R v Kite
[2018] NZHC 409
•9 March 2018
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2016-004-006518
[2018] NZHC 409
THE QUEEN v
JOSHUA MASON KITE
Hearing: 9 March 2018 Appearances:
H Steele for the Crown
A Cresswell for the Defendant
Sentence:
9 March 2018
SENTENCING NOTES OF HINTON J
Counsel/Solicitors:
Meredith Connell, Auckland
Annabel Cresswell, Barrister, Auckland
R v JOSHUA MASON KITE [2018] NZHC 409 [9 March 2018]
[1] Mr Kite, you appear before me today for sentencing on a number of charges relating to offending in Auckland and Whangarei.
[2] On 22 November 2017, Moore J directed that the Whangarei charges be transferred to be sentenced together with the Auckland charges.
Offences
[3] You have pleaded guilty to one charge of possession of methamphetamine for supply under s 6(1)(f) and 6(2)(a) of the Misuse of Drugs Act 1975, for which the maximum penalty is life imprisonment. You pleaded guilty to that charge in the Auckland High Court on 6 October 2017.
[4] You also pleaded guilty to the following charges in the Whangarei District Court on 17 November 2017, two charges of failing to stop for red and blue lights under ss 52 and 114 of the Land Transport Act 1998; one charge of dangerous driving under s 35(1)(b) of the Land Transport Act 1998; one charge of using a firearm against a constable under s 198A(1) of the Crimes Act 1961; two charges of unlawfully taking a motor vehicle under s 226(1) of the Crimes Act 1961; one charge of impersonating Police under s 48(3) of the Policing Act 2008; and one charge of carrying a firearm, except for a lawful, proper and sufficient purpose under s 45(1) of the Arms Act 1983.
Facts in relation to Auckland offending
[5] On 18 May 2015, you were released on parole from Rimutaka Prison where you were serving a sentence of 11 years and eight months’ imprisonment for three offences of aggravated robbery and nine offences of using a document for a pecuniary advantage.
[6] On 8 June 2016, a search warrant was executed by Police at your home address, 55 Boundary Road, Clover Park, Auckland.
[7] In your bedroom, Police found four snap-lock bags containing methamphetamine, weighing a total of 93 grams and $40,900 cash, found mainly in a boot bag.
[8]At the time, you were still subject to parole for your earlier offending.
[9] As a result of what was uncovered at your home, a parole recall warrant was issued on the same day.
Facts in relation to Whangarei offending
[10] In the early hours of 26 August 2016, at about 12.45 am, you were travelling south on Western Hills Drive, Whangarei, in a Subaru Legacy.
[11] You stopped at the bequest of Constable Morris, who was working alone, after you became aware of the red and blue flashing lights and sirens directing you to pull over. When asked by Constable Morris for your details, you replied that your name was “Jamahl Beattie”.
[12] You were asked for your driver’s licence, to which you responded that you did not have a driver’s licence on you as you were disqualified from driving. The officer requested you exit the vehicle. You did not obey this request.
[13] You performed a U-turn, drove over the median barrier and headed north on Western Hills Drive at speed, reaching in excess of 140 kilometres per hour in a 50 kilometre per hour zone.
[14] You turned left onto Kamo Road and sped towards Great North Road, again reaching speeds in excess of 140 kilometres per hour. You drove straight through the roundabout connecting Kamo and Great North Roads and performed another U-turn near Winger Crescent.
[15] You sped back along Kamo Road, travelling through the intersection with Western Hills Drive at about 100 kilometres per hour, and continued on Kamo Road. You subsequently failed to negotiate a corner, losing control of the vehicle in which you were attempting to evade Police. You hit a kerb, the vehicle became airborne, hit a rail crossing sign and spun around sideways. At this point the vehicle was no longer driveable and you were in need of an alternative mode of transport.
[16] An additional Police vehicle had joined the pursuit. Constables Miller and Dyke parked approximately 15 metres away from the immobile Subaru. Constable Morris parked approximately three metres away.
[17]All three officers exited their vehicles and made an approach towards you.
[18] You exited the vehicle. In your hands, you held a blanket. The blanket fell away to reveal a rifle, which you pointed towards the Constables.
[19] You told Constables Morris, Miller and Dyke, on no uncertain terms, to “leave me the fuck alone” and to “back the fuck off”. Understandably, all three officers fearing for their lives began their retreat.
[20] You pointed the barrel of the rifle directly at Constable Morris. He sought cover behind his vehicle. Presumably he did not find the refuge he sought, as he then threw up his hands in the air and sprinted away from you.
[21] As Constable Morris fled, you kept him in your sights, took aim and fired twice. It is with great relief that I can recount that neither Constable Morris, or any other person, was injured by your actions.
[22] You then commandeered the unmarked Police vehicle, which Constable Morris had been driving. The vehicle was a Holden Commodore. You kept the rifle by your side and drove south along Kamo Road.
[23] You drove to Otaika Road. Once there, you encountered a silver Audi A4, driven by the victim, Lacey Halford alongside her passenger, Clinton Hofmann. You switched on the red and blue flashing lights and deployed the siren. Ignorant to your ruse, Ms Halford pulled over to the side of the road.
[24] You approached the vehicle, clutching your rifle and directed Ms Halford and Mr Hofmann to exit the vehicle, which they did. With your rifle at your side, you entered through the driver’s side door, sat in front of the steering wheel and resumed your flight.
[25] You continued to head south along Otaika Road in the silver Audi. A Police unit observed the vehicle travelling south along State Highway One and for the
second time that night, a high-speed pursuit ensued. It did not last long. Due to the excessive speed and manner in which you were driving, the Police lost sight of you in the Brynderwyn Hills.
[26] The silver Audi was spotted travelling west on State Highway 12. Again, Police were unable to keep up with it.
[27] You arrived in Maungaturoto and turned left onto Bickerstaffe Road. You entered the carpark of the Scout hut, parking the vehicle behind the building and out of sight.
[28] Ditching the vehicle and still clutching your rifle, you ran across the neighbouring farmland, in bare feet, and made your way back onto Bickerstaffe Road. You spotted a driveway, which led you to a property with three dwellings. Each dwelling was occupied.
[29] The door to the first dwelling was unlocked. You entered. The sole occupant of this dwelling was an elderly woman. She awoke to find you standing over her with your rifle in your hands. When you demanded to be driven to Dargaville, the response you received was that she did not have a vehicle.
[30] Dismayed, but not defeated, you walked to the second dwelling. Still armed with your rifle, you entered the second dwelling through an unlocked door. Inside asleep was Jahkayla Morunga, Michael Mills and their 17-month-old son.
[31] When you woke them, you were still clutching your rifle. You made the same demand to be driven to Dargaville.
[32] You and Mr Michael Mills departed briefly in his Subaru. He asked you several times to get out of the vehicle. Each time you replied “no.” The fuel light was on and you conceded the vehicle would not make it to Dargaville. The two of you returned to the property at Bickerstaffe Road.
[33] You entered the flat still in possession of your rifle. You had been bleeding from your feet and cleaned yourself up. But you had no intention of giving up, stating to Mr Mills and Ms Morunga, “We need to get out of here.” Around this time the
silver Audi was located, the Armed Offenders squad were on Bickerstaffe Road and a Police helicopter was providing aerial support.
[34] All three of you got into the vehicle. You instructed them to drive you to Auckland. When they replied that the car had insufficient gas for such a trip, you told them to take you to Mangawhai instead.
[35] Driving along State Highway 12, you arrived at a Police checkpoint which had been set up to contain your movements. The rifle was hidden under a blanket on your lap. All occupants of the vehicle were asked for their details to which you replied “Jimmy Kite”. The officer, being of the opinion that you did not match the description of the offender, allowed the vehicle to depart the checkpoint, with you sitting in the backseat.
[36] You were driven to your brother’s residence at Mangawhai, after a vehicle change at Kaiwaka, after which your brother drove you to Auckland.
[37] You were arrested on 1 September after the Armed Offenders’ Squad cordoned off an area around a residence you were staying at in Manurewa. You made an attempt at escape, but were incapacitated by a sponge round and a taser, and subsequently arrested.
Victim impact statements
[38] Victim impact statements for Ms Halford, and Constables Miller, Dyke and Morris were prepared.
[39] Ms Halford describes becoming scared and freaked out. She had never seen a firearm in her life and considered it possible she would be shot. She says that her car was returned damaged to her, with a significant amount of money missing. She says she cannot afford to fix the vehicle.
[40] Constable Miller describes fearing for the lives of his colleagues and himself when he saw you with the rifle. His sleep suffered for a short period of time and upon returning to work, he experienced some anxiety when pulling vehicles over.
[41] Constable Dyke describes that at the time she genuinely feared for the lives of her colleagues and herself. The incident also affected her family. Constable Dyke has an eight-month-old baby. Her husband became particularly stressed and anxious about the dangers her job posed.
[42] Constable Morris describes that in the aftermath of the rifle going off, he was really scared and fearing for his life. He was not sure at the time whether he had been shot. The incident and his reaction to it affected him for months. He kept “replaying” the incident over in his head, wondering if he could have done anything differently. When he works alone now he experiences some anxiety.
Personal circumstances
Previous convictions
[43]Your previous convictions include:
a. Three offences of aggravated robbery, which you committed on 4 September 2006, 14 September 2006, and 20 November 2006, for which you were sentenced to 10 years’ imprisonment on each charge, to be served concurrently.
b. An offence of obtaining a document for pecuniary advantage, which you committed on 18 July 2006, for which you were sentenced on 31 August 2007 to one year imprisonment, to be served cumulatively with the charges of aggravated robbery.
c. An offence of escaping lawful custody, which you committed on 17 January 2007, for which you were sentenced on 23 February 2007 to eight months’ imprisonment.
d. An additional nine offences of obtaining a document for pecuniary advantage, which you committed on 1 July 2006, for which you were sentenced on 23 February 2007 to one year imprisonment on every charge, to be served concurrently with one another, but cumulatively with the charge of escaping lawful custody.
e. An offence of common assault, which you committed on 3 May 2006, for which you were sentenced on 11 July 2006 to a fine.
f. An offence of threatening behaviour, which you committed on 3 April 2005, for which you were sentenced on 5 May 2005 to one year of supervision.
g. An offence of common assault, which you committed on 3 April 2005, for which you were sentenced on 5 May 2005 to one year of supervision.
h. An offence of wilful damage on 3 April 2005, for which you were convicted and discharged.
i. An offence of aggravated robbery, which you committed on 21 November 2001, for which you were sentenced on 1 March 2002 to a sentence of two years’ imprisonment.
Pre-sentence report
[44] Mr Kite, unlike many offenders who appear before this Court for sentencing, you did not report to Corrections that you had a troubled upbringing. Although your parents separated when you were young, you were brought up by your mother in a supportive household and it is clear that your family, who are here for you now, will be there for you upon your release. You have three children, although the lengthy periods you have spent in prison have prevented you from being a close part of their growing up. You said you were determined to stay out of prison on your release in 2015 for the sake of your children and your family. You managed that for about a year and then blew it in a spectacular and shocking fashion.
Purposes and Principles of Sentencing
Relevant Purposes of Sentencing (s 7 Sentencing Act 2002)
[45]I consider that the purposes of sentence that are relevant to you are:
· Accountability for the harm done to the victims and the community (s 7(1)(a)).
· Responsibility for, and acknowledgement of, that harm (s 7(1)(b)).
· Denunciation (s 7(1)(e)).
· Deterrence (s 7(1)(f)).
· Protection of the community (s 7(1)(g)).
· Rehabilitation and reintegration (s 7(1)(h)).
Relevant Principles of Sentencing (s 8 Sentencing Act 2002)
[46] The principles of sentencing that are relevant are to take into account the gravity of the offending, including the degree of your culpability (s 8(a)), and the seriousness of the type of offence (s 8(b)). It is also important to adopt a sentence that is consistent with appropriate sentencing levels (s 8(e)).
Aggravating and Mitigating Factors (s 9 Sentencing Act 2002)
Aggravating Factors of the Offending
[47]The following aggravating factors of the offending are particularly relevant:
· Actual or threatened violence and use of a weapon (s 9(1)(a)).
· The extent of any resulting loss, damage, or harm (s 9(1)(d)).
· The fact that your victims included Police constables.
Aggravating Factors relating to the Offender
[48]Aggravating factors relating to you are that:
· The offence was committed while you were still subject to a sentence (s 9(1)(c)).
· Your prior convictions (s 9(1)(j)).
Mitigating Factors relating to the Offender
[49] I consider the mitigating factors relating to you are time served while you would otherwise have been on remand, remorse, and your guilty pleas.
Submissions
Crown Submissions
[50] The Crown Solicitor in Auckland and the Crown Solicitor in Whangarei have provided separate submissions in relation to the Auckland charges and the Whangarei charges.
Crown for Auckland Offending
[51] The Crown submits the appropriate starting point for the Auckland offending, which is the drug offending, is five years. No uplift is sought for aggravating factors relating to you.
[52] The Crown notes a guilty plea was entered more than one year after the arrest and says that the discount should be not more than 10 to 15 per cent.
Crown for Whangarei Offending
[53] The Crown submits that the Whangarei offending should be separated into three groups of offending. The first group encompasses failing to stop for red and blue lights, dangerous driving, using a firearm against Police and unlawfully taking a motor vehicle. For this set of charges, the Crown seeks a starting point of nine years and two months’ imprisonment.
[54] The second group of offending encompasses impersonating a Police officer, unlawfully taking a motor vehicle and failing to stop for red and blue lights. For this set of charges, the Crown seeks a starting point of two years’ imprisonment, to be served cumulatively.
[55] The third is a stand-alone charge of carrying a firearm for an unlawful purpose. For this charge, the Crown seeks a sentence of 18 months’ imprisonment, to be served concurrently.
[56]An uplift of at least a year for previous convictions is sought.
[57]The Crown accepts that a guilty plea reduction is available.
[58]It seeks a minimum period of imprisonment.
[59]It seeks destruction of the firearm and ammunition.
[60]A first strike warning is required.
[61]The Crown seeks a disqualification from driving of at least 18 months.
[62] Preventive detention is raised as a possible sentence, but Mr Steele acknowledges the reports may not be strong enough in this regard.1
Offender’s Submissions
[63] I now turn to the submissions for defence counsel. Ms Cresswell submits that four-and-a-half to five years’ imprisonment is an appropriate starting point for the Auckland offending. She says that an uplift of four years’ imprisonment should be made for the Whangarei offending and a further uplift of one year, to reflect the totality of the offending.
[64] She suggests that aggravating and mitigating factors relevant to you cancel each other out.
[65]She says that a full 25 percent discount for the guilty plea is appropriate.
[66] She says that a minimum period of imprisonment is accepted as inevitable, but that it should not be more than half the sentence.
[67]She submits that preventive detention is not appropriate.
Sentencing approach
Auckland Offending
[68] I first deal with the Auckland offending, that is the drug charge. In doing so, I reject the submission of the defence that the methamphetamine charge should be adopted as the lead offence and the Whangarei offending treated as aggravating factors and attracting concurrent sentences.
1 Prosecution counsel was to be Mr Smith, but he became ill en route to Auckland and Mr Steele stepped in at short notice.
[69] The drug offending in Auckland and the offending in Whangarei are quite clearly “different in kind”.2 Moreover, I struggle to accept that they are part of a connected series of offences.3 The drug offending might have given motivation to you to flee Auckland, but it did not precipitate your offending in Whangarei. There was a clear separation in time between the Auckland and Whangarei offending as well.4 So I intend to treat the Auckland and Whangarei offending separately and impose cumulative sentences.
[70] R v Fatu is authority for sentencing in relation to possession for supply of methamphetamine.5 Mr Kite, your offending sits within band two, as set out in the Court of Appeal’s judgment.6 That band captures possession for supply of commercial quantities between 5 grams and 250 grams. The appropriate starting point within that band varies from three to nine years’ imprisonment. Your offending involved 93 grams.
[71] I accept that an appropriate starting point is five years. The considerable quantity of methamphetamine, in zip-lock bags, together with $40,900 in cash, strongly suggests commerciality and the intended sale and supply of methamphetamine for personal gain.
[72] I then have to consider the guilty plea discount. The drug offending occurred on 8 June 2016. You were arrested on 1 September 2016. You did not enter a guilty plea in relation to the drug offending until 6 October 2017. I note that on 3 May 2017, a related charge of receiving was withdrawn against you. On 20 June 2017, Moore J delivered a judgment confirming that the surveillance device warrant and search warrant were both validly issued against you. Three-and-a-half months later you entered your plea. I also note that you were seeking a sentence indication from the District Court in Whangarei, which was declined on 21 September 2017.
[73] The purpose of a guilty plea reduction is to facilitate the efficient operation of the justice system. A full 25 per cent reduction is appropriate where the guilty plea is
2 Sentencing Act 2002, s 84(1).
3 Sentencing Act 2002, s 84(2).
4 Sentencing Act 2002, s 84(3)(a).
5 R v Fatu 22 CRNZ 410.
6 At [34].
entered at the first reasonable opportunity.7 Where the prosecution case against the defendant is strong, a full reduction is not appropriate.8 I consider it was acceptable for you to refrain from entering a guilty plea until after the charges against you had been finalised. Even though it resulted in additional expense and time, I also consider it reasonable that you refrained from entering a guilty plea until after the matter before Moore J had been determined.
[74] Three-and-a-half months still represents some delay, but it is not too great considering the proposal for the Auckland and Whangarei matters to be combined for sentencing and the fact that a sentence indication decision was still to be delivered for the Whangarei offending.
[75] In all of the circumstances of this case, I have decided to err on the side of generosity and allow a reduction of 20 per cent.
[76]The sentence for the Auckland offending is therefore four years’ imprisonment.
Whangarei Offending
[77]I will now deal with the Whangarei offending.
[78] I have decided against the approach of the Crown of separating out the offending into three separate groups. I find that difficult to work with. I consider that all the Whangarei offending is part of an interconnected series of events. The initial high pursuit chase led to you threatening and shooting at the Police, which enabled you to steal the Police vehicle. That theft then enabled you to steal the silver Audi and engage in another high-speed chase.
[79] I therefore propose to adopt the charge of using a firearm against the Police as the lead charge. I will take the other offending into account when uplifting the sentence and assessing totality.
7 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [75].
8 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [74].
Setting a Starting Point
[80] Counsel for the defence suggests that a starting point of six years is appropriate for the lead offending of using a firearm against a Police officer. The Crown contends a starting point of around eight years is appropriate.
[81] There is no tariff judgment for this type of offending, but counsel have directed my attention to a number of cases which I do consider provide assistance.
[82] In R v Samuels, the defendant and his accomplice were being pursued by Police in a lengthy high-speed chase, during which the defendant fired four shots with a
.22 rifle at the pursuing Police vehicles.9 At the end of the chase he emerged from the
vehicle with his finger on the trigger, raised the rifle and aimed directly at a constable. A starting point of 12 years was upheld on appeal, the Court of Appeal holding that the offending was “near to the most serious of its type”.10
[83] In R v Wells, the defendant, while fleeing from Police, wound down his window and fired two shots backwards at Police vehicles that were pursuing him, with a .22 sawn-off rifle.11 Harrison J noted that the offending was at least reckless, if not well planned, but that serious injury or death could have resulted if the Police or their vehicles were hit.12 A starting point of six years was adopted.13
[84] In R v Eddington, the defendant pulled over to confront Police officers who were tailing him, after he had committed an armed robbery at a service station.14 He presented his weapon to them and discharged a shot at the Police before fleeing. Dunningham J noted that the need to promote deterrence results in the Courts taking a firm approach against such offending.15 Her Honour did not treat the offending as the lead offending, but imposed a sentence of six years for the using a firearm charge, after having deducted 25 per cent for a guilty plea.16 Therefore, the starting point would have been approximately eight years.
9 R v Samuels [2009[ NZCA 153.
10 At [15].
11 R v Wells HC Auckland CRI-2003-092-026964, 30 April 2004.
12 At [10].
13 At [12].
14 R v Eddington [2016] NZHC 434.
15 At [27].
16 At [58].
[85] I do not find R v Smith to be very helpful in determining a starting point.17 In that case the offender, who was holed up in his room, fired multiple shots at Police, hitting one Police officer in the jaw, another in the thigh, and pointed his rifle at another two officers. Whata J adopted the attempted murder charge as the lead offence and directed the majority of the analysis towards that charge. For the charge of using a firearm against Police, the starting point was 10 years.18 This seems incongruent with Samuels, where a starting point two years higher was adopted, despite no Police actually being injured, let alone severely.
[86] In R v Collier, the Court of Appeal allowed an appeal against an end sentence of eight years for discharge of a rifle towards a Police officer, reducing the sentence to six years.19 The case is of little utility, as it does not adopt a starting point in determining the end sentence.
[87] I agree with the Crown that the offending in this case is not as egregious as in Samuels, and certainly not as in Smith, but is of a greater magnitude than in Wells. In the present case, the Police did not have weapons drawn and they began to retreat the moment they became aware of yours. On the facts I have before me, Mr Kite, you aimed your rifle at a fleeing Policeman and fired twice. Your counsel says you were firing warning shots, rather than with an intent to injure the Police. They were cowardly warning shots, if that was so, because the Policeman was fleeing.
[88] I have decided to adopt a starting point of eight years for the charge of using a firearm against a Police officer, that is a mid-point between the cases of Samuels and Wells.
Adjusting the Starting Point
[89]I would allow an uplift of two years for the remainder of the offending.
[90] Counsel for the defence suggested that an uplift of 12 months was sufficient for the remainder of the charges, as those charges are relatively minor, she says. I cannot accept that. The firearm was present during both instances of taking a vehicle,
17 R v Smith HC Christchurch CRI-2010-009-10435, 4 November 2011.
18 At [60].
19 R v Collier CA27/92 14 May 1992.
although I will not consider it in relation to the taking of the Police vehicle, as it was implicitly considered in the lead offending. Two vehicles were unlawfully taken by you. Moreover, the offending was all committed in a concerted effort to evade Police and placed both members of the Police and the general public at significant risk of harm.
[91] The Crown suggests an increase of 12 months for unlawfully taking the officer’s vehicle is appropriate, given its importance to the theft of the Silver Audi and the impersonating an officer charge. I would prefer to consider the other offences individually when considering uplifts, to ensure there is no double counting. I would allow six months, as the vehicle was worth roughly $50,000.
[92] An uplift of four months seems appropriate for the charge of impersonating a Police officer, considering the deception enabled you to continue your offending spree and evade Police.
[93] I would add another uplift of 12 months for unlawfully taking the Silver Audi, considering that you were holding the rifle in your hands at the time, which would have been extremely intimidating for the occupants of the vehicle.
[94] Finally, an uplift of two months seems appropriate for the charge of dangerous driving, considering the speeds at which you were travelling in a 50 kilometre per hour zone and the clear danger this posed to the Police officers pursuing you and the general public.
[95] I consider an uplift for the charge of possession of a firearm may lead to double counting, since it is implicit in the lead charge and is an aggravating factor in the other charges.
[96]That brings me to an end starting point of 11 years.
Personal Aggravating and Mitigating Factors
[97] I now move to consider the aggravating and mitigating factors personal to you, Mr Kite.
[98] Your counsel and the Crown are in agreement that a total uplift of 12 months is appropriate in all the circumstances in terms of the aggravating features. You have four previous convictions for aggravated robbery, which I consider relevant since they are offences involving violence, or being armed with offensive weapons. This shows a propensity on your part to use violence or weapons in the commission of offences. An uplift is necessary to deter you from violent offending in the future. I uplift the sentence by nine months, for your previous convictions. You were on parole at the time of the offending and still subject to a sentence. This shows you have little regard for the criminal justice system. I uplift your sentence by three months.
[99] The sentence, after taking into account aggravating factors, is therefore 11 years’ imprisonment.
[100]I turn now to mitigating factors relevant to you, Mr Kite.
[101] Your counsel seeks a reduction in sentence for the time you spent in custody between the date of recall under your previous sentence and the date at which you were subject to remand for the current offending. That is because such an amount of time is excluded from the definition of pre-sentence detention under s 91(6) of the Parole Act 2002, and will not be taken into consideration by Corrections when determining your end sentence. According to Court of Appeal authority, the amount of time spent in custody for recall is punishment for the present offending and regard may be had to it in deducting from the appropriate sentence.20
[102] Counsel agree that the total period at issue here is 18 months. If you were not recalled, you would have served 18 months of your sentence already. I have decided to allow a discount of 14 months on this account.
[103] Your counsel also seeks a reduction for remorse and for the adverse effects of delay caused by the failure of the prosecutor, according to her, to comply with procedural requirements in terms of the seeking of preventive detention.
[104] I must say it was surprising that there were no Crown submissions before me on preventive detention, although it appeared that preventive detention was being sought. Ms Cresswell notes that the Crown position on preventive detention was
20 Tukuafu v R [2015] NZCA 251 at [12]-[13].
therefore uncertain. Because the Crown had not made its position clear, nor directed attention towards it in written submissions, Ms Cresswell has been unable to consider the matter in depth prior to the filing of defence submissions.
[105] I can appreciate the effect such uncertainty can have on a defendant when faced with a potential sentence of preventive detention. Your counsel suggests the uncertainty has caused you to show symptoms of depression. However, I do not consider that the failure of the prosecution to file submissions outlining their position on preventive detention has resulted in a delay in the disposition of the proceedings. Nor do I consider such an argument can prevail on facts like this, which clearly raise the prospect of preventive detention.
[106] I have decided that there is sufficient information before me to determine your remorse. The reports do refer to your remorse and the report commissioned by your counsel says that your remorse appears genuine. I am also influenced here by the letters from your family members as to how sorry they are for what you have done and that they know you are also. I take into account also the comments you have made to me this morning, which I accept are genuine.
[107]I have decided to allow a reduction for remorse of six months.
[108] That leaves only the reduction for the guilty plea. I accept that once the charges were finalised with the dropping of the kidnapping charges, you entered a guilty plea immediately. Presumably, since the Crown dropped the kidnapping charges in exchange for the guilty plea, they were not confident they could succeed on those charges. The case against you on the other charges, however, was strong, which in line with Hessell v R, suggests that a full guilty plea discount should not be available.21
[109] Taking those matters into consideration, I would allow a reduction of 20 per cent.
[110] That brings me to an end sentence of seven years, six months’ imprisonment. That sentence is to be served cumulatively with the sentence of four years’ imprisonment for the Auckland offending.
21 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [74].
Minimum period of Imprisonment
[111] A minimum period of imprisonment is necessary. The purposes which I consider most important in imposing such a minimum period of imprisonment are that it will deter you from committing the same offence and protect the community from your offending. I do not consider that the minimum period of imprisonment should be more than half the total period to which you are sentenced. I impose a minimum period of imprisonment on the charge of using a firearm against a constable of 50 per cent of that sentence which is three years, nine months.
[112] A mandatory period of disqualification from driving is required. That is three months for both charges of failing to stop for red and blue lights and six months for dangerous driving. The period of disqualification is therefore 12 months.
Preventive Detention
[113]As the Crown raised the issue of preventive detention, I need to address it.
[114] Preventive detention is an indeterminate sentence. If it is imposed, I have to specify a minimum term which you will be required to serve. It then falls to the discretion of the Parole Board to decide whether you should be released, if they are satisfied you no longer pose an undue risk to the safety of the community.
Pre-conditions to Preventive Detention
[115] Section 87(2) of the Sentencing Act 2002 imposes three conditions to the imposition of preventive detention. Those are:
a.a person is convicted of a qualifying sexual or violent offence;
b.the person was 18 years of age or over at the time; and
c.the Court is satisfied that the person is likely to commit another qualifying offence if released at the sentence expiry date.
[116] It is uncontested that you have committed a qualifying offence, being using any firearm against law enforcement officer, under s 198A of the Crimes Act 1961.
[117]Further, you were well over the age of 18 years at the time.
[118]In considering the third condition, I must have regard to the s 87(4) factors:
a.Any pattern of serious offending disclosed by your history;
b.Seriousness of harm to the community caused by the offending;
c.Information indicating a tendency to commit serious offences in the future;
d.Absence or failure of efforts by you to address the cause of the offending; and
e.The principle that a lengthy determinate sentence is preferable if this provides adequate protection for society.
[119] This overall s 87(4) analysis is to be determined using reports from at least two appropriate health assessors about the likelihood of the prisoner committing a further qualifying sexual or violent offence.22
[120] The assessment of the risk that the offender poses is the central focus of the preventive detention enquiry.23 The offender’s entire criminal history is to be considered in assessing his pattern of offending.24
Preventive Detention: Analysis
Pattern of serious offending (s 87(4)(a))
[121] I am not convinced that your present offending, in conjunction with your prior convictions for armed robbery, reveals a pattern of serious offending.
[122] The three armed robbery charges, for which you were convicted and sentenced in 2007, were part of an interrelated series of offences. In all cases, you were not the one holding the gun, or demanding the money. Your role in the offending was to carry
22 Sentencing Act, s 88(1)(b).
23 Sentencing Act, s 87(2)(c).
24 R v McGee (1995) 13 CRNZ 108 (CA).
out reconnaissance of the target, arrange for stolen getaway vehicles to be deployed nearby and recruit associates to actually carry out the substantial offence.
[123] Your offending in that case was significantly different to the offending in the present case. I consider your present offending, at least in terms of the Whangarei offending, was more in the nature of irrational and impulsive offending, albeit serious. I do not consider there was any real premeditation on your behalf in relation to the Whangarei offending. I accept that the motivation you had was to evade capture and inevitable return to prison. It was not the infliction of terror or violence for personal financial gain, as the aggravated robbery offending would suggest.
Seriousness of the harm to the community caused by the offending (s 87(4)(b))
[124] It is beyond dispute that your current and past offending has caused significant harm to the community. It has involved the infliction of terror against ordinary civilians and members of the Police. I note however, that in the present case no one was physically injured by you directly (the Police constables did report in their victim statements some indirect grazes), and in your previous aggravated robbery offending there is also no suggestion that anyone was physically injured.
Information indicating a tendency to commit serious offences in the future (s 87(4)(c))
[125] Dr Ian Goodwin assessed you at a medium to high risk of reoffending, though he noted you were not in the highest category. He said you displayed insight into the nature and impacts of your offending and that with appropriate interventions in prison, this may be reduced.
[126] Mr Rajan Gupta, based on the application of the Violence Risk Scale, determined that you posed a high risk of violent reoffending at the time of his assessment. He notes you have not achieved self-regulation and behavioural skills that would allow you to negotiate stressful life challenges. In his final summary, Mr Gupta states that he believes you pose a high risk of violent reoffending in the future, as there is a pattern of escalation in your offending, he says.
[127] Ms Anja Isaacson, who prepared a report at the request of your counsel, based on the application of the Violence Risk Scale, determined that you posed a low risk of recidivism. Her analysis of the Violence Risk Scale revealed considerably less
dynamic factors associated with your violence risk. Ms Isaacson is of the opinion that your natural maturation, positive community support, underlying pro-social values and past engagement in correctional rehabilitation, as she puts it, “bodes well for your future progress”.
[128] I note that Ms Isaacson’s report, while optimistic, was very detailed and informative regarding your background and would re-pay reading by you and your family, and by the prison officials.
Efforts by the offender to address the cause of the offending (s 87(4)(d))
[129] Dr Goodwin could not provide any assistance regarding your efforts to address the cause of your offending, having been provided with no material on your engagement with rehabilitative programmes while in prison.
[130] Mr Gupta noted the medium intensity rehabilitative programme you attended in prison and the educational and occupational activities you were engaged in to assist with reintegration into the community. He believes your return to criminal offending constitutes an absence of effort to implement the skills and attitudes you learnt. Mr Gupta finishes by noting that you are unaware of the underlying factors relating to your offending pattern, and that is probably because you have not attended more specialist high intensity programmes.
[131] Ms Isaacson is of the view that you meaningfully engaged in the medium-intensity rehabilitative programme while in prison and present no barriers to engage in offence-focused treatment in the future.
[132] From all of this, I draw the inference that, while rehabilitative programmes might not have been successful in the past, there is no reason to suggest that you did not properly engage with them, nor that you will not properly engage, and perhaps find success in that in the future.
Does a lengthy determinate sentence provide adequate protection for society? (s 87(4)(e))
[133] The sentence I have reached is a cumulative sentence of 11 years, six months’ imprisonment, with a minimum period of imprisonment of three years, nine months on the charge of using a firearm against a Police constable.
[134] I consider that removing you from the community for that period, while you engage in meaningful rehabilitative programmes designed to address the causes of your offending, will provide adequate protection for society, and still allow you a chance to reintegrate at the end of your sentence.
Discretion
[135] I will not be imposing a sentence of preventive detention. Overall, I do not perceive a pattern of violent offending and consider that a lengthy finite sentence of imprisonment, coupled with appropriate rehabilitation, is more appropriate in this case.
Sentence
[136] Before I pass sentence, Mr Steele, do you agree with the way in which I have approached the minimum period of imprisonment? [Yes]
[137]Mr Kite, please stand.
[138] On the charge of using a firearm against a constable, I sentence you to seven years, six months’ imprisonment, with a minimum period of imprisonment of three years, nine months.
[139] On the charge of possession for supply, I sentence you to four years’ imprisonment, to be served cumulatively.
[140] On the offence of impersonating a Police officer, I sentence you to six months, to be served concurrently.
[141] On the offence of unlawfully taking a motor vehicle, being the Police vehicle, I sentence you to one year’s imprisonment, to be served concurrently.
[142] On the offence of unlawfully taking a motor vehicle, being the silver Audi, I sentence you to one year and three months’ imprisonment, to be served concurrently.
[143] On the offence of dangerous driving, I sentence you to two months, to be served concurrently.
[144] On both offences of failing to stop for red and blue lights, and for the offence of dangerous driving, I impose a 12-month mandatory disqualification from driving.
[145]I order the destruction of the firearm and the ammunition.
[146] Finally, I must issue a first strike warning for the offence of using a firearm against a constable.
[147] Given your conviction for the offence of using a firearm against a constable, you are now subject to the three strikes law. I am now going to give you a warning of the consequences of another serious violence conviction. You will also be given a written notice outlining these consequences which lists the serious violent offences. One, if you are convicted of any serious violent offences other than murder, committed after this warning, and if a Judge imposes a sentence of imprisonment, then you will serve that sentence without parole or early release. Two, if you are convicted of murder, committed after this warning, then you must be sentenced to life imprisonment. That will be served without parole, unless it would be manifestly unjust. In that event, the Judge must sentence you to a minimum term of imprisonment.
[148]Mr Kite, you may stand down.
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Hinton J
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