R v Lake
[2020] NZHC 3013
•13 November 2020
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2019-044-001741
[2020] NZHC 3013
THE QUEEN v
NIGEL JOHN LAKE
Hearing: 10 and 13 November 2020 Appearances:
K A Lummis for the Crown
J D Munro and A N Gruebner for the Defendant
Judgment:
13 November 2020
SENTENCING NOTES OF POWELL J
R v LAKE [2020] NZHC 3013 [13 November 2020]
[1] Nigel Lake, you appear for sentence today having pleaded guilty to a single charge of wounding with intent to cause grievous bodily harm.1
Approach to sentencing
[2] I begin my task today by explaining what I have to do and how I am approaching it. The Sentencing Act 2002 sets out the purposes and principles of sentencing. The primary purposes of sentencing in this case are to hold you accountable for the harm that you have done;2 to promote in you a sense of responsibility for, and acknowledgement of, that harm;3 to denounce your conduct;4 to deter you and others from engaging in such conduct;5 and as you have heard today of particular importance in this case, is to protect the community.6
[3] In this case, the principles of sentencing that are particularly relevant are: the need to take into account the gravity of your offending, including the degree to which you are responsible;7 the seriousness of the offending;8 the impact of the offending and the impact of your offending on the victim, Mr Waihape.9 It is also necessary to consider consistency with appropriate sentencing levels in other cases.10 I note this Court is required to impose the least restrictive outcome appropriate in the circumstances.11
[4] Determining an appropriate sentence for you involves two steps.12 First, I must work out a finite sentence, in other words a specified number of years in prison, and then I have to decide whether that sentence is appropriate or whether I should impose a sentence of preventive detention, in which case you would be subject to a minimum
1 Crimes Act 1961, s 188(1). Maximum penalty 14 years’ imprisonment.
2 Sentencing Act 2002, s 7(1)(a).
3 Section 7(1)(b).
4 Section 7(1)(e).
5 Section 7(1)(f).
6 Section 7(1)(g).
7 Section 8(a).
8 Section 8(b).
9 Section 8(f).
10 Section 8(e).
11 Section 8(g).
12 Moses v R [2020] NZCA 296.
period of imprisonment and only thereafter released at the discretion of the Parole Board, when it determines that you are no longer a threat to the safety of the community.
[5] In determining the appropriate finite sentence, I begin by calculating what is referred to as the “starting point”, a term that you have heard this morning. The starting point is a term of imprisonment that reflects the seriousness of the offending to which you have pleaded guilty. Once I have calculated the starting point, I must then take into account your personal circumstances that are relevant, both positive and negative, including any deduction that you are entitled to for your guilty plea. This will result in the finite sentence.
[6] I will then look at the statutory criteria for preventive detention before deciding whether you should be sentenced to a finite term of imprisonment or preventive detention.
Setting the starting point
[7] I begin the sentencing exercise by considering the starting point. In setting the starting point I am assisted by the Court of Appeal’s guideline decision in R v Taueki.13 Taueki identifies a range of aggravating factors relevant to fixing the starting point for offending involving grievous bodily harm and therefore covers the charge to which you have pleaded guilty. The Taueki decision establishes three overlapping bands of starting points based on those aggravating factors. The Court of Appeal emphasised that when assessing the relevant aggravating factors, it involves going beyond merely identifying their presence, rather, this Court in sentencing you must undertake an evaluation of the seriousness of each of those factors.
[8] The Court of Appeal in Taueki set out that band one will be appropriate for offending involving violence at the lower end of the spectrum and does not apply in this case.14 Band two will be appropriate when the offending features two or three aggravating factors attracting a starting point of between five and 10 years’
13 R v Taueki [2005] NZCA 174, [2005] 3 NZLR 372 (CA).
14 At [36].
imprisonment.15 Band three, setting a range of imprisonment between nine and 14 years, will be appropriate when the offending is serious and involves three or more aggravating factors, where the combination of those factors is particularly grave.16
The offending
[9] In this case the offending for which you are being sentenced took place in Paremoremo prison. The victim of your offending, Hunter Waihape, is a fellow prisoner and sometime training partner of yours who resided with you in unit 13 of the prison.
[10] On 7 May 2019 a fight broke out in the prison yard. It appears from the CCTV footage that Mr Waihape confronted you and another inmate. That led to a fairly inconsequential fight between the other inmate and Mr Waihape. As that initial confrontation came to an end you moved in to fight Mr Waihape. After a fairly inconclusive exchange of punches, you wrestled Mr Waihape to the ground and after a bit of a struggle you were able to punch Mr Waihape in the side of the head some seven times which rendered him unconscious. You then got up, stood over Mr Waihape while he was lying unconscious, stomped twice on his head and then kicked him in the back of the head.
[11] You then turned and moved off slightly but almost immediately you came back to Mr Waihape where he remained unconscious. You again kicked him in the head and then forcefully stomped on his head no less than a further five times. You walked away from him at that point, and this time you did not return.
[12] Not surprisingly Mr Waihape suffered significant injuries as a result of your attack. These included fractures to his jaw, orbital socket and temporal bone; bruising and cuts to his face; as well as a progressive subdural haematoma. Mr Waihape has been admitted to hospital twice as a result of these injuries, and will likely suffer long term functional and memory issues.
15 At [38].
16 At [40].
Discussion – starting point
[13] As you have heard with regard to this offending, counsel are largely agreed on an appropriate starting point and have referred me to a number of cases that they consider are broadly comparable in order to assist me in determining the starting point.17 In her written submissions Ms Lummis submitted that your offending involved attacking the head, elements of premeditation, the fact that Mr Waihape was a vulnerable victim and the fact that he suffered serious harm. As a result, Ms Lummis submitted that your offending fell within the upper end of band two of the Taueki case, warranting a starting point of around eight years’ imprisonment. Your counsel, Mr Munro, took no issue with that starting point.
[14] As I discussed with counsel this morning, having reviewed the submissions that had been made, I was concerned that the starting point proposed understated the seriousness of your offending. However, having discussed the issue with both counsel, and, perhaps most importantly, having had a chance to look at the CCTV footage, I am satisfied that while the offending was extremely serious the starting point proposed by counsel in their submissions was correct.
[15] In particular, with regard to the aggravating factors that have been identified I am now satisfied that premeditation does not apply. Instead the following aggravating factors are applicable:
(a)Attacking the head: your offending involved more than 15 blows to Mr Waihape’s head, including at least six forceful stomps after he had been rendered unconscious. I am satisfied that this aggravating factor is present to a high degree and is indicative of the seriousness of your offending.
(b)Vulnerability of the victim: this is present because the kicking and stomping on Mr Waihape’s head occurred after he became unconscious.
17 R v Nuku [2016] NZHC 254; Simeon v R [2010] NZCA 559; Tuhiwai v R [2012] NZCA 209; R v Wereta [2014] NZHC 2555.
Put simply, Mr Waihape could not have been more vulnerable, and was completely unable to defend himself.
(c)Serious injury suffered by Mr Waihape: There is absolutely no dispute that Mr Waihape has suffered very serious and clearly long- term, possibly permanent, injuries, with significant behavioural and neurological consequences for him.
[16] Taken together, what you did that day amounts to a form of extreme violence, itself another aggravating factor. It is no exaggeration to note, given the severity of the force that you used, that you are quite simply lucky that you did not kill Mr Waihape.
[17] Given this position and having considered the cases referred to by counsel, I therefore agree that your offending falls towards the top end of Band two and given the lack of any mitigating factors relating to the offending a starting point of eight years’ imprisonment appropriately reflects your culpability.18
18 R v Nuku [2016] NZHC 254: Mr Lake was one of Mr Nuku’s co-offenders and was sentenced at the same time. Mr Nuku and Mr Lake had devised a plan to attack another inmate and break his arm. Mr Lake attempted to break the victim’s arm but was unsuccessful. Mr Nuku stepped in, broke the victim’s arm and attempted unsuccessfully to do so to his legs. The victim was left immobilised. Mr Lake then punched the victim to the head multiple times and stomped on the victim’s head three times. For this offending Mr Lake received a starting point of eight and a half years’ imprisonment. Although Mr Lake’s current offending did not involve the same level of planning, it involved a greater degree of violence, a greater number of attacks to the head and a more vulnerable victim. I am of the view that Mr Lake’s current offending is of similar severity to that engaged in previously with his co-offender Mr Nuku.
Simeon v R [2010] NZCA 559: Mr Simeon and a group of five or six others punched, kicked and hit the victim with a hockey stick and a bottle. The starting point of seven years’ imprisonment was described by the Court of Appeal as “merciful”. This case offers little assistance as it involved multiple attackers, weapons and home invasion. While these factors are not present in Mr Lake’s offending, there is clearly a presence of other serious aggravating factors and this emphasises the need to take an evaluative approach to sentencing under the Taueki guidelines.
Tuhiwai v v R [2012] NZCA 209: Mr Tuhiwai and a group of others hunted down the victim after an earlier altercation where the victim had hit Mr Tuhiwai in self-defence. The group then kicked, punched and stomped on the victim while he lay on the ground with his face in the kerb. A starting point of nine years’ imprisonment was adopted. Mr Lake’s offending similarly involved a vulnerable victim with attacks to the head. However, Mr Lake’s offending did not involve a weapon, multiple attackers, or premeditation. On this basis I am satisfied Mr Lake’s offending is slightly less serious than that of Mr Tuhiwai’s.
Personal factors
[18] I now turn to consider the personal factors relevant to you, both positive and negative.
Aggravating factors
[19] Starting with the aggravating, or negative, factors, Ms Lummis submits that your previous convictions and the fact that your offending arose while subject to a sentence, are both aggravating factors that ought to be taken into account. Mr Munro has disagreed with that approach. He submits that as you will be required to serve any determinate sentence or finite sentence in full and the fact that you have already served a number of full sentences for earlier offending, it would be inappropriate to uplift the starting point to take account of these factors. As I discussed with Mr Munro, I cannot accept that submission. Although I must take into account the impact of the three- strike regime when considering an appropriate uplift, it cannot operate to prevent this Court from adopting a starting point that appropriately takes all relevant matters into account. You have a history of 33 convictions, including three previous convictions for serious violent offending. The two previous offences to the current one also occurred in prison, and one of those involved serious stomping to the head and clearly bears some similarity to the current offending. I therefore agree with Ms Lummis that an uplift is appropriate equivalent to 10 per cent.
Mitigating factors
[20] Turning to the mitigating or positive factors, both counsel are agreed on the relevant mitigating factors personal to you. Both Mr Munro and Ms Lummis submit that you have experienced an abusive and violent childhood that not only normalised violence as a means of solving problems but left you as both a victim and a witness to serious violence throughout your upbringing. I note in particular it appears you were trained up to fight by neighbours of yours from an early age. Having regard to those factors, which are set out in the Provision of Advice to the Courts or PAC report and the reports of the psychiatrists who have assessed you for the purpose of this sentencing, I am satisfied that this background is causative of your offending.
[21] Mr Munro had submitted a deduction of 20 per cent was appropriate for these factors, whereas initially Ms Lummis contended that 15 per cent was appropriate. As you have heard following further discussion with Ms Lummis, the Crown has accepted that taking into account the cultural elements that are also apparent from the various reports, which showed that quite clearly you are completely alienated from your Māori identity, and indeed the prospects for rehabilitation (which as I will detail, have not yet been fully explored), that 20 per cent is appropriate. Having heard from counsel I too agree that a 20 per cent deduction is entirely appropriate in this case.
Guilty plea
[22] There is also no dispute that you are entitled to a deduction for your guilty plea for which up to 25 per cent is available when an early plea has been made.
[23] Mr Lummis submits that your plea came late, particularly given the CCTV footage of the offending which essentially is the Crown case against you. Ms Lummis further submits that your plea didn’t save Mr Waihape from giving evidence as the Crown was not required to get him to give evidence anyway. In those circumstances Ms Lummis submitted that a discount of 10 to 15 per cent would be available. Mr Munro, as you have heard, although he concedes the late plea, submitted that you entered your guilty plea following a change in counsel, and that the only real obstacle was a slight issue with the summary of facts and that you had never intended to defend the charges in any event. As a result Mr Munro has submitted a 20 per cent deduction is available.
[24] Considering the submissions of counsel there can be no dispute that your plea came late in the proceedings and could clearly have come much earlier. I note you were charged with the current offending in May 2019 and did not plead guilty until four weeks before your jury trial was set to start on 2 November 2020. While it may in the end have been a relatively minor matter stopping your change of plea that must be seen in the context of your experience with the criminal justice system and in the circumstances, I am satisfied that a maximum deduction of 15 per cent is appropriate.
Summary of finite sentence
[25] Taking these various matters into consideration, I have concluded that there should be a net 25 per cent deduction from the eight-year starting point which results in a finite sentence of six years’ imprisonment. I observe that as this is a second strike offence this sentence would be required to be served without parole,19 and would be served concurrently with your existing sentences.
Preventive detention
[26] As I have noted at the outset, and as you heard in my discussions with counsel today, the primary issue between the Crown and your defence counsel was whether preventive detention should be imposed.
[27] Under s 87(2) of the Sentencing Act, I may impose a sentence of preventive detention where, as in your case, an offender has been convicted of a qualifying violent offence and I conclude the offender is likely to commit another qualifying violent offence if released at the sentence expiry date. The analysis I must undertake in your case is therefore forward-looking. As you have heard me discuss with counsel this morning, I must be satisfied that you would be likely to commit another qualifying violent offence at the point you would be released at the end of the finite sentence towards the end of mid- 2026. In making this assessment I must have regard to the following five factors:20
(a)Any pattern of serious offending disclosed by your history;
(b)The seriousness of the harm to the community caused by your offending;
(c)Information indicating a tendency to commit serious offences in the future;
(d)The absence or failure of efforts by you to address the causes of your offending; and
(e)The principle that a lengthy determinate or finite sentence is preferable if this provides adequate protection for society.
19 See s 86C(4)(a) of the Sentencing Act 2002.
20 Section 87(4).
[28] I must also consider reports from at least two appropriate health assessors.21 As you are aware I have had the benefit of reports from two psychiatrists, Dr Krishna Pillai and Dr John Jacques, and have had the opportunity of hearing from both of those doctors in person at the hearing earlier this week.
Discussion – Preventive detention
[29] I begin my analysis by noting that as things currently stand you are very likely to commit a further qualifying violent offence and that position will not change unless you are successfully able to address the causes of the offending by the end of your sentence.
[30] First, your history and the psychiatric reports clearly demonstrate a sustained pattern of serious violent offending since 2009 that no shows no sign of abating at present. Indeed, what I take from Dr Jacques and Dr Pillai’s reports is that the clear consensus of the medical opinion available is that further serious violent offending is almost inevitable in the absence of targeted rehabilitation, noting in particular the static risk factors that both psychiatrists identified and the fact that such treatment as you have received to date has been essentially ineffective. Those considerations are coupled with:
(a)a clear lack of coping mechanisms and emotional control;
(b)problems with impulsivity, coping with stress and solving problems; and
(c)a lack of really any family support or indeed any other support mechanisms for you.
[31] Your serious violent offending reflects these matters. In 2009 you were found guilty of wounding with intent after stabbing an acquaintance who you considered had wronged you.22 Whilst serving your sentence for that offending you have been
21 Section 88(1)(b).
22 See R v Lake [2010] NZHC 1542.
convicted of two further charges of wounding with intent.23 Much like the current offending they involved a fight breaking out in prison, in which initially you did not appear to be involved. On one occasion you stabbed an inmate with a shank. On the second occasion you attempted to break an inmate’s arm, and when that failed you subsequently jumped on the victim’s head multiple times. Your current offending fits into the same pattern as your previous offending down to similar assertions of shame for what you have done together with an apparent lack of empathy for the victim. While it is clear that your proclivity for serious violence has developed while you have been in prison, there is no basis for suggesting that in the future it will not just be limited to occurring in prison as opposed to in the wider community.
[32] This is particularly so when, as Dr Pillai in particular has noted, your most significant violence is likely to occur when you feel “threatened by a peer and [you act] with decisive violence to end the threat”.
[33] In the meantime, there can be equally no doubt that the seriousness of your offending to date has already resulted in serious harm to the community. Your victims, including Mr Waihape, have suffered serious injuries and the serious nature of the harm cannot be minimised by the fact that your three most recent offences, including the present offending, have occurred in prison. Prisoners are still part of our wider community and it is important for our community and its own wellbeing that our prisoners are able to serve their sentences safely.
[34] Against these considerations there is no evidence that you have failed to engage with rehabilitation, rather the evidence that I have before me is that you have not yet been offered the type of “bespoke” “one on one” intervention identified by both psychiatrists that may lead to a significant change in the risk of you committing further serious violent offending. It is apparent for example that although you completed a medium intensity rehabilitation programme between 2011 and 2012 this has proved of limited benefit against your acknowledged issues with intellectual ability and cognitive function.
23 See R v Lake [2016] NZDC 4514; R v Nuku [2016] NZHC 254 for sentencing decisions pertaining to Mr Lake’s offending since 2009.
[35] I also take into account that you have expressed a willingness to engage in future rehabilitation that both Dr Pillai and Dr Jacques concluded was genuine, and that you are apparently on the waiting list to attend a High Risk Personality Programme which a number of different specialists have identified is necessary for your rehabilitation for at least five years now.
[36] Mr Munro in his submissions to me this morning is clearly correct that you have not been given the types of opportunities for rehabilitation that may in fact make a significant difference to your risk profile. As I have discussed with Mr Munro that is of limited assistance in what I am required to do this morning which is to look at that risk into the future as I have outlined.
[37] This takes us on to the final principle that I am required to look at: that a lengthy finite sentence is preferable if this provides adequate protection for society. This principle must be considered in the light of Court of Appeal authority to the effect that preventive detention is not a sentence of last resort, but rather is a protective sentence to be imposed if and when necessary.24 As I have been discussing with counsel this morning, this means that in your case I must choose the sentence that best protects both you and the community given the current clear risks of future offending at the end of any finite sentence and the lack of effective rehabilitation provided to date.
[38] It is really these competing considerations about how best to get you the rehabilitation that you need that have dictated the submissions of counsel. Ms Lummis has submitted that although a determinate sentence is ordinarily preferable, the evidence before the Court indicates that such a sentence would not provide adequate protection for society, particularly given that you have already been subject to a lengthy finite sentence and the limited rehabilitation that you have received has not deterred your reoffending.
[39] In contrast, Mr Munro has emphasised that a determinate or finite sentence ought to be preferred by this Court and submits that with the individualised rehabilitation identified by both Dr Jacques and Dr Pillai, coupled with a statistical likelihood that your risk to the community will decreased naturally with age, means
24 R v C [2003] 1 NZLR 30 (CA) at [6].
that by the time your finite sentence is completed, the risk will be significantly reduced. Mr Munro has gone on to submit that in the event that your risk remained high at the end of the finite sentence, an extended supervision order or ESO may be considered at that point.
[40] Ultimately, and while I accept the Court of Appeal has directed that a sentencing court must take into account the possibility of an ESO when considering whether or not to impose a sentence of preventive detention,25 having considered the material before me and in particular the considered comments of both Dr Jacques and Dr Pillai, I conclude by a relatively fine margin that a finite sentence does not provide sufficient protection for the community even when the possibility of an ESO is taken into account. Although a finite sentence clearly provides the opportunity for targeted rehabilitation to occur, and as Mr Munro has indicated it may be that the first part of such rehabilitation is now not far away, whether such rehabilitation will actually be available or indeed will ultimately be successful in reducing your risk profile, given the large number of issues that need to be addressed cannot with any certainty be determined, and neither that, nor any reduction in risk through aging, provides sufficient protection to the community given the level of risk that you pose.
[41] In contrast, I consider that a sentence of preventative detention means that once you have served a period appropriate for the seriousness of the offence and have undertaken the targeted rehabilitation necessary, it will be appropriate that the oversight of the parole board is invoked before you are released to ensure the protection of the community and yourself. I therefore conclude that preventive detention is the appropriate sentence and the minimum term of imprisonment should be fixed at six years.
Sentence
[42] This brings me to the end of the sentencing exercise. Mr Lake, would you please stand.
25 R v Mist [2005] 2 NZLR 791 (CA) at [102].
[43] On the charge of charge of wounding with intent to cause grievous bodily harm you are sentenced to preventive detention with a minimum period of imprisonment of six years.
[44]You may now stand down.
Powell J
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