R V NICHOLAS BRIAN WYATT HC HAM CRI 2007-019-9805 [2009] NZHC 694 (10 June 2009)

IN THE HIGH COURT OF NEW ZEALAND
HAMILTON REGISTRY
                                                                 CRI 2007-019-9805



                                      THE QUEEN



                                          v



                           NICHOLAS
BRIAN WYATT



Hearing:       10 June 2009

Counsel:       A Beveridge for Crown
               B J Hesketh for Accused

Sentence:
     10 June 2009


                       SENTENCE OF RONALD YOUNG J




Introduction


[1]    Mr Wyatt you are now for sentence
having pleaded guilty to six counts in an
indictment, all arising from your offending on 8 November 2007. The charges I
sentence
you on are:


       a)      threatening to kill;


       b)      kidnapping;


       c)      aggravated robbery;



R V NICHOLAS
BRIAN WYATT HC HAM CRI 2007-019-9805 10 June 2009
         d)     using a document for pecuniary advantage;


         e)     unlawfully
taking a motor vehicle; and


         f)     theft of equipment from the vehicle along with a cell-phone.


[2]      At about 2.30
a.m. on 8 November 2007 the victim was looking in the boot of
his car trying to adjust his speakers. You and another man were walking
along the
same street looking for a car to steal. The two of you approached the victim. You
put a knife to his throat and ordered
him to get into the vehicle. Your co-accused
stood to the side also holding a knife. Your knife was approximately 15 cm in
length.
You forced the victim into the driver's seat of the vehicle at knifepoint, held
a knife to his throat from the back seat and directed
him to drive towards Cambridge.
You constantly threatened to kill him if he did not comply with your wishes.


[3]      In a secluded
area just off State highway 1 you ordered him to stop. You
took his EFTPOS card and demanded the number for it. You threatened to
kill him
if he gave you the wrong number. You then forced him into the boot of the car,
again threatening to kill him if he made
any noise.


[4]      You drove off to Cambridge and extracted $130 from his account and then
drove towards Hamilton driving erratically,
doing "burnouts" and travelling at high
speed.


[5]      You then headed towards Raglan and at the top of the Raglan/Hamilton road
you pulled into a parking area. You took the victim out of the boot and led him up a
walkway. He thought you were going to kill him
and he pleaded for his life. About
200 metres up the walkway you bound his hands and feet and pushed him into the
bush.


[6]   
  You then drove off towards Hamilton. At the Hamilton address you removed
a number of items from the car worth approximately $1,000.
[7]    In the meantime the victim who had understandably feared for his life stayed
in the bush for some hours. Eventually he came
out, flagged down a car and was
taken to the Raglan Police Station.


[8]    You did not plead guilty at the first opportunity. You
delayed your plea until
after a committal for trial. You then began disputing some of the facts, which gave
rise to the offending.
Your plea was very much at the last moment. Finally, you
accepted the summary of facts, which I have identified today and on which
I
sentence you.


[9]    The Crown submits that because of your past this Court should consider a
sentence of preventive detention.
For a young man of now twenty-three years of
age, you do have a very serious list of previous convictions.              Your recorded
offending began in the Youth Court in 2000. You were convicted in 2000 of serious
sexual offending relating to a young boy in June
1999 and you were convicted
shortly afterwards of attempts to rob and extortion. A number of further convictions
followed in the
Youth Court including burglaries and dishonesty offending.


[10]   By early 2001 you had graduated to the District Court. You were
convicted
of further burglaries and unlawfully taking cars and then in June 2001 you were
sentenced to four years' imprisonment for
aggravated robbery, burglary and
kidnapping. I will deal with the facts of that case later in my remarks.


[11]   You must have offended shortly after your release
in 2003 and you were
sentenced again to imprisonment for burglary and dishonesty.          You committed
further sexual offending
in 2006, with a young thirteen year old girl and you were
sentenced to eighteen months' imprisonment.


[12]   An extended supervision
order was made upon your release, which in 2007
you breached and were sentenced to further imprisonment. This offending occurred
shortly after your release from prison.       I suggest now to you most strongly,
Mr Wyatt, that you keep your comments to yourself
while I sentence you unless you
wish to convince me of something other than I have in mind.
[13]   An extended supervision order
was made upon your release, which in 2007
you breached and you were sentenced to further imprisonment. This offending, as I
have
said, occurred while you were subject to that extended supervision order.


[14]   The pre-sentence report records you have a long
term drug and alcohol
problem and a serious problem with violence and obviously sexual offending. You
told the probation officer
that since these events and since you had become a father
there is a positive change and you are motivated to change. But the probation
officer
expressed doubt about your motivation.


[15]   There are two reports from the Regional Psychiatric Service and the
Psychological
Service. Understandably they highlight the difficulty of predicting
serious sexual or serious violent offending in the future.  
     But the psychiatrist
identifies four matters, which he suggested placed you in the high risk of repeat
violent offending.


[16]   They include the fact that you often blame others for your offending, you
minimise the effect that your offending has, you
deny responsibility by putting the
blame on lack of appropriate courses and you have poor impulse control and anger
problems. The
tests undertaken by the psychologist illustrate that you are at high
risk of re-offending both violent and sexual.


[17]   I have
had the opportunity of reading the two victim impact reports and I
want to acknowledge today the presence of the victims' mother.
The victim impact
report describes firstly, the economic loss that the victim suffered, including the
damage to the car. His insurance
did not cover anything like the loss that he has had
to suffer and the reality is you have no prospect of paying him back. Moreover,
he
describes the terror he felt. He, perfectly understandably, thought that he was going
to be killed by you. He was at University
at the time. Again, understandably, he
was unable to sit his final exams and left University for a period to try and come to
terms
with what happened. He had to delay his degree. I have also had the chance
of reading the reports that underline the effect that
your actions have had, not just on
him, but on his wider family.
[18]   The Crown say that the aggravating features here of the
use of knives, the
pre-meditation, multiple attackers, the lengthy time of the kidnapping and the severe
threats together with your
history of serious offending, of serious harm to victims
and the high risk of re-offending suggest that preventive detention should
be
imposed. They say you are not sufficiently motivated to address the problems
behind your offending and that you blame others.


[19]   I take into account what Mr Hesketh has said, both in his written submissions
and before me today.      He says I should
not impose a sentence of preventive
detention. He stresses the sentence imposed on your co-offender and your plea of
guilty. He says
that some of the serious offending was when you were very young
and that you acknowledge now, and are motivated to, address the problems
that you
have. He says that previous treatment programmes did not adequately treat the
problem you have and given your age and lack
of focused treatment a sentence of
preventive detention would be inappropriate.          He accepts that a sentence
significantly greater than your co-offender is appropriate but submits
that a finite
sentence should be imposed.


[20]   As far as your co-accused is concerned I acknowledge that he pleaded guilty
early
on. The Judge took a starting sentence of seven years' imprisonment but took
into account the co-offender was only seventeen years
of year, four years younger
than you and had no previous criminal convictions. That resulted in a substantial
reduction in the start
sentence down to three years and ten months' imprisonment.


[21]   Should I impose preventive detention? I accept that you have
a qualifying
offence and you are over eighteen years of age. I have to consider whether it is
likely upon release, taking into account
any extended supervision order, that you will
commit a qualifying offence of a sexual or violent nature upon the expiry of that
finite
sentence.


[22]   For this purpose it is appropriate for me to consider broadly what finite
sentence I would impose. I conclude
that it would be in the region of somewhat
more than seven years' imprisonment.
[23]   In considering future risk I take into account
that there is some pattern of
serious offending. You had committed serious offending in the past. I have already
mentioned the 2001
serious aggravated robbery involving a knife. On that occasion
you entered a house and threatened the occupants with a knife. You
held some
woman prisoner while others obtained the keys to a car. You threatened to kill them
if they reported the home invasion.
I note you were sixteen years of age then. This
of course was extremely serious offending.


[24]   I also take into account you
have previous convictions for sexual offending,
most recently you were sentenced to eighteen months' imprisonment. While I do not
undervalue the seriousness of that sexual offending, the sentences illustrate that they
were not at the highest level of seriousness.


[25]   As to community harm there is no doubt, whatsoever, of the very serious
harm to the victim's of your offending and to the
community.


[26]   As to your tendency to commit future offences, I have mentioned already the
two reports. I accept the difficulty
of predicting future offending behaviour but I
accept that without effective intervention there is a high risk of serious offending,
both sexual and violent.


[27]   As to your efforts to address the causes of your offending, this has been
uneven. I accept that
you are interested in finding ways to stop offending but as the
reports reveal too often this is on your terms with a denial of responsibility.
You
need to fully accept responsibility for what you have done and to accept expert
guidance on how to address your problems. I accept,
however, that you do have
some interest in addressing the factors behind your offending but demanding that
you be treated in a particular
way is unlikely to help.


[28]   Is a lengthy determinate sentence appropriate for community protection
together with an extended
supervision order? As I have said a final sentence of
slightly in excess of seven years is appropriate together with the possibility
of an
extended supervision order of up to ten years are the factors I must take into account.
Of course, as the Crown points out,
you have already breached an extended
supervision order.


[29]   My assessment is that this case is in fine balance. In the end
I have reached
the conclusion that there remains some realistic hope of addressing your offending.
You are still a young man and
were very young when some of the serious offending
was committed. I am conscious given your youth that some hope can reasonably be
held open that a lengthy determinate sentence, together with extended supervision is
preferable for public protection.


[30]   But
I want to say this to you, Mr Wyatt, whatever the rights and wrongs of
the previous rehabilitation you will now have a chance to
participate in what experts
think are programmes that are suitable for you. They will not be on your terms.
They will not be in a prison that you think suits
you. If you do not accept that then
in my assessment it is virtually inevitable you will re-offend and if you do so next
time in
a serious sexual or violent way a sentence of preventive detention is
inevitable. It will be a long time before you will be able
to convince anyone to
release you from prison.


[31]   As to the sentence I will impose. This was very serious offending of its
type.
The experience for the victim was terrifying. The fact that it was planned at least as
far as car theft is concerned, the use
of the knives, the presence of another, the
lengthy kidnapping , the constant threats to kill and the immediate ability to carry
out
were all serious matters.    Abandoning the victim, the theft and the use of his
EFTPOS card all make it worse. They all justify
a starting point of eight years'
imprisonment. I add to that a significant uplift of twelve months' imprisonment for
your past offending
together with the fact that you were subject to an extended
supervision order when you committed this offending to nine years' imprisonment.


[32]   Your plea of guilty came late. Twelve months after you were originally
charged. I take into account that plea of guilty
but only a modest deduction of 20%
approximately is appropriate. That reduces the start sentence of nine years down to
seven years
and three months' imprisonment.
[33]    I am satisfied that the statutory criteria for a minimum period of
imprisonment are met
and that near to the maximum is justified.          I impose a
minimum period of four years' imprisonment.


[34]    The sentences
are made up in this way:


        a)      on the kidnapping, seven years and three months' imprisonment;


        b)      on the
aggravated robbery, four years' imprisonment;


        c)      on the threatening to kill, three years' imprisonment;


       
d)      on the using of document, unlawfully taking of motor vehicle and
                theft, six months.


        All to be concurrent.




                                                   _______________________________
                                         
                           Ronald Young J


Solicitors:
A Beveridge, Almao Douch, PO Box 19 173, Hamilton
B J Hesketh, PO Box 19
328, Hamilton, email: [e-mail]