ss8 and 9 of the Sentencing Act, the Judge expressed no doubt that the offending fell into a very serious category. But he accepted that offending of this type could fall into a more serious category. He considered an appropriate starting point would be in the order of 12 or 13 years. He reduced that to take account of the mitigating factors including “the depressive illness from which you were suffering at the time”, and imposed the sentence of imprisonment for nine years. We heard no argument on the appropriateness of that sentence.
[17] It is clear that in arriving at the sentence imposed the Judge took into account, as he was required to do, (inter alia) the seriousness of the offending and the need to protect the community.
Section 86 compared with the previous minimum sentence provisions
[18] In the past, under previous legislation, sentencing courts have been reluctant to fix sentences to take account of what would or might occur in the course of administering the sentences. There were exceptions to prevent obvious anomalies, but they were comparatively rare. It was generally regarded as a matter for the Parole Board how much of a sentence of imprisonment would actually be served, subject to final release in the case of violent offenders on completion of two-thirds of the sentence.
[19] The introduction into the Criminal Justice Act of provisions for minimum sentences for serious violent offences in 1993 brought the necessity for sentencing courts to consider, initially in exceptional cases and, since July 1999, sufficiently serious offending, minimum periods to be served. When invoked in the case of a serious violent offender, unless the sentence was for 15 years or more, the minimum sentence did not affect eligibility for parole which was excluded in any event. The effect was to extend the final release date for a period from the completion of two-thirds of the sentence up to three months before the expiry of the sentence.
[20] With limited legislative guidance this Court attempted to identify the circumstances in which it would be appropriate to impose minimum sentences and criteria for determining the period. In Rongonui, after referring to the imposition of minimum terms in conjunction with indeterminate sentences, this Court said in paras [43] and [44]:
In contrast s80(4) permits the Court to make a minimum term order when sentencing an offender to a finite term of imprisonment of more than two years for a serious violent offence. In such a case the aspects of denunciation, punishment and deterrence can and will ordinarily be reflected in the length of the finite sentence which will then attract the present two-thirds rule: i.e. release after two thirds of the sentence has been served unless an application is made to the contrary: see sections 90 (final release) and 105 (requirement to serve full term). Hence the rationale for imposing a minimum term under s80(4) cannot logically be the same as applies under the earlier subsections involving indeterminate sentences.
In s80(4) cases, we consider Parliament must have been intending the Court to adopt an essentially forward-looking approach involving a consideration of whether the ordinary two-thirds rule will result in sufficient protection for the public in the case of an offender who is seen as being a danger to the public; albeit there remains the capacity to extend the two thirds date under s105.
[21] The enactment of the Sentencing Act 2002 and the companion Parole Act 2002 created a completely different context in which the views expressed in Rongonui are no longer apt. Under s84(1) of the new Parole Act all offenders serving a long-term determinate sentence, including serious violent offenders, become eligible for parole after serving one-third of the sentence. The combined effect of s84(1) Parole Act and s86(4) Sentencing Act is that the period within which a minimum sentence will have effect now is between one-third and two-thirds of the sentence (up to ten years). The paramount consideration for the Parole Board in determining whether to release on parole is protection of the community. Section 7(2) of that Act provides that offenders “must not be detained any longer than is consistent with the safety of the community”. This requires that after offenders have served one-third of their sentences, unless it is assessed that the safety of the community requires there continuing detention, they have to be released.
[22] Since minimum sentences under the new Act must end at the point during the sentence when a minimum sentence under the former Act would have begun to take effect, and since consideration of the safety of the community is now the prime factor to be assessed by the Parole Board, it would be quite inappropriate to apply the Rongonui approach in the new context. If, in the period of any minimum sentence, the offender is assessed as being a danger to the community, he or she will not be released on parole in any event. It is unnecessary, therefore, for the sentencing court to attempt to assess at the time of sentencing, as the primary focus, the safety of the community in a period commencing after one-third of the sentence has been served.
[23] This suggests that the power to impose a minimum sentence for a serious offender must be intended for cases of such seriousness that the court considers that, even if there is no danger to the community, release after one-third of the sentence has been served would represent insufficient denunciation, punishment and deterrence in all the circumstances. That means that sentencing judges are empowered, in effect, to override the general policy that all offenders, including violent offenders, are to be eligible for parole after serving one-third of the sentence imposed.
[24] We are not to be taken, from what we have said, to be suggesting that the considerations of the sentencer and those of the Parole Board should be mutually exclusive. Necessarily there will be overlap in the respective assessments made, of course, at different times. This is evident from the approach taken by this Court to the expressions “the need to protect the public” and “the safety of the public”. They were held to encompass general deterrence and the views expressed would apply equally to “the safety of the community”: see Hawkins v District Prisons Board [1995] 2 NZLR 14. That there is overlap does not mean there is double punishment. The assessments are made for different purposes which are quite consistent.
[25] The Sentencing Act gives no detailed guidance on when the power in s86 should be exercised. Nor is there assistance to be gained from the Australian jurisdictions where minimum sentences are common. That is because the legislation is quite different. Mr Winter submitted that some guidance is to be found in the statement in Parliament by the Minister of Justice when speaking to the Supplementary Order Paper by which s86 was introduced into the Bill. The Minister said:
The second amendment will allow Courts to set a minimum period of imprisonment of up to two-thirds of a sentence before parole is considered in the case of determinate sentences of more than two years. While it is unlikely that serious offenders would be considered suitable for parole at one-third of their sentence, given that the Parole Board has as its paramount consideration the safety of the community, there may be public concern that this would happen. As a safeguard, the Supplementary Order Paper therefore provides for a Judge in such cases to have discretion to set a minimum period before parole eligibility of up to two-thirds of the sentence, or 10 years, which ever is the lesser period. That is likely to be used by judges in serious cases only, usually involving violence or sexual offending where a relatively long sentence has been imposed. The offenders against whom periods before parole are imposed are those who would not have been granted early release by the Parole Board in any case, so this measure is unlikely to add further to the prison population. However, it will avoid victims having to go through the unnecessary stress of making representations to the Board in cases against early release. (28 March 2002, 599, NZPD, 15452)
[26] Mr Winter submitted that the provision should be used sparingly as a “safeguard” and not as a means of denying the right to parole where there is no danger to the community. Further, the final sentence in the Minister’s statement would suggest that the sentencing Judge should attempt some assessment of likely danger to the community in considering a minimum sentence.
[27] As Mr Winter pointed out, there is some guidance in the Act. Sections 7, 8 and 9 expressly apply when “sentencing or otherwise dealing with an offender” so that all of the purposes and principles laid down in those sections are to govern the application of s86.
How s86 should be applied
[28] The courts have a duty to give effect to the provision. We are not persuaded that it should be regarded merely as a reserve measure to safeguard against possible Parole Board misjudgments. If that were to be its limited role the statute would have said so. We consider saving victims from unnecessary concern about relatively early release and from the need to oppose parole should be seen as a consequence rather than a purpose of the section. We do not find in the Sentencing Act any clear legislative intention to effect a reduction in the sentences for serious offenders. The Parole Act, on the other hand, effects a reduction in the time to be served by serious offenders, subject to the safety of the community. But s86 provides the mechanism to constrain that outcome where the offending is so serious that release after one-third of the sentence would plainly constitute an insufficient response in the eyes of the community, even though there may be no on-going safety risk. It enables the courts to give a degree of reality to the sentence and the outcome.
[29] The section is to be applied according to its terms and in the context of the statute as a whole. It provides for the imposition as part of the sentencing discretion, of a minimum sentence to be served. The power is to be exercised at the time of sentencing. The prerequisite for imposing a minimum sentence is that the Judge is satisfied that the circumstances of the offence are sufficiently serious to justify a minimum period of imprisonment longer than one-third of the sentence imposed. The focus is on the circumstances of the offence. That would seem to preclude from consideration at this initial stage circumstances of the offender unrelated to the particular offence, such as criminal history. However, there are some characteristics of the offender which may constitute circumstances of the offence. It may be a circumstance of the offence that it was committed by the particular offender e.g. infanticide. The provision is intended to apply in circumstances where culpability is high. We do not consider that subsec (3) is intended as an exhaustive definition of “sufficiently serious” circumstances. We see it rather as indicative of the level of culpability which is needed for a s86 order.
[30] The section requires some comparison with offending of the kind involved that would not justify a minimum sentence of more than one-third. Since parole after one-third of the sentence is served is the statutory norm, the circumstances of the offence must be more serious than those of offences of that kind normally encountered. Of course, “normal” and “the ordinary range” are elusive standards applied to criminal offending. That is particularly so with offences such as manslaughter and attempted murder which encompass such a wide range of behaviour.
[31] The references to “sufficiently serious” and “out of the ordinary range of offending of the particular kind” constitute a lower standard than that employed in the earlier provisions of “so exceptional” dealt with in the line of cases up to and including R v Sibley (CA290/97, judgment 15 October 1997).
[32] It must be a matter for judicial judgment whether the “sufficiently serious” threshold is crossed. Generally this will involve identifying aspects that set the particular offending apart. Any attempt to list possible features that might qualify would unduly fetter the sentencing discretion. The Judge must review the circumstances as a whole and apply the statutory test. The central consideration must be culpability which necessarily is increased by matters such as unusual callousness, extreme violence, vulnerable or multiple victims and serious actual or intended consequences. This last factor may be important in cases involving major drug dealing. We do not consider the overall assessment need be constrained by the particular charge brought in respect of the conduct concerned; for example in cases of serious violence against the person the assessment of culpability should be in relation to conduct of that kind and not limited only to conduct giving rise to charges for precisely the same offence.
[33] The section is likely to have application more in cases of serious offending. They attract longer prison terms with the consequent wider gap between the appropriate nominal sentence and one-third in each case. It requires the Court to determine both the maximum and minimum sentences to be served with the result that subject to any concern about the safety of the community the sentence which will actually be served is fixed within the range between them.
[34] If it is found that the sufficiently serious threshold is crossed, the sentencer must then, again as a matter of sentencing discretion, determine whether to impose a minimum sentence and, if so, the period between one-third of the nominal sentence and the maximum prescribed by s86(4). It is at this stage that all the sentencing principles in s7, 8 and 9 require consideration. It will be wrong simply to go to the point of two-thirds of the sentence without carefully reviewing the circumstances of the offence and of the offender.
[35] To sum up, when a minimum non parole period is in issue the sentencing Judge is involved in a two stage process. First, the nominal or maximum length of the sentence is fixed. That is done, as hitherto, by reference to all relevant sentencing considerations, largely now incorporated in the sentencing principles set out in ss 7, 8 and 9 of the Sentencing Act. Second, as a separate exercise, the Judge must consider whether the offending itself is sufficiently serious so that for the offender to serve only the ordinary minimum period of one-third of the length of the sentence would not be enough to punish, deter and denounce the offending. If that is so the Judge may fix a minimum non parole period at a level (not more than two-thirds of the nominal length of the sentence or ten years) which does sufficiently punish, deter and denounce the offending.
[36] The nominal length of the sentence is the maximum period the offender can be required to serve, whatever may be the Parole Board’s perception of the need to protect the community. The minimum period actually served (subject to considerations of safety of the community) will be one-third or such higher amount, up to two-thirds (or ten years) as the sentencing Judge, in a case of sufficient seriousness, perceives to be required to satisfy the requirements of punishment, deterrence and denunciation. There is no element of double punishment in that. The distinction is simply between the maximum period which may have to be served and the minimum period which will actually have to be served. The seriousness of the offending necessarily must be considered in the assessment of each.
This case
[37] We turn to the present case. We have no doubt that the circumstances of this offence of attempted murder are sufficiently serious to justify a minimum period of imprisonment greater than three years. It is unnecessary to set out again the aggravating features identified by the Judge. To those we would add the circumstance that this was an attack by an adult son on his mother. It was extremely violent and the culpability would be much the same if the intended purpose had been achieved. The consequences for the immediate victim and the family are quite appalling. On any scale of injuring by violence the circumstances of this case are at the high end. While the Judge felt able to envisage possible worse cases we do not see that should necessarily exclude the offending from the category of “the most serious of cases” referred to in s8(c). Of course, that provision envisages that the maximum penalty will not necessarily be appropriate in light of circumstances relating to the offender.
[38] We think it would convey entirely the wrong signals if the sentencing response to this violent offending were to remain (assuming no ongoing issue of safety of the community) as a sentence which would involve only three years in prison. We are satisfied a longer minimum period is required.
[39] Just what minimum period should be imposed is more difficult. In fixing the nominal sentence the Judge made allowance for certain mitigating features. The benefit of such reduction translates directly into the time at which the offender becomes eligible for parole. In postponing that, the sentencer should not give the impression of erasing those credits. This could occur if there were to be a concentration on the seriousness of the offence to the exclusion of the circumstances of the offender.
[40] The Judge was left unable to say whether the respondent would present a risk of repeat behaviour. We also find that difficult to assess on the psychiatric reports. The question of future risk will be for the Parole Board at a time it becomes material.
[41] It is apparent that some considerable time will be involved in treating the respondent’s underlying disorder to help him gain greater insight into his own difficulties and his behaviour. That must be available to him while he is serving a term of imprisonment appropriate emphatically to denounce and punish what he has done and to act as a deterrent to others who might engage in violent attacks.
[42] There is no issue in this case of mental illness obscuring from the offender the true nature and seriousness of the criminal acts. There is, to some extent, explanation in the depressive disorder and the Judge made some apparently substantial allowance for that.
[43] We consider a minimum sentence should be imposed and that it should reflect the very serious offending and the circumstances surrounding it. We bear in mind that this is a Solicitor-General’s appeal so the minimum period should be fixed at no more than is necessary to mark the seriousness of the offending. Accordingly, we grant leave and allow the appeal and order that the respondent must serve a minimum term of imprisonment of five years.
Solicitors:
G T Winter, Whangarei, for Appellant
Crown Law Office, Wellington
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