Brown v R [2011] NZCA 95 (25 March 2011)

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Brown v R [2011] NZCA 95 (25 March 2011)

Last Updated: 29 March 2011

IN THE COURT OF APPEAL OF NEW ZEALAND

CA894/2010 [2011] NZCA 95

BETWEEN PAUESI BROWN Appellant

AND THE QUEEN Respondent

Hearing: 14 March 2011

Court: Harrison, Courtney and Clifford JJ

Counsel: B J Hart and L Freyer for Appellant A Perkins for Respondent

Judgment: 25 March 2011 at 9.30 am

JUDGMENT OF THE COURT

Appeal against minimum period of imprisonment of 16 years dismissed.

REASONS OF THE COURT

(Given by Harrison J)

[1] Mr Pauesi Brown pleaded guilty in the High Court at Auckland to charges of murdering Austin Hemmings at Auckland and assaulting Diane Nonu with a weapon. Venning J sentenced Mr Brown to concurrent terms of life and two years imprisonment respectively.[1] He does not appeal against either of those sentences.
[2] Venning J also imposed on Mr Brown a minimum period of imprisonment (MPI) of 16 years on the charge of murdering Mr Hemmings. The effect of that sentence, as the Judge was careful to point out, was to defer the period before which Mr Brown would be eligible to apply for parole. Mr Brown appeals against that sentence on a number of grounds.

Facts

[3] We adopt Venning J’s comprehensive summary of the facts as follows:

[6] In September 2008 you were in a relationship with a Ms Ioane. She worked in a call centre in a building off Queen Street. Her work was on an upstairs floor in an office that backed onto and overlooked Mills Lane. She worked there with Ms Nonu. They were friends and would often take cigarette breaks together and discuss matters with each other. Ms Nonu happened to be related to you, being a cousin through adoption. Ms Ioane talked to Ms Nonu about your relationship. It seems that in the course of these discussions Ms Nonu made some negative comments about you, which Ms Ioane repeated to you.

[7] On 25 September 2008, at about half past four, you had a lengthy telephone discussion with Ms Ioane. You became angry and the call was terminated. Ms Ioane was able to sense your anger and was concerned at what you might do. She knew that you were annoyed with Ms Nonu for saying bad things about you. Ms Ioane was concerned enough to send two text messages to you urging you not to do anything stupid.

[8] About three quarters of an hour later Ms Nonu went down to the ground floor and outside the rear of the office onto Mills Lane to take her afternoon cigarette break. You were there in that area and approached her. At the time Ms Nonu was on her cell phone. She acknowledged you by nodding her head. You continued to approach her and you fronted her and tried to back her into a corner of the building. You stood inches away from her face in a threatening and aggressive manner.

[9] About this time the deceased, Mr Hemmings, came out from an adjacent building on his way to the carpark and to head home. Ms Nonu asked Mr Hemmings for help and to call the police. Mr Hemmings came over to her to give her assistance. You tried to dismiss him but Mr Hemmings came and physically put himself between you and Ms Nonu. He told Ms Nonu to run away. She went towards the lift in the carpark of her building in an attempt to escape from you. The lift was about 25 to 30 metres away. You started to chase after her until you were about five metres or so away from her.

[10] By this time Mr Hemmings was some distance away from you. He said “Get away” or words to that effect. With that, you stopped your pursuit of Ms Nonu and turned back towards him. As you did so, you pulled out the knife that you had with you. It had a 20 centimetre blade. You walked straight back to Mr Hemmings and thrust the knife into the top left side of his chest.

[11] Immediately after stabbing Mr Hemmings the lift arrived and Ms Nonu got into it to get away from you. You left Mr Hemmings and sprinted towards the lift. You managed to get between the doors of the lift to prevent them shutting. You then pinned Ms Nonu by the neck with one of your arms holding her against the side wall of the lift. You were still holding your knife in the other hand. You punched her to the nose and cheek area and swung the knife at her stomach. She moved to her left and the knife narrowly missed her stomach. At the same time Ms Nonu was able to push you back and caused you to stumble out of the lift and you then ran away. You threw the knife away in a nearby rubbish bin.

[12] In the meantime Mr Hemmings managed to walk about 100 metres from where you had stabbed him before collapsing. The stab wound you had inflicted on him punctured his lung. Despite attention and attempts at resuscitation from passersby and then ambulance officers, Mr Hemmings died. Ms Nonu suffered injuries and bruising to her face and swelling and bruising to her arm.

[4] When discussing a submission by the Crown, Venning J noted that Mr Hemmings had responded to an appeal from Ms Nonu. He acted as an ordinary citizen accepting a duty to respond to a cry for help by another member of the public. Mr Brown reacted with gratuitous violence to a man who effectively acted as a good Samaritan – and, while he may have saved Ms Nonu’s life, Mr Hemmings paid with his own. We adopt that summary of the circumstances.

Section 103 of the Sentencing Act 2002

[5] Section 103 of the Sentencing Act 2002, which required the Judge to impose a MPI in Mr Brown’s case, provides in part:

(2) The minimum term of imprisonment ordered may not be less than 10 years, and must be the minimum term of imprisonment that the court considers necessary to satisfy all or any of the following purposes:—

(a) holding the offender accountable for the harm done to the victim and the community by the offending:

(b) denouncing the conduct in which the offender was involved:

(c) deterring the offender or other persons from committing the same or a similar offence:

(d) protecting the community from the offender.

[6] Some introductory context is necessary. The words of s 103(2) are important. Parliament requires the sentencing Judge to fix what he or she considers the minimum term necessary to satisfy four defined purposes. The exercise of fixing that term is of a particularly fact-specific, evaluative nature.[2] Thus, as Mr Hart recognises, this Court will not interfere with a MPI unless it is satisfied that the sentencing Judge has made a material error which has led to a manifestly excessive term.
[7] These factors are also material:

• (a) The sentencing Judge’s primary function is to assess the inherent culpability or blameworthiness of the offending, by comparison with other cases wherever possible.[3]
• (b) In keeping with its evaluative nature, the Judge’s assessment must necessarily be broad and realistic.[4] All relevant statutory purposes may be given global recognition. Isolation of individual components is unnecessary.
• (c) Orthodox sentencing principles apply, allowing consideration of an offender’s personal circumstances. However, other than the limited recognition given to a plea of guilty, they are to be taken into account only insofar as they bear on the statutory purposes of punishment, denunciation, deterrence and community protection.[5]

[8] In fixing the MPI, Venning J found that the following circumstances of the offending were directly relevant to his consideration of the first three statutory purposes:[6]

• carrying a knife in a public place during the day;
• the intention to use a knife if you were faced with a situation of conflict;
• the threatening of Ms Nonu;
• the unprovoked and deliberate attack on an innocent member of the public who had intervened to stop your further assault on a woman;
• your returning to assault and attack Mr Hemmings with the knife when there was no need to do so for any reason at all;
• the use of a knife in that attack on him and directing it to his upperchest area; and
• then, after delivering the fatal blow to Mr Hemmings, continuing an assault on Ms Nonu using the knife as a weapon on her.

[9] The Judge concluded that these circumstances in total justified a MPI of 14 years. He then added a further two and a half years to reflect an express consideration of the final statutory criterion – community protection – in these terms:

[28] The last purpose, the need to protect the community is relevant to the major personal aggravating factors in this case, your propensity for violence. Mr Brown you are a dangerous and violent man. At the age of 47 you have been in and out of prison for the last 22 years. During those 22 years you have been sentenced to terms of imprisonment in New Zealand and Australia totalling just under 15 years. In New Zealand you have one conviction for wounding with intent to injure, one for threatening to kill, three convictions for either male assaults female or domestic assault, one conviction for common assault, two for assault with a stabbing or cutting instrument, and one for wounding with intent to injure using a weapon. In Australia you were convicted of manslaughter and causing serious injury. You have an established propensity for violent offending and, what is worse, for violent offending using a knife. You have sought to explain and justify carrying the knife on the basis that you were going to South Auckland to buy cannabis and you needed it for your protection because on a previous occasion you had been threatened by drug dealers and had your money taken. The fact that you seek to rationalise and justify carrying a knife on that basis and were obviously prepared to use it when faced with a confrontation is a matter of real concern. There is a need for the Court to protect the community from people such as you. As the Court of Appeal confirmed in [R v Popo [2009] NZCA 447] in quite different circumstances but as a matter of principle, taking your relevant previous convictions into account is not to punish you twice for previous offending. The Court of Appeal in [R v Casey [1931] NZLR 594] noted it may be necessary to take previous convictions into consideration because the character of the offender frequently affects the question of the nature and gravity of the crime. Further, at 597 of that decision the Court added:

... the previous convictions of a prisoner may indicate a predilection to commit the particular type of offence of which he is convicted, in which case it is the duty of the Court, for the protection of the public, to take them into consideration and lengthen the period of confinement accordingly.

[10] From this adjusted figure of 16 and a half years, Venning J allowed six months for Mr Brown’s belated plea of guilty. That plea was entered on 1 November 2010, the day of commencement of trial. The Judge was not satisfied that Mr Brown had shown any genuine remorse. The MPI was 16 years’ imprisonment.

Appeal

[11] Before dealing with the specific grounds of appeal advanced by Mr Hart, we note the tight contest before Venning J about whether s 104 of the Sentencing Act applied, rather than s 103. If it did, the statutory minimum would be at least 17 years, not 10 years. The Judge rejected the Crown’s submission that there were exceptional circumstances sufficient to invoke the higher minimum. In the end he concluded that the s 104 threshold was not met, because the qualifying features were not present. The Crown does not challenge that conclusion.
[12] Mr Hart advances a number of grounds in support of his submission that the MPI of 16 years was manifestly excessive. While those grounds are carefully broken into seven discrete categories, we are satisfied that they can be addressed in more summary form as follows.
[13] First, Mr Hart submits that Venning J failed to give proper credit for Mr Brown’s guilty plea.[7] He says this was not a case in which the Crown was prepared to entertain a plea to manslaughter; the only alternative was a plea to murder or trial. Also, Mr Brown’s plea of guilty was made under s 167(b) of the Crimes Act 1961, what is generally described as the recklessness category, and did not reflect an intention to kill. He refers to various pre-trial applications, particularly a late application by the Crown for directions on propensity evidence. He says that credit of up 10 per cent or 18 months, rather than the six months allowed, would have been appropriate.
[14] We do not accept that submission. This is an area where the Judge’s discretion is entitled to considerable respect. We cannot fault Venning J’s careful explanation of his reasons for allowing only a minor credit as follows:

[32] Balanced against that, the Crown case against you was an overwhelming case. Mr Hart submits that one reason for the late plea, which is a relevant factor, is that there were pre-trials which led ultimately to the guilty plea. But frankly even without the pre-trials which led to the admissibility of your previous relevant convictions, as I have said the Crown case was overwhelming. You were apprehended within 24 hours. There was no doubt you were the offender. You had no apparent defence. Your attacks were deliberate, unprovoked and cannot be justified in any way by the actions of Ms Nonu or the deceased. In those circumstances the fact your guilty plea came at the last moment on the morning of trial is a factor I take into account. If you had pleaded guilty earlier then consideration would have been given to a greater credit in terms of the minimum non-parole period.

[15] Second, Mr Hart says that Venning J failed to give Mr Brown any or proper credit for his remorse. He relies on Mr Brown’s letter to Mr Hemmings’ family and expressions of remorse to the probation officer and a forensic psychiatrist. He challenges the Judge’s grounds for rejecting a plea for a specific allowance for remorse.[8]
[16] Evaluation and quantification of what was loosely termed “genuine remorse” presents difficulties for a sentencing Judge. In terms of sentencing principles, remorse can only be relevant in one of two ways – either as a sign of atonement which might lessen the suffering of the victim or his or her family or as tangible evidence of the offender’s progress along the path to rehabilitation. Its orthodox expression is in a plea of guilty. A profession of remorse on its own is likely to carry little if any extra weight.
[17] As noted, Venning J carefully considered Mr Hart’s submission of Mr Brown’s remorse. He was not satisfied that it was genuine in the sense of showing deep regret, guilt, a feeling of sorrow and an acknowledgement of responsibility. To the contrary, the Judge found, Mr Brown continued to attempt to rationalise his conduct, saying that he felt provoked and intimidated by Mr Hemmings. The Judge’s conclusion cannot be challenged.
[18] Third, Mr Hart says Venning J failed to take into account the prospects of Mr Brown’s rehabilitation and other mitigating factors. However, this submission is untenable. Mr Brown’s consistent pattern of violence, again manifested at 47 years of age (22 of which had been served in prison) – twice with fatal results – is compelling evidence to the contrary. Furthermore, in a crime of this nature, there is limited scope to recognise favourable personal circumstances.[9]
[19] Fourth, Mr Hart submits that Venning J erred in allocating four years to the first three statutory requirements of accountability, denunciation and deterrence and a further two and a half years to the final statutory factor of community protection. He submits that one year was appropriate for the first three; and, perhaps up to 18 months on the fourth – being a total increase on the ten year base line of between two and two and a half years, to a MPI of between 12 and 12 and a half years.
[20] We reject Mr Hart’s submission. While we are satisfied that an allocation of the MPI between the four statutory purposes was unnecessary, a global assessment of culpability justified Venning J’s decision. Three factors are particularly material.
[21] First, there are the aggravating features of this offending. Mr Brown carried a knife with him to a public place. He plainly intended to use it, either to threaten or inflict violence. He deliberately attacked an innocent bystander who came to Ms Nonu’s rescue. He stabbed Mr Hemmings in what he must have known was a vulnerable part of his body and left him to die. He showed no concern for his wellbeing.
[22] Mr Brown’s separate offending against Ms Nonu must also be taken into account. He continued to attack Ms Nonu after stabbing Mr Hemmings. As Mr Perkins emphasises for the Crown, her escape was due to good fortune, not to Mr Brown’s abandonment of his determination to attack her.
[23] Second, the requirement to punish required proper recognition. As the Judge recorded, Mr Hemmings was a man who had given significantly to his family and to the community. At the time of his death, he had much to offer. He left a widow and teenage children. He was a loved husband and father. His family are also Mr Brown’s victims,[10] and its members have suffered a special loss.
[24] Third, the requirement for community protection was also entitled to special weight. This was the second time that Mr Brown had killed. As Mr Perkins observes, he also has convictions for wounding with intent to injure, threatening to kill, assault and using a stabbing or cutting instrument. His propensity for using knives is chilling. His violent offending over such a long period demonstrates the serious danger he poses to the community. He will be at least 60 years of age before he is eligible to apply for parole. It will be then for the Parole Board to determine whether the overwhelming danger which he presently poses has abated sufficiently to consider his release.

Result

[25] Viewed individually and in totality, we are satisfied that none of Mr Hart’s grounds of appeal are sustainable. Mr Brown’s appeal against a minimum sentence of 16 years imprisonment is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent

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[1] R v Brown HC Auckland CRI-2008-004-22829, 10 December 2010.
[2] R v Howse [2003] 3 NZLR 767 (CA) at [69].
[3] R v Howse at [62]–[64].
[4] R v Howse at [62].
[5] R v Walsh [2005] NZCA 281; (2005) 21 CRNZ 946 (CA) at [26] and [28].
[6] At [26].

[7] Relying on Hessell v R [2010] NZSC 135; (2010) 24 CRNZ 966.

[8] At [35] and [36].

[9] R v Walsh at [28].
[10] Sentencing Act 2002, s 4(1), definition of “victim”, para (a)(iv).