Abbott v The Queen
[2012] NZCA 43
•28 February 2012
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA721/2011 [2012] NZCA 43 |
| BETWEEN GRAEME EDWARD ABBOTT |
| AND THE QUEEN |
| Hearing: 21 February 2012 |
| Court: Wild, Ronald Young and Andrews JJ |
| Counsel: R M Gould for Applicant |
| Judgment: 28 February 2012 at 11.30 am |
JUDGMENT OF THE COURT
The application for an extension of time to appeal is declined.
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REASONS OF THE COURT
(Given by Ronald Young J)
Introduction
The applicant pleaded guilty to and was, on 23 March 2004, sentenced by Venning J to preventive detention with a minimum period of imprisonment of six and a half years on five counts of aggravated robbery, one of kidnapping and one of using a firearm against law enforcement officers.[1] On the remaining offences, being two charges of aggravated assault, two of unlawful possession of a firearm, five of unlawfully taking motor vehicles and one of unwilful damage, he was sentenced to concurrent sentences of imprisonment.
[1] R v Abbott HC Auckland CRI-2003-19-19334, 23 March 2004 [sentencing remarks].
On 28 October 2011 he filed a notice of appeal which, given it was filed just over seven and a half years from conviction and sentencing, required an extension of time.
The applicant seeks an extension of time to bring his appeal. First, he submits that his affidavit filed in support of the application explains the delay in appealing. Secondly, as to the merits, the applicant claims the Judge made errors in his sentencing as to the correct test to be applied when considering whether a sentence of preventive detention was appropriate.
Delay
Mr Abbott has sworn an affidavit. He says that at the time of his sentencing he was at a very low ebb. That claim is supported by an affidavit from the lawyer who appeared for him at sentencing. Mr Abbott says that once imprisoned he had decided to give up drugs and went through intense withdrawal. While he understood he had been sentenced to preventive detention he did not fully grasp the impact of the sentence for some years. He thought that the six and a half year minimum period of imprisonment imposed was a period that he could grasp on to and after which he was entitled to appear before the Parole Board. However, he says eventually the “full impact of my sentence began to sink in”.
We agree with the Crown that the evidence as to why Mr Abbott delayed in filing an appeal was very sparse. The best that can be said was that it took some years before he understood the full effect of the sentence. None of this of course explains why if he thought this sentence was wrong in some way, he did not appeal. Mr Abbott did not, therefore, provide any adequate reason for this delay.
Merits
Some background as to the sentencing is necessary to assess the merits argument. The applicant’s offending had arisen out of two very serious incidents involving aggravated robberies. It included the presentation of a loaded shotgun at a police officer. The applicant had serious previous convictions for similar offending in Australia and was sentenced there in 1999 to six years imprisonment.
Venning J, the sentencing Judge, had reports from two psychiatrists, Drs Dean and Wilson, and from a psychologist, Mr Whitehead, relating to the applicant’s future risk of offending. The Judge concluded that the applicant was at high risk of future offending and that a lengthy finite term of imprisonment would not be sufficient protection for the public. He, therefore, imposed a sentence of preventive detention.
The applicant before this Court filed a report from Mr Brooking, who is an alcohol and drug assessment counsellor. Mr Brooking is the clinical manager of the Alcohol and Drug Assessment and Counselling centre in Wellington. He undertook a critique of the reports of the two psychiatrists and the psychologist completed in 2004. In addition he undertook an assessment of Mr Abbott’s current situation in prison.
Whatever Mr Abbott’s current situation is, it can have no relevance to this appeal. An assessment of his current situation falls to the Parole Board, who have undertaken such assessments. We note that Mr Abbott has now been reviewed three times for parole by the Board since the expiry of the six and a half year minimum period of imprisonment. On the first occasion he had recently tested positive for drugs and therefore parole was not seriously considered. On the second and third occasions he has significantly improved his prospects. We understand the Parole Board have indicated the possibility of parole in the relatively near future.
As far as Mr Brooking’s assessment of the reports of the two psychiatrists and the registered psychologist is concerned, we do not consider such an assessment is useful to us. Mr Brooking’s qualifications are a Bachelor of Arts in Political Science, a Diploma of Alcohol and Drug Studies and a Certificate in Supervision. He is also a member of the Drug and Alcohol Practitioners’ Association. Mr Brooking is not qualified as a health assessor in terms of s 88 of the Sentencing Act and therefore is not qualified to prepare a report to the court relating to a possible sentence of preventive detention.[2] In those circumstances, therefore, we propose to set his report to one side.
[2] Sentencing Act 2002, s 88(1)(b); s s4, definition of “health assessor”.
The thrust of the merits based argument is that Venning J, when considering the likelihood of the applicant committing a further qualifying sexual or violent offence,[3] applied the wrong test. The applicant says that the Judge concentrated on the applicant’s failures in the past to undertake and complete rehabilitation programmes when assessing future risk, and failed to take into account the applicant’s commitment to treatment in prison and Dr Dean’s acknowledgement that there was an uncertainty about assessing future risk.
[3] Section 87(2)(c).
Counsel for the applicant pointed to the fact that when the applicant was first remanded in custody he took himself voluntarily off the methadone programme and said his involvement with drugs was at an end. The applicant claimed the Judge failed to give this aspect sufficient weight when assessing the likelihood of further future offending.
We are satisfied that the Judge’s sentencing remarks amply illustrate the Judge made no error of law and took into account all relevant factors. He identified that there were three pre‑conditions before a sentence of preventive detention could be imposed. Of relevance here was his observation that one of those pre‑conditions was: “There must be the likelihood of the commission of another qualifying offence upon release.”
The Judge accepted that the applicant had expressed a desire to make changes and acknowledged that the applicant had voluntarily withdrawn from the methadone programme and was highly motivated to participate in programmes aimed at avoiding reoffending. The Judge then said:[4]
However, I have to balance against that that you have in the past had opportunity to address these issues through structured programmes, and for one reason or another they have not been successful.
[4] Sentencing remarks at [25].
And, in summary, he said:[5]
[5] At [29].
When I have regard to the above factors, I am driven to the conclusion in this case, Mr Abbott, that a sentence of preventive detention is required. It is required to adequately protect the community from the significant and ongoing risk you pose. I have come to that conclusion in particular because of:
·your past offending in Australia and the similarity of it both as to the reasons behind it and the nature of the offending itself;
·the concerning escalation of your offending in this case, particularly the last incident
·The use of a loaded shotgun;
·The taking of a hostage in the course of your escape;
·The failing to stop when you were confronted by armed police and requested to stop and when your capture was inevitable;
·The presenting of a firearm to the police in order to aid your escape;
·Your drug abuse and your drug addiction;
·The failure of the past attempts to successfully address the root cause of your offending.
Dr Dean said that there were “significant risk factors with his recurrent offending”.[6] He said, however, that if Mr Abbott could abstain from taking drugs then “his risk may be lowered”. As a result Dr Dean said he was uncertain of the likelihood of Mr Abbott committing a future qualifying violent offence. That was perhaps understandable. Dr Dean was saying that he could not tell whether in fact Mr Abbott would commit himself to the rehabilitative programmes necessary to stop taking drugs and therefore likely lower his risk.
[6] Report of Dr Peter Dean, 4 March 2004 at p 3.
The Judge was therefore thrown back on the other reports and on Mr Abbott’s circumstances when assessing future risk. The Judge undertook that assessment.[7] We are therefore satisfied there is no strength in the applicant’s claim that the Judge misconstrued his statutory obligation when he sentenced Mr Abbott.
[7] At [15]–[16].
The pre‑sentence report together with the reports of Dr Wilson and Mr Whitehead assessed Mr Abbott at a high risk of future offending without successful significant rehabilitative intervention in prison. It is clear, therefore, that the Judge properly took into account all the relevant statutory criteria in imposing the sentence of preventive detention.
Summary
The applicant has not identified any reason which might excuse the seven and a half year delay in filing this appeal. We are satisfied that this proposed appeal has no merit.
Accordingly, we decline the application for an extension of time for the appeal.
Solicitors:
Crown Law Office, Wellington for Respondent
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