IN THE HIGH COURT OF NEW ZEALAND
WHANGANUI REGISTRY
CRI-2016-083-000473
[2017] NZHC 983
THE QUEEN
v
WATTIE ADOLF KAHU
Hearing:
15 May 2017
Appearances:
Michele Wilkinson-Smith for the Crown
Debbie Goodlet for the Defendant
Judgment:
15 May 2017
SENTENCING NOTES OF MOORE J
R v KAHU [2017] NZHC 983 [15 May 2017]
Introduction
[1]
Wattie Adolf Kahu, at the age of 50, you appear for sentence. You have
pleaded guilty to charges of aggravated burglary,1 kidnapping,2 burglary,3 recklessly
causing injury4 and two charges of using an imitation firearm to prevent arrest.5
[2]
The Crown, as it is required to, has given notice of its intention to seek a
sentence of preventive detention. This is the second time a Judge sentencing you has
been invited to impose such a sentence. The last time was in this Court in October
2009. Then the Court declined the Crown’s application and, instead, imposed a
finite term of six years’ imprisonment.
[3]
You accept that whatever I decide today it is inevitable you will be going to
jail again for a long time. The question for me is whether, whatever term I impose,
will it be finite (in other words measured in a specific number of years) or will it be
non finite in the form of preventive detention (in other words an indefinite term of
imprisonment)?
[4]
However, before I turn to consider that issue I must set out the facts on which
you are to be sentenced. These are contained in the summary of facts with which
you agree.
[5]
I am conscious that nothing I am about to say will come as a surprise. The
facts will be well-known to you. However, because the sentencing process is an
important public judicial function which must be undertaken in open Court I am
required to set out those facts which I regard as relevant to the sentence I shall
impose.
1
2
3
4
5
Crimes Act 1961, s 232 maximum penalty of 10 years’ imprisonment.
Crimes Act,s 209; maximum penalty of 14 years’ imprisonment.
Crimes Act, s 231; maximum penalty of 10 years’ imprisonment.
Land Transport Act 1998, s 36(1)(a); maximum penalty of five years’ imprisonment.
Arms Act 1983, s 54(1); maximum penalty of seven years’ imprisonment.
Background facts
[6]
Early on the morning of Sunday, 20 March 2016 you and another man,
Mr Walker, broke into a vacant house in Whanganui. It was being renovated. The
two of you stole decorating equipment worth about $2,000.
[7]
You drove away with no lights on and, no doubt because of that, you came to
the attention of the Police who told you to stop.
[8]
Instead of stopping, you took off at speed hitting a fence and driving through
a stop sign before losing control, spinning out and crashing into a parked car. You
and Mr Walker ran off. Not long afterwards Mr Walker, who had suffered a shoulder
injury in the crash, gave himself up at the Police station.
[9]
The Police did not find you but they knew who you were. They spoke to
your partner who told them that you did not want to be found and so an operation
was planned to arrest you a few days later when you were due to attend an
appointment at Whanganui Probation at 8:00 am on 24 March 2016.
[10]
That day, just minutes before 8:00 am, the Police received a call about
someone loitering around the back of a residential address in Whanganui. The
description fitted you. Just minutes later the Police received another call from
someone at another address just a few properties away. As a result, a Police cordon,
which included armed officers and a dog handler, was set up.
[11]
Not long after, the victim, who for the present purposes I shall refer to as AB
and whose home was apparently within the cordon, was about to go to work. As she
stood in her driveway an officer told her to go back inside.
[12]
Just a few minutes later you jumped over the fence into her property carrying
what looked like a genuine pistol but what was, in fact, an air gun which had been
modified in a way which made it look authentic.
[13]
You went to the front door and asked to be let in. AB unlocked the front door
and you followed her inside. You say you told her that the gun was plastic but as is
obvious from what happened later she believed it was a real gun. Her partner was
asleep in the couple’s bedroom. You took her into the kitchen and told her that you
did not want to be caught. Several times, you said, “Don’t tell them” and “Don’t tell
on me”. You kept looking out at the windows.
[14]
AB told you that her partner was asleep. You threatened to shoot him if she
told anyone, a comment which must puts the lie to any suggestion you told her the
gun was not real. You also threatened to shoot her and then said that you were just
joking. Despite this, you continued to hold the gun in one hand and her in the other.
You took her through various rooms in the house looking out the windows. Again
you told her you were not going to shoot her. Finally, you climbed out the bedroom
window where her partner was sleeping.
[15]
Once outside you began to climb over the neighbour’s fence. One of the
Police told you to stop. You responded by presenting the gun at him. Believing the
gun was real the Police chased you and called on you to surrender. Instead you
turned round and pointed the gun at them. Unsurprisingly they shot you. You
suffered injuries to your left leg and the back of your head. You were taken to
hospital where you refused treatment.
[16]
It was only after these events that it became apparent that what was believed
to be a firearm was, in fact, an air pistol modified to look like a Glock 17. To the
Police, you said you wanted to be shot by them. You said that when you pointed the
gun at the Police officer it was an accident. You said that you modified the air pistol
to make it look more realistic and you also asked that your apologies be conveyed to
AB for pointing the pistol at her.
Previous offending
[17]
Your previous offending is comprehensively discussed in the pre-sentence
report and in Dr Simons’ psychology assessment prepared on behalf of the
Department of Corrections.
[18]
It reveals that your first recorded offence was robbery in 1981 when you were
aged just 14. You were admonished. When you were 16 you were sentenced to
supervision for dishonesty offending and a month after that you received your first
sentence of imprisonment. Since that time you have spent almost all of your life in
jail.
[19]
Some of those terms were lengthy. They include a four year sentence in 1984
for kidnapping and aggravated offending. In 1986 you were sentenced to two years’
imprisonment for violent offending and in 1988 you were sentenced to eight years
and 10 months for kidnapping and other violent and dishonesty offences. In 1994
you were sentenced to a term of four years and six months’ imprisonment for assault
with a stabbing or cutting instrument and other offending.
In 1996 you were
sentenced to 12 and a half years’ imprisonment for kidnapping and related serious
violent offending and in 2009 you received a six year sentence for using a firearm to
resist arrest and violent offending against your partner. At your sentencing in 2009
the Crown applied for preventive detention.
[20]
A more in depth examination of the circumstances of this catalogue of
offending reveals an obvious and repetitive pattern of violence, use of weapons,
home invasion and kidnapping. For example, the 1988 offending involved you
breaking into a house, pointing a rifle at the occupants, discharging the firearm and
then forcing one of the occupants into a car at gunpoint.
[21]
In 1996 you assaulted your then wife by threatening her with an axe and then
entering a house and chasing and stabbing the occupants. You also broke into a shop
and held a knife to the throat of the shop keeper and later you kidnapped a woman by
pointing a gun to her head. That was your fifth conviction for kidnapping.
Personal circumstances
[22]
Your background is one which is sadly all too familiar. From a young age
you were exposed to alcohol and drug use. You became involved in gang life and
from that, inevitably, you were led into criminal behaviour. Apparently you left
school aged 12, unable to read or write. At 13 you joined the Black Power gang
because, you say, it offered you protection. You began to abuse cannabis at about 16.
This led you to abuse other drugs, notably party pills and methamphetamine.
[23]
During the very brief periods when you have been out of jail you have tended
to finance yourself through crime.
[24]
You have a partner of 11 years. Just one day after your release from prison in
2007 you found yourself back in jail having been convicted of assaulting her.
[25]
After being released from your most recent term of imprisonment, through
the help of support networks, you obtained employment at the local freezing works.
You took the opportunity to engage in relationship counselling and alcohol and drug
treatment programmes. However, you say that after being released from prison
everything happened too quickly and although you were employed for some three
months, you returned to substance abuse to manage the stresses of being in the
community. You were workplace drug tested, failed and lost your job. This then led
to a downward spiral of further substance abuse. You began to associate with your
old circle of anti-social friends with the inevitability that the cycle of re-offending
would be reignited.
[26]
And it was. After the burglary when you and Mr Walker took off you knew
the Police were looking for you. You say that you had taken methamphetamine. You
say that you knew the house was surrounded and that was how you encountered AB.
You say you tried to run onto the lawn in the hope that the Police would shoot you
because you wanted to die. You expressed concern that AB had become embroiled
and you said you felt shameful because you had let down those who had been
supporting you, including your partner.
[27]
Interestingly, Dr Simons records that during your most recent period of
remand on these charges you are described as positive and respectful to staff and
other prisoners. You have been employed as a cleaner and have indicated an interest
in developing your reading ability. You have started reading simple books from the
prison’s library.
Health assessors’ reports
[28]
Dr Simons has provided a psychological report to the Court under s 88 of the
Sentencing Act 2002 (“the Act”). She has noted that according to one actuarial risk
measure, the RoC*RoI, your score was high indicating a very high risk of reoffending. However, she did note that you were working towards pro-social change
and you continue to have the support of your long suffering and plainly very loyal
partner. Dr Simons concluded that the risk of violent or general offending was very
high and was likely to be preceded by a return to substance abuse, loss of social
stability (for example employment) and association with anti-social peers and a
criminal lifestyle. Certainly, these factors seem to have been the catalyst for your
present offending.
[29]
A second report has been provided by Dr Lehany. Dr Lehany has noted your
expressed desire to stop offending. If that is sincere, he expressed the view that it
was reasonably possible for you to do that. Certainly, there was nothing before him
which led him to the view that that was either likely or unlikely. However, given
your history, predictions based on statistical models still point to a high risk of reoffending. Despite this, Dr Lehany observed that the logic behind that prediction
was questionable because population-based statistics are not a useful predictor for
future behaviour in individuals.
[30]
On your behalf, Ms Goodlet obtained an opinion from Dr Nuth. Dr Nuth is a
well-known and respected clinical psychologist. He subjected you to a battery of
diagnostic psychological tests. From these, he advised that you have low levels of
impression management in that you do not wish to create a favourable impression in
others. He reports you as realistic and matter of fact without attempting to glorify or
minimise what you have done. He also administered actuarial measures which
revealed a high risk of both general and violent offending. He did, however, note
that you appeared to have some insight into your offending and a growing
understanding of your lack of pro-social skills. He concluded you were sincere in
your desire and motivation to change and you seem to have at least, some emerging
insight into how you can avoid re-offending, for example distancing yourself from
gangs, finding employment and continuing to enjoy the support of your partner.
However, he also says that these factors are not presently sufficient to displace or
combat your chronic, lifelong criminogenic tendencies. For you to stop re-offending
it is important that you do not lose motivation to change he says. In conclusion, he
commented that although preventive detention may be warranted, such a course
would make you ineligible for an extended supervision order (“ESO)”. He believed
this was an important feature in your case because he was of the view you would
benefit from being subject to an ESO.
Treatment history
[31]
It is important for me to cover what attempts have been made in the past to
treat and rehabilitate you because this is a factor which I am required to take into
account when considering the appropriate end sentence.
[32]
The fact of the matter is that you have been the recipient of many treatment
interventions. Between 1988 and 2000 you attended six programmes designed to
address your substance abuse and anger problems.
[33]
You participated in individual counselling with a social worker in 2001 and
with a departmental psychologist in 2005. Despite this you relapsed into alcohol and
drug abuse.
[34]
You completed the Montgomery House Violence Prevention Programme in
2006. It was reported that as a result you developed some insight into the drivers of
your offending but you still held anti-social beliefs.
[35]
Despite receiving treatment from a departmental psychologist after your
release you found it difficult to implement relapse prevention strategies.
[36]
In 2013 you were enrolled in a drug treatment programme but left it because
of your intimidating behaviour. That may be because you struggle in a group
therapy context.
[37]
You also had many sessions with a departmental psychologist between 2013
and 2014. You were described as polite, respectful, engaged and motivated. You
were offered further appointments in 2014 and 2015. Although you attended you did
not participate in treatment. Again this may have reflected your aversion to group
treatment sessions because that feature seems to be something of a theme and it
operates as a bar to your effective treatment. It is apparent you find group therapy
sessions difficult.
[38]
I turn now to consider what the finite sentence should be in the event I decide
that preventive detention should not be imposed.
Analysis
Finite sentence
[39]
Both counsel suggest the imposition of concurrent sentences for all your
offending. I agree that is the correct approach. Having regard to s 84 of the Act, I
am of the view your offending comprised a connected series of events which make
concurrent sentences appropriate.
(a)
Starting point
[40]
I turn now to fix a starting point for the lead offence. Ms Wilkinson-Smith,
for the Crown, submits that the lead charge is the aggravated burglary with the
kidnapping charge dealt with by way of uplift. Other Judges have adopted this
approach and so shall I.6
[41]
Ms Wilkinson-Smith presses for a starting point in the region of six to seven
years. She emphasises the vulnerability of the victim and the profound effect your
offending has had on her. And that, of course must be true. She also submits the
possession of a realistic pistol aggravates the offending but acknowledges there is no
evidence of premeditation on your part.
[42]
On your behalf Ms Goodlet acknowledges the various features aggravating
your offending, these being the invasion of privacy, the threat of violence, the
duration of the offending and the profound impact your offending has had on your
victim. She contends for a starting point at the bottom of the range identified by the
Crown.
6
See for example R v Warwick HC Auckland CRI-2010-057-000508, 15 June 2010.
[43]
I commence my analysis with reference to the well-known case of R v Mako,7
which, while concerned with cases of aggravated robbery, may be applied by
analogy to cases of aggravated burglary.8 In Mako the Court of Appeal identified
various features which should be used to assess the seriousness of the offending. I
now examine those relevant to the circumstances of your offending:
(a)
The degree of planning and preparation
As the Court said in Mako, criminal activity over a sustained period
indicating care and sophistication is to be regarded more seriously
than spontaneous exploits.9 I accept your offending is more in the
nature of a spontaneous exploit.
premeditation or planning.
There is no evidence of
Rather, your offending might best be
described as a spontaneous and impromptu reaction driven by panic
and a total lack of judgement.
(b)
The number and type of weapons
The number and types of weapons, as well as how they are used, will
bear upon the level of culpability.10 The actual and potential danger
should be evaluated. The use of unloaded firearms generally gives
rise to less danger. However, if the object is to convince victims that
firearms are loaded the impact on victims is not lessened simply
because the gun is not real or is not loaded. As I have already referred
to, you claim you tried to show the victim the gun and told her not to
“freak” because it was plastic. I simply do not accept that claim.
However, it appears you told the victim more than once you were not
going to shoot or hurt her.
In those circumstances, while not
minimising the terrifying nature of AB’s ordeal, the possession of the
imitation pistol aggravates the offending to only a low to moderate
7
8
9
10
R v Mako [2000] 2 NZLR 170.
R v Drewett [2007] NZCA 48 at [15].
At [36].
At [39].
extent. The pistol posed no actual or potential danger and it seems
you gave AB some assurances as to her safety.
(c)
The nature of the premises
In Mako the Court referred to the Crimes (Home Invasion)
Amendment Act 1999 and the need to give effect to the increased
penalties provided for under that statute. That Act has since been
repealed.
However, the invasion of a residential address is an
aggravating factor in terms of s 9(1)(b) of the Sentencing Act. The
degree of violation inherent in a home invasion cannot be understated.
Every citizen is entitled to feel safe and secure inside their home. As
a direct result of your actions, AB can no longer live where she did
because of what you did to her that morning. She moved because she
was scared you might get out of jail and finish her off. This seriously
aggravates the offending.
(d)
Actual violence
Actual violence on top of threats and intimidation takes the conduct
into another dimension and must attract a considerably higher rating
in overall seriousness. To your credit, you did not mete out any actual
violence beyond holding AB by her arm and directing her around the
house. She was not physically injured in any way. So this feature
presents only to a slight degree.
(e)
Threats of violence
Threatened violence falling short of actual violence is relevant to
culpability. It is also an aggravating factor in terms of s 9(1)(a) of the
Act.
You threatened to shoot AB’s husband if she went to the
authorities.
You also told AB you would shoot her, although
apparently you later said you were joking. In any event, this was
clearly a terrifying ordeal for her. Understandably she says she is still
scared and jumpy. Your actions were clearly intimidating. Against
that, it seems you did tell her you were not going to shoot her and that
you were not going to hurt her. I assess this factor as moderate.
(f)
Detention of victims
In your case this feature is reflected in the separate charge of
kidnapping which must be given recognition at sentencing. It is not
clear from the summary of facts how long you actually detained AB.
Plainly, it was not fleeting because you directed her into several
different parts of the house. Equally, however, the detention does not
appear to have been sustained. After moving through the rooms of the
house you left AB in the lounge and climbed out the bedroom
window. The period of detention falls towards the shorter end of the
spectrum when compared against other kidnapping cases.
(g)
Victim impact
The impact on your victim is of considerable importance in assessing
the seriousness of the offending.11 That is because, as recognised in
the Australian case of R v Henry, offending such as this involves the
domination of the offender’s will by force or the threat of force over
the victim’s right to go about their own affairs. As I have said, AB has
clearly been affected by your offending. Given what you did to her
that is entirely understandable. Plainly she has suffered psychological
harm and I take this into account in assessing the seriousness of your
offending.
[44]
With these features in mind, I turn next to consider your offending against the
background of the cases Ms Wilkinson-Smith has referred me to.
(a)
The most recent is the 2015 case of Archbold v R.
There the
defendant went to a residential address for the purpose of collecting
11
At [46].
money from the victim.12 After the victim said he did not have any
money, the defendant punched him in the forehead and then
brandished a tyre iron, threatening to take out the victim’s eye. A
struggle ensued. The defendant struck the victim over the head with a
coffee table. The Court of Appeal considered the starting point of
four years and six months adopted by the sentencing Judge as stern
but within range.
(b)
In R v Drewett the defendant gained entry to his former partner’s
address by smashing a glass window pane.13 He was arrested and
then granted bail. While on bail, he returned to her address armed
with a wooden stick and punched her several times. The Court of
Appeal considered a starting point of four years and six months’
imprisonment to be appropriate.
(c)
In R v Schuster the defendant entered his brother’s flat with a loaded
pump action shotgun.14 He fired the gun into a television and then
into a wall in a bedroom where a flatmate was in bed with her partner.
He detained them for a period. Thomas J adopted a starting point of
six years for the charge of aggravated burglary.
(d)
R v Anderson involved a charge of aggravated robbery and two
charges of kidnapping.15 The defendant had “car jacked” a woman
and her child while they were stopped at traffic lights. The defendant
held the weapon to the woman’s chest, demanded money and
threatened to kill her or her baby. He instructed the victim to drive,
took money from her wallet and told her and her child to get out of the
car. Williams J considered the appropriate starting point to be “at
least seven years’ imprisonment and possibly a little higher”.
12
13
14
15
Archbold v R [2015] NZCA 493.
R v Drewett [2007] NZCA 48.
R v Schuster [2015] NZHC 2833.
R v Anderson HC Auckland CRI-2006-090-005921, 26 September 2006.
(e)
In Spence v R the Court of Appeal upheld a sentence of five years and
three months’ imprisonment for two counts of kidnapping and two
counts of aggravated robbery.16 Ms Spence and a co-offender forced
their way into a car where two teenagers were sleeping after attending
a party. They threatened the victims, punched them, commandeered
the car and drove around with the victims for two hours before
stopping on a country road, abandoning the victims and driving off.
[45]
A number of factors differentiate your offending from this catalogue. Unlike
the cases I have just summarised, your offending did not involve actual, physical
violence or the use of a loaded firearm. Furthermore, unlike most of the cases cited
by the Crown, your offending was not premeditated or planned. In Archbold, the
Court of Appeal considered a starting point of four years and six months to be stern.
That offending involved serious violence and premeditation.
[46]
So, against that back drop, what is the appropriate starting point for the
aggravated burglary in your case? In my view, a starting point of four years is
required to reflect the aggravating factors I have summarised earlier. However, this
starting point, lower than the cases cited by the Crown, also recognises the relatively
modest levels of violence and spontaneous nature of your offending.
[47]
An uplift is required to reflect the kidnapping charge. As I have already
remarked, the period of detention, while not fleeting, does not appear particularly
prolonged. In my view, had the kidnapping charge stood alone, a starting point of no
more than two years would have been appropriate, having particular regard to
R v Paea and the other cases Whata J cites in it.17 Much of your culpability is
already reflected in the sentence I have adopted for the aggravated burglary charge.
In my view, an uplift of six months is appropriate bringing the starting point to one
of four years and six months’ imprisonment.
16
17
Spence v R [2011] NZCA 209.
R v Paea [2015] NZHC 1705 at [31]-[40].
(b)
Uplift for other offending
[48]
I turn now to the balance of your offending. I start with the burglary charge.
I have had regard to the case of Gibbs v Police and the authorities it refers to.18 In
my view, if this offending had stood alone, a starting point in the region of 20
months would have been appropriate. But on a totality basis I uplift the starting
point by a year.
[49]
Then there is the charge of reckless driving causing injury. In this case, the
reckless and dangerous nature of your driving caused your co-offender to suffer
minor injuries. What I find more troubling is that your driving was committed to
evade the Police.
I agree with the Crown that a starting point of two years’
imprisonment would have been appropriate had the offending stood alone. I will
uplift the starting point by a further year having regard to totality principles.
[50]
Finally, there are the two charges of using an imitation firearm to prevent
arrest. The Crown refers to offending committed by you in 2007 when you pointed a
sawn off double-barrelled shotgun at two constables who tried to place you under
arrest for domestic violence. At sentencing, Mallon J adopted a starting point of
three years for the firearm offending.19 This took into account a charge of escaping
custody. Your most recent offending can clearly be distinguished because it involved
an imitation gun. A material reduction from the starting point adopted by Mallon J
would be appropriate had this offending stood alone. Having regard to totality, I
uplift the starting point by six months.
[51]
That results in an overall starting point of seven and a half years’
imprisonment.
(c)
Uplift for previous offending
[52]
As I have already canvassed, you have an extraordinary number of previous
convictions. Mallon J in 2009 described your criminal history as “appalling”. Many
of your previous convictions have involved the use, threatened use or possession of
18
19
Gibbs v Police [2015] NZHC 2460 at [16]-[21].
R v Kahu HC Wanganui CRI-2007-083-1598, 19 October 2009.
firearms.
You have previous convictions for burglary and you have previous
convictions for evading Police. A significant uplift is required to reflect your
previous relevant convictions.
The sentencing purposes of deterrence and
denunciation loom large in your case. Your lawyer responsibly acknowledges an
uplift of two years is appropriate and I agree with her.
[53]
This means the final starting point, before personal factors are taken into
account, is nine and a half years’ imprisonment.
Personal mitigating factors
[54]
I am not satisfied there are any mitigating factors which would justify any
discount beyond your guilty pleas. However, in respect of that, Ms Wilkinson-Smith
accepts you are entitled to the full 25 per cent discount.
[55]
This is because I am advised that the previous Crown Solicitor initially
agreed to withdraw the kidnapping charge. Later this was changed and it was agreed
the aggravated burglary charge would be withdrawn on the basis the total criminality
could be adequately dealt with by the kidnapping charge so long as you were
sentenced on all the facts contained in the summary and the available sentencing
range would not be affected. However, on reviewing the cases on kidnapping the
Crown realised that if it withdrew the aggravated burglary this would restrict the
finite sentence available in a way which was not appreciated by either party during
the negotiations. The Crown, properly in my view, accepts that your co-operation in
agreeing not to insist it is bound by the earlier agreement demonstrates a high level
of acceptance of culpability and that you should receive either a full discount for
your guilty pleas in the event I impose a finite sentence or a lower minimum nonparole period if a sentence of preventive detention is imposed.
[56]
I am of the view that this approach is justified and that the full 25 per cent
discount should be applied in the event of a finite sentence.
[57]
Applying that figure would bring your finite end sentence to seven years’
imprisonment.
Minimum period of imprisonment
[58]
The Crown submits that you should serve a minimum period of imprisonment
(“MPI”). Ms Goodlet appears to accept this is inevitable although she asks that it be
no more than five years.
[59]
As you will know, the usual rule of thumb under the Parole Act 2002 is that a
prisoner must serve at least one third of their sentence before they may be considered
for release.
[60]
However, s 86 of the Act allows the Court to impose a longer period if it is
satisfied that the normal one third would be insufficient for the purpose of holding
the offender accountable for the harm done, denouncing their conduct, deterring
others and protecting the community.
[61]
Under s 86 I can order an MPI of up to two thirds of the full term of the
sentence.20 In your case that would be four and a half years.
[62]
I am satisfied this is a proper case in which to order an MPI. To do so
recognises the harm your actions have had on the victims of your offending. It
denounces your conduct and it is designed to deter you and others who may be
similarly inclined.
[63]
However, of the purposes listed in s 86(2) of the Act the most important in
my view is the need to protect the community and to ensure that you are not released
before there is demonstrable evidence you have successfully completed the
recommended programmes designed to improve your insight into your actions and
reduce the risk to others once you are released. In my view an MPI of four years
reaches the balance between giving effect to s 86(2) and providing time for you to
demonstrate you are ready to be released back into the community and it would be
safe to do so.
[64]
For these reasons I am satisfied that the appropriate MPI in your case would
be one of four years.
20
Sentencing Act 2002, s 86(4)(a).
Preventive detention
[65]
Having fixed what I would regard as an appropriate finite sentence I must
now consider preventive detention.
[66]
Preventive detention is a sentence of imprisonment for an indefinite period.
If you are sentenced to preventive detention you would only be released if the Parole
Board was satisfied you no longer posed a risk to the community. The purpose of
preventive detention is to protect the community from those who represent a
significant and ongoing risk to the safety of its members.21 A sentence of preventive
detention may be imposed if I am satisfied you are likely to commit another
qualifying sexual or violent offence if released at the expiry date of the finite
sentence.22
[67]
Section 87(4) of the Act sets out the five criteria I am required to consider in
deciding whether a sentence of preventive detention should be imposed. These
include whether there is any pattern of serious offending disclosed by your criminal
history, the seriousness of the harm to the community you have caused, any
information indicating a tendency to commit serious offences in the future, the
absence of or failure by you to address the cause or causes of your offending and the
principle that a lengthy finite sentence is preferable if this provides adequate
protection for the community.
[68]
It is accepted by Ms Goodlet that the pre-requisites which permit me to
consider preventive detention have been satisfied in your case.
[69]
In terms of the five factors I have just mentioned the central question is
whether preventive detention should be imposed in order to protect the public. It is
not necessary that the offences you are being sentenced for should justify a long
determinate sentence.23 The focus must be on future risk rather than the impact of
the past or present offending.24 Thus it is necessary to take into account your entire
21
22
23
24
Sentencing Act 2002, s 87(1).
Sentencing Act 2002, s 87 (2)(c).
Hartley v R [2014] NZCA 162 at [142].
R v Dean CA 173/03, 17 December 2004 at [74].
criminal history in order to assess patterns.25 The overall assessment is one of
likelihood analysis and that assessment must be supported by reports from at least
two health assessors although, ultimately, the assessment is a judicial one.
[70]
I now turn to consider each of the five factors in turn. First, the pattern of
offending.
(a)
The pattern of offending
[71]
I have already touched on this aspect when discussing your previous
offending and referring to aspects of Dr Simons’ report. As Ms Wilkinson-Smith
points out you not only have a long and unenviable criminal history which started
when you were just 14 but of the 17 times you have been sentenced almost every one
has included a conviction for violence. What emerges from any consideration of
your offending are the features of home invasion and kidnapping, often armed with a
knife or a gun. You have also brandished weapons at the Police and you have
threatened to kill regardless of age or gender. Your choice of weapons has included
knives, a bayonet, an axe, firearms and now an imitation pistol. Another disturbing
pattern is your rapid recidivism each time you are released from jail. Ms Goodlet, as
she must, accepts this criterion is satisfied.
(b)
Seriousness of harm to the community
[72]
The pre-sentence report assesses you as posing a high risk of harm to others.
That is barely surprising. Your current charges and extensive past history of violence
provides some indication of your likelihood to use violence again in the future and
even put your own life at risk if confronted by the Police.
[73]
But unlike some of your earlier offending which has escalated in seriousness
over the years, the most serious of your current offending is different. It involved the
use of an imitation firearm without any physical injury.
25
R v Hetherington [2015] NZCA 248 at [83] to [85].
(c)
Tendency to commit serious offences in the future
[74]
Ms Wilkinson-Smith notes that all three expert reports say that you are at
high risk of violent re-offending. Your actuarial risk is assessed as very high and the
community-based sentences as well as the various terms of imprisonment you have
served have not deterred or reduced your risk of re-offending. There certainly has
been a pattern of violent offending occurring in short order after your release from
prison, usually preceded by substance abuse, loss of stability and involvement with
anti-social peers.
Despite engaging in various treatment and rehabilitation
programmes you have continued to re-offend. There are, however, some indications
that you have begun to make changes in your behaviour and while these are limited
it has been suggested, apparently for the first time, that you may have the capacity to
benefit from a further opportunity to participate in treatment programmes.
[75]
Ms Goodlet submits that the RoC*RoI actuarial measure is based solely on
static predictors in such a way that features such as your motivation to change, the
support you have in the community, treatment and counselling are not factored in.
There is some cogency in that submission.
[76]
And when the VRS test was conducted it was found that 17 of these 20
positive dynamic factors were identified as moderately or strongly relating to a
reduced risk of violent re-offending. Dr Simons did not, however, comment on the
appropriate duration of treatment although she did say external monitoring and
oversight would be required for the foreseeable future. She noted that if you were to
receive a finite sentence then you should be considered for an ESO which can be
made for up to 10 years26 with an option for further terms. She also noted the
availability of an intensive monitoring condition for up to 24 hours a day. 27 That
condition would be available as part of an ESO but not on parole.
[77]
There is also Dr Lehaney’s report. Interestingly, he was unable to give any
clear guidance on the risk of further offending because he was of the view there were
no reliable markers. He noted that you had expressed a desire to stop offending and
an aspiration to spend the rest of your life living offence-free with your partner.
26
27
Parole Act 2002, s 107I(4).
Parole Act 2002, s 107IAC. This could be imposed for a maximum of 12 months.
While recognising this change would be a difficult one, Dr Lehaney was positive
about your ability to do so and seemed impressed by your apparent sincerity to
change. He was of the view that if you were, in fact, genuine then it was possible
you could make that change.
(d)
Absence of or failure of efforts to address the causes of offending
[78]
Unsurprisingly, Ms Wilkinson-Smith submits that the pre-sentence report
reveals that previous interventions have had little or no success in mitigating the risk
you pose. You are rightly described as a recidivist offender with entrenched antisocial behaviour which requires intensive interventions. Although you have not been
diagnosed with any mental illness you have consistently been diagnosed as having
substance abuse disorders and a personality disorder.
[79]
Ms Goodlet places some weight on Dr Nuth’s report. Dr Nuth commented
that although you have a long history of general and violent re-offending, there is
evidence of a growing insight and understanding of what is required by you to
change. He said you had some “protective strategies” including your motivation and
understanding. Your partner has also been a positive influence. Dr Nuth was of the
view that your desire for change was genuine and that it was important that you not
lose heart or motivation and that the momentum of your desire to change is
permitted to continue.
[80]
Ms Goodlet says that both Dr Lehaney and Dr Nuth accept your desire to
change and that this should be supported and encouraged. Also, while you have
been on remand, you have finally confronted your reading and writing difficulties;
something which understandably you have previously been too embarrassed to
accept. One of the reasons behind this is your desire to undertake the STURP group
programme which the experts have indicated is likely to be of real help to you.
Developing your reading and writing skills will also help you in terms of your
ultimate reintegration into the community and will enhance your chances of gaining
employment. I note you have been accepted into the OAD programme.
(e)
Principle that a lengthy determinate sentence is preferable if this provides
adequate protection for society
[81]
Ms Wilkinson-Smith submits that finite sentences have been preferred in
cases where they may give the offender an opportunity to address the causes of their
offending and to participate in rehabilitation. However, she submits that where there
is less confidence in an offender’s likely response to treatment the indefinite term of
preventive detention provides a greater incentive to rehabilitate and in your case, that
is the submission she makes. The Crown accepts that the possible imposition of an
ESO following a finite term may tip the balance against preventive detention in a
finely weighted case. However, the Crown is clear. This should not be seen as an
alternative to preventive detention. Preventive detention is appropriate where it is a
proportionate response to the total criminality of the offending and where its
deterrent and protective features, including the ability to recall, provide the best
means by which to manage risk.
[82]
Against that, Ms Goodlet submits that the most appropriate sentence is a
finite one with a view to an ESO at the end of the sentence. She says this would
encourage and motivate you to engage in treatment and rehabilitative assistance and
ensure the highest level of support in monitoring on release.
In your case,
Ms Goodlet says preventive detention is not required to protect the public. Instead,
it is in the interest of the public that you continue to be motivated to change and that
is best achieved by a finite custodial sentence and an ESO.
Analysis
[83]
There can be no doubt that there has been a pattern of serious violent
offending in your case. You have caused serious harm to the community over many
years. Until recently your offending has been characterised by escalating violence,
harm and risk to others. But I also regard it as significant that after your most recent
release from jail you found a job and for what seems to be for the first time, you did
not immediately re-offend. But when you found the stresses of life outside prison
began to overwhelm you, you reverted to type. You took drugs. You lost your job.
You got back into the wrong crowd and you returned to what you know best;
committing crimes. However, I regard it as noteworthy that in your most recent
offending you did not injure anyone except your co-offender Mr Walker. The gun
was a fake. Terrifying as it was for AB you told her you were not going to hurt her
and you did not. It seems the detention was comparatively brief. That represents a
change, albeit modest, in your usual modus operandi.
[84]
Taking the other three factors together I am satisfied that you have
demonstrated a willingness to engage in rehabilitation. At least two of the report
writers believe that your expressions of a desire to change are likely genuine.
Plainly, previous attempts at rehabilitation have been largely ineffective. However,
in my view, this reflects less of a failing on your part than it does the reality of the
difficulties of rehabilitating someone with a background like yours who has spent
most of their adult life in prison. Although I gather you do not like being described
as institutionalised, you accept that is what you are. It is not at all surprising or
unusual that significant, ongoing long-term rehabilitation is needed and there is a
limit to the extent which prison can do in that regard to help you. However, it will
allow you to complete programmes such as STURP if your reading and writing skills
improve but you will still need close monitoring and support after you are released
from jail.
[85]
I regard it as noteworthy that there are no reports of disciplinary issues while
you have been in prison. This underscores the views of others than when you are
released you become overwhelmed. You struggle to cope and then you turn to drugs
and, inevitably, a downward spiral starts which leads you to re-offend. That was the
case in your present offending.
[86]
I am also encouraged in this view by a letter from the Manager of the
Prisoners’ Aid and Rehabilitation Society. He has more than 27 years experience
working with prisoners and their rehabilitation. He has worked with you on your last
two releases from prison. Most recently, he has seen evidence in you of a sincerity
in your statements about wishing to make positive changes. He says he believes you
have come to the stage in your life where you are seeking to change your behaviour
and there is evidence of this change. The recommendation made to me is that any
sentence I impose should not be so long that you lose motivation to continue the
changes you have started in your life.
[87]
Mr Kahu, yours is a finely balanced case. I have thought long and hard about
what I should do with you.
But for the factors I have just discussed and, in
particular, what seems to be some de-escalation in your offending and an element of
reserved optimism on the part of the experts, the answer would have been an easy
one. I would have sentenced you to preventive detention.
[88]
But you are now a middle aged man and unlike the last time you were
sentenced in 2009, there is a new weapon in the criminal justice system’s arsenal
which was not available then.
And that is the ability of the Department of
Corrections to apply for an ESO under the Parole Act.28 I cannot impose an ESO at
this stage but it is permissible for me to take into account, when deciding whether or
not to impose a sentence of preventive detention, the possibility of an ESO being
imposed at a later date closer to your time of release.
[89]
In doing so, as the Court of Appeal has observed, such a course has the
advantage that, in a finely balanced case, it allows a risk assessment to be made at
the time when a prisoner is about to be released, rather than requiring predictive
assessments at sentencing.29
[90]
In my view, this tool has the potential to be particularly effective in your case.
Assessments as to the risk you pose on release can be made at a time which is much
closer to your release date than now. Your compliance with and performance in the
various programmes you need to undertake can be examined and assessed. Further,
psychological reports can be obtained and on your release strict conditions can be
imposed on you to ensure you do not relapse back into recidivism as you have in the
past. If you breach the conditions of an ESO without lawful excuse you will be
liable to imprisonment for a term not exceeding two years.30 Furthermore, the orders
can be made for a decade after your release and after that there is a power to renew
further. If that was to happen you would, by then, be an old man.
[91]
Mr Kahu, it is never possible to predict the complexities of human beings and
your case is no different. Even the experts cannot say. But they do hold out a
28
29
30
Parole Act 2002, s 107F(1).
R v Parahi [2005] 3 NZLR 356, (2005) 21 CRNZ 754 (CA) at [32] and [33].
Parole Act 2002, s 107T.
glimmer of hope and that is a hope which I am prepared to extend to you today based
on the evidence before me. For that reason I am not going to make an order for
preventive detention. Instead, I shall impose a finite sentence.
[92]
Ms Goodlet suggests that the reports of Dr Simons, Dr Lehaney and Dr Nuth
be attached to my sentencing notes. She says this will assist the management of your
counselling and treatment while in custody and will ensure the reports are available
to the Parole Board.
[93]
While I fully appreciate the good sense of that suggestion, the sentencing
notes of Judges of this Court are published and are publicly accessible. I do not
think it is appropriate, for privacy reasons, that these reports form part of that public
record. They were prepared for my assistance and contain highly personal details
relating to various people, not just you. However, I direct that a copy of my
sentencing notes, together with the three reports, be forwarded to Corrections and to
the Parole Board. Such a course should meet the purposes which Ms Goodlet has
identified.
Result
[94]
Mr Kahu would you please stand.
[95]
On the charge of aggravated burglary you are sentenced to seven years’
imprisonment.
[96]
On the charge of kidnapping you are sentenced to two years’ imprisonment.
[97]
On the charge of burglary you are sentenced to 18 months’ imprisonment.
[98]
On the charge of recklessly causing injury you are sentenced to two years’
imprisonment.
[99]
On each of the two charges of using an imitation firearm to prevent arrest you
are sentenced to two and a half years’ imprisonment.
[100] All of these sentences are to be served concurrently which means that your
total sentence is seven years’ imprisonment.
[101] I also order that you are to serve an MPI of four years.
[102] Mr Kahu, as you would picked up this was a fine run thing. You avoid
preventive detention by the skin of your teeth. What tipped the balance is that at the
age of 50 for the first time you are showing real evidence of wanting to change. That
is not just because you say so. That would never be enough. But the experts now
say this although there is still a lot to be done before you will be ready to be released.
Also we now have ESOs which can operate to monitor you post-release in a very
intensive way which was not available last time you were sentenced.
[103] Do not let your partner and those who have shown trust and support in you
down. If you do it will almost certainly be the very last chance you will ever get to
live a life outside jail. And before you do you have a lot of work ahead before you
can prove you really are ready.
[104] Stand down.
Moore J
Solicitors:
Crown Solicitor, Whanganui
Ms Goodlet, Whanganui