Neketai v The Queen
[2016] NZCA 174
•5 May 2016 at 10.00 am
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA135/2015 [2016] NZCA 174 |
| BETWEEN | WITERI AHOMIRO NEKETAI |
| AND | THE QUEEN |
| Hearing: | 12 April 2016 |
Court: | French, Asher and Williams JJ |
Counsel: | C J Tennet for Appellant |
Judgment: | 5 May 2016 at 10.00 am |
JUDGMENT OF THE COURT
The appeal against sentence is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by French J)
Introduction
Mr Neketai was convicted at trial of murder and sentenced by Brewer J to life imprisonment.[1] On appeal, this Court substituted the murder conviction with a conviction for manslaughter and remitted the case to the High Court for sentencing on manslaughter.[2]
[1]R v Neketai [2013] NZHC 2711.
[2]Neketai v R [2014] NZCA 502.
At the re-sentencing, Brewer J sentenced Mr Neketai to preventive detention with a minimum period of imprisonment of six years.[3]
[3]R v Neketai [2015] NZHC 396 [Sentencing notes].
Mr Neketai now appeals the sentence of preventive detention. He accepts manslaughter is a qualifying offence for preventive detention but submits in the circumstances the appropriate sentence was a finite sentence in the vicinity of five years’ imprisonment.
The facts of the manslaughter offending were that Mr Neketai agreed to act as an enforcer for a serving prisoner and recover an alleged drug debt. On 5 October 2011, he went to the alleged debtor’s home. When the victim refused to pay, Mr Neketai struck him with such force that the 109 kg victim flew backwards and hit his head on a concrete driveway as he landed. As the victim lay on the ground, Mr Neketai kicked him in the head. Mr Neketai texted the man who had given him the instructions saying the victim was “in a Coma cuz jst for you” and may be left “a vege”.
The victim died in hospital 11 days later.
High Court sentencing
In accordance with standard practice, Brewer J first determined what the appropriate finite sentence would be. After considering the aggravating features of the offending, he adopted a starting point of 12 years’ imprisonment, which he increased by 12 months on account of Mr Neketai’s criminal history of violent offending. The Judge then applied discounts for Mr Neketai’s guilty plea (10 per cent) and for totality having regard to the fact Mr Neketai was already serving prison sentences for other offending.
The Judge concluded that if he were to sentence Mr Neketai to a finite prison sentence, it would be for a period of nine years with a minimum period of imprisonment of six years.
Having reached that conclusion, the Judge then turned to consider preventive detention and addressed each of the factors he was required to take into account under s 87(4) of the Sentencing Act 2002.
Any pattern of serious offending disclosed by offender’s history
The Judge concluded that Mr Neketai’s criminal history did disclose a pattern of serious violent offending. In support of that conclusion, the Judge relied on convictions for violent offending that had occurred both before and after the manslaughter in October 2011.
Mr Neketai has four convictions for common assault that took place in 1997, 2009, 2010 and 2011. He was also convicted for threatening to kill in 2000, for male assaults female in 2001, and for aggravated robbery committed in 2004.
Justice Brewer said what was “more concerning” was that on two separate occasions while Mr Neketai was in Auckland Remand Prison awaiting trial on the homicide charge, he attacked another prisoner.[4] The first occasion was on 20 July 2012 and the second on 15 May 2013. On both occasions, Mr Neketai attacked the head of the victim, causing serious injury. One attack was said to be in support of a friend whom he believed was being assaulted by the victim and the other because Mr Neketai believed the victim was a child sex offender. According to a report before the Judge, both incidents could easily have resulted in a fatality. Both victims required intensive medical intervention, one victim critical enough to require emergency brain surgery.
[4]Sentencing notes, above n 3, at [43].
The two incidents resulted in Mr Neketai being convicted for injuring with intent to injure and wounding with intent to injure.
Seriousness of the harm to the community caused by the offending
The Judge noted the impact of the manslaughter on the victim’s family and found that serious harm had been caused.
Information indicating a tendency to commit serious offences in the future
The information before the Judge included two health assessors’ reports that assessed Mr Neketai’s risk of committing serious offending in the future. In his report, Dr Stenhouse, a clinical psychologist, concluded that Mr Neketai posed a “high risk” of future offending and that such offending would likely include violence. The other report writer, a psychiatrist, Dr Brunskill, considered it was difficult to comment definitively on the likelihood of reoffending but noted the presence of several risk factors including the fact of previous violence beginning at a young age, relationship instability, early maladjustment and personality dysfunction.
Absence or failure of efforts to address the cause(s) of the offending
The Judge acknowledged that Mr Neketai has never had the opportunity to undergo intensive treatment for his offending, something recommended by the assessors. The Judge further noted that Mr Neketai claimed to have a new attitude and had expressed a willingness to participate in treatment. However, the health assessors’ reports also indicated that treatment might not be successful because Mr Neketai’s offence-related personality traits and patterns of behaviour were so pervasive and entrenched they would be difficult to shift even with high motivation and intensive treatment.
The Judge concluded that overall the high risk Mr Neketai posed to the community meant the lack of previous treatment should not by itself preclude preventive detention being imposed.
A finite sentence is preferable if it provides adequate protection for society
The Judge acknowledged this principle and also considered whether the combination of a finite sentence and an extended supervision order would provide the necessary protection. However, he found that it would not and that preventive detention was the appropriate sentence for Mr Neketai.
The Judge summarised his reasons for reaching that view as follows:
[56] First, you are 37 years old. You are not a young man with the impetuous risk-taking tendencies of the young. I accept the views of the health professionals that your problems are deep-seated and will be difficult to change. Your full co-operation will be required, sustained for a long period. As yet, you are just beginning to say you need help, but at the same time you justify what you have done and blame others. I see a possibility of change but, against that, I have to consider the safety of the public.
[57] Second, the level of risk you pose is high. Mr Neketai, you are a dangerous man. You are fit, strong and trained as a kick boxer. You killed Mr Kimura by a king hit to his head. But while waiting on remand for your trial you attacked two other men in a similar way. You nearly killed one. I accept that it is over a year since your last serious violent offending, but that is not a long period given that you are in prison and subject to a strict regime of supervision.
[58] Third, and this is important, a sentence of preventive detention is not a sentence of last resort. Of course, a finite sentence is to be preferred for a range of reasons if the safety of the public will not be at undue risk. But the main point for you is that preventive detention puts your release in your hands. If you recognise you have a problem, work hard with the programmes available to you and succeed, you will be released. Success equals release. You will be back in the community. If it turns out that you are released into the community and you go back to your violent ways, you can be recalled to prison. If not, you will take your place in society again like everybody else. You are a mature man and your future will be in your hands.
When a Judge imposes a sentence of preventive detention, he or she is required by s 89 of the Sentencing Act to impose a minimum period of imprisonment not less than five years. Justice Brewer imposed a period of six years.
Did the Judge err in relying on the post-manslaughter offending?
On appeal, counsel Mr Tennet, initially submitted the Judge was not entitled to take into account any events that took place after the index offending. However, as the hearing progressed Mr Tennet modified that position and conceded the Judge was entitled to rely on Mr Neketai’s violent conduct in prison.
We consider the concession was appropriate. The primary focus in deciding whether to impose preventive detention is future risk. That is made clear by s 87(1), which states the purpose of the sentence is to protect the community from those who pose a significant and ongoing risk. Under s 87(2)(c) the power to impose a sentence of preventive detention is conditional on the court being satisfied the person is likely to commit another qualifying sexual or violent offence. Similarly, s 87(4), which sets out the mandatory factors the court must take into account in deciding whether to impose preventive detention, is worded in wide terms and contains no express limitation such as that originally advocated by Mr Tennet. We note too that the list of mandatory factors set out in s 87(4) does not purport to be an exhaustive list. Parliament clearly intended that any factor that informs the assessment of ongoing risk is relevant and must be taken into account.
We conclude it would have been artificial in the extreme and contrary to the purpose of s 87 for the Judge to have operated in a time warp. The court is required to have regard to all relevant information as at the date of sentencing.[5]
[5]This is apparent from the wide wording of the considerations in s 87(4).
Mr Tennet then contended that although it was permissible for Brewer J to have regard to the prison attacks, the Judge placed unfair and excessive weight on them. It was unfair because Mr Neketai had already been sentenced for the prison attacks in the District Court. Further they were matters that did not inexorably lead to preventive detention because even on a finite sentence they were matters the Parole Board would inevitably take into account.
We agree that had it not been for the prison attacks it seems unlikely Brewer J would have imposed preventive detention.
However, we consider the Judge was correct to attribute the significance he did to those events. As the Judge noted, because of the timing of the re-sentencing exercise, he had a unique insight into Mr Neketai’s future risk. The tendency to commit serious offences in the future had actually been demonstrated. At the time Mr Neketai attacked the other prisoners, he knew the serious damage a hit to the head can cause yet he attacked both victims in the head and in the process almost killed at least one of them.
In our assessment, it is relevant too that these violent attacks occurred in prison. That Mr Neketai should behave in such a violent and dangerous way in a controlled environment where detection was inevitable must be a strong indicator of heightened risk in the community. That view is supported by the reports of the health assessors.
Also relevant is that Mr Neketai’s criminal history shows an escalation in both the frequency of violent offending and the level of seriousness. We note too that in addition to the two prison attacks that resulted in convictions, Mr Neketai’s prison file also discloses three other misconduct charges for striking other prisoners — 11 February 2013, 21 August 2012 and 28 January 2012. Two of these are reported to have involved Mr Neketai striking other prisoners about the head with a closed fist.
There is in our view ample evidence to support the conclusion that Mr Neketai is at high risk of violent reoffending, not only as a paid enforcer but (as noted in the pre-sentence report) in any situation where he takes issue with what he perceives as an affront to himself and/or where he believes the use of violence is justified.
Did the Judge err in his assessment of the harm to the community?
Mr Tennet pointed out that the manslaughter was a “single punch” case. He submitted there was nothing special to take the offending beyond the ordinary for a manslaughter offence and that Brewer J had placed too much emphasis on the harm done to the victim’s family.
We accept the Judge relied primarily on the harm caused to the victim’s family and did not expressly have regard to the wider community interests as required by s 87(4). However, the seriousness of the harm to the community caused by violent offending of this nature is self-evident, especially occurring as it did in the context of a criminal vigilante act.
Did the Judge give insufficient weight to the fact Mr Neketai is not a treatment failure?
Mr Tennet submitted the Judge erred in the balancing exercise because he failed to have sufficient regard to the fact Mr Neketai has never undergone offence‑specific treatment.
It is well established that where a prisoner is not a treatment failure, the Court will often conclude that a lengthy finite sentence is appropriate.[6]
[6]See, for example, Hartley v R [2014] NZCA 162 at [151] and [154]; R v McDonald [2009] NZCA 248 at [38]–[39]; and Pritchard v R [2010] NZCA 403 at [40]–[41].
On the other hand, the lack of previous treatment is not an absolute bar to the imposition of preventive detention. It is one factor to be taken into account and its weight depends to a large extent on the prospects of any treatment being successful.[7]
[7]See Jenkins v R [2015] NZCA 131 at [43]–[44]; Kumar v R [2015] NZCA 460 at [98] and [107].
In this case we agree with Brewer J that the lack of previous treatment, while relevant, was outweighed by the other factors that strongly supported preventive detention. We note in particular the difficulties identified by the health professionals in being able to treat Mr Neketai successfully. We also consider there is reason to be sceptical about Mr Neketai’s professed new attitude. During the assessment period, there were three further incident reports on the prison file, one of which involved an assault on prison staff. In the pre-sentence report, he is also recorded as continuing to minimise his offending — for example blaming the hospital for the death of the manslaughter victim.
In our view, the approach taken by Brewer J was careful and thorough and in accordance with the Sentencing Act. We have been unable to detect any error of reasoning. We consider the statutory criteria for the imposition of preventive detention were satisfied and that there are no grounds warranting appellate intervention. Having regard to Mr Neketai’s high risk of reoffending and the risk he poses to the safety of the community, preventive detention was the appropriate sentence.
Finally, for completeness, we record that Mr Tennet withdrew another ground of appeal relating to the period of the non-parole period. The argument was based on the mistaken assumption that the six-year period only commenced on the date of sentencing for the manslaughter and not the date of incarceration. On receipt of Crown assurances that was not the case, Mr Tennet was content to abandon the point.
Also for completeness, we record that contrary to a submission made by Mr Tennet we consider the finite sentence of nine years’ imprisonment to have been within range and not manifestly excessive.
Outcome
The appeal against sentence is dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent
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