R V MARTIN HC PMN CRI-2007-054-2425 [2009] NZHC 906 (29 July 2009)

IN THE HIGH COURT OF NEW ZEALAND
PALMERSTON NORTH REGISTRY
                                                                 CRI-2007-054-2425



                                     THE QUEEN



                                            v



                      CLEVELAND
NGAWHAKA MARTIN



Charges:       1.       Causing grievous bodily harm with intent to cause grievous
                        bodily
harm
               2.       Possession of an offence weapon

Plea:          Not Guilty

Counsel:       C J Shannon for Crown
  
            G Mason for Prisoner

Sentence:      29 July 2009

               Imprisonment
               1.    Seven years (cumulative
with sentence currently serving)
               2.    One year (concurrent with above)
               Minimum non-parole period of
three and a half years.




                    SENTENCING NOTES OF MACKENZIE J



[1]     Cleveland Ngawhaka Martin you appear for
sentence on one count of causing
grievous bodily harm with that intent and one count of possession of an offensive
weapon. You were
found guilty in the District Court and referred to this Court for
sentence.


R V MARTIN HC PMN CRI-2007-054-2425 29 July 2009

[2]    The facts are that on 10 March 2007 the complainant and a number of family
and friends were travelling in three vehicles between
two homes in Palmerston North
when they stopped about 50 metres from your home. They were then approached by
a group from your address
which included you. The group was carrying various
weapons including steel poles, baseball bats and metal bars. They group confronted
and then attacked the complainant's group without provocation. During the scuffle
the complainant was assaulted by an unknown male.
The complainant's girlfriend
then attempted to lead him away across the road. You ran up behind him and hit him
in the back of the
head with a metal pipe. He was knocked unconscious and left with
a 5 cm gash that required stitches, and a split left ear. His ear
was damaged in a way
that required specialist attention.     After the attack you ran away from the
complainant and rejoined your
associates. The police were then called and when
they arrived they found you still holding the metal pipe. You threw it down and
fled
the scene.


[3]    As to your personal circumstances, you were aged 18 at the time of the
offending and are now aged 20. You
are of Mäori and Singaporean descent, and
reside with your family. Your family background is one of considerable domestic
violence.
You attended college for one year before being expelled. You have not
achieved full time employment. However, you are described as
having good basic
literacy skills and did obtain employment for a time before that position was
terminated due to a previous conviction.
      You report that you are in a steady
relationship and that your partner is willing to wait for you to come out of prison.


[4]    You say of this offending that you were simply trying to "get your brother
out". You say your brother was "getting his head
stomped in". You deny there is a
pattern of violence in your life. That is clearly not so. There is a pattern of violence
in your
life.   Very clearly, both in your own circumstances and in the family
environment.


[5]    You say that you do not use drugs. You
say that you were not consuming
alcohol on the day of the offence, but do consume alcohol about once a week. You
have previously
attended alcohol counselling but have not attended anger
management counselling.

[6]    You have been notified that a sentence
of preventive detention will be
considered, and the necessary reports have been obtained. However, you declined to
be interviewed
by either of the professionals engaged to prepare those reports though
I do have a further report from a psychologist instructed
by you.          I begin by
considering whether a sentence of preventive detention is appropriate. It may be
imposed to protect the
community from those who pose a significant and ongoing
risk to safety. There are a number of matters that I must take into account.


[7]    The first is any pattern of
serious offending disclosed by your history. For
one so young, the pattern is disturbing. There have been three separate serious
incidents of violent offending. In 2005, when you were 16 years of age, you were
involved in an incident which led to your conviction
on two serious charges,
aggravated robbery and kidnapping, for which you were sentenced to two years
imprisonment, despite your age.
The sentencing Judge described the robbery of a
dairy as planned and not spontaneous or opportunist. You were armed with a
machete.
The kidnapping involved a short detention of a six year old child of the
dairy owner.


[8]    Within two weeks of your release from
that sentence in June 2006, you were
involved with two of your brothers in an attack on a person who had assaulted your
brother.
In 2008, you were convicted of wounding with intent to cause grievous
bodily harm. The sentencing Judge assessed the offending as
falling at the lower end
of band 3 of Taueki. You were sentenced to seven years imprisonment with a
minimum of three and a half years.


[9]    The present offending is the third incident of violent offending on your part.
It occurred about nine months after the second
incident, and before you had been
sentenced for that.


[10]   The next matter I must consider is the seriousness of the harm to
the
community caused by the offending. The gravity of this offending is high, since it
involves grievous bodily harm inflicted with
a weapon to the head. I will come back
to deal with that aspect in more detail shortly.

[11]   The third matter is information
indicating a tendency to commit serious
offences in future.


[12]   Your pre-sentence report rates your risk of re-offending as
moderate, but the
writer warns that your level of insight into your offending is low so that your real
risk may be higher.


[13]
  The psychiatrist reports that you refused to be interviewed by him but does
observe that your propensity for violence was expressed
to be a concern in earlier
assessments.


[14]   Ms Smith the Registered Clinical Psychologist from the Department of
Corrections
also reports that you refused to participate in an interview with her on
16 February 2009. She has summarised previous reports held
on file as well as her
impressions of you. She notes that you have a neck tattoo identifying you as a
member of the Evil Souls gang
which is said to be a new gang with only a few
members suspected to be led by you. Her report concludes that you were adversely
shaped
by early experiences of domestic violence, and quickly began to engage in
violence with your school peers. You received a sense of
belonging and identity by
associating with criminal associates including gang members such as your older
brother. The report writer
notes that you have appeared to apply yourself in response
to earlier interventions, but these have not favourably affected your
offending. The
writer recommends that you attend a Special Treatment Unit Rehabilitation
Programme.


[15]   The RoC*Rol risk measure
yielded a result of high to moderate in which
there has been some change of scale and ranking in that. The particular negative
factors
were your age of first violence being only 16 and your offending shortly after
previous punishments, and your family background of
violence.


[16]   In addition you are assessed as having a number of dynamic risk factors such
as your violent lifestyle, criminal
attitudes, lack of employment history, criminal
peers, aggression, violence within prison, use of weapons, lack of insight into
violence,
substance abuse (though I note that you deny any current issues), and the

lack of positive community support, the likelihood of
you being released back into a
high risk situation, impulsivity and cognitive distortions of minimising and justifying
violence.


[17]     The report writer concludes that:      there is a pattern of violence using
weapons; the harm to the community is high because of the physical damage done
with weapons;
the tests applied, combined with your poor record in prison, show a
high risk of re-offending; that you have been given a number
of treatments before
but you have re-offended.         The one time that you were referred for anger
management you did not attend.
There are no indications that a lengthy determinate
sentence could reduce the risk factor.


[18]     An assessment by Dr Eggleston
was arranged by your counsel, and a report
from him is available, with a further affidavit from Ms Smith commenting on that
report.
I have considered all of that material and found it helpful. The Anger
Discord Scale showed an elevated score on the Positive Impression
Index. The LS-
CMI test for re-offending was applied with a result of an overall risk rating in the
high range. Key components of
that risk were your companions, your criminal
history, and a pro-violence attitude. The PCL-SV was in the moderate range and
below
the cut off point for psychopathy. It indicated that you are at moderate risk of
serious re-offending and you possess some of the
traits that reflect the construct of
criminal psychopathy.


[19]     Dr Eggleston says that the current overall risk rating for
future offending with
violence if released is high, and offending is likely to be in the context of a group
brawl.


[20]     I conclude
that your risk of re-offending must be assessed as high.


[21]     You have undergone some treatment in prison.              You
participated in
psychological assessment and attended the basic FOCUS programme. Those are
relevant to the next matter which I must
assess, which is your response to treatment
or efforts directed towards addressing the causes of your offending.

[22]   Ms Smith
expresses the opinion that you need to complete intensive group
based treatment, but considers that you are not motivated to alter
your behaviour or
fully participate in such a programme at this stage. Dr Eggleston considers that you
should be referred to the
Special Treatment Unit Rehabilitation Programme. He
considers that there are current barriers to participation, but that these are
not
insurmountable, because of your young age in particular.


[23]   The significant difference between the psychologists, and the
matter that I
must reach a view on, is as to your willingness to engage in and benefit from
treatment.


[24]   I must also consider
the principle that a lengthy determinate sentence is
preferable if this provides adequate protection for society.


[25]   The assessment
of whether preventive detention is required, or a lengthy
finite sentence would provide adequate protection, is a very difficult
one in your
case. I consider that the issue which must ultimately determine that is an assessment
of whether further treatment might
be successful.


[26]   The negative factors are:        your re-offending soon after release after
undergoing the FOCUS programme;
            your lack of cooperation and lack of
motivation to address your offending; your behaviour in custody and the lack of
positive support in your environment outside prison. Against that must be weighed
your youth, the fact that intervention to date
has been limited, and that you have not
undergone, prior to this, a lengthy determinate sentence.


[27]   I can have little optimism
of an early change in your motivation to address
your offending. You have shown little remorse or empathy for victims and have not
evidenced a desire to address your offending. Nevertheless, I do not think that it is
necessary, for the protection of the community,
to make the assumption that a
change is unlikely. You are currently undergoing, and will undergo, a lengthy
sentence where there
will be opportunities for treatment.        There may be some
prospects that, at your age, a change in motivation may be possible.
I also take
account of the fact that your record of violent offending, though serious, is limited to

three incidents. On balance, I have reached the conclusion that preventive
detention
is not required. You have escaped that by a very narrow margin. You must clearly
understand that should there be any further
offending on your part such a sentence
would be highly likely. You could not expect again a benign assessment of the
possibility
of a change in attitude.


[28]   That means that I must address the finite sentence which I should impose.
Counsel for the Crown
submits that this offending falls within band 2 of Taueki,
higher in the band in the six to eight year range. Your counsel submits
that the
offending is less serious than that and that a four to five years starting point would be
appropriate. To some degree that
difference is reflected by a dispute as to the
seriousness of the offending. Your counsel submits that it is at the bottom end of
grievous bodily harm and that a lesser charge may have been appropriate. I must
sentence on the count for which you have been found
guilty which does involve the
infliction of grievous bodily harm with intent to cause such harm. The precise facts
of a fracas such
as this can always be difficult to pin down precisely. I am in a less
favoured position than the trial Judge would have been to assess
the seriousness of
the offending. My assessment is that an appropriate starting point is within the band
identified by counsel for
the Crown but at the lower end of that band. I adopt a
starting point of six years. An uplift from that to reflect aggravating personal
factors
is required.   While you have escaped preventive detention for your previous
offending, the nature and seriousness of that
is such that it must be reflected in a
specific uplift to the starting point and I would add an uplift of one year to reflect
that
aspect. The criminality involved in the charge of possession of an offensive
weapon is reflected in that starting point, so that
a concurrent sentence for that is
appropriate and no uplift for that offending is required. There are no mitigating
factors which
would lead to a reduction.


[29]   The sentence which I now impose must be served cumulatively on the
sentence which you are currently
serving. The incidents are quite separate, and they
are separated in time. In the circumstances I do not consider that any downward
adjustment to the present sentence is required to reflect the totality principle.

[30]   I must also consider whether a minimum
non-parole period is required. That
may be imposed if the ordinary minimum period would be insufficient for holding
you accountable
for harm, denouncing your conduct, deterring you or others, or
protecting the community from you. Protection of the community must
be the
paramount consideration. While I have found that that does not require a sentence of
preventive detention, I have done so
by a narrow margin. I consider that a minimum
non-parole period is required. Viewed in isolation, a minimum non-parole period of
about two thirds would be appropriate. But I must take into account that you are
already serving a minimum of three and a half years
on your earlier sentence. I have
held that the totality principle does not require an adjustment to the end sentence to
reflect that
earlier sentence. But I consider that a total minimum non-parole period
of about eight years, which would result under s 84 of the
Parole Act 2002, is too
high. Accordingly, I intend to fix the minimum non-parole period on this sentence at
one half.


[31]   You
are accordingly sentenced as follows:


       a)     On the count of grievous bodily harm with intent to cause grievous
       
      bodily harm you are sentenced to seven years. That sentence is to be
              served cumulatively on the sentence which
you are presently serving.


       b)     On the count of possession of an offensive weapon you are sentenced
              to one
year. That is to be served concurrently with the lead sentence.


[32]   You will serve a minimum non-parole period of three and a half years.




                             
                                  "A D MacKenzie J"