Crimes Act 1961 – sentencing – murder – minimum period of imprisonment – s 27 report – wounding with reckless disregard
R v Bourne  NZHC 2367.
Desmond Bourne appeared for sentencing, having been found guilty of one charge of murder and one charge of wounding with reckless disregard.
On 28 November 2020, Bourne and some others decided to buy methamphetamine to use. The supplier was to be the deceased. Bourne had supplied the deceased with GBL, a class B controlled drug. There was a dispute about the payment for the drug as the deceased had maintained it was of poor quality and in the end refused to pay the final amount. In Brewer J’s view, Bourne harboured resentment.
Bourne and his associate drove to meet the deceased. Bourne’s associate got out of the vehicle and approached the deceased, who was in his vehicle. Shortly afterwards, Bourne exited the car with a firearm. He then twice shouted at the deceased, asking for payment, before firing through the window of the deceased’s vehicle. With his associate having fled the deceased’s vehicle, Bourne fired at the vehicle again. One shot proved fatal.
The jury rejected Bourne’s defence that he had no memory as to how he got to the vehicle because he was so intoxicated, and that his few coherent memories were of him being attacked by his associate while he was still in his own vehicle. Bourne’s evidence was that he had no intention of hurting anyone, let alone killing them.
The only possible sentence for the charge of murder is life imprisonment. The court is required to decide a minimum period of imprisonment before the offender becomes eligible for parole.
The court established the shooting of the deceased was not planned and accepted Bourne had a loaded weapon under the back seat as general protection and not because he was going to meet the deceased. The s 27 report confirmed Bourne’s long-standing history of drug and alcohol abuse and that he suffered from substance use disorders. It was the report writer’s opinion that substance abuse was the cause of Bourne’s offending. No credit was given for character, but Bourne’s criminal record was not used against him in sentencing.
Overall, the court concluded a minimum period of 10 years’ imprisonment was appropriate. Two years were added to the minimum term, reflecting the injuries sustained to Bourne’s associate as a result of the first shot fired through the driver’s side of the car.
Applicable principles: Sentencing – murder – life sentence – minimum period of imprisonment – lack of cruelty, higher level of brutality – personal aggravating and mitigating factors – s 27 report – drug and alcohol abuse – character – criminal history – wounding with reckless disregard.
Held: Bourne was sentenced to life imprisonment with a minimum period of imprisonment of 12 years.
Jasmine Jackson is an Auckland criminal defence barrister and a member of the ADLS Parole Law committee.