R v Warren [2017] NZHC 1465 (29 June 2017)

Last Updated: 30 October 2017

NOTE: PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS, OF COMPLAINANT(S) PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011.

IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY

CRI-2015-006-482 [2017] NZHC 1465

THE QUEEN

v

_{JASON DAVID WARREN}

Hearing:	28 June 2017
Counsel:	J M Webber for the Crown A J D Bamford for Defendant
Date:	29 June 2017

_{SENTENCING NOTES OF CULL J}

[1] While I read my sentencing notes to you Mr Warren you may sit down and I

will ask you to stand again at the end when I formally sentence you.

[2] Mr Warren, you appear for sentence today in relation to seven charges:

(a) Five charges of male assaults female, one of which is representative.

The maximum penalty is two years’ imprisonment for those charges.¹

(b) One charge of kidnapping. The maximum penalty is 14 years’

_{imprisonment.}²

¹ _{Crimes Act 1961, s 194(b).}

² _{Section 209.}

R v WARREN [2017] NZHC 1465 [29 June 2017]

(c) One charge of sexual violation by unlawful sexual connection

(namely penile penetration of the mouth). The maximum penalty is

20 years’ imprisonment.³

[3] You pleaded guilty to these charges on 8 August 2016, which was the first day of the trial.

[4] The main issue for me to decide, particularly at the outset, is whether I should impose a sentence of preventive detention.

[5] As you will have heard from my indication to the Crown prosecutor this morning, after careful consideration, I have decided not to impose preventive detention. In my judgement, I do not feel it is absolutely necessary to protect the public from you in light of the other sentencing options that are available and in light of the reports that the Court has received in respect of your offending. Instead, I will impose a finite sentence of imprisonment, and I am flagging with you now that I intend to couple that with a minimum non-parole period.

[6] In sentencing you, I shall explain: (a) your offending;

(b) your previous convictions;

(c) why I am not imposing a sentence of preventive detention; (d) the starting point I have adopted;

(e) the adjustments I have made to the starting point to reflect the totality of your offending, your prior convictions and your guilty plea;

(f) the minimum period of imprisonment that you must serve; and

(g) your final sentence.

Your offending

[7] Your offending took place in the context of an intimate relationship with H.⁴

You were in a relationship for at least a year and the offending occurred during this time, between February and August 2014.

[8] Three of the male assaults female charges relate to three separate occasions:

13 February, 13 July and 16 July 2014. On all three occasions, you picked up a pillow, placed it over H’s head and punched her through it repeatedly. On 16 July you also spat in her face and were verbally abusive and threatening towards her.

[9] A further male assaults female charge and the kidnapping charge arise from a series of incidents on 9 August 2014. You arrived at her house, ignored her and went straight to bed. H joined you in bed but when you continued to ignore her she got up again to watch television. You then entered the lounge, punched H repeatedly to the head and dragged her to the ground, continuing to punch her about the head and kick her. One punch struck her ear, causing it to “pop”. You were also verbally abusive to H, threatening her and telling her that you hated her.

[10] You then dragged her to the bedroom, locked the door and threatened to tie her up. While making this threat, you held H down on the bed and strangled her. You kept her inside the bedroom for several hours and would not allow her to leave, during which time you continued to abuse and sporadically hit her. H was frightened to such an extent that she tried twice to break and jump through the main window in her bedroom to escape. She was not successful in breaking the window. This desperate behaviour caused you to reflect on what was happening and you eventually calmed down.

[11] Following this incident, between 10 and 16 August 2014, you punched and hit H repeatedly, mainly at night. This behaviour constitutes the final charge for male assaults female, which is a representative charge. At that time you were not sleeping well because you were ill. You became angry and hit H, particularly, by punching her, kicking her in the leg, and striking her around the eyes with your palms. You blamed H for your illness and made her perform tasks for you such as

fetching medication, flannels and drinks. She was subjected to yelling, abuse and violence during this time. H was too scared to leave her house because of your behaviour.

[12] The charge of sexual violation by unlawful sexual connection arises from an incident on 19 August 2014. You were in a bad mood and abusive towards H, so she made an excuse to leave the house and was away for some time. When she came home you repeatedly asked her for oral sex, which she repeatedly declined. Initially you pleaded with her. You then changed your manner and became threatening. H said she knew she had to do what you wanted or she would be physically abused. She performed oral sex on you against her will.

[13] H’s victim impact statements, and there are two of them, describes the significant harm she suffered as a result of your offending. She was physically hurt at the time of your offending but was also emotionally devastated because of it. Since your offending, the victim impact report sets out the lack of confidence she has suffered, had difficulties sleeping and her struggles to cope with everyday tasks. Fortunately, she has been able to work through this harm through ongoing counselling and the support from family and friends since 2014.

Your previous relevant convictions

[14] Mr Warren, you are 36 years old. You have 32 prior convictions. Included in these previous convictions are a number of convictions related to domestic violence. You were convicted of two sexual violation charges and two assault charges in 2000, where you were sentenced to seven years’ imprisonment. You have a history of violent offending and have nine charges for contravening protection orders, and that is of a concern to the Court. Your other offending includes less serious charges such as theft, wilful damage and having an excessive breath alcohol limit.

Reasons why I am not imposing preventive detention

[15] You have come very close to being sentenced to preventive detention because of:⁵

(a) the emerging pattern of your serious offending;

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

(c) the possibility of your committing serious offences in the future.

[16] I have had the benefit of a number of reports in advance of your sentencing.⁶

I am particularly concerned by the assessment of your probation officer and all of the health professionals who believe there is a medium to high risk of your committing serious sexual and violent offences in the future, particularly against intimate partners.

[17] I have, however, concluded preventive detention should not be imposed because of your recent efforts to address the causes of your offending and the principle that a lengthy determinate sentence is preferable if it provides adequate protection to society.⁷

[18] You have, and this is very important, acknowledged that you need to address the causes of your offending, particularly your substance abuse and more particularly your violent behaviour, which has been driven by your need to exercise power and control. You have also demonstrated to Mr Metoui and Dr Barry-Walsh, who have recently assessed you, that you are willing to engage in treatment for your anger and violent behaviour. Both Mr Metoui and Dr Barry-Walsh are cautiously optimistic that if you meet treatment recommendations, you do hold a realistic chance of effectively addressing your issues and reducing your risk of reoffending.

[19] While you have not been as willing to engage in treatment in the past, it appears that with maturity and greater insight into your offending you are now more

_{open than ever to access treatment.}⁸ _{As Mr Bamford has pointed out, while you have}

⁶ These reports included a pre-sentence report, a health assessment from Wairau Hospital Addictions Service as well as three reports for the purposes of s 88 of the Sentencing Act 2002, from Ms Paula Bateup (registered clinical psychologist), Mr Ghazi Metoui (forensic clinical psychologist) and Dr Justin Barry-Walsh (forensic psychiatrist).

⁷ _{Sentencing Act 2002, s 87(4)(d) and (e).}

⁸ R v McDonald [2009] NZCA 248, sentence of preventive detention overturned on appeal because of the offender’s willingness to participate in treatment, developing insight into his offending and gaps in his offending history.

been in remand for sentencing you have engaged in appropriate treatment programmes. It also appears that intensive rehabilitation will be offered to you during your sentence.

[20] Overall I am satisfied that a lengthy determinate sentence is appropriate and will adequately protect society, particularly if you respond positively to treatment while in prison. In saying that, your offending and the reports demonstrate the high risk you pose, primarily to any women with whom you might embark on a relationship. Intensive rehabilitation is required and I encourage you, while you serve your sentence, to access that ongoing treatment to support you in your rehabilitation. This is a chance you do have to address the reasons for your offending.

Starting point

[21] I turn then to the starting point of your sentence. I am treating the charge of sexual violation by unlawful sexual connection as the lead offence for the purposes of sentencing you today. This is the most serious charge because you forced your partner to perform oral sex on you against her will. H had repeatedly declined when you asked her for oral sex. However, she felt forced to do what you wanted because you became threatening and she was afraid she would be physically abused.

[22] In sentencing you on these charges, I am guided by the leading decision of the Court of Appeal.⁹ That decision makes it clear that your culpability or guilt is not reduced by a sense of entitlement in the context of a relationship and the same sentencing regime applies for sexual violation of a partner.¹⁰

[23] I assess your offending, and this is taken in light of a number of the other decisions that you will heard Counsel refer to, as being at the lower end of band one of that decision. Your offending included threats of violence, harm to the victim and a serious degree of violation. However, all of these factors were only present to a

_{lesser extent than others that have been sentenced within that band.}

⁹ _{R v AM [2010] NZCA 114, [2010] 2 NZLR 750.}

¹⁰ At [61].

[24] In my assessment, your offending in relation to this charge warrants a starting point, and I am prepared to make the starting point of six years’ imprisonment. I have reached this conclusion after considering similar cases and after evaluating the gravity of your offending in comparison with others.¹¹ Some of the cases deal with more serious offending than yours and were more violent than your behaviour towards H on this occasion.

Adjustments to reflect the totality of your offending

[25] Section 85 of the Sentencing Act requires me to have regard to the totality of your offending. This means that I must examine all of your offending as a whole and determine what an appropriate sentence is in light of that.

[26] In your case Mr Warren, there were also five charges of male assaults female and the one charge of kidnapping to which I have referred. Some of these charges represent relatively serious offending. The charge of kidnapping would in itself attract a starting point of two years’ imprisonment. I have reached this conclusion

again, based on similar cases.¹² Your kidnapping of H was violent, as you verbally

abused her, hit her and strangled her. The kidnapping also lasted for a period of several hours and your actions made H fear for her life such that she attempted to break through the main window twice.

[27] The five charges of male assaults female would normally attract a sentence of

18 months’ imprisonment each.¹³ After losing your temper, you repeatedly hit her in the head, as well as other parts of her body and was verbally abusive towards her. One of those charges is representative where you were violent towards H over a week-long period.

[28] Your violence against H was driven by a need to repeatedly exercise power and control over her, as you have acknowledged. In my assessment, the starting point of six years’ imprisonment needs to be adjusted upwards by a further two

¹¹ H (CA248/02) v R, 31 October 2002; R v Walker [2013] NZHC 1945; W (CA190/2012) v R

_{[2013] NZCA 316; and R v Bloor [2014] NZHC 2086.}

12. R v Wharton [2003] NZCA 63; (2003) 20 CRNZ 109 (CA); Heke v R [2016] NZCA 38; and R v Wereta [2017] NZHC 935.

¹³ R v Coker CA421/04, 21 April 2005.

years’ imprisonment to reflect the totality of your violent offending over a number of

months and on several occasions.

[29] I therefore take a final starting point of eight years’ imprisonment for your overall offending.

Adjustments to reflect your previous convictions

[30] The Sentencing Act requires me to take into account the number, seriousness, date, relevance and nature of your previous convictions.¹⁴

[31] I have previously described your earlier relevant offending. You are establishing a propensity to commit serious violence and sexual violence against intimate partners. You also have other relevant domestic violence offences related to breaching protection orders. Both the Crown and your counsel, Mr Bamford, recognise that a further uplift is appropriate to recognise this.

[32] Whilst I must resist punishing you again for your previous offending, the seriousness and relevance of your domestic violence offending leaves me with no option other than to increase the sentence I am going to impose today and I have determined that increase shall be another one year imprisonment. I do so because society has little tolerance for domestic violence, let alone repeat serious domestic violence.

Guilty plea discount

[33] The final adjustment I will make is to recognise that you pleaded guilty to the charges you are being sentenced for today. Now, as you have heard, I have received submissions on the timing of that guilty plea and you did plead guilty on the first day of the trial rather than before and there have been explanations given for that. Although these pleas were not entered at the first available opportunity, I recognise that you have accepted responsibility for your offending and importantly avoided the

need for H to go through an otherwise distressing trial.¹⁵ In my assessment, a

_{discount of 20 per cent is appropriate in your case.}

¹⁴ _{Sentencing Act 2002, s 9(1)(j).}

¹⁵ Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [45] and [73] – [77].

[34] Applying these adjustments, your final sentence is one of seven years’ and

two months imprisonment.

Minimum period of imprisonment

[35] In your case I believe it is necessary to impose a minimum period of imprisonment in order to:¹⁶

(a) hold you accountable for the harm done to the victim;

(b) denounce your conduct, particularly in light of your previous convictions;

(c) deter others from committing similar offences; and

(d) protect the community from you, and in particular the risk of further violence against any future partner you may have.

[36] It will also allow you to undertake the intensive treatment that is about to be offered to you.

[37] The minimum period of imprisonment you must serve I have determined is four years. I believe this is the least restrictive sentence that I can impose in your case.

Final sentence

[38] Mr Warren, can you please stand.

[39] I am sentencing you Mr Warren to seven years and two months’ imprisonment in relation to the charge of sexual violation by unlawful sexual connection.

[40] I am sentencing you to two years’ imprisonment on the charge of kidnapping and 18 months’ imprisonment on each of the charges of male assaults female.

¹⁶ Sentencing Act 2002, s 86(2).

[41] All sentences are to be served concurrently. This means the times you will be serving in prison for all your offences and sentences will run together.

[42] Your effective end sentence is seven years and two months’ imprisonment.

You must serve a minimum period of imprisonment of four years.

[43] I must also give you a warning under s 86B of the Sentencing Act. Mr Warren, given your conviction for sexual violation by unlawful sexual connection you are now subject to the three strikes law. I am now going to give you a warning of the consequences of another serious violent conviction. You will also be given 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.

(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.

[44] Please stand down.

Cull J