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Lake v R [2021] NZCA 352 (29 July 2021)

Last Updated: 3 August 2021

JUDGMENT OF THE COURT

The appeal is dismissed.
____________________________________________________________________

REASONS OF THE COURT

(Given by Simon France J)

• [1] Mr Lake carried out a sustained vicious assault on a fellow prison inmate. It involved kicking and stomping to the head at least seven times. The victim, who was unconscious for part of the assault, suffered severe facial and head injuries. The assault is expected to result in long-term functional and memory issues.
• [2] Mr Lake pleaded guilty to a single charge of wounding with intent to cause grievous bodily harm.^[1] Powell J identified a finite sentence of six years’ imprisonment.^[2] However, his Honour then determined that the indefinite sentence of preventive detention was the appropriate sentencing outcome.^[3] That sentence was accordingly imposed along with a minimum period of imprisonment of six years.
• [3] Mr Lake appeals against the sentence of preventive detention. A further appeal against the length of the alternative finite sentence is not pursued. For the record, we note this alternative sentence of six years’ imprisonment is for a second strike offence, meaning it would be served in full.^[4] The Judge indicated he would impose it concurrently,^[5] which means it would have commenced on the day of sentencing.

Facts

• [4] The facts are sufficiently stated. It can be added that there were two phases to the assault in that Mr Lake rendered the victim unconscious by punching his head seven times, stomped on his head twice and kicked him in the back of the head, left briefly, but then immediately returned to again stomp on the victim’s head at least five further times.

Further information about Mr Lake

• [5] Mr Lake is 37 years old. He is a Māori man from the Kāpiti Coast area. He presently is unsure of his iwi or hapū, but expresses an interest in learning about these and his Māori heritage generally. He describes his upbringing as “pretty tough”. His parents separated when he was around five years old. He moved north with his mother and siblings, and seems to have both witnessed significant violence to his mother and experienced it himself. Mr Lake has two teenaged children from brief relationships in his early twenties. It seems he has no current contact with his children, and has never been in a long-term relationship.
• [6] Mr Lake was sentenced in 2010, when aged 27, to a term of six years and six months’ imprisonment for stabbing an acquaintance he thought had wronged him.^[6] Although there had been numerous offences committed over the years by Mr Lake prior to that event, this was his first sentence of imprisonment, with community work sentences having been a staple response.
• [7] Since he has been in jail Mr Lake’s conduct has deteriorated. The present offending is the third occasion he has appeared before the courts for committing violence in prison. On the first occasion he was sentenced to six years and six months’ imprisonment for his part in a group assault committed in July 2015.^[7] Mr Lake’s role involved stomping on the victim’s head, conduct which reappears in the present incident. That sentence was to be served cumulatively on the sentence imposed in 2010. On the second occasion a further cumulative sentence of six months’ imprisonment was imposed for stabbing a fellow inmate in October 2014.^[8]

Relevant law

• [8] Section 87(2)(c) of the Sentencing Act 2002 makes it a pre-condition to the imposition of the sentence of preventive detention that the court be satisfied that Mr Lake is likely to commit another qualifying violent offence if released at the end of the six-year finite sentence that would otherwise be imposed. Mandatory considerations are identified in s 87(4):

(a) any pattern of serious offending disclosed by the offender’s history; and

(b) the seriousness of the harm to the community caused by the offending; and

(c) information indicating a tendency to commit serious offences in future; and

(d) the absence of, or failure of, efforts by the offender to address the cause or causes of the offending; and

(e) the principle that a lengthy determinate sentence is preferable if this provides adequate protection for society.

We note that in R v Vincent this Court, referring also to earlier appellate decisions, observed that “a heightened risk of reoffending may be considered to attach to those who commit serious offences within the controlled environment of a prison”.^[9]

High Court sentencing

• [9] The Court had reports from a psychologist, Ms Bramhall, and from two psychiatrists, Drs Jacques and Pillai. The latter two each also gave oral evidence.
• [10] Ms Bramhall assessed Mr Lake as a high risk of further violence. She considered his experience of early childhood trauma needed to be addressed as part of a focus on his violence. She noted Mr Lake was listed to attend the one-year course for high-risk violent offenders (STURP), but thought his cognitive functioning may preclude him from successfully undertaking that. She considered individual support the likely necessary pathway.
• [11] Dr Jacques assessed Mr Lake through the lens of several risk assessment tools and considered Mr Lake to be at a high risk of future violent offending without intervention or treatment. He identified several areas for treatment focus — emotional control, impulsivity, coping with stress and addressing issues arising from past trauma. There was also a need to assist with life skills in terms of education and work.
• [12] Dr Jacques accepted Mr Lake’s receptiveness to such interventions and observed that past efforts have not succeeded because they were not tailored to his specific needs. Mr Lake has learning difficulties that make the structured group programme difficult for him. Dr Jacques, like Ms Bramhall, suggested a more individualised treatment programme is needed. Dr Jacques identified different features of the sentencing options. Preventive detention may mean Mr Lake’s needs are not prioritised but would serve to provide an incentive to address his offence‑related behaviours.
• [13] Dr Pillai addressed the suggestion in Ms Bramhall’s report that Mr Lake may be suffering from post-traumatic stress disorder (PTSD) flowing from previous violence in his life and reflected now in intrusive recollections of the violence. Dr Pillai considered the absence of other indicia made a diagnosis of PTSD not supported, but observed:
  61. However Mr Lake’s personality structure characterised by impulsive violence, rule-breaking behaviour without concern for consequence and affective liability (rapidly changing moods with poor emotional regulation) is consistent with the theoretical construct of complex PTSD. This diagnosis relates to repeated trauma during the developmental period leading to changes in thoughts, feelings and behaviour that persist throughout adult life. This is not recognised as a diagnostic entity within standard diagnostic classification system but is relevant in understanding Mr Lake’s constellation of behaviours and emotional problems.
• [14] Dr Pillai, who emphasised the difficulties inherent in predicting somebody’s risk at a time well in the future, assessed Mr Lake as a moderate to high risk, with the risk at its greatest when Mr Lake feels threatened. Like Dr Jacques, Dr Pillai considered a high intensity specialist treatment programme could help.
• [15] Powell J, having considered the reports, concluded that as matters presently stand, Mr Lake was “very likely” to commit a further qualifying offence.^[10] That would remain the case until Mr Lake was able successfully to address the underlying causes of his violence.
• [16] It was noted that the opportunities Mr Lake had to date were not of the type most likely to prove beneficial, and that all report writers considered genuine Mr Lake’s expression of a willingness to engage with treatment.^[11] His Honour saw the key issue as being whether those prospects made a finite sentence the correct outcome.
• [17] By a “relatively fine margin” Powell J concluded that a finite sentence, even followed up by an extended supervision order would “not provide sufficient protection for the community”.^[12] Accepting Mr Lake’s willingness to engage with treatment, there was still an issue as to whether it would succeed. Preventive detention offered the necessary protection to society if no change in Mr Lake were effected.^[13]

Submissions on appeal

• [18] Mr Munro advances two propositions on behalf of Mr Lake:

(a) the outcome gives insufficient weight to the prospects of successful rehabilitation; and

(b) the outcome is a cruel and disproportionately severe punishment because there is no guarantee Mr Lake will be provided with the necessary treatment assistance. Related to this is the proposition that the system is the reason why Mr Lake presents as he does, he never having been proffered the assistance needed.

• [19] It is submitted that Mr Lake’s prospects of rehabilitation are supported by his past conduct. He tried to participate in the group courses offered him, but lacked the tools to successfully do so. This Court should therefore find it likely he will equally engage with a correctly focused treatment programme if it is offered.
• [20] Emphasis is placed on a further passage from Dr Pillai’s report:
  78. Mr Lake does have a sustained pattern of previous similar offending from 2010. It is of note that whilst residing in the community his offending was at a lesser level than the offending since he has been incarcerated and moved to maximum security. This suggests that Mr Lake’s offending is potentiated by the maximum security environment. In the community the violence risk remained high but the level of offending appeared to be much lower based around the record of conviction for common assault.
  79. As described above, from the analysis of past violent events, the most significant violence is likely to occur when Mr Lake feels threatened by a peer and acts with decisive violence to end the threat. This is consistent with his own experiences of violence and the need for self‑protection based upon his experiences when a youth and adolescent. On the basis of past event descriptors, this scenario is most likely to be played [out] in custody.

Relying on this, it is submitted the sentence of preventive detention, with its capacity for a much longer period of incarceration and therefore exposure to the higher risk situation, is incorrect.

• [21] Mr Munro draws also on a passage from Ms Bramhall. While the submissions focused on the last part of the paragraph, we set out the full extract:
  54. It is noted that Mr Lake has had limited opportunity to engage in educational related training and offence-focused treatment, and access to mental health support. This appears to have been largely due to his behaviour in prison, his limited insight into his own behaviour (and difficulties) and maintaining a maximum security classification. Mr Lake has shown the ability to comply with prison rules, and reduce his security classification. However, the absence of support, tailored to his cognitive and psychological needs, has resulted in Mr Lake relapsing into violent behaviour. Mr Lake may benefit from an individually tailored management plan to support him managing his risk of future violence. The plan should consider Mr Lake’s cognitive functioning and include custodial support, individual psychological support, mental health support and an educational and vocational training pathway.

(Emphasis added.)

• [22] It is further submitted that an important feature in other cases where preventive detention has been imposed was the failure of previous treatment efforts.^[14] Here Mr Lake is submitted not to have had that opportunity and so should be assessed differently.
• [23] Related to this, Mr Munro submits that even if the statutory test is made out, there remains a residual discretion not to impose the sentence. That discretion should be exercised consistently with the New Zealand Bill of Rights Act 1990. Reference is made to the decision of the Supreme Court in D (SC 31/2019) v Police in which the Court considered the issue of the Child Sex Offenders’ Register. The Court observed:^[15]

[108] Once a judge has determined the nature and seriousness of the risk posed by the offender, he or she must then determine whether that risk is sufficient to warrant the making of a registration order and subjecting the offender to the requirements of the Registration Act. That assessment will involve a balancing of the protective objectives of the registration order against the level of intrusion into the rights of the offender.

(Footnotes omitted.)

• [24] Rehabilitation is a purpose of the Corrections Act 2004,^[16] and s 52 makes it mandatory for the Chief Executive to ensure, to the extent consistent with resources, rehabilitative programmes are provided to prisoners who will benefit from them. It is submitted that the imposition of preventive detention “removes any oversight” which might require the Department of Corrections to provide the necessary rehabilitation. Because there is no surety the necessary treatment will be offered, the indefinite sentence is said to be disproportionately severe.

Analysis

• [25] We address first the latter propositions which we consider reflect an incorrect assessment of the task of a sentencing court. The obligations on the Department of Corrections apply to persons sentenced to imprisonment. They exist regardless of the length of the sentence and flow from the Corrections Act and the person’s status as a prisoner. A sentencing court is entitled to, and should, undertake its task on the assumption that any sentence of imprisonment that is imposed will be administered lawfully in accordance with the requirements of that statute.
• [26] In the present case, Mr Lake was offered the available established treatment programmes. They did not succeed. He is listed to attend another one-year programme. Current analysis by experts has explored why the first one did not succeed, and has suggested an alternative route to rehabilitating Mr Lake. That will involve individual treatment rather than use of the established group programmes. If and when that will happen is not something the sentencing court can be particularly influenced by. The obligations on the Chief Executive are expressly subject to resources.^[17] The Court has no information on the capacity of the Department of Corrections to provide this intensive individual programme nor when it will occur. The Court can only proceed on the assumption that obligations under the Corrections Act will be discharged. What that means in a particular case is a matter for the Chief Executive.
• [27] The submission that the sentence of preventive detention, if otherwise properly imposed, would amount to disproportionately severe treatment is based on two propositions with which we disagree. First, the proposition already discussed, that the Court should proceed on the (incorrect) basis that a sentence of preventive detention means there is no obligation on the Chief Executive to provide treatment. Second, that Mr Lake’s offending is the Department of Corrections’ fault.
• [28] Concerning this second proposition, we recognise it has some foundation in the passage cited from Ms Bramhall’s report, but the whole of the paragraph, which recognises Mr Lake’s contribution to his situation, needs to be considered. Further, to some extent the comment assumes that individualised treatment, if offered, would have succeeded. We doubt that can be known. Many factors will still influence the outcome. Further, in terms of fault, the need for an individualised “bespoke” treatment programme has only recently, to our knowledge, been identified. It is not a case of ongoing indifference to an identified need.
• [29] We turn then to the primary challenge which is that Powell J erred in his assessment that preventive detention was necessary to protect the community.
• [30] We do not consider the Judge was required to accept Dr Pillai’s assessment that the risk posed by Mr Lake is less in the community. The basis for that proposition is debatable. It seems to be based on an assumption that the risk of Mr Lake feeling threatened is greater in prison. While that is possibly so, it does not mean the same risk is insufficiently prevalent in the community to be a basis for the sentence. The very reason Mr Lake was in prison in the first place was the manifestation of that risk in the community. He took umbrage at a friend lying to him and stabbed him. Mr Lake has then continued to act similarly in prison, but it is not different conduct. Further, he has not been in the community since he first stabbed someone, so it cannot be known how he would have acted there. We see nothing in the reports to support the proposition the risk is mainly a prison environment concern. We also note that while in prison the threat may be more real, the initial offence shows Mr Lake is capable of misperceiving the presence of a risk, or overreacting to a slight in the community.
• [31] Where we tend to differ from Powell J is in the proposition that the imposition of preventive detention was finely balanced. We consider it was the correct response, and clearly so. Mr Lake is very likely to offend again now and in six years’ time if he does not both receive individual treatment and respond to it. The restrictions inherent in an extended supervision order would not prevent him having contact with other people. The initial victim was a friend of Mr Lake’s. The risks of him again either misperceiving a risk or overreacting to something are real. The consequent safety threat to members of the community is serious.
• [32] For these reasons we consider the sentence was properly imposed. As is often observed in these situations, if, as everyone hopes, treatment alleviates the risk, Mr Lake will be eligible for parole. The mandatory portion of the sentence is the same whether a finite or indefinite sentence is imposed. Preventive detention offers a safety net if treatment does not address Mr Lake’s high risk of reoffending.

Conclusion

• [33] The appeal is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent

^[1] Crimes Act 1961, s 188(1).

^[2] R v Lake [2020] NZHC 3013 [High Court judgment] at [25].

^[3] At [41].

^[4] Sentencing Act 2002, s 86C(4)(a).

^[5] High Court judgment, above n 2, at [25].

^[6] R v Lake [2010] NZHC 1542.

^[7] R v Nuku [2016] NZHC 254.

^[8] R v Lake [2016] NZDC 4514.

^[9] R v Vincent [2007] NZCA 238 at [29].

^[10] High Court judgment, above n 2, at [29].

^[11] At [34].

^[12] At [40].

^[13] At [41].

^[14] Relying on R v Leitch [1998] 1 NZLR 420 (CA) and R v D [2003] 1 NZLR 41 (CA).

^[15] D (SC 31/2019) v Police [2021] NZSC 2.

^[16] Corrections Act 2004, s 5(1)(c).

^[17] Section 5(1)(c).