R v Gow
[2017] NZHC 1760
•28 July 2017
NOTE: PUBLICATION AND SUPPRESSION OF NAME OR IDENTIFYING PARTICULARS OF COMPANY/NAME MENTIONED IN PARA [112](ii)(b) PROHIBITED
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CRI-2016-025-1112 [2017] NZHC 1760
THE QUEEN
v
TONY LEONARD GOW
Appearances: R W Donnelly for the Crown
J U Mooney for the Defendant
Sentencing:
28 July 2017
SENTENCING REMARKS OF NICHOLAS DAVIDSON J
A. SENTENCE TODAY
[1] Mr Gow, you may remain seated until the end of these Remarks.
[2] You appear for sentence after pleading guilty to charges under the Arms Act 1983, including: two counts of unlawful possession of explosives;1 two counts of unlawful possession of pistol weapons (being sawn-off shotguns),2 and one count each of unlawful possession of a firearm and ammunition.3 There is an unrelated charge of cultivation of cannabis under s 9(1) of the Misuse of Drugs Act 1975.
[3] You have been on remand for a long time, as you were arrested on
13 June 2016, and have been in custody ever since. You pleaded guilty
1 Arms Act 1983, s45(1).
2 Section 50(1)(a).
3 Section 45(1).
R v GOW [2017] NZHC 1760 [28 July 2017]
on 7 March 2017. Applications for bail in the District Court and this Court have been refused, for reasons which I will explain.
B. THE TRACK OF THESE SENTENCING REMARKS
[4] I will traverse the facts and your explanation, then refer to psychiatric and psychological assessments, reports from the Probation Officer, the submissions of counsel, and other information, and particularly that information provided by you, Mrs Gow.
[5] There have been very helpful submissions by the Crown through Mr Donnelly, and by Mr Mooney for you. I want to acknowledge their help, and that of Ms Teepa of the Department of Corrections, to the Court throughout the long process since you first appeared.
[6] You pose a particular and unusual concern to the Court. Your rehabilitation and the protection of the public are paramount and linked considerations. This is complex given your very disturbing thoughts of extreme violence, which went further when you made and collected weapons. The reason you have such disturbing thoughts of violence and pose a real risk to others requires a very careful sentencing response. That said, you have no convictions for non compliance or violence at all and your offending was some 25-30 years ago when you were an adolescent and young man.
[7] For you, your family, and the community there must be structures which will help you, to reduce the risk you pose to the community, which means you must have a peaceful and unstressed life with your wife, children and grandchildren, as it is clear that your violent thoughts are generated by stress, and link directly to the extreme hurt you suffered as a young person. For these charges, no sentence of imprisonment I could impose within the range available to me, would keep you in prison today for reasons I will explain. Imprisonment would not allow the sort of assistance you require to protect the public.
C. THE FACTS
[8] Discovery of the arms and explosive devices at your home was followed by revelations to the police about your long standing violent thoughts and fantasies. These fantasies about school massacres, and other mass killings, have been in your head over many years. Some of these fantasies have specific objects, including shooting people at your former workplace. You discussed the question of mass killing with an associate, remarking that if you were going to kill one person then you might as well kill as many as you can, as the result would be the same. You had been in the planning stage of obtaining a firearm for an associate, and you obtained a
22 calibre rifle, along with ammunition. You had thoughts of entering a public place and using these. You disclosed to your wife that you had thought for a long time of harming your work colleagues. She became increasingly concerned before events unfolded and you were arrested.
[9] Following discovery of coiled explosive wire at your property, the police conducted a further search on 13 June 2016, and discovered three small cannabis plants and a length of fuse. A further search discovered a homemade “pipe bomb” constructed of PVC pipe and black powder explosive, and a loaded double-barrelled sawn-off shotgun.
[10] On the 20th June 2016, the police learned further items were hidden in beehives at your address, and another PVC pipe bomb containing chemical materials and shrapnel was found, and a second double-barrelled sawn-off shotgun. Ammunition of various calibres was found in the beehive. You denied ownership of these items. Following further discussion with you, a .308 calibre rifle was discovered hidden behind paint tins.
[11] You said you had these weapons and constructed explosive materials out of curiosity, and that you did not intend to use them. You would not explain how you obtained all of the weapons You told a health professional you drove around with some of these items in your car. You say all this conduct was a “coping mechanism” for your psychological difficulties. However, you also conducted a test of an explosive.
[12] These are all highly dangerous items capable of causing serious injury or death, unlawfully in your possession. Taken individually or together, they are alarming manifestations of your thoughts, if not your actions. The measure of the risk you pose, and what may be done about it, has been the subject of intense consideration by the Court, health professionals, and Corrections staff.
[13] You made an affirmation to the Court on the 2nd December 2016. You say a senior sergeant, and a sergeant, were aware you had been in counselling for the last four years, diagnosed with Post Traumatic Stress Disorder, that you have mental health problems and Aspergers Syndrome. You were taken to the Invercargill Police Station, and say you were told that the Mental Health Response Team would be seeing you. You told the Police that your doctor had repeatedly told mental health agencies and ACC that they needed to do something to help you overcome your problems. I refer to your affirmation. You said “I felt very excited hearing this. This was because I thought that after all these years of all of my thoughts, anxiety issues, and anger might finally come to an end”. You said “I was so excited at the prospect of finally being listened to and about the help I was promised by [the sergeant], that I just opened right up and I said many things about myself going back years. I was so excited about finally opening up and getting all the assistance and care I should have got when I was first put into CYFS care as a child”. This affirmation was made because you thought you were misled about the way the Police would respond when you went to the Police Station. But it speaks from your heart.
[14] The Police Officer referred to a discussion he had with you at the Invercargill Police Station. You said the fuse wire found at your house was for making “bombs and things”, and that you could get anything needed on line. You said some material was sent to you through the mail, and you could not believe it. When asked why you would need a bomb you said “I get too grumpy and too funny and to teach people a lesson I guess”. You mentioned a work colleague. You were asked about making a bomb and you said that when you were in that mindset “nothing else matters” and you are consumed by these thoughts. You called the bomb a “wee thing”. You described it as like an oversized firecracker. It contained black powder and thinners. You talked about someone who you thought had hurt one of your family. You thought about use of that to do justice. You said it was a waste of time to contact the
Police, and you had little faith in the justice system. You freely admitted growing cannabis plants. You explained how you had made the gunpowder. You admitted owning a cut-down gun and ammunition. You said that it was loaded after an incident which involved one of your family members which caused you much distress. You said you had the ammunition for about a year. You said that the bomb was made because of trouble with your work mates.
[15] You expressed yourself forcefully about your attitude to society. You referred to wanting society “to hurt like [you] hurt…”. You were seen by mental health staff, and you were again cautioned. Again, you were prepared to talk. You were asked why you thought like you did. You said “that’s how I was treated. Nobody cared. Chucked in homes and treated like shit”. You had the same feelings about the way you think one of your family was treated.
[16] When you were asked about carrying out your thoughts, you acknowledged you thought about it and said in a very uncertain but troubling way to the Court,
“I think about it but I don’t think it would happen I guess”. When you were asked if there was any further explanation you said “I guess I got a bit carried away, I could have done a bit less acting and more thinking I guess”.
[17] All this reflects the fact that you were, and felt, terribly wronged in your early life, and you feel that nothing has been done to help you deal with that. You feel that the charges, your remand in custody, and your treatment by authority, is unfair. All this makes for a complex sentencing.
[18] You gave a further explanation of your thinking when written material was found in your cell shortly before intended sentencing in May 2017. This compelled the Court to seek further specialist reports, to which I will refer.
D.SECTION 38 REPORT (CRIMINAL PROCEDURE (MENTALLY IMPAIRED PERSONS) ACT 2003
[19] I now turn to a report under s 38 of the Criminal Procedure (Mentally Impaired persons) Act 2003. The s 38 report before the Court does not say that you suffer from a mental illness, as such. But you undoubtedly suffer from a disturbed
personality and you respond to various stressors by generating intensely antagonistic thoughts towards others.
[20] You were seen by Dr White, an experienced forensic psychiatrist. His report conveys a deeply troubling account of your history, your personality, and the potential risks you pose. You had a very poor start in life, which began with your removal into State care. You look back to your childhood of physical, emotional, and sexual abuse. You have anger and temper problems, and difficulty with interpersonal relationships, which led to conflict in the workplace. I observe there are strong views you should not ever be in a workplace again. You struggle with differences of opinion. You emphasise, and I think correctly, the link between becoming stressed, and having the thoughts which caused you to assemble this store of weapons. Dr White says you adopt coping mechanisms which include thoughts of control and violence against others. I quote:
As a way of compensating for his rejection by others, his anger took the shape of violent fantasy in which he would control other individuals. He describes being excited by violent fantasy which gives him a sense of mastery in dealing with interpersonal conflict which he is unable to do in the real world. He became excited at the prospect of controlling and dominating others.
[21] Dr White says that your poor self-management, and the psychologically rewarding nature of your fantasies are perpetuating factors, so violent ideation is persistent, despite therapeutic attempts to which I will refer, and which I have had to address afresh. There are real reservations about the therapeutic value of counselling, unless your violent ideations and hyperarousal are successfully addressed. Dr White makes the following observations. I quote:
It is not clear to me whether his ACC based psychological treatment would be sufficiently broad to look at his issue of anger and hyperarousal and poor problem solving. In my opinion, Mr Gow would benefit from an initial tranche of psychological work aimed at dealing with his problem solving skills and hyperarousal. It is difficult to imagine how he would benefit from specific work on his childhood abuse if he is not able to manage his arousal appropriately.
[22] A response to your hyperarousal is a first and crucial step, for you to make any progress, to feel better about yourself, and others, to make you and others safe. Dr White observes that you have a committed and stable marital relationship and
good relationships with your children and grandchildren, indeed very much so. I have observed the very obvious bond between you and your family, of affection, indeed love and support. The love and support of your family should above all else influence you in your response to this sentencing. Not all people have this. If there is one advantage you have in life, it is the love and support of your family. You must not jeopardise that further.
[23] There is a real concern about the authenticity with which you present yourself, and the overall effectiveness of any treatment. Dr White says:
On a cautionary note, Mr Gow has demonstrated the capacity to conceal his plans which will render the dynamic assessment of his risk very complicated. In addition his engagement with psychological services may be superficial.
[24] Those who read or hear these Sentencing Remarks, will realise that you pose particular challenges for the Court in reaching sentence, although you have no mental illness as such, nor serious alcohol or drug issues. Dr White can detect no evidence of thought disorder. He considers you have adequate concentration and to “[function] within the normal range of intelligence”. However, you have antisocial traits, and you probably suffer from aspects of Autism Spectrum Disorder. The Post-Traumatic Stress Disorder is the result of your being abused as a young person.
[25] Your start in life in your early years were awful, all through no fault of your own, but it has affected your personality and psyche for decades now. It is very fortunate the Police were alerted and searched your property and that you spoke freely to them, although you now regret that.
[26] Your violent fantasies are based on your thoughts of controlling and dominating others and the fantasy has persistently become more violent despite therapeutic efforts which you say have not helped you.
[27] The psychiatrist says your primary risk factors must be addressed. Whether the ACC based treatment will address hyperarousal and thoughts is uncertain. He recommends you have an initial tranche of psychological work to help with your
problem solving skills and hyperarousal. And he says there may be two separate psychological approaches to address hyperarousal, and separately the abuse which you suffered. This advice has been followed up by the Court with the help of counsel and Ms Teepa, as it is still not clear exactly how this would be achieved in practice. What I will call the two strands of psychological counselling and help.
[28] In one of the early stage bail hearings, you gave evidence. You had not then admitted the charges before the Court, but you were crying out for help and said you had done so for many years to no avail. You will recall telling me this from the witness box here in this Court.
[29] You spoke very well of the assistance given you by your GP. You said you could not get the help from ACC that you wanted. The Court took the view that for your own sake, and for the protection of society, the various agencies who might assist you should come together, and the Court was determined on that course. Eventually, ACC, and Corrections, together with material already on the Court file, resulted in a hearing when the Court asked for a collective approach to assessing you, the risk you pose, your needs, and whether there has been something missing in the counselling and care given you over the years. In other words, the Court understood your position.
[30] After your pleas of guilty and further inquiry about you, the Court faced the fact that any sentence of imprisonment meant that you were likely to be released immediately, given your time in custody on remand. Yet effective conditions post sentence for you, and for the community, were simply not understood. The s 38A report demonstrated the complexities of that.
E. THE EVENTS OF MAY 2017
[31] In early May 2017, the Court was advised of written material found in your cell, just before you were about to be sentenced. There was an indication that that material demonstrated how seriously you present as a risk to the community and enquiries were made of the Police, Corrections, and the Crown, and of you. The psychiatrist made further comment, and a further psychological report was obtained.
[32] One of the documents was a “song” under the name “Democratic Fantasy” and without further understanding, is frightening with reference to killing and with reference to the damage to men sent offshore “to kill” and “psychologically damaged
– beyond repair”. Some material is so graphic I do not want to do more than say it exposes the extent of your anticipated pleasure at death and suffering of others, and you say and explain it was part of the song.
[33] You also refer in a document headed “Arsonist” to excitement in the context of arson and you say, you write at the end “I just light the fires”.
[34] You say you have been unfairly judged and have been ‘tarred” from the beginning as a mass murderer. You say this material has been blown out of all proportion. You say a diagram regarding an electricity by-pass was for your own purposes. You say an assumption that you set down a recipe for making bombs in this material has been made by people who simply do not understand you. You say that you are a keen musician and the song “Democratic Fantasy” is in that category. You play a guitar. You wrote these things down because you were encouraged to get your thoughts down on paper. You say the “Arsonist” song was about someone you met in custody. You say it is nothing to do with another person or fantasy. The chemical recipe you say is for composting. I do not make too much of this material because it is part of the same sort of material that I read in another context.
[35] But Dr White says these documents, particularly the document “Arsonist”, are disturbing. The material indicates an ongoing preoccupation with violence.
[36] You say that although you may not appear to show remorse, your offences do not involve victims, and have hurt nobody. You say the devices are “mechanical” devices. You cannot express remorse to non-existent victims, but the real victims, as has been submitted by Mr Mooney correctly, are your family who have suffered deeply due to your offending and you are truly remorseful of that. With that I agree, as matters stand today and you too, are a victim of your past.
[37] You say you have no intention of making any more explosive devices, despite the encouragement to do so in prison. You say the firearms and ammunition “fell into your lap”, which is, in my view, simply evasive.
[38] You have missed out on a whole year passed in custody. You have missed out on the Harvest Festival, and the hazelnut harvest. You have many hazelnut trees which you have planted with your wife, and you need to return to that activity now.
[39] You say that having read Dr White’s report, there are no therapeutic efforts identified for you, only some counselling, but you have already asked for “help” many times. You have the view that people are trying to condemn you rather than help you and you have received what you call limited ACC funded counselling, but you have had 46 sessions. You have no faith in them.
[40] You say that you are in this position now because you responded to an indication to the Police that they would assist you in getting help, but that you did not receive that. In fact, you are here because of your offending and there should be no mistake about that. You say you would like nothing more than the thoughts that are in your head are gone.
[41] You say, when asked about your negative attitudes to criminal justice, psychiatric services and the Government, “What do you expect? They have proven that they are incompetent and have not helped or shown any interest”. In a way I understand that Mr Gow because you had such a wretched start in your early life.
[42] You say you want the Court to start working with you rather than against you, that you are not a monster, and for a long time you have sought help. I agree, that to deal with your acute distress and manage your hyperarousal you must be helped and learn how to help yourself.
[43] You minimise the material that has been put before the Court, but it demonstrates in vivid terms the point that the psychiatrist made, that your hyperarousal simply must be addressed. You were very disappointed that sentencing did not proceed earlier, but I was relieved to see that you considered your position
with counsel, Mr Mooney, and your wife, and agreed to the preparation of a report by a departmental psychologist to which I will refer. This was an indication which gives me some comfort that your resistance to engaging with professionals to assist the Court, and yourself, may have abated. This is a genuine attempt to help you.
[44] I refer to the Psychologist’s report dated the 20th July 2017.
[45] This represents the culmination of expert enquiry into your actions and your psychology and as such I must refer to it in some detail for your benefit, for the benefit of Corrections which will have responsibilities after this sentence, immediately you are released, for the Police, and for the public in the understanding of you in the future must be well held.
[46] To some degree the report mirrors my own dealings with you in Court. You were initially hostile, reluctant to participate, and negative with the psychologist. Then, at a second interview, there were shared moments of humour which I too have observed. You were behaving consistently with having an autism spectrum disorder without intellectual impairment and you told the psychologist that you “had not really wanted to hurt anyone”. You said that the violent ideas expressed in the material found in your cell were song lyrics as you tried to purge yourself of your violent ideas. You say you were encouraged to do so, and you resent that these papers were removed from your cell. They, however, graphically illustrated themes and thoughts of most concern, and you indicated little motivation to the psychologist to adhere to any directions of the Court. This, to a large degree, will demonstrate to others who have a professional interest in your future, the need for vigilance in your case.
[47] You work best in isolation, or working with your wife, or with those you like and trust in organic horticulture, and obviously Mr Guyton and Mrs Guyton are squarely in that category. You speak so well of them in the material I have read. These people clearly treat you well and are your friends. You have no domestic violence in your history. You are a loner, however, and do not trust others readily, and prefer a solitary existence close to your family and your close friends. You very much trust your General Practitioner. These are your props for the future.
[48] You are hyper vigilant and you question and mistrust the motives of those around you, and you are extremely sensitive in your dealings with others. You hold strong feelings of resentment if you perceive insult. You have rapid and extreme mood swings. The risk of aggressive behaviour is enhanced if you become agitated and you have a limited capacity for empathy. These factors are associated with increased potential for violence.
[49] Your violent ideations may focus on different individuals or groups of individuals. The harm you imagine inflicting has been similar since you began having thoughts in late childhood which you say has remained the same. That is many decades now. You have features consistent with autism spectrum disorder and some traits of paranoid personality disorder.
[50] While your violent ideation is psychologically rewarding, it all goes back to your childhood trauma, and also in the workplace, which has led to severe distress. Others distance themselves from you, and you then regard yourself as rejected and persecuted. You are also likely to have been bullied in the workplace.
[51] So your offending is the culmination of a long period of stress associated with all these factors. Of considerable importance, and again to be noted by those, including yourself, with a most keen interest in your future. The report writer says that your violent fantasies were no longer sufficient in themselves to mitigate your distress, hence your going a step further, to act on your fantasies of mass shootings and bombings, or killings, by acquiring and manufacturing the means to do so. This is a very strong caution to the Court and all the authorities, well represented in the Court today.
[52] You are held at a moderate/low risk of imprisonment again through recidivism, but the current offences have not been brought to account in that assessment and that may be under estimated. You expect difficulties in engaging with professional services, the lack of personal support, treatment, or supervision response. You need identified supports as they are important to stabilise you.
[53] You did disclose through your distress the nature of your thoughts to your wife and professionals, but you did not disclose the acquisition and manufacturing of weapons until they were discovered. You see this Court outcome as adverse to you, so you may be unlikely to disclose an escalation from violent fantasy to preparation for, or intent to harm others in the future.
[54] Conversely, you are said now to be motivated to engage in treatment. You acknowledge your need for help. Treatment will be hard, and it will be challenging. There has to be trust between you and those providing therapy. You cannot consistently be hostile or dismissive or it will frustrate the intent to help you and thus directly to help your family.
[55] You have real strengths, which are lights on the horizon. I repeat, you have kept a stable marriage and you are a loving and loved husband, father and grandfather. You are committed to your marriage and your wife supports you. You have relationships with a small circle of friends, I have described some of, and you have a particular interest in organic horticulture, botany and ecology including future study. This is where your support systems seem to lie and where you must base your immediate and probably long term future.
[56] The psychologist says if you are to regress to preparatory steps towards assembly, or manufacture or collection of weapons, it would follow a similar pathway to your present offending. The signs will not be easily recognised, that you are taking such a path, and the sentence I will impose very shortly reflects the need for vigilance and a degree of monitoring.
[57] The report writer says that it is difficult to predict what may have happened had your behaviour not been detected. It is true, you have no episodes of serious physical violence or use of weapons to harm others, despite your long term violent ideation. The report writer warns the Court that under a sentence of supervision or monitoring, you will have contact with authorities to whom you feel hostility. This will be stressful, and in that sense could be counterproductive and will need to be very carefully managed with a firm but relatively light hand with those who engage with you.
[58] You need psychological treatment and it seems likely with psychotropic medication, to target your management of hyperarousal and anger, development of insight and understanding regarding ASD and how it affects you, skills to help you with relationships, and management of your post traumatic stress disorder. You must have strategies to manage arousal that will be activated in the context of your treatment. You require long term cognitive behavioural intervention over several years as your difficulties are chronic and enduring. Gains will come slowly over time. No single service provider could meet all your treatment needs, and you will need the involvement of the Psychologists’ office. A multi-disciplinary team approach is required, with case co-ordination. This appears the most sensible approach to supporting you through the treatment which will now be made available to you. There should be reconsideration of your eligibility for specialist services. Mrs Gow is central, I agree with Mr Mooney, to all treatment endeavours in your practical and emotional support and to provide information Mrs Gow. I also intend at the end of this sentencing when I impose the sentence, to allow you a direct line of communication to the Court in the future.
F. THE PAC REPORTS
[59] I refer briefly to what we call the PAC Reports, the provisional advice to the Courts from the Department of Corrections, because these are helpful in seeing the way this last year has unfolded and coming to the decisions that I have made as to your sentence.
[60] The first report assessed you as of a high risk of harm to others given the charges and your lack of remorse, and extent of your unlawful activity. However, you were remorseful about the impact on your immediate family.
[61] You could not work in a conventional setting but you had to support your family. You want to work in a setting without stress, perhaps something to do with organic horticulture. You are isolated with few friends, but you have some persons whom you respect and like.
[62] It was troubling that you now have a fear of telling others of your thoughts and feelings because you might be locked up. Your position then was that when you
are released you will engage with mental health services “if they are prepared to listen and help”. You have faith in a local doctor and you will stay on medication which assists you, whatever that may be. Mrs Gow says that when you went off your medication she saw the difference in you, an adverse difference.
[63] The report refers to your own plea that you have reached out for help over so many years and “I always wanted help, I begged for it”. The help you have had has not resolved your problems. You were approved for 76 Sensitive Claims Counselling sessions. You attended 46. The in 2015. You asked for further counselling in 2016. That was approved but you attended only a couple of sessions. You did not want counselling in custody.
[64] It may seem a secondary issue, but I refer to finance. You applied for weekly ACC compensation and ACC advised this will be reassessed once you are released, if you have a medical certificate stating your incapacity to work. This compensation, if available, is very important in my view. Work stresses you in the relationships with others. Your family struggles financially. You should not work or be in a setting which stresses you and I have asked for agency help to relieve the financial stresses on your family, now and on your release.
[65] The recommendation in the first PAC report was for imprisonment with release on standard conditions, and some recommended special conditions. Another option mentioned was intensive supervision on the same terms, with the same proposed special conditions. Another option mentioned was intensive supervision on the same terms with the same proposed special conditions.
[66] Then in an updated report of 26 April 2017, the Department recommended some special conditions which included the psychological assessment with a departmental psychologist and treatment. These conditions were aimed at reducing risk and helping your rehabilitation. They cannot be too onerous and must be
directed no more than required to protect the safety of the community.4
4 R v Janssen [2007] NZCA 450 at [15]; Latham-Johnstone v Department of Corrections [2014] NZHC 2451 at [17].
[67] There are limits in respect of some special conditions. In particular, if you are required to take prescription medicine that may only be imposed if you have been fully advised by a person qualified to prescribe it about its effect and risks, and you consent to taking the medication.5
[68] The most recent report from Ms Teepa of Corrections says that after considering all the reports, a sentence of intensive supervision is promoted, with special conditions. In this case, it will be for a period of not less than two years on standard conditions, with special conditions. A sentence of less than two years would be futile as the work required to help you is just beginning. It is complex but it is to meet your needs and those of the community. I will refer shortly to those special conditions recommended and to some additional conditions which I intend to impose.
G. SENTENCE OPTIONS
[69] I am coming towards the end of these Remarks. I have decided that a sentence of imprisonment does not meet the purposes and principles of sentencing under ss 7 and 8 of the Sentencing Act 2002.
[70] My Sentencing Remarks will include full reference to those sections of the
Act.
[71] These include:
(a) The need to hold you accountable for the harm caused by your actions, including the community as a whole.
(b)The need to promote in you a sense of responsibility for your offending and acknowledgment of the consequence, being the risk and
the unease you have caused.
5 Sentencing Act 2002, s 93(6)
(c) The need to denounce your conduct, and deter you and others from committing similar offending.
(d)To protect the community, and to assist in your rehabilitation and reintegration. The protection of the community and your rehabilitation to a large degree run together, but your rehabilitation is problematical given the reports before the Court.
[72] I must also take into account:
(a) the gravity of your offending, and your degree of culpability, which includes the severe impact of your childhood experiences;
(b)the need for consistency in sentencing, to reflect how other offenders have been dealt with after committing similar offences;
(c) the effect of the offending on the community, and in this case, on those closest to you, at home and elsewhere;
(d) the least restrictive outcome appropriate in the circumstances;
(e) particular circumstances which would make an otherwise appropriate sentence disproportionately severe; and to take into account your personal and family background.
[73] There is an acute need to reflect as best I can the risk which you pose to the community, together with the undeniable need for treatment and other rehabilitative processes to help you. These factors determine the sentence. I repeat, you, with your family and the community need the committed, co-ordinated, and informed involvement of several agencies and your co-operation and buy-in to that involvement. The sentence imposed must not be in hope and expectation, but establish a supportive and therapeutic structure.
[74] I must refer briefly to the seriousness of the offending as I have been addressed by Mr Donnelly and Mr Mooney in submissions.
Seriousness of offending
[75] These serious charges unquestionably warrant imprisonment but for your personal circumstances and the interests of rehabilitation and the safety of the community. The most serious charge in my view, on which a functional sentence of imprisonment would otherwise be imposed, is that relating to the possession of the PVC pipe bomb, containing shrapnel.
[76] This is serious offending. As the Court of Appeal said in the case cited by
Mr Donnelly in R v Richardson:6
Loaded firearms are anathema within our community. Every Court has a clear obligation to impose sentences which in unequivocal terms express society’s condemnation of their availability because of the potential danger from their possession.
[77] There are aggravating factors, chief amongst them the degree of premeditation, evidenced by deliberate accumulation of the offending items, in conjunction with repeated thoughts, although not a specific plan, to constitute an attempt to commit a serious crime. The items would cause significant and extensive harm, injury or death, particularly the explosive device containing shrapnel. You refer to your lack of intent to actually use these devices on people. I have to respond with caution. You tested and also carried the explosive device in your car. The size of your collective cache of weapons is alarming. Overall, and in conjunction with the possession of explosives and devices, this is serious offending, which stopped short of an attack on any places or persons but went well beyond a psychological response to your undoubted mental disturbance. The risk stares the Court in the face.
[78] I say only as to the sentence that would have been imposed that I substantially agree with the submissions by Mr Donnelly. For my part, I would have adopted a higher starting point than he did for the Crown. I would have allowed a greater deduction for the extent to which your personal circumstances have affected
you and led to this offending, and I would have allowed a slightly greater discount
6 R v Richardson CA450/02, 25 March 2003 at [33].
for your guilty pleas, because I think your coming to a decision to plead took time, given your mental state.
[79] So I would have come to about the same end figure as Mr Donnelly and I say this simply so the sentencing addresses all bases when it is fairly considered.
The cannabis charge- discharge without conviction
[80] I will dispose of this separately.
[81] Mr Mooney submits, and I accept, that in accordance with the guideline judgment of the Court of Appeal in R v Terewi,7 your cultivation of cannabis can be classified in terms of the lowest band of offending, Category 1, and Mr Mooney seeks a discharge without conviction. Mr Donnelly accepts the offending is minor but submits that you be convicted and discharged.
[82] Discharges without conviction are governed by s 106 of the
Sentencing Act 2002, and the three-stage approach outlined in the case of Z v R:8
It involves the gravity of the offence, the consequences of a conviction, and a weighing of those two to answer the proportionality inquiry under s 107 of the Act. The Court has the discretion to order a discharge without conviction. Before that discretion can be exercised, the Court must be satisfied that “the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the
offence”.9 The consequences need not be certain, provided that there is a “real and
appreciable” risk of them resulting.10
[83] Mr Mooney makes reference to the confiscation and destruction of a $500 growing light, which he says amounts to sufficient punishment. The confiscation of the light was an ordinary and foreseeable consequence of its use in the offending. You express a desire to travel to Bolivia, a place to which you travelled with his wife and which represented a “happier time” in your life as you put it. The submission is
made that the Bolivian Government takes a hard line approach to drug offending,
7 R v Terewi [1999] 3 NZLR 62 (CA).
8 Z v R [2012] NZCA 599, [2013] NZAR 142.
9 Sentencing Act 2002, s 107.
10 Alshamsi v Police HC Auckland CRI-2007-404-62, 15 June 2007 at [20].
and a conviction would prohibit you from visiting. No evidence has been given of this.
[84] Mr Mooney refers to the case of Vela v R,11 in the Court of Appeal in which low-level cannabis possession warranted a discharge without conviction. I have considered that case.
[85] The decision to order a discharge without conviction remains in the discretion of this Court, and similar cases are a guide but do not determine what should happen here.
[86] There is no clear evidence with regard to the consequences for you of a conviction. It would seem to me of little moment against the other convictions on the Arms Act offending. In fact the cannabis offending pales into relative insignificance compared with the Arms Act offending but because the prospect of travel one day is important to you and your wife, I exercise my discretion in the broadest way to allow you whatever benefit it may bring as part of your future, and I have decided in those circumstances to discharge you without conviction on the cannabis charge. It may be that that will go some way towards recognition by you that the Court is considering your wellbeing for the future.
H. SENTENCE OUTCOME
[87] I come to sentence outcome. [You can stay seated until I get right to the end, thank you].
[88] I have said that I cannot impose a longer prison sentence simply to reflect the risk you pose to the public. That would be to sentence you for offending which has not taken place. In any event, such a sentence would not lead post sentence to intensive supervision and conditions of the kind that I consider are needed.
[89] Under s 93 of the Sentencing Act 2002, the Court may impose standard and special release conditions but for sentences greater than 12 months, but less than
24 months, the conditions may be imposed to a maximum up to six months after the
11 Vela v R [2010] NZCA 440.
sentence expiry date.12 Special conditions may be imposed for a similar time.13
Imprisonment with such conditions will not, in my view, not suffice.
[90] The stakes are so high that for the protection of the community a sentence of intensive supervision is the right outcome with the best chance of bringing about a change to your thinking, and modification, or at least the management, of the fantasies of violence and death which you have expressed in such a vivid and alarming way.
[91] A sentence of intensive supervision is the recommendation in the PAC report and is the sentence sought by the Crown, and not opposed by Mr Mooney on your behalf. The conditions suggested by the Probation Officer are not extensive and I have gone further. The protection of the public remains an acute concern for me given revelations about your state of mind, underlying psyche, and symptoms of trauma.
[92] Intensive supervision is a sentence reserved for cases of which I am sure this is one.
[93] In Carrington v Police,14 Justice Lang substituted a sentence of imprisonment with intensive supervision in the best interests of the community.
[94] In R v O,15 two charges of attempted murder of children resulted in recognition of mental health issues which underlay that, and the Judge noted that short of imprisonment he could not stop the offender from harming her children. The sentence imposed was to best secure the rehabilitation and treatment of the mental health condition. The Court said it must do the best it could to keep the level of stress down to create the right conditions to take care of the defendant’s children. Hence, a sentence of intensive supervision, with a special condition to abide by a mental health treatment plan. The parallels in your case are obvious as to your needs
and the right response.
12 Sentencing Act 2002, ss 93(2), 93(2A)(a) and 93(2A)(c).
13 Section 93(2AB).
14 Carrington v Police [2016] NZHC 2351.
15 R v O [2012] NZHC 796.
[95] I refer to s 54C of the Sentencing Act provides for intensive supervision and my sentencing remarks will set that section out in full. I do not repeat them for this oral sentencing. In short, it may be imposed only if the Court is satisfied it will reduce the likelihood of further offending by you through the rehabilitation and reintegration of you into the community and your family. Secondly, the nature of those needs requires conditions that will last for a period longer than 12 months, or are not available through an ordinary sentence of supervision.
[96] Section 54C reads:
54C Guidance on use of sentence of intensive supervision
A court may impose a sentence of intensive supervision only if it is satisfied that—
(a) a sentence of intensive supervision would reduce the likelihood of further offending by the offender through the rehabilitation and reintegration of the offender; and
(b) the nature of the offender’s rehabilitative or other needs requires the
imposition of conditions—
(i) for a period longer than 12 months; or
(ii) that are not available through the sentence of supervision.
[97] There are "standard" conditions under s 54F of the Act and special conditions may be imposed under ss 65G and 54I. They may be imposed provided there is a "significant risk of further offending", where standard conditions alone would be insufficient, and the special conditions would address rehabilitative needs.
[98] Special conditions may be imposed relating to treatment programmes under s 54G. This reads:
54G Special conditions related to programmes
A court may impose any special condition or conditions related to a programme if the court is satisfied that—
(a) there is a significant risk of further offending by the offender; and
(b) standard conditions alone would not adequately reduce that risk; and
(c) the offender requires a programme to reduce the likelihood of further offending by the offender through the rehabilitation and reintegration of the offender.
[99] I am satisfied all conditions are met.
[100] Section 54I allows for other special conditions, set out as follows:
54I Other special conditions
…
(2) A court may only impose a condition of the kind described in subsection (3)(d) (which relates to judicial monitoring) if it is also satisfied that, because of the special circumstances of the offender, this is necessary to assist the offender's compliance with the sentence.
(3) The conditions…comprise—
(a) any conditions that the court thinks fit relating to the offender's place of residence (which may include a condition that the offender not move residence), finances, or earnings:
(b) conditions requiring the offender to take prescription medication:
(c) conditions requiring the offender to undertake training in basic work and living skills:
(d) a condition requiring the offender to comply with the requirements of judicial monitoring under subpart 2B as directed by a probation officer or the sentencing Judge:
(e) any other conditions that the court thinks fit to reduce the likelihood of further offending by the offender:
(f) a condition that the offender must, when required to do so by a probation officer, submit to the electronic monitoring of compliance with any conditions of his or her sentence imposed under paragraph (e) that prohibit the offender from entering or remaining in specified places or areas at specified times or at all times:
…
[101] I have had regard to all those provisions of the Act in crafting the conditions which I will bring down shortly.
[102] In particular, under a provision which says "any other condition the court thinks fit", the Court can reflect the particular circumstances of an offender.
[103] "Judicial monitoring" under the Act is governed in practice by s 80ZJ, whereby a "progress report" is provided to the Court by the Probation Officer after three months. That addresses your compliance and "any other information the probation officer considers relevant to the offence". The Court may order further such reports at intervals of not less than 3 months. The Court has the power to order the offender, in this case you, to attend before it if that is thought appropriate.
[104] A sentence of intensive supervision with judicial monitoring involves a team effort. The Court engages with you in the sentence and with the authorities, including Corrections and the Police, and more broadly the community. Your response will determine what lesser conditions, or further measures will be required. In other words, a sentence of intensive supervision can be modified during its term to reflect your progress. That depends largely on your response and the quality of the help you receive.
[105] I have been sympathetic to your position having regard to the undeniably awful and traumatic experiences you had as a young person. The truth is that even with the best considered, and most well meaning response that can be made to your needs, the risk to the public remains real. You dismiss it, but in my view, the protection of the public involves your successful response to the help which will be provided. It will be challenging.
[106] While you do not seem to have had regard for the ACC related treatments, there will likely be more funded treatments, but clearly Dr White identifies addressing your hyperaousal as a prior concern.
[107] Whatever, you must have such treatment as will allow you to understand and feel better about yourself, because that is one of the two strands of counselling needed in your case. I come to concluding remarks before I sentence you.
I. CONCLUDING REMARKS
[108] I repeat that the paramount considerations of sentencing and protection of the public and your rehabilitation. The two go hand in hand. Imprisonment will not
meet these needs. Intensive supervision with standard and special conditions is the best that can be achieved.
[109] While you have had limited or no respect for authority, I hope with your counsel, Mr Mooney, you will understand that you must play your part. This will not work unless you do. For your sake, for your family’s sake and for the community, you must now take part in what is going to follow. You have wonderful support through your wife and your family and you can do this. This is the chance that you have been waiting for over decades.
[110] Very shortly, today, you will be free to return to your family, after formalities are completed. Your interests in life are not criminal. You have an abiding love of nature, the love of your family, and you want to live in peace. You want to live in a place live in a place where you are free from interference. You do not want to be monitored. If you are going to work, it will have to be where there is no stress on you. You and your family need financial support as I have mentioned, and some relief. There will need to be a close watch of you so that you are aware, and the authorities are aware, of your progress, and state of mind. You should take medication when that is recommended and prescribed, because Mrs Gow indicates that that is important. I can say this and I can impose this as a condition but the Court cannot make you take the medication. What the Court can do, should you not take the medication, is have regard to that fact when it has reached the view that you should, and explore the reasons why you did not. So there is no power to impose this on you. I would expect specialist counselling to recognise this.
[111] I conclude by saying that you should never take actions in the future which will deprive you and your family of the love and support you provide one another. It is as simple as that.
J. SENTENCE
[112] Mr Gow, would you please stand.
(i)I sentence you to intensive supervision for two years on all charges, but for the cultivation of cannabis for which you are discharged without conviction.
(ii)The sentence will be on the standard conditions, and these special conditions:
(a) you attend a psychological assessment with a Departmental Psychologist as directed by a Probation Officer, and carry out any mental health or other treatment plan and/or counselling
as recommended to the satisfaction of a Probation Officer;
(b)you are not to approach, or enter, [XXX] without the prior approval of a Probation Officer. I permanently suppress the name in these Sentencing Remarks of [XXX];
(c) you will not go into any previous place of employment without the approval of your Probation Officer;
(d)you are to notify a Probation Officer prior to commencing, terminating or varying any employment or voluntary work;
(e) you will take prescription medication as directed by your medical advisers but subject to your receiving advice under s 54I(5) of the Act, and your giving consent to taking the medication;
(f) you will be subject to judicial monitoring under s 54I(d) of the Act as directed by the Probation Officer or by me as the Sentencing Judge. That will allow a review of the way in
which the treatment programme is provided and your response;
(g)if requested by the Probation Officer, you will allow inspection of the property on which you live, under s 54I(3)(e) of the Act, in order to reduce the likelihood of your further offending;
(h)the term of, and the conditions of intensive supervision which I have imposed may be reviewed from time to time by the Probation Officer and the Court. As part of this, I direct that Mrs Gow is to have access to me as the Sentencing Judge for the purpose of review of the order which I have just made, so that you, Mrs Gow, will have the opportunity if a matter of concern arises to you which you cannot resolve through other channels, to bring that directly to the Court, which should be done through Ms Teepa, and then the Registry.
[113] Before I conclude, I make an order for destruction of all the items referred to in the charges on which Mr Gow has been convicted.
[114] Mr Mooney advised Madam Registrar before the hearing that there were two
Admissibility of evidence applications still outstanding. I formally dismiss those. [115] There will be formalities to attend to.
[116] Mr Gow you will stand down now. The sentencing is completed. You will remain in custody only until formalities are completed, then you will leave the Court to be with your family.
[117] That is the end of the sentencing.
……………………………….
Nicholas Davidson J
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