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High Court of New Zealand Decisions |
Last Updated: 2 April 2012
NOTE: PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF THE COMPLAINANT D PROHIBITED BY S 139 CRIMINAL JUSTICE ACT
1985.
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
CRI-2010-019-6868 [2012] NZHC 479
THE QUEEN
v
R
Hearing: 8 March 2012
Counsel: K Tustin for Prisoner
R B Annandale for Crown
Judgment: 8 March 2012
SENTENCE OF POTTER J
R V R HC HAM CRI-2010-019-6868 [8 March 2012]
Solicitors: Almao Douch, Hamilton – rba@almaodouch.co.nz
Copy to: K Tustin, Hamilton – k.tustin@xtra.co.nz
Introduction
[1] R appears for sentence on charges arising out of three primary sets of offending. In addition there is miscellaneous offending for which he is to be sentenced. The three primary sets of offending are:
a) Offending against his daughter on six discrete occasions between
2000 and 2010.
b) Unlawfully taking a motor vehicle from an address in Taumarunui on
19 November 2010.
c) A spree of offending on 31 March/1 April 2011 at Taumarunui, Te
Kuiti and Otorohanga.
[2] I summarise those charges in the following table. R has entered guilty pleas to all charges.
Charge Section Maximum penalty
Offending against daughter
Assault on a child x 2 194(a) Crimes Act
1961
2 years imprisonment
Unlawful taking a motor vehicle
Injuring with intent to injure x 4
Unlawfully taking a motor vehicle
189(2) Crimes Act
1961
226(1) Crimes Act
1961
5 years imprisonment
7 years imprisonment
“Spree” offending Unlawfully taking a motor vehicle x 2
Driving while disqualified x2
Failing to stop for red/blue lights
226(1) Crimes Act
1961
52(1) Land
Transport Act 1998
52(1)(c) Land
Transport Act 1998
7 years imprisonment
3 months imprisonment and at least 6 months disqualification
$2,000 fine
Aggravated robbery 235(c) Crimes Act
1961
Other offending Breach of home detention 80S Sentencing Act
2002
14 years imprisonment
1 year imprisonment or a
$2,000 fine
[3] Consequent upon R’s guilty pleas to Counts 1, 3, 4, 6, 8 and 10 in the
indictment charging offending against his daughter, the Crown offers no evidence on
the remaining counts in the indictment being Counts 2, 5, 7 and 9. The prisoner is discharged on those counts under s 347 of the Crimes Act.
[4] The Crown has applied to cancel a sentence of six months home detention and today applies to cancel a sentence of 180 hours community work imposed on R at the Taumarunui District Court on 21 February 2011.1 R breached the terms of the home detention sentence when he entered upon the spree offending on 31 March/1
April 2011. He does not oppose cancellation of those sentences. They are duly cancelled. As the result of the cancellation of those sentences it is necessary to resentence R on the following charges:
a) Driving with excess breath alcohol;
b) Possession of cannabis.
First Strike Warning
[5] The aggravated robbery offence under s 235(c) of the Crimes Act 1961 carries a maximum penalty of 14 years imprisonment and is a serious violent offence requiring that I give the prisoner a first strike warning which I now do.
[6] R, given your conviction for aggravated robbery committed on 1 April 2011 you are now subject to the three strikes law. I am now going to give you a warning of the consequences of another conviction for a serious violent offence. You will also be given after this sentencing hearing a written notice outlining these consequences which lists the serious violent offences.
a) If you are convicted of any serious violent offences other than murder committed after this warning and if a Judge imposes a sentence of imprisonment then you will serve that sentence without parole or
early release.
1 Police v R DC Taumarunui CRI-2010-068-272, 21 February 2011.
b) If you are convicted of murder committed after this warning then you must be sentenced to life imprisonment. That will be served without parole unless it would be manifestly unjust. In that event the Judge must sentence you to a minimum term of imprisonment.
[7] That is a warning I am required to give you, R.
[8] Aggravated robbery is also a qualifying violent offence under s 87 of the Sentencing Act 2002. Accordingly the Court has a discretion to impose a sentence of preventive detention, R being over the age of 18 years (he is now aged 35). The Crown seeks a sentence of preventive detention. This is opposed by the prisoner. His counsel submits that a lengthy finite term of imprisonment properly and adequately meets the requirements of the Sentencing Act. I shall consider factors relevant to a sentence of preventive detention later in this judgment.
Factual background
Offending against daughter 2000-2010
[9] I am going to refer to R’s daughter by the initial D. She is entitled to confidentiality.
[10] During this period R’s daughter D was aged 7 to 17 years. Numerous assaults occurred. R slapped D across the face, pushed her into a wardrobe and locked the door; punched her on both cheeks with a closed fist up to six times and punched her stomach and arms numerous times; punched her right eye, pushed her to the bed and kicked her; caused her to fall and hit her head on a couch, punched her body; punched her face and pushed her off chair, then stood over her and kicked her in the head and stomach. During some of these assaults, D would cry and try to block her face. Medical attention was sought for some of the assaults. On other occasions she was kept at home away from school until her injuries were not noticeable and no medical attention was sought.
[11] On 13 October 2010, D and her mother left the home and went to the police station to report the offending to the police. They did not return home. Initially R denied assaulting his daughter. He said he loved her. Subsequently he entered guilty pleas to the charges noted above.
[12] In her victim impact statement D says “I thought it was normal to have days off school because it [the violence] became such an everyday occurrence, it just became normal, and how life was for me”. She refers to the emotional trauma she has suffered from her father’s violence and that often as a child she would feel sad and lonely and thought about killing herself. She says “I feel hurt emotionally by the fact that my father has done these things to me because I believe that kids should not have to put up with their parents beating them like I have been beaten”.
Unlawful taking of a motor vehicle, 19 November 2010
[13] On the morning of 19 November 2010, R went to the Taumarunui address of the victim, Mr H. Mr H is a Baptist pastor who had previously assisted R with a number of matters. R asked if he could use Mr H’ car, stating that he wished to travel to Auckland to visit his girlfriend. Mr H declined this request. The next day, Mr H discovered that his car was missing and informed the police. The police found the car parked at R’s girlfriend’s address. When police returned to the address after making inquiries, they discovered the car missing. It was located a few days later north of Taumarunui.
[14] Mr H in his victim impact statement refers to his difficult position because of the confidence the prisoner had placed in him. He says he is now pleased that R has taken responsibility for his actions. Reparation is sought in the sum of $80 for petrol.
“Spree” offending (unlawful taking of a motor vehicle and aggravated robbery), 31
March 2011 – 1 April 2011
[15] This offending took place while R was subject to the sentence of home detention of which he had served only about one and a half months of the six months sentence.
[16] On 31 March 2011, R stole a van (which had been left unattended with the keys in the ignition) from a Taumarunui address. He was observed driving the van along State Highway 3 by the police. The police activated their lights and R increased his speed to approximately 125 kph. R stopped the van and fled on foot onto nearby farm land, lying in a river some distance away to avoid arrest. He was not located by police.
[17] On 1 April 2011, R observed an electrician performing work near the Big Apple Restaurant on State Highway 3. He approached the van and, discovering that the keys were in the ignition, got into the van and drove off. The van contained some $10,000 worth of electrical equipment.
[18] On 1 April 2011 at around 11.15pm, R drove the same van to the Caves Motor Inn. He entered the premises through an unsecured door. The female victim was alone at the premises performing a stocktake. R, who was carrying a torch, picked up a small knife from the kitchen and entered a walk-in chiller in search of food.
[19] Hearing noises, the victim went to investigate and was confronted by R. R held the knife towards her, demanded money, and told her not to look at him. He inquired as to the existence of security cameras, and asked who was coming to collect the victim from work, to which she replied that her husband would arrive shortly. She gave R some $195.50 in cash, and he also took the victim’s iPod.
[20] R took the victim to a storage area and told her that if she lay on the floor he would not hurt her. He then took to the van a box of vacuum-packed meat, as well as three boxes of beer, 13 loose bottles of beer, and five trays of eggs.
[21] R drove off. Just north of Otorohanga he was noticed by police. Again, he refused to stop and ran away from the van on foot. He was located by a police dog hiding in a tree, approximately two hours later.
[22] The victim of the aggravated robbery, who was the manager at the Caves Motor Inn at the time, speaks in her victim impact statement of the severe impact on her of this incident. She says she became “a blithering mess” and was not able to cope at work. She says that counselling and support from agencies and friends has helped her but she is nervous about working at night and has been forced to reassess her future career options because the effects of the experience remain with her.
Resentencing offending : events on 23 June 2010
[23] R drove with excess breath alcohol (994 micrograms) in Taumarunui. He collided with a power pole, which broke. He ran away and was apprehended by police a short distance away. A cannabis tinnie was found in his wallet.
[24] R was sentenced to home detention on 21 February 2011 at the Taumarunui District Court. When he undertook the spree offending he did so in breach of the terms and conditions of his home detention sentence.
Personal factors – pre-sentence report
History of offending
[25] R’s history spans two decades. He was first convicted in the Youth Court in
1991 of 14 offences (unlawfully taking a motor vehicle, burglary, aggravated robbery, wilful damage, and driving-related offences). As his counsel Ms Tustin has pointed out, that offending is in the distant past when R was very young. He started offending at the age of 14 years. He has amassed a further 28 convictions under District Court jurisdiction, including rape associated with a burglary in 1994, firearms charges, male assaults female, common assault, aggravated robbery, conspiracy to commit aggravated robbery, wilful damage, assault with a knife, threatening to kill/do grievous bodily harm, disorderly behaviour, burglary,
possession of cannabis, unlawfully taking a motor vehicle, and other driving offences.
Personal circumstances
[26] R is a New Zealand Maori man now aged 35 years. He had a dysfunctional childhood: his father passed away when he was 11 and he became a foster child after his mother was unable to cope with his disruptive behaviour. R stated that he grew up in an environment where crime was considered acceptable.
[27] He is married with one daughter, D, whom I have previously referred to. His wife no longer resides with him due to his violent behaviour. Prior to remand, R received a benefit. He has previously been employed as a painter, road worker, and construction worker.
[28] R has completed intervention courses, but does not feel that these programmes have helped him to change. He has no health issues or gang associations. Self-reported results indicate that he does not have a harmful pattern of alcohol use, although he does have a harmful pattern of cannabis use.
Offending
[29] The pre-sentence report was completed on 12 July 2011 following the spree offending. The probation officer reports that R understated the seriousness of his offending when describing events to the probation officer. He stated that he only pleaded guilty to the charges concerning his daughter so that she would not have to face charges of perjury, maintaining that he was not guilty of any violence towards her.
[30] According to the report R displayed no insight into, or remorse for, his current or prior offending, shifting blame to his daughter and to probation services. He justified and minimised his behaviour, suggesting that “all he had done” was to throw his daughter onto a car and hit her with the back of his hand because of the
way she spoke to his wife. R considered himself the victim of injustice and unjustified allegations.
[31] The pre-sentence report notes the warning given to R by the sentencing Judge when the sentence of home detention was imposed. He told R “If you put a foot wrong in relation to the Home Detention sentence you will receive a sentence of 12 months imprisonment. Because of your history there will be no “if’s” and there will be no “but’s” and no spurious explanations as to why you have dropped the ball in relation to your home detention sentence”. I observe that R seriously “dropped the ball” with the spree offending which occurred when he absconded from the sentence of home detention after serving only one and a half months of that sentence.
Needs assessment and motivation to change
[32] While a departmental tool rates R as being at medium risk of reoffending, the probation officer is “extremely cautious” with that assessment, and considers that R’s violent behaviour is escalating, despite previous interventions and community support. His offending is impulsive and driven by a sense of “entitlement”. The probation officer considers R’s risk of reoffending is high, as is his risk to the public.
[33] R expressed enthusiasm to the probation officer to complete rehabilitative interventions, but the probation officer is sceptical. She notes, however, a suitable programme (Medium Intensity Rehabilitative Programme) that may produce results.
Purposes and Principles in ss 7 and 8 of the Sentencing Act 2002
[34] The purposes relevant for sentencing in this case are: to hold R accountable for the harm done to the victims and to the community, to promote a sense of responsibility and acknowledgment of that harm, to provide for the interests of the victims, to denounce his conduct, to deter R and other people, to protect the
community, and to assist in R’s rehabilitation.2
2 Sentencing Act 2002, s 7(1)(a)-(c) and (e)-(h), respectively.
[35] The relevant principles of sentencing require the Court to consider the gravity of the offending, including R’s culpability; and the comparative seriousness of the type of offending.3
[36] The interplay of these factors requires an analysis of the totality of the offending for which R is to be sentenced, and his history of offending. Though it can be said that the individual offences for which he is to be sentenced are perhaps not of the most serious kind viewed overall his offending must be regarded as serious.
Approach to sentencing
[37] I propose to approach sentencing by first analysing this case according to the usual sentencing purposes and principles. I will then consider the discretionary power vested in the Court by s 87 of the Sentencing Act to impose a sentence of preventive detention, the purpose of which as stated in s 87(1) is to protect the community from those who pose a significant and ongoing risk to the safety of its members.
[38] This approach is consistent with the approach in R v DAJ.4 Conceptually, it is based on the different purposes and aims of sentencing and preventive detention: the former seeks to satisfy all the purposes and principles of sentencing, while the latter expressly elevates the purpose of protection of the public.5 In contrast to the purposes of accountability, denunciation and deterrence in sentencing (although protection of the community from the offender is a purpose stated in s 7), consideration of a sentence of preventive detention expressly requires a focus on the protection of the public rather than on punishment of the offender. Thus its focus is not punitive;6 its purpose is to protect the community from those who pose a
significant and ongoing risk.7
3 Sentencing Act 2002, s 8(1) and (b), respectively.
010135, 26 November 2008, Priestley J.
5 Sentencing Act 2002, s 87(1).
6 R v C [2003] 1 NZLR 30 at [5]-[7].
7 Sentencing Act 2002, s 87(1), R v Parahi [2005] 3 NZLR 356 at [85].
Submissions
Crown’s submissions
[39] The Crown submits that a sentence of preventive detention is appropriate as it will provide a safety mechanism to protect the community because the prisoner will be able to be recalled to prison. Also that it will act as an incentive for R to rehabilitate.
[40] The Crown accepts that the primary issue for determination in this case is whether the imposition of a sentence of preventive detention is appropriate or whether a finite sentence of imprisonment is sufficient. The Crown submits that it is appropriate first to determine the length of a finite sentence, if a finite sentence were to be imposed by the Court, and then to consider whether a sentence of preventive detention is appropriate in all the circumstances.
[41] The Crown’s written submissions are full and helpful. I have been further assisted by Mr Annandale’s submissions in Court today. I do not propose at this point to traverse in detail the Crown’s submissions but I shall refer to them again in the course of this sentencing judgment.
[42] The Crown concludes by submitting the following starting points:
[43] The Crown then submits that an uplift of 15-18 months imprisonment should be applied for aggravating features personal to R. This would produce an aggregate starting point in the range of 12 years 6 months to 13 years 10 months imprisonment
before credit is applied for his guilty pleas. Further, that a cumulative term of six months imprisonment is warranted in respect of the resentencing matters but the Crown notes that no credit for guilty pleas can be allowed because the guilty pleas to these charges have already been taken into account when the sentence of home detention was imposed.
[44] The Crown accepts that there should be a credit for the guilty pleas which the Crown sets at 15 per cent in relation to the offending against the prisoner’s daughter and 25 per cent for the early guilty pleas in relation to the spree offending.
[45] On my assessment, on a rough calculation, which the Crown did not complete in its submissions, that would produce an end sentence in the vicinity of ten years to ten years six months imprisonment.
[46] The Crown submits that the imposition of a minimum non-parole period would be required if a finite sentence was imposed and in this case it should be the maximum of two-thirds of the sentence imposed.
[47] If preventive detention is imposed, as the Crown submits it should be, the recommendation is for a minimum period of imprisonment of six to seven years (the minimum period of imprisonment on a preventive detention sentence being five years).
Submissions for the prisoner
[48] Ms Tustin’s submissions are in two parts: those dated 18 July 2011 filed for sentencing in the District Court and submissions dated 5 March 2012 which focus on the issue of preventive detention. To her submissions Ms Tustin attaches two letters from R which express remorse for “hitting and showing violence towards my daughter”. He says he thought, as a father, he was disciplining her. His letter in relation to the aggravated robbery offence also expresses remorse and says he made “stupid choices”. He apologises to the victim of the aggravated robbery and also to the persons whose cars he stole. He expresses regret for everything he has done. I
confirmed with Ms Tustin that she does not submit, nor does R seek, a discount for remorse. I consider that concession is appropriately made.
[49] Ms Tustin accepts that a sentence of imprisonment is inevitable. She submits a starting point in the range of 10 to 12 years is appropriate with an end sentence of between 8 to 10 years. She opposes a sentence of preventive detention, submitting that preventive detention is not a sentence of last resort and if necessary protection for the community can be met by a finite sentence then that is the sentence that should be imposed and that there is real potential for a positive response from R to a tailored rehabilitative intervention. She submits that a finite sentence in the vicinity of 8 to 10 years with a minimum non-parole period of 46 to 58 per cent of that sentence is the appropriate sentence in the circumstances of this case.
Finite sentence – overall approach
[50] The spree offending is the most recent offending. It is also the most serious, the aggravated robbery offence carrying a maximum penalty of 14 years imprisonment.
[51] I consider that any uplift for R’s previous offending and for the breach of home detention should be applied to the lead sentence for aggravated robbery. The previous offending will then logically include the offending against the prisoner’s daughter and the offending in November 2010 (unlawfully taking a motor vehicle), although care must be taken to avoid any double counting in respect of this offending. Further, the spree offending is the offending directly in breach of the sentence of home detention.
[52] The guilty plea discounts must be applied in relation to the sentence for the charges to which they relate. The Crown’s approach which seems to be to apply an overall discount for guilty pleas, is not appropriate. However, the Crown and the defence are on common ground as to the guilty pleas that are appropriate – 15 per cent in relation to the offending against the prisoner’s daughter and 25 per cent in relation to the spree offending. I agree that those discounts appropriate and those are the discounts for guilty pleas I will apply.
[53] The unlawful taking of Mr H’ motor vehicle warrants a cumulative sentence. It was committed at a different time and does not form part of the subsequent spree offending, although it gives rise to a like charge.
[54] Likewise the resentencing offending must be treated cumulatively upon the other three sets of offending.
[55] I propose to treat concurrently the various charges in respect of the offending against the prisoner’s daughter and the spree offending respectively but the sentences for each set of offending will be cumulative upon the sentences for the other sets of offending.
[56] Thus, the end sentence for the spree offending will be added to the unlawful taking of Mr H’ motor vehicle, the offending against the prisoner’s daughter and the resentencing offending. It will then be necessary to stand back and assess whether the end sentence so reached properly and fairly reflects the totality of the offending.
[57] Having explained my general approach to sentencing I now turn to each set of offending to consider the appropriate finite sentence that should be imposed.
Offending against the prisoner’s daughter
[58] I take as the lead charges the four charges of injuring with intent to injure which carry a maximum penalty of five years imprisonment. Those charges relate to the period August 2007 through to October 2010.
[59] The tariff case for injuring with intent to injure is R v Harris.8 In that case, the Court of Appeal identified three starting points: (i) a sentence short of imprisonment where there is little injury and few aggravating features; (ii) up to two years imprisonment where the injuries are moderate; and (iii) between 18 months and five years imprisonment where the injuries are serious. These bands assume that the level of injury suffered reflects the criminality inherent in the offence. However,
the starting point will also depend on all the aggravating and mitigating factors of the offence.9
[60] The facts of Nepia v Police10 have similarities to the facts in this case. Mr Nepia was sentenced for one count of injuring with intent to injure and two counts of assault (one representative) against a two and a half year old child. This offending took place over a period of approximately five months. The representative assaults included regularly hitting the child on the buttocks, hands and face about ten times. The other charge of assault was for one instance where Mr Nepia pinched the child’s buttocks and punched her once on the face, before slapping her in the face, back, stomach, arms, and legs and punching her in the head, leaving the room, and hitting her once again when he returned. The injuring charge involved Mr Nepia slapping the child’s buttocks, back, and face, pulling back her head and telling her to “hold it”, while the child urinated on the bed, after which Mr Nepia struck her face with the back of his hand, with sufficient force to lift her from the bed and across the room. He then rubbed her face in her urine and continued to slap her.
[61] On appeal to the High Court, Keane J identified the following aggravating features: young age of the victim, the breach of trust, the length of time over which the offending occurred, the physical and emotional injuries sustained, and the breach of release conditions.
[62] The sentencing Judge adopted a starting point for the injuring with intent to injure of three years and imposed one year cumulatively for the two assault charges, plus six months to reflect Mr Nepia’s previous convictions and that he was in breach of his conditions of release.
[63] Keane J considered the sentencing Judge had rightly identified the “factors that aggravate beyond the injuries suffered”, and emphasised the cruelty, in addition
to the brutality of the final assault.
9 R v Harris at [10]-[11], cited in Nepia v Police HC Gisborne CRI-2009-416-17, 15 September
2009 at [19].
10 Nepia v Police.
[64] It was argued that the inclusion of the aggravating feature of the lengthy time period caused the assaults to be double counted. However, the Court considered that the other aggravating features fully justified the uplift that was given.11 The starting point and the uplifts were upheld.
[65] Aggravating features of this offending: the offending involved serious violence, including punching on the face and in the body, blows and kicks to the head, the victim being hit while on the ground; serious physical injury, which on some occasions required medical attention, as well as significant emotional damage; cruelty, including continuing the assaults when D was crying and trying to block her face, and R preventing his partner from intervening on at least one occasion; the serious breach of trust, arose from his being her father; the associated vulnerability of the victim; and the offending occurred over an extremely long period of time. There are no mitigating features of the offending.
[66] While the injuries suffered by R’s daughter place this offending in band two of R v Harris, the additional aggravating features take this offending outside the range of band two. While D was older than the victim in R v Nepia, she was very vulnerable, the offending was at a high level and occurred over a long period of time, and the consequent breach of trust of a father offending in this violent way against his daughter was very serious. Section 9A of the Sentencing Act makes specific mention of violence against a child under 14 years as a separate aggravating factor. I therefore consider a higher starting point than that adopted in R v Nepia to be appropriate. I take a starting point for this offending of three and a half years.
[67] Uplift for the assaults: the aggravating features that apply to the injuring charges also apply to the assault charges. The scale of this offending is again more serious than that in R v Nepia. I apply an uplift of one and a half years imprisonment to reach an overall starting point for this set of offending of five years imprisonment.
[68] Mitigating features of the offender:12 The only personal mitigating feature is R’s guilty pleas. As I have said, I accept counsels’ submission that an appropriate discount is 15 per cent. The end sentencing for this set of offending is therefore four years three months imprisonment.
Unlawful taking of Mr H’ motor vehicle
[69] The offending involved the aggravating feature of a breach of goodwill. I agree with the Crown’s submission that this offending may attract a sentence of approximately three months imprisonment. A starting point of four months imprisonment, less a 25 per cent discount for the early guilty plea, results in an end sentence of three months imprisonment.
Spree offending
[70] I take the charge of aggravated robbery which carries a maximum penalty of
14 years imprisonment as the lead offence.
[71] The tariff case of R v Mako13 lists the following relevant considerations: the degree of planning and preparation, the number of participants, the sophistication of the enterprise, the number and types of weapons, the targeted premises, violence and intimidation, the property taken, victim impact, and associated offending such as vehicle conversion.
[72] Aggravating features of the offence:
a) Neutral features: this offending did not involve a high degree of sophistication or planning, as demonstrated by the fact that R found a knife in the kitchen where he entered; the offending took place in a Motor Inn near midnight, and only involved R and the single victim.
It may best be described as opportunistic offending.
12 Sentencing Act 2002, s 9(2).
13 R v Mako [2000] 2 NZLR 170.
b) Features of medium seriousness: the knife that R used was small, but could have been dangerous. The alcohol, food, and the victim’s personal property that were taken suggest a medium level of seriousness. In addition R acted to avoid detection.
c) Serious features: though there was no actual violence, the offending clearly involved intimidation, as R told the victim to lie down while holding the knife. This was a highly traumatic experience for the victim.
[73] This offending I consider is slightly more serious than the robbery of a small retail shop, described in R v Mako. The Court of Appeal said a starting point for that type of offending should be around four years but if the shopkeeper was confined or assaulted or confronted by multiple offenders a starting point of five years would be appropriate.
[74] This offending took place at night and the victim was confined, albeit briefly. I consider an appropriate starting point for the aggravated robbery offence to be four years and six months imprisonment.
[75] An uplift is required for the associated charges. I accept the Crown’s
submission that an uplift of nine months imprisonment is appropriate.
[76] Aggravating features of the offender: As I outlined in the general approach I would take to sentencing, I consider the uplift for aggravating features of the offender personally, should be applied in relation to this offending. The Crown proposed an uplift of 15-18 months imprisonment. Counsel for R seemed to apply uplifts separately to the violence offending against D and the spree offending taking into account R’s past offending of the same nature. For example, Ms Tustin submitted that for the violence offending an uplift of six months for R’s history of domestic violence should be applied to a starting point of three years and for the spree offending an uplift of two years for his history of offending and the related offending should be applied to a starting point of around four years.
[77] R’s history of offending spanning two decades and relieved mainly only by the periods he has been in custody, is serious. However, having applied an uplift for associated offending in respect of each set of offending, and having adopted starting points that reflect aggravating features such as in the case of the violence offending against R’s daughter, that it extended over a lengthy period (2000-2010), I consider an uplift on account of R’s history of previous offending (for which he has already served the sentences imposed) to be appropriately nine months. The adjusted starting point is therefore six years imprisonment.
[78] As I have previously said the accepted appropriate discount for guilty pleas is
25 per cent. This results in an end sentence for the spree offending of four years and six months imprisonment.
Resentencing offending
[79] I agree with the Crown’s analysis that in respect of this offending following cancellation of the sentence of home detention and allowing for the one and a half months of the sentence that has been served, the appropriate sentence is six months imprisonment.
Summary of end sentences
[80] The end sentences I have reached may be summarised as follows:
a) Violence offending against the prisoner’s daughter, four years and
three months imprisonment;
b) Unlawful taking of Mr H’ vehicle, three months imprisonment;
c) Spree offending, four years and six months imprisonment;
d) Resentencing offending, six months imprisonment.
[81] The aggregate of these sentences is nine years and six months imprisonment.
[82] I stand back to assess whether that sentence would fairly and properly reflect the totality of the offending to which the sentences relate. I consider a total sentence of nine years and six months imprisonment to be appropriate and no reduction is required in respect of the totality of the offending.
Minimum period of imprisonment : s 68 Sentencing Act 2002
[83] If an offender receives a determinate sentence of imprisonment of more than two years, a court may order that the offender serve a minimum period of imprisonment (s 86(1)), which is a minimum period that is longer than one-third of the length of the sentence.14
[84] The court may impose a minimum period of imprisonment if it is satisfied that the one-third default minimum is insufficient to either hold the offender accountable for the harm done, denounce the conduct, deter the offender or others, or protect the community (s 86(2)).
[85] A minimum period of imprisonment may not exceed two-thirds of the full term of the sentence (s 86(4)(a)).
[86] Counsel for the Crown and the prisoner accept that a minimum period of imprisonment is appropriate in this case. I agree. If an end finite sentence of nine years six months imprisonment were imposed, R would be eligible for parole in just over three years. In my view this is insufficient to hold R accountable for the harm done or to deter him or others from the type of offending in which he has been involved, in particular the ongoing offending against D and the aggravated robbery. It is also insufficient to denounce his conduct and insufficient to protect the public. This is particularly so since R, according to the pre-sentence report, continues to lack insight into his offending and actions. At the same time he has acknowledged responsibility for his offending by his guilty pleas and in the letters he has written.
However, his recent expressions of remorse and regret must be viewed against his
14 Parole Act 2002, s 84(1) (the default period).
lengthy history of persistent offending and his limited indications of remorse, understanding and insight as conveyed to the probation officer.
[87] In determining the minimum period of imprisonment I have regard to the purposes and principles of sentencing as they apply to this case to which I have previously referred, to the aggravating factors as they apply in respect of each of the sets of offending separately, to the range of R’s offending and also to the guilty pleas he has entered.15
[88] I consider an overall minimum period of imprisonment of five and a half years which is approximately 58 per cent of the end finite sentence of nine years six months imprisonment is appropriate. Under s 86(1) the minimum period of imprisonment must be imposed for a particular offence in relation to the particular sentence for that offence. On the offence of aggravated robbery, I impose a minimum period of imprisonment of three years. On each of the four offences of injuring with intent to injure for which the sentence is four years three months imprisonment, I impose a minimum period of imprisonment of two and a half years. Those sentences and the minimum periods of imprisonment are cumulative.
Preventive detention
[89] Section 87(2) imposes three pre-conditions to the imposition of preventive detention. However, the existence of these conditions does not mandate a sentence of preventive detention; its imposition remains a matter of discretion.16 Its imposition remains a matter for the discretion of the Court. In relation to the pre- conditions:
15 R v Gordon [2009] NZCA 145 at [48].
16 R v C.
c) The Court be satisfied that R is likely to commit another qualifying sexual or violent offence, if released at the expiry date of the finite sentence which I have set at nine years and six months imprisonment.
[90] The first two pre-conditions are clearly established.17 The issue is whether the Court is satisfied that R is likely to commit another qualifying offence if released at the expiry date of a finite sentence, that is after nine years six months on the basis of the finite sentence I have determined.
[91] In determining the third condition, the Court must have regard to the factors in s 87(4).
a) Any pattern of serious offending disclosed by R’s history;
b) The seriousness of the harm to the community caused by the offending;
c) Information indicating a tendency to commit serious offences in the future;
d) The absence or failure of efforts by R to address the causes of the offending; and
e) The principle that a lengthy determinate sentence is preferable if this provides adequate protection for society.
[92] This overall analysis under s 87(4) is to be determined using reports from at least two appropriate health assessors about the likelihood of R committing a further
qualifying sexual or violent offence.18 The reports are summarised below.
17 Aggravated robbery under s 235 of the Crimes Act 1961 is a qualifying offence under
Sentencing Act 2002, s 87(5)(b).
18 Sentencing Act 2002, s 88(1)(b).
Principles relating to the imposition of preventive detention
[93] The assessment of the risk that R poses is the central focus of the preventive detention enquiry.19 As such, this sentence has a protective, rather than a punitive, purpose.20
[94] The offender’s entire criminal history is to be taken into account in assessing his pattern of offending,21 though the focus must be on the risk posed by R in the future.22
[95] The current offending need not be serious, if there is a sufficient nexus with the assessed risk.23
[96] In terms of the level of potential risk, it has been said that “there has to be a significant, ongoing risk of serious harm before somebody is incarcerated indefinitely, particularly for lower level offences.”24
[97] The phrase in s 87(1) “the Court is satisfied” does not imply proof to any other particular standard; the Court is merely required to make up its mind on reasonable grounds.25
Section 88(1)(b) reports
[98] Reports have been obtained from Jessica Borg, Registered Clinical
Psychologist and Dr J B Ruzibiza, Consultant Psychiatrist at Health Waikato.
[99] Both reports note that R continues to minimise the offending and its impact on the victims. He shifts blame to the victims, for example, he states that his
19 Sentencing Act 2002, s 87(2)(c); R v C at 5-6; R v Dean CA172/03, 17 December 2004.
20 R v C at 5-6.
21 R v McGee (1995) 13 CRNZ 108 at 11.
22 R v Dean CA172/03, 17 December 2004 at [74]; R v Burkett CA416/00, 21 February 2001. In
R v Parahi the Court of Appeal noted that the test may be met in an appropriate case, even where the relevant offences are comparatively less serious.
23 R v Parahi.
24 R v Parahi.
25 R v White [1988] 1 NZLR 264 and R v Leitch [1998] 1 NZLR 420; confirmed in R v Dittmer
[2003] 1 NZLR 41.
violence towards his daughter was an attempt to discipline her. It appears that when his authority is challenged, he reacts impulsively and violently. Both reports note that his lack of control over his temper, and alcohol and drug abuse, are factors that facilitate, if not generate, much of his violence.
[100] Both reports conclude that R poses a high risk of violently reoffending, which is likely to occur in either a domestic context, or in the context of a burglary. The reports assess R’s risk of further violent sexual offending as medium to high, though Dr Ruzibiza considers that this overstates the actual risk, given that he only has only one previous conviction for rape. However, Ms Borg states that as this rape occurred impulsively in the context of an aggravated burglary, his ongoing risk of committing burglary offences coupled with his continued impulsivity and rapid aggressiveness, means that the risk for committing another sexual offence in this context cannot be ruled out.
[101] In terms of the preventive detention assessment, these reports indicate that R is assessed of posing a real risk, bolstered by the fact that he has not displayed any relevant insight or remorse.
[102] I have read and considered these two detailed reports carefully. From each I take the summary of risk assessment which the respective expert presents. Jessica Borg summarises in her report dated 15 November 2011:
a) Reoffending generally: R has a moderate risk of being reconvicted and reimprisoned following release. This score will probably increase following his release. Further general offending would likely involve drugs-related, dishonesty, and traffic offences. He is considered to be at risk of engaging in aggravated robbery targeting commercial buildings. Any further violent offending is most likely to occur within a domestic context and would be reactive and impulsive and/or be used as a strategy to control a female family member who was perceived as challenging his authority. He is at an increased risk of violent offending if intoxicated.
b) Violent sexual offending: R is assessed as being in the medium-high risk of reoffending within 10 years of release.
c) Violent offending: He also scored “above the cut-off for heightened risk of violent offending”. His score indicated the presence of grandiose, superficial, and deceitful traits in his interactions with others; lacking genuine remorse and empathy for his offending and not taking responsibility for his actions. In another test, 16 of the 20 dynamic items were identified as moderately or strongly related to his current violent risk. In summary, considering both static and dynamic factors, R is estimated at high risk of further general and violent offending within five years of release from prison.
Dr Ruzibiza, Consultant Psychiatrist, Puawai Midland Regional Forensic Psychiatry
Service, report dated 29 November 2011
[103] Summary of risk assessment
a) Violent sexual offending: R’s score in one test places him in the top 12 per cent risk category relative to North American and British male adult offenders. However, Dr Ruzibza considers this score over- represents R’s risk (he has only one 1994 conviction for violent sexual offending). This assessment is supported by correspondingly low scores on other tests.
b) Violent offending: again, R’s score places him in the top 12 per cent risk category. His violence has been directed infrequently at strangers, and more frequently at family members. Violence against strangers is likely to occur in the course of dishonesty offending, and against family members as inappropriate discipline. Violence is likely to be fuelled by drugs and alcohol. R’s risk is assessed as high. Mitigating the high risk are the following factors: absence of strong psychopathic traits; absence of major mental disorder; presence of
insight; willingness to accept remedial help; and a history of relationship stability.
[104] The submissions of counsel in relation to a sentence of preventive detention are as follows:
Crown’s submissions
[105] The Crown submits the imposition of a finite sentence would be insufficient to adequately protect the community.
[106] R has an extensive history of serious offending, particularly when the duration of time over which he offended against D is considered. His pattern of offending is persistent over time and appears to be escalating.
[107] Harm to the community is demonstrated through the victim impact statements. It is also clear that R is prepared to commit crimes against strangers to evade detention or obtain a benefit.
[108] Information indicating a tendency to commit serious offences in the future: he has been assessed as presenting a high risk of further violent and general offending within five years of release from prison; and a medium-high risk of sexually reoffending within 10 years of his release (though this may have been over- represented). The diversification of his criminal history is a serious feature because of his future unpredictability. This makes it difficult to manage and monitor his risk. He has continued to display a propensity for violence even when in a custodial environment. He also continues to display a lack of insight into his offending. Further, he has reoffended after being subject to rehabilitative intervention.
Defence submissions
[109] The second set of defence submissions do not discuss in detail the relevant purposes and factors, beyond what the Crown has identified.
[110] Relevantly, the submissions note that R now exhibits a clear intention to seek assistance and to complete rehabilitative programmes; and that the programmes that he has attended in the past were insufficiently intensive.
Analysis
[111] Against that background I turn to consider the factors the Court must take into account in considering whether to impose a sentence of preventive detention. These factors are set out in s 87(4) of the Sentencing Act.
Pattern of serious offending
[112] R’s pattern of offending is characterised by domestic violence, which appears to be triggered by threats to his authority, and by a variety of property-related crimes, which may or may not include violence.
[113] The Crown notes that while preventive detention is usually imposed for sexual offending, it is “not infrequently imposed for serious qualifying violent offending”. The Crown refers to a number of cases in support of this proposition. My analysis of these authorities is that they involve a much higher level of violence than in this case. For example, kidnapping and injuring with intent to cause grievous bodily harm including threatening to kill, choking and smashing the victim on the head with a bottle;26 attempted murder, assault, aggravated burglary, arson and threatening to kill, including restraining the victim, assaulting her with a spade and hedge clippers and setting on fire the place where she was restrained;27 aggravated robbery, aggravated wounding and three charges of aggravated burglary including a near-fatal stabbing.28
[114] Without in any way minimising the harm caused by R’s long history of
offending, I do not consider his offending reaches the level of seriousness of the offending identified in the cases referred to by the Crown. It is relevant that he falls
26 R v JWTW HC Hamilton CRI-2010-019-3093, 28 July 2011.
27 R v Wellm [2009] NZCA 175.
28 R v Toetoe HC Napier CRI-2010-041-1646, 4 August 2011.
to be considered for preventive detention only because of the aggravated robbery conviction. The circumstances of that offending involved an opportunistic and unplanned situation and did not involve any actual violence. His single conviction for rape was in 1994 and it occurred in the context of an aggravated burglary. In his recent aggravated robbery offending there is no suggestion that sexual offending, let alone rape, is involved or threatened. Even when R’s entire history of offending is considered, lengthy and serious as it is, it does not include the sinister elements of the offending in the cases referred to by the Crown or the degree and extent of serious and near-fatal injury for the victims. On balance I do not consider this limb is satisfied.
Seriousness of the harm caused by the offending
[115] The harm R has caused his daughter is extremely serious. Harm caused in such a way to a child is clearly detrimental not only to the child but to the wider community.
[116] His actions in entering commercial property at night and brandishing a knife at the female occupant clearly have caused her ongoing psychological harm. Such offending causes harm to the community at large because it undermines the community’s confidence in their safety.
[117] However, following on from my observations under the first limb, the seriousness of the harm to the community is not at the level involved in comparable cases. They involved more offences of considerably more serious violence.
[118] I consider the harm to the community caused by R’s offending is not at the level of seriousness to warrant a sentence of preventive detention.
Information indicating a tendency to commit serious offences in the future
[119] The Court must assess the likelihood, type, and seriousness of reoffending, at an unknown future time, and the consideration of various risk indicators.29 While the s 88 reports must be directed to their statutory purpose, the final assessment is a judicial task.30
[120] R has been assessed as presenting a high risk of violently reoffending upon release, and a medium to high risk of sexually reoffending upon release (though Dr Ruzibiza considered that the latter may overestimate his propensity).
a) Violent offending: both Ms Borg and Dr Ruzibiza concluded that R is likely to commit another violent offence. This is significantly based on his lengthy history of offending, as well as his continued lack of insight into his offending. R has previously received rehabilitative treatment, which has clearly not been successful.31 These are all clear quantitative and qualitative signals of reoffending.
b) Sexual offending: Dr Ruzibiza considered that R’s risk of sexually reoffending is overestimated by the departmental analysis. Ms Borg noted that his impulsiveness combined with his high propensity to violently reoffend meant that this possibility could not be ruled out. However, I consider it must be taken into account that R has committed only one sexual offence in the past – the rape offending in
1994 – and he has not shown a propensity to reoffend in this manner despite opportunity presenting itself, as for example in the situation of the recent aggravated robbery for which he is to be sentenced. Given the single sexual offence in 1994 and that the offending now before the Court does not include any sexual offending, I consider there is not a sufficiently strong basis for me to conclude that a tendency to
commit serious sexual offending in future is indicated.
29 R v Pairama CA216/97, 8 September 1997.
30 R v Johnson [2004] 3 NZLR 29 (CA) at [19]; R v Exley [2007] NZCA 393 at [46].
31 Sentencing Act 2002, s 87(4)(d).
[121] R’s history of offending and the conclusions and opinions of the experts provided in their reports raise a real concern as to R’s tendency to commit serious offences in the remote future following his release from prison. However, despite serving a number of sentences of sentences of imprisonment (five I count in total), R has not yet been sentenced to a lengthy period of imprisonment such as the current offending must attract. His longest sentences were five years in 1994 (for the rape and burglary), and five years six months in 2002 (for aggravated robbery and burglary committed in 2001). He has not yet undergone intensive treatment. He says he is willing to do so. In those circumstances while this factor is concerning, I do not consider the indicators are of a clear tendency to commit serious sexual and violent offending in the future.
The principle that a lengthy determinate sentence is preferable if this provides adequate protection for society32
[122] Given that the preceding factors are not conclusively or even clearly established this provision must in my view be determinative.
[123] For the reasons given I cannot be satisfied that R is likely to commit another qualifying sexual or violent offence if he is released at the sentence expiry date of the finite sentence I would otherwise impose for his current offending, namely nine years and six months imprisonment. I note the factors referred to by Dr Ruzibiza which she says mitigate the identified high risk of violent recidivism. I have referred to them but I will repeat them: the absence of strong traits of psycopathy, the absence of a major mental disorder, the presence of insight (though I accept this is debatable), the willingness to accept remedial help (only time will tell), a history of relationship stability.
[124] I therefore conclude that a sentence of preventive detention should not be imposed. This is a finely balanced case. I regard R as on the cusp of warranting a sentence of preventive detention. However, all the factors I have considered above
leave me just short of reaching the point of satisfaction that such a sentence is
32 Sentencing Act 2002, s 87(4)(e).
necessary as a future protection for society. By a fine margin I have concluded that the lengthy determinant sentence I will impose is the appropriate sentence.
Warning
[125] I now give you a warning. I have decided not to impose on you a sentence of preventive detention. As I have said the matter is finely balanced. Were you to offend again in a serious way with a serious, violent or sexual offence you must expect and anticipate that a sentence of preventive detention will be imposed upon you.
Sentencing
[126] Please stand.
[127] The end sentence imposed on you is nine years six months imprisonment. [128] I order that you serve a minimum period of imprisonment totalling five and a
half years.
[129] The sentence is comprised as follows:
Offending against your daughter
[130] On each of the four charges of injuring with intent to injure, the sentence is four years three months imprisonment.
[131] On each of the two charges of assault on a child, the sentence is one year imprisonment.
[132] Those sentences are to be served concurrently.
[133] The sentence on this charge is three months imprisonment to be served cumulatively on the other sentences imposed.
“Spree” offending
[134] On the charge of aggravated robbery, the sentence is four years six months imprisonment.
[135] On each of the two charges of unlawfully taking a motor vehicle, the sentence is three months imprisonment.
[136] On each of the two charges of driving while disqualified, the sentence is one month imprisonment. I order that you be disqualified from driving for six months on each charge.
[137] On the offence of failing to stop for red/blue lights you are convicted and discharged.
[138] These sentences are to be served concurrently but the sentence of four years six months imprisonment on the aggravated robbery charge is cumulative on the sentences of four years three months and three months respectively, relating to the two sets of offending as set out above.
Resentencing offending
[139] On each of the offences for which you must be resentenced following the cancellation of the sentence of home detention, namely driving with excess breath alcohol and possession of cannabis, the sentences are six months imprisonment for driving with excess breath alcohol, and three months imprisonment for possession of cannabis.
[140] Those sentences are to be served concurrently but are cumulative on the sentences for the three sets of offending as set out above.
[141] On the charge of breach of home detention you are convicted and discharged.
Summary of sentences
[142] As I have previously stated the end sentence resulting from the aggregation of the cumulative sentences is nine years and six months imprisonment.
[143] I order that a minimum period of imprisonment totalling five and a half years be served as follows:
On the sentence for aggravated robbery (sentence four years
and six months imprisonment), I order that R serve a minimum period
of
imprisonment of
three years.
On each of the four sentences for injuring with intent to
injure (concurrent sentences of four years three months imprisonment)
I order
that R serve a
minimum period of imprisonment of two and a half years.
Those sentences and the minimum periods of imprisonment are cumulative.
[144] Finally, I refer to the application for reparation of $80. Regretful though it is that Mr H cannot be compensated in this minor way, it would be futile to make such an order and I reject the application.
[145] You may stand down.
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