R v Toetoe HC Napier CRI-2010-041-001646 [2011] NZHC 823 (4 August 2011)

Last Updated: 5 August 2011

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

_{CRI-2010-041-001646}

THE QUEEN

v

STANLEY RANGI TOETOE

Counsel: S B Manning for Crown

A Malik for Prisoner

Judgment: 4 August 2011

_{NOTES ON SENTENCE OF GENDALL J}

[1] Stanley Rangi Toetoe, you appear for sentence on one charge of aggravated robbery, one charge of aggravated wounding, three charges of aggravated burglary, two charges of burglary and one charge of breach of parole release conditions.

Preliminary

[2] You were originally sentenced on 22 November 2010 by Brewer J to the following terms:

Aggravating wounding – preventive detention with a minimum non-

_{parole period of six years;}

Aggravated robbery – six years’ imprisonment;

_{Aggravated burglary – 18 months’ imprisonment;}

R V TOETOE HC NAP CRI-2010-041-001646 4 August 2011

Burglary – 12 months’ imprisonment; and

_{Breach of release conditions – six months’ imprisonment.}

Those sentences were to be served concurrently.

[3] You appealed to the Court of Appeal primarily against the sentence of preventive detention. The Court of Appeal allowed the appeal and quashed the sentence of preventive detention, and in fact all sentences, on the basis that you disputed certain facts which were aggravating, and the Court of Appeal said that the High Court had to resolve the disputed facts and having done so, re-sentence you. So I turn to the background.

Background

[4] On 12 May 2010 you were released from Hawke’s Bay Prison having completed a sentence of one year two months’ imprisonment for injuring with intent to injure. You were on parole. Twelve days later, on 24 May 2010 you drove to a suburb of Napier where you stole a knife and a bicycle. You had intended to commit burglary, but having obtained the knife you proceeded to commit a robbery of a retail dairy in Vigor Brown Street, Napier. You were disguised with a hooded sweatshirt, beanie and gloves, and armed with a steak knife you confronted the female proprietor or shop assistant, took $115 from the till and started to flee. I pick up the narrative of what happened thereafter, which can now be accurately ascertained from the closed circuit television surveillance footage from inside the shop. Brewer J sentenced you on the basis that the husband of the female proprietor confronted you as you were departing. You stabbed him a number of times in the upper body and head, fleeing after he collapsed to the ground.

[5] On your appeal you contended, falsely, that you were running from the store and you fell over and were kicked and hit over the head with a metal bar by the proprietor’s husband which angered you, so you stabbed him in the shoulder in order to get him to drop the metal bar. It was because of that claim that the Court of Appeal said the sentencing court had to resolve the disputed facts before imposing

sentence. Those have been resolved because of the closed circuit television recording. It shows you taking money from the till armed with a knife, then turning and running towards the door of the shop. It depicts the male proprietor coming out from behind the counter and following you to the door. Despite your claim, he had nothing in his hand. That too is despite the assumption or fact upon which Brewer J sentenced you, namely that your victim had in his hand an item which was probably in the nature of a small baseball bat. That was favourable to you because at that point he had nothing in his hand. Nor did you flee and fall. Rather, while still inside the shop you turned, confronted the male proprietor and stabbed him in the upper body with the knife in your hand.

[6] The agreed summary of facts has been amended and it is agreed between your counsel and the Crown that it is accurate. It reads:

A few moments later the male proprietor began to follow him to the door. The proprietor had nothing in his hands.

When the defendant was about five metres from the exit, and still well within the store, he turned around to face the male proprietor. The defendant was still holding the knife. With the knife he stabbed the proprietor in the upper body, at least once.

During the melee, the defendant and the proprietor made their way to the pavement outside the store.

The female proprietor picked up a stick and handed it to her husband to protect himself before she ran back inside to call the police.

[You] grabbed the male proprietor around the shoulder area with [your] left hand and raising [your] right hand high over [your] head [you] brought down the knife stabbing the male in the head and shoulder area with powerful downward stabs.

The male proprietor collapsed to the ground trying to avoid further wounds.

So the net effect of what has transpired following your successful appeal is that the facts upon which you are to be sentenced are actually more aggravating than those upon which Brewer J imposed sentence.

[7] Your victim and you are indeed fortunate that he did not die, because you easily could have killed him and you certainly would have committed the crime of murder. I must sentence you in accordance with the direction of the Court of Appeal

and I re-sentence you. Whilst I bear in mind the comments of Brewer J, I approach the sentencing task afresh and reach my own conclusion to impose the proper sentence taking into account the agreed summary of facts and all the circumstances surrounding the offending and you as an offender.

[8] In respect of the other matters which occurred after you ran from the dairy, the facts are that you stole another bicycle and endeavoured to evade the police, escaping through fences and buildings. You entered a nearby dwelling, picked up a large knife found in the kitchen and when realising the only occupant of the house was a man in a shower, you hid $95 that you had obtained from the robbery under the carpet in the living room as well as hiding the knife. You then endeavoured to hide under a bed and to remove your disguises where you were found by the male occupant. So you left the property fleeing only to enter into another nearby property, hiding in a room in that house before you were located. The police were called and you were arrested.

[9] The male victim who you knifed in the dairy suffered cuts to his head, face and chest and remains permanently physically scarred, and he and his family carry emotional scars. He was fortunate not to have lost his life. The owners of the dairy cannot conduct their business as they used to, no longer feeling safe in the shop or the home, are fearful for the safety of two young children and employ another staff member at some cost, as well as close the dairy earlier in the evening because of their anxiety.

Counsel’s submissions

[10] Mr Malik, on your behalf, submitted that whilst the facts may be less favourable to you than that on which the original sentence was based, your attack upon the male proprietor was not wholly unprovoked or gratuitous, and it was not premeditated and it was not prolonged. He contends that a finite sentence in the range of seven to eight years’ imprisonment should be imposed and that the guilty plea that you entered was made in the “expectation that you receive a discount of

one-third” based upon the Court of Appeal authority in Hessell v R,1 that applying at the time when you made that election despite later dicta in the Supreme Court. Mr Malik submits that preventive detention for non-sexual violent offences does not occur with the same degree of frequency for those involved in repeated sexual offending. He submits that the information before the Court does not demonstrate that you would not address the causes of your offending through the completion of an appropriate rehabilitation programme during a finite term of imprisonment. He referred to a number of cases where preventive detention was not imposed, such as

Pritchard v R,2 R v Kahu,3 R v Andrews4 and R v Haberfield,5 all of which were

sentencing cases involving violent offending and there was opportunity for the offenders to avail themselves of rehabilitative programmes in prison. Mr Malik submitted that a sentence of preventive detention was premature.

[11] Mr Malik placed particular emphasis upon the proposition that you did not have an opportunity to undertake rehabilitative interventions in the past, and during previous terms of imprisonment, and the Court should not impose preventive detention on you in the absence of that opportunity. He referred me to the sentencing decision of French J in the High Court in R v Chapman6 and also the Court of Appeal

decision in Pritchard v R.7

[12] I observe, however, that in Chapman the prisoner had displayed a strong and positive attitude towards engaging in psychological work. French J said it was only by a narrow margin that she did not sentence him to preventive detention because he had not undergone the wide-ranging sort of treatment identified as being necessary in his particular case to contain the special risk that he posed. In Pritchard the co- offender, Edmonds, was sentenced to preventive detention which was upheld, and the appellant had only previously served short sentences (that is less than two years’ imprisonment), and because of this they did not provide an opportunity to participate

_{in rehabilitative programmes. But in your case you have served long sentences on}

1 _{R v Hessell [2009] NZCA 450, [2010] 2 NZLR 298.}

2 _{Pritchard v R [2010] NZCA 403.}

3 _{R v Kahu [2010] NZCA 120.}

4 _{R v Andrews HC Whangarei CRI 2008-027-2686, 16 July 2009.}

5 _{R v Haberfield HC Invercargill CRI 2008-025-3638, 1 July 2009.}

6 _{R v Chapman HC Christchurch CRI 2009-009-1410, 5 November 2009.}

7 Pritchard v R [2010] NZCA 403.

two occasions, namely four years’ imprisonment together with six months cumulative in the year 2000 for aggravated robbery and then again in 2005 another sentence of four years’ imprisonment for aggravated robbery. I take into account the advice contained in a psychological report that in February 2010 you were offered individual psychological treatment which you declined and that:

[you remain] ambivalent in relation to future participation in intervention offered at the ... Special Treatment Unit (formerly the Violence Prevention Unit).

[13] Mr Manning, on behalf of the Crown, submitted that you have had four sentences with release conditions and two with parole conditions, all offering rehabilitative intervention measures. You have not availed yourself of any of them. So, whilst you have not engaged in intervention programmes, that is at your choice. I do not accept you can point to factors which have led to that being a situation outside your own choice. It is true you could not attend some programmes because your security classification was too high, but I imagine that arose only because in

1999 you were convicted of escaping from custody and again in 2000 you were convicted of escaping from police custody.

[14] One of the considerations that the Court must take into account in deciding whether to impose preventive detention is the absence of, or failure, of efforts by an offender to address the causes of the offending. As I have said I keep in mind Mr Malik’s submission that you have not had the opportunity to do so, but I do not accept that it is valid. There has been ample opportunity through lengthy sentences in excess of four years, together with the offer of rehabilitative treatment in February

2010 rejected, and I would have little confidence that you would undergo such a programme unless you knew it was essential for you to do so, and do so successfully, in order to be released.

[15] In imposing sentence I am required to take into account and heed the principles and purposes of the Sentencing Act 2002. That is to hold you accountable for what you have done, to promote a sense of responsibility in you if that is possible. I must have regard and provide for the interests of your victims and denounce your conduct and reflect the need not only to deter you but to deter others from committing similar offences. But most importantly in the context of this case

there is a requirement that the sentence imposed be such that the community is protected from you. It must be of course the least restrictive sentence but community protection is crucial. The Crown says that is the factor which requires you to be sentenced to preventive detention.

[16] Your personal circumstances are that you are now aged 31. You have had an unhappy upbringing and from early teens became a member of the Cripps Gang, which affiliation you have continued and say you intended to continue. You have a lengthy criminal history amassing over 80 convictions. Whilst many are of nuisance value, many involve serious offending such as injuring with intent to injure, aggravated robbery, multiple burglary and theft convictions. Your aggravated wounding and aggravated robbery offences for which you are to be sentenced, shows that you are not a stranger to serious violence with the use of weapons. You have become an experienced hardened criminal, committing crimes to obtain money and have had ten individual sentences of imprisonment since 1997, your present crimes being committed within two weeks of release from prison.

[17] The probation officer assesses your risk of reoffending as high and says in his report:

The possibility of further incarceration did little to deter him from reoffending. He appears to accept the likelihood outcome of his actions. He believes he may be potentially considered for preventive detention, and states “may be I deserve it”.

[18] In fixing the starting point for the purposes of sentencing, I take as the lead charges the combined offending of the aggravating robbery and the aggravated wounding. There are serious multiple aggravating features. The premises were a small retail dairy run by a family and easily accessible to the public. You were armed with a weapon and you used it. There was clear premeditation illustrated by the stealing of a weapon, and the using of a disguise even though unsophisticated. Threats were made to the female proprietor whilst armed with the weapon and then you engaged in extreme violence in stabbing her husband causing serious injury. The attack was unprovoked and gratuitous. I do not accept any claim that somehow there was some action on behalf of the proprietor that led you to spontaneously react. All he was trying to do was to prevent you robbing his dairy. What you were trying

to do, and succeeded initially, was to escape. There are no mitigating features in respect of the offending and all that can be said in your favour is that you pleaded guilty and are entitled to a discount for that. Given the circumstances of the offending and the crimes were viewed on closed circuit television and you were found hiding in a house nearby, I would expect any defence would have been futile.

[19] If you are to receive a finite sentence the Court has regard to the decisions of R v Mako,8 for aggravated robbery tariffs and R v Taueki9 for aggravated wounding. Applying the aggravating features that I have mentioned, a starting point of six years might well have been the case for the aggravated robbery based upon Mako. But in R v Taueki for aggravated wounding such as this, you clearly fall in my view into what is known as band three, that is a starting point of between nine and 14 years where the combination of aggravating features is particularly grave. Your counsel submits a starting point of perhaps nine years is appropriate. Given the other

offending surrounding the crimes which you committed, a starting point of at least ten years is justified. The Court then assesses any aggravating personal factors, such as your previous convictions for aggravated robbery and your multiple conviction history. In my view that would require an uplift of sentence to 12 years’ imprisonment. I am not at all sure that a one-third discount would be justified in your case. But assuming it is, a lead finite sentence of eight years’ imprisonment is reached. If a 25 per cent discount for the guilty plea is factored into the sentencing process, then the finite sentence would be nine years’ imprisonment.

[20] Sentencing is not a mathematical or arithmetical exercise. But my assessment of all the factors, aggravating and mitigating in your case, leads to a finite sentence of nine years’ imprisonment as being appropriate. But, the question is whether such a finite sentence would be adequate to provide sufficient protection for the community. Of course in theory, there can be a finite sentence of enormous length which provide sufficient protection, but it cannot be of such a length that it

_{would offend against established and orthodox sentencing principles.}

8 _{R v Mako [2000] 2 NZLR 170 (CA).}

9 R v Taueki [2005] 3 NZLR 372 (CA).

[21] The Crown says a finite sentence would not protect the community and for that reason seeks the sentence of preventive detention and of course that is what Brewer J imposed. But as I have said, I have to approach it anew, and I do.

[22] You are eligible for preventive detention as you meet the criteria set out in s 87(2)(a) and (b) of the Sentencing Act 2002. That section is well known. It provides that preventive detention is to protect the community from those who pose a significant and ongoing risk to the safety of its members and you have been convicted in the past of qualifying violent offences and are over the age of 18 years at the time you committed this offence. Preventive detention may be imposed if the Court is satisfied that you are likely to commit another qualifying violent offence if released at the sentence expiry date of any finite sentence that the Court imposes.

_{The Court is required to take into account:}

Any pattern of serious offending disclosed by your history;

Seriousness of harm to the community caused by your offending;

Information indicating a tendency to commit serious offences in the future;

The absence of or failure of efforts by you to address the causes of your

_{offending; and}

The principle that a lengthy determinate or finite sentence is preferable if

_{it provides adequate protection for society.}

[23] Preventive detention is not a sentence of last resort. But if the necessary protection for the community can be met by a finite sentence, then that should be imposed.

[24] The Court is required to obtain two psychological or psychiatric assessment reports pursuant to s 88 of the Sentencing Act to assess your potential risk of reoffending. One report states that you had not engaged in any “offence focused

intervention with a psychologist to date” and although you were deemed suitable for participation in a violence prevention unit, you were unable to participate in this because your security classification was too high having had convictions for escaping from custody. As I have said more recently you declined the offer or opportunity to participate in psychological intervention.

[25] One psychologist, based upon statistical assessments, assesses you as having many factors indicating a propensity for offending and predicts that you are:

at very high risk of serious violent reoffending. It is likely that should any further violent offending occur, it would be motivated by a desire to obtain financial gain and could involve the commission of aggravated robbery. Given his previous responses to release in the community it is likely that such reoffending could occur within a short time period of his release.

Of course, that is what happened within two weeks of your last release from prison. The psychologist assesses you at a very high risk of further serious offending and without successful completion of intensive specialised psychological treatment, there is a high risk and there is no likelihood that that risk would be ameliorated within the short or medium term future.

[26] A psychiatrist’s report describes you as being intelligent, but resigned to continuing your current lifestyle which I assess as being a recidivist criminal. That psychiatrist is not able to come to the view that you are ready to address your criminal offending, although he could not rule out that you might come to that in the future.

[27] It is clear you have a dreadful pattern of serious criminal offending over

16 years and have continued to pose a risk to the community. The risk is high. Obviously, the serious harm to the community caused by your offending is high. You inflicted grave physical harm to a male victim of this dairy. It is obvious that the harm to the community caused by your multiple other violent offending including aggravated robbery, is significant. Probably the most telling factor is information before the Court indicating a tendency for you to commit serious violent offences in the future. I have referred to the remarks in the pre-sentence report that your risk of reoffending is high and you show no desire to distance yourself from the

Cripps Gang, which involves in a lifestyle pattern, the commission of crimes. Mr Malik submits that you should be given a finite sentence so that you can undergo appropriate counselling and psychological treatment. But this can equally be done within the confines of a sentence of preventive detention.

[28] The next factor is the absence of, or failure, by you to address the causes of your offending. I have already referred to this and simply repeat that as recently as

18 February 2010 while serving a term of imprisonment of four years for aggravated robbery, you declined the offer of individual psychological treatment that was made to you. Mr Malik submits that, nevertheless, based upon some examples shown in other cases you should be given that opportunity within the confines of a finite sentence. But your history and attitude does not inspire any confidence in the Court that you would engage in the necessary rehabilitative interventions unless you had that squarely in mind as being a pre-condition to being released into the community. That is often said to be one of the benefits or advantages of a sentence of preventive detention because it provides the real incentive to participate and to successfully complete rehabilitative programmes. Because until that is done the Parole Board is unlikely to release an offender because of the continued risk to the community. Whereas with a finite sentence once the release date is reached an offender must be released. I am mindful, but do not overstate the fact that you had falsely contended your male victim had a weapon and clearly there has been at least to date a failure to address the causes of your offending.

[29] The last and crucial factor, and I have already referred to it, is whether a finite sentence is preferable if it provides adequate protection for society. The question I must ask myself is whether, a finite sentence when applying proper sentencing principles and guidelines, of nine years or in excess of that, should be imposed and if so, would it provide sufficient protection to society.

[30] Even with a maximum minimum non-parole period of six years, I am not satisfied that a finite term would provide such adequate protection. As I have said, while you can undergo treatment whilst serving a finite term, a telling feature of a sentence of preventive detention is that it provides that incentive for the offender to undertake programmes so as to rehabilitate himself and satisfy the Parole Board that

he is safe to be released into the community. With a finite sentence, even without undergoing necessary treatment an offender must be released at the release date and there is not the same incentive to successfully complete a rehabilitative programme that exists where the prisoner is serving preventive detention.

[31] Your stabbing victim in this case was one too many, coming shortly after your release from prison. Any other further victim of your propensity to commit aggravated robberies would also be one more too many. If you were subject to a finite sentence, in my view you would still remain an unacceptable risk which this Court is not prepared to take. The risk is high and an assessment of your risk and of the safety of the community can properly be made by the Parole Board at the appropriate time. It can make a careful assessment of all factors, reports, opinions and treatment programmes you have undertaken, and it will have squarely in mind whether the community still needs continued protection from you. But as I have said, there is nothing in any of the material before the Court which gives me confidence that a finite term would serve the necessary protective purpose. As was said to you on an earlier occasion, the remedy is in your own hands. If you undertake programmes that will be available to you and rehabilitate yourself so the community is no longer at risk from you, then the Parole Board will be able to release you. But until that time comes you pose too great a risk.

[32] So independently I have come to the same conclusion as Brewer J, that you should be sentenced to preventive detention. I have differed from him in my assessment of what might have been the appropriate finite sentence, mine being nine years and his being 11½ years. But that is immaterial because we both have reached the view that neither would be sufficient to protect the community. In terms of a minimum period of imprisonment, that is a minimum non-parole period, the law provides it must be no less than five years. In my view the proper non-parole period is six and a half years. That reflects all the aggravating circumstances of your offences, your past history and your risk to the community.

[33] Accordingly, I impose the following sentences. On the charge of aggravated wounding you are sentenced to preventive detention with a non-parole period of imprisonment of six and a half years. On the charge of aggravated robbery you are

sentenced to a term of six years’ imprisonment. On each of the three counts of aggravated burglary you are sentenced to a term of 15 months’ imprisonment. On each of the two counts of burglary you are sentenced to terms of 12 months’ imprisonment. For breach of the Parole Board release conditions you are sentenced

_{to three months’ imprisonment. All sentences are to be served concurrently.}

_{J W Gendall J}

Solicitors:

Crown Solicitor, Napier

A Malik, Hastings for Prisoner