R v BEVAN JAMES CARROLL [2003] NZCA 264 (18 November 2003)

IN THE COURT OF APPEAL OF NEW ZEALAND

CA153/03

THE QUEEN

v

BEVAN JAMES CARROLL

Hearing: 28 October 2003

Coram: Tipping J

Rodney Hansen J

Paterson J

Appearances: S C Barker for Appellant

B M Stanaway for Crown

Judgment: 18 November 2003

JUDGMENT OF THE COURT DELIVERED BY PATERSON J

Introduction

[1] Mr Carroll pleaded guilty to one count of burglary, two counts of robbery, two counts of detaining a person without her consent, two counts of threatening to kill or to cause grievous bodily harm, one count of car conversion, and one count of criminal damage arising from wilfully setting fire to the converted car.He was sentenced to preventive detention and ordered to serve a minimum period of seven and a half years imprisonment.He now appeals against the sentence of preventive detention.

The offences

[2] The offences all arose from one incident in Christchurch when Mr Carroll, along with three younger offenders, entered a dwelling house at 3.30 am.At that time, two women and the seven months old child of one of the women, were in the house.The offenders gained entry when two of the offenders, partly disguised to mask their appearance, knocked on a door, which was opened by one of the women.They initially demanded drugs.While one woman was phoning her husband who was on night shift, Mr Carroll entered through the doorway, holding a large knife with a blade approximately 20cms long.He brandished the knife close to one of the complainant’s face.The other offenders then entered the house.

[3] Mr Carroll threatened one of the women and demanded that she give him drugs. Both women were required to sit on a couch and were guarded at knife point by one of the younger offenders, while Mr Carroll directed the search of the house by the others.The house was ransacked, and items of value were taken and stacked in the lounge.A cashflow card was found.Mr Carroll demanded that the women reveal its PIN number.When it was revealed, he told them that if the number proved to be wrong, he would come back and kill all three occupants of the home.Mr Carroll took off his disguise and told both women to remember his face.He said he was a Mongrel Mob member, and if the women contacted the police, he would return and kill both of them and the baby.Mr Carroll cut the telephone wires in the house.

[4] Property from the home was loaded into one of the women’s car.Mr Carroll and another offender drove away in that car, leaving the other two offenders to guard the women.They drove to a bank and withdrew $800 from an ATM machine using the stolen cashflow card, and then delivered the stolen property to Mr Carroll’s house.They returned to the complainants’ address, wherefurther stolen property was placed in the women’s car and taken away.Approximately $1200 worth of property, including a television, stereo, DVD player, heaters, clothing, food, cash, CDs and toiletries, was stolen.The four men left the house at approximately 6 am having detained the women for about two and a half hours.The stolen property was subsequently distributed among the four offenders, with Mr Carroll taking the majority of it. He then ordered the women’s car to be taken from the address and set on fire.The vehicle was completely gutted.The following day the police executed a search warrant at Mr Carroll’s address and a considerable amount of the stolen property was recovered.

The sentencing

[5] One of the offenders, who was 16 years old at the time of the offence, was dealt with separately.He was originally sentenced in the District Court to six and a half years imprisonment, and an order was made that he serve a minimum term of four years imprisonment.The Court of Appeal substituted a sentence of three years imprisonment without a minimum term.

[6] The other two offenders were aged 17 and 19 years.One had a previous offence which the sentencing Judge regarded as minor.The other had no previous offences.Both had co-operated when interviewed, and had shown remorse.One had been bailed at one stage to enable him to participate in the Young Offenders Programme, as a result of which there had been some positive changes.In view of the Court of Appeal’s decision on the youngest offender’s appeal, Panckhurst J did not adopt the conventional approach in respect of these two offenders, and determined that the least restrictive outcome possible in their cases was a term of four years imprisonment.That term, in the Judge’s opinion, reflected a full allowance for their pleas of guilty at a somewhat late stage, for the markedly lesser roles they played in comparison to Mr Carroll, and for the fact that they were both very young and were effectively first offenders.His Honour also took into account the positive signs he had already identified in relation to the prospects of rehabilitation.

[7] The Crown sought preventive detention for Mr Carroll.It was the Judge’s view that Mr Carroll was the ringleader who called the shots, and that the three younger offenders did as they were told.He was unco-operative when the stolen property was found at his house and he denied involvement.At the time of sentencing he was 32 years of age with an extensive list of previous convictions.The previous convictions included offences of burglary, assault, robbery, attempted burglary, and injuring with intent.

[8] The Judge noted the pre-sentence report included the observation that Mr Carroll lacked insight into the complex of factors which led him to offend.He had some sympathy for Mr Carroll because of his extremely deprived upbringing, but concluded that protection of the public, rather than any feeling of sympathy on account of Mr Carroll’s past must predominate sentencing considerations.After noting the effect on the lives of the victims, who had read their victim impact statements to the Court that morning, the Judge observed that Mr Carroll did not show remorse while the reports were being read.

[9] His Honour had before him reports from a clinical psychologist and a forensic psychiatrist.The clinical psychologist ended his assessment with:

Given his maladjusted childhood, gang involvement, substance abuse, extensive offending history that began at an early age, prior supervision failure, negative attitude, non-compliance with remediation attempts or treatment programmes, he would be considered a high risk of future offending.

The psychiatric report did not contain an overt risk assessment, but it noted that Mr Carroll did not suffer from a psychiatric illness, although there may be some cognitive dysfunction on account of drug use and head injuries.The Judge also drew the conclusion from that report that Mr Carroll was an ongoing and significant risk to the community.

[10] The principal features which the Judge took into account in imposing preventive detention will be referred to later in this judgment.

Grounds of appeal

[11] Counsel for Mr Carroll relied upon four grounds in submitting that a finite term of imprisonment should have been imposed:

a) Full credit was not given for Mr Carroll’s early guilty plea;

b) Disparity with the sentences of the two co-offenders, who each received a term of four years imprisonment;

c) The Judge’s refusal to let him submit that the Court should take into account the drug dealing activities of one of the complainants and her partner;

d) Mr Carroll’s appalling deprived upbringing.

Discussion

[12] Although the Criminal Justice Act 1985 was amended in 1987 to enable prevention detention to be ordered for a non-sexual crime of violence, little use appears to have been made of the sentence for non-sexual violent offences.An example was R v McGee (1995) 13 CRNZ 108, where this Court, on an application by the Solicitor-General, substituted a sentence of preventive detention for a sentence of seven and a half years imprisonment on various charges which included a count of wounding with intent to injure (the concurrent sentence for that particular offence had been three years but the totality of the offending had led to a seven and a half year term of imprisonment).McGee had an extensive history of violent offending and one previous offence was a specified offence in accordance with the terms of s 75 of the Criminal Justice Act.

[13] The range of violent offences for which preventive detention may be imposed was enlarged by s 87 of the Sentencing Act 2002.The additional charges for which it can now be ordered include aggravated robbery and detention.Mr Carroll was therefore eligible for a sentence of preventive detention because of his two aggravated robbery and two detention offences.He is over the age of 18 and the only other pre-condition under s 87(2) of the Sentencing Act is that the Court is required to be satisfied that Mr Carroll is “likely to commit another qualifying offence.”

[14] Section 87 of the Sentencing Act 2002 states the purpose of preventive detention is:

To protect the community from those who pose a significant and ongoing risk to the safety of its members.

When considering whether to impose a sentence of prevention detention, s 87(4) of the Sentencing Act requires the Court to take into account:

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 to, 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.

While the provisions of s 87(4) give more stringent guidance to a Judge than the former provisions under s 75 of the Criminal Justice Act 1985, the criteria in s 87(4) are in effect a codification of the criteria previously applied by this Court:see R v Leitch [1998] 1 NZLR 240.The purpose of the sentence is preventive rather than punitive and it is not a sentence of last resort.

[15] This Court in R v C [2003] 1 NZLR 30 noted at para 25:

Although a plea of guilty will be relevant to whether a sentence of preventive detention should be imposed, no credit for the plea can be given within a sentence of preventive detention save in respect of the minimum period of imprisonment to be served.

We do not preclude the possibility that a guilty plea, along with other factors such as remorse and an overt change of attitude, may be relevant in assessing whether there is an ongoing risk to the safety of the members of the community.However, this is not such a case.The relevance of the guilty plea to the order for a minimum term of imprisonment will be considered later in this judgment.

[16] While we accept that in appropriate circumstances, an appellate Court will interfere if there is an unjustifiable gross disparity between sentences of co-offenders, there are obviously difficulties in ensuring some parity when one of the offenders is a candidate for preventive detention and the others are not. Disparity is not a matter which Parliament requires a Judge to take into account when applying the criteria of s 87(4).In this case, we are of the view that the disparity is understandable. Mr Carroll at the age of 32, had an extensive criminal record and the reports and information before the sentencing Judge gave no reason to suggest that he was likely to change his ways in the future.He was the ringleader and manipulated the three other offenders.They were young, showed remorse, and the two sentenced by Panckhurst J were sentenced on the basis that they were first offenders, had expressed their concern for the female victims and showed remorse.Taking into account the positive signs that he saw in both of them the Judge was able to impose the least restrictive outcome possible.None of the factors taken into account in respect of the co-offenders apply to Mr Carroll.Even if they were treated leniently, and we do not accept that they were, this would not be a reason for not considering and applying the criteria of s 87(4) to Mr Carroll.

[17] We agree with Panckhurst J’s refusal to consider the character of the victims.The submission made in front of us was effectively that persons who are involved in criminal activity must expect a lower threshold of protection from the law than law abiding members of the public.We do not accept that submission.The victims in this case were, as members of the community, entitled to the protection of the law, and Mr Carroll was not entitled to a sentencing credit because the victims may have dealt in drugs in the past.

[18] Finally, in respect of the grounds of appeal, the Judge did take into account Mr Carroll’s disadvantaged background.However, he concluded that while he had sympathy for Mr Carroll because of his background, he was required, in imposing the sentence, to “confront the person that you are, and, the risk that you represent to the community.In other words protection of the public must predominant rather than any feeling of sympathy on account of your past.”In our view, the Judge approached the matter correctly in view of the criteria contained in and the purpose of s 87 of the Sentencing Act.

[19] Panckhurst J considered and applied the criteria in s 87(4) of the Sentencing Act.He noted the pattern of serious offending disclosed by Mr Carroll’s history and it gave him every reason for pessimism about the future.He noted the reports of the clinical psychologist and the forensic psychiatrist.The psychologist considered Mr Carroll “a high risk of future offending.”The psychiatrist noted that the serious charges Mr Carroll faced were not as a result of mental illness and psychiatric treatment was not an available remedy to prevent future behaviour of this nature.Mr Carroll’s behaviour was seen as governed by the manner in which he sees and interacts with the world around him, and this is not easily amenable to change.Though the psychiatrist was unable to make a specific psychiatric recommendation, the Judge would not have been able to conclude from the report that Mr Carroll was not an ongoing risk to the safety of members of the community, or that he was unlikely to commit another qualifying offence in the future.The offending was serious and harm was caused to the victims.It was clear from the reports that Mr Carroll has failed to address the causes of his offending and there was no suggestion he was likely to do so in the future.The only other principle for consideration under s 87(4) was whether a lengthy determinate sentence was preferable if this provided adequate protection for society.The Judge, after summarising the matters already referred to, concluded that he had “no confidence that you are willing, perhaps even able, to accept help.”In the circumstances, he did not consider that a lengthy determinate sentence, even one in the range of about 12 years which would be required for these offences, was appropriate.

[20] One matter, not addressed by counsel, which we have considered is whether it was appropriate to impose a sentence of preventive detention when neither of the victims were physically harmed.As is to be expected, the victim impact statements show that the mental effect on the victims was considerable and traumatic.They feared for their lives.However, they were not physically injured.We have considered a summary of facts of a previous incident in 1997 when Mr Carroll was sentenced to five years imprisonment for aggravated robbery, injuring with intent, assault with intent to injure, and other dishonesty crimes.There were, in effect, two separate incidents.The first had some similarity to the present case in that Mr Carroll asked the male occupants of a house, which he entered, whether they had drugs.At one stage Mr Carroll became outraged and began physically pushing one of the complainants.He then obtained a galvanised metal pipe approximately 50cms in length and began hitting one of the victims with this pipe.The victim was struck twice in the head before he could bring his arms up to protect himself.Mr Carroll then hit him on the forearms numerous times and, when the victim could no longer defend himself, Mr Carroll hit him a further three times in the head.When the victim tried to get to the telephone to call for assistance, he was again struck with the metal pipe, this time in the rib cage area.A female occupant was told that she would be killed if she contacted the police.

[21] Later on the same day, Mr Carroll went to another address and asked his ex de facto partner to give him money.When she told him that she did not have the money, he became outraged and started punching her about the head with a closed fist.She was hit about five times and knocked to the ground.While on the ground, Mr Carroll kicked her in the shoulder and arm.He then knelt down and continued to punch her in the head.This victim, as with the victim earlier in the day, received physical injuries.Notwithstanding a sentence of five years imprisonment, Mr Carroll has within five years committed a similar offence, albeit without actually injuring the victims.

[22] When an offender is eligible for preventive detention, his total offending may be considered.Mr Carroll has an extensive criminal record commencing with robbery in 1986.He has several convictions for burglary, assault, including male assaults female, as well as the convictions arising from the 1997 incidents.The present offending had many similarities to the earlier offending.In the circumstances, we are satisfied that the Judge applied the relevant criteria in s 87 of the Sentencing Act when imposing the sentence of preventive detention.Mr Carroll was correctly assessed as posing a significant and ongoing risk to the safety of the community.The appeal against that sentence is dismissed.

Minimum period of imprisonment

[23] The Judge imposed a sentence of seven and a half years, noting that this would have been what he would have imposed if there had been a finite term of 12 years.The term of seven and a half years was fixed with regard to the gravity of the offending.Mr Barker did not seriously challenge that a term of 12 years would have been appropriate if a finite term had been ordered, or that seven and a half years was inappropriate.

[24] Under s 89 of the Sentencing Act, the Court was required to impose a minimum term of imprisonment of not less than five years.No maximum term is provided by the section.The minimum period must be the longer of:

a) The minimum period of imprisonment required to reflect the gravity of the offence;or

b) The minimum period of imprisonment required for the purpose of the safety of the community in the light of the offender’s age and the risk posed by the offender to that safety at the time of sentencing.

[25] This Court in R v Johnson (CA221/03 of 23.10.03) when considering a minimum period of imprisonment on a sentence of preventive detention said at paragraph 26:

It would seem contrary to the intent of the Sentencing Act and indeed, of the Parole Act, for the inherent but unintended punitive effect of a sentence of preventive detention to inform perceptions of the gravity of the offence to such an extent that a longer minimum term might be imposed under s89(2)(a) than would be the case if a finite term of imprisonment had been imposed. Considerations of public safety inform the questions both whether preventive detention should be imposed and, pursuant to s89(2)(b) the length of a minimum term appropriate for reasons, not of gravity, but of safety.

[26] The Court in Johnson also noted at paragraph 31:

When contemplating, in a case requirement preventive detention, whether a minimum term exceeding five years is required, a method which is not entirely subjective or arbitrary might be to consider what finite term may have been appropriate after taking into account all relevant aggravating and mitigating factors and then, having regard to the gravity of the offence, what the period of the minimum term might properly be in relation to the possible finite term.

[27] In this case, we agree with the Judge that a minimum term of imprisonment of more than five years was required to punish, denounce and deter.The Judge noted that if he had not imposed preventive detention, a lengthy determinate sentence, even one in the range of about twelve years, would be required for these offences.In our view, a twelve year term would not take into account the mitigating plea of guilty and an appropriate term would have been ten years imprisonment.Under s86 of the Sentencing Act, the minimum non-parole period could not have exceeded two-thirds of that term.Thus, in fixing the minimum term to reflect the gravity of the offence (s89(2)(a)), a term of six and a half years would have been appropriate.The Judge did not deem it necessary to increase the term for the safety of the community (s89(2)(b)).We agree.In the circumstances, we are of the view that the minimum term should be reduced from seven and a half years to six and a half years.

Result

[28] The appeal against the imposition of preventive detention is dismissed but the order directing a minimum term of imprisonment of seven and a half years is quashed and replaced with an order that Mr Carroll serve a minimum of six and a half years imprisonment.

Solicitors:

Barker & Associates, Christchurch for Appellant

Crown Solicitor, Christchurch