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High Court of New Zealand Decisions |
Last Updated: 26 July 2013
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CRI 2011-091-3498 [2013] NZHC 1150
THE QUEEN
v
DAVID LAWSON
Hearing: 17 May 2013
Counsel: G Burston for the Crown
T Ellis and M Bott for David Lawson
Sentence: 17 May 2013
SENTENCING REMARKS OF MALLON J
Introduction
[1] Mr Lawson you don’t need to stand at the moment. When a sentence of preventive detention is sought there is a lot of material to go through and which needs to be explained.
[2] Mr Lawson you appear for sentencing today having been tried before a jury and convicted on one charge of aggravated robbery1 and one charge of kidnapping.2
I know you maintain your innocence and I have read your letter to me about the trial. I know you understand also that I am sentencing you on the basis of the jury
verdicts and the convictions entered in accordance with them.
1 Crimes Act 1961, s 235(c).
2 Section 209(b).
R V LAWSON HC WN CRI 2011-091-3498 [17 May 2013]
[3] The Crown seeks a sentence of preventive detention. There are some preliminary matters related to that, which you have heard counsel discuss this morning and which I wish to discuss first, before turning to the offending and the sentence that you are to receive.
[4] Two reports have been obtained as are required if a sentence of preventive detention is to be imposed. The report writers (Ms Waddington, a psychologist, and Dr Barry-Walsh, a psychiatrist) were required for cross-examination and that took place on Monday, 13 May 2013. At the conclusion of that your counsel provided submissions advancing the position that Ms Waddington’s report should not be accepted. This was on the basis that:
(a) Firstly, it is systematically inappropriate to appoint any psychologist from the Department of Corrections;
(b) Secondly, Ms Waddington’s behaviour in approaching the Crown for
advice disqualifies her or the Court from acting on her report; and
(c) Thirdly, Ms Waddington is insufficiently experienced.
[5] I do not accept the second or third points. Ms Waddington’s report is admissible and criticisms that are made potentially could go to weight. But Ms Waddington explained the limited nature of her inquiry of the Crown and she also explained her experience at the hearing on Monday. I am satisfied she has not aligned herself with the Crown and could not reasonably be viewed as having done so by her approach to the Crown. That in turn has not impacted upon the independence of the Court. I am also satisfied as to her experience. There was criticism of the information provided in her report. Important information said to be missing was however provided during the cross-examination hearing and subsequently.
[6] As to the systemic point, having reviewed the authorities referred to by your counsel, Mr Ellis,3 and others as well, 4 I have no concerns about receiving a report, as one of the many pieces of information before me, from a Corrections-employed psychologist.
[7] Yesterday I received further submissions about international human rights law issues in relation to preventive detention sentences.5 I need not consider these in any detail because there is New Zealand Court of Appeal authority on the point6 and for reasons which will become apparent.
Circumstances of the offending
[8] I now turn to the circumstances of your offending. This offending related to a robbery of the Countdown supermarket in Coastlands, Paraparaumu. At around
1:40 am on the morning of Friday, 16 September 2011, you were on the roof above the ground floor of the supermarket. You smashed a window which accessed the supermarket manager’s office. An alarm was activated. Although Countdown’s duty manager and a security guard responded to the alarm, they did not notice the broken window. They checked that all the inside doors were locked and they put it down to a false alarm. They reset the alarm.
[9] At 4:00 am that morning, the perimeter alarm for the building was turned off by the bakers, when they arrived for work at the supermarket. This meant that
the manager’s office was not alarmed anymore.
3 Mr Ellis referred to Smith v Legal Services Agency HC Wellington CIV-2009-485-1781, 8
February 2010; Shulepova v Russia (34449/03) Section I, ECHR 11 December 2008; Lashin v
Russia (33117/02) Section I, ECHR 22 January 2013.
5 Mr Ellis referred to a number of cases including R (Walker) v Secretary of State for Justice
[2008] EWCA Civ 30, [2008] 1 WLR 1977; Rameka v New Zealand (2003) 7 HRNZ 663 (UNHRC); Fardon v Australia UNHRC Comm No 1629/2007, 18 March 2010; Tillman v Australia Comm No 1635/2007, 18 March 2010.
6 Sir Bruce Robertson Adams on Criminal Law - Sentencing (online looseleaf ed, Brookers) at
SA87.11.
[10] At about 5:30 am that morning, the supermarket cashier arrived to work. She deactivated the separate alarm for the cash office which was next door to the manager’s office in the upstairs area. She went into the cash room to audit the money in the safe, as was a regular part of her job. At 5:44 am she entered the result of her audit into the computer software. The safe contained over $27,000.
[11] In the meantime you were on the roof, you had removed glass from the window and made your way into the manager’s office through the window and were standing in the hallway outside the cash office. You were wearing a black stocking over your head and armed with a blade. The CCTV footage indicates that you were probably wearing two sets of clothing at that point. You were also wearing gloves.
[12] As the cashier went to leave the cash office she saw you standing in the hallway. You grabbed her and took her back into the cash office. You demanded that she open the safe. When she did, you took $18,070 in cash from the safe. You put this into a Countdown shopping bag which was present at the scene. You then took the cashier into the manager’s office. You ordered her to lie on the ground saying “stay there bitch, don’t move, my mate is watching you” or words to that effect. You then went out the broken window. This was around 5:50 am.
[13] As a result of the movement of the blinds on the window and, what the cashier thought was an office chair being moved, and what you told the cashier, she thought another man had stayed by the window to make sure she did not sound the alarm. It is not clear on the evidence that there was any such person. The cashier remained on the floor under the manager’s desk, too frightened to move, until shortly before 7:30 am that morning. At that time the duty manager came into the office. He found the cashier lying on the floor, whimpering and terrified.
Victim impact statement
[14] The terror experienced by the young cashier is discussed in her victim impact statement. As a result of that experience she was unable to sleep in a room by herself for around two months. She started smoking. She had a period of work
and when she returned she could not go to work alone when it was dark. And in the end her anxiety levels caused her to transfer to another store.
Circumstances of the offender
[15] Turning to your personal circumstances, an up to date pre-sentence report could not be obtained because you refused to be interviewed by the pre-sentence report writer. That was because you saw little point in an interview when you intended to appeal your convictions. The pre-sentence report therefore is based on information obtained from Departmental records. I also have information from the reports obtained for consideration of preventive detention. You fully participated in those assessments.
[16] You are 39 years old. You had a difficult childhood which is described in more detail in the reports before me. At an early age you began to steal things. At
11 years old you were made a ward of the state and placed in a boy’s home. You had further difficulties there. In your letter to me you say that you have “more than a few issues” because of your childhood but that people have worse things happen to them and have gone on to do “bigger and brighter things”, which is an attitude that is to your credit.
[17] You have in fact shown some determination at times to get on with your life. At age 22 you completed your School Certificate qualifications by correspondence. You qualified as a chef while in prison. You were able to maintain stable employment, mostly working as a chef, in between your periods of imprisonment. It is said on your behalf that you possess a strong work ethic and worked hard when you had periods of good employment. However those periods inevitably came to a end when employers learned of your past convictions or when you have reoffended and were sent to prison.
[18] You have had two significant long-term relationships. You have three children with whom you maintain some contact.
[19] You have struggled with depression for some time. You say that your offending in 2001 occurred after you became depressed after losing your job. You were first prescribed medication in 2008 to which you did not react well. You went off this medication and during that time you committed a burglary which I will refer to again when I discuss your criminal history. You went on new medication which you have now been on for two years and find to be effective.
[20] You have a history of gambling, mainly relating to playing poker machines. You have received counselling for this which you have found beneficial. But nevertheless you consider that gambling remains a problem for you
[21] You found your release from prison in August 2011, prior to the offending for which you are being sentenced, difficult. You were lonely and found the community support limited. You had not found work by the time of the present offending.
Previous convictions
[22] You have an extensive criminal history dating back to 1988 when you were
14 years old. You have over 115 previous convictions and some Youth Court matters. Most of those convictions are for dishonesty-related offences and driving offences. As is summarised in a 2007 psychological report prepared for the Parole Board, from the age of 14 you established a pattern of high frequency driving and property offending primarily driving while disqualified and stealing motor vehicles. As you grew older burglary convictions occurred more frequently. The frequency of your offending has resulted in::
(a) about 32 convictions for unlawfully taking motor vehicles; (b) about 24 convictions for burglary; and
(c) about 12 convictions for theft or receiving.
[23] Most importantly for the purposes of your sentencing today, you have five previous convictions for aggravated robbery, one conviction for burglary which occurred in similar circumstances to this offending, and one conviction for kidnapping. Other than those matters you have only two convictions for violence, that of common assault in 1990 and again in 2009.
[24] You were first convicted of aggravated robbery in 1994, as a party in that case. In that case two associates robbed a jewellery store in Kelburn, Wellington. They used a firearm to hold up staff members and took a large amount of items. Your part in this was to steal a car which was used as the getaway car. You knew when you obtained the car that this was the purpose for which it was to be used. You pleaded guilty and you were sentenced to four years and six months’ imprisonment for your involvement in that robbery. The remaining four convictions for aggravated robbery relate to a spate of offending in 2001. Those four robberies occurred in the following circumstances:
(a) On 25 February 2001 you and an associate staked out a bar and entered it at about 12:45 am after three of the staff had left. You had a rifle. Two staff remained. You restrained them with cable ties and one of them was required to open the safe, the contents of which were taken. The victims were locked in the chiller.
(b) At about 1:00 am on 11 March 2001, a bar closed leaving only the manager and his staff cleaning up. You arrived wearing a balaclava and carrying the same rifle. You followed the manager home, broke in and forced her to return to the bar to open the safe and remove the money. You bound her wrists with plastic handcuffs and left the premises.
(c) At 9:30 pm on 25 March 2001 you and an associate robbed a Pizza Hut Restaurant. You wore a disguise and carried a rifle. You entered the unlocked back door and held up two male employees, forcing one of them to fill a bag with the contents of the safe. Both men were
herded into a small toilet at the rear of the shop so you could make your escape.
(d) At about 7:50 pm on 22 April 2001 you and a co-offender entered a Four Square Supermarket through the back door as it was closing. You both wore balaclavas and gloves. The manager and two staff were confronted and held captive while the manager was forced to open the safe and place its contents in a bag provided by you. The victims were forced to enter the chiller and ordered to remain there for ten minutes.
[25] You pleaded guilty to those aggravated robberies and were sentenced to 10 years and six months’ imprisonment on 17 August 2001. You were released in April 2008, but you were recalled back to prison in May 2009 because you committed an assault and a theft in April 2009.
[26] You were again released on 5 June 2009, but while on parole in July 2009 you burgled a supermarket. This burglary took place at 10:40 pm when you climbed onto the roof of the supermarket, carrying a jemmy bar and a claw hammer which you used to remove the exterior weatherboards to expose the internal lining to the cashier’s office. You smashed a hole in the roof and entered the room. You attempted to break open the safe using the jemmy bar but set off the alarm. This offending led to a final recall order in September 2009. You pleaded guilty to the supermarket burglary and were sentenced to 18 months’ imprisonment on 10
February 2010.
[27] You were then released on 1 August 2011 subject to release conditions. While subject to those conditions in September 2011 you committed the present offences. You have been in prison since then.
Finite sentence
[28] A sentence of preventive detention can only be imposed if I am satisfied that you are likely to commit another qualifying violent offence if released at the
sentence expiry date of the sentence I would otherwise impose.7 I therefore start with considering what finite sentence would be imposed for the offending.
[29] The Crown submits that a starting point in the range of seven to eight years’ imprisonment is appropriate. Your counsel submits that the offending is less serious than the 2001 offending for which you received a ten year imprisonment sentence. The aggravating factors here are:
(a) the planning and preparation for the robbery, which must have involved careful surveillance of the premises and of the response to the breaking of the window and which also involved a full head cover and an additional outer layer of clothing to disguise your identity;
(b) the use of a knife to frighten the victim, carrying with it some risk if matters did not proceed as you planned;
(c) the fear suffered by the young cashier and its ongoing effects;
(d) the relatively large sum of money that was taken and not recovered. [30] The offending falls within the categories of cases discussed in the Court of
Appeal’s guideline judgment that warrants a starting point of six years’
imprisonment.8 This is confirmed by a review of some comparable cases.9
[31] I turn now to the factors personal to you. As noted above you have an extensive criminal history. You have received substantial sentences of imprisonment but those have not deterred you. Moreover this offending occurred only six weeks after your release from a long period in prison and when you were still subject to release conditions. The sentencing purpose of specific deterrence assumes particular prominence given this history. I consider that an uplift of two
years’ imprisonment is appropriate to reflect this.10
7 Sentencing Act 2002, s 87(2).
8 R v Mako [2000] 2 NZLR 170 (CA) at [54] and [56].
9 See for example Kiwara v R [2012] NZCA 468; R v Neketai CA58/05, 8 December 2005.
10 See for example R v Maru [2012] NZHC 1411; R v Whakarau HC Masterton CRI-2008-035-
1389, 24 September 2009 where there were uplifts of two years for previous
[32] There are no personal mitigating factors for which any reduction to your sentence can be made. That would leave an effective finite sentence of eight years’ imprisonment.
Minimum period of imprisonment
[33] A minimum period of imprisonment would be necessary because I am satisfied that one-third of your sentence would be insufficient to hold you accountable for your offending, protect the community from you and denounce and deter the offending.11 I agree with the Crown that the serious nature of the offending, commencing so soon after release from prison for serious offending of a similar type, warrants a minimum period of imprisonment towards the upper of the available range. I therefore consider that an appropriate minimum period of imprisonment is around 60 per cent of your effective sentence. So that would be a
minimum period of imprisonment of four years and nine months.
Preventive detention
[34] I turn now to consider whether you should be sentenced to preventive detention. In order to sentence you to preventive detention I must be satisfied that you are likely to commit another qualifying violent offence if you were released at the sentence expiry date.12
Pattern of offending
[35] The first relevant consideration is whether there is a pattern of serious offending.13 I accept that there is a pattern. From a lengthy background of less serious offending, you were involved in an aggravated robbery in 1993 and sentenced for that in 1994 as I have already discussed. When you were released, you continued to commit burglary, unlawful taking and theft and were sentenced to
terms of imprisonment for varying lengths. In 2001 your offending escalated when
convictions/offending while subject to release conditions.
11 Sentencing Act 2002, s 86(2).
12 Section 87(2).
13 Section 87(4)(a).
you carried out the four aggravated robberies discussed already. Those robberies have some similar features to this one. You entered establishments when members of the public were not expected to be present, disguised and brandishing weapons. You targeted safes. When you were released from prison you committed a burglary again of a similar nature to the offending previously and the offending in this case. When you were released in August 2011 on the sentence for that burglary you carried out this aggravated robbery in September 2011. This history shows persistent serious offending which rapidly resumes after periods of imprisonment.
Seriousness of harm to the community
[36] The next factor I must take into account is the seriousness of the harm to the community caused by the offending.14 There is no doubt that your aggravated robbery offending has been traumatic for those who have been threatened by you in the course of the robberies or have been detained or have even just been present. However the harm caused by your offending is lower than offending involving actual serious physical violence or serious sexual offending as is sometimes present when preventive detention is imposed.15 Your modus operandi involves brandishing weapons to obtain compliance. In all the aggravated robberies you have committed you have not actually used the weapons to cause any physical harm. As Ms Waddington put it, you are a person who does not engage in “reactive violence”, but you engage in what she describes as “instrumental violence”. She explained that further by saying that reactive violence would be getting angry with
somebody and beating them to a pulp. Instrumental violence is around using violence to get your needs met or something that you want, like money, or to escape a situation or something like that – drugs, whatever it is you might be wanting.
[37] You told Ms Waddington that in the earlier robberies you used a firearm because you considered it to be “the least violent way to commit an offence” as the victims were more likely to comply if there was a gun involved. You told her that
the guns were always unloaded to ensure no-one got hurt. In the most recent
14 Section 87(4)(b).
15 See R v Maru, above n 10.
offending you brandished a knife. The cashier sensibly did not resist. There is an inherent risk of course that things will not go to plan and people may then be harmed regardless of your original intentions. That risk is perhaps not as elevated as it might be with others because of the limited history you have of committing any kind of physical violence and because it is a risk that has not to date materialised.
Reoffending risk
[38] The next factor I must take into account is information indicating a tendency to commit serious offending in the future.16 The reports from Ms Waddington and Dr Barry-Walsh provide information about this.
[39] Ms Waddington has used the risk assessment tools that are used within the Department of Corrections, namely the RoC*RoI, the VRS and the PCL:SV. Her report provides information about the tests and the category into which you fall on the basis of those tests. In summary it is her opinion that you are at a high to very high risk of serious offending of aggravated robbery in which you would be willing to compromise the safety, liberty and rights of victims. She also says that your risk is most prominent during times of increased stress and problematic thinking. Your indicators of increased risk are gambling, a decline in your mental health, the acquisition of what she describes as “expensive and showy items” and an unbalanced lifestyle. She considers that any treatment should address the factors related to your offending and without treatment, there is unlikely to be a reduction in risk. She says that your risk could lessen with individual psychological treatment aimed at assisting you to take responsibility for your offending.
[40] Dr Barry-Walsh caveats his report with the reality that neither clinical psychiatrists nor psychologists nor anyone else is in a position to talk with any degree of accuracy and rigour about an individual’s risk of further acts of violence some years into the future. This is also a point made by Dr Duff (a consultant psychiatrist) who reviewed and critiqued Ms Waddington’s report. There are other
criticisms she makes which I have had regard to. Dr Barry-Walsh also notes that
16 Sentencing Act 2002, s 87(4)(c).
there is a large difference between an individual’s actual risk of further offending and the group into which the individual is placed on the basis of the psychologist’s risk assessment tools.
[41] Dr Barry-Walsh used the HCR 20 which he describes as an instrument of structural clinical judgment. He identifies a number of historical risk factors for your offending including your history of previous violence, relationship instability, past mental illness and history of childhood problems. There are no current clinical risk factors other than your denial of your offending. He considered that there was at least a moderate risk of further offending and this risk was elevated if you are guilty of the present offending, which is of course the basis on which this sentence proceeds. He expanded on this by saying (and these are his words) “I don’t think you need to be a forensic psychiatrist to understand the strength of the association between past offending and the possibility of future offending. The fact that someone commits a third offence in a very short time after release would certainly elevate your concerns that it might happen again.” Dr Barry-Walsh says that you could benefit further from individual psychological therapy. He says that it is plausible that good control of your depressive illness in the future would reduce your risk of reoffending. He says that there is a chance that good treatment of your depression would have a substantial effect upon your risk. He considers your risk of reoffending to be contingent on any interventions while you are in prison, on pre-release planning and the circumstances and support at the time of your release.
[42] He considers that probably the most mitigating thing will be that you will be older. He refers to the “very consistent reliable finding” that people are less likely to reoffend as they get older, with the qualification that this is a general statement and whether you are an individual that this will apply to is of course a different question. He confirmed that the mitigating effect of age would apply to persons released after a period of around six years as well as longer periods.
[43] The next factor I must take into account is the absence of, or failure of, efforts by you to address the cause or causes of your offending.17 There is no suggestion on the information before me that you haven’t been willing to engage in the help that has been offered to you. In about 2006 you missed out on the opportunity to go to Montgomery House, a community-based treatment facility, because of an argument with a staff member. Instead you commenced treatment at
the Violence Prevention Unit (VPU) in February 2007 and completed treatment in late July 2007. The treatment report says that you attended reliably and were an active participant. You seemed to have reasonable insight into the factors that led to your offending and you had to work on challenging your thinking that justified rule breaking. It was considered that you had made some progress.
[44] Following your release on parole you participated in individual therapy with a psychologist in late 2008 and early 2009. You appeared willing to attend sessions and work on managing your mood. You were able to develop strategies to address your gambling, such as limiting the amount of cash you carried and closing your TAB account. You appeared to make positive progress so your treatment ended. When you were again released in September 2011 you were referred for individual treatment with a psychologist but you were seen on just two occasions before your arrest.
Preference for a finite sentence
[45] Lastly I must take into account the principle that a lengthy determinate sentence is preferable to a sentence of preventive detention, if the determinate
sentence provides adequate protection for society.18
17 Section 87(4)(d).
18 Section 87(4)(e).
[46] Having considered the factors I am required to take into account I note the following. Your risk of reoffending does appear to be a high one. Your pattern of offending is a strong indicator of that. The harm to the community if that risk materialises is not likely to involve physical harm but is likely to involve the psychological harm that all your victims have suffered. You have been willing to engage in treatment and remain willing to do so. The experts are agreed that treatment could be successful in reducing your risk. These factors point against preventive detention.
[47] This is supported by cases involving aggravated robbery offending in which the imposition of preventive detention has been considered. I have reviewed those cases and preventive detention has been imposed in cases where actual physical violence has been used by the offenders which increased the seriousness of the harm to the community caused by the offending. That has been a factor in the
cases in which preventive detention has been imposed.19 I also consider that it is
relevant that you have now been given your first strike under the “three strikes” warning regime. That regime is predicated on the idea that an understanding of the consequences of repeat offending through increased certainty about the consequences will have a deterrent effect.
[48] Taking these factors into account, together with the principle that a lengthy determinant sentence is preferable if it will provide adequate protection for society, I decline to impose preventive detention.
Result
[49] This means that your sentence will be one of eight years’ imprisonment with a minimum period of imprisonment of four years and nine months. I allocate that by imposing an eight year sentence on the aggravated robbery charge and a two
year concurrent sentence on the kidnapping charge.
19 See for example Stephens v R [2011] NZCA 341; R v Toetoe HC Napier CRI-2010-041-1646, 4
August 2011; R v Whakarau, above n 10.
[50] I also think it’s appropriate to reiterate the “three strikes” warning that I gave you when I convicted you following the jury’s verdict. The crimes of aggravated robbery and kidnapping are serious violent offences under the Sentencing Act 2002. I am therefore required to warn you of the consequences of being convicted of any further serious violent offence. If you are convicted and sentenced to imprisonment for any serious violent offending other than murder, after this warning, you will serve that sentence without parole or early release. If you are convicted for murder committed after this warning, you will be sentenced to life imprisonment and you will serve that sentence without the possibility of parole unless that would be manifestly unjust.
Mallon J
Solicitors:
Crown Solicitor’s Office, Wellington
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