R v Winterburn [2014] NZHC 2313 (18 September 2014)

Last Updated: 25 September 2014

NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS, OF COMPLAINANT PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011.

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI-2013-069-0397 [2014] NZHC 2313

THE QUEEN

v

_{ROBERT WINTERBURN}

Counsel:	J E Rielly for Crown A J S Snell for Prisoner
Sentencing:	18 September 2014

_{SENTENCING NOTES OF WILLIAMS J}

Charges

[1] Mr Winterburn – tena koe. Please stand.

[2] You appear for sentencing having been found guilty by a jury of nine charges. The first group of charges relate to your victim, S with whom you had a brief relationship. Those are:

(a) male assaults female; (b) threatening to kill;

(c) sexual violation by unlawful sexual connection; and

_{(d) sexual violation by rape.}

R v WINTERBURN (SENTENCING) [2014] NZHC 2313 [18 September 2014]

[3] The second group of charges relate to your drug dealing. They include: (a) unlawful possession of a firearm;

(b) possession of cannabis for supply; (c) offering to supply cannabis; and

(d) offering to supply methamphetamine.

[4] The third category relates to the single offence of attempting to pervert the course of justice.

[5] You plead guilty to the second drug-related group of charges at the beginning of your trial. The remaining counts went to trial and you were found guilty of them, although you were acquitted of eight other counts, I understand.

[6] His Honour Judge Rea in the District Court declined jurisdiction in sentencing on the basis (I presume) that a sentence of preventive detention was possible and was sought by the Crown.

[7] The learned Judge approved a Crown summary of facts which I read through

– with one exception that I will mention as I go. You, as the Crown says, maintain your innocence in respect of the counts for which you plead not guilty, and you maintain the position that those verdicts were wrong. I of course must sentence you on the basis of those verdicts as if they are right, we are both bound by that according to law.

The facts

[8] You met S in Rotorua in February last year and began a relationship. By April last year you were in Waipukurau where you are from. The 17^th of April was your birthday. Following a birthday dinner at a family address you and S smoked some methamphetamine. It seems you ended up driving around central Hawkes Bay

and Hastings that day and the next visiting people and ultimately going to the urupa where your father is buried.

[9] During the drive you hit S. It is possible you also struck her with a firearm but Judge Rea specifically notes that he is unsure whether the jury accepted that allegation. So I am going to sentence you on the basis that there was no firearm involved in the male assaults female charge and that you struck her with your hands.

[10] Early on the morning of 18 April 2013, the day after your birthday, you headed to the urupa. You threatened to kill S on several occasions. You swore at her. You frightened her terribly. She said she felt sure she was going to die. (Threatening to kill).

[11] Once at the urupa you were overcome by this fear of bugs, fuelled clearly by methamphetamine and cannabis smoking – couldn’t be any other sensible reason for it – you told S to take all her clothing off so you could check for bugs and of course she complied being fearful of you. You accused her of bugging you and said the police would be looking for you. While she was naked, you told her to spread her legs apart and you inserted your fingers into her vagina to check for these listening devices. (Sexual violation by unlawful sexual connection).

[12] Once back in the truck, you said to S that you wanted to have sex with her and you did so. She was too frightened to resist. She cried while you had sex with her without her consent. She was too terrified to resist as I’ve said. (Sexual violation by rape).

[13] Now there has been an issue raised about the basis upon which you should be sentenced on the sexual violation counts. Your lawyer saying that the facts are consistent with a mistaken but honest belief on your part that she was consenting, even if that mistaken but honest belief was completely unreasonable. The Crown saying well it’s perfectly open for me to conclude and proceed on the basis that she didn’t consent, you knew she didn’t consent, and you raped her anyway.

[14] I wasn’t at the trial and I don’t know which of those two scenarios is correct. I do not, for myself, think that difference will make a big difference to the end sentence, at least not on its own. And that is because the context of fear is such a powerful element in your offending. The threatening to kill which you were found guilty and your obvious crazy paranoia that lead you to treat this woman this way, that factual context probably makes the difference that has been argued for, not much of a difference.

[15] You both returned to your Waipukurau address. You invited others over to the house and you (all) smoked methamphetamine and drank alcohol. S said she didn’t. She said she was far too frightened. She stayed there until the early hours of

19 April 2013, at which point she found her cellphone and ran, hid in a neighbour’s

property and then called her mother asking her in turn to call the police.

[16] The police arrived, arrested you and searched your house. They found three guns – a cut down pistol-grip single shot shotgun, a cut down pistol-grip single shot bolt action 22, and a similarly cut down semi-automatic 22. All were modified so that they could be fired with one hand, gangster style. One of them was loaded. (Unlawful possession of firearms).

[17] The police also found 1.5kg of cannabis plant material made up as a 174 tinnies separated into seven clip bags. (Possession of cannabis for the purpose of sale).

[18] The police also seized your cellphone and searched its text contents. The search showed that between 7 March and 10 April 2013 you had offered to supply both cannabis and methamphetamine on a number of occasions. (Possession and supply counts).

[19] Following your arrest and while you were on remand in prison, you called and wrote to S (between May and June 2013). You asked her to retract her evidence about the events leading to your arrest. She said she was intimidated by this and she actually made one retraction statement in the presence of three of your female

whanau members. But you thought that wasn’t enough and you wanted more and you requested a further retraction – a further and better one.

[20] On 20 and 21 June 2013, you made four phone calls to S from prison. At this point things became more sinister – telling her to make statements as you requested or she would face repercussions. (Attempting to pervert the course of justice).

Background

[21] Mr Winterburn you are 47 years old. You describe a tough but loving upbringing by good parents, your father a disciplinarian, in a pretty close family; a proud member of Ngāti Raukawa and Te Arawa, and a Scots clan – all three of them were the spirit of independence it appears. But by your young teenage years you were in regular trouble, and you became a patched member of the Mongrel Mob by the time you were 18. And you say now that you are a re-patched member of the notorious chapter. You have got a long and extensive history of violent offending including:

(a) robbery;

(b) manslaughter;

(c) attempted murder;

(d) wounding with intent to injure (x2); and

(e) wounding with intent to cause grievous bodily harm.

[22] As a result, you spent most of your adult life in prison and as at 2013 when you were last arrested, 19 of the previous 21 years. It’s a long time.

[23] Your pre-sentence report notes that you acknowledged the role of drugs and drug addiction in your offending. That seems obvious from the facts surrounding your treatment of the victim in this case, S – particularly as I’ve said a couple of times now, your crazy paranoia about police bugs. You seem to think that after a

lengthy prison sentence, as the Crown indicated, you were somehow entitled to reward yourself with drug and alcohol fuelled “fun”. So it seems Mr Winterburn that long term institutionalisation in the prison environment has made you more criminal not less.

[24] On the other hand, you successfully completed counselling programmes for violence and addiction while in prison on earlier sentences, and prior to your most recent offending. The report notes that while completing your most recent parole which ended on 28 January 2012, you complied with all the parole requirements, managed alcohol and drug-related pressures on your life, and even engaged in positive social activities, so it was said. The report notes that whanau support and living with your mother were identified as important elements in your positive behaviour.

[25] Your final parole report noted with concern that you were about to plan back then to move away from the positive support of the whanau home. And then the report writer feared that you would return to alcohol and drugs once out of that environment. And Mr Winterburn that’s exactly how it turned out.

[26] Nonetheless, I note the report writer said that if you received sufficient support from whanau and community, you may one day be able to resume life in that community and with that whanau.

[27] I am going to start with considering what a finite sentence should be for your offending and then I will consider whether a sentence of preventive detention is necessary in your case.

Sexual violation

[28] Let me start with the sexual violation counts.

[29] I agree with counsel that the lead offences here are the sexual violation counts. An important characteristic of your offending here was the fear you instilled in your victim through your irrational paranoia and your threats to kill. That is unquestionably why she did not resist when you forced yourself on her.

[30] Another factor is that there was a separate digital penetration for the bizarre reason of searching for police listening devices immediately before you proceeded to rape S despite her obvious distress. So there were two events of sexual violation that’s aggravating.

[31] Finally, there is the fact of the emotional harm you caused S as reflected in her victim impact statement. As I have said I don’t think it makes a difference whether you did what you did with an honest belief or knowing there was no consent. Either way the context was too chilling for that to make a significant difference.

[32] I consider a starting point of eight years’ imprisonment is justified on the sex counts.¹

Threatening to kill and assault

[33] I am going to move to threatening to kill and assault counts now.

[34] I have already discussed the context within which you threatened to kill S. She obviously believed the threats in light of the fact that you were aggressive, angry and full of methamphetamine at the time the threat was made. And I have mentioned the factual basis upon which I will approach the assault count – that is there was no weapon used, just the hands.

[35] I consider a starting point of one year imprisonment is justified on these counts.²

Drug offending

[36] The evidence is clear that you were dealing in methamphetamine and cannabis and of course you acknowledged as much. It is not known how much

_{methamphetamine was involved because the evidence is too indirect, but the}

¹ _{This offending is top of Band 1, bottom of Band 2 in R v AM [2010] NZCA 114; [2010] 2 NZLR 750.}

² I have relied in particular on Taylor v Police [2014] NZHC 1139 and Pathiranage v Police [2013] NZHC 738 in identifying a range of between 12 and 18 months for offending of this general nature.

evidence in relation to the cannabis does show scale – 1.5kg broken down into street level product.

[37] I conclude that in respect of both the cannabis and methamphetamine you were obviously a street level retail dealer, and I accept Mr Snell’s submission that your dealing was in part at least, the way in which you funded your own drug habit.

[38] I also include the firearms charges in this offending. I infer that the firearms were in the house to support your retail drug operation and ought to be treated, on a totality basis, as a part of it.

[39] I adopt a starting point of four years’ imprisonment for this group of offences.

Attempting to pervert the course of justice

[40] You say that you were just trying to get S to tell the truth when you made contact with her while you were on remand, but there really can be no doubt that there was a strong element of intimidation in the way you communicated with this woman. You made her afraid, and I am sure you intended to make her afraid in order to bend her to your will. There was after all a lot at stake for you. This offending in particular has created real trauma for her and it lasts to this day. She described living in fear awaiting the trial and becoming more and more stressed and anxious as the trial drew close. I can fully understand why.

[41] The Courts will and must always treat standing over a witness in a trial as a serious matter. It tends to undermine and corrupt the basic values of the system under which we operate.

[42] I consider a starting point of a year’s imprisonment is appropriate in this case.

Past offending

[43] There are no particular mitigating factors in any of the offending. But your past violent history is obviously a relevant aggravating factor. There’s no dodging that Mr Winterburn. That is not because I want to punish you again for offending for

which you have already done your time. No – rather, my point is that, if after being punished you keep offending in a similar way, then the law says your punishment for the latest episode of similar offending just has to be more severe than it was for the first. I note that you have no prior sexual offences record but you have a criminal record that runs to several pages containing numerous convictions for violence, drug offending and firearms. And this was the context of this offending, even if the lead offence was a novel one on your record. Most of these offences were committed well before the turn of the century.

[44] Nonetheless, an uplift is inescapable. Mostly for totality reasons, I think that an uplift needs to be relatively modest, and I am not going to go any higher than four months.

Mitigation

[45] You pleaded guilty to the drug and firearms offences – albeit very late, and a small reduction is justified for that.

[46] Mr Snell argues for a further reduction in relation to your rehabilitative efforts while you were on remand recently. He provided me a letter from Central Health Counselling Service pointing to your progress. The letter seems genuine and positive. For a man of your background and history Mr Winterburn, that progress can only be supported. I realise (and you admit yourself actually, very honestly) that you are very good at saying and doing just the right thing to the officials at Corrections before then reverting to your old ways.

[47] So by instinct, I am sceptical. On the other hand Mr Winterburn you are nearly 50 and you are, if only for that reason, about due for a breakthrough. This may be it. You have said you are willing and able to undertake whatever counselling might be available to you during the course of your sentence. I am going to see that as the light at the end of this very long tunnel.

[48] I would discount final sentence by 15 per cent for your plea (in respect of the drug-related counts) and your rehabilitative efforts which I specifically want to encourage.

Concurrent and cumulative

[49] Now which parts are cumulative and which parts are concurrent. In the end,

it’s the final wrap up that counts but I need to go through this.

[50] The sexual offending, drug offending and attempting to pervert the course of justice ought to be cumulative – that is, I ought to add those sentences together. They are different in kind and they occurred at different times.

[51] The violent offending sentence of one year is concurrent – that is it should run alongside the sexual counts because, in my view, it relates closely them, or they relate closely to the sexual counts.

[52] As I have said the firearms counts are properly treated on a totality basis with your drug offending, since the firearms are there in support of the drug offending, in my view.

[53] On the sexual violation counts a starting point of eight years; on the drug offending a starting point of four years; and on the attempting to pervert the course of justice a starting point of one year produces on my maths, 13 years. I add a further four months uplift, as I have said, on account of your past offending. This produces a total of 13 years four months, and I reduce that by 15 per cent (roughly) to 11 years four months as your effective end sentence.

[54] So that’s the finite sentence and now I have to address the Crown’s

application for preventive detention.

Preventive detention

[55] In light of your background Mr Winterburn, the Crown makes that application. Such a sentence, if I were to impose it, would not be designed to punish you at all. Rather, it would be required if I am satisfied the community must be protected from your repeated and dangerous offending because that offending would be likely to continue if and when you were released from a finite sentence.

[56] I must be satisfied that you are convicted of a qualifying offence – you are:

the sexual violation counts qualify. I must be satisfied that you are over the age of

18 at the time of the offence – you were. And I must be satisfied that you are likely to commit another qualifying sexual or violent offence if you are released from a finite sentence. And that is where my focus is Mr Winterburn.

[57] There are five factors the law says I have to take into account: (a) your past pattern of serious offending;

(b) the harm you have already caused the community;

(c) any information tending to show you are likely to commit similar offences in the future;

(d) whether you have failed to address the causes of your offending in the past or, if you have tried, whether your attempts have failed to address those causes; and

(e) the principle that a long but finite sentence is to be preferred if this provides enough protection for the community.

[58] To help me with this assessment, I have been provided with two reports. One from a psychologist who interviewed you over four hours – Nicola Johnston; and one from a psychiatrist – Dr Greg Young who also interviewed you. I will address what those specialists say in the course of my discussion.

Offending history

[59] You have a long and sorry history of relevant violent offending, including of course as you know Mr Winterburn, violent offending while you are in prison. Most of your offending was in or before the 1990s. But then you were in jail between

1992 and 2011 – a total of 19 years. Even then you stabbed a fellow inmate in 1997 and you assaulted a prison officer in 2008. That is why you were not released until

2011.

[60] I acknowledge you have no history of sexual offending which is the lead offending in this case. But as the Crown points out, the fact that your current offending is somewhat different to your past does not necessarily mean preventive detention is not going to be available. No, I must consider all of the evidence in deciding whether you are likely to commit more qualifying violent or sexual offences on your release. That’s my focus.

Harm

[61] On the question of harm, obviously you caused a great of harm to S in the current bout of offending, and your lawyer accepts that harm to her is harm to the community – that must be right. And of course your history shows you have wreaked havoc in the community for most of your adult life.

Tendency to commit serious offences in the future

[62] The psychologist Ms Johnston says you are at very high risk of committing further violent offences in the future and at high risk of committing sexual offences in the future. She is of this view as a result of applying standard static and non-static tests with a particular focus on your history of offending. She says that you are indiscriminate in your choice of victim and you are both impulsive and instrumental in the ways you offend. The report (not surprisingly) concluded that drug use is a significant element in your offending. Ms Johnston also recognised that, when you are in the right environment – drug-free and supported – you seem able to manage your dangerous impulses reasonably well.

[63] Dr Young was less willing to make a prediction of your future behaviour because he said actually you aren’t suffering from a mental illness, you had a personality disorder, something inherent in your make up, not necessarily something that can be healed. But he too felt that drug use was a significant part of your offending. It was noted that you had indicated a willingness to give up drugs and live a better life but, wisely, Dr Young also noted that you had said that before. Both specialists acknowledged your willingness going forward to engage in appropriate programmes.

Absence or failure of efforts

[64] The Crown rightly points out that despite receiving psychological counselling and engaging in rehabilitative programmes while you were in prison you have reoffended both in prison and now, out of it, subsequent to your most recent release. That shows, the Crown says, that whatever genuine efforts you and Corrections have made to stop continued offending, those efforts have failed.

[65] Mr Snell on the other hand pointed to a lack of psychological follow-up after completing your treatment programme in 2004 and 2005 and, he says, the level of violence in your most recent offending, while serious, is not what it was when you were a younger man. He suggests you are changing, or at least that you’re capable of change.

[66] I agree that it is a concern that whatever attempts you have made in the past they have all failed Mr Winterburn. It may be suggested that you were doing and saying what you knew you needed to do and say but you did not in reality intend to change at all. You were just gaming the system. But, the treatment you did receive was a decade ago and then you were a man in your late 30s. You’re not that man any more.

Lengthy determinate sentence

[67] Finally, I must impose as the law says, a determinate (that is a limited) rather than an indeterminate sentence if I consider the public is sufficiently protected by that means.

Conclusion

[68] Mr Winterburn, your history is a history of a dangerous and violent gangster. There’s just no dodging that. You’re a stand-over man it seems. Although having met you for the first time now that wouldn’t be description I would immediately jump to. Anyway your history suggests you are pretty good at standing over.

[69] Your latest round of offending, though the level of violence is not what you have shown in the past, demonstrates that you have not yet managed to put that MO

behind you. You are still, to some extent at least, a dangerous and violent stand-over man. The question for me is whether at the end of a finite sentence you are still likely to be that man. Neither of the assessors’ reports provides me much help in making an assessment as to whether Robert Winterburn in his mid to late 50s will still be that man. Frankly to be honest Mr Winterburn, I doubt it. Or at least I am not satisfied that this is likely and that the community will still then need to be protected from you.

[70] You have shown (albeit by a narrow margin), that put in the right context and drug-free, you can live a non violent and clean life. About time. You are still, I accept, an angry man and you still resort to type when you are under pressure for whatever reason that might be, and when you’re smoking methamphetamine. But you have taken some steps in accepting treatment and this time it may not be just words.

[71] I note that you have re-patched with the notorious chapter – is that correct? Well I know the leadership in that chapter – the captain Roy Dunn and the 2IC Edge Te Whaiti and Harry Tam. These are men who have rejected the lifestyle that you have been living up until now, who have said for their chapter, that life will be a thing of the past. And if your leadership is saying that, you must follow. Do you follow?

[72] So there are some things in your favour. At some point in the next decade Mr Winterburn, you will, I expect, as an older and hopefully a wiser man, come to see these old stand-over ways as a part of your past. You will see these old ways as not just destructive of those around you but as destructive of yourself. And as destructive of your wairua. At least it seems to me that such a scenario is just as likely as the other more dangerous one.

[73] I am not therefore satisfied that you are likely to commit another qualifying sexual or violent offence at the end of this sentence. I think that with age and proper treatment and support around you may you well put that self destructive life behind you. I hope you prove me right. So, I consider that a lengthy determinate sentence

provides adequate protection for your community, and mine. And I decline to impose a sentence of preventive detention accordingly.

Final sentence

[74] On a totality basis, you are sentenced therefore to a term of imprisonment of

11 years four months. In my formal sentencing remarks I will set out the precise sentences for each matter but I need not detain you here for that purpose.

[75] Formal sentences will be as follows:

(a) on each of the sexual violation counts concurrent terms of seven years

four months’ imprisonment;

(b) on each of the threatening to kill and assault counts concurrent terms of one year imprisonment;

(c) on each of the drug and firearms charges concurrent terms of three years’ imprisonment but those concurrent three year terms to be as a group of sentences cumulative on the sexual violation counts; and

(d) on the attempt to pervert the course of justice one year imprisonment cumulative.

Minimum period of imprisonment

[76] A minimum period of imprisonment is sought. Both counsel agree that one is appropriate. The Crown says it should be two-thirds. Mr Snell says it should be half. In my view, your minimum period of imprisonment should be the full two- thirds of your lead offence – that is four years 11 months, and I impose that accordingly.

[77] Stand down please.

Williams J