R v Burton HC Ak CIV 2009-044-010515
[2010] NZHC 133
•19 February 2010
IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY
CRI 2008-044-010515
THE QUEEN
v
GRAEME WILLIAM BURTON
Hearing: 19 February 2010
Appearances: D A Bell for Crown
P H H Tomlinson for Prisoner
Judgment: 19 February 2010
SENTENCE OF RANDERSON J
Solicitors: Crown Solicitors, PO Box 2213, Auckland 1140
P Tomlinson, PO Box 194, Auckland 1140
R V BURTON HC AK CRI 2008-044-010515 19 February 2010
Introduction
[1] Mr Burton, on 11 November 2009 you were convicted after a jury trial of one count of attempting to murder a prisoner at the Paremoremo Prison on 20 December
2008. The maximum sentence for that offending is 14 years’ imprisonment, although I also have the power to impose a sentence of preventive detention if I conclude that a sentence of that kind is necessary to protect the community.
Background facts
[2] The facts established at trial are that, sometime prior to the incident, you obtained a stainless steel rod approximately 300 mm long and 8 mm in diameter. One end of the rod had been sharpened to a point and the other had been wrapped to make a makeshift handle. It is reasonable to infer that you hid this weapon (known in the prison as a shank), and another weapon, in your cell.
[3] On the day of the incident, video surveillance footage showed you emerging from your cell when it was opened along with other cells in your block. You had padded yourself up to avoid injury should the victim strike back. The video footage showed you pursuing your victim up and down the landing outside the cells armed with a shank in each hand. Although you have an artificial leg, this does not seem to have been any impediment to your actions that day. You pursued the victim along the length of the landing several times, the victim backing away from you. Although, at one point, the victim grabbed a mop handle in order to defend himself, I have no doubt that you were the aggressor. There was no evidence that the victim attacked you in any way. Nor was there evidence of any provocation on his part.
[4] The video footage did not show you striking any blows, but when prison officers came to the scene, the victim was pulled to safety, exhibiting multiple cuts to his t-shirt and substantial bloodstaining. In all, there were some 27 wounds to the victim’s chest, shoulders, arms and legs. It was not in dispute at trial that you caused these wounds.
[5] The surgeon who treated the victim said that two of the three blows to the chest were relatively superficial, but the third was nearly fatal. It was a wound of two to three centimetres in depth through the ribs on the left side of the chest and into the heart. The wound was about one centimetre wide.
[6] The Crown case was that, if a man stabbed another in the vicinity of a vital organ such as the heart, an intention to kill could be inferred. The blow which pierced the victim’s heart led to blood escaping into the pericardial sac from which he would have died but for the emergency surgery undertaken to stem the loss of blood.
[7] You declined to speak to the police about the incident and offered no explanation for your attack on the victim. Your defence at trial was that you may have intended to harm the victim, but did not intend to kill him. The jury plainly rejected your defence in that respect and necessarily found that you intended to kill the victim. The victim also declined to speak to the police and has not provided himself any victim impact statement. This is not surprising given the prison environment which you both presently occupy. I have, however, had the benefit of a victim impact statement from the victim’s sister Ms Marsh and she is present today. I have indicated that I will be taking into account the impacts which she describes in that statement from herself and the wider family, including the trauma which this incident caused to them.
Your past history
[8] You have just turned 39 years of age. You have an unenviable history of violence and other serious criminal offending. You have been convicted of murder
on two separate prior occasions – one in 1992 and another in 2007. On the last occasion, you were sentenced to life imprisonment along with a sentence of preventive detention with a minimum period of imprisonment of 26 years.
[9] You will not become eligible for parole in terms of your prior sentences until the year 2033, by which time you will be 62 years of age. Even then, you will not be
released unless the Parole Board considers that you no longer represent a risk to the community.
[10] You have refused to speak to report writers for the purpose of this sentencing, which suggests a complete indifference to the situation in which you find yourself, the consequences of conduct and the effect on your victims. You have expressed no remorse to your current victim although today, in the face of the victim impact statement from the victim’s sister, you did, through counsel, acknowledge the harm done to the wider family. That has come at a very late stage.
[11] The details of your prior offending are fully documented. In brief, you began offending in 1988 when you were only 17 years of age. Since then, you have amassed over 100 convictions of increasing severity. In 1991 you fatally stabbed a stranger outside a nightclub. That was your first conviction for murder at the age of
21 years. You were in prison from that time until 2006. Your violent behaviour did not cease while you were in prison. You were convicted in 1994 on two charges of assaulting a prison officer and in 1997 on a further charge of assault with intent to injury. In 2001 you were dealt with by the prison service internally on a charge of assault on an inmate. There may have been other matters in prison which have attracted disciplinary treatment but I take no account of them for sentencing purposes.
[12] In 1988 you and three other prisoners escaped arming yourselves with weapons. You were recaptured some 11 days later. Your worst offending came after you were released on parole on 10 July 2006 after fourteen and a half years in prison. You breached your parole conditions and reverted to abuse of drugs and alcohol. A warrant was issued for your arrest, but on 6 January 2007, while you were on the run from the police, you became involved in a violent confrontation in the Wellington area. You had armed yourself with a shotgun, a revolver, two knives and a baton. You attacked and killed one innocent member of the public and attempted to murder two others, robbed and injured two more victims and then levelled a loaded shotgun twice at police officers.
[13] You pleaded guilty to that offending and you were sentenced by Wild J to life imprisonment for the murder with a minimum period of imprisonment of 26 years. On each of two charges of attempted murder, two charges of aggravated robbery, two charges of kidnapping, two charges of using a firearm against a law enforcement officer and on a charge of aggravated injury, you were sentenced to preventive detention. On each of those charges a minimum period of imprisonment of 26 years was also imposed. All those sentences were to be served concurrently.
Expert reports
[14] I have had the benefit of reading two reports received at the time of your sentencing before Wild J – one from Dr Leslie dated 2 April 2007 and one from Dr Wilson dated 30 March 2007. As well, I have received two further reports prepared for your sentencing today. You have not been willing to co-operate with any of the report writers, but all reveal similar conclusions. None indicate that you are suffering from mental illness, but all conclude that you are suffering from a severe personality disorder. Dr Leslie considered that when the structure of your surroundings was reduced, you were prone to return to a pattern of anti-social behaviour and substance abuse which places you at a very high risk of future offending.
[15] Dr Wilson referred to your having undertaken a nine month treatment programme in the Violence Prevention Unit in 2004. While you responded well to that programme while in prison, upon your release you quickly reverted to anti- social behaviour. He considered, on the basis of both static and dynamic risk factors, that there was a very high probability of your committing further serious violent offences included wounding or murder of prison staff or inmates. That risk was unlikely to change for at least five years, in Dr Wilson’s view, or indeed for a far longer period due to your then current behaviour and what Dr Wilson described as your “high level of psychopathic behaviour”.
[16] The more recent reports echo these themes. Dr Skipworth considers that you meet the diagnostic criteria for anti-social personality disorder with narcissistic features. You scored very high on the psychopathy check list which is known to be
associated with future violent behaviour. That, combined with drug and alcohol abuse and a highly manipulative personality, causes Dr Skipworth to conclude that the risk of future violent offending remains high in your case and will remain so unless you are take part in, and the successful completion of violence prevention work while in prison. Dr Skipworth notes that your previous efforts to arrest your violent offending have been ineffective and that it is unclear whether any future violence prevention work will be more productive. He considers you are likely to retain the characteristic of offenders who, like you, are at the highest risk of violent reoffending.
[17] The last report is from Dr Kim Bradley, a registered psychologist. You take issue with a number of her statements as to your behaviour in prison. As indicated, I approach your sentencing solely on the basis of the convictions already mentioned. She too considers that you are at a very high risk of violent reoffending in the future while acknowledging that the long term prediction of risk is inherently problematic. Any sentence should be of a sufficient term to allow you to undertake intensive specialist rehabilitative treatment. Changes to the current level of risk will obviously depend on the outcome of any such treatment.
[18] I have also reviewed the pre-sentence report from the time of your 2007 sentencing and a recent report. These reports do not add in any significant way to the expert reports I have mentioned.
Crown submissions
Ms Bell, for the Crown, has filed comprehensive and helpful submissions. She submits that the appropriate sentence is a further term of preventive detention with a minimum period of imprisonment of ten years. Alternatively, she submits that a finite sentence of 14 years imprisonment with a minimum period of imprisonment of two-thirds should be imposed. An order is also sought for the destruction of weapons. Ms Bell submitted that there were a number of relevant aggravating
factors in your offending by reference to those identified in R v Taueki.[1] These were
the high level of violence inflicted on the victim; the determination and persistence with which you pursued the victim; the premeditation and planning involved; the use
of two lethal weapons; and the extremely serious nature of the injuries inflicted which were fortunate not to result in the victim’s death. As she submitted, there are
no mitigating factors either in relation to the offending or your personal circumstances. If a finite sentence were considered, a starting point between 11 and 13 years’ imprisonment was appropriate, she submitted, with an uplift to the maximum of 14 years’ imprisonment given your previous offending.
[1] R v Taueki [2005] 3 NZLR 372.
[19] Ms Bell correctly acknowledged that a finite sentence cannot be imposed cumulatively on an indeterminate sentence which you are already serving.[2] As
Ms Bell submitted, in these circumstances, any finite term of imprisonment would be insufficient to adequately protect the community, including the prison community. She submitted that, given your high risk of violent reoffending, your disinterest in the rights or safety of others and your lack of willingness to address the issues underpinning your offending, a sentence of preventive detention is the most appropriate sentence in your case. Such a sentence would allow the Parole Board to ensure that you are not released until appropriate rehabilitative steps have been undertaken and you are no longer considered to be a risk to society.
Defence submissions
[2] Sections 23 and 83(4), Sentencing Act 2002.
[20] Mr Tomlinson has said all that can be said on your behalf. In a succinct submission, he has responsibly recognised the serious view of your conduct which the Court must take. He accepted there was little by way of mitigation on the facts known to the Court and he accepted that the range of sentencing options referred to by Ms Bell was appropriate.
[21] In relation to a finite sentence, Mr Tomlinson acknowledged that the recent decision of Stevens J in R v Vincent[3] is a very similar case. There, the offender was convicted after a jury trial on a charge of attempted murder in Paremoremo Prison.
[3] R v Vincent CRI 2006-044-000285, 2 April 2008.
He was serving at the time a sentence of preventive detention with a minimum five
year term. The Court considered that a starting point for any finite sentence should
be in the range of 10 – 12 years. In the end, the Court did not consider a finite sentence was appropriate to protect the community and imposed a further sentence of preventive detention with a minimum period of imprisonment of nine years.
[22] A similar outcome occurred in R v Johansen[4]. In that case, Harrison J
imposed a sentence of preventive detention with a minimum period of imprisonment
of ten years on a prison inmate convicted of attempted murder. The offender was serving at the time a sentence of life imprisonment for murder.
[4] R v Johansen HC Auckland CRI 2004-083-001849, 2 June 2005
[23] Mr Tomlinson submitted that the real issue in sentencing may be in setting the appropriate minimum term under s 89 of the Sentencing Act. He urged the Court not to extinguish any possibility of your being able to apply for parole sometime in the future. He submitted that, to do so, would remove any incentive on your part to rehabilitate and I acknowledge the merit of that submission.
[24] Mr Tomlinson has said that your failure to participate in rehabilitative programmes is not due to any unwillingness on your part to do so, but because they are simply not available to you because of your maximum security classification and your management in prison on directive segregation. I understand that difficulty, which applies to all prisoners in the maximum security unit. But your refusal to speak to the report writers for the purpose of this sentencing suggests that it is your attitude to rehabilitation which lies at the heart of this issue. Clearly if you are hoping to be released at some point, your attitude is going to have to change radically. I am also advised by counsel for the Crown that your security classification is kept under regular review and has in fact been reviewed twice since your sentencing in 2007. Your progression to a lower classification rests on the assessment by the Corrections Department of the risk you present to the safety, security and order in the prison. That must rest, in turn, to a substantial degree in your own hands.
.
Assessment
[25] By any measure Mr Burton, your attack on a fellow prisoner must be treated
in a very serious light. I accept the Crown’s identification of the aggravating factors relating to the offending. This was a deliberate, premeditated and determined assault
on a fellow inmate using two lethal weapons which you had somehow acquired and fashioned for the purpose. There is no evidence of any provocation by the victim or that he in any way retaliated other than in a vain attempt to protect himself. The fact that this crime took place while you were in custody for other violent offending is a
further serious aggravating factor[5] and is also relevant to the conclusion that you remain at risk of taking further violent action.
[5] R v Vincent [2007] NZCA 238 at [29]; R v Mataira [1992] 3 NZLR 409 (CA) at 412
[26] Prison inmates are entitled to protection from attacks by violent offenders such as yourself. Prison offenders are, in one respect, more vulnerable than members of the public since, in the prison environment, they have nowhere to run when faced with an attack in circumstances such as this. Effectively, the victim was bailed up on the landing where you attacked him with nowhere to go. This was a potentially fatal attack and, but for the skilled intervention of the hospital surgeon, you would undoubtedly have been facing a further murder charge.
When considering your personal circumstances, your previous history of serious violence is the dominating factor. I have already referred to your previous history and there is no need to repeat that. What comes through loudly and clearly is that your propensity for violence continues unabated despite the lengthy periods you have already spent in prison and the long sentences imposed for your previous murder convictions in 1992 and 2007. The expert reports speak for themselves. So does your repeated violence. You will continue to pose a high risk of violent reoffending so long as you do not address the causes of your criminal behaviour. There is absolutely no evidence to suggest that you are willing to do so. Indeed, your refusal to co-operate with the report writers suggests that you have no intention of doing so and that you have adopted a ‘don’t care’ attitude. The fact that
you were willing to undertake this offending in the prison environment, despite the
presence of the surveillance cameras which you well knew to be in place, demonstrates this point.
[27] The difficulty in sentencing you Mr Burton is to devise some additional sentence which will address the sentencing purposes of making you accountable; promoting in you a sense of responsibility for your actions; providing for the interests of your victim; denouncing and deterring this type of conduct; and protecting the community while still allowing for your ultimate rehabilitation. Simply to impose a finite sentence would have no material effect on your current sentence since it could not be for any longer than the maximum term of 14 years’ imprisonment available for the offence of attempted murder. Any such finite sentence would have to be a concurrent sentence.[6]
[6] Section 83(5), Sentencing Act 2002.
[28] I have concluded that the appropriate sentence is to impose a further sentence
of preventive detention on the charge of attempted murder to run concurrently with your current sentences. It is common ground that jurisdiction exists to impose an additional sentence of preventive detention.[7] Subject to the principle of totality, the Court is obliged to fix the appropriate sentence for the offending in issue, irrespective of any other sentence.[8]
[7] R v Howse [1963] NZLR 971; R v Miller CA409/04, 22 May 1995; R v Mackrell [1998] 16 CRNZ 1, 8. For a recent case, see the sentence of Panckhurst J in R v Gray HC Invercargill, CRI 2005-025-507, 6 October 2005.
[8] R v Mackrell [1998] 16 CRNZ 1at [8] referring to R v Miller CA409/04, 22 May 1995
I am satisfied, having regard to the matters referred to in s 87(4) of the Sentencing Act 2002, that a sentence of preventive detention is appropriate for this offending in order to protect the public and the prison community. That follows from the pattern
of very serious offending already discussed; the seriousness of the harm caused in this case; the expert evidence as to your propensity for future violent offending; the absence or failure of your efforts to address the causes of your offending; and the inappropriateness of a lengthy determinate sentence. I am also satisfied that it is appropriate to impose a minimum period of imprisonment under s 89 having regard
to the gravity of this offence and the risks you pose to public safety. In the
circumstances, I consider a minimum period of imprisonment of ten years is appropriate.
[29] This sentence will run concurrently with the current sentences, with the practical result that you will not become eligible for parole until the 26 year minimum period of imprisonment imposed by Wild J in 2007 has expired. At that time, it will be a matter for the Parole Board to determine the extent of any ongoing risk you pose to the community. In doing so, the Parole Board will necessarily be obliged to take into account this additional sentence of preventive detention I am imposing today reflecting, as it does, the high risk you continue to present to the prison community and to the wider public should you be released.
[30] In formal terms, you are sentenced to preventive detention on the charge of attempted murder with a minimum period of imprisonment of ten years. This sentence will run concurrently with the sentences you are presently serving. I also order the destruction of the weapons used in this matter.
A P Randerson J
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