R v Barnes
[2017] NZHC 2673
•27 October 2017
IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY
I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE
CRI-2017-043-165 [2017] NZHC 2673
THE QUEEN
v
SHANE BARNES
Hearing: 27 October 2017 Counsel:
J E Bourke for Crown
T T Bolstad for DefendantSentence:
27 October 2017
SENTENCE OF ELLIS J
[1] Mr Barnes you appear for sentence today after pleading guilty to charges of: (a) threatening to kill;1
(b) arson;2 and
(c) wounding with intent to cause grievous bodily harm.3
[2] You have already received a first strike warning.
1 Crimes Act 1961, s 306(1)(a). Maximum penalty: seven years’ imprisonment.
2 Section 267(2)(a). Maximum penalty: seven years’ imprisonment.
3 Section 188(1). Maximum penalty: 14 years’ imprisonment.
R v SHANE BARNES [2017] NZHC 2673 [27 October 2017]
[3] Your lawyer, Ms Bolstad, and the Crown’s lawyer, Mr Bourke, are essentially agreed that the main question for me today is whether you should be sentenced to preventive detention rather than to a finite, or fixed, term of imprisonment. The second question will be the length of any minimum term of imprisonment, that is the amount of time you must spend in jail before you might be released on parole.
[4] Before I get to that though there are as I have just said a lot of things that the law requires me to say to you. First of all, I need to talk in more detail about what exactly it is you did.
Facts
[5] All three charges relate to the events of 30 January 2017. You were then living in a housing block owned by Housing New Zealand. You were having a dispute with one of your neighbours. At about 11.30 in the morning you went to the back of your neighbour’s property and threw several large rocks through her lounge window, smashing five window panes. You threatened to kill her with a rifle. Your neighbour called the Police.
[6] When they arrived the Police spoke to you. You told them you were your alter ego “Deo”. You said you had wired the house with explosives. You refused to talk further to or engage with them. You threw pots and pans out of a broken kitchen window. Your brother arrived to try and help but you became more and more agitated. Police warned you that they would come inside and use dogs if you did not come out.
[7] Then you went into the kitchen and set fire to a tea towel on the stove top. The Police saw smoke coming out through the broken kitchen window. When they forced entry into your home you armed yourself with a metal vacuum cleaner pipe and a knife with a 10 cm blade. Police used pepper spray and a taser on you but they had no effect.
[8] When Senior Constable Munro went forward to arrest you, you swung the vacuum pipe and the knife at him, slashing his right forearm and causing a deep wound. You were overpowered and taken into custody, while Senior Constable Munro was rushed to hospital. You had severed several tendons and an artery in his right arm. He had four months off work as a result.
Your personal history and mental health4
[9] Now I need to say something about you personally. Your life has not been easy.
[10] You were born in 1962 and raised by your parents until you were five or six. Your mother had schizophrenia and was hospitalised. Your father remarried but spent time in prison for violent crimes. You say you were sent to Lake Alice Hospital when you were 12 because your parents “could not handle” you. You stayed there until you were 15 and continued your education there by correspondence.5 You had behavioural and other problems and did not do well in school.
[11] You have not had stable adult relationships. You say you have had five children by four different women, but have had no contact with them or their mothers.
[12] You have had a number of interactions with the mental health services and with the criminal justice system from the time you were in your late teens. There are two reports from 1981 which recorded that you had psychological difficulties that required attention and noted that your potential even then for reconviction was high. A 1986 report said that you had a “heavily encapsulated personality” and noted your alcohol and drug use. The writer recommended that you attend a specialist programme but it is not known whether you did so. You have consistently made things difficult for those who are trying to help you by refusing to engage in
assessment interviews.
4 This is all from the three psych reports – thought it would be useful to try to consolidate those aspects of them into a narrative.
5 At that time, Mr Barnes was noted to have an IQ of approximately 75.
[13] You have more than 70 convictions over more than 25 sentencing dates, including for violence, drugs, anti-social behaviour, dishonesty, property damage. More than 25 convictions are for violent offending. The longest sentence you have received before was five years and six months for wounding with intent to cause grievous bodily harm, in 2012. You were convicted of further violent offending against a fellow prisoner in 2014. On your release in January 2015 you were assessed as being at a high risk of reoffending and causing harm to others.
[14] About a third of your violence convictions have involved either possessing or using a knife. You have been violent towards people who are known to you and unknown to you alike.
[15] There is a gap in your criminal history between 1989 and 2008 at which point your violent offending began again. It seems that this gap is largely due to your detention under the Mental Health legislation for some or most of this period.
PAC report
[16] For the purposes of sentencing today I have read the PAC report which was prepared in May as well before you pleaded guilty to the present charges the Court ordered you to be assessed under the Mental Health legislation. An assessment for that purpose was done by a psychiatrist, Dr Street. I also have two further reports from Dr Street and a psychologist, Ms Boyd. Intended to help the Court assess your risk of future offending for the purposes of the preventive detention inquiry.
[17] The PAC report writer records that you told him that after your release from prison you generally managed well in the community and that there were instances when you considered using violence but used safety strategies to remove yourself from the situation. You reported that your relationship with your neighbour had been deteriorating. You contacted Housing New Zealand to complain about her dog and verbal abuse. But there was no follow up. You told them that you were on edge and about to snap. You had stopped taking your medication and had been mentally unwell for about two months before the offending.
[18] On reflection, you recognised that you should have done things differently such as admitting yourself to the Mental Health Inpatient Ward. You expressed remorse unprompted and said that you hoped that the police officer had been able to return to work.
[19] You said to the writer that in order to manage in the community, you have to be careful not to become to become too zealous with your religious beliefs. The PAC writer noted that when you were eventually released you would benefit from ongoing intensive community support to ensure that you are taking your medication and to monitor any deterioration in your mental health.
[20] The writer noted that you have some support in the community from extended family. When released in 2015 you lived with your brother and other family members. Your brother was identified as a key support and as I have already said on the day of your offending he was contacted and did come to the scene. But his attempts to reason with you did not work and in fact seemed to have caused you to become more agitated. Your brother considers that you have become institutionalised and would require ongoing support on your release.
[21] In terms of your mental health you were admitted to the Taranaki DHB mental health unit immediately following the current offending. You were diagnosed with chronic schizophrenia and antisocial personality traits. Initially you were uncooperative. You reported hearing voices but the specialists thought that you appeared to be making these symptoms up. You were discharged after four days, and were reportedly calm and settled at that point.
[22] You have said that you have no recollection of what happened on 30 January due to “Deo” overpowering you at the time. But you admitted to the offending on the basis that it seemed believable to you, given your fascination with knives and your criminal history.
[23] You told Dr Street that you had tried to kill yourself a number of times. You say that you have been on “heaps” of psychiatric medications, which helped “a bit” and “slow the voices down a bit”. You said that you first started hearing voices in
your 20s. You say you heard four or five voices that told stories. You started to hear “Deo” in your mid-30s. You described Deo as a “powerful demon” who turns up occasionally and is “not good”. You said that Deo was commanding and threatened death, and that he “always causes serious problems”. You said your latest hallucination was “a little while ago” when you saw “little things running around”.
[24] Dr Street said that you presented with a complex psychiatric history, including numerous admissions for personality disorder and impulse control disorder, and had over 26 admissions for psychotic disorders. Some admissions were marked by concerns for malingered symptoms. You also have a history of abusing alcohol, cannabis, heroin and magic mushrooms.
[25] You told Dr Street that you stopped taking your medications one week prior to the most recent offending. He said that based on the records you would meet criteria for psychopathic behaviour. He said that you have been diagnosed several times with a personality disorder and there had been multiple prior supervision failures. The medical record shows that you lack insight into your illness. The fact it was evident to Dr Street from his own interactions with you. Dr Street said that your overall prognosis is poor due to the combination of issues that you have.
[26] Dr Street also said that although you are mentally disordered in terms of the mental health legislation it was questionable whether you presently have active symptoms of major mental illness. He said that the voices you described were very uncharacteristic and were likely not a true representation of your experience. There had been times in the past where you were genuinely psychotic, but other times when you had pretended to have symptoms that you had experienced on previous occasions.
[27] You also have severe diabetes. You have been largely non-compliant with your medication throughout your life. You are blind in your right eye and have decreased vision in your left eye. You also say you have liver and kidney problems.
Preventive detention inquiry
[28] As I have said, the main question for me today is whether the appropriate sentence is preventive detention or a lengthy fixed term of imprisonment.
[29] Ms Bolstad will, I am sure, have explained to you that the purpose of preventive detention is to protect the community from people who pose a significant and ongoing risk. Your age and the nature of your offending means that you potentially qualify for such a sentence.
[30] So, the main thing I need to decide is whether I am satisfied that you are likely to commit another qualifying offence if you are released at the expiry date of a finite sentence. There are a number of things that the law says I need to take into account when making that decision.
Pattern of Serious Offending
[31] The first of the things that I need to consider is whether there is a pattern of serious offending by you. Clearly there is.
[32] Your history of violence began in 1979 when you were 16. You had a disagreement with your mother and chased her around your home and into the street with a carving knife. You swung the knife towards Police and members of the public. When restrained, you cut a Police officer’s hands with the knife.
[33] Knives have also played a part in your more recent violent offending.
[34] In July 2008 police were contacted when you were walking along a footpath kicking out at shop frontage and signs and being verbally abusive to members of the public. When approached, you presented a knife, dragged it across your own throat and cut the officer’s hand when the knife was taken away.
[35] In January 2009, you went to the house of a person who you said owed you
$40. You approached him and stabbed him in the back without warning. When he tried to stand up and push you away, you stabbed him twice more in the back and shoulder.
[36] In October 2011, you struck another inmate at Kaitoke prison over the head with a broom handle.
[37] In April 2014, you lunged at another inmate with a plastic knife, striking him in the throat. The blade snapped and the inmate was pushed into his cell by a prison officer. He received a three inch superficial laceration to the front of his throat.
[38] More recently you told Ms Boyd that knives were your weapon of choice and that is obviously so.
Seriousness of the harm to the community
[39] The seriousness of the harm caused by your offending is reflected in the victim impact statement. Violent offending of any kind causes harm to the community but your tendency to attack Police officers acting in the course of their duty is particularly concerning. Police play a vital role in protecting the community and in keeping people safe. Fear of attacks such as yours is one of the very many difficulties they must overcome when fulfilling those vital functions. It is relevant too as Mr Bourke said that your victims can be people who are known to you or complete strangers.
Information indicating a tendency to commit serious offences in the future
[40] In terms of how likely it is that you will reoffend or offend seriously again in future based on the ROC*ROI and VRS risk measures as well as the interviews Ms Boyd conducted she found that you were at very high risk of general including violent reoffending. She said that this would likely be against an acquaintance, prison staff or police. It could involve the use of a weapon, likely a knife and could be at a time when you are unable to appropriately manage negative emotions or as a reactive response to a perceived wrong.
Absence or failure of efforts to address causes of the offending
[41] Violence would also occur when you are actively psychotic and responding to command hallucinations. No protective factors were identified as being present.
[42] Ms Boyd noted that your offending had persisted despite sentences of imprisonment. Although you have not had the opportunity to engage in offence focussed treatment, and your motivation to engage in treatment was unable to be assessed. Ms Boyd recommended that a referral to the Special Treatment Unit Rehabilitation Programme be investigated.
[43] Dr Street used the HCR-20 tool which indicates that you present a high risk of committing further violent offences. Most worryingly, he said that you are at risk of offending both when mentally unwell and when well. He said that there is little to suggest a change in direction, other than your increasing medical frailty.
[44] In terms of efforts to address the causes of your offending it does not appear that you have attended any offence focussed treatments. The apparent 16 year gap in your offending is, as I said, due to your being in secure psychiatric care during that time rather than successful treatment. Your reluctance or refusal in the past to engage in psychological assessments and your unwillingness to address your substance abuse and your history of non-compliance with medication are concerning.
[45] I understand that you acknowledge your cannabis use until very recently and had no particular plan for abstaining. Although you say you have a plan to “stay clean”. You saw no role for CAD, AA, NA or any type of support programme. Dr Street says that you again stopped taking your medication for a while, while you were in prison.
[46] Dr Street found that you had unrealistic expectations of risk management and that you could only superficially identify problems and had no overall plan to address them. The only exception was your plan to create a support network, including your brother and several nieces and nephews. You said that you visited your brother and nephews every day and if released, you would be able to stay with your niece (who supported this). But as I’ve said your brother tried, and was not
able, to help you on the day of the offending for which you are being sentenced today.
Principle that a lengthy determinate sentence is preferable if this provides adequate protection for society
[47] Lastly, I must consider whether a lengthy finite sentence would be enough to protect society from the risks you pose. If it is, then that is the sentence I should impose. So, I need to consider now what such a sentence might be.
[48] A length of any fixed sentence that you might receive would be governed by guidelines set down by the Court of Appeal for wounding with intent to cause grievous bodily harm. In my view, the aggravating factors here are:6
(a) actual violence and use of a lethal weapon;
(b)the fact that the victim was a police officer acting in the course of his duty; and
(c) the extent of loss, including property damage to the Housing
New Zealand address, and the serious injury to Constable Munro.
[49] I take only limited account of what the Crown says about premeditation, although it must be acknowledged that it seems you did make the decision to arm yourself with the vacuum cleaner pipe and the knife, after being warned by Police that they would enter your house.
[50] After considering the Court of Appeal’s decision and other cases that the lawyers have referred me to I consider that a starting point of seven years’ imprisonment would be appropriate on the wounding with intent charge, with an uplift of six months for the other offending and a further six months for your
previous related convictions.7 That eight year total would then be discounted by
6 R v Taueki [2005] 3 NZLR 372 (CA).
7 R v Whakataka HC Hamilton CRI-2007-019-3859, 23 September 2008 seemed particularly on point. The fact that the Police Officer’s injuries were more serious in that case was largely a matter of chance.
two years for your guilty pleas. In light of the expert evidence before the Court it would be difficult to give any additional discount for your mental health issues. You had chosen to stop taking your medication a week earlier and, in any event, Dr Street (who saw you soon afterwards) was unconvinced that your stated symptoms on that occasion were real. So, the sentencing end point– if a finite sentence were to be imposed – would be one of six years’ imprisonment.
[51] I agree with Mr Bourke for the Crown that given the aggravating factors, and the need for accountability, denunciation, deterrence and protection of the community a minimum period of imprisonment of two thirds for four years would be appropriate.
[52] As you will have gathered Mr Barnes, the decision I have had to make today is finally balanced. In the end, there are two main things that have tipped the balance in favour of a finite sentence today.
[53] First, as Dr Street said in his latest report there is the ability to make a compulsory treatment order under the mental health legislation on your release to ensure that you continue to receive the treatment you need. And secondly, there is the fact that if Corrections are concerned that you continue to pose a high risk of violent offending on your release date an extended supervision order can be applied for. An ESO can be made for up to 10 years and can be further extended. An ESO would mean that you would be under a very restrictive monitoring regime and would provide a means of intensive oversight of the kind that Dr Street recommends. A public protection order is also an option although the threshold is a little higher.
[54] So, Mr Barnes if you could stand up now please.
[55] On the charge of:
(a) wounding with intent to cause grievous bodily harm I sentence you to six years’ imprisonment with a minimum period of imprisonment of four years;
(b) arson I sentence you to two years’ imprisonment;
(c) threatening to kill I sentence you to two years’ imprisonment.
[56] Those sentences to be concurrent with each other and with the wounding sentence.
[57] Please stand down.
Rebecca Ellis J
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