R v Johansen HC Auckland CRI-2004-083-1849

[2005] NZHC 1227

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2004-083-1849

THE QUEEN

v

KERRY ANTHONY JOHANSEN

Charge:          Attempted Murder

Plea:               Guilty

Appearances: Kieran Raftery for Crown

Ian Tucker and Mark Wotherspoon for Prisoner

Sentenced:     2 June 2005

preventive detention; ordered to serve minimum term of 10 years

SENTENCING NOTES OF HARRISON J

SOLICITORS

Meredith Connell (Auckland) for Crown Tucker & Co (Auckland) for Prisoner

R V JOHANSEN HC AK CRI-2004-083-1849 [2 June 2005]

Introduction

[1]                 Mr Johansen, you appear today for sentence on one charge of attempted murder of a fellow inmate in the Wanganui Prison on 1 September 2004. To your credit you have pleaded guilty. The charge carries a maximum term  of imprisonment of 14 years. The real issue is whether I should sentence you to a fixed or finite term of 14 years or less, or impose a sentence of preventive detention.

[2]                 Before dealing with the formal parts of your sentence, I would like to record my appreciation for the assistance given in the submissions made by both Mr Raftery for the Crown and Mr Tucker and Mr Wotherspoon for you. You have heard me pay tribute to the benefit of Mr Tucker’s input.

Facts

[3]                 I have to deal first with the facts.   In February 2000, when you were aged   16 years, you were sentenced to a term of life imprisonment for murder. The Court imposed a 13 year period of minimum non parole. That fact in itself, given your age, signifies, as Mr Raftery has emphasised, the callous nature of the crime. In February 2004 you were transferred from Mangaroa to Wanganui Prison.  In the afternoon on 1 September you were in West Wing 2 of the prison; that is an area accommodating 40 medium to medium-high security inmates. It was recreation time. You entered  the cell of another inmate. This man, Mr Tu Nguyen, is of Asian descent.

[4]                 You closed the door  behind  you.  The  two  of  you  were  then  alone  in  Mr Nguyen’s cell. You then drew a weapon – a plastic knife which is known as a shank. The end was melted and drawn into a point and a rag was wound around the handle to provide a grip. You held the shank in a clenched fist with the tapered part extending for about five centimetres. You then struck Mr Nguyen numerous times around the body. He suffered five wounds to his neck, face and rib area, as well as grazing around his shoulders and arms. The force of the attack was such that the shank snapped. You then resorted to punching Mr Nguyen with a closed fist.

[5]                 You left Mr Nguyen’s cell and returned to your own. Later you were apprehended. Mr Nguyen himself required medical treatment for puncture wounds which were described as fine and deep. Fortunately he was not hospitalised and his wounds were not permanent.

[6]                 You admitted to the police that you attacked Mr Nguyen. You told  the officer that you wanted to kill him. The only reason you were unable to carry out your intention was because the shank broke. You told the officer, as you have told the health professionals, that you hate Asians and you were disappointed that the shank broke. You said that if that had not happened, you would have continued on until Mr Nguyen himself ‘had stopped moving’.

[7]                 Mr Tucker has emphasised your explanation that  you  were  provoked  by Mr Nguyen’s words to the effect of ‘wait until the morning’. You say you construed them as evidence of his intention to attack you the next day. Whether or not they were spoken is irrelevant. What is relevant is that I have no doubt that this attack  was unprovoked and was motivated solely, as Mr Raftery has said, by your deeply held belief that people of Asian or other ethnic origins are inferior. Everything suggests that you have and apply a race based belief system.

Finite Term

[8]                 I intend to approach your sentence, as I must by law, by comparing the term that would be available on a fixed or finite basis with the option of preventive detention. As I have said, the maximum fixed term available is 14 years. I am familiar with the leading cases in this area. I must first fix a notional starting point  by reference solely to the circumstances of your offending. In one sense, the crime was at the lower end of the scale for attempted murder. That is due to two factors: one is that it was committed with a weapon which, while specifically designed for the task, was unlikely to be sufficient or adequate to carry it out; the other is, as I have already remarked, most fortunately for you, Mr Nguyen did not suffer any serious or permanent injuries.

[9]                 However, there are a number of aggravating features of which you are aware, Mr Johansen. First, it was a brutal attack on a defenceless person, involving actual violence and the actual use of a weapon within the prison confines. Second, there was your unlawful presence in Mr Nguyen’s cell. Third, the crime was carefully premeditated and thought out, and was carried out with an absolute intention to kill, frustrated only by the defective or inadequate weapon. Taken in combination, these features would justify a starting point of eight years imprisonment.

[10]              However, there are a number of further aggravating factors personal to you. First, and foremost, as Mr Raftery has emphasised, you have previous convictions for extreme violence, principally murder. You were just over four years through serving your term of life imprisonment. Second, there is, as I have remarked, your motivation to commit a crime borne of your hatred of Asian people. Third, there is the impact on your victim. Mr Raftery has tendered a copy of his statement this morning. Mr Nguyen makes the point that it is hard enough as it is to serve a prison sentence without the fear that a fellow inmate would attempt to kill you. When these features are taken into account, the appropriate starting point would be 10 years. Included within them, of course, are the overriding deterrent purposes of punishment for serious offending within a prison and denunciation of your crime. However,  your plea of guilty would justify a decrease to seven and a half years. A minimum term would be imposed.

Preventive Detention

[11]              I now consider the alternative of preventive detention. Both Mr Raftery and Mr Tucker accept my jurisdiction to impose such a term, confirmed by the decision of the Court of Appeal in R v Mackrell (1998) 16 CRNZ 1. There is a legislative  sign that the sentence might not be available. I have discussed it with counsel this morning. It arises from the unusual feature, identified by Mr Tucker in his submissions, of the exclusion of murder as a qualifying offence for imposing a term of preventive detention. On its face it might suggest that the sentence is  not available here. However, on reflection, I am satisfied that the exclusion reflects two factors. First, it confirms that the power to impose the term is unavailable for

murder which normally attracts a term of life imprisonment. Second, the exclusion may be attributable to the eligibility for recall of a person who offends while released on parole for serving a term of life imprisonment for murder. Accordingly, I proceed on the basis I have jurisdiction.

[12]              In contrast to a fixed term, as you know, a sentence of preventive detention is indeterminate. You will not be released, if that sentence is imposed, until such time as the Parole Board is satisfied that you no longer pose a significant ongoing risk to the safety of our society. The purpose of the sentence is to protect the community from those who pose that risk. It is not designed to punish, Mr Johansen.

[13]              In order to impose a sentence of preventive detention, I must be satisfied that three qualifying factors exist. Three is no doubt that the first two are present. You  are of sufficient age and the crime of attempted murder is a qualifying offence. The answer to the third question – whether or not you are likely to commit another qualifying violent offence upon release at the expiry date of any finite sentence I am able to impose for attempted murder – will determine whether or not I sentence you to preventive detention. In answering this question I am directed by law to take account of five factors. I shall deal with each of them separately.

(1)        Pattern of serious offending

[14]              The first factor I must consider is any pattern of serious offending disclosed by your history.

[15]              I have already referred to the fact that at 16 years of age you were sentenced to a term of life imprisonment for murder with a 13 year minimum non parole period. Unfortunately the sentencing notes are not available. I can only proceed on the summary of facts presented to the Court. At the time you were working as a labourer or at least staying on a farm at Hukerenui, north of Whangarei. You were with sharemilkers who employed the victim. He lived in a sleep-out on the farm. You knew him but had never been inside his dwelling.

[16]              One day you broke into his sleep-out. There you found a shotgun and ammunition. You loaded the shotgun before going to an area nearby and test firing  it. You reloaded it and returned to the sleep-out. You waited for your  victim.  During the day you had been using a dictaphone to record your movements and intentions, including your intention to kill.

[17]              You waited in the bedroom of the sleep-out. When your victim returned and entered the bedroom, you shot him in the head at close range. You say that there  was an intervening period of some minutes while you argued. That may be true. But the irrefutable fact is that you shot him effectively in cold blood.

[18]              You have never expressed any remorse for your action. You have justified it on the basis that your victim had stolen goods from your brother, and that you broke into the sleep-out to recover them. As I have said, your account is that there was an argument between the two of you. Even on your explanation, you said that ended it because it was not worth continuing. The only redeeming feature is your observation that your victim did not have a dependant or family.

[19]              I regret to say, Mr Johansen, that the circumstances of that crime, coupled with the crime for which you appear today, suggest you place little if any value on human life, especially where you perceive the existence of a grudge or verbal provocation by another party.

(2)        Community harm

[20]              The second factor is the seriousness of the harm caused to the community by your offending. You know that the crime of intentionally taking another person’s  life is the most serious that can be committed in our society. It is reflected in the almost mandatory direction to impose a term of life imprisonment. At one level an attempt to murder is just as bad. The intention is the same but it attracts a lesser penalty because the result is different. Every community, Mr Johansen, suffers a severe loss when the life of one of its members is deliberately taken. The victim is left to suffer the harm when he or she survives an attempt to murder.

(3)        Future criminality

[21]              The third factor I must take into account is information indicating a tendency to commit serious crimes in the future. Apart from the pattern of your offending, I have the benefit of reports prepared by a consultant psychiatrist, Dr Himadri Seth, and a consultant psychologist, Dr Sabine Visser. Both of them interviewed you at length.

[22]              The reports are  comprehensive.  But  they  make  depressing reading.  As  Mr Raftery said, Dr Seth’s report can  be  characterised  as  less  pessimistic  than  Dr Visser’s. Your life has been characterised by violence from an early age.  You  are the youngest of three children from a broken home. Your parents separated  when you were young. Your mother later remarried. You and your stepfather had, I understand, an erratic relationship – sometimes good, sometimes bad. Your biological father left your life many years ago.

[23]              Apart from one grandmother, your mother appears to be the only person with whom you have ever enjoyed a close emotional relationship or friendship. But that was placed under pressure by the violence of your teenage years, and destroyed apparently by your conviction for murder in 2000. Since then your mother and stepfather have shifted to Australia. You say you no longer keep in contact and do not care about that. Fortunately you remain in contact with your eldest brother.

[24]              You have no formal educational qualifications. You would have nothing to come to on release. I accept, though, Mr Johansen, in your favour that you are able  to apply yourself diligently to manual labour where required. It is clear that you  have enjoyed working in a farm environment and you have been prepared to rise early and commit yourself to your employment when required. You are also a loner; you described yourself to Dr Visser as having many associates but very few friends. Those who appear most important to you are a group of so-called skinheads who may share your views on racial issues. You had one girlfriend or partner in your teenage years. There is a child of your relationship. However, the mother and the child now live in Australia and you have no contact with them. You have been a substance and alcohol abuser.

[25]              Dr Visser has carried out a clinically based assessment of your risk for violence. The results provide objective confirmation of what is obvious to me. I do not condemn you for this, Mr Johansen, or purport to sit in judgment of it. But you have little if any insight into your violence and offending. You maintain a consistently negative attitude towards authority. You are impulsive and irrationally or randomly violent, often extremely so. In general terms, you have no ability to empathise with or relate to others, except at a very superficial level. You are unable to understand the terrible harm you have caused and that you are likely to cause to others in the future. You lack the motivation and ability to manage your own risk.

[26]              Mr Raftery has justifiably emphasised the circumstances of both offences as of themselves providing evidence of the overwhelming risk that you will re-offend. He has referred to two violent episodes which he describes as graphic punctuation marks in your life. I agree with him. I agree also with Dr Seth and Dr Visser. I am satisfied that you will continue to commit serious crimes of violence for as long as you are physically able, unless, as Dr Visser has said, you undergo fundamental changes. The risk you pose is heightened by your racist belief system.

(4)        Efforts to address causes

[27]              The fourth factor is the absence or failure of efforts by you to address the cause or causes of your offending.

[28]              I accept, Mr Johansen, that while in prison you have made efforts to confront your violence. Significantly, while you were receiving one-to-one, individual counselling from a psychologist in prison your offending dropped off. You know there was an improvement in your behaviour and your approach to and relationship with others. Unfortunately the therapy came to an end after about seven months when you were transferred to another prison. You then forgot or ignored all the  skills you had learned about anger control and you reverted to your violent past.  You have had no further assistance.

[29]              I accept, Mr Johansen, that your willingness to participate in a course of psychological therapy is positive. It shows that under your aggressive and unco-

operative exterior you know that you suffer and will continue to suffer from deep- seated social and personality disorders. I have no doubt, as I remarked to Mr Tucker before, that you, like all other members of society, would like to live in freedom, as a contributing member despite your assertions or statements to the health professionals that you do not care about being locked up indefinitely in prison. You are still only 23 years of age. There is time to change. But to change you to the point where you would be fit to resume a life of freedom would require both an enormous commitment of professional resources from the authorities and your own commitment to leading a different life. Presently those resources are unavailable in the system. I regret having to observe that at this stage the odds are stacked heavily against you.

(5)        Alternative of finite term

[30]              The fifth and final factor, Mr Johansen, is the principle that a lengthy determinate sentence alternative to preventive detention might provide adequate protection to society. If I sentenced you to a term of, say, seven and a half years imprisonment, you would be technically eligible for parole within one third (of course you would not be considered, because you still have many years left to serve of your minimum non parole term of life imprisonment). Whatever is the case, on  all the evidence I am independently satisfied that you will remain a real, long term risk to society whether in three years time or seven and a half years time.

[31]              I have a discretion about whether or not to impose a term of preventive detention. I am satisfied that you are likely to commit another violent offence on release at the expiry date of a sentence of imprisonment for attempted murder. In my judgment, the statutory requirements overwhelmingly favour preventive detention over a fixed term. I would only decline to impose it if I thought it was of academic importance given that you are presently serving a term of life imprisonment. On  both that sentence and preventive detention you will remain on parole for the rest of your life, regardless of when you may be released. In that sense there is no  difference between the two.

[32]              However, I am satisfied that a sentence of preventive detention will serve a real purpose. It will mark to the prison authorities and the Parole Board my view, supported by expert advice, that in 2005 you pose the same, if not a greater, risk to society as you presented when you were sentenced to life imprisonment in 2000.  Age has not changed you. Nor have you taken any effective steps to deal with the deep-seated disorders from which you suffer. The Parole Board will have  to consider this state of affairs with critical care when it eventually considers your application for release. I am satisfied that the imposition of a term of preventive detention will be of more influence or relevance to the Board or its successor than imposition of a finite term which as, Mr Raftery said, will simply be swallowed up by your term of life imprisonment.

[33]              Accordingly, I sentence you to a term of preventive detention on the charge of attempted murder.

Minimum Term

[34]              I have to consider one other issue. I am bound by law to sentence you to a minimum term of imprisonment of not less than five years. It must be the longer of that required to reflect either the gravity of the offence, or that required for the purposes of community safety in the light of your age and the risk you pose.

[35]              I do not need to repeat what I have said before. The minimum term that you would serve in order to satisfy the purposes of punishment, deterrence and denunciation, for this particular crime, is five years. However, Mr Johansen, this is one of those rare cases where that term is quite inadequate for the alternative purpose of the safety of the community, both in light of your age and the risk you pose.

[36]              I am conscious that Mr Raftery has submitted that any minimum term under eight years would be ineffective because again it would be swallowed up by your existing non parole period. I am not influenced by that submission in fixing the minimum term. I am influenced solely by the statutory requirement based upon the purposes of the safety of the community.

[37]              In my judgment a minimum of 10 years is necessary, even allowing for your plea of guilty. A top-up above the baseline is inevitable. Accordingly, I order you to serve a minimum term of 10 years imprisonment. Please stand down, Mr Johansen.

Rhys Harrison J