R v Komene
[2013] NZHC 1844
•23 July 2013
REDACTED VERSION - PUBLICATION PERMITTED IN THIS FORM. PURSUANT TO SECTION 205 OF THE CRIMINAL PROCEDURE ACT
2011, PUBLICATION IS PROHIBITED OF ANY MATERIAL CONTAINED IN THE VICTIM IMPACT STATEMENTS OR ANY REFERENCE THERETO IN COUNSEL'S SUBMISSIONS OR IN THIS JUDGMENT.
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI 2012-090-002641 [2013] NZHC 1844
THE QUEEN
v
JACOB KOMENE
Hearing: 23 July 2013 Appearances:
K A Lummis for Crown
J J Corby for PrisonerJudgment:
23 July 2013
SENTENCING NOTES OF ANDREWS J
Solicitors/Counsel:
Meredith Connell, Auckland
J J Corby, Barrister, Auckland
R v JACOB KOMENE [2013] NZHC 1844 [23 July 2013]
Charges
[1] Jacob Komene, you appear for sentencing today having pleaded guilty to one charge of aggravated burglary, and one charge of wounding with intent to cause grievous bodily harm. On each of those two charges, the maximum available sentence is imprisonment for 14 years.
[2] Mr Komene, as you will have heard me discuss with counsel at the start of this afternoon’s session, at this stage I will discharge you on count 2 in the indictment against you. That means that of the three charges you initially faced, you now face solely the two to which you have entered guilty pleas, and on which I am sentencing you today.
[3] The issue in your sentencing today Mr Komeme is whether you should be sentenced to finite terms of imprisonment on the two charges, or whether you should be sentenced to preventive detention.
Relevant Facts
[4] At half past nine on the evening of 18 April 2012, you entered a residential address in Glendene by forcing open the front window using a knife you were carrying. Once inside, you were confronted by the resident, Mr Chant, who was 95 years old, who asked you what you were doing in the house. Upon being challenged, you left the house through the front window that you had climbed in, but you did not leave the area. Instead, you stood staring at the house and at Mr Chant while waving the knife around threateningly.
[5] Understandably, Mr Chant was fearful and so made his way to the kitchen to get to his telephone. Upon reaching the dining room, he realised that you had come back into the house and was standing in the hallway. Fearing for his safety, Mr Chant turned and he placed his walking frame in between himself and you, before activating his St John emergency alert button which both contacted St John and made an audible alarm.
[6] You then rushed towards Mr Chant, pushing the walking frame aside, and you stabbed him with the knife in the left-hand side of his face. The entire 12 cm blade of your knife pierced Mr Chant’s face, sliding down the left side of his jaw, before stopping when you punched Mr Chant on the side of his face. This assault caused a two centimetre laceration (a cut) near Mr Chant’s left ear, severed a nerve and an artery, and broke Mr Chant’s jaw. You then fled through the front door.
[7] Despite having been seriously injured, Mr Chant managed to call for assistance and was taken to hospital. As a result of this attack, the left-hand side of Mr Chant’s face has dropped and, as I will explain shortly, he suffers ongoing consequences.
[8] You were arrested a short time later at your home address, and the knife was located in a neighbouring fence. At first you were charged with aggravated burglary, and attempted murder, with an alternative charge of wounding with intent to cause grievous bodily harm.
[9] On 10 October 2012, you entered guilty pleas to the charges on which you are now being sentenced and the Crown indicated it would not proceed on the charge of attempted murder and that is the charge on which you have now been discharged.
[10] When you entered the guilty pleas, the Court directed that reports were to be prepared in relation to a possibility of a sentence of preventive detention. For your information, if preventive detention is being imposed the Court is required to receive a number of reports from Health Assessors – that is, Psychiatrists and Psychologists
– in order to help the Court to make the decision. When those reports were being prepared, a question arose as to your fitness to enter a plea to the offences, and an application was made in order to determine whether you were unfit to stand trial. In May 2013 a judgment was delivered in which it was held that you were fit to stand trial, and that you could enter pleas. On 30 May 2013, a judgment was delivered in
which it was decided that you are fit to stand trial and could plead guilty.1
1 R v Komene [2013] NZHC 1347 at [24] (providing the reasons). The ruling of Asher J is set out in a minute released on 30 May 2013.
Victim impact statements
[11] I am going to refer to the victim impact statements I have received, and I record at this point that I have made an order pursuant to s 205 of the Criminal Procedure Act 2011, forbidding any publication of the material in the statements. The victim impact statements will not be referred to in the published version of this sentencing decision.
[12]-[17] Material redacted pursuant to Order made under s 205 Criminal
Procedure Act 2011. Your previous convictions
[18] I mention, at this point, your previous convictions. You have an extensive criminal record. Since 2006 (at which time you were about 15) you have amassed
32 convictions, not including the two on which you are being sentenced. Six of those convictions are for violent offending, and three of them are particularly relevant for your sentencing today. You were convicted on a charge of assaulting a person with a blunt instrument in February 2007, you were convicted on a charge of assault with a stabbing or cutting instrument in March 2008, and you were convicted on a charge of aggravated robbery (which involved stabbing an elderly taxi driver with a knife) in January 2009. On that occasion, you were sentenced to imprisonment for three years and although you appealed against that sentence, but the appeal was dismissed.
Pre-sentence report
[19] You are 22 years old and of Maori descent. I understand from the pre- sentence report that you were brought up in a dysfunctional family, where alcohol and drugs were used, physical violence was common, and you were effectively abandoned by your parents, who separated when you were 12 years old. This upbringing had a profound effect on you, in particular as the violence meant that you lacked the confidence to compete and get along with other people when you were growing up.
[20] The report records that you began to drink alcohol and experiment with drugs around the age of 12, using marijuana and methamphetamine because they made you feel confident and self-assured. When you were assessed for drug and alcohol use as part of the pre-sentence report, and you were found to have a harmful pattern of alcohol abuse as well as a harmful pattern of drug use. You told the probation officer that your offending was committed while you were under the influence of alcohol or drugs.
[21] You said that you had begun to steal and get into trouble as a means of seeking attention from your family. In fact, you came to the attention of Child Youth and Family Services and you spent time in various homes homes and Youth Justice Facilities. It was recorded that you now see prison as inevitable, and it appears that you are comfortable in the prison environment.
[22] You told the probation officer that you are affiliated with the Crips street gang and that they are like your family as you take care of each other.
[23] I understand that you completed the first year at High School, but you were expelled for fighting and being a truant – that is, not attending school. You have never had a job or developed skills to help yourself find work. You told the probation officer in fact that you do not know how to get a job.
[24] You told the probation officer that you take full responsibility for your actions and you are very remorseful and ashamed of the charges. I note that Mr Corby, on your behalf, has repeated those comments in his submissions to me today. You explained to the probation officer that you were high on drugs and alcohol at the time you attacked Mr Chant, and you simply panicked when you realised that someone was in fact home and you just attacked out of fear for your own safety. The pre-sentence report writer says that you did not impress as being remorseful for your offending, even when you found out that you had attacked a victim who is aged 95.
[25] The probation officer assessed your risk of re-offending and the risk that you will harm others as being high. That is because of the combination of your own antisocial behaviour, the problems you had at school, your substance abuse, the lack
of family support and monitoring, and your tendency to respond with violence. The key factors identified as contributing to your offending are the lifestyle you have chosen, your propensity to violence, and your use of alcohol and drugs.
[26] The probation officer considered that you lack insight into your offending behaviour, and noted that there appears to be a pattern of your offending in this way and an escalation in the seriousness of your offending. On a more positive note, the probation officer recorded that you had expressed a desire to address the issues of your violence and substance abuse.
Specialist reports
[27] As I said earlier, the Court directed specialist reports to be prepared in order to help the Court to decide whether preventive detention should be imposed.
[28] First, there is a report by Dr Ian Goodwin, psychiatrist. Dr Goodwin noted your upbringing, and he assessed you as being functionally illiterate (unable to read) and largely innumerate (unable to count).
[29] Dr Goodwin noted that you have no formal prior psychiatric history but he said you showed a sense of, what he described as, literalness and a lack of capacity to have any abstract thought or to consider hypothetical situations. He considered you had a paucity for thought content and what he described as an empty internal life. He said your displayed emotions were restricted and flat.
[30] Dr Goodwin considered you have limited insight into your current situation and that you seem to not fully understand the implications of the potential sentence of preventive detention. He considered that your judgment was somewhat impaired.
[31] He assessed you as posing a moderate to high risk of future offending, and considered that if you continue to use alcohol and drugs this would lead to a high risk of future offending. Dr Goodwin noted that you have a background consistent with childhood conduct disorder and antisocial personality disorder in your adulthood. Further, Dr Goodwin noted some significant cognitive impairment or limitations and a longstanding substance abuse history.
[32] Dr Goodwin observed that you have social problems and a lack of interest in changing your current lifestyle. You appear to have few future plans and a high degree of exposure to what he described as destablisers in the persons you associate with and as a result of which have drugs and alcohol readily available. Based on this, Dr Goodwin assessed you as having a very high number of static risk factors of future violence and your cognitive impairment may make it difficult for you to have the capacity to formulate alternatives to violence or criminal behaviour when you are faced with problems.
[33] Dr Goodwin also noted your comment that you routinely carry a knife.
[34] Dr Goodwin suggested that you are at a moderate to high risk of offending in a similar way in the future, the major risk factors being your abuse of substances and cognitive impairment, including your impulsivity – that is, not thinking about what you are going to do. In summary, Dr Goodwin concluded that he was not able to offer an opinion as to whether a lengthy finite sentence is preferable to preventive detention.
[35] The second report is by Ms Sabine Visser, clinical psychologist. She assessed you as being in the extremely low range of functioning in relation to the Repeatable Batter for the Assessment of Neuropsychological status (RBANS). The scores on the Language and delayed memory domain fell within the Low Average range. The score on Immediate Memory domain well within the Extremely Low range.
[36] Ms Visser gave you an IQ test using the Wechsler Adult Intelligence Scale, fourth edition. She measured you as having an IQ of 75. Your General Ability Index score is 74. On this basis, Ms Visser stated that you are outside the range of Mild Intellectual Disability as per the Diagnostic and Statistical manual of Mental Disorders – Fourth Edition (DSM-IV). However, Ms Visser says that taking the standard error of the measurement you fall on the cusp of Intellectual Disability.
[37] Ms Visser noted that your cognitive abilities have improved since you were earlier tested in 2009, but said that they still indicate that you experience cognitive difficulties in particular around making decisions.
[38] Ms Visser said that you have limited insight into your offending and the little insight you do have appears to make little difference to your behaviour. She expressed the view that your friends are likely to encourage your drinking and drug taking and you do not see any connection between the ongoing use of substances and your return to prison. Ms Visser considered that your cognitive difficulties will negatively impact on your ability to respond appropriately.
[39] Ms Visser found that you are in the high risk category based on a number of predictors of risk. Further, your violence, your impulsivity behaviour, your cognitive difficulties, and your substance abuse all led her to consider that you are at a high risk of violent re-offending in a similar manner.
[40] On the matter of preventive detention, Ms Visser considered that you do have a pattern of serious offending and this offending has caused significant psychological and emotional harm to your victims, their families, social networks as well as the broader community. Further, she assessed you as being at a high risk of violent re- offending. She noted that following your release from past sentences, programmes and treatments have had little effect on you. Ms Visser considered that a sentence of a sufficient term to allow you to undertake intensive and specialist rehabilitative treatment designed to address your offence-related needs would be preferable, and that ultimately, that would lessen your potential risk of re-offending.
[41] The third report is from Dr Craig Immelman. Dr Immelman, who is a psychiatrist, was assigned to prepare an updated report as to your fitness to stand trial.
[42] Dr Immelman noted that you were able to focus and to sustain attention throughout the interview he had with you over 40 minutes. He said you were fluent and forthcoming, and there was no pressure of speech and no abnormality in your thought.
[43] Dr Immelman assessed you as having some insight into your situation, and you understood that you had already entered a guilty plea, and you expressed some concern as to why further assessment was required.
[44] Dr Immelman noted that all report writers agreed that you have significant cognitive impairments, and that you meet the criteria for a partial fetal alcohol syndrome. He noted that you have a severe substance use disorder, and that the issues relating to your development, including your family of origin, have impacted significantly. He assessed you as meeting the criteria for antisocial personality disorder. All of the report writers agreed that you need assistance from a number of services, including mental health, disability, and alcohol and other drug services.
Sentencing process
[45] When I sentence you I must first decide what would be the appropriate finite sentence on the two charges. Then I must consider whether a sentence of preventive detention should be imposed rather than a finite sentence, taking into account any pattern of serious offending in your conviction history, the seriousness of harm to the community caused by your offending, the absence or failure of efforts by you to address your offending, and the principle that a lengthy finite sentence is generally preferable if it provides adequate protection for society.
[46] In deciding the appropriate finite sentence, I first set a starting point, which is assessed by looking at the features of your offending, then I consider whether there are any factors relating to either the offending or yourself, that require any increase or decrease to the starting point.
[47] When I sentence you I have to take into account the purposes and principles of sentencing. As to the purposes of sentencing, I have to hold you accountable. I have to make you, and only you, responsible for your offending. I have to consider deterring you and others, and I have to allow for the protection of the community. I must also denounce your offending – this means to tell you that your offending is completely unacceptable, and cannot be tolerated. At the same time, the purpose of sentencing any offender is to help that offender to get back into the community as a useful member of it.
[48] As to the principles of sentencing, those that are relevant in your case are the gravity of your offending, including your own culpability, and the seriousness of your offending in comparison with other types of offences. Also, it is generally desirable to keep consistency in sentencing levels, and I must take into account any information provided to me about the effect of your offending on your victim.
[49] I am directed to impose the least restrictive outcome that is appropriate in the circumstances. While it is desirable to keep offenders in the community as far as that is practicable with regard to the safety of the community, the Court can impose a sentence of imprisonment in order to achieve the purposes of sentencing that are relevant. In your case, I am satisfied that a sentence of imprisonment, whether it is a finite sentence or preventive detention is appropriate, and is the only available sentence.
[50] I will decide on the starting point for the charge of wounding with intent to cause grievous bodily harm, and then I will have to adjust it to take into account the fact that you are also being sentenced on the charge of aggravated burglary.
[51] When I sentence on charges involving serious, violent offending, I am guided by the judgment of the Court of Appeal in Taueki.2 In Taueki the Court of Appeal set three levels, or bands, for sentencing on such offences, depending on the presence or absence of a number of specified features, such as the degree of violence, whether the offending was premeditated (planned), the seriousness of the injury caused, the use of weapons, and the vulnerability of the victim. If there are none of those features, the offending is in the lowest band, and the starting point for the sentencing will be three to six years imprisonment. If there are three or more of those features
present then the offending is in the highest band, and the starting point for sentencing will be between nine and fourteen years imprisonment.
[52] On behalf of the Crown, Ms Lummis pointed to your use of a weapon, the serious injuries inflicted, the fact that you attacked Mr Chant’s head, the fact that you attacked him in order to make it easier for you to commit a burglary at his house, the fact that the offending involved an invasion of Mr Chant’s home, Mr Chant’s
particular vulnerability, and the fact that you went to the house planning to commit an offence there.
[53] Ms Lummis submitted that your offending falls within the most serious band of Taueki as being a domestic attack situation where there is a premeditated home invasion with the use of a weapon on a vulnerable victim.3 While she accepted that the home invasion was not a carefully planned crime, she submitted that the fact that you were carrying a knife at the time, indicated a willingness to use it. Further, because the offending also involved attacking the victim’s head and to facilitate a crime, Ms Lummis submitted that this took your offending into the third band, and that the starting point for sentencing should be at least ten years.
[54] On your behalf, Mr Corby submitted that there are only three aggravating features of your offending: the serious injury inflicted, your use of a weapon, and Mr Chant’s vulnerability. Mr Corby submitted that your offending falls at the top end of the second Taueki band, and that the starting point should be nine years imprisonment.
[55] In the written submissions filed by counsel I have had cases referred to me of sentencings in cases where the circumstances were similar. The most comparable case is that referred to by Ms Lummis of R v Hepi.4 Mr Hepi entered a 89-year old woman’s house, then attacked her, striking her with sufficient force to break her jaw and render her unconscious. He tied the victim’s hands and feet, before taking her bank card, her PIN number, and $300 in cash.
[56] The victim required several days in hospital and an extended period of convalescence. She suffered significant permanent injuries. The victim impact statement described how the attack transformed her from an independent, active woman, into an anxious and mentally-troubled woman. The sentencing Judge in that case, concluded that the offending warranted a starting point of 11 years
imprisonment.
3 At [41].
4 R v Hepi HC Rotorua CRI-2006-063-946, 20 October 2006.
[57] In your case, I have concluded that there were six of the aggravating factors listed in the Taueki judgment present:
Serious injury
[58] Mr Chant clearly was seriously injured. He received a stab wound, he had to stay in hospital for five weeks. The injury could have been much worse, and luckily it was not, but as you have heard, the effects of the attack are serious, and ongoing.
Use of a weapon:
[59] You carried a knife with you, and used this to inflict a serious injury. The Court of Appeal stated in the Taueki judgment that the use of a knife was a serious aggravating factor as the more lethal the weapon is, the greater the aggravating factor it will be.5
Attacking the head
[60] You stabbed Mr Chant in the face – you attacked him in his head.
Vulnerability of the victim
[61] Mr Chant was a 95 year old man who required a walking frame to move around with. It would have been clear to you that this was the case as he used the walking frame to walk to the window and he also put it between himself and you prior to the attack.
Home invasion
[62] You invaded Mr Chan’s home. Material redacted pursuant to Order made under s 205 Criminal Procedure Act 2011.
Facilitation of a crime
[63] You left Mr Chant’s house, and then decided to go back in when you realised that Mr Chant had seen you and had recognised who you were. I accept that the wounding was an attempt to avoid detection by inflicting significant injuries.
[64] These features clearly place your offending in the middle of band three of Taueki. Having taken them all into account I have concluded that the starting point for sentencing on this charge should be ten years and six months imprisonment.
Adjusting the starting point
[65] As I said earlier, I now have to adjust the starting point, to take account of the fact that you are also being sentenced on the charge of aggravated burglary. If you were being sentenced on this charge, alone, a significant sentence of imprisonment – in the order of five years imprisonment – could have been imposed. However, for your sentencing today, I propose to treat the aggravated burglary charge as a factor that requires me to apply an uplift to the starting point.
[66] Also, I must take into account your previous convictions for violence. These indicate to me that a deterrent sentence must be imposed. To take account of both these matters, I have concluded that the starting point must be increased by two years, to 12 years and six months imprisonment. That is, therefore, the adjusted starting point.
Personal factors
[67] I now turn to consider matters that relate to you, personally. Mr Corby made extensive submissions to me concerning your cognitive impairment – that is, your inability to understand your actions – and he referred me to the judgment of the Court of Appeal in Edri v R where the Court accepted that some discount could be
allowed for this factor.6 Ms Lummis submitted that, while accepting that there are
cases in which an allowance can be made, this is not case where about discount should be any more than minimal.
[68] I note, and I am going to read out, something that Lang J said when he gave judgment on your appeal against sentence in October 2009. His Honour said:7
The fact that Mr Komene suffers from mental impairment does not necessarily, however, mean that the starting point that the Judge selected needed to be reduced to reflect that. The Court of Appeal has made it clear that sentencing Judges must approach the sentencing of mental impaired offenders with a degree of caution. In some cases mental impairment reduces culpability because it reflects the fact that the offender may have committed the offences without true appreciation of their consequences. Balanced against that, however, is the undoubted fact that in many cases the need to protect the public will be to the forefront.
[69] With respect, I agree with the Judge’s comments. The mere presence of limited mental capacity does not mean that there must be a reduction. The question is whether the limited mental capacity means that you could not understand your actions and so could not be said to be fully culpable. I am not satisfied that you did not understand your actions and that were not fully capable. It appears you intentionally entered into the house after leaving it and then deliberately attacked Mr Chant. Your mental impairments affect your judgment and your ability to deal with problems, but I am not satisfied that they go to the heart of your culpability (responsibility) for your offending. However, I accept that some discount may be applied for this factor and will allow a discount of six months from the adjusted starting point.
[70] This brings me to your guilty pleas, which were entered at a relatively early stage but I accept Ms Lummis’ submission that they were not made at the very earliest opportunity. You are entitled though, to a discount for the guilty pleas because they saved Mr Chant and others the anguish of having to go through a trial. In accordance with the judgment of the Supreme Court in Hessell8 I have concluded that a discount of two years and four months, should be allowed for your guilty pleas, resulting in an end sentence of nine years and eight months imprisonment.
[71] The next matter that I must consider is whether I should order that you serve a minimum period of imprisonment before you become eligible to be released on parole.
[72] Under s 86 of the Sentencing Act 2002, I may impose a minimum period of imprisonment if I am satisfied that the standard non-parole period is insufficient to hold you accountable, to denounce your conduct, to deter you or other people, or to protect the community from you.
[73] In this case without a minimum period of imprisonment you would become eligible for release on parole after one-third of your sentence, which would be at about three years and two months. I consider that this period of time is not enough to protect the community from you. You have to address your alcohol abuse and other factors impacting on your offending. You are considered to be at a high risk of re-offending in a similar manner, and you do threaten the community. I am satisfied that a minimum period of imprisonment should be imposed, and that it should be for six years.
Should preventive detention be granted?
[74] The final issue, then, is whether you should be sentenced to preventive detention rather than a finite sentence of nine years and eight months, with a minimum period of imprisonment of six years.
[75] The purpose of preventive detention is to protect the community from people who pose a significant and ongoing risk to the safety of others.9 Preventive detention is not a sentence of last resort, it is a protective sentence to be imposed if and when it is necessary to do so.10
[76] In order to consider whether preventive detention should be granted, there are three preconditions which must be satisfied. These are that a person is convicted of a qualifying sexual or violent offence, the convicted person must have been 18 or older at the time of committing the offence; and the court is satisfied that the person is likely to commit another qualifying offence if released at the sentence expiry date.
[77] In your case, all three preconditions are satisfied. Wounding with intent to cause grievous bodily harm is a qualifying violent offence. You were over 18 years
old at the time of the offending. Finally, I am satisfied, as a result of the reports I have read, that you are likely to commit another qualifying violent offence once released.
[78] However, simply establishing these three preconditions does not mean that I must impose preventive detention. That is a matter for the Court’s discretion.11 In making this decision, I must take into account several matters; I have already referred to them. They are: any pattern of serious offending disclosed by your previous convictions, the seriousness of the harm to the community caused by your offending, any information indicating that you have a tendency to commit serious offences in the future, the absence of, or failure of, efforts by you to address the cause or causes of your offending, and the principle that a lengthy determinate
sentence is preferable if this provides adequate protection for society
Pattern of serious offending (s 87(4)(a))
[79] You clearly have a history of violence. I have already noted in 2009, you were convicted in the Waitakere District Court on a charge of aggravated robbery. Both Dr Goodwin and Ms Visser consider that there is a pattern of serious offending. As Dr Goodwin said, you routinely carry a knife which contributes to your high risk of re-offending in this manner. Ms Visser concluded that your offending appears to be increasing in frequency and intensity and seriousness. I accept that your history demonstrates a significant pattern of serious offending.
Seriousness of the harm caused to the community (s 87(4)(b))
[80] The victim impact statements illustrate the seriousness of your offending and the substantial impact it has had on Mr Chant’s life and on others associated with him. This type of serious and unprovoked attack on a person at home undermines
the safety that members of the community are entitled to feel.
11 R v C, above n 11, at [6].
A tendency to commit serious offences in the future (s 87(4)(c)
[81] Both Ms Visser’s report and Dr Goodwin’s report state that you are at a high risk of violent re-offending in a similar manner, particularly if you continue to abuse alcohol. It appears from the pre-sentence report and Dr Goodwin’s and Ms Visser’s reports, that you have no real intention of modifying your behaviour, and you simply think that your friends will make sure that you do not get into trouble. I do not share your optimism. I doubt very much that your friends will indeed prevent you from committing other serious offences in the future and, as Dr Goodwin noted, these friends actually act as destabilisers to you. The consensus of the opinion of the experts and pre-sentence report writer is that you are is likely to re-offend if you do not respond to treatment.
The absence of, or failure of, any efforts by you to address the cause or causes of your offending
[82] In all of the reports I have read, treatment is seen as the only way to help you address the causes of your offending and your propensity towards violence. However, it has been noted by the report writers that you are either unable or unwilling to address the causes of your offending. Ms Visser concluded that you have little motivation to change your behaviour. You can acknowledge that your drinking has caused you a lot of trouble, but you are not motivated to change your behaviour. While you have attended a program, you reported that the program was of little help and that if alcohol or marijuana became available you would consume it. You said that when you return to the community you would continue to consume alcohol.
[83] Dr Goodwin had a similar view that you displayed a lack of interest in changing your current lifestyle. Similarly the probation officer concluded that your motivation to change must be viewed with caution as you are entrenched in criminal behaviour with your gang associations.
[84] Mr Komene, for any treatment to be effective it must be embraced by the offender. In this case treatment has been tried and it has failed. This could be due to the treatment not being tailored specifically to take your needs and ability into
account, or it could simply be that you do not want to change. In order to change, you must want to change. I am not sure that the reports indicate that you have any desire to change your behaviour.
The principle that a lengthy determinate sentence is preferable if this provides adequate protection for society
[85] It is true that a lengthy determinate sentence will usually be preferable, to an indefinite sentence. You know where you are. However, as Ms Lummis submitted, the three-year period of imprisonment you served in 2009 has had little if any deterrent effect on you. You committed the offending on which you are now being sentenced less than a month after your release from prison on 28 March 2012. Mr Corby made a comment in his written submissions to the effect that you have had all that the prison can offer you. He went on to say: he (that is, you) does not get it and, more worryingly, the authorities do not get that you do not, and that you are unable to get it in the way they are able to deliver it.
[86] If this is indeed the case then sadly a finite sentence is not likely to provide adequate protection for society. It may not change your behaviour, so it may not be the preferable sentence.
[87] Taking all these factors into account, there is a sound basis for concluding that a sentence of preventive detention should be imposed, and that, in fact, it is the only sentence that can, in the circumstances, be imposed.
[88] But I have given very careful consideration to what sentence should be imposed, this is particularly because of your age, and your background. I bear in mind Lang J’s comment in his appeal judgment in 2009, that you clearly have little or no appreciation of the factors that drive you to offend, and his later comment that if the present charges were anything to go by – that is, the 2009 charges – future
incidents of violence are likely to increase in severity as well as number.12 Sadly the
Judge’s comments have been borne out. You committed the current offending less than one month after you were released from prison. The current offending is at a
more serious level than the offending the Judge was talking about. With some
12 Komene v Police above n 8, at [38].
foresight, in fact a great deal of foresight, in 2009 Lang J predicted that unless something was done soon to correct your lifestyle and your conduct, you would inevitably re-offend shortly after your release from prison.13
[89] In his judgment on your appeal, Lang J noted that the reports made it clear that the sentence imposed at that time could be your last chance to reverse your pattern of offending.14
[90] In another case R v Flighty, Lang J commented that preventive detention could provide a protective safety net for the public if an offender failed to achieve rehabilitation, and that that protective safety net would not be provided if a finite sentence were imposed and the prisoner failed to rehabilitate by the time he was eligible for release. said to the prisoner:15
[62] It is obvious to me that you are going to need many years of intensive therapeutic engagement if you are to have any hope of dealing with the kind of issues that you currently face. The real risk, if I impose a finite sentence of imprisonment, is that you will simply ‘do your time’, and that you will not meaningfully engage in therapeutic treatment or intervention.
[63] I consider that the only way in which you will engage in such a process is if you know that such engagement is necessary before you can be released from prison. Only that, in my view, will provide the necessary motivation to ensure that you co-operate with professionals and that you seek whatever help may be available to you to resolve the very deep issues that you currently face.
[91] The Judge’s reasoning was upheld by the Court of Appeal. The Court stated that:16
Compared with a finite sentence, a sentence of preventive detention is more likely to persuade Mr Flighty that he has to come to grips with the factors underlying his offending and assist those attempting to promote his rehabilitation. Whereas preventive detention will provide a protective safety net for the public if he fails to achieve rehabilitation, that would not be the case if a finite sentence was imposed and he failed to rehabilitate by the time he was eligible for release.
13 At [32].
14 At [41].
15 R v Flighty HC Hamilton CRI-2007-019-2246, 25 June 2008.
16 R v Flighty [2009] NZCA 173 at [29]
[92] In some ways I am confronted with a similar problem. I am concerned that there is a risk that if you are sentenced to a finite sentence you will simply “do the time”, and then come out of prison without having addressed any of the underlying causes of your offending and without having any strategies for dealing with the problems you encounter. If you fail to do this, if you fail to address the underlying causes of your offending, and if you fail to do something to develop strategies for dealing with problems, all of the experts have said that you are highly likely to re- offend in a similar violent manner. I have no doubt that the community needs to be protected from this.
[93] Against all of that, I come back to your age, your background, the fact that you have not previously served a lengthy sentence of imprisonment, and the fact that you have not previously been warned as to the prospect of preventative detention. Another Judge (Keane J), in sentencing in R v MH stated that the offender before
him was “right on the cusp of a sentence of preventive detention”.17 In that case his
Honour decided not to impose preventive detention because the offender had “never undergone a lengthy sentence of imprisonment”, and had “never been warned about the possibility of preventive detention.”18 It was a finely balanced case, and Keane J considered that the absence of any lengthy prior term could tell against imposing preventive detention.19
[94] After a great deal of thought, and deep consideration, I have concluded that you are in a very similar position. The decision between preventive detention and a finite sentence is very, very finely balanced. You are very much on the edge of preventive detention. Yet, you have not served a lengthy prison sentence, there may well be, and indeed I sincerely hope there are, long-term programmes that you could complete over the course of a lengthy sentence that were not possible in the shorter sentences you have served, and it is clear that you have not been formally warned as to preventive detention. For those reasons, I have concluded that a finite sentence
should be imposed, rather than preventive detention.
17 R v MH [2013] NZHC 709 at [69].
18 At [70].
19 At [30].
[95] However, I would expect that at the end of your sentence, an application will be made by the relevant authorities for you to be subject to an extended supervision order, for the maximum available period, so to ensure that you have support and some oversight by the authorities after your release.
Sentence
[96] Mr Komene, would you please stand.
[97] On the charge of wounding with intent to cause grievous bodily harm, you are sentenced to imprisonment for nine years and eight months. I order that you serve a minimum period of imprisonment of six years imprisonment.
[98] I am required also to impose sentence on the charge of aggravated burglary and on that, you are sentenced to five years imprisonment, which is to be served concurrently that is, at the same as the sentence on the charge of wounding with intent to cause grievous bodily harm.
[99] Your overall sentence is imprisonment for nine years and eight months, with a minimum period of imprisonment of six years.
[100] Mr Komeme, as I said earlier, I trust that it will be possible for the Prison authorities to plan for you a programme of treatment and training that takes account of your particular needs, because I agree completely with Lang J’s comments that that is necessary both for you in the future, and for the protection of others.
[101] You may stand down.
Andrews J
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