Mr Pritchard’s appeal against sentence is allowed. The sentence of preventive detention imposed in the High Court is quashed and replaced with a sentence of nine years’ imprisonment with a minimum period of imprisonment of six years.
Mr Edmonds’ appeal against conviction and sentence is dismissed.

_______________________________________________________________

REASONS OF THE COURT

(Given by O’Regan P)

Introduction

[1] Mr Pritchard and Mr Edmonds were convicted after a High Court jury trial of one count of wounding with intent to cause grievous bodily harm. The trial Judge, Ronald Young J, sentenced both of them to preventive detention.[1] Mr Pritchard appeals against sentence and Mr Edmonds appeals against conviction and sentence.
[2] Mr Edmonds’ appeal against conviction was advanced on the following grounds:

(a) the identification evidence of a Crown witness, Mr Biddle, should not have been admitted;

(b) the trial Judge erred in allowing the Crown to re-examine the victim about persons who were present at the scene of the offence;

(c) mis-directions by the trial Judge on the burden of proof and in relation to the caution about identification evidence required under s 126 of the Evidence Act 2006.

[3] The ground of appeal against sentence was stated in the notice of appeal as being that preventive detention was not the least restrictive sentencing outcome and was accordingly manifestly excessive.
[4] Mr Pritchard’s appeal against sentence was advanced on the basis that the sentence of preventive detention was manifestly excessive and wrong in principle.

Factual background

[5] The factual background was summarised by the Judge in his sentencing notes for Mr Edmonds as follows:

[1] Mr Edmonds you are for sentence today having been convicted by a jury of wounding with intent to cause grievous bodily harm. Somehow Mr August, on the evening of 8 June 2008, came to be at the Mongrel Mob headquarters in Hastings. It was clear he was grossly intoxicated and it is clear to me he was doing no harm to anybody.

[2] Suddenly he was struck and knocked to the ground. You and your co-accused, Mr Pritchard, immediately arrived and began kicking him in the head and the body. It is hard to know how many times you both kicked him but Mr Biddle’s evidence which was clearly credible and reliable said it was between twenty to fifty times.

[3] The victim was very seriously injured. One of the witnesses took the victim to the hospital. He was immediately admitted to intensive care. He was in very serious condition. The hospital staff could not contain the bleeding into his lungs and so he was transferred to Wellington hospital where he underwent surgery and remained in intensive care for some time.

[4] This was without question a cowardly brutal attack on a completely harmless drunken man. You showed no mercy nor the slightest care for the fact that he was a fellow human being.

[5] As far as the victim impact is concerned as I have recounted Mr August suffered serious injuries. He had a grossly swollen face, cuts to his face, multiple rib fractures, bleeding into his lungs and chest which as I have said required evacuation to Wellington.

[6] The victim impact report records the serious consequences of your attack on Mr August. He was subsequently on accident compensation for three and a half months. He suffered significantly financially. He and his mother, with whom he was living with his children, almost lost their home. His diving hobby has been severely restricted and he has lost confidence socially. He fears retribution.

[6] We will deal with Mr Edmonds’ appeal first.

Mr Edmonds’ appeal

[7] Mr Edmonds’ appeal against sentence was not advanced either in written or oral submissions. We are satisfied that given the nature of the offending, Mr Edmonds’ previous record and the contents of the reports provided to the Judge from health assessors as required under s 88 of the Sentencing Act 2002, the sentence of preventive detention was the appropriate sentence in this case. We formally dismiss the appeal against sentence.
[8] We will deal with the grounds of appeal against conviction in the order in which they are set out at [2] above.

Identification evidence

[9] The admissibility of Mr Biddle’s evidence of his identification of Mr Edmonds was the subject of a pre-trial appeal.[2] The Court’s decision also dealt with a pre-trial appeal by a co-accused, Mr Keil. Mr Keil was acquitted at the trial.
[10] Mr Biddle was an eye witness to the attack on the victim. He provided a statement to the police giving his account of the attack four days after the attack occurred. His narrative was summarised in the pre-trial appeal decision as follows:

[9] On Sunday 8 June 2008, at around 12.30 am, Mr Biddle finished work as a musician in a bar. At approximately 1.30 am, he and his wife left to go to another bar. They arrived at approximately 1.45 am and stayed until it closed at 3.00 am. While at the bar he was introduced briefly to the victim, Mr August. After the bar closed, Mr Biddle and his wife decided to go to the Mongrel Mob’s headquarters, known as “the pad”, arriving sometime before 4.00 am. There were about 30 people there when they arrived.

[10] Mr Biddle’s evidence is that Mr Pritchard and Mr Edmonds were present when he arrived at the pad. Mr Biddle introduced his wife to both of the accused. They then had “a chit chat sort of thing”. Mr Biddle said that both Mr Edmonds and Mr Pritchard were at the pad the whole of the time he was there but that he mainly spoke to others who were present. Mr Biddle says that Mr Keil was at the pad during the evening, although he does not remember if Mr Keil was at the pad when he and his wife arrived.

The attack

[11] Mr Biddle’s evidence is that Mr August had been standing quietly by himself throughout the early hours of Sunday morning. At around 8.30 am, Mr Biddle saw Mr Keil move and stand next to Mr August. Mr Keil stood next to Mr August for about 10 to 20 seconds before he knocked Mr August down with a hard punch to his head. According to Mr Biddle, the punch was completely unprovoked. Mr Keil watched as Mr August struggled to stand up. While Mr August was struggling, Mr Edmonds and Mr Pritchard began kicking Mr August’s head and body for a prolonged period. These were hard kicks and no fewer than twenty were to the head. After the attack, Mr August was taken outside.

[12] Mr Biddle says that he was the designated “sober driver” and had drunk only about four bottles of beer in the course of the night. He had, however, also smoked some marijuana over the course of the evening. Mr Biddle’s evidence was that the lighting was quite good by the bar and the toilets, but that there was low lighting over the pool-table and that there was no direct light over the area where the attack took place. However, overall, he described the lighting as “quite good” and “quite bright”, such that he was still quite capable of seeing the recognising those people who were in the room. Mr Biddle observed that this was aided by the fact that there was “daytime” light, as the attack occurred at approximately 8.30 am.

[11] Mr Biddle said he had known Mr Edmonds because they had attended the same gym in the 1980s. He said he had had frequent contact with Mr Edmonds at that time. He also knew two of Mr Edmonds’ sisters and Mr Edmonds’ brother. He said he used to see Mr Edmonds from time to time and “catch up”. He had last seen Mr Edmonds at the Mongrel Mob pad about two months before the attack on the victim.
[12] Mrs Biddle confirmed in her evidence that Mr Biddle had introduced her to Mr Edmonds.
[13] In the pre-trial decision, the Court recorded the finding of fact by the High Court Judge that Mr Biddle had reasonably extensive contact with Mr Edmonds before the evening in question, that he spoke to him over the course of the evening and introduced him to his wife. The Court accepted those findings: it said that, before the offending, Mr Biddle’s acquaintance with Mr Edmonds was rekindled in a social setting.
[14] The Court ruled the identification evidence admissible. It determined that there was a good reason for not holding a formal procedure, because the identification of the accused took place only a day after the offence had been recorded and there was no opportunity for Mr Biddle’s evidence to become tainted by anything he had been told by police.[3] The Court also considered that s 45(4) did not provide an exhaustive list of “good reasons” for not holding a formal procedure. The Court determined that it would be a good reason not to conduct a formal identification procedure where the witness recognised an accused person, except where such procedure would serve a useful purpose such as where there was only a slight acquaintance or where the accused denied being the person the witness claimed to know.[4] The Court also upheld the finding made by the High Court Judge that the Crown had proved beyond reasonable doubt that the circumstances in which Mr Biddle’s identification was made had produced a reliable identification for the purposes of s 45(2).
[15] Counsel for Mr Edmonds, Mr Forster, asked us to revisit the rulings made in the pre-trial appeal. In particular he sought to challenge the finding that the fact that the identifying witness recognised the accused person may be a good reason for not conducting a formal identification procedure, in addition to the reasons specified in s 45(4). Similarly he argued that there was no other good reason and that the circumstances in which the identification was made were not such that the Court could find that a reliable identification had resulted.
[16] Mr Forster accepted that the evidence at trial had emerged as had been anticipated by the panel dealing with the pre-trial appeal, so there were no changed circumstances justifying a revisiting of the issues determined in the pre-trial appeal. Instead, he argued that there has been some academic criticism of the creation of an additional category of circumstances providing good reason for a formal procedure not to be undertaken, in addition to those specified in s 45(4).[5] We do not see that criticism as providing a basis for us to revisit the outcome of the pre-trial appeal. The approach adopted in the pre-trial appeal to recognition evidence was followed in Harney v R[6] and cited as a statement of the law in Tararo v R.[7] In the latter case, the Court accepted that the list of “good reasons” in s 45(4) was not necessarily closed, but added the following caution:[8]

While this Court has held that the s 45(4) list is not necessarily closed, the Court should be cautious about extending it, especially where s 45(2) allows an alternative method of rendering identification evidence admissible in circumstances where its reliability is assured. And if the list is to be added to, it seems to us that the extension should be for a generic situation rather than for a situation described by the facts of a particular case.

[17] Since the hearing of the present appeal, the Supreme Court has given leave to Mr Harney to appeal against this Court’s decision in Harney v R.[9] That appeal will provide an opportunity for the Supreme Court to address the key question that Mr Forster sought to raise in this appeal, namely whether the fact that a witness recognised the accused person is an additional good reason for not conducting a formal identification procedure.
[18] We are satisfied that there is no good reason to revisit the Court’s decision in Edmonds about recognition evidence. The other findings made pre-trial were orthodox applications of the law to the facts, and there is no point of principle which would justify the Court revisiting an earlier decision.
[19] We therefore uphold the finding made in the pre-trial appeal that the identification evidence of Mr Biddle was admissible. This ground of appeal fails.

Re-examination

[20] Mr Forster abandoned this ground of appeal and we say no more about it.

Misdirections

[21] Mr Forster argued that there were two misdirections by the Judge.
[22] The first was the Judge’s direction on the burden of proof. The Judge made it clear that the jury had to be “sure” before finding that a matter had been proved beyond reasonable doubt. He did not, however, give a direction along the lines outlined by this Court in R v Wanhalla.[10] This Court recently addressed a similar issue in Peato v R.[11] The Court found that the failure to give the Wanhalla direction did not of itself lead to a miscarriage, but encouraged the use of that direction in order to promote consistency (this plea had also been made in Wanhalla itself[12]). The Court in Peato said:[13]

While the Wanhalla formula is not mandatory, we encourage its use to promote consistency (Wanhalla at [52]). If Judges develop their own formulations, there is a real risk that those formulations will be found defective on appeal. All the research set out in the Wanhalla opinions shows clearly that juries have real difficulties with many of the traditional explanations of the burden and standard of proof. The Wanhalla formula represents this Court’s best attempt, after studying overseas’ research and overseas’ models, to provide assistance to juries in this difficult area.

[23] We endorse the comments made there. We once again encourage the use of the Wanhalla direction to promote consistency. We see it as unfortunate that that did not occur in this case. But we do not see it as creating a miscarriage of justice.
[24] The second alleged misdirection was the failure of the Judge to use the word “serious” when referring to the possibility of a miscarriage of justice in his identification warning. This meant that the warning did not strictly comply with the terms of s 126, where a reference to the need to warn the jury about the risk of a substantial miscarriage of justice is stated. We do not consider there is any substance to this point of appeal. While the Judge ought to have used the word “serious”, the direction overall made it very clear to the jury that they needed to approach the identification evidence with great caution, and that this was to avoid the risk of a miscarriage. He then effectively defined what he meant by a miscarriage by adding: “Accused have been wrongly convicted on mistaken identification evidence”. That made it clear how serious the miscarriage could be if a mistaken identification was accepted as correct. We do not see this point as a matter of substance.

Result

[25] We dismiss Mr Edmonds’ appeal against conviction.

Mr Pritchard’s sentence appeal

High Court sentence

[26] The Judge noted that Mr Pritchard had 20 convictions for some kind of violent offending at various times. He had been sentenced to imprisonment on 10 occasions, but the longest prison sentence he had had imposed on him was one of 18 months imprisonment.
[27] The Judge noted that the pre-sentence report writer assessed Mr Pritchard’s risk of re-offending as high. Mr Pritchard did not co-operate with this report. Nor did he co-operate with the writer of a psychiatric assessment by Dr Barry-Walsh. This inhibited Dr Barry-Walsh’s ability to express a view about the likelihood that Mr Pritchard would commit qualifying offences in the future. Dr Barry-Walsh said all he could say was that it was unlikely that Mr Pritchard suffered a psychiatric illness which might promote a risk of further offending. However he noted that Mr Pritchard had a lengthy history of past offending but that he (Mr Pritchard) asserted that he was innocent of the present offence and claimed to have made substantial positive changes to his life, including establishing a business and working with youths at risk of offending.
[28] The Judge also considered a psychological assessment by Ms Waddington, with whom Mr Pritchard did co-operate. Her conclusion was that Mr Pritchard was a recidivist violent offender. Having used a number of risk measuring tools, she considered he had a high risk of violent re-offending that could include wounding with intent to cause grievous bodily harm. She considered that this high risk of offending applied both in the community and in prison. She recommended that he be referred to the violence prevention unit at Rimutaka Prison for treatment that would target his violent offending.
[29] The Judge treated with some scepticism submissions by Mr Pritchard’s counsel that he intended to improve his circumstances. He pointed out that Mr Pritchard’s violent behaviour appeared to have become worse, rather than improving. The seriousness of the present offending, which is the most serious for which Mr Pritchard has been convicted, illustrated this.
[30] The Judge then turned to the question of whether preventive detention or a finite sentence was the appropriate sentencing response. In that regard he noted that:

(a) Mr Edmonds had committed a qualifying offence and he was over 18 years of age (this satisfied s 87(2)(a) and (b) of the Sentencing Act);

(b) the appropriate finite sentence would be imprisonment for nine years (an eight year starting point, with a 12 month uplift for past convictions);

(c) Mr Pritchard had a pattern of serious violent offending, though not at the highest level of seriousness. This had caused considerable harm to the community including the victim of the present offending;

(d) there was ample evidence that Mr Pritchard would continue to offend with serious violent offending, based on the pre-sentence report, the psychological assessment and the psychiatric assessment. The Judge considered there was a high probability of Mr Pritchard committing a serious violent offence within two years of his release;

(e) Mr Pritchard’s continued membership of the Mongrel Mob would inevitably lead to a continuation of his violent lifestyle and there was little chance of change.

[31] The Judge concluded that Mr Pritchard was likely upon release from a finite sentence to commit another serious violent offence and that a finite sentence would not adequately protect the public against the risk. He thus imposed a sentence of preventive detention with a minimum period of imprisonment of five years.

Submissions for Mr Pritchard

[32] Mr Snell argued that:

(a) the Judge could not have been satisfied that Mr Pritchard would commit a further qualifying offence;

(b) the Judge set the threshold for imposition of preventive detention too low, referring to “serious violent offence” rather than “qualifying offence” (the latter being the term used (and defined) in s 87(2)(c) of the Sentencing Act);

(d) a lengthy finite sentence ought therefore have been imposed.

Our approach

[33] We consider that the appeal stands or falls on the argument that preventive detention was not the appropriate sentencing response, given Mr Pritchard’s background and record of offending. We do not see any benefit in a detailed comparison of Mr Pritchard’s situation with that of Mr Edmonds, in respect of whom it was common ground that preventive detention was an inevitable sentence given his appalling record of very serious offending. Nor do we see any point in focusing on the Judge’s terminology (his use of “serious violent offence” rather than the statutory term “qualifying offence”).
[34] We approach the appeal by considering the factors under s 87(4) of the Sentencing Act that must be taken into account when considering whether to impose a sentence of preventive detention.
[35] The first of these is the pattern of serious offending disclosed by the offender’s history. In the present case, as noted earlier, Mr Pritchard has a long list of prior offences. But it is striking that the present offence is the most serious. The longest prison term to which Mr Pritchard has been sentenced in the past is 18 months imprisonment (on two occasions, both involving assaults with intent to injure). Thus Mr Pritchard’s record discloses a bad record of offending, but his record for serious offending is not at the highest level.
[36] The second factor in s 87(4) is the seriousness of the harm to the community caused by the offending. We agree with Ronald Young J that violent offending causes harm to the community and in the present case the very extensive injuries suffered by the victim, necessitating his removal to Wellington hospital by helicopter for treatment, illustrates this.
[37] The third factor is information indicating a tendency to commit serious offences in the future. The psychological report by Ms Waddington concluded that there was a real risk of serious violent offending in future by Mr Pritchard. Both the pre-sentence report and Mr Barry-Walsh’s report offered little guidance in this regard because Mr Pritchard refused to co-operate in their preparation. We were told he now regretted this, but he cannot complain that his own failure to co-operate has deprived the Court of information that may have assisted his case.
[38] The next factor is the absence of, or failure of, efforts by the offender to address the cause or causes of his offending. This is a problematic aspect of the present case because Mr Pritchard has not had the opportunity to undertake any courses in prison when serving sentences for earlier offending. That is because all of the sentences have been “short sentences”, namely sentences of less than two years. Prisoners are not provided the opportunity to participate in programmes when serving such sentences. Mr Snell said this was an important factor because it meant that Mr Pritchard was facing preventive detention in circumstances where he has never had the opportunity to pursue programmes of this kind. He argued that it is often a feature of preventive detention sentencing that the offender has served one or more long sentences and has either refused to participate in programmes or has participated but without success.
[39] This leads to the final factor, namely the principle that a lengthy determinate sentence is preferable if this provides adequate protection for society. The essence of Mr Snell’s argument is that the imposition of preventive detention in this case involved an assumption that programmes assisting Mr Pritchard to reform himself would fail either because Mr Pritchard would not co-operate or because he would be unable to complete them. He emphasised the fact that Ms Waddington had expressed the view that it was imperative that Mr Pritchard undertook treatment that addressed his offending, and recommended that he be referred to the violence prevention unit at Rimutaka prison for treatment that would specifically target his violent offending. Mr Snell argued that Mr Pritchard should have the opportunity to participate in rehabilitative programmes before an assessment is made that preventive detention is necessary in order to protect the community.
[40] We accept the submission that based on Mr Pritchard’s prior record of offending and the relatively short prison terms to which he has been subject, the Judge was wrong to conclude that the principle that a lengthy determinative sentence is preferable was displaced in this case. In our view the community’s interest is better served if Mr Pritchard is sentenced to a lengthy determinate sentence and provided with the opportunity to rehabilitate. We acknowledge that his failure to co-operate with the report writers in this case is a matter of concern, but we believe that the obvious benefit to Mr Pritchard of participating in, and completing, rehabilitative programmes in prison will provide an incentive for him to do so.
[41] We therefore conclude that the Judge was wrong not to impose a lengthy determinate sentence in this case. No issue is taken with the Judge’s assessment that, if that option were preferred, the appropriate sentence was a sentence of imprisonment for nine years. Mr Snell accepted that a minimum period of imprisonment will need to be imposed, and suggested that a period of five years would be sufficient. In our view a period of six years would be more appropriate in the circumstances of this case. That will ensure that Mr Pritchard spends a lengthy period in prison but is given the opportunity to make himself eligible for, and then to participate in and complete rehabilitative programmes. It will be up to him to demonstrate to the Parole Board that his risk of reoffending has reduced to a sufficient level to permit his release into the community.

Result

[42] We allow Mr Pritchard’s appeal, quash the sentence of preventive detention imposed in the High Court and replace it with a sentence of nine years’ imprisonment with a minimum period of imprisonment of six years.

Solicitors:
Crown Law Office, Wellington for Respondent

[1] R v Pritchard HC Wellington CRI-2008-020-2387, 6 November 2009;
R v Edmonds HC Wellington CRI-2008-020-2387, 6 November 2009.
[2] R v Edmonds [2009] NZCA 303, [2010] 1 NZLR 762.
[3] At [48], [49] and [52].
[4] At [57], [65], [68] and [73].

[5] For example, Richard Mahoney and Others The Evidence Act 2006: Act and Analysis (Brookers, Wellington, 2007) at [EV45.07(4)]; Scott Optican and Peter Sankoff: Evidence Act Revisited for Criminal Lawyers (New Zealand Law Society, Wellington, 2010) at 122.
[6] Harney v R [2010] NZCA 264.
[7] Tararo v R [2010] NZCA 287.
[8] At [82].
[9] Harney v Police [2010] NZSC 100.
[10] R v Wanhalla [2007] 2 NZLR 573 at [49].
[11] Peato v R [2009] NZCA 333, [2010] 1 NZLR 788.
[12] At [52].
[13] At [55].

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