R v Greathead
[2013] NZHC 2148
•23 August 2013
ORDER PROHIBITING PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS OR IDENTIFYING PARTICULARS OF VICTIMS PURSUANT TO S 202 CRIMINAL PROCEDURE ACT 2011.
IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY
CRI-2013-006-000471 [2013] NZHC 2148
THE QUEEN
v
DANIEL JEFFREY GREATHEAD
Counsel: M A O'Donoghue for Crown
R A Harrison for Prisoner
Sentence:
23 August 2013
NOTES ON SENTENCING OF COLLINS J
Introduction
[1] Mr Greathead, you are to be sentenced on one charge of wounding with intent to cause grievous bodily harm.1 You pleaded guilty to that charge.
[2] The challenge I have had to face is whether I should sentence you to a finite term of imprisonment, or preventive detention.
[3] The Crown Solicitor recommends I impose a sentence of preventive detention. The Probation Service recommends a finite sentence of imprisonment, but also says that in the circumstances of your case a sentence of preventive detention would be appropriate. Your counsel strongly urges me to impose a finite
sentence of eight years, with a five year minimum period of imprisonment.
1 Crimes Act 1961, s 188(1).
R v GREATHEAD [2013] NZHC 2148 [23 August 2013]
[4] I have carefully weighed both options. After many hours of analysis and reflection I have decided to impose a sentence of preventive detention.
[5] In sentencing you, I shall:
(1) explain your offending;
(2) explain your history of previous offending;
(3)explain the assessments of you that have been made by a probation officer and two health professionals;
(4) explain what finite sentence and minimum period of imprisonment I
would otherwise have imposed;
(5)assess your circumstances against the statutory criteria that governs sentences of preventive detention; and
(6) explain your sentence and the minimum period you must serve in prison.
Your offending
[6] On the evening of 8 March 2013, you organised to meet an escort at a motel in Blenheim. While you and the escort were having sex you started strangling your victim by holding both hands around her throat. When the pressure was released your victim cried out for help. You responded by forcing one hand into her mouth and holding her nose shut with your other hand preventing her from breathing. Your victim bit your finger and you withdrew your hand from her mouth but then used a pillow to attempt to suffocate her. The victim was able to struggle free and fall onto the floor. You then squatted over the victim and punched her in the head and upper torso, saying to her “you die, you die”. The victim ran to the bathroom and attempted to climb out the window. However, you dragged her back into the bedroom by her arm. The victim offered to repay you the money you had paid her
for her services. You took the money and when you began to count it your victim escaped through a sliding door.
[7] Your victim suffered haemorrhaging to her eyes, serious bruising to her face and upper torso.
[8] At the time of this offending you were 38 years old. Your victim was 61 years old.
Your history of previous offending
[9] You have convictions for burglary in May 2005 and April 2010. You also have convictions for dishonesty offences in Australia. However, I am only going to take into account your conviction for aggravated wounding for which you were sentenced to four years’ imprisonment on 27 May 2005 and your conviction for aggravated assault for which you were sentenced to two years concurrently with a three year prison sentence on 1 April 2010.
2004 offending
[10] On 23 November 2004 you were living at Tata Beach in Golden Bay. You observed six teenage girls staying at another accommodation venue at Tata Beach. You approached the girls and asked if they wanted to have a party. You were turned away. Some time later, you returned to the property and broke in through an unlatched bathroom window. You then hid under a bunk bed. Once the girls had gone to bed and the lights turned out you entered a bedroom where one of the girls was sleeping alone and grabbed her throat with both hands. You started strangling that victim for two minutes. During this period you restricted the victim’s air and blood supply, causing her to pass out twice. Your victim suffered a bleeding nose and haemorrhaging to her eyes. Your victim managed to bite your hand to release your grip momentarily and then struggled free screaming for help. You then fled the property using the same bathroom window through which you entered the property.
[11] When you were spoken to by the police at the time, you said you did not know whether you went to the address to burgle or to sexually assault one of the
occupants. I note that you have recently admitted to Mr Wilson, the psychologist, that your motive in returning to the property at Tata Beach was to engage in a sexual assault but that you changed your mind because you did not want to hurt the victim.
[12] At the time of this offending you were 30 years old.
2009 offending
[13] On 27 November 2009 you were living in Dunedin. At 5.50 am you approached an elderly rest home facility on George Street. You entered the rest home through an unlocked door at the rear of the premises and made your way through the corridors to an office area where the victim was working. You walked up behind the victim and grabbed her around the neck and squeezed hard, cutting off her airway. At the same time you dragged her backwards out of the office while she was still seated in the chair. A struggle developed between you and this victim, who fell to the floor. She began to yell for help and you took off.
[14] At the time of this offending you were 35.
Pre-sentence assessments
Probation officer’s report
[15] The key points I have taken from the probation officer’s report are:
(1) That there is a realistic likelihood of you reoffending.
(2)That you have experienced an inability to regulate mood swings, possibly because of your abuse of substances.
(3) That you report that you may have a “lot of hate for women”.
(4)That the probation officer has some doubts about whether or not you will benefit from intervention programmes and therapies.
(5)Whilst a sentence of imprisonment is recommended, a sentence of preventive detention is considered appropriate.
Report from Mr Wilson
[16] Mr Wilson is a psychologist. I take the following key points from
Mr Wilson’s report:
(1)You abuse alcohol and other substances. In addition, you have underlying mental health issues.
(2)You began drinking heavily when you were a teenager and have habitually engaged in alcohol and substance abuse.
(3)You told Mr Wilson that you were sexually motivated when you carried out your attacks in 2004 and 2009, but because of your levels of intoxication at the time you have limited recall of both events.
(4)That while you admit to having a sexual motive when committing the two earlier offences, Mr Wilson believes there may be a disconnection between committing violent offences and a sexual motive in your case.
(5)Mr Wilson believes your offending on 8 March this year commenced with you seeking sexual gratification when you were intoxicated and that your judgement became impaired through intoxication and substance abuse. Your sudden onset of anger was caused by difficulties in relationships and resentment towards women, anxiety and depression.
(6)Mr Wilson used the Historic, Clinical, Risk Management – 20, a structured clinical judgement tool to assess your likelihood of future offending. You scored moderately using the static risk factors evaluation and low to moderately when dynamic risk factors were applied to your circumstances.
(7)Mr Wilson also applied the Sexual Violence Risk methodology, another structured clinical judgement tool to assess the likelihood of you committing future sexual violence offences. Mr Wilson thought that:
... if no efforts were made towards treatment there is a moderate risk [you] will offend in a similar manner in the future, particularly if [you engage] in problematic substance use. Given [your] pattern of offending, which is very specific, any future offending is likely to occur in a similar manner and include high levels of violence, against strangers, with little warning, in the context of home invasion, while intoxicated and progress from sexual urges to angry and violent behaviour. The incidents are likely to be infrequent but of high intensity. ...
(8) You have attended two drug and alcohol treatment programmes. The first was a Salvation Army programme which you undertook voluntarily on your return to New Zealand in about 2003. The second programme was a 16-week programme you undertook when you were last in prison in 2011. You appear to have initially responded well to the drug and alcohol treatment programme when you were serving your most recent sentence of imprisonment at the Otago Corrections’ facility. Mr Wilson believes you appear to be genuinely interested in remaining drug and alcohol free. You have yet to engage in sexual or violence specific treatment programmes.
(9) Mr Wilson believes your risk of offending may be able to be reduced in the future if you are able to understand your tendencies towards behaving violently and if you address your substance dependency and understand how that is linked to coping with anxiety and depression.
Report prepared by Ms Bateup
[17] Ms Bateup is also a psychologist. The key points I have taken from
Ms Bateup’s report are:
(1)That you struggle with social anxiety disorder and attempt to cope with social situations through use of alcohol and substances.
(2) Aside from your thoughts of sexually assaulting your victim in
Golden Bay, you show no other indication of sexual deviance.
(3)That whilst you responded initially well to the drug and alcohol treatment programme in the Otago Corrections’ facility, you resumed consuming significant quantities of alcohol and abusing substances following your release.
(4)In assessing your likelihood of reoffending, Ms Bateup reports that you have a low risk on the RoC*Rol measure which is based upon static risk factors. When dynamic risk factors are assessed using the violence risk scale, 11 out of the 20 dynamic factors were identified in your case.
(5)Ms Bateup assessed your risk of reoffending as high. She was particularly concerned about the association between your sexual thinking and violent offending. Ms Bateup was particularly concerned about your previous offending and the apparent failure of the drug and alcohol treatment programmes.
Finite sentence
Starting point
[18] It is necessary for me to explain the length of the finite sentence I would otherwise have imposed because of the need to assess your risk of reoffending as at the expiration of any finite sentence that I would otherwise have imposed.
[19] I place your offending in the middle of band two of the categories of offending identified by the Court of Appeal in R v Taueki.2 I have reached this conclusion because your offending involves two serious aggravating factors. Those
factors are:
2 R v Taueki [2005] 3 NZLR 372 (CA).
(1)The attempted strangulation and attacks to the head of your victim. It is clear that your attacks to your victim in March of this year were significant acts of violence and could easily have led to more serious consequences. Your attacks involved, in addition to strangling, punching, dragging and suffocation. Your attack was prolonged and accompanied by clear statements of an intention to kill. The throttling of your victim’s throat and attempts to suffocate her could easily have produced fatal consequences.
(2)Your victim was a vulnerable 61 year old woman, who was suddenly attacked by you in a violent manner with no warning while you were having sexual intercourse with her.
[20] In my assessment, the appropriate starting point is seven years’
imprisonment.
Adjustment to starting point
[21] Section 9(j) of the Sentencing Act 2002 recognises that previous convictions can be an aggravating factor. It is, however, important not to punish you twice for your earlier offending. In my assessment, it is necessary to increase your sentence by one year to reflect the gravity of your earlier offending, which is strikingly similar to the offending that you are to be sentenced for today. I would apply an additional six month uplift to reflect the fact this offending was committed whilst you were on parole.
[22] You are, however, entitled to a 25 per cent discount to reflect your guilty plea.3
[23] This would produce an end finite sentence of six years four months’
imprisonment.
[24] I would also impose a minimum period of imprisonment to any finite sentence I would otherwise have imposed to reflect the seriousness of your offending
3 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.
and in order to protect the community from the risk that you pose, and in particular, to vulnerable women. The longest minimum period of imprisonment that I could impose if sentencing you to a finite sentence would be four years three months’ imprisonment. That would be the minimum period of imprisonment I would have imposed had I sentenced you to a finite term of imprisonment. However, I do not believe a four year three month minimum period of imprisonment adequately protects society from the risk that you pose.
Assessment of your circumstances against the statutory criteria that governs sentences of preventive detention
[25] In weighing your circumstances against the statutory criteria for the imposition of a sentence of preventive detention, I am very mindful that a sentence of preventive detention should be restricted to cases where there really is a significant ongoing risk of an offender committing a qualifying sexual or violent
offence if they are released at the expiration of a finite sentence.4
Patterns of serious offending5
[26] This criteria requires consideration of:
(1) the frequency and duration of your offending;
(2)the period of time between the past offending and the current offending;
(3) the frequency of offending generally; and
(4) any reoffending shortly after release.6
[27] Your current offending does not need to be serious to justify preventive detention, provided there is a sufficient connection between your offending and my
4 Sentencing Act 2002, s 87; R v Parahi [2005] 3 NZLR 356 (CA) at [85].
5 Sentencing Act 2002, s 87(4)(a).
6 Hall’s Sentencing (online looseleaf ed, LexisNexis) at [SA87.8(a)].
assessment of your future risk. My focus is on the risk posed by you in the future rather than the impact of your present offending.7
[28] Your history shows a distinctive pattern of behaviour in relation to violent offences. All of your offending has been fuelled by alcohol consumption and substance abuse and involves you attacking defenceless women while they are alone by grabbing them by the neck and strangling them. All offences have some sexual overtone, although there is no indication that you actually attempted any sexual assault against any of your victims.
[29] Your offending spans a period of just over eight years beginning on
25 November 2004, to which you were sentenced to four years’ imprisonment. After being released on parole on 25 November 2008, you reoffended just over a year later on 27 November 2009 in relation to the incident that took place in the rest home in Dunedin. You were sentenced to three years’ imprisonment on 1 April 2010 and released on 26 November 2012. You committed your present offending within four months of your release on 8 March this year. This shows a pattern of reoffending in a violent manner soon after your release from prison.
[30] Although the nature of the violence is strikingly similar in all cases, there is some escalation in your offending in that your most recent offending was more violent and more prolonged with additional injuries being inflicted.
Seriousness of harm to the community8
[31] As the reports from the Probation Service and health professionals indicate, there is a realistic likelihood of you reoffending. You pose a serious risk of harm to the community and in particular vulnerable women. Your offending has been committed against women who are strangers to you, who are alone and in vulnerable
positions.
7 R v Dean CA172/03, 17 December 2004.
8 Sentencing Act 2002, s 87(4)(b).
Information indicating a tendency to commit serious offences in the future9
[32] This assessment focuses on the likelihood, type and seriousness of your reoffending in the future.
[33] The reports I have referred to indicate a risk of reoffending in a violent and possibly sexual manner against women. Ms Bateup in particular identified a high risk of you reoffending in a violent manner.
Absence or failure of efforts by you to address your cause or causes of offending10
[34] The reports indicate you have completed two treatment programmes for alcohol and substance abuse. While you are willing and open to participate in these programmes they have had no long-term positive effect. You regressed back into alcohol and substance abuse soon after your release from prison in 2012.
[35] Both psychologists recommend further treatment for mental health issues and violence tendencies. I accept that you have not yet had the benefit of a treatment programme that is directed towards violent or sexual offending.
A lengthy finite sentence is preferable if this provides adequate protection for society11
[36] I have had to carefully balance whether a finite sentence would provide adequate protection for society.12 I accept that preventive detention should not ordinarily be imposed without first allowing a lengthy finite sentence to be served as a final warning and an opportunity for a person in your circumstances to address the underlying drivers of your offending.
Reasons for imposing preventive detention
[37] There are two factors that have tipped the scales in favour of a sentence of preventive detention. Those factors are:
9 Section 87(4)(c).
10 Section 87(4)(d).
11 Section 87(4)(e).
12 R v Mist [2005] 2 NZLR 791 (CA); R v Bailey CA102/03, 22 July 2003 at [21].
(1) the pattern of your previous offending; and
(2)your failure to respond positively to earlier drug and alcohol treatment programmes.
Pattern of previous offending
[38] In my assessment, there is a striking similarity and disturbing uniqueness about your pattern of offending. The three offences have all involved attacks on women who have been alone, on two occasions by entering private property. On all occasions your victims were in defenceless positions. The violence used on all occasions has been similar, involving attacks to the victims’ heads and attempts to strangle them. On all three occasions the violence you were inflicting ceased only because of the victims’ efforts to resist or fight back.
[39] Your pattern of offending shows a troubling link between predatory behaviour and violence. Although you have not committed any sexual offences, your motives for the attack in Golden Bay are now acknowledged by you to have initially involved a desire for sexual gratification. However, your statements to the psychologists and probation officer show that you have little insight into the connection between your desire for sexual gratification and your tendency to suddenly engage in unprovoked violent behaviour.
[40] In my assessment, your pattern of offending shows every hallmark of you posing a very significant risk of offending in an extremely violent manner against vulnerable women at a future point in time.
Lack of responsiveness to treatment
[41] You have had two attempts at treating your drug and alcohol risk factors. The most recent attempt was a 16-week course in March 2011, which you undertook when serving a sentence of imprisonment. Both courses have proven to be unsuccessful. You resorted to drinking heavily and engaging in substance abuse shortly after your release from prison in 2012. This indicates you lacked the ability to cope with your underlying health issues.
[42] Without serious in-roads being made into your alcohol and substance dependency, I am satisfied that you are likely to commit further violence offences upon release. In my judgement those in-roads are more likely to be achieved during a sentence of preventive detention because you would have every incentive to satisfy the Parole Board that you have successfully completed all intervention programmes and no longer pose a risk to society before you could be released on parole.
Minimum period of imprisonment
[43] Section 89 of the Sentencing Act 2002 governs the imposition of a minimum period of imprisonment where preventive detention is imposed. The term must be at least five years and must be the longer of:13
(1) the period of time that reflects the gravity of the offending; or
(2)the period required to keep the public safe, in light of your age and the risks you pose to the community.
[44] In assessing the minimum period of imprisonment that I should impose, I refer to the minimum period that I would have imposed had I sentenced you to a finite term of imprisonment.14 That period would have been four years and three months’ imprisonment and is less than the minimum period of imprisonment which needs to be imposed in your case.
[45] In my assessment, a five year minimum period of imprisonment is the least restrictive sentence that can be imposed which reflects the gravity of your offending, your age and the risk that you pose to the safety of the community.15 This aspect of your sentence coincides with the submissions your counsel has made when he urged me to impose a five year minimum term of imprisonment as part of a finite sentence.
[46] Mr Greathead, you have not previously responded well to programmes designed to help you address your drug and alcohol offending. I sincerely hope that
13 Sentencing Act 2002, s 89(2)(a) and (b).
14 R v Johnson [2004] 3 NZLR 29 (CA) at [26].
15 Sentencing Act 2002, s 89(1).
the sentence of preventive detention will provide you with every incentive to fully participate in every programme that you are given access to. If you successfully complete the programmes designed to address the causes of your offending, then you might serve just the minimum period of imprisonment that I have imposed. That, however, will be a decision for others to make.
[47] It will be apparent that I believe you pose a serious risk to vulnerable women. They need to be protected from you. That will be best achieved through a sentence of preventive detention. If you are ever released back into society you will be subject to strict terms and conditions for an indefinite period. Those terms and conditions will hopefully ensure no other woman is ever subject to your violent attacks.
Result
[48] Mr Greathead, I now sentence you to preventive detention on the charge of wounding with intent to cause grievous bodily harm with a minimum period of imprisonment of five years.
[49] I record when you were convicted in the District Court on this matter
Judge Hobbs gave you a “three strikes warning”. I need not repeat it.
[50] You may now stand down.
D B Collins J
Solicitors:
Crown Solicitor, Nelson