THE QUEEN v MATU MAC MOE PATUWAI [2003] NZCA 44 (11 March 2003)

IN THE COURT OF APPEAL OF NEW ZEALAND

CA199/02

THE QUEEN

V

MATU MAC MOE PATUWAI

Hearing:

19 February 2003

Coram:

Glazebrook J

Hammond J

Gendall J

Appearances:

A J S Snell for Appellant

B J Horsley for Respondent

Judgment:

11 March 2003

JUDGMENT OF THE COURT DELIVERED BY GENDALL J

Introduction

[1]	Mr Patuwai was sentenced to preventive detention in the High Court of Napier on 23 June 2000 following upon his guilty plea to one charge of sexual violation by unlawful sexual connection.He appeals against that sentence.

Essential Facts

[2]	On 13 January 2000 Mr Patuwai had been drinking at a hotel in Napier.The victim and her friend were also present and when the two women left the hotel with some others to go home in a taxi van they were followed by the appellant.They had not known him previously.The appellant got into the taxi van.Unbeknown to the victim when she got out, so did he and he followed her.He was intent upon raping her.He attacked her from behind, dragged her across the road to an open garage, pinned her against the wall and demanded that she perform fellatio upon him.She refused.He then violated her vagina digitally.She repeatedly told him that she was pregnant, begged for mercy and then, eventually he released her.By this stage the victim’s shirt was bloodstained and he took it giving his shirt to her.When located by the police he stated he could not remember the vicious attack upon the victim and said he had given to her his shirt because she was cold.
[3]	The appellant had a lengthy criminal history including attempted rape for which he was sentenced to 3 ½ years’ imprisonment on 27 September 1991.He had five other convictions between 1984 and 1998 for assaulting females at least two of which had sexual connotations.He was eligible for a sentence for preventive detention under both ss75(1)(a) and (b) of the Criminal Justice Act 1985 which applied at the time of his offending and his sentence.
[4]	In imposing sentence the Judge outlined the facts and reviewed the range of finite sentences available in cases of sexual violation involving digital penetration.He referred to the aggravating features of the offending including the violence involved, injury to the victim who was unknown to him and the crudity involved.He noted that it was a mitigating factor that the attack eventually ceased when the victim begged for mercy.The Judge, however, expressed the view that he had no doubt that the appellant was bent upon rape if he could have achieved his aim.The Judge thought a finite sentence of 4 years’ imprisonment would have been appropriate but directed his mind to his primary concern, namely to protect the public and in particular women.He then turned to reports of the probation officer and psychiatric reports.He made reference, however, only to the opinion of one psychiatrist, namely that the appellant had a predilection for offending and there was a high risk of re-offending.
[5]	The Judge reviewed the well known sentencing principles for matters of preventive detention, as discussed in R v Leitch [1998] 1 NZLR 420.In particular he considered the principle that if a sufficiently lengthy finite sentence could adequately serve the purpose of public protection then such ought to be preferred to a sentence to preventive detention.The Judge concluded, however, by expressing his view that he did not consider that proper sentencing principles enabled him to impose a finite term in excess of 4 years, which he considered would be appropriate.
[6]	The Judge in concluding that preventive detention was necessary in order to protect the public said:

Nevertheless, the offence you committed was a brutal and serious one.I have little doubt that you intended to rape your victim.You have no insight or appreciation of what you have done, in my view no real remorse and more seriously – no real motivation to stop offending.Exacerbating those concerns are your longstanding addictions to alcohol and drugs.For all those reasons the reporting psychiatrist assesses you to be at a high risk of re-offending in this way again.So does the probation officer.Sadly, those assessments differ little from that made by the probation officer back in September 1991.You may recall, Mr Patuwai, comments Mr Justice Temm made to you when he sentenced you in Gisborne.He described the attempted rape as “a very bad one”, involving a “bad attack” on your victim.As Mr Laing has pointed out, that attack bears disturbing similarities to this one.It was an attack on a female you did not know, with whom you had shared a taxi, and it involved you dragging your victim away before attempting to rape her.

The Judge concluded by saying:

The protection of the public, in particular women whom you appeared to regard as fair game, demands that I sentence you to preventive detention.

Counsel’s Submissions

[7]	Originally in his written submissions Mr Snell expressed concern that one of the two consultant psychiatrists did not deal with the issue of the appellant re-offending by way of committing a specified offence upon release, in contrast to simply general offending.He, however, recognised that the appellant was assessed at a high risk of re-offending.He submitted that the appellant had shown a willingness to co-operate with rehabilitation attempts, and that a finite sentence in all the circumstances afforded sufficient protection to the public.He said that the Judge erred in his assessment that a longer than usual finite sentence (assessed at 4 years) could not have been imposed.Mr Snell submitted that a finite sentence of 7 to 8 years was available and would have offered sufficient public protection.
[8]	In oral argument Mr Snell acknowledged that he could only seriously advance three grounds in support of the appeal.The first he said was a general concern that because the second psychiatric report was received late in the piece and was not mentioned by the Judge in his sentencing remarks, it was not possible to discern what notice, if any, the Judge took of it.
[9]	The second point pursued in Mr Snell’s oral argument was that the sentencing Judge misdirected himself in coming to the conclusion that a finite sentence of 4 years’ imprisonment was all that could properly be imposed because, in terms of the decided authority, a greater finite sentence than might otherwise be the case could nevertheless be imposed in appropriate circumstances – provided it was not of such a nature as to flout proper sentencing principles.If such a finite sentence could adequately protect the public then it was to be preferred and Mr Snell submitted the proper sentence was something between 7 and 8 years’ imprisonment.If that had been done he submitted that it would suffice for public protection purposes, and therefore that the Judge erred in his assessment.
[10]	Thirdly, Mr Snell submitted that under the Sentencing Act 2002 a person sentenced to preventive detention has a minimum non parole period of 5 years, whereas this appellant’s non parole period is 10 years by virtue of the Criminal Justice Act 1985.
[11]	Mr Horsley on behalf of the Crown argued that the sentence for preventive detention was necessary given the serious nature of the offence, the appellant’s previous history of offending against women and his established ongoing risk to the public.Whilst Crown counsel accepted that a finite sentence of up to 8 years could potentially have been imposed, it would nevertheless have been insufficient to provide public protection given release time and absence of conditions.
[12]	Mr Horsley submitted, for example, that rehabilitation attempts had failed in the past; the appellant was at a high risk of re-offending according to both psychiatrists; he was unsuitable as a candidate for the Kia Marama programme and there was some real doubt expressed by the experts as to the appellant’s claims of willingness to undergo treatment for his problems.Mr Horsley noted that the opinions of the psychiatrists of the appellant’s motivation stemmed from a desire to avoid preventive detention and there was no evidence or support for the view that the appellant would attend courses or undertaken antabuse programme would be effective.It was Mr Horsley’s ultimate submission that the appellant had to have the obligation placed upon him to eventually satisfy the parole board that he should be released into the community rather than face the sure release even after the expiration of the full term of the finite sentence.

Discussion

[13]	Mr Snell’s contention regarding the second psychological report can be shortly disposed of.That report was from Dr Edwards and was dated 8 June 2000.It was not, however, favourable at all to the appellant.It refers to the appellant’s displaying little remorse, his sole concern being his predicament rather than the damage he had inflicted upon others.He concluded the appellant showed no major psychiatric disorder but had a longstanding history of alcohol and drug abuse and motivation to rehabilitate had only begun since the question of preventive detention had loomed large.Mr Snell argued that the appellant had shown willingness to cooperate in rehabilitation attempts stating that he would try antabuse (a pharmacological treatment) for alcohol problems, and while in prison, has attended a number of courses which show continued motivation.The psychiatrist expressed the view that the likelihood of the appellant re-offending in sexual crimes was quite high based upon his alcohol problems, high sexual drive and low sense of social responsibility.The psychiatrist expressed pessimism to the appellant’s ability to respond to conventional treatment programmes and stated that in his view motivation on the appellant’s behalf to try antabuse would diminish very markedly once the threat of preventive detention was removed.He expressed the view that any pharmalogical treatment would need to be imposed judicially to have any guarantee of ongoing administration.The opinions in the report do not offer to the appellant any succour.If accepted they would not have led to a different outcome.
[14]	There is force in Mr Snell’s submission that the Judge may not have been correct in his view that no longer finite sentence than 4 years’ imprisonment was warranted, nevertheless he was correct in his assessment that preventive detention was necessary to protect the public.The statutory conditions existed, and in terms of the established principles in R v Leitch(supra) the sentence was fully justified.A lengthy finite sentence could have been no more than a term of 8 years’ imprisonment, but in our view this would not have been sufficient to provide adequate protection for the public given the time when eligibility for parole would be an automatic consideration.An advantage of the sentence of preventive detention is that even if parole is granted, the sentence remains one for life so that parole conditions can be imposed and monitored for the safety of the community indefinitely.
[15]	We do not accept Mr Snell’s argument that, because of the new parole provisions under the Parole Act 2002, a sentence of preventive detention was excessive and inappropriate in this case.Parliament with the new sentencing and parole regime has confirmed the parole provisions for sentences of preventive detention imposed before the new regime – see s20(2) of the Parole Act 2002.Referral for consideration for early parole has by s25(1) of the Parole Act 2002 been narrowed and only the chairperson (rather than any parole board member) can refer an inmate for early consideration of parole and only in exceptional circumstances.Nevertheless such exists and if an inmate subject to a sentence of preventive detention, with a minimum non parole period of 10 years, is able to so rehabilitate himself, then eligibility for parole may be appropriate before the expiration of the 10 year period, then the Chairperson may so refer the case.
[16]	In the present case the appellant is subject to a minimum non parole period of 10 years by legislative requirement.He faces the task of satisfying the parole board that he ought to be released, because he no longer would pose a risk to the safety of the community after that period.Yet he is not absolutely prevented from having the matter considered earlier.
[17]	In any event, it is not strictly correct to say that offenders sentenced to preventive detention under the Sentencing Act 2002 are eligible to be considered for parole after 5 years.As a matter of legislative policy the eligibility for a sentence of preventive detention has been widened and now it is the sentencing Judge who is required to fix a minimum period of imprisonment pursuant to s89 of the Sentencing Act 2002.It must be the longer of the minimum period required to reflect the gravity of the offence or the minimum period required for the purposes of the safety of the community in light of the offender’s age and risk imposed by him.The period must not be less than 5 years.But it may well be more depending on the discretionary assessment of the sentencing Judge.It is not necessarily the case that a 5 years’ minimum period would always arise.An advantage of the sentence of preventive detention is that even if parole is granted, the sentence remains one for life so that parole conditions can be imposed and monitored for the safety of the community indefinitely.
[18]	The sentence of preventive detention is upheld and the appeal is dismissed.

Solicitors:

Crown Law Office, Wellington