R v Bartlett

[2018] NZHC 3449

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CRI-2018-012-001000

[2018] NZHC 3449

THE QUEEN

v

WADE DYLAN BARTLETT

Hearing:	20 December 2018
Appearances:	M N Zarifeh for the Crown N M Laws for the Defendant
Judgment:	21 December 2018

SENTENCING REMARKS OF NATION J

[1]    Mr Bartlett, I have to sentence you for serious violent offending. You will know that you are either up for a lengthy term of imprisonment or a sentence of preventive detention. If I impose a sentence of preventive detention, you will not know when you might be released from prison. You will remain in prison until the Parole Board is satisfied there is no longer a significant risk of your committing serious violent offences, such as occurred while you have been in prison.

[2]    Here you are, visibly marked as a member of a gang that has been a major reason for your offending and for your being at risk of a sentence of preventive detention. It is a tragedy to see a young man aged 33 in Court facing the prospect of such a sentence. It is however good to see you have some support in Court. It is not what I had expected for reading the reports.

R v BARTLETT [2018] NZHC 3449 [21 December 2018]

[3]    I will be talking to you about your offending later. Right now, I want to identify certain aspects of your history and your potential that are apparent from the two detailed reports provided to me by Dr Panckhurst and Ms Wilton.

[4]    There is little in those reports to indicate that you have much, if any, empathy for the prisoners who have been the victims of your offending, but there is information in the report which indicates to me that you are capable of having positive feelings for others. You could value the support you might obtain, not from being in a gang, but from your whānau and wider community, provided they commit to helping you step away from the life you have been leading.

[5]    In particular, I noted the references to the respect and love you had for your mother. You acknowledge she took the initiative when you were very young to have you moved away from the environment of violence and abuse in which, from birth, you were brought up. During her life, she made decisions and took action which must have been brave but which came with considerable consequences for her. She had the strength of character to do that. You need to show that you have the same strength of character so as not to be subject to the influence of gang culture to do things which leave you having to be sentenced for the sort of violent offending for which I must sentence you now.

[6]    For you to extract yourself from that gang environment will be difficult. It will be difficult while you are in prison but it is something you have to do. You will have to take advantage of programmes that should be available to you in prison to reduce the risk of further offending. It will be essential if you are to avoid further offending if and when you are released from any form of prison sentence. However, the reports tell me there is the potential for you to do that.

[7]    The reports referred to the hearing difficulties you were born with and that caused you, from a young age, to behave in all sorts of antisocial ways. That particular disability is something for which assistance needs to be available.

[8]    For you, there is an alternative to the antisocial influence of the gang to which you belong. You told Dr Panckhurst of your strong attachment to your Māori culture.

Your mother taught you Te Reo Māori, you were involved in youth groups and Kapa Haka through your childhood. You say that your engagement in Corrections-based programmes has been better when they have an emphasis on Māori culture.

[9]    I hope that the potential for you to benefit from this during your prison sentence can be increased and, through your whānau and wider community in the Hawkes Bay, you will be able to benefit from such positive association. That will not be easy when you are marked out within the prison environment and in the community as a gang member through your tattoos. You say you want to have those tattoos removed by laser treatment. It is easy to say you want to take such a step but doing it is the real test and I have been provided with information that one of your offences while in prison was that you were found to be in possession of tattooing equipment. Perhaps that was a little while ago. I am taking you at your word that the removal of the tattoos is what you want to do.

[10]   You have demonstrated potential to benefit from programmes that should be available to you in prison through the apparently open and honest way you talked to Dr Panckhurst and Ms Wilton about the causes for your offending. You told Dr Panckhurst that you acknowledged an extensive history of violence which you said was all about your surroundings and being with your associates. Dr Panckhurst asked you what you needed to do to avoid future violence and offending. You identified the need for laser treatment to remove your tattoos, increasing your connection you’re your family/whanau, and the option of returning to the Hawkes Bay region to reconnect with them and your Māori culture.

[11]   You showed off to your gang associates with your offending as if it was something you could be proud of but you did say to Dr Panckhurst that you were ashamed for what you had to do. Although you say you were directed to do what you did, you described what you did in the Court cell as being “a stupid test”.

[12]   The only real treatment you have had while serving prison sentences was within the Matapuna Special Treatment Unit between May 2014 and your eviction without completing the programme on 27 January 2015. Dr Panckhurst noted the report said you were reluctant to describe certain aspects of your offending and

struggled to answer questions related to substance abuse and gang affiliations. You seem to have engaged with Dr Panckhurst and Ms Wilton in a way where you were open in talking about such matters, so there is the potential for you to benefit from such a programme in the future. You engaged with them positively. Dr Panckhurst referred to you engaging with him with enthusiasm and without, at any time, being irritable, aggressive or hostile. He concluded that, with him, you “exhibited a reasonable understanding of the links between [your] violence and to regulating [your] emotions”.

[13]   Dr Panchhurst noted that you will continue to require very high levels of support services in the community and, historically, the amount and intensity of professional services while you have been in prison has not been equal to your level of need and risk. There is the potential for you, if your security rating improves and if Corrections have the resources, for this to be better in the future. There is a challenge for the wider community to make themselves available to support you positively if and when you are released from prison but you will have to do your bit to make sure any support is available.

[14]   Ms Wilton has identified that you are at high risk of committing violence if in the community but that your history would also suggest that, after prison release, you are at risk of property-related offences more than persistent violence. She says however that there is a particular risk of you being involved in violence targeted at the head and neck area so that the risk is as to violence which is potentially lethal.

[15]   Ms Wilton identified the same factors that might reduce your risk of further offending as did Dr Panckhurst. She also said that, for you to take advantage of those factors, you will need to demonstrate genuine and sustained motivation to take advantage of those factors and to get away from all the influences which have caused you to offend and which are the reasons for you being before me now. What you will have to demonstrate while you are in prison is that all your talk about the things that could be positive for you are not just words. You have to follow it up with real action and with an engagement in programmes that, in ways, may not be easy for you. Your mother is sadly no longer with you but you need to show her that you are capable of living a different life than you have been.

[16]   Having said that, I must however now sentence you for the offending which you acknowledged with your guilty pleas.

Injuring with intent to cause grievous bodily harm

[17]   On 1 April 2018, you and two associates entered the exercise yard at the Otago Prison. Thirteen prisoners were in the yard at that time but the victim was alone in one part of the exercise yard. The three of you entered the yard and signalled gang slogans towards a prison building. The victim was performing leg stretches, his hands were against the rear wall of the exercise yard. In an orchestrated and premeditated manner, you began to punch the victim in the head. The other two offenders then joined in. The victim fell to the ground, he was defenceless and unable to protect himself. You and one of the other offenders then kicked and stomped the victim’s head on several occasions. All three of you then paraded around the exercise yard demonstrating what appeared to be gang slogans to a prison building. Correctional staff came to the assistance of the victim. While the victim was still lying injured on the ground, you walked over and again stomped on his head. This vicious and unprovoked assault was recorded on closed circuit television.

[18]   The Crown and the defence agree this offence should be the lead offence in fixing your sentence. They also agree the offending is towards the higher end of band 1 getting close to band 2 of Taueki.1

[19]The aggravating features are:

(i)Premeditation – you entered the exercise yard with the intention of attacking the victim. Even if others directed it, your offending was not impulsive or spontaneous.

(ii)Attack to the head – you punched and stomped on the victim’s head. You told Dr Panckhurst that you would not kill for the gang. Such an attack as you made to the head is potentially lethal.

1      R v Taueki [2005] 3 NZLR 372, [2005] 21 CRNZ 769.

(iii)Injuries to the victim – the victim received a number of lacerations, bruises and cuts to the head. He lost consciousness and suffered concussion symptoms.

(iv)Multiple attackers – there were three attackers. Mr Laws submitted that your offending was no more culpable than the other two. The summary of facts indicates that you initiated the attack. The other two offenders became involved. When the victim was on the ground, you joined in kicking and stomping the victim’s head on several occasions. After the Correction’s staff came to assist the victim, you alone walked over and again stomped on the victim’s head. As the summary said, the whole attack was vicious and unprovoked, but what marks out your offending was the way, after applause from other prisoners, you walked over and again stomped on the victim’s head. That was, that part of it was the sort of impulsive violence which Dr Panckhurst has said you will be at risk of repeating. It was a potential lethal attack, seemingly as a way of showing off to the gang members who were applauding what all of you had done.

(v)Gang warfare – you and the other two offenders made gang signs before and after the offending. The way the attack occurred indicates it was gang orchestrated.

(vi)Vulnerability of the victim – a prisoner that cannot escape is vulnerable.2 This victim was particularly vulnerable because of the way he was isolated within the yard and was leaning against the wall with his back to you when you first struck him. It was a cowardly attack.

[20]   Starting points of three and a half years and four years were adopted for the two other offenders in the District Court. The Judge adopted those starting points noting that you appeared to be the main offender and the other two had followed your lead.

2      R v Nuku [2016] NZHC 254 at [24].

[21]   Consistent with your having a lead role is also your offending on 8 June 2018 against one of the co-offenders.

[22]There are no mitigating aspects as to the offending.

[23]   I have considered the circumstances, sentences and starting points adopted in cases referred to me by both the Crown and the defence. A starting point of five years imprisonment appropriately recognises the seriousness of your offending and your role.

Injuring with intent to injure

[24]   On 8 June 2018, your victim and an associate were the only other occupants of a cell at the District Court. You were observed stomping on the victim’s head on numerous occasions before the incident was broken up. The victim was taken by ambulance to Dunedin Public Hospital and was subsequently discharged later that day. He suffered bruising about the head and cuts to the face.

[25]   In his submissions, Mr Laws has said the offence was connected to the earlier attack. You told Dr Panckhurst that, when people stuff up there are big consequences. You referred to your involvement in this offence as a test, a stupid test. It seems this assault was also gang related and premeditated.

[26]   The Crown submits the starting point for this offending should be two years’ imprisonment. The defence submits that a starting point as low as one year is available.

[27]   The aggravating features present were the attack to the head, the vulnerability of the victim and a degree of premeditation. This puts the offending in band 2 of Nuku.3 There are no mitigating features as to the offending.

[28]   I have considered the starting points that were adopted in other cases.4 I adopt a starting point of 18 months for this offending.

3      Nuku v R [2012] NZCA 584 at [38].

4      Heki v R [2014] NZHC 2570; Karetu v R [2013] NZCA 408.

Assault with intent to injure

[29]   This offence occurred on 2 June 2017 when you were a remand prisoner at Christchurch Men’s Prison. You were locked in your cell with your cellmate so he was vulnerable. He was in the process of eating his lunch. You attacked him, punching him about the face and causing him to fall to the floor. You then kicked him in the back of the head and about the body. The assault continued until the victim was able to reach the in-cell panic alarm and alert the guards to the assault.

[30]   With those aggravating features present, this offending would be again within band 2 of Nuku.

[31]   The Crown submits that an appropriate starting point for this offending would be 20 months’ imprisonment. Your counsel suggests the starting point should be one year.

[32]   There are no mitigating features as to the offending. I adopt a starting point of 18 months for this offending.

[33]   The Crown has submitted there should be an uplift in the starting point sentences because of your previous convictions for assault, wounding with intent to cause grievous bodily harm and injuring with intent to injure.

[34]   In 2007, you committed the offence of wounding with intent to do grievous bodily harm in an incident of family violence where you elbowed your partner in the face, breaking her jaw, and making threats of further violence. In 2015, you were in prison for one year and four months following a conviction for injuring with intent to injure in another family violence incident.

[35]The Crown noted that the Court of Appeal have said:5

Good order and discipline within the difficult prison environment is essential. Activities that threaten that, such as intra inmate violence, will normally deserve marking out, whether it be by a higher placement on the available range or by uplift.

5      Lake v R [2017] NZCA 39.

[36]   I have taken the fact that there was repeat offending within the prison environment into account in arriving at the starting point sentences for the offending on 1 April 2018 and 8 June 2018. I have also had regard to your previous involvement in violent offending in a different setting when deciding how to deal with totality. There is no further uplift for your prior history of offences involving violence.

[37]   The starting point sentences for the offences of injuring with intent to cause grievous bodily harm and injuring with intent to injure are thus five years and 18 months, that is six and a half years’ imprisonment.

[38]   The Crown accepts you pleaded guilty promptly to those charges and that a credit of 25 per cent is appropriate for that offending. There is nothing in the reports to indicate that you have any real remorse for your offending or any empathy for the victims.

[39]   With a 25 per cent discount on the starting point sentence for those two offences, the sentence for that offending, would be approximately three years, nine months and 13 months. That is on two of the charges.

[40]   On the assault with intent to injure charge, you chose to go to a Judge alone trial. You were given a sentence indication on 13 February 2018 but did not take advantage of that. You were to stand trial on 14 June 2018. After a change of counsel, on 14 June 2018 you pleaded guilty. With that guilty plea, you accepted responsibility for what you had done but it was very late in the day. The starting point for this offence was 18 months. I allow for a modest discount of two months on the starting point sentence for that offence, to bring the starting point sentence back to 16 months.

[41]   With such a discount for guilty pleas for these three sentences, the combined starting point for the three offences is six years, two months.

[42]   I have considered whether there should be a further discount for totality. Your counsel accepts there was no connection between the offence of assault with intent to injure and the latter two more serious offences. He submitted there was a close connection between the two later incidents because the second would not have

occurred but for the offending in the exercise yard. I do not accept that submission. There were two separate incidents, involving different victims and for different reasons, apart in time and circumstances.

[43]The Court of Appeal has said:6

Reoffending, particularly violent reoffending, while in prison, must have significant consequences for the offender, notwithstanding that the outcome is a very lengthy period of imprisonment.

[44]   An appropriate finite cumulative term of imprisonment for the three offences of violent offending is thus six years, two months.

Dishonesty offending

[45]   You are also for sentence on one charge of theft (over $1,000), one charge of theft (under $500) and three charges of receiving (under $500). Reparation of $50 is sought, other goods were retrieved.

[46]   The dishonesty offending all occurred in May 2017. You received items stolen from three individuals valued at approximately $50, $400 and $300. The items received were a wallet with various cards, another wallet and a set of golf clubs. These items had been stolen from three different individuals in different circumstances. They were found in your car when your car was located after you stole a handbag on 6 May 2017.

[47]   In a mall food court, you stole a woman’s handbag from the chair beside her which contained items to the value of $2,000. She saw this and yelled at you to stop. She and members of the public gave chase. You then drove away in your waiting vehicle.

[48]   On another occasion, you stole items from a department store with a total value of $189.

6      R v Connelly [2010] NZCA 52.

[49]   The Crown submits that a starting point between 12 and 18 months appropriately recognises the totality of the dishonesty offending here. The defence submits that three to six months is sufficient.

[50]   Your offending was stupid, relatively low-level street crime apart from the theft of the handbag, but that was not aggressive and did not involve any contact with the victim.

[51]   However, all that offending demonstrated a lack of respect for other people’s property and the offending caused them significant inconvenience, expense and distress. Perhaps you smile and sort of laugh because perhaps, underneath it, you are capable of being ashamed and just thinking how silly. I hope that is the reason you are acting the way you are.

[52]   I consider an appropriate starting point sentence for these offences of dishonesty would be 12 months’ imprisonment. You pleaded guilty promptly to those charges for which you are entitled to a 25 per cent discount, bringing that sentence back to nine months’ imprisonment. The maximum sentence for the shop lifting and receiving charges is three months on each charge, so the effective sentence will be achieved through imposing concurrent sentences.

Compliance offending

[53]   You have been charged with breaching community work and breaching your release conditions on an earlier sentence. You completed only half an hour of a community work sentence of 80 hours. On each of those charge, you will be convicted and sentenced to one month’ imprisonment, each sentence concurrent with the other so that, for this offending, you will effectively be sentenced to one month’ imprisonment.

[54]   That brings the overall starting point, after discounts for guilty pleas, to seven years. There is no need for any further adjustment for totality.

Minimum period of imprisonment

[55]   You know that the Crown asked the Court to impose a minimum term of imprisonment in excess of the time that you would normally be eligible for parole.

[56]   Under s 86(1) of the Sentencing Act, the Court may sentence you to a minimum period of imprisonment where you have been sentenced to a term of imprisonment of more than two years for a particular offence. The particular offence for which I consider whether or not there should be a minimum period of imprisonment is the offence of injuring with intent to cause grievous bodily harm; the end sentence for this offending will be three years, nine months. The minimum term cannot be for more than two-thirds of the sentence for that particular offence.

[57]   Without a minimum period of imprisonment, you would be eligible for parole after serving one-third of your sentence. The Crown submits that, if a finite sentence is imposed, a minimum period of imprisonment of half to two-thirds of the sentence is needed to achieve the purposes for which a minimum term can be imposed. Your counsel does not accept that a minimum period of imprisonment is necessary.

[58]   The maximum minimum term of imprisonment that I could impose on the grievous bodily harm charge is two years, five months. You will be eligible for parole for the combined offending on which you have received cumulative sentences after serving one-third of those combined sentences, that is around two years, four months. The imposition of a minimum term will thus not achieve any of the purposes of s 86(2) over and above what will already be achieved through imposing cumulative sentences for a total of seven years. I am thus not imposing any minimum sentence.

[59]   But, when you are thinking about eligibility for parole, I need to say that the detailed reports show there is a risk of further violent offending. Whether or not you are granted parole will undoubtedly depend on what you have achieved as far as your rehabilitation is concerned. That is going to depend very much on whether you are able to remove yourself from gang influence.

[60]   So, I have explained what definite finite prison sentence you would receive. The issue I must consider now is whether, instead of receiving a finite prison sentence,

you should be sentenced to preventive detention. I need to go through the matters that I have to consider carefully over this.

Preventive detention

[61]   The test for preventive detention is set out in s 87 of the Sentencing Act 2002. I must first determine whether the section applies, taking into consideration the requirements of subs (2). If the Court determines the section does apply, I have a discretion whether or not to sentence you to preventive detention. I must do that having regard to matters that are set out in subs (4).7

[62]   The information in the reports provided satisfies me that you are, at present, likely to commit a violence offence if released at the expiry of a finite sentence, but only by a small margin. You have a limited history of serious violent offending. While account must still be taken of all violent offending, the small number of qualifying violent offences and the time between them occurring does indicate a less pronounced pattern of offending than in other cases where preventive detention has been imposed.

[63]   Preventive detention is usually imposed for people further down the road of violence than you are at present. But, you are at a turning point. You must now be aware that a sentence of preventive detention is a real possibility. You have the choice to engage in rehabilitation programmes and reduce the ways in which you are a danger to society. If you refuse and your violence escalates, the case for preventive detention will be much stronger. In particular, I warn you again that, if you are involved in further incidents of violence in the prison, especially if they involve attacks to the head and neck area, the likelihood of preventive detention will be much stronger.

[64]   It has been noted that an offender’s predilection or proclivity for offending, or an inability to control his behaviour is also relevant.8 I do not consider that you have a total inability to control your violent behaviour. It is perhaps easy for you to say this most recent violence was gang directed but the reports of Corrections’ officers working

7      M (CA236/15) v R [2016] NZCA 77 at [28].

8      Geoff Hall Sentencing Law and Practice (3rd ed, Lexis Nexis, Wellington, 2014) at [SA87.8(a)].

within the prison system support this. If you can receive support and be separated from gang influences, there is a good chance your offending risk would be reduced.

[65]   Your offending has caused harm to the community through the physical injuries that have resulted from your violence. This includes a man who was concussed and received bruising and lacerations; breaking the jaw of your then partner; and another man who suffered a concussion and abrasions and bruising to the face and an arm. The “community” and “society” referred to in the legislation which I refer to, includes those who are in, and work in, prisons.9

[66]   While the injuries that you did cause in various situations are not trifling, they are serious, the harm caused is not as serious as in other cases where preventive detention has been imposed.

[67]   The report writers have assessed you as having a high risk of committing violent offences in the future. In his report, the principal Corrections Officer said that the predominance of your problematic behaviours arise on the basis of your being under the control and instruction of a gang.

[68]   The Court must also consider the absence of, or failure of, efforts by you to address the cause of your offending. Your only engagement in rehabilitation has been eight months on the Special Treatment Unit Rehabilitation Programme (STURP). For reasons I have discussed, there are indications you are now more willing and will be able to engage positively in that programme.

[69]   Finally, I note the principle that a lengthy finite sentence is preferable if this provides adequate protection for society.

[70]   I have considered the other matters referred to in s 87(4) when I began with my remarks on this sentencing.

[71]   Having considered all these factors, I have decided that preventive detention is unnecessary in this case. You know however that you are at the crossroads. It is not

9      R v Matete CA100/ 06, 17 October 2006 at [18].

going to be easy but you have the potential to change. You say you want to, I read your letter. You are going to have the opportunity to prove this but it is going to take time.

[72]Mr Bartlett, please stand.

[73]   On the charge of assault with intent to injure, you are sentenced to 16 months’ imprisonment.

[74]   On the charge of injuring with intent to cause grievous bodily harm, you are sentenced to three years, nine months’ imprisonment.

[75]   On the charge of injuring with intent to injure, you are sentenced to 13 months’ imprisonment.

[76]Those sentences are all cumulative on each other.

[77]   On the charge of theft of a handbag, you are sentenced to nine months’ imprisonment.

[78]   On the charges of shoplifting and receiving, you are sentenced to one month’ imprisonment, concurrent with the sentence of nine months for theft and cumulative on the other sentences.

[79]   On the charges of breach of release conditions and failure to complete a community work sentence, you are sentenced to one month’ imprisonment, concurrent with each other but cumulative on the other sentences.

[80]   Because you are in prison, I make no order for reparation. I am also not going to disqualify you from driving, despite your use of a vehicle in connection with the theft and receiving charges.

[81]The effective sentence for all this offending is thus seven years’ imprisonment.

[82]   I give you a clear warning. If you are involved in any further violent offending while in prison or on release, it is highly likely that you will be sentenced to preventive detention. That is particularly so if there is violence involving an attack to the head or neck area.

[83]   Mr Bartlett, at the end of your letter to me, you said you would respect the decision of the Court. It is not going to be a sentence that is easy for you. You wished me a merry Christmas at the end, I will do the same to you.

[84]Stand down.

Solicitors:

Raymond Donnelly & Co., Christchurch Ross Dowling Marquet Griffin, Dunedin.