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High Court of New Zealand Decisions |
Last Updated: 23 November 2018
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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
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CRI-2017-055-690
[2018] NZHC 2418 |
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THE QUEEN
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v
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IOSEFA BOB COE
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Hearing:
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13 September 2018
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Appearances:
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L Radich and S Norrie for the Crown P Le’Au’Anae for the
Defendant
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Sentence:
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13 September 2018
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SENTENCING NOTES OF GORDON J
Solicitors: Crown Solicitor, Manukau Counsel: M Le’Au’Anae, Auckland
R v COE [2018] NZHC 2418 [13 September 2018]
Introduction
[1] Mr Coe you appear today for sentence on charges arising from two separate offending incidents against the same victim. On 2 March 2018, you pleaded guilty to one charge of causing grievous bodily harm with intent to cause grievous bodily harm.1 That charge related to offending in April 2017. It carries a maximum penalty of 14 years’ imprisonment.
[2] A jury trial began on 19 March 2018 on charges relating to offending that took place in February 2017. The charges were:
(a) Assault with intent to injure;2
(b) Kidnapping;3
(c) Reckless driving;4 and
(d) Driving with excess breath alcohol (third or subsequent).5
[3] You pleaded guilty to the charge of driving with excess breath alcohol (third or subsequent) on the first morning of the trial when you were arraigned.
[4] On the third day of the trial, after you had given evidence and after the Crown’s closing address to the jury, you pleaded guilty to the three remaining charges.
[5] Your sentencing was to have proceeded on 12 July 2018. You sought an adjournment of that hearing as you wished new counsel to be appointed. I granted your application for an adjournment and the new date set was 15 August 2018. New counsel was appointed by Legal Services, but the lawyer advised the Court that you were not happy with your representation. Mr Le’Au’Anae subsequently advised the
1 Crimes Act 1961, s 188(1).
2 Section 193. The maximum penalty is a term of imprisonment not exceeding three years.
3 Section 209(b). The maximum penalty is a term of imprisonment not exceeding 14 years.
Court on 13 August 2018 that he had been appointed. He sought a short adjournment. I granted his application and set the new date of today. That all explains why this sentencing hearing has been delayed.
[6] The Crown submits that you should be sentenced to a term of preventive detention with a minimum term of around eight years’ imprisonment. Mr Le’Au’Anae, on your behalf, submits that a sentence of preventive detention is not required.
[7] Before I decide whether to impose such a sentence, I must first identify what the appropriate finite sentence should be.
[8] I will begin by outlining the facts of your offending. As the charges relate to separate instances of offending, I will divide the factual background into the February 2017 offending and the April 2017 offending.
Factual background
[9] Mr Le’Au’Anae says that you acknowledge the facts as contained in the summary of facts. It is, however, open to the sentencing Court to accept as proved any fact that was disclosed by the evidence at trial.6 In the end, the summary of facts in this case reflects the evidence given by the victim. The trial evidence was, as would be expected, more detailed. Where I refer to factual matters that are not in the summary of facts, I have accepted those facts based on the evidence of the victim.
[10] You and the victim were in an on-and-off relationship from 2014. She became pregnant and your son was born in November 2015. As at February 2017, the relationship had ended. The victim was the sole provider for your son.
[11] On 23 February 2017, you wanted to reignite the relationship with the victim. You telephoned her and asked if she wanted to go camping with you at Kawakawa
6 Sentencing Act 2002, s 24(1)(a).
Bay. She said she did not want to go camping. But she agreed to go to dinner with you to discuss various financial issues relating to you owing her money.
[12] At approximately 8 pm on 25 February 2017, you picked up the victim in your car from her address in Manurewa. You had been drinking.
[13] When the victim again refused to go camping with you, an argument ensued. You began driving erratically and were speeding in excess of 120 kilometres per hour in a 50 kilometre per hour zone along Te Irirangi Drive, Māngere. The victim screamed at you to slow down, urging you to consider your son along with others on the road. You ignored her pleas.
[14] You eventually stopped at a traffic light near a service station on Te Irirangi Drive. The victim got out of the car and walked over to the service station where you had pulled up in your car. She sat on the curb and told you that she would take a taxi back home.
[15] After a period, you offered to drive her home, repeating that you were now calm. She eventually agreed. But, once inside the car, you again began speeding along Te Irirangi Drive at 120 kilometres per hour.
[16] The victim pleaded with you to let her out of the car. You responded by running a number of red lights so she could not get out of the car when it would have otherwise stopped.
[17] You then began driving along the South-Western motorway. At this stage, you started to assault the victim, punching her to the head a number of times with your left hand. The car ran up against the median barrier as she tried to defend herself by hitting and kicking you.
[18] The victim briefly considered whether her best option was to escape by jumping out of the car. She opened the passenger door, before deciding that jumping would likely kill her. She shut the door.
[19] You eventually exited the motorway onto George Bolt Memorial Drive. But you continued to drive through red lights at speeds of 120 to 130 kilometres per hour. You told the victim that you were going to take her to the beach and beat her up.
[20] As the car approached the intersection of George Bolt Memorial Drive and Tom Pearce Drive near the airport, the victim decided to jump out of the car. As the car slowed down to take the corner, she did just that. She landed on the road near a grass verge on the left side of the intersection. She was fortunately uninjured.
[21] The police attended the scene and located you nearby in your car. You were aggressive. Upon arrest, you produced a breath-alcohol reading of 507 micrograms of alcohol per litre of breath. You stated on three occasions to the constable that you had “back-handed” the victim in the face while in the car, as she had pulled on the steering wheel while you were driving.
[22] The April 2017 offending occurred while you were remanded on bail for the February 2017 offending.
[23] You were subject to a bail condition not to associate with the victim. But, on 8 April 2017, you contacted the victim and stated that you had been kicked out of your address and needed somewhere to stay. The victim agreed that you could sleep on the couch at her address.
[24] On the evening of 8 April 2017, you and the victim again argued over money that you owed her. She allowed you to sleep on the floor of her bedroom for one night after you told her that you had nowhere to go. You begged throughout the night to be taken back.
[25] On the morning of 9 April 2017, the victim told you to leave and that your relationship was over. After begging her to let you stay, you retrieved a knife from the kitchen, you returned to the victim’s bedroom and stabbed her in the face, neck and hands.
[26] You primarily targeted the victim’s face. You only stopped the attack when the blade of the knife broke off from its handle. You then climbed out of a bedroom window, leaving the victim lying wounded on her mattress.
[27] Later that day, you sent a number of text messages to the victim. These included the messages stating, “I love ur new face” and, “Hehehe new life new face”.
Approach to sentencing
[28] As I said earlier, I must first determine an appropriate finite sentence, before going on to consider whether I should impose a sentence of preventive detention.
Setting a finite sentence involves three steps.7
[29] The law says that I should first set a starting point for your sentence to take into account the facts of your offending, and then adjust it up or down taking into account your personal circumstances. The last step is to consider what discount you should receive for your guilty pleas.
[30] I also note that throughout this process, I will have regard to the purposes and principles of sentencing contained in ss 7 and 8 of the Sentencing Act 2002. Of particular relevance to this type of offending is the need to hold you accountable for the harm done to the victim,8 to promote in you a sense of responsibility for and acknowledgment of that harm,9 to denounce your behaviour,10 and to deter you and others from committing similar offending.11
[31] I must also take into account the gravity of your offending, including your degree of culpability,12 the seriousness of the type of offence,13 the need for consistency with appropriate sentencing levels14 and the need to impose the least restrictive sentence that is appropriate in the circumstances.15
7 R v Taueki [2005] NZCA 174; [2005] 3 NZLR 372 (CA); Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.
8 Section 7(1)(a).
9 Section 7(1)(b).
10 Section 7(1)(e).
11 Section 7(1)(f).
12 Section 8(a).
13 Section 8(b).
14 Section 8(e).
15 Section 8(g).
Starting point
[32] The offending is interconnected in that the same victim is involved. Concurrent sentences of imprisonment are appropriate.16 In setting a starting point, I focus on the April 2017 offending and take the charge of causing grievous bodily harm with intent to cause grievous bodily harm as the lead offence. I will then impose an overall uplift to reflect the totality of the February 2017 offending.
[33] The Crown submits that I should take a starting point of 10 years’ imprisonment for this lead charge. Mr Le’Au’Anae, on your behalf, submits that a starting point of eight years’ imprisonment is appropriate.
[34] The tariff case for the charge of causing grievous bodily harm with intent to cause grievous bodily harm is the decision of the Court of Appeal in R v Taueki.17 In that case, the Court categorised the seriousness of this type of offending through three sentencing bands.18 The Court identified 14 aggravating features which are relevant to assessing what band the offending should fall within.19
[35] Band one attracts sentences of between three and six years’ imprisonment. It is appropriate for offending at the lower end of the spectrum.20 Band two attracts sentences of between five and 10 years’ imprisonment. It is appropriate for offending which features two or three of the identified aggravating features.21 Band three attracts sentences of between nine and 14 years’ imprisonment. It is appropriate for serious offending which has three or more of the aggravating features and their combination is particularly grave.22
[36] Section 9 of the Sentencing Act also contains a range of aggravating features. By reference to that section, and the factors identified by the Court of Appeal in Taueki, I consider that there are the following aggravating features of your offending:
16 Section 84(2).
17 R v Taueki, above n 7.
18 At [34].
19 At [31](a)-(n).
20 At [36].
21 At [38].
22 At [40].
(a) Extreme violence23 – you primarily targeted the victim’s face and head with the knife, resulting in multiple serious stab wounds. You only stopped the attack when the blade of the knife broke off.
(b) Use of a weapon24 – as the Court stated in Taueki, “[t]he use of a lethal weapon such as a firearm or a knife will be a serious aggravating factor”.25 Here, you used a knife with a blade approximately 15 centimetres long to inflict the wounds. I take care not to double count here given the use of a knife ties into the extreme violence factor.
(c) Attacking the head26 – as I have noted, you primarily targeted the victim’s face and head. The photographs of the victim filed with the Crown’s sentencing submissions graphically illustrate the injuries. You stabbed and slashed her face at least 13 times. One of the cuts ran from the victim’s temple across her cheek to her right ear, continuing across the ear almost transecting it. Two others were to her right and left upper eyelids. Attacks to the head can have “particularly serious consequence” given it is the most vulnerable part of the body.27 Here, the consequences could have been fatal. Again, I take care not to double count.
(d) The extent of harm28 – in addition to the attacks to the head, there was also a penetrating injury of the victim’s chest to the pectoral muscles, as well as defensive wounds to both her right and left hands. She required immediate surgical repair followed by plastic surgery and scar management. She was hospitalised for two weeks. She has permanent facial scars. One scar runs from her temple across her cheek to her right ear. She has also required hand function recovery and therapy. She has not regained full function of her right ring finger. In her victim impact
23 At [31](a).
24 At [31](d). See also Sentencing Act, s 9(1)(a).
25 At [31](d).
26 At [31](e).
27 At [31](e).
28 Sentencing Act, s 9(1)(d).
statement, she describes the physical and emotional trauma that your offending has caused.
(e) Offending within the sanctity of the home29 – the attack took place within the sanctity of the victim’s home.30
(f) Vulnerability of the victim31 – the victim was in her bed at the time. Additionally, Mr Le’Au’Anae accepts that there is a disparity in size or strength between you and the victim.
[37] In addition to the above factors, the Crown submits that there is a breach of trust (as a separate aggravating feature). The Crown relies on the apparently cyclical response of the victim to your previous violence (for example, the February 2017 offending and her relenting after your insistence that you be allowed to stay in April 2017). I do not consider that this is a separate aggravating feature. The two of you were no longer in a relationship at the time. I consider the aggravating features above sufficiently cover the seriousness of the offending.
[38] There are no mitigating features of your offending.
[39] As to what band in Taueki in which I should place the offending, I bear in mind that the task of placing the particular combination of features in its proper relative position on the scale of seriousness is a matter of judgment.32 In other words, a formulaic approach should not be adopted.33
[40] In my view, and bearing in mind the degree of overlap within the aggravating features I have identified, I place the offending within the upper end of band two or the lower end of band three of Taueki.
29 At [31](j). See also Sentencing Act, s 9(1)(b).
31 At [31](i). See also Sentencing Act, s 9(1)(g).
32 At [28].
33 At [30].
[41] I now turn to previous cases to assist with setting the starting point. I first mention two cases referred to by the Crown.
[42] The first is the case of Setu v R, where a starting point of 10 years’ imprisonment, while considered stern, was upheld on appeal.34 The second is R v W, where the sentencing Judge placed the offending at the upper end of band two of Taueki and adopted a starting point of nine years’ imprisonment.35
[43] I have also considered the following cases:
(a) Shen v R,36 where the sentencing Judge placed the offending at the very top of band two of Taueki. The Court of Appeal upheld a starting point of 10 years’ imprisonment, commenting the offending could have been categorised in band three of Taueki;37
(b) R v Singh,38 where Woolford J placed the offending in band three and adopted a starting point of 10 years’ imprisonment;39
(c) Wairau v R,40 where Thomas J identified five aggravating features of the offending, namely premeditation, serious injury, use of a knife, the vulnerability of the victim and the forced invasion of the home.41 The Judge placed the offending within band three of Taueki, adopting a starting point of 11 years’ imprisonment on the two violence charges.42 On appeal, the Court of Appeal upheld the starting point.43
35 R v W [2016] NZHC 1076 at [30].
36 Shen v R [2017] NZCA 103.
37 At [37].
38 R v Singh [2016] NZHC 1666.
39 At [28].
40 Wairau v R [2015] NZCA 215.
41 At [15].
42 At [15]-[16].
43 At [43].
Analysis
[44] I accept the Crown’s submission that the offending is comparable generally to that in Setu. However, I regard the offending in Setu as more serious. The appellant in that case broke into the victim’s house with the intention of assaulting either the victim or her alleged new partner. The attack was, in that sense, premeditated. I also note that while the actual assault in this case appears more serious, in that a knife was used as opposed to a large piece of wood, the victim in that case similarly suffered permanent scarring to her face.
[45] I also regard the offending in this case as comparable to that in R v W. Although the victim was stabbed 13 times in this case compared to four times with a broken knife shaft, there was the degree of premeditation in that other case. The defendant chased the victim through the street, and a broken knife shaft was only used because the victim had managed to break the blade off during a struggle. The defendant also stomped on the victim’s head with his boot while she was lying on the road. That being said, the resulting injuries in this case are more serious.
[46] The case of Singh is also comparable in that it involves an ex-partner where the defendant had been in her home for some time before the attack. The offending in Singh was more serious, however, in that it involved the use of two separate weapons, an ornamental sword and an air pistol, the latter being brought to the scene. The children of the victim and the defendant were also in the room and became involved in the attack.
[47] The case of Shen was more serious offending than in this case given the much more significant degree of premeditation and the nature of the assault.
[48] Based on my assessment under Taueki and considering the cases I have mentioned, I consider that a starting point of nine years’ imprisonment is appropriate.
Uplift for February 2017 offending
[49] The Crown submits that a global starting point in the realm of four years’ imprisonment would be appropriate if you were being sentenced on a standalone basis
for the February 2017 offending. But, having regard to the principle of totality, the Crown submits that an uplift in the vicinity of three years’ imprisonment is appropriate.
[50] Mr Le’Au’Anae submits that an overall uplift of two years’ imprisonment is instead appropriate.
[51] The lead offence for the February 2017 offending is the charge of kidnapping.
[52] There is no tariff case for kidnapping. In R v Wharton, the Court of Appeal observed that “[t]here can be an infinite variety of circumstances which underlie the crime of kidnapping”.44 But, it reiterated in relation to forms of kidnapping:
[11] ... others, regrettably becoming more common, are part of the activity of a former spouse or partner who defies a protection order and detains a fearful, often battered and helpless female ex-partner for motives of power, revenge, jealousy or irrational anger ...
[53] The Crown submits that two cases are of relevance. They are R v JWTW45 and
R v Gurnick.46 I have also considered R v S,47 Heke v R,48 and Boyle v R.49
[54] The Crown submits that the February 2017 offending is similar to that in Gurnick. It notes that while the element of police pursuit was not present in this case, the gravity of the offending is relative.
[55] I agree that this offending is generally comparable. However, I regard the offending in that case as slightly more serious due to the appellant’s conduct at the end of the police chase.
[56] I similarly regard the case of Boyle as comparable given it involved the appellant assaulting the victim in a vehicle which he had forced her into.
44 R v Wharton [2003] NZCA 63; (2003) 20 CRNZ 109 (CA) at [11].
45 R v JWTW HC Hamilton CRI-2010-019-3093, 28 July 2011.
46 R v Gurnick [2002] NZCA 249; (2002) 19 CRNZ 627 (CA).
47 R v S [2016] NZHC 1457.
48 Heke v R [2016] NZCA 38.
49 Boyle v R [2017] NZCA 173.
[57] Taking all of the February 2017 offending into account, I consider that a starting point for that offending of three years and six months’ imprisonment is appropriate.
[58] Therefore, for reasons of totality, I consider that an overall uplift of two years’ imprisonment is appropriate.
[59] This results in an overall starting point of 11 years’ imprisonment.
Personal circumstances
[60] I now need to consider your personal circumstances to see whether I should adjust your starting point.
Pre-sentence report dated 8 June 2018
[61] Mr Coe I now refer to matters personal to you by reference to the pre-sentence report. You are 41 years of age. You have a number of previous convictions. Only several of those relate to violence. You have served a lengthy sentence of imprisonment for a couple of those charges.
[62] You claimed that the police summary of facts with regard to the February 2017 offending was exaggerated. Your account of events departed significantly in places from the evidence of the victim which I have accepted. For example, you denied hitting the victim while driving.
[63] You also claimed that you had no memory of the April 2017 offending because you had been drinking alcohol throughout the night. You claimed that you only stabbed the victim twice.
[64] Nevertheless, you pleaded guilty on the basis of the summary of facts for the April 2017 offending. You also, through your counsel, accept the summary of facts for the February 2017 offending, which reflects the victim’s evidence. And I must sentence you on that basis.
[65] You express strong attachments to your Samoan background. You claim that you want to return there as life has become too complex for you here. You have three children and you have expressed a wish to be a part of your children’s lives.
[66] Ultimately, the pre-sentence report writer assessed you as at a high risk of reoffending, given your poor driving record and history of extreme violence. You did not show or express any outward signs of remorse.
[67] Having summarised the report, I deal first with the aggravating features relating to you personally.
[68] The Crown submits that I should uplift your sentence by six months to take into account your previous convictions. Mr Le’Au’Anae accepts that is an appropriate uplift.
[69] You have several relevant previous convictions. First, you have two previous convictions from 2007 for wounding with intent to cause grievous bodily harm. This related to you attacking a man with a bottle outside a fish and chip shop after a verbal altercation. After the victim attempted to exact revenge later that day, you stabbed him in the right side of his neck with a knife. The injury was life threatening. Judge Treston sentenced you to six years’ imprisonment on 14 May 2009.50
[70] While there was a nine year gap between that offending and the present offending, I note that you were imprisoned for part of that period, being released on 6 October 2014.
[71] There is also a conviction for assaulting a prison officer in 2011.
[72] Further, you breached a bail condition not to associate with the victim when you committed the April 2017 offending.
50 Police v Coe DC Blenheim CRI-2007-006-1586, 14 May 2009 at [17].
[73] I consider that a six-month uplift is appropriate for these two matters.
[74] That would bring the sentence up to 11 years and six months’ imprisonment.
[75] There are no mitigating features relating to you personally. This morning, Mr Le’Au’Anae handed me a letter from you. You state you are very remorseful for your actions. However, that statement needs to be seen in the context of the matters reported in the pre-sentence report. It also needs to be seen in the context of what you also say in your letter, namely that you are writing the letter in the hope it will give you a chance to live with your family in New Zealand. In other words, my view is that your expression of remorse reflects a concern for the position you are in, rather than it being an expression of true remorse.
Guilty plea
[76] Finally, I address the discount for your guilty plea.
[77] The Supreme Court has stated that a defendant is entitled to a discount for his or her guilty plea.51 But any reduction cannot exceed 25 per cent.52
[78] You pleaded guilty to the April 2017 offending on 2 March 2018 at the second trial callover. This was two weeks before trial. You then pleaded guilty to the charge of driving with excess breath alcohol (third or subsequent) on the morning of the trial, and the rest of the February 2017 offending on the third day of trial, after you had given evidence and after the Crown’s closing address to the jury.
[79] The Crown submits that any discount should be nominal. It submits that its evidence remained unchanged when you entered your guilty plea to the April 2017 offending. It did not preclude the need for a trial, nor for the victim to give evidence. It cannot be said that your guilty plea was an articulation of remorse or victim empathy, nor that it spared the expense and administration of conducting the trial.
51 Hessell v R, above n 7, at [75].
52 At [75].
[80] I agree with the Crown’s submissions. But I accept that you are still entitled to a small discount for your guilty plea in relation to the charge of causing grievous bodily harm with intent to cause grievous bodily harm. The victim was spared the distress of giving evidence in relation to the April 2017 offending, which was much more serious and which would have been more traumatic for her. Therefore, I give you a five per cent discount. That equates to six months.53
[81] I cannot regard your guilty pleas during the trial as reflecting an acceptance of responsibility for the full nature and extent of your offending, especially given your comments to the pre-sentence report writer. You did not articulate any remorse. Instead, you placed blame on the victim. I do not give you a discount for the rest of your guilty pleas in relation to the February 2017 offending.
Effective end sentence
[82] I would therefore impose an end finite sentence of 11 years’ imprisonment.
Minimum period of imprisonment
[83] The Court may impose a minimum period of imprisonment if it is satisfied that the one-third default minimum which usually is served is insufficient either in:54
(a) holding the offender accountable for the harm done to the victim and the community by the offending:
(b) denouncing the conduct in which the offender was involved:
(c) deterring the offender or other persons from committing the same or a similar offence:
(d) protecting the community from the offender.
53 I have calculated this discount on the basis that I adopted a starting point of nine years’ imprisonment for that charge and then uplifted that by six months for Mr Coe’s previous convictions. A discount of five per cent off that equates to six months, bringing that sentence back down to nine years’ imprisonment. I then add the overall uplift of two years’ imprisonment to reflect the February 2017 offending to reach the effective end sentence of 11 years’ imprisonment.
54 Sentencing Act, s 86(2).
[84] The sentencing purposes of deterrence, denunciation and protection are particularly important in cases involving extreme violence against a current or former partner. In Taueki, the Court of Appeal acknowledged that:55
[57] In cases of serious violence, where denunciation and deterrence are both important sentencing values, and where protection of the community from the offender may well be a relevant factor, it can be expected that minimum periods of imprisonment will not be rare or even uncommon ...
[85] The Crown submits that if a finite sentence of imprisonment is imposed, a minimum period of two-thirds would be appropriate to sufficiently denounce your conduct and to protect the community. Mr Le’Au’Anae submits that no minimum non-parole period is required.
[86] I accept that a minimum period of two-thirds would be appropriate in this case. All of the sentencing purposes I have referred to are engaged.
Preventive detention
[87] Preventive detention is a sentence of imprisonment for an indefinite period. If imposed, you will be released only when the Parole Board is satisfied you no longer pose a risk to the community.
[88] The Court of Appeal has said on a number of occasions that the purpose of a sentence of preventive detention is not punitive.56 Its purpose is to “protect the community from those who pose a significant and ongoing risk to the safety of its members”.57
[89] There are three prerequisites for imposing a sentence of preventive detention.58 The first two require the offender to have committed a qualifying violent or sexual offence and to be over 18 years of age at the time of the offending. There is no dispute that those prerequisites are met in your case.
55 R v Taueki, above n 7.
56 R v C [2003] 1 NZLR 30 (CA) at [5].
57 At [5]. See also Sentencing Act, s 87(1).
58 Sentencing Act, s 87(2)(a)-(c).
[90] The third prerequisite is as follows:59
(c) the court is satisfied that the person is likely to commit another qualifying sexual or violent offence if the person is released at the sentence expiry date (as specified in subpart 3 of Part 1 of the Parole Act 2002) of any sentence, other than a sentence under this section, that the court is able to impose.
[91] I am required to consider reports from at least two appropriate health assessors about the likelihood of you committing a further such offence.60 Two reports were commissioned for that purpose. The first was a report dated 14 June 2018 from Ms Huddleston, a registered clinical psychologist. The second was a report dated 25 June 2018 from Dr Goodwin, a consultant psychiatrist.
[92] I will first summarise Ms Huddleston’s report.
[93] Ms Huddleston made the comment, as noted by the pre-sentence report writer, that your insight into your violent behaviour was poor because you tended to minimise your actions and the circumstances of your offending, placing some responsibility on external factors. You had different versions of events in relation to both sets of offending. That appears to be a pattern, as you have a different version of events in relation to your sexual offending in 2003 compared to that of the police. However, I note that the Crown was unable to obtain a copy of the summary of facts or sentencing notes for this offending.
[94] You do have a history of alcohol abuse. It is clear that this contributes significantly to your violent offending, as you lose control and react violently in emotionally charged situations. Ms Huddleston commented that you are most likely to be violent when you are intoxicated in emotionally escalated situations, such as within a relationship or towards an ex-partner.
[95] As a result, Ms Huddleston assessed you as at a high risk of future violent offending. But, she assessed your sexual offending risk as minimal due to your
59 Section 87(2)(c).
60 Section 88(1)(b).
desistance from offending as indicated by your lack of sexual convictions over the past 15 years. However, as I have already noted, you have spent some of that time in custody where your opportunities for reoffending were limited.
[96] As to addressing your problems, Ms Huddleston noted that you have attended several programmes in the past relating to alcohol abuse. Although you were enrolled in the Faletalatala Alcohol, Drugs and Gambling Facts and Effects Group programme in 2016, it appears that you did not complete that course. You stopped attending your appointments.
[97] You did, however, complete an alcohol treatment group based on-site at Mt Eden Correctional Facility on 12 December 2017. Case notes indicate that you participated well in this group which covered pre-disposing and precipitating factors for alcohol use, perpetuating factors and protective factors.
[98] You told Ms Huddleston that you had participated in anger management programmes in the past. One such programme was the Saili Matagi Rehabilitation Programme at Spring Hill Corrections Facility from 31 May 2010 to 28 September 2010. This was a 72-session violence prevention programme developed for adult male offenders of Pacific Island descent who have committed violent offences.
[99] You also attended individual psychological treatment in 2005 concerning your sexual offending. As to that incident, you explained that by reference to particular conflict within your extended family, particularly between you and your aunt. You did express some shame, however.
[100] You appear to be motivated to undertake further treatment. You told Ms Huddleston that you would co-operate with treatment for your violent offending behaviour, including undertaking treatment at a Special Treatment Unit Rehabilitation Programme. You also agreed to attend alcohol and drug treatment.
[101] Ms Huddleston did not recommend additional treatment with regard to your past sexual offending.
[102] Ultimately, Ms Huddleston concluded that you will need a lengthy period of treatment to address your predilection towards violence. As it is clear that your cognitive distortions are entrenched, you will need intensive treatment to replace old negative thinking patterns with new thinking patterns.
[103] Ms Huddleston also commented that you will likely be eligible for an extended supervision order after completing your prison sentence.
[104] I now turn to the second report from Dr Goodwin.
[105] Dr Goodwin first noted that your thought form, namely the way you constructed sentences and expressed ideas, was not abnormal. Your thought content did not contain any obvious delusional or paranoid themes.
[106] Your performance during the interview did not suggest to Dr Goodwin that you suffered from an intellectual disability or significant cognitive impairment. You do not fulfil the criteria for a mental disorder. However, he noted you do have a history of alcohol abuse and cannabis abuse.
[107] Dr Goodwin also noted that you did not express any remorse for your actions. You believe that women use you for money, and you stated that you wanted to avoid women and be deported to Samoa.
[108] Ultimately, Dr Goodwin concluded that you were at a high risk of similar violent reoffending in the future, particularly so if you continue to abuse alcohol.
[109] Dr Goodwin commented that you have only partly engaged previously with community based alcohol and drug services.
[110] Relying on your history of offending, the index offending and the opinions in the two reports, I consider there is enough evidence to indicate you are likely to commit another qualifying violent offence.
[111] I must now consider whether to exercise my discretion to impose a sentence of preventive detention. Section 87(4) of the Sentencing Act sets out a range of considerations that I must take into account in considering whether to impose such a sentence:
(a) any pattern of serious offending disclosed by the offender’s history; and
(b) the seriousness of the harm to the community caused by the offending; and
(c) information indicating a tendency to commit serious offences in future; and
(d) the absence of, or failure of, efforts by the offender to address the cause or causes of the offending; and
(e) the principle that a lengthy determinate sentence is preferable if this provides adequate protection for society.
[112] I have already referred to your previous criminal history. In my view, you have not committed a sufficient number of sexual offences to constitute a clear pattern of serious sexual offending. In 2003, you were convicted of one offence of sexual violation by unlawful sexual connection.
[113] However, these are your fourth and fifth convictions for violent offending.
[114] I have already referred to your conviction in 2009, on two charges of wounding with intent to cause grievous bodily harm committed in 2007. You attacked the 16-year-old victim on two separate occasions, but on the same day. The second attack came extremely close to killing him. You were sentenced to six years’ imprisonment.
[115] In 2012, while serving that sentence of imprisonment, you were convicted of assaulting a prison officer. Your explanation was that you pushed the prison officer after being pushed down and kicked. This was not consistent with the prison reports that you had punched a prison officer twice to the face in an unprovoked attack. You were sentenced to one month’s imprisonment.
[116] You were released on 6 October 2014 and you began your relationship with the victim in late 2014. There is a reported history of violence throughout the relationship culminating in the February and April 2017 offending, after the relationship had ended.
[117] I consider that there is a pattern of serious violent offending.
Seriousness of the harm to the community
[118] There is no doubt that your offending caused significant harm to the victim in this case. Violent offending, particularly domestic violence like this, has a significant impact on the victims, as well as their families and the community.
Information indicating a tendency to commit serious offences in the future
[119] There is a degree of overlap between this factor and the third prerequisite.61
[120] Both Ms Huddleston and Dr Goodwin assessed you as at a high risk of violent reoffending, particularly if you continue to abuse alcohol. Ms Huddleston is also of the opinion that you have few protective factors that would reduce your risk of future violent offending.
[121] I consider that the contents of the two reports establish that you have a tendency to commit serious offences in the future.
The absence of, or failure of, efforts by the offender to address the cause or causes of the offending
[122] It is of concern that, despite the programmes you have attended, you nevertheless offended in the way you did, particularly in the April 2017 offending.
[123] As Ms Huddleston records, in September 2010, you completed the Saili Matagi Rehabilitation Programme. As I have mentioned, that was a 72-session violence prevention programme developed for adult male violent offenders of Pacific Island descent. You also self-report that you have previously undergone anger management programmes.
61 Leonard v R [2013] NZCA 553 at [8].
[124] In June 2016, you were referred to Tupu Pacific Island Alcohol Drug and Gambling Services by the victim in relation to a previous charge of driving with excess breath alcohol. The programme was for eight weekly sessions. From the information available, it appears that you did not receive a conviction for the offence after demonstrating to the Court that you had been assessed by Alcohol Services and you were to undertake treatment. However, you were later discharged from the programme, having failed to engage.
[125] In October 2017, you completed an alcohol treatment programme at Mt Eden Correctional Facility.
[126] Ms Huddleston comments on the effect of previous interventions. Particularly in relation to the Saili Matagi Rehabilitation Programme. She says it is apparent from your index offending, following completion of that programme, that your cognitive distortions are entrenched and you will need intensive treatment to replace old negative thinking patterns with new thinking patterns. It is apparent that therapeutic intervention to date has not curbed your violence. It might be argued that, in fact, your violence has escalated.
[127] Further, the pre-sentence report states that you exhibited no empathy for the victim and no clear admission of wrong doing. That is echoed in Ms Huddleston’s report. That would appear to be at odds with your reported willingness to rehabilitate.
[128] On the other hand, there was a period when you were without offending, subsequent to your release, prior to the offending for which you are being sentenced.
[129] Ms Huddleston says that, looking at your present history, it is apparent that you have not, to date, adequately addressed your offending. She says that you will require intensive treatment in the areas of violence and alcohol and drug use. She says it will be important that you demonstrate your sincere motivation to participate in these programmes to enable you to make tangible treatment gains.
[130] You say that you are motivated to complete the relevant programmes. The pre- sentence report writer also commented that you were receptive to counselling for anger and relationship issues.
The principle that a lengthy determinate sentence is preferable if this provides adequate protection for society
[131] As I have already noted, Ms Huddleston says that you will need a lengthy period of treatment to address your predilection towards violence and other risk factors. A lengthy finite sentence will provide the stability and consistency you need to address your tendency towards violence.
[132] In my view, treatment programmes will provide significant rehabilitative benefit for you. The opinion of both Ms Huddleston and Dr Goodwin is that your alcohol abuse contributes significantly towards your violent offending. I am going to give you a chance to address this. The appropriate programmes to help you are available. I consider you should complete Corrections programmes relating to anger management, violent offending and alcohol abuse.
[133] I note the Crown’s suggestion that there is the ability for the Department of Corrections to apply for an extended supervision order. In my view, this is a relevant consideration under this factor.62
[134] By a fine margin, I consider that a sentence of preventive detention is not necessary for the protection of the community, provided that you undertake the appropriate programmes to assist you.
Protection order
[135] The Crown seeks the imposition of a protection order in favour of the victim. Section 123B of the Sentencing Act applies. Before making a protection order, the Court is required to determine four matters. One of those is that a protection order is not in force against the offender for the protection of the victim of the offence. There is no evidence that this is the case. I do not make a protection order.
62 R v Parahi [2005] 3 NZLR 356 (CA); Grant v R [2017] NZCA 614 at [50]- [53].
Disqualification from driving
[136] The mandatory minimum disqualification for reckless driving is six months.63 The mandatory disqualification for driving with excess breath alcohol (third or subsequent) is at least 12 months.64 The Crown accepts that given the two offences arise from the same incident, the disqualification periods should be concurrent.65
[137] The Crown does not submit that the disqualification period be deferred pursuant to s 85 of the Land Transport Act 1998, due to the nature of the sentence likely to be imposed.
Result
[138] Mr Coe, would you please stand.
[139] I sentence you to 11 years’ imprisonment on the lead charge of causing grievous bodily harm with intent to cause grievous bodily harm. You will be required to serve two-thirds of that sentence before being eligible for parole.
[140] I also sentence you to:
(a) One year’s imprisonment on the charge of assault with intent to injure;
(b) Three years’ imprisonment on the charge of kidnapping;
(c) One month’s imprisonment on the charge of reckless driving; and
(d) Six months’ imprisonment on the charge of driving with excess breath alcohol (third or subsequent).
[141] The sentences in (a) to (d) above are all to be served concurrently with the sentence of 11 years’ imprisonment on the lead charge.
63 Land Transport Act, s 35(2)(b).
64 Land Transport Act, s 56(4)(b).
65 Syratt v Police [2016] NZHC 1972.
[142] On the charge of reckless driving, you are disqualified from holding or obtaining a driver’s licence for six months.
[143] On the charge of driving with excess breath alcohol (third or subsequent), you are disqualified from holding or obtaining a driver’s licence for 12 months.
[144] The two periods of disqualification are concurrent and are not deferred.
[145] Stand down please Mr Coe.
Gordon J
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URL: http://www.nzlii.org/nz/cases/NZHC/2018/2418.html