R v Cooper
[2020] NZHC 329
•26 February 2020
IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE
CRI-2018-027-1034
[2020] NZHC 329
THE QUEEN v
LOU APE COOPER
Hearing: 26 February 2020 Appearances:
R Annandale and C Taylor For the Crown G Anson for the Defendant
Sentence:
26 February 2020
SENTENCING NOTES OF GORDON J
Solicitors: Crown Solicitor, Whangarei Counsel: G Anson, Kerikeri
R v COOPER [2020] NZHC 329 [26 February 2020]
Introduction
[1] Mr Cooper, at the age of 34, you appear today for sentence having pleaded guilty on 29 August 2019 to 15 charges arising from offending which occurred over a period of seven months between August 2017 and February 2018. The charges are:
(a)One charge of causing grievous bodily harm with intent to cause grievous bodily harm;1
(b)One charge of injuring with intent to cause grievous bodily harm;2
(c)One charge of threatening to kill;3
(d)One charge of threatening to do grievous bodily harm;4
(e)Three charges of injuring with intent to injure;5
(f)One representative charge of unlawful possession of a firearm;6
(g)Three charges of assault with intent to injure;7
(h)One representative charge of contravening a protection order;8
(i)Two charges of male assaults female;9 and
(j)One charge of possession of a Class A Controlled Drug.10
1 Crimes Act 1961, s 188(1).
2 Crimes Act 1961, s 189(1).
3 Crimes Act 1961, s 306(1)(a).
4 Crimes Act 1961, s 306(1)(a).
5 Crimes Act 1961, s 189(2).
6 Arms Act 1982, s 45(1)(b).
7 Crimes Act 1961, s 193.
8 Domestic Violence Act 1995, s 49(1)(a).
9 Crimes Act 1961, s 194(b).
10 Misuse of Drugs Act 1975, ss 7(1)(a) and 7(2).
[2] The most serious of those charges, causing grievous bodily harm with intent to cause grievous bodily harm, carries a maximum penalty of 14 years’ imprisonment.11
[3] All but one of these offences were committed against your former partner. The offending commenced immediately after you had been released from custody for a sentence of one year and two months’ imprisonment imposed for violent offending against her. At the time of your offending you were still subject to that sentence, with release conditions which included a prohibition on contact with the victim. There was also a protection order in force at the time in her favour against you. The remaining offence was assault (a threatened application of force) on another victim who was a friend of your former partner. When I refer to “the victim” in this sentencing I will be referring to your former partner and not to her friend.
[4]On your guilty pleas you were given your first strike warning.
[5] The offence of causing grievous bodily harm with intent to cause grievous bodily harm and the offence of injuring with intent to cause grievous bodily harm are both qualifying offences for the purposes of s 82(2)(a) of the Sentencing Act 2002, in other words for a sentence of preventive detention. The primary issue for the Court today is whether I should impose a finite sentence of imprisonment or whether an indefinite sentence of preventive detention is necessary.
[6] The Crown submits that you should be sentenced to a term of preventive detention with a minimum period of imprisonment of eight to 10 years. Mr Anson, on your behalf, submits that a sentence of preventive detention is not necessary and that a finite sentence would satisfy the relevant sentencing purposes and principles.
[7] I will first identify what the appropriate finite sentence should be and whether a minimum term of imprisonment should be imposed, before going on to consider whether yours is a case where it is necessary for preventive detention to be imposed.
11 Crimes Act 1961, s 188(1).
Factual background
[8] Mr Cooper, you have been in a cyclical relationship with the victim for many years and you have three children together. This was a relationship characterised by your violence towards her. A protection order was obtained by the victim against you in November 2010. During all of the events which I am about to describe, you were in breach of that protection order. In August 2017, you were released from prison after serving a sentence of imprisonment for violent offending against the victim.
[9] The following month you were together at an address in Moerewa. You struck the victim about her head, took her by the hair and pressed her head against a wall in one room and then forced her head through a wall in the hallway. The force you applied was sufficient to leave holes in the plaster board walls. The victim had an asthma attack and began struggling to breathe. At this point you sat on top of her and from this position you head butted her, causing swelling to her head. The victim’s brother came to her assistance on this occasion. This offending gave rise to a charge of assault with intent to injure.
[10] On another occasion, sometime between August 2017 and February 2018, you were driving a vehicle with the victim in the passenger seat. You struck her on a number of occasions around her leg. She attempted, unsuccessfully, to get out of the moving vehicle. You started punching her about the head and did so several times. You stopped the vehicle and pulled the victim from it. You sat on the victim and placed your hands around her throat. The victim lost consciousness in consequence. She remembered you head butted her on this occasion. This offending gave rise to a charge of male assaults female.
[11] During the same period, at an address in Moerewa, you punched the victim in the mouth with a closed fist. She attempted to leave the house and you pursued her and tackled her to the ground. You propelled her into a tin fence on the property. The victim’s leg became lodged in the fence. You approached her, placing your hand over her mouth and your knee on her abdomen. You pushed her leg into the fence and caused the tin to cut her leg. She bled as a result. You continued to attack the victim, punching her about the head and torso. Her efforts to leave were prevented when you
locked the gate. Following this offending, she was left with a split lip and a 6cm cut at the bottom of her leg which was scarred. This offending gave rise to a charge of injuring with intent to injure.
[12] Sometime during the first half of December 2017, the victim was asleep in her car at an address in Moerewa. You awoke her and as she got out of the car, you struck her and knocked her over. She attempted to seek cover under the car but you were still able to strike her in the head and around her legs. Following the intervention of the victim’s father you left the property. She felt unwell and sought medical treatment. She drove to the medical centre but lost consciousness on the way there. She was admitted to Bay of Islands Hospital and later transferred to Whangarei Hospital for a CT scan. The injuries she sustained on this occasion were bruising to her face, swelling to her left eye, bruising around her left thigh and around her left scapula (reflecting the limited protection provided by the car). This offending gave rise to a charge of injuring with intent to injure.
[13] On 28 January 2018, the victim was staying at a motel in Whangarei. You arrived during the afternoon, in possession of a firearm. You kicked the victim and threatened to kill her. The motel manager intervened, and you departed. You returned later in the afternoon. You forced the victim onto a bed in the motel room and pinned her there by straddling her. You punched the victim about the head multiple times. The motel manager intervened again and you departed. The victim was left with swelling to her head and feeling light headed. This offending gave rise to a charge of injuring with intent to injure.
[14] Sometime between the start of 2018 and mid-February 2018, you and the victim were at your mother’s house. You had recently consumed methamphetamine. You struck the victim and used a methamphetamine pipe as a weapon to assault her around the mouth. She was rendered unconscious. After she recovered consciousness, she found you assaulting her about the head. You dragged her by the hair down the hallway and out to a vehicle. You used the butt of a firearm to assault the victim. You placed the barrel of the firearm in the victim’s mouth, put your finger on the trigger and threatened to kill her. You went on to place her in the front passenger seat of the vehicle and, after entering the vehicle yourself locked the doors. During the journey
which followed, you continued to hit her about the head. She lost consciousness for a period. You suffered a seizure and slept for some time. The victim returned you to your mother’s house where you continued to sleep. After you woke, you continued to strike the victim and she lost consciousness again. The victim was left in considerable pain after this assault. She was unable to open her left eye, had bruising and swelling around her eyes and a split lip. This offending gave rise to a charge of injuring with intent to do grievous bodily harm.
[15] Between late January and early February 2018, at an address in Kawakawa, you grabbed the victim by the hair and forced her to the ground where you struck her about the head several times and forced her face into the driveway. You then went into the house and came out with a modified shotgun. You pointed the firearm in the direction of the victim and threatened to shoot her. She escaped but you subsequently found her and pointed the firearm in her direction. This offending gave rise to a charge of assault with intent to injure and threatening to do grievous bodily harm.
[16] On 11 February 2018, the victim was seated in the back of a car parked at a property in Kawakawa. You arrived there. You attempted to remove the victim from the car but you were unable to do so. You punched the victim about the head with a closed fist several times. The victim’s brother intervened. Before departing, you threatened the victim’s friend. Later that day you unsuccessfully attempted to resume your assault on the victim at a service station in Kawakawa. The victim suffered swelling and bruising around her head following this assault. This offending gave rise to charges of injuring with intent to injure and male assaults female.
[17] The final prolonged assault on the victim by you occurred the following day. Around midday on 12 February 2018, you found the victim and took her to Moerewa Primary School. The circumstances of the offending over the next three hours were recorded on the school’s CCTV system (both audio and video). Due to the nature of the assault, and the brain injuries she suffered, the victim’s memory of what occurred is limited. The video recording shows only part of the assault, because of the angle of the camera, but the audio records all of the sound. The audio is of a person being hit with a hard object. The victim recalls you dragging her across concrete and hitting her across the legs on multiple occasions with what she describes as a piece of pipe.
The audio recording shows this continued for three hours. The victim lost and regained consciousness several times during this period. The video recording also shows you kicking, punching and stomping on the victim repeatedly. The audio recording contains five statements made by you to the victim which are threats to kill her (either directly or impliedly or by inference).
[18] The victim was semi-conscious, seriously injured and in considerable pain. You and the victim remained at the school overnight before you took her to your mother’s house. She remained there for a day unable to move and with a slowly worsening brain bleed making her more unwell. Eventually she was taken to hospital by an associate. As a result of this assault, the victim sustained multiple injuries: subdural bleed, fractured lower back ribs, swelling to the front lobe of her brain, nose fracture, pneumothorax tear (lung), bilateral haemorrhaging to the left and right eyes and bruising and abrasions to the majority of her body. This offending gave rise to the charges of causing grievous bodily harm with intent to cause grievous bodily harm and threatening to kill.
[19] Ten days later, on 22 February 2018, you were arrested by police. You were found to be in possession of approximately one quarter of a gram of methamphetamine.
Approach to sentencing
[20] I must first determine an appropriate finite sentence before considering whether I should impose a sentence of preventive detention.
[21]Setting a finite sentence of imprisonment involves three steps:12
(a)I must first set a starting point for your sentence, which takes into account the facts of your offending;
(b)I will then adjust the starting point up or down taking into account your personal circumstances; and
12 R v Taueki [2005] 3 NZLR 372 (CA); Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.
(c)Finally, I will consider what discount you should receive for a guilty plea.
[22] Throughout this process, I will have regard to the purposes and principles of sentencing set out in ss 7 and 8 of the Act. Of particular relevance to your offending is the need to hold you accountable for the harm you have done to the victim, to promote in you a sense of responsibility for your actions and acknowledgment of that harm, to denounce your conduct, to deter you and others from committing similar offences and to protect the community.
[23] I am also required to take account of the gravity of your offending, the seriousness of your offending, the need for consistency with comparable sentencing levels and the need to impose the least restrictive sentence that is appropriate in the circumstances.
Starting point
[24] Your offending is interconnected in that the same victim is involved. Concurrent sentences of imprisonment are appropriate.13 In setting a starting point, Mr Cooper, I will focus on the offending which occurred in February 2018 at Moerewa School. I will take the charge of causing grievous bodily harm with intent to cause grievous bodily harm as the lead offence. I will then impose an overall uplift to reflect the totality of your offending.
[25] The Crown submits I should take a starting point of 12 to 13 years’ imprisonment for the lead charge. Mr Anson, on your behalf, submits that a starting point of nine years’ imprisonment is appropriate.
[26] The tariff case for the charge of causing grievous bodily harm with intent to cause grievous bodily harm is the decision of the Court of Appeal in R v Taueki.14 In that case, the Court recognised the seriousness of this type of offending through three sentencing bands. The Court identified 14 aggravating features which are relevant to assessing what band the offending should fall within.
13 Section 84(2).
14 R v Taueki [2005] NZCA 174, [2005] 3 NZLR 372.
[27] Band one attracts sentences with starting points of between three and six years’ imprisonment. It is appropriate for offending at the lower end of the spectrum. In band two the starting points are between five and 10 years’ imprisonment. It is appropriate for offending which features two or three of the identified aggravating features. The starting points in band three are between nine and 14 years’ imprisonment. It is appropriate for serious offending which has three or more of the aggravating features and where their combination is particularly grave.
[28] Section 9 of the Sentencing Act also contains a range of aggravating features. By reference to that section, and the factors identified by the Court of Appeal in Taueki, I consider that there are the following aggravating features of your offending:
(a)It was prolonged and repetitive (you apparently only stopped the attack because you were exhausted and needed to rest);
(b)Serious injury to the victim, especially to her head and internal injuries, reflecting the force used and the extent of the attack;
(c)Attacking the head;
(d)Vulnerability of the victim, given all of your violent offending was in breach of a protection order; and
(e)Use of a weapon.
[29] The effect of your offending on the victim has been on-going and serious. In her Victim Impact Statement she says that since the assault at Moerewa Primary School, she has walked a very hard path. Although she has no memory of the incident, it still affects her significantly, especially mentally. She says she has suffered many injuries that she is, still to this day, getting treatment for. She says the last round of treatment she had was an operation to her left cheek-bone in November last year where she required plastic surgery to reconstruct her cheekbone. She is to have another operation shortly to address injuries caused by you to the bone structure around her left eye and nose.
[30] She says that after the incident at Moerewa Primary School and upon her discharge from hospital, she was terrified to be in public. She lost a lot of contact with the world and lived within the four walls of her home. She was often on edge about her surroundings and never felt safe unless she was at home, as her psychological well- being was damaged. She also worries about her physical appearance due to the visible injuries she can see on her face. She now has little to no trust in men. She says it will take her a long time to regain that trust.
[31] She says her children were of the age to understand exactly what their father had done to their mother. They too are reminded every day of what you did to her as they can see her injuries. During the time you were wanted by the police, they had trouble at school with their behaviour. They found it hard to focus on task at school. She hopes they will grow up to be strong and respectful men and never treat women the way you have treated her.
[32]There are no mitigating features of your offending.
[33] In identifying which band in Taueki I should place your offending, I recognise that the exercise of assessing the seriousness of your offending is a matter of judgment. This means I should not adopt a formulaic approach.
[34] The Crown submits this offending is within band 3, at the highest end. Mr Anson suggests a starting point in the middle of band two.
[35] I place the offending in band three. I am satisfied that your offending against the victim at Moerewa School, given the prolonged nature of it, the extent of the violence applied, the use of a weapon (although I accept you did not bring it to the scene) and the injuries she sustained is among the most serious cases.
[36] I now turn to previous cases to assist with setting the starting point within band three.
Case law
[37] Mr Anson refers to the Court to four cases: Everett v R, Kaio v R, R v Savelio and R v Gindrod. Everett v R involved manslaughter in a domestic setting and does assist in this exercise but the Court of Appeal notes some variation in sentencing for manslaughter following grievous bodily harm and wounding or injuring with intent to cause grievous bodily harm.15 The Court states: “if common fact patterns produce similar sentencing starting points whether or not death ensues, something is likely to be wrong. Either some manslaughter sentencing is too low, or some GBH sentencing is too high.”16 The Court of Appeal elected not to resolve this issue in that case and comment was confined to identifying “difficulties reconciling sentencing levels in these two broad categories.”17 Importantly, the Court of Appeal does not suggest the courts should depart from the Taueki assessment of violence in sentencing.
[38] A starting point of nine years’ imprisonment was taken in Kaio v R.18 The defendant attacked the victim, who was his estranged partner, but the length of the assault and the seriousness of the violence was less than in your case. You inflicted additional serious injuries. The victim in that case was similarly vulnerable. R v Savelio was a case where a starting point of 10 years, six months’ imprisonment was adopted.19 The defendant in that case carried weapons but did not use them on the female victim and, while he did assault her, the violence was not prolonged. Her male associate received lacerations from a knife which required medical attention and sutures.
[39] Finally, in R v Gindrod, a starting point of 10 years’ imprisonment was adopted.20 The violence involved the use of a hammer. However, the extent of the injuries inflicted was less and the victim was less vulnerable (he was an associate of the defendant’s former partner).
15 Everett v R [2019] NZCA 68.
16 At [23].
17 At [23].
18 Kaio v R [2012] NZCA 168.
19 R v Savelio [2007] NZCA 333.
20 R v Gindrod HC Wellington CRI-2009-032-131, 11 September 2009.
[40] I have also considered Muliipu v R,21 where the Judge adopted a starting point of 11 years’ imprisonment, which was upheld by the Court of Appeal. The lead offence was wounding with intent to cause grievous bodily harm and the aggravating factors identified by the Judge were serious unprovoked gratuitous violence, very serious injury, an attack to the head, use of a knife and in a domestic setting. The offending in that case was somewhat similar to yours in that the defendant subjected the victim to a prolonged and severe beating. However there is a difference in that the defendant in that case used a knife, stabbing her in the eye. It caused her to lose an eye.
[41] In that case, the Court of Appeal drew attention to a number of factors in assessing the starting point, including a breach of a protection order, detention of the victim, prolonged assault, use of a weapon to cause serious injury, vulnerability and that the offence was committed after serious violence against the same victim. The Court of Appeal noted “on any view this is among the very worst crimes of serious violence” and the Court went on to say that, in light of other offending against the same victim, a starting point of 14 years would have been available.
[42] In the light of the foregoing analysis of cases and the cases summarised in the annexure to the Court of Appeal judgment in Everett, I consider that an appropriate starting point for the lead offence is 10 and a half years’ imprisonment.
Uplifts for other offending
[43]I will now determine an uplift to reflect the totality of the offending.
[44] The Crown submits that a global starting point in the range of 17 to 19 years’ imprisonment would satisfy the principle of totality (this would be an uplift of five to six years from the Crown starting point of 12 to 13 years). Nine of the other charges are for violent offending against the victim and two involve extreme violence causing serious injury to the victim. That is the Crown submission.
21 Muliipu v R [2013] NZCA 257.
[45] Mr Anson submits an uplift of three years reflects the totality of the offending. He analyses a number of the offences in terms of R v Nuku, which adapts Taueki to other types of violent offending.
[46] Many of the same aggravating factors I have identified in relation to the lead offence are also present in your other offending against the victim. These include the targeting of the head, use of weapons and the vulnerability of the victim. These are evident to different degrees in your other offending, sometimes serious and at other times very serious. In relation to your offending against the victim which occurred at the start of 2018 after you had consumed methamphetamine, Mr Anson submits that the victim was consuming drugs too and this may have caused her to become unconscious. However, the summary of facts does not disclose drug taking by the victim and she became unconscious after you struck her multiple times around the head. This submission does not mitigate your offending and, had the victim taken drugs, she was more vulnerable. This would be an aggravating factor in this offending in which you used serious violence against the victim over an extended period and left her in significant pain.
[47] Taking all of your offending into account, I consider an uplift of four years’ imprisonment is appropriate.
Overall starting point
[48]This results in an overall starting point of 14 and a half years’ imprisonment.
Personal circumstances
[49] I now need to consider your personal circumstances to see whether I should adjust the starting point.
Pre-sentence report (generally)
[50] Mr Cooper I will now consider matters personal to you with reference to the pre-sentence report. You are 34 years of age. You have a substantial conviction history and you have served several sentences of imprisonment for earlier violent offending against the victim. The report writer found you have limited insight into your
offending. You sought to transfer blame for your offending to the victim by suggesting she stole money and methamphetamine from you or that she was unfaithful to you. You also describe her as “difficult” and insist you have good relationships with your other former partners. Your expression of sorrow for what you had done to the victim needs to be balanced against this effort to shift blame to her. I will address this point further shortly. You maintained contact with the victim even though she had obtained a protection order against you. You say your offending occurred while you were under the influence of methamphetamine and you have limited recollection of it. Your methamphetamine use has been assessed as high.
[51] You have not complied well with community-based sentences and court orders. You have been convicted for breaches of a protection order on previous occasions. The report does not disclose any efforts on your part to address your offending on earlier occasions.
Previous convictions
[52] You have diverse convictions for violence, dishonesty, drugs, property related offending and for failing to comply with court-ordered conditions. Most of your convictions in the last 10 years have been for violence and non-compliance with sentences or court orders imposed for that offending. You were convicted for violent offending against the victim in 2009, twice in 2010, in 2012, twice in 2013 and one each in 2015 and 2017. Your violent offending against the victim discloses a continuing urge to attack her and there has been a serious escalation in your offending. You show little understanding or insight into your offending, and your behaviour shows a lack of any capacity to control your anger or resolve conflict by means other than violence.
[53] The Crown submits that I should uplift your sentence by one to two years’ imprisonment to take into account your previous convictions. Mr Anson submits an uplift of one year is appropriate. I also note Mr Anson’s submission that you have been prosecuted for contacting the victim in breach of your release conditions and that you are separately charged with breaching any protection order.
[54] I consider an uplift of one year’s imprisonment is justified in these circumstances. This brings the sentence to 15 and a half years’ imprisonment.
Mitigating factors
[55]The Crown submits there are no mitigating features relating to you personally.
[56] Mr Anson identifies several mitigating factors: your disadvantaged upbringing, including abuse and lack of parental, physical, emotional and financial support. He refers to the s 27 cultural report prepared following an interview with you.22 It is a comprehensive report. After describing your background, the writer addresses the way in which that background may have related to the commission of the offences. She says:
Lou’s offending is a reflection of his dysfunctional upbringing. His life experiences have severely impacted on his ability to lead a healthy life personally or when he is in a relationship. His offending appears to be the result of the lifestyle to which he was exposed as a child and which he then took up an adult (i.e. gang lifestyle). He was born into circumstances over which he had no control and was exposed to unsafe situations and life lessons. The early onset of his offending as a juvenile is an indication of the impact of his upbringing.
[57]The writer returns to that topic later in the report. She says:
I reiterate the indicators highlighted in the introduction of this report as a significant disadvantage for Lou and causative of his offending. Those factors include cultural disconnectedness, whānau dysfunction, family violence, childhood sexual abuse, care & protection and youth justice, imprisonment, limited education, unresolved resentment and anger, early uptake of alcohol and drugs, early entry into the criminal justice system, institutionalisation, and a life entrenched in the gang world (Tribesman MC).
Lou was practically born, raised and indoctrinated into the lifestyle he has lived for much of his life. He was exposed to almost everything imaginable and considered harmful and detrimental to the growth and developmental of a young [person]. His narrative reflects the turmoil he experienced throughout his upbringing and that impacted on his ability to transitional to adulthood with a strong sense of mana, self-worth and confidence.
[58] In my view, the report writer does make the necessary causative link between your background and how that may have related to the commission of the offences for
22 EM (CA241/2013) v R [2015] NZCA 202 at [46].
which you are being sentenced. In my view, this warrants a discount of five per cent. That brings the sentence to 14 years and eight months’ imprisonment.
[59] I return to the question of remorse which I mentioned when I referred to the pre-sentence report. I have read the letter you wrote to the Court on an earlier occasion which was appended to the Crown’s submissions. You said you were very remorseful for your actions. You also stated that you had been working hard in prison to address your offending. However, you then went on to reoffend against the victim. There is no similar letter written to the Court today. I am told by Mr Anson you had intended to do so, but for various reasons that is not available to the Court.
[60]I do not consider any discount for remorse is warranted.
Guilty plea
[61]Finally, I address the discount for your guilty plea.
[62] The Supreme Court has said that a defendant is entitled to a discount for his or her guilty plea.23 But any reduction cannot exceed 25 per cent.
[63] You pleaded guilty on 29 August 2019. A trial on all charges was scheduled to commence on 18 September 2019.
[64] The Crown submits that a modest reduction of not more than 10 per cent is appropriate. Mr Annandale submits you have already received a benefit in the form of a reduction of charges and types of charges (you originally faced 42 charges and you pleaded guilty to 15 charges). As authority for this proposition, the Crown cites the Supreme Court in Hessell that a benefit arising from a reduction in charges is a relevant factor to consider when assessing discount for guilty pleas.
[65] Mr Anson submits a discount of 20 per cent may be available. He does not agree that a reduction in charges was a benefit to the defence and submits it is a neutral factor because the case against you on those charges was not strong and could have
23 Hessell v R, above n 12, at [75].
weakened the Crown case against you on the other charges. Lastly, Mr Anson submits that the discussions to resolve the case started in March 2019 and that delays in your pleading guilty arose from a lack of certainty in the Crown’s case and the extent of the amendments to the charges. Mr Anson’s access to you was limited as you were held mostly at a prison in the lower North Island.
[66] You are entitled to a discount for your guilty plea. The victim has been spared the distress of giving evidence at a trial and this would have been traumatic for her. The cost of a trial is also avoided. I would allow a discount of 15 per cent.
Effective end sentence
[67] I would therefore impose an end finite sentence of 12 years and five months’ imprisonment.
Minimum period of imprisonment
[68] The Court may impose a minimum period of imprisonment if it is satisfied that the one-third default minimum which is usually served is insufficient for all or any of the following reasons:24
(a)holding the offender accountable for the harm done to the victim and the community by the offending:
(b)denouncing the conduct in which the offender was involved:
(c)deterring the offender or other persons from committing the same or a similar offence: and
(d)protecting the community from the offender.
24 Sentencing Act, s 86(2).
[69] The sentencing purposes of deterrence, denunciation and protection are particularly important in cases involving extreme violence against a current or former partner. In Taueki, the Court of Appeal acknowledged that:25
In cases of serious violence, where denunciation and deterrence are both important sentencing values, and where protection of the community from the offender may well be a relevant factor, it can be expected that minimum periods of imprisonment will not be rare or even uncommon …
[70] The Crown submits that if a finite sentence of imprisonment is imposed, a minimum period of two-thirds would be appropriate to sufficiently denounce your conduct and to protect the community. Mr Anson accepts that a minimum period of imprisonment is required and submits it should not exceed 50 per cent of the finite sentence.
[71] If a determinate sentence is imposed, I accept that a minimum period of two- thirds would be appropriate in this case. All of the sentencing purposes I have referred to are engaged.
Preventive detention
[72] Preventive detention is a sentence of imprisonment for an indefinite period. If imposed, you will be released only when the Parole Board is satisfied you no longer pose a risk to the community. The Court of Appeal has said on a number of occasions that the purpose of a sentence of preventive detention is not punitive.26 Its purpose is to “protect the community from those who pose a significant and ongoing risk to the safety of its members.”27
[73] There are three prerequisites for imposing a sentence of preventive detention.28 The first two require the offender to have committed a qualifying violent or sexual offence and to be over 18 years of age at the time of the offending. There is no dispute that those prerequisites are met in your case.
25 R v Taueki, above n 12, at [57].
26 R v C [2003] 1 NZLR 30 (CA) at [5].
27 At [5]. See also Sentencing Act, s 87(1).
28 Sentencing Act, s 87(2)(a)-(c).
[74]The third prerequisite is as follows:29
(c) the court is satisfied that the person is likely to commit another qualifying sexual or violent offence if the person is released at the sentence expiry date (as specified in subpart 3 of Part 1 of the Parole Act 2002) of any sentence, other than a sentence under this section, that the court is able to impose.
[75] I am required to consider reports from at least two appropriate health assessors about the likelihood of you committing a further such offence.30 Two reports were commissioned for that purpose. The first is a report dated 23 January 2020 and was prepared by Dr Djokovic, a consultant psychiatrist. The second report is dated 12 February 2020 and was prepared by Dr Jacques, a consultant forensic psychiatrist
The reports
[76]I will summarise Dr Djokovic’s report first.
[77] She notes you have a long history of violent offending. You disclosed extensive drug use to Dr Djokovic and that you started using methamphetamine immediately after your release from prison. You recognise that you cannot control your anger but you blamed the victim for the harm you caused her because she makes contact with you and she provokes you. You described the victim to Dr Djokovic as “the most challenging and the most difficult to deal with” of all your former partners. You spoke of her betrayal of you while you were in prison. You attribute your anger to the abuse you have suffered.
[78] You also complain that you have not received any assistance to address your inability to manage your anger and your use of drugs and alcohol. You say this was because your sentences for earlier offending did not qualify you for this assistance. Dr Djokovic records that you did not participate in any rehabilitation programmes during your previous periods of imprisonment. She also notes efforts to address the causes of your offending in community-based treatment programmes have proved unsuccessful in the past. Your minimisation and denial of your offending and your
29 Section 87(2)(c).
30 Section 88(1)(b).
attempts to blame the victim for your offending suggest you would be unlikely to engage with community-based treatment.
[79] Dr Djokovic’s assessment of your risk of further serious offending is that your risk of future violence is high, your risk of imminent violence is high and your risk of causing serious physical harm, especially to the victim, is high. The last is due to the repetitive nature of your violent offending towards the victim and the increase in magnitude of the violence. It is of great concern that you minimise your history of violence on the victim. Dr Djokovic identifies a clear pattern of offending against a particular adult woman and notes that it is likely you will have access to the victim because of your social circles. Dr Djokovic records you showed a willingness to participate in therapeutic programmes to address anger management, propensity to violence and substance addiction. She concludes this is the only factor in your favour.
[80]I now turn to the second report from Dr Jacques.
[81] Dr Jacques records your history of violent offending and your suspicions that the victim had been unfaithful to you. You reported violence and abuse in your upbringing and an extensive use of methamphetamine and other substances. You denied violence against your other former partners. In his review of the available information, Dr Jacques found no evidence of a serious mental illness. He does consider you have a significant substance use disorder. You also have longstanding psychological problems. You resort to violence and aggression and struggle to regulate your feelings.
[82] In his risk assessment, Dr Jacques found multiple risk factors for future serious violence and for serious violence against a spouse. He concludes you are very likely to commit further serious violence against a spouse. The severity of your violence is extreme and could escalate to a level which is life-threatening. Dr Jacques is also concerned about the impact of your violence on your children because they have observed your use of violence against the victim. He considers a sentence of preventive detention may be appropriate. He acknowledges your willingness to participate in treatment programmes to address your use of violence and substance abuse and to make changes in your life. He suggests work in these areas is necessary.
Analysis
[83] Given your history of offending, the current offending and the opinions in the two reports, I consider there is enough evidence to indicate you are likely to commit another qualifying violent offence in the future.
[84] I must now consider whether to exercise my discretion to impose a sentence of preventive detention. Section 87(4) of the Sentencing Act sets out a range of considerations that I must take into account in considering whether to impose such a sentence:
(a)any pattern of serious offending disclosed by the offender’s history;
(b)the seriousness of the harm to the community caused by the offending;
(c)information indicating a tendency to commit serious offences in future;
(d)the absence of, or failure of, efforts by the offender to address the cause or causes of the offending; and
(e)the principle that a lengthy determinate sentence is preferable if this provides adequate protection for society.
Pattern of serious offending
[85] I have already referred to your previous criminal history. You have repeatedly committed violence offences against the victim. On multiple occasions you have repeatedly struck the victim for an extended period and, in several instances, your violence has caused her to lose consciousness.
[86] Moreover, there has been a significant escalation in the level of violence you use. In this current offending, you engaged in a prolonged, brutal and vicious attack on the victim and inflicted serious injuries to her head and brain, other internal injuries and multiple external injuries. You struck her repeatedly with your fists and applied a weapon. Your offending was cruel and brutal. It apparently only ended because you became exhausted. You left the victim with her serious injuries without medical
attention for some hours while you slept. The victim was vulnerable as you had assaulted her on several occasions previously, causing her serious injuries.
[87]I consider there is a pattern of serious violent offending.
Seriousness of harm to the community
[88] Your offending has caused significant harm to the victim over the course of a decade. Violent offending, particularly domestic violence like this, has a significant impact on the victims, as well as their families and the community.
Information indicating a tendency to commit serious offences in the future
[89] Both Dr Djokovic and Dr Jacques assessed you as being at high risk of future violent offending. Both consider your risk of causing very serious harm to the victim is high. Dr Jacques considers your violence extreme and, in relation to the victim, life-threatening.
[90] Mr Anson submits that your response on seeing the Victim Impact Statement this morning indicates you have recognised that the relationship is over. He also refers to certificates indicating courses you have taken. He refers to your seeing your stepfather as a role model. He would provide pro-social help and enable you to step away from the gangs as he has done. That, Mr Anson submits, is information that the Court can take into account when considering both whether there is a tendency to commit serious offences in the future and as forming part of the overall risk assessment.
[91] However, while I acknowledge those submissions made by Mr Anson and made forcefully on your behalf, I do not think, when taken into account with the overall information available to the Court, that detracts from the report writers’ views which are that you do have a tendency to commit serious offences in the future.
Addressing offending
[92] You have told the report writers who assessed you that you are motivated to complete treatment programmes to address your use of violence, anger management
and substance abuse. You report that these programmes were not previously offered to you in prison. However, when you were sentenced in August 2017 to a period of imprisonment, your release conditions included psychological assessments and substance abuse treatment programmes. It appears from Dr Djokovic’s report that you did not complete them or undermined efforts to assist you. I am concerned that you have had the opportunity to address your offending in the past but have not done so and returned to using methamphetamine which contributes to your offending against the victim. Either you have failed to address your offending, or the interventions have been unsuccessful. Following your release from prison you recommenced offending against the victim. You have repeatedly made threats to kill the victim and these threats have been accompanied by weapons, which are available to you.
[93] Notwithstanding Mr Anson’s submissions on your behalf, in my view you represent a serious risk to the victim and the community should you be released. Your willingness to address the offending now is acknowledged, but that does not take things far enough in the overall assessment.
Lengthy determinate sentence is preferable
[94] The final factor which I must consider in deciding whether to impose a sentence of preventive detention is the principle that a lengthy determinate sentence is preferable if this provides adequate protection for society. This principle speaks for itself.
[95] The question here is whether a finite sentence, in your case 12 years and five months’ imprisonment with a minimum period of imprisonment of eight years and three months would provide adequate protection for society.
[96] The Crown submits a lengthy determinate sentence will not be sufficient to protect the community. If you do not participate in treatment while in custody or refuse to continue with treatment in the community, your risk of offending and causing serious harm will remain high. The Crown cites R v Bryant regarding the rehabilitative advantages of preventive detention in this type of case:31
31 R v Bryant CA236/03, 19 November 2003 at [23].
This indicates that the real differences between the available sentencing approaches lie in the discretionary element which attends the sentence of preventive detention and in the circumstance of the eligibility of the offender to be recalled following release. In essence the offender is subject to an indefinite term of imprisonment because there is no sentence expiry date and the prisoner's release, therefore, is entirely at the discretion of the Parole Board
… Successful participation in a course of treatment, such that he will not pose an undue risk to the safety of the community if released, will be determinative of his final release date. The advantage of this incentive by comparison to the situation of a prisoner subject to a finite term is obvious.
[97] I have come to the conclusion that a lengthy determinate sentence will not provide adequate protection for society. The extent of and escalation in your offending against the victim is a matter I have already addressed. You have been given the opportunity to address your offending in the past but either refused to take it up or the treatment programmes were unsuccessful. However, you will still have that opportunity in serving a sentence of preventive detention and your release will depend both on participation in the treatment programmes and continuing success. You will otherwise present a serious risk to the community and to the victim in particular.
Minimum period of imprisonment
[98] Under s 89 of the Act when imposing a sentence of preventive detention I must also order that you serve a minimum period of imprisonment which may not be less than five years. The minimum term must be the longer of the minimum period of imprisonment required to reflect the gravity of the offences or the minimum period of imprisonment required for the purposes of the safety of the community in the light of your age and the risk posed by you to that safety. I consider the appropriate minimum term is eight years and three months’ imprisonment, which is the minimum term I would have imposed had I imposed a finite sentence.
Other charges dismissed
[99] There were other charges laid against you which the Crown now seeks to have dismissed. They are recorded in a document which the Crown has provided to the Registrar. Those charges are formally dismissed.
Result
[100]Mr Cooper, please stand.
[101] Mr Cooper on the charges of causing grievous bodily harm with intent to cause grievous bodily harm and the offence of injuring with intent to cause grievous bodily harm, you are sentenced to preventive detention. I impose a minimum period of imprisonment of eight years and three months on both charges.
[102]On the remaining charges before the Court, you are sentenced as follows:
(a)On the one charge of threatening to kill: two years’ imprisonment;
(b)On the one charge of threatening to do grievous bodily harm: two years’ imprisonment;
(c)On each of the three charges of injuring with intent to injure: four years’ imprisonment;
(d)On the one representative charge of unlawful possession of a firearm: two years’ imprisonment;
(e)On each of the three charges of assault with intent to injure: one year’s imprisonment.
(f)On the one representative charge of contravening a protection order: one year’s imprisonment;
(g)On each of the two charges of male assaults female: one year’s imprisonment; and
(h)On the one charge of possession of a class A controlled drug: three months’ imprisonment.
[103] All of these sentences are to be served concurrently with the sentence of preventive detention.
[104]Mr Cooper, stand down please.
Gordon J
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