Grant v R
[2017] NZCA 614
•19 December 2017 at 3.00 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA628/2015 [2017] NZCA 614 |
| BETWEEN | WILLIAM ALEXANDER HAMISH GRANT |
| AND | THE QUEEN |
| Hearing: | 13 November 2017 |
Court: | Brown, Courtney and Toogood JJ |
Counsel: | M R Bott for Appellant |
Judgment: | 19 December 2017 at 3.00 pm |
JUDGMENT OF THE COURT
AThe application to adduce further evidence on appeal is granted.
BThe appeal against sentence is allowed.
CThe sentence of preventive detention imposed on the charges of disfiguring with intent to cause grievous bodily harm is quashed and a sentence of twelve years’ imprisonment cumulative on the appellant’s existing sentence of four and a half years’ imprisonment is imposed. A minimum period of imprisonment of six years is imposed on the first disfiguring with intent to cause grievous bodily harm charge.
____________________________________________________________________
REASONS OF THE COURT
(Given by Brown J)
The appellant, Mr Grant, pleaded guilty in the District Court at Christchurch to two charges of disfiguring with intent to cause grievous bodily harm and one of injuring with intent to cause grievous bodily harm. The matter was transferred to the High Court at Christchurch in order for preventive detention to be considered.
On 1 October 2015 Dunningham J sentenced Mr Grant to preventive detention in respect of the two charges of disfiguring with intent to cause grievous bodily harm, with a minimum period of imprisonment of six years to run from the date of commission of the first offence.[1] A concurrent sentence of three years’ imprisonment was imposed on the charge of injuring with intent to cause grievous bodily harm.
[1]R v Grant [2015] NZHC 2395. The date of the first offence was 17 January 2014.
Mr Grant appeals against the sentence of preventive detention, primarily on the ground that his counsel at sentencing failed to obtain an independent report from a psychologist. The appeal is based in substantial part on a report of Professor James Ogloff, a clinical and forensic psychologist, which Mr Grant seeks to adduce as fresh evidence on appeal.
Background
The offending
The charges arose out of three separate incidents that occurred while Mr Grant was serving a sentence of imprisonment of four and a half years for a violent attack on his former girlfriend committed when Mr Grant was 16 years old.
The first incident occurred on 17 January 2014 while Mr Grant was a prisoner at the Otago Correctional Facility. Following an altercation with the complainant, a fellow inmate, Mr Grant bit off a portion of the complainant’s earlobe. The surgery to reattach the severed part of the ear was unsuccessful and the victim is permanently disfigured. This gave rise to the first charge of disfiguring with intent to cause grievous bodily harm.
In April 2014 Mr Grant had been transferred to the Christchurch Men’s Prison and was working in the kitchen with the second complainant, who was also an inmate. Mr Grant had an altercation in the kitchen with the complainant on the morning of 19 April, but this appeared resolved with both men shaking hands and moving on. However, later that morning, Mr Grant entered the complainant’s cell and began to punch the complainant around the head and face. Mr Grant then bit off approximately 10 to 12 millimetres of the complainant’s right earlobe. Surgery to reattach the portion of the ear that was bitten off was unsuccessful and that victim also now has a permanent disfiguration. This incident gave rise to the second charge of disfiguring with intent to cause grievous bodily harm.
The third incident also occurred at Christchurch Men’s Prison. On 25 October 2014 Mr Grant was on the upper walkway in one of the units of the prison. The complainant was leaning over the metal railing and speaking with another inmate. Mr Grant approached the complainant from behind, out of his line of sight, and stabbed him three times in the lower back area with a metal improvised stabbing device. The complainant managed to wrestle Mr Grant to the ground and to hold him there until prison staff intervened. The complainant sustained three shallow wounds to his lower back, two of which were approximately five centimetres in length while the third was a shallow puncture wound. This gave rise to the charge of injuring with intent to cause grievous bodily harm.
Sentence indication
Mr Grant sought a sentence indication in relation to the two disfiguring charges. On 7 November 2014, shortly after the laying of the third charge, Judge Neave indicated that the two charges of disfiguring, together with Mr Grant’s existing sentence, would attract a minimum finite sentence of 15 years’ imprisonment, subject to any other matters that arose in pre-sentence reports.[2] A moderate uplift on the total sentence would be applied if Mr Grant were also to plead guilty to the charge of injuring with intent to cause grievous bodily harm.
[2]R v Grant DC Christchurch CRI-2014-009-5171, 7 November 2014.
Judge Neave stated that he could not exclude the prospect that preventive detention would be considered once the relevant reports had been prepared. However, the Judge noted that, if that became an option after Mr Grant had pleaded guilty, he would be entitled to vacate his pleas.
Mr Grant accepted the sentence indication on 21 November 2014 and pleaded guilty to the two disfiguring charges. He entered a guilty plea to the injuring charge shortly thereafter.
Pre-sentence report
The pre-sentence report noted that Mr Grant had entered the prison system at a very early age and that he maintained a very strong belief that he must not be seen as weak. It noted Mr Grant’s poor participation in two unsuccessful psychological sessions in 2012 and 2013–2014. The report commented that the Court might be assisted by an up-to-date psychological assessment and suggested that consideration should be given to the sentence of preventive detention, as this would allow for parole to be considered only if Mr Grant were to make a more concerted effort towards rehabilitation. Absent significant change, the report stated that grave concerns were held for his potential in the community.
On a positive note the report recorded the support and concern of Mr Grant’s mother and her motivation to secure viable rehabilitation for him.
To enable consideration of preventive detention, two reports were then obtained pursuant to s 88 of the Sentencing Act 2002 as to the likelihood of Mr Grant committing a further qualifying violent offence.
The s 88 reports
The first s 88 report was provided by Joanna Browne, a senior clinical psychologist. Her report explained that, as a consequence of various factors in Mr Grant’s background he was not likely to have formed appropriate internal behavioural controls and pro-social rules. Instead his behaviour appeared to be driven by sensation seeking and proving his self-worth, with disregard for how his behaviour in satisfying those goals might negatively impact others. This was said to be exemplified by his history of overt acts of violence which had been both instrumental, in the sense of securing a reward or attaining a goal, and reactive in nature.
Mr Grant was considered to be at a very high risk of further violent offending. Ms Browne expressed the view that any reduction in the risk of reoffending would likely require intensive treatment, and any future release planning would require robust oversight and monitoring measures to mitigate his likely risk at the time.
The second s 88 report was provided by Dr Helen Austin, a consultant forensic psychiatrist. In recommending on-going assessment for appropriateness of engagement in long term psychological treatment and rehabilitation programmes, Dr Austin stated:
9Overall the historical and situational risk factors support the view that Mr Grant poses a significant risk of further serious violent offending in the absence of meaningful engagement in psychological treatment and the completion of appropriate treatment programmes. If he does offend again potential victims could include intimate partners or acquaintances who could be male or female. The violence could be serious in nature and could involve the use of a weapon.
10In terms of therapeutic options, on the information currently available, Mr Grant has not yet completed any appropriate treatment programmes and there have been difficulties engaging him in psychological treatment. He currently states that he is prepared to try and address his psychological needs and risks but this has yet to be tested out in a meaningful fashion.
At the hearing on 7 November 2014, Mr Grant’s sentencing counsel indicated that she might wish to obtain funding through legal aid for a further psychologist’s report, a course that Judge Neave endorsed. However that did not occur.
In an affidavit Mr Grant’s sentencing counsel candidly acknowledged that she did not specifically recall discussing with Mr Grant prior to sentencing the possibility of having an independent report obtained, nor did she recall Mr Grant indicating he did or did not want such a report done. However in her view the two s 88 reports did not raise any issue which caused her to consider obtaining an independent report to critique the methodology and conclusions in them.
High Court judgment
When the matter came before the District Court again on 28 August 2015, Judge Neave declined jurisdiction. The matter was transferred to the High Court where, having been formally given the option to withdraw his guilty pleas, Mr Grant elected to maintain them.
The principal issue facing Dunningham J was whether to sentence Mr Grant to a finite term of imprisonment or to preventive detention. Before the Court can consider imposing preventive detention, the statutory preconditions in s 87(2) of the Sentencing Act must be satisfied. Those are as follows:
(a)a person is convicted of a qualifying sexual or violent offence (as that term is defined in subsection (5)); and
(b)the person was 18 years of age or over at the time of committing the offence; and
(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.
Once the preconditions are satisfied, the Court may impose a sentence of preventive detention.[3] When deciding whether to impose a sentence of preventive detention, s 87(4) prescribes five matters which a judge must take into account:
(4)When considering whether to impose a sentence of preventive detention, the court must take into account—
(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.
[3]Sentencing Act 2002, s 87(3),
Because of the principle in s 87(4)(e), Dunningham J had to first determine the appropriate finite sentence for Mr Grant if preventive detention was not imposed. In setting the starting point she took the two charges of disfiguring with intent to cause grievous bodily harm as the lead offences. She considered there were no mitigating features of the offending but identified five aggravating features: extreme violence, premeditation, serious injury, attacking the head and substantial harm.[4]
[4]R v Grant, above n 1, at [25].
With reference to features particular to Mr Grant, while recognising that he did not have an extensive criminal history, the Judge considered that the offence for which he was already serving a sentence was extremely serious, and all the offending relating to the charges for sentence had occurred while the previous sentence was being served.
Applying R v Taueki,[5] the Judge settled on a combined starting point of 12 years’ imprisonment for the two disfiguring charges, with an uplift of two years to reflect the previous conviction and the fact that the offences had occurred while he was subject to that sentence. A further uplift of three years was applied for the further injuring charge, to reach a total stating point of 17 years’ imprisonment.
[5]R v Taueki [2005] 3 NZLR 372 (CA).
The key mitigating features were the guilty pleas and Mr Grant’s youth. From the total of 17 years the Judge would have applied a deduction of one year to reflect Mr Grant’s youth and his rehabilitative prospects. With some reservation, the Judge allowed the full 25 per cent discount for the guilty pleas but did not consider that any discount was justifiable for remorse. That guilty plea discount reduced the sentence to 12 years which, served cumulatively on the existing four and a half year sentence, would result in an end total sentence of 16 and a half years’ imprisonment.[6]
[6]R v Grant, above n 1, at [30]–[31],
The Judge considered that such a sentence was not disproportionate to the culpability inherent in the total offending.[7] However the Judge did not consider that, given the risk Mr Grant posed to the community if he did not engage properly with psychological intervention, such a sentence was sufficient to protect the community.
[7]At [33].
Dunningham J recognised the main considerations telling against the imposition of preventive detention were the fact that Mr Grant was only 18 at the time of committing the offences and the fact that he had not yet taken up any kind of expert psychological support which was required to support his reintegration into society. The Judge proceeded to carefully analyse the reports of Dr Austin and Ms Browne, together with the pre-sentencing report, and concluded:
[45] So there can be no doubt that a pattern of serious offending has developed and I have information about your tendency to commit serious offences in the future. Indeed you not only concede that you are at high risk of further offending, but your statements reveal that you both enjoy the act of inflicting violence, and the shock value of telling people about it. Thus, while your youth is a factor that must be brought to bear in my assessment, the fact that you have amassed these four very serious convictions in a short space of time reinforces the content of the reports that you are at a high risk of reoffending.
The Judge plainly viewed with considerable reserve the proposition that Mr Grant had had little opportunity to address the causes of his offending, noting his inability or unwillingness to complete relevant programmes.
Her decision to impose a sentence of preventive detention, albeit with a relatively short minimum period of imprisonment, is explained in the following paragraphs:
[47] So finally, I must consider whether a finite sentence is preferable if it is able to provide adequate protection for society. Again, your youth is highly relevant, but weighed against that is the fact that you have been undeterred by your previous sentence and you appear ambivalent about engaging in treatment to address the root cause of your behaviour.
[48] So I have reached the view that, despite your youth and your comparative lack of psychological intervention, you do pose an extreme risk to the community and it cannot be met by anything other than a sentence of preventive detention.
[49] But it is important to note this does not stop you addressing these issues with help and being released on parole in due course. So while I consider that a minimum period of imprisonment is required, I have decided to set a relatively short minimum period of imprisonment to provide you with some incentive to make the changes that are required to allow you to be released into the community, albeit subject to ongoing conditions of parole. That minimum period of imprisonment I am going to impose will be 6 years. It is to run from the date of commission from the first of the three offences you have pleaded guilty to, so effectively, it will be short for the balance.
(Footnote omitted.)
Fresh evidence
The report of Professor Ogloff
Mr Bott, who was instructed for Mr Grant on the appeal, arranged for Mr Grant to be assessed by Professor Ogloff who prepared a report dated 18 September 2017. An application was made to adduce the report as fresh evidence on appeal.
Along with reviewing Mr Grant’s background and assessing his risk of future offending, Professor Ogloff described how the development of the pre-frontal cortex in particular plays a significant role in maturation. The brain develops in a back‑to‑front pattern and the pre-frontal cortex is the last portion of the brain to fully develop. As a consequence, adolescents and young people do not develop the complex decision making and planning skills of adults until later in their development.
As he explained:
79Some of the most important changes that occur include structural changes in the frontal lobe and the prefrontal cortex. The prefrontal cortex is the seat of personality, judgment, reasoning, problem solving, and rational decision making. It provides for logic and understanding of consequences, and governs impulsivity, aggression, the ability to organise thoughts, and to plan for the future. The frontal lobe continues to undergo significant changes during adolescence and youth, and is not fully developed until the early to mid-20’s.
80As noted, the results of neuro imaging studies show that the prefrontal cortex is one of the last areas of the brain fully mature. At the behavioural level, the implications of prefrontal cortex development includes gains in decision-making skill and response inhibition and a decline in risk taking behaviour. As Steinberg notes, for example, ‘impulse control is low during childhood and improves gradually over the course of adolescence and early adulthood’ … .
81While these findings certainly do not question the criminal responsibility of adolescents and young people, they do impact on the decision making capacities of adolescents and young adults. These matters are important for contextualising the offending of adolescents. With access to knowledge, adolescents demonstrate similar cognitive capacity than [sic] adults to make good judgements in calm and emotionally-neutral contexts. In emotionally-charged situations of stress or excitement, particularly with peers, however, emotions are more likely to drive decision making. These findings help explain how it is that adolescents and young people struggle with emotion and reasoned decision making when under pressure or stress; they also have a limited capacity for consequential thinking.
82With respect to offending patterns by age, a so-called age-crime curve exists. … offending peaks in the adolescent and youth years, and rapidly declines thereafter.
83As the age-crime curve shows, young people will typically be identified as being higher risk than older people. As such, it is of critical importance to consider age, development, and context when considering the level of risk that an individual poses for reoffending.
(Footnotes omitted.)
Admissibility on appeal
The test for the admission of fresh evidence on an appeal against sentence is the same as that for a conviction appeal: the evidence must be fresh, credible and cogent.[8]
[8]Antonievic v R [2017] NZCA 87 at [39].
In opposing the admission of Professor Ogloff’s report in evidence, Ms Wong for the Crown argued that it was not fresh in that it could have been obtained prior to sentencing if Mr Grant had instructed his counsel to do so. While not challenging the Professor’s expertise, the Crown submitted that his evidence was not cogent because it did not materially add to the picture before Dunningham J, particularly as the Professor’s conclusion that Mr Grant was at high risk of reoffending was the same as that of the s 88 report writers.
We recognise that the report could have been obtained prior to sentence. However, notwithstanding that fact, like the Supreme Court in Fairburn v R[9] we consider that the report must be regarded as “fresh” evidence. The omission of counsel to specifically advise on the desirability of obtaining an independent report was, at least with the benefit of hindsight, an error. As in Fairburn it would be contrary to the interests of justice to rule the report out on the ground that it did not qualify as “fresh”.
[9]Fairburn v R [2010] NZSC 159, [2011] 2 NZLR 63 at [33].
It is not disputed that the report is credible and, like this Court in Antonievic v R,[10] we find it cogent on the question whether preventive detention was the appropriate sentence.
[10]Antonievic v R, above n 8, at [39].
Consequently, we grant the application to adduce the report of Professor Ogloff on appeal, together with an affirmation of Mr Grant, which addresses his recollection of the circumstances relating to his sentencing, and the affidavit from Mr Grant’s sentencing counsel.
Counsel’s submissions
Mr Grant’s argument
Mr Bott distilled his argument on behalf of Mr Grant into seven propositions:
(a)No attempt was made to obtain an independent expert report in contemplation of the hearing. This led to a situation where the conclusions contained in the two s 88 reports were not subjected to an analysis and critique by an expert, which could have assisted the Court in understanding that alternative options and formulations as to risk.
(b)Mr Grant’s age at the time of the commission of the offences, which was relevant in terms of the assessment and understanding of risk, was not drawn to the attention of the court in terms of risk formulation. The report of Professor Ogloff is said to of the relevance of here.
(c)Mr Grant had not had any intervention to reduce or ameliorate his risk. This failure by the Department of Corrections was placed upon Mr Grant’s shoulders and was used unfairly to elevate his risk.
(d)Ms Browne unfairly ascribed sexual deviancy to Mr Grant’s admission that he had been previously sexually attracted to adolescents. What was not mentioned, nor drawn to the attention of the court, was the fact that at the relevant time Mr Grant was himself an adolescent. This claim of deviancy could wrongly be seen as an elevating risk factor.
(e)There was a failure by the s 88 report writers to properly acknowledge protective factors such as familial support and brain maturation in terms of long term risk profiling.
(f)By labelling Mr Grant as belonging in the cohort of those offenders with the highest risk profiles — which should qualify him as an inmate for the greatest need for targeted intervention —he will be placed in the longest wait queue for intervention.
(g)The availability of an extended supervision order (ESO) has been expanded to include types of violent offences.[11] The ability to later impose an ESO has may ameliorate the need for preventive detention sentences in certain types of cases. It should have been so considered in Mr Grant’s case.
The Crown’s response
[11]Parole Act 2002, s 107B.
Ms Wong submitted that the s 88 report writers were well aware of Mr Grant’s age and accurately summarised his treatment history. Rejecting the submission that Dunningham J would not have imposed preventive detention if the information in Professor Ogloff’s report about brain maturation had been before the Court, the Crown emphasised that the more important point was the fact of consensus among the three experts that Mr Grant posed a high risk of violent reoffending.
The point was made that if the Professor’s assessment, which presumably gave all due weight to the factors of youth and the absence of successful psychological intervention, led to the same conclusion as the s 88 report writers reached, any error in those reports cannot have been material.
In addition the Crown made the following points:
(a)Mr Grant had refused to engage with treatment while in prison and his demonstrated unwillingness to engage is relevant to the overall question of risk upon release from prison;
(b)The information concerning previous sexual attraction to adolescents was volunteered by Mr Grant, so there could be no criticism of the s 88 report writers including reference to it in their reports.
(c)Although the report of Professor Ogloff notes that Mr Grant’s behaviour has recently stabilised, the issue on the present appeal is whether the Judge’s decision was an available one on the facts as they stood at the time of sentencing. If genuine, developments in Mr Grant’s behaviour are matters which can properly be considered by the Parole Board in due course.
(d)The availability of an ESO did not mean that preventive detention was unavailable. Mr Grant’s case is not one where an ESO would obviously address the risk of reoffending.
Discussion
Two matters in particular have caused us to reflect on the appropriateness of a sentence of preventive detention in this case: first, the evidence of Professor Ogloff concerning brain maturation; and, second, the absence of any consideration of an ESO as a means of affording adequate protection of the community.
Brain maturation and risk assessment
As the Crown points out, the view of the s 88 report writers that the risk that Mr Grant would reoffend was “very high” or “significant” was essentially confirmed by the assessment of Professor Ogloff. However, Mr Grant was between 18 and 19 at the time of the offending, and the offending occurred not in the environment of the community at large but in circumstances where Mr Grant was incarcerated in a place which he described as a “jungle” in which he never felt safe or secure.
Mr Grant’s youth was plainly a factor which weighed with Dunningham J. It was one of two main considerations which the Judge considered pointed against the imposition of preventive detention.[12] The s 88 report writers were also cognisant of his youth. However, the point that Professor Ogloff’s report emphasises is the implications for the risk of reoffending of the crucial changes in brain structure and function which occur throughout adolescence and youth.
[12]R v Grant, above n 1, at [36].
The s 88 report writers did make reference to Mr Grant’s age at the time of offending, with Ms Browne observing:
Due to normal brain development stages up to late adolescence, it is likely that [Mr Grant] would also have greater difficulty cognitively processing future consequences of his actions (especially as behavioural controls have not been internalised due to inconsistent discipline in his earlier years).
However, Professor Ogloff’s point is that neither of the reports prepared for the High Court took a developmental perspective, with the consequence that Mr Grant’s age in the context of his offending and behaviour was not properly considered when assessing his likelihood of committing another qualifying violent offence.
The Professor observes that while Mr Grant was once volatile, in which state he committed the offences while incarcerated, he has now entered a period of increased stability. Based on the Professor’s experience of conducting risk assessments, he considers Mr Grant does not fall into the category of offenders for whom hope of change has been lost or put into abeyance for some future point.
We acknowledge the Crown’s caution that Professor Ogloff’s assessment took place almost two years after the sentence was imposed and that the issue on appeal is the appropriate sentence at that earlier time. However the point which the Professor’s evidence makes concerns the behavioural changes which may be anticipated with brain maturation in a young person, changes that might fairly be contemplated even at the earlier sentencing date. While we accept that Dunningham J was, as the Crown submits, keenly aware of Mr Grant’s age, the Court did not have the benefit of Professor Ogloff’s report and therefore an appreciation of how Mr Grant’s behaviour would likely become more stable with maturity.
This in turn would be likely to render him more receptive to participation in treatment initiatives, a prospect which the Judge viewed with evident reserve having regard to his previous track record.[13]
The availability of an ESO
[13]At [46].
In December 2014 s 107B(2A) of the Parole Act 2002 was amended to include certain violent offences within the qualifying offences for an ESO.[14] This enables a court, where satisfied that an offender has a pervasive pattern of violent offending and is at very high risk of committing a relevant violent offence in future, to place supervisory conditions on an offender whilst in the community for a specified period of time. Consequently, were Mr Grant subject to a finite sentence, there would be the capacity for the Department of Corrections, if not satisfied with his engagement with rehabilitation provided and his risk reduction, to apply for an ESO for up to ten years post-release.
[14]The relevant violent offences include both disfiguring with intent to cause grievous bodily harm and injuring with intent to cause grievous bodily harm.
As Nation J observed in R v Bond:[15]
I must have regard to the principle in s 87(4)(e) that a lengthy finite sentence is preferable if this provides adequate protection for society. In this context, the potential for the Department of Corrections to apply for an extended supervision order with conditions imposed by the Parole Board for up to 10 years also needs to be weighed in the balance.
[15]R vBond [2016] NZHC 2561 at [74].
This Court in R v Mist considered that, given the principle in s 87(4)(e) of the Sentencing Act, a Court must consider the possibility of an ESO when determining whether a finite sentence will provide adequate protection for the public.[16] More recently this Court in Bell v R[17] noted that the availability of an ESO might tip the scales against the sentence of preventive detention. While not relieving a sentencing Judge from the decision whether or not to impose preventive detention, an ESO has the advantage that, in a finely balanced case, it allows risk assessment to be made at the time a prisoner is to be released rather than pre-sentence.[18]
[16]R v Mist [2005] 2 NZLR 791 (CA) at [101].
[17]Bell v R [2017] NZCA 90 at [20].
[18]R v Parahi [2005] 3 NZLR 356 (CA) at [33].
The Crown sought to distinguish Bell for the reason it concerned sexual offending in circumstances where an ESO would likely be effective. While acknowledging that the option of an ESO now extends to violent offenders, the Crown submitted that Mr Grant’s case is not one where an ESO would obviously address the risk of reoffending. The fact that the three offences occurred in the highly supervised prison environment suggested that the spectre of supervision provided no real deterrent for him.
However, we consider there is room for the view that the fact of incarceration of such a young person with seasoned offenders is a factor which may in part explain, although not of course excuse, the offending. Mr Grant’s affidavit suggests that he is endeavouring to improve himself, that he has hope and believes there is life outside prison. In Professor Ogloff’s assessment the increased stability which he manifests is a likely consequence of his maturing emotionally. The Professor states that Mr Grant has a greater appreciation of the effect that his behaviour has on others. He also has a greater degree of control over his own emotions and behaviours.
The legislation contemplates the application of the ESO regime to violent offenders with very high risk of reoffending. Given the evidence of Professor Ogloff and the principle that a lengthy finite sentence is preferable if it will provide adequate protection for the public, we do not accept that that technique of supervision could be ignored, especially so where Mr Grant has the good fortune to have unshakeable support from his mother together with her parents.
Conclusion
In our assessment, the decision whether or not to impose the sentence of preventive detention in the present case was finely balanced having regard to Mr Grant’s age at the time of the offending and the fact that the offences occurred in the prison environment. We perceive that the Judge recognised that and endeavoured to achieve the appropriate balance by imposing a relatively short minimum period of imprisonment of six years in relation to the preventive detention sentence.
However, the balancing exercise was hampered for the reason that in the absence of an independent report the Judge did not have the benefit of the behavioural context which has been addressed in Professor Ogloff’s report. Nor was consideration given to the alternative course of a finite sentence with the possibility of an ESO. In our view, those two factors in combination cause the balance to tip in favour of a finite sentence, which, with targeted intervention, should provide the necessary degree of community protection with reference to Mr Grant.
There was no challenge to the length of the finite sentence Dunningham J considered was otherwise appropriate. Accordingly, we are satisfied that a sentence of 12 years’ imprisonment, to be served cumulatively on Mr Grant’s existing sentence, is appropriate in respect of the two charges of disfiguring with intent to cause grievous bodily harm. Further, we consider that the factors in s 86(2) of the Sentencing Act are made out, and accordingly a minimum period of imprisonment of 50 per cent will be imposed on the first of those charges. Consideration of an application for an ESO may well be appropriate at the conclusion of his sentence.
Result
The application to adduce further evidence on appeal is granted.
The appeal is allowed.
The sentence of preventive detention imposed on the charges of disfiguring with intent to cause grievous bodily harm is quashed and a sentence of twelve years’ imprisonment cumulative on the appellant’s existing sentence of four and a half years’ imprisonment is imposed. A minimum period of imprisonment of six years is imposed on the first charge of disfiguring with intent to cause grievous bodily harm.
Despite the failures of the past it is important that rehabilitative efforts are renewed in respect of Mr Grant. The Department of Corrections is strongly encouraged to consider the availability of rehabilitative programmes for Mr Grant in advance of the expiration of the period of his minimum period of imprisonment.
Solicitors:
Crown Law Office, Wellington for Respondent
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