R v Albert [2002] NZCA 392 (14 March 2002)

Last Updated: 13 November 2019

PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY s139 CRIMINAL JUSTICE ACT 1985.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA429/01

THE QUEEN

V

TONY MATTHEW ALBERT

Hearing:	13 March 2002
Coram:	Keith J Robertson J Gendall J
Appearances:	M Kennedy for Appellant D J Boldt for Respondent
Judgment:	14 March 2002

JUDGMENT OF THE COURT DELIVERED BY GENDALL J

[1] This is an appeal against the imposition of a minimum non-parole period of 14 years imposed in the High Court at Auckland on 18 December 2001 when the appellant was sentenced to preventive detention. He was sentenced for 23 offences which occurred in the months of January and February 1998. They arose out of three separate episodes of sinister serious invasions into the homes of women, involving crimes of aggravated burglary, threatening to kill, aggravated robbery, unlawfully taking a motor vehicle, indecent assault, aggravated wounding (x3), assault with intent to rape (x1), sexual violation by unlawful sexual connection (x4) and sexual violation by rape.
[2] Three years earlier, on 16 December 1998, the appellant had been sentenced to a term of preventive detention in the High Court at Auckland in relation to serious crimes for two other episodes of invading homes (but without sexual offending) which post dated the crimes the subject of this appeal.
[3] Counsel does not argue against the imposition of the sentence of preventive detention.
[4] In fixing the minimum non parole period of 14 years, the Judge observed that he had to regard the totality of the offending but kept in mind that already three years had been served by the appellant under the previous sentence of preventive detention. He said that he had to impose a minimum non parole period, treating that exercise as if it had been undertaken upon the earlier sentencing in December 1998, taking into account all the offending as if it had been before the Court then. In fixing the period of 14 years the Judge said that a total minimum period of 17 years would have been appropriate but given the three years already served under the term of preventive detention, the term was fixed at 14 years.
[5] Parliament has provided in s80 of the Criminal Justice Act 1985:

(2) The Court may impose a minimum period of imprisonment ... if satisfied that the circumstances of the offence are sufficiently serious to justify a minimum period of imprisonment that is longer than the period otherwise applicable...

(5A) [T]he circumstances of an offence may be regarded as sufficiently serious if the Court is satisfied the circumstances take the offence out of the ordinary range of offending of the particular kind, but the circumstances need not be exceptional.

(3) [T]he duration of the period imposed ... shall be the minimum period the Court considers to be justified having regard to the circumstances of the case including those of the offender.

[6] That is the law as it now stands. However prior to 17 July 1999 the threshold was higher. The qualifying circumstances, rather than being “sufficiently serious”, had to be “so exceptional” to justify a minimum non parole period. The appellant’s crimes occurred in early 1998 and had the appellant been arrested and sentenced before 17 July 1999 the original provisions of s80 would have applied. The Court would have to have been satisfied that the circumstances of the offending were so exceptional that a minimum period of imprisonment of more than 10 years was justified. Whether or not the amended provisions have retrospective effect has been discussed by this Court in R v Poumako [2000] NZCA 69; [2000] 2 NZLR 695 (CA) and R v Pora [2000] NZCA 403; [2001] 2 NZLR 37 (CA) and it may not be necessary to discuss this further because the Judge proceeded in the present case on the basis that whatever the test (whether “exceptional” or “sufficiently serious” circumstances) was to be applied, the appellant’s offending fell into the higher category and the Judge concluded it was exceptional. The issue on appeal, therefore, is whether had all matters been before the Court on the earlier occasion the Court would have concluded the circumstances of the offending were “so exceptional”. If so, was the term fixed excessive?
[7] The purpose for the imposition of a minimum non parole period is to punish the criminal, denounce the crime, and perhaps deter others. Earlier there was some dicta to suggest that public protection may also be a purpose of the sentence; see R v Hapi [1995] 1 NZLR 257 (CA), 261:

The new form of sentence also enables the Court to further protect the public against recidivists and to send a particularly clear message of deterrence to would be offenders, and no doubt the effect of use of the sentencing power will be to lessen the fear and insecurity engendered in the community by crimes of extreme violence .... .

[8] However, more recently this Court has held in R v Sibley (CA290/97, 15 October 1997) that a minimum non parole period cannot be imposed for the purpose of protection of the public.
[9] A two step approach is required. The first is to determine whether the circumstances of the offence are so exceptional so as to justify a minimum non parole period, and if so, the second step is to determine the duration of that period, at which point the offender’s circumstances are taken into account.
[10] The circumstances of the appellant’s offences disclose multiple offending of a serial nature involving home invasions during daylight hours, on multiple occasions into dwelling houses where women were attacked. The appellant was usually disguised and armed with a knife as a weapon. Threats to kill were made and thefts committed. It is indeed fortunate that grave injuries and even death did not occur. The victims were often sexually violated, either digitally or orally, having been incapacitated by the actions of the appellant. On one occasion his actions proceeded to rape. The victims were terrorised and, not surprisingly, left with ongoing psychological trauma.
[11] A sentence of preventive detention is not available for the charges of aggravated burglary, threatening to kill, aggravated robbery, unlawfully taking a motor vehicle or indecent assault (the victims were more than 16 years of age) to that extent the appeal is allowed and finite sentences must be substituted on those crimes. However, preventive detention was properly available on the charges of sexual violation, aggravated wounding and assault with intent to rape and, as noted previously, no challenge is made to that sentence and counsel for the appellant does not challenge that sentence for those crimes.
[12] When considering the imposition of a minimum non parole period the sentencing Judge was able to regard the totality of the 1998 offending on the basis that one sentencing exercise was taking place. He was entitled to view the offending as being characterised by extreme violence, and threats of violence, with ritualistic or serial crimes inflicting grave sexual assaults upon terrified females in the sanctity of their homes. They carry psychological and emotional scars for life. Whilst obviously not of the same category as the crimes in R v Rewa (High Court, Auckland Registry, T322/96, 3 July 1998 Anderson J) they nevertheless were multiple serious crimes with aggravating factors involving three home invasions and serial sexual crimes in the space of two months. That, together with the predatory nature of the offending, the use of weapons, threats of violence to the victims, the incapacitation of the victims and the grave and aggravating indignities to which they were exposed well meets the test of being “so exceptional”. It was out of the ordinary, being uncommon, extraordinary and justifying additional denunciation; see R v Hapi (supra) and R v Parsons [1996] 3 NZLR 129. There existed factors of premeditation, brutality and callous cruelty to women, grave risk to the victims and gratuitous serious indignities upon terrorised victims. As the Judge said, there may be worse cases of sexual violation, but viewed cumulatively the offending was “so exceptional”. We are satisfied the sentencing Judge did not err in this regard.

The length of the minimum non parole period

[13] In considering the personal circumstances of the offender, it is clear that he had multiple serious previous convictions, and in 1987, he was sentenced to four years imprisonment for unlawful sexual connection. By 1990 he had further convictions for aggravated assault, aggravated burglary and aggravated wounding. The present offences occurred over a three month period with a further aggravating feature that the appellant was on parole for serious crimes he had committed in 1990.
[14] In determining the length of such period, precedent is not particularly helpful. Terms imposed range from 12 years to as high as 25 years. Minimum terms are imposed in situations where there is a single (or one episode) offence (such as single or multiple murders); or where there are grave multiple sexual violations. Comparisons are fraught with difficulty between murders, which are usually “one off” crimes, and sexual violation crimes.
[15] We repeat what this Court said in R v Latu (CA358/95, 26 September 1996) that within the appropriate narrow band of cases there should be an appreciation of relativity. It is a fact that usually murder cases do not involve multiple recidivist acts whereas such may well be the case with serial sexual offending prior to the apprehension of an offender, but to what extent that requires different levels to reflect punishment or condemnation, must always be a question of assessment of individual circumstances. Yet there must be some relativity, given that the requisite test is not public protection but additional punishment, condemnation and deterrence, some balance as between terms imposed for sexual violation and murder should be achieved.
[16] In the present case the Judge took as a starting point a minimum non parole period of 17 years on the basis that he considered such to have been justified for all the offending if sentences had occurred in 1998. He then reduced this by three years because of the period already served.
[17] Allowance should be given when fixing a minimum non parole period for an early guilty plea which is to be balanced by the lateness of such a plea and other factors such as lack of real remorse or contrition R v Namana (supra). The Judge does not appear to have given any allowance for the guilty pleas, or at least to have made direct reference to it. Of course it is relevant that the appellant was not anxious to facilitate or admit, in 1998, these crimes. He did not come to acknowledge these until DNA and other evidence made it clear that he was the serial offender and that denial would be futile certainly in respect of one set of offending. However, the allowance for a guilty plea is not made as a gratuitous benefit for a prisoner but rather to reflect, as was said in Namana’s case, the public interest which is to be served if offenders accept responsibility for their wrong doing. It is the public interest that justifies the reduction.
[18] We do not think that the starting point of 17 years was beyond the range available to the sentencing Judge. In the end however the issue is whether the eventual term imposed is appropriate. We think that the three years deduction that was allowed, because of the term already served, was in principle proper. But further adjustment was required by reason of the guilty pleas. The reality is that had the appellant been sentenced for all crimes when he initially appeared before the Court in December 1998 he would have been sentenced to preventive detention and a minimum non parole period of no more than 15 years. Viewed in that light the period should be fixed at 12 years allowing an adjustment for the guilty pleas and the time already served.
[19] The appeal is therefore allowed and the minimum non parole period fixed at twelve years.
[20] In respect of the counts of aggravated burglary, aggravated robbery, indecent assault and unlawfully taking a motor vehicle the sentences of preventive detention are quashed and the following finite sentences, to be served concurrently, are imposed so as to properly adjust the sentences for the trial Judge in accordance with the law.

• On each count of aggravated burglary a term of five years imprisonment.
• On each count of aggravated robbery a term of five years imprisonment.
• In respect of each count of threatening to kill two years imprisonment.
• On each count of indecent assault three years imprisonment.
• On the count of unlawfully taking a motor vehicle two years imprisonment.

Solicitors
Crown Law Office, Wellington, for the Crown