R v Baker HC Auckland CRI 2008-044-9492
[2010] NZHC 2128
•5 November 2010
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2008-044-009492
THE QUEEN
v
GEORGE CHARLIE BAKER
Appearances: B D Tantrum for Crown
Prisoner in person
T A Simmonds as Amicus Curiae
Judgment: 5 November 2010 at 9:00 am
SENTENCING NOTES OF COURTNEY J
Solicitors: Meredith Connell, P O Box 2213, Auckland 1140
Fax: (09) 336-7629 – B D Tantrum
Counsel: T A Simmonds, P O Box 3815, Auckland 1140
Fax: (09) 379-4499
R V BAKER HC AK CRI-2008-044-009492 5 November 2010
[1] George Charlie Baker, you appear for sentence today on four offences. The first is attempted kidnapping arising from an incident on 5 July 2008. The maximum penalty for that is seven years’ imprisonment. The other offences arise from an incident on 27 August 2009. They are kidnapping for which the maximum penalty is
14 years, threatening to kill for which the maximum penalty is seven years, and assault with a weapon for which the maximum penalty is five years’ imprisonment.
[2] You were found guilty following two trials in the District Court. The District Court has, however, declined jurisdiction to sentence you and remitted the matter to this Court because the Crown has raised the question as to whether a sentence of preventive detention should be imposed.
[3] Before considering the issue of an appropriate sentence, I outline the nature of the offences.
5 July 2008
[4] The incident on 5 July 2008 occurred in a prison van that was returning you from Middlemore Hospital to Paremoremo Prison. You had previously been taken to hospital for a self-inflicted injury to your wrist. You were travelling in the van with four Corrections officers. During the journey you produced a make-shift knife constructed from a piece of sharpened aluminium and lunged at one of the Corrections officers. According to the summary of facts, which reflects the jury’s verdict of attempted kidnapping, you shouted that you were taking the Corrections officer hostage. Fortunately he was able to hold the weapon against the side of the van and his fellow officers restrained you. One of the Corrections officers sustained a cut to the palm of his hand and a cut to a finger during the incident.
27 August 2009
[5] A little over a year later, on 27 August 2009, you committed the three other offences for which you have been found guilty, kidnapping, threatening to kill and assault with a weapon. These offences occurred in the recreational area of the
special needs unit at Paremoremo Prison. The victim was an 82-year-old inmate. You had become agitated, barricaded yourself and the victim in the recreational room. You placed the complainant in a headlock and instructed prison staff to keep away from the gate or you would kill him. You were holding another homemade weapon comprising a sharpened screwdriver. You bound the complainant to a chair for two to three hours and when he began to sing hymns threatened to stab him if he did not cease doing so. You held the complainant for a period of ten hours during which time you armed yourself with various makeshift weapons, repeatedly saying that you had nothing to lose because you were probably not going to get out of jail anyway.
[6] I note that you say – and I think the Crown accepts – that you did do things for the complainant such as ensure that he had food and blankets. I note your assertion that you planned a lone protest rather than kidnapping, but even if that was your initial intention it was obviously overtaken by your decision to detain that victim for quite a lengthy period and, indeed, it was only police intervention that freed him.
Sentencing
[7] I turn then to the question of sentencing. My objectives in sentencing on these various charges are to hold you accountable for the harm that you have done, denounce and deter this kind of conduct and protect the community.[1] In achieving these objectives I am required to follow the principles laid down in s 8 Sentencing Act 2002. Of particular relevance in this case are the gravity of your offending and the your own culpability.
[1] s 7 Sentencing Act 2002
[8] The most serious of the offences is the kidnapping on 27 October 2009 of another inmate and the Crown seeks to have me impose preventive detention on that charge. Before I consider that question, I need to look at what an appropriate finite sentence would be in the event that a finite sentence was imposed.
[9] Because both you and your victim were prison inmates the circumstances of this offending is slightly different to most cases involving the offence of kidnapping. Indeed, I have been referred to only one previous decision involving kidnapping in a prison setting.[2] However, not only was that case different in significant respects, but the Court imposed preventive detention and there was no discussion as to an appropriate finite sentence. I have however, considered other cases of kidnapping involving members of the general community[3] and these cases have some similarity in terms of the length of detention and the treatment of the victim.
[2] R v Mataira HC Auckland, 19 December 2008, John Hansen J
[3] R v Rangitaawa HC Christchurch CRI-2004-009-014066, 11 August 2005; R v Moffatt CA193/01, 29 October 2001; R v MacKenzie & McKenzie HC Auckland CRI-2006-057-000114, 20 March 2007; R v Hill HC Rotorua CRI-2005-063-003096, 27 October 2006
[10] You say that this was not a premeditated crime, but I find that there was at least some element of premeditation. The victim was detained for about ten hours during which time he was bound to a chair, threatened with being stabbed and no doubt took those threats seriously because of the kind of weapon you had. I note the victim was not seriously harmed in a physical sense and you did do what you could for him in terms of food and blankets. But he was no doubt traumatised and that was made worse by the fact that he was an elderly man – 82 at the time of the offending, which added to his vulnerability.
[11] Looking at comparable cases and the factors that I have just noted I consider an appropriate starting point for this kind of offence would be four years. That figure requires an uplift, of course, to reflect the totality of the offending, namely the threatening to kill and assault with a weapon. I am, of course, conscious that some of the aggravating features I have identified include the threats against the victim and the actual assault on the victim and therefore any uplift could reflect only the other elements such as the vulnerability of the victim and the use of a weapon. I would have thought that an adjustment of six months to four-and-a-half years would have been appropriate in the event of a finite sentence being imposed.
[12] On top of that I would need to take into account the aggravating factor of your previous convictions and the fact that this offending occurred when you were already serving a sentence for another violent offence. At the time of this offending
you had some 30 previous convictions, excluding your numerous Youth Court convictions. Of those there were seven violent convictions including for murder and aggravated robbery. At the time of the offending you were and still are serving a term of for murder and were on remand for the 2008 offending. This record speaks for itself and would easily justify an uplift of two years which, in the event of a finite sentence being imposed, would produce a final sentence of six-and-a-half years.
[13] At this point, however, I need to turn to the Crown’s submission that I should impose a term of preventive detention under s 87. I indicate now that I intend to do so. A sentence of preventive detention is available only in respect of persons convicted of a qualifying offence who are 18 years or over at the time of the offence and where the Court is satisfied that the person is likely to commit another qualifying offence if released at the expiry of any finite sentence. The purpose of preventive detention is the protection of the community. It is not intended as a different or greater form of punishment.
[14] The kidnapping charge qualifies as an offence under s 87. When considering whether to impose a term of preventive detention I am required by s 87(4) to take account of five particular factors. The first is any pattern of serious offending disclosed by your history. You are now aged 29 and have been offending consistently since you were about 14. You have numerous Youth Court convictions though none of those were for violent offending. But from about the age of 18 you did begin to offend in a violent manner. In 1999 you committed an aggravated robbery and aggravated injury. In 2006 you committed aggravated robbery and wounding with intent, and later in 2006 you committed the murder for which you were sentenced to life imprisonment with a minimum term of imprisonment of 18 years. This period will run until 2024. These facts show a clear pattern of serious offending.
[15] The second factor I am required to consider is the seriousness of the harm done to the community caused by your offending in this instance. As I have noted, this offending occurred against another inmate in a prison setting. Nevertheless, a prison is a community like any other; inmates are entitled to personal security and the Corrections Department seeks to ensure that. It is completely unacceptable to
have this kind of offending take place in a prison environment. Such offending places the safety and even the lives of other inmates and Corrections staff at risk. I note also the Court of Appeal’s observation on your appeal against sentence for the murder of Liam Ashley that there is no distinction between murders committed inside and outside prison. This observation obviously applies equally to all kinds of offences.
[16] I come then to what is probably the most important factor, being information available to me that indicates a tendency to commit offences in future. The natural starting point for this discussion is your extraordinarily deprived background. You come from a family characterised by violence, drug and alcohol abuse and gang connections. You were physically and sexually abused as a child both within your natural family and under foster care. You have been a loner for most of your life, finding support mainly within the gang culture. You have limited education but have completed a forestry and panelbeating course and I note that you are making an effort to complete other vocational training in prison. But you have had little employment in your life. You have used alcohol and cannabis since childhood and subsequently other drugs including methamphetamine and prescription medicine. You have had little in the way of long-term relationships and have limited contact with your three children. You have an established diagnosis of borderline and anti- social personality disorders for which you have been medicated to little effect. You have a long history of self-harm and attempted suicide.
[17] Looking at your history of emotional neglect, physical and sexual abuse, lack of formal education, gang connections and drug use, it is hardly surprising that you present with the kind of complex emotional behavioural problems that have been reported. I have reports from Dr Skipworth, a consultant psychiatrist and Kim Bradley, a registered clinical psychologist. Both reports make for disturbing reading, some of the most disturbing reading I have ever seen. Dr Skipworth relates some of the statements you made to him during your interview with him; your description of excitement when engaged in violent behaviour, the thrill of risk-taking, the impulsive sense of “kill or be killed” speak for themselves. Of greatest concern is your statement to Dr Skipworth that if you were released you would be killing people and you would probably re-offend.
[18] Dr Skipworth refers to previous assessments as having produced high scores associated with risk of violent criminal recidivism. Although cautioning that it is difficult for him to provide a definitive view regarding future risk of violent re- offending in a particular case, including this one, Dr Skipworth concludes that your background history, clinical diagnosis of personality disorder, analysis of your previous offending behaviour and current situation throw up a range of factors that place you within the group for having a high risk of re-offending. Without extensive intervention Dr Skipworth considers it unlikely that this risk would significantly reduce within the 14 remaining years of your minimum term of imprisonment. Probably the risk is best reflected in Dr Skipworth’s following statement. He says:
The seriousness of harm to the community could hardly be greater when he [that’s you Mr Baker] continues to voice homicidal intent if given the opportunity to re-offend at any stage in the future whether that be in prison or in the community. He continues to make overt threats to kill and has shown himself capable of doing so. There is every reason to believe that if given an opportunity he will attempt to carry out his threats in the future.
[19] Ms Bradley’s report is to like effect. She identifies the same factors as Dr Skipworth has identified in terms of heightened risk of re-offending and also addresses some of the previous attempts that have been made to address the cause of your offending. This aspect is the fourth factor am required to consider under s 87. You have reported starting but never completing previous courses though this may have been due to being transferred or released. Although you have expressed dissatisfaction at not getting any help for your needs you have had quite extensive contact with the psychological services including a five-month period of admission at the Mason Clinic in 2004. However, you were reported as not having really been engaged in the therapy that was offered at the time. There was no real indication in your discussions with Dr Skipworth or Ms Bradley of any genuine motivation or even ability to engage in treatment. Efforts to date have had little impact on your behaviour. Ms Bradley’s conclusion is that current assessments indicate there would be a very high likelihood of you re-offending in a violent way in the future.
[20] Today you did make submissions to me which included your desire and intention to address the reasons for your offending. It is, of course, always pleasing to hear a prisoner express such views. But I have to set them against the fact that only a few months you made these very disturbing statements to Dr Skipworth and
to your credit you were frank in acknowledging that you made them and you were being honest when you made them. And you also acknowledge, as does Mr Simmomds who has appeared as amicus today, the catch-22 that you find yourself in that you recognise that without significant intervention the risk you pose is not likely to reduce and yet in the maximum security conditions at Paremoremo you are very unlikely to have access to that kind of help. This catch-22, I am sure, is one that is faced by many people but yours is a truly extreme case. All involved in this case, including you, can see that if you do not get real help – significant help – and you do not engage with it, the prospect of you reducing the risk to society is practically nil. All I can do is urge the prison authorities and you, Mr Baker, to do whatever you can to make a difference here.
[21] The final factor I have to consider is the principle that a lengthy determinate sentence is preferable if it provides adequate protection for society. Looking at the factors I have canvassed there can, of course, be no doubt that you pose a consistent and high risk to others, whether prison inmates or members of the public. Although you do not suffer from any mental illness as such, you do suffer from very deep- seated psychological problems.
[22] Mr Simmonds, as amicus, has, however, raised the important question as to whether preventive detention is, in fact, necessary in light of the current sentence that you are serving. You will, because of the minimum imprisonment you are now serving, serve a further 14 years in prison regardless of what sentence I impose today. Mr Simmonds has submitted that because of this, and together with the fact that you will not be released until the Parole Board is satisfied that you do not pose an undue risk to the community, there is already adequate protection for the community without such a sentence. He submits that a determinate sentence would be appropriate.
[23] The Court of Appeal has made it clear that an existing indeterminate sentence of life imprisonment does not, in itself, preclude the imposition of preventive detention.[4] I note that in a case with similarities to this one a term of preventive detention was imposed on an offender already serving a term of life imprisonment
with a 13-year minimum non-parole period. That offender had attempted to subsequently kill another inmate and so faced a charge of attempted murder.[5] I am referring here to the decision in R v Johansen. In that case Harrison J considered the very point that Mr Simmonds has made as to the utility of imposing preventive detention and observed that a sentence of preventive detention in these circumstances can nevertheless serve a real purpose in that it can signal to the prison
authorities and to the Parole Board the sentencing Judge’s view supported by expert evidence, that at the time of sentencing the offender posed the same if not a greater risk to society as when sentenced to life imprisonment. In that case, Harrison J reflected that the passage of time had not changed the offender, nor had any effective steps been taken to deal with the deep-seated disorders from which he suffered. Those comments are apt in this case. I note Mr Simmonds’ reference to the Court of Appeal’s decision in R v Wilson in which a sentence of preventive detention was quashed for an offender also serving an indeterminate sentence. But clearly in that case, the risk that that offender posed was very different to the one that you pose.
[4] R v Mackrell (1998) 16 CRNZ 1
[5] R v Johansen CRI-2004-083-001849, 2 June 2005
[24] A factor that weighs heavily with me, as I have already indicated, is Dr Skipworth’s view that it is unlikely that the risk you pose would significantly reduce in the remaining 14 years of your current minimum period of imprisonment. All the information I have strongly suggests that you will continue to pose a risk even after that time. Your offending has been consistently violent for a long time and in the four years since you have been sentenced on the murder charge nothing has changed for the reasons that we have already discussed. I therefore conclude that a term of preventive detention is needed and will send a clear signal to the Parole Board that, at this stage at least, nothing has changed and you must be regarded as a serious risk to the community even as far out as 2024 if significant changes are not made.
[25] Having imposed that sentence I am also required by s 89 to impose a minimum period of imprisonment of no less than five years. In deciding how long the minimum period of imprisonment should be I must consider what period would be required to reflect the gravity of the offence and what would be required to reflect
the purposes of safety of the community. I am required to impose the longer of those periods. In light of the factors I have discussed which have led to my conclusion that re-offending is highly likely, I consider that a longer period of imprisonment is required for the purposes of safety of the community than would be required for the gravity of the offence. As I have said, you will be eligible to apply for parole in October 2024 but the prevailing view is clearly that you will still pose a risk at that point. Even taking into account Mr Simmonds’ point that it is unlikely that you will be granted parole on the first application in any event, some additional time is needed to reflect the fact that the risk is unlikely to have eased by that stage. I impose a minimum period of imprisonment of sixteen years.
[26] The end result is that I impose preventive detention on the kidnapping charge with a minimum period of imprisonment of sixteen years. I impose a finite term of two years in respect of the attempted kidnapping, 18 months in respect of the threatening to kill and one year for assault with a weapon. All sentences are to be
served concurrently with the sentence you are now serving.
P Courtney J
0