R v Leota

[2017] NZHC 2184

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA

AHURIRI ROHE

CRI-2015-020-2122 [2017] NZHC 2184

THE QUEEN

v

PAKA JUNIOR LEOTA

Appearances:

S B Manning for Crown

J S Jefferson for Defendant

Sentenced:

7 September 2017

SENTENCING NOTES OF CLARK J

Introduction

[1]      Mr Leota you appear for sentencing this morning having been found guilty by a jury on one charge of causing grievous bodily harm.  The maximum penalty for that offence is 14 years’ imprisonment.1  The main issue for me is whether a sentence of preventive detention should be imposed.

[2]      Before addressing that point I will set out the background to the offending and the impact on your victim Jason Poi.  I will then assess what is an appropriate starting point for your sentence, whether there should be any adjustments up or down from that starting point and finally I will impose sentence.

[3]      You may remain seated until I sentence you.

1      Crimes Act 1961, s 188(1).

R v LEOTA [2017] NZHC 2184 [7 September 2017]

[4]      First, I wish to acknowledge Te Aroha Mohi’s presence.  Ms Mohi is Mr Poi’s partner  and  the  mother  of  their  children  and  she  is  in  Court  today  along  with members of her family.

Background

[5]      Mr Leota you and your co-offender, Mr Samoa, inflicted a violent beating on Mr Poi because of a failed plan to bring drugs into the Hawkes Bay Regional Prison on the Family Day being held in March 2015 by the prisoners of your unit.   The victim was taken into your cell.   You were alone with him for 12 seconds before Mr Samoa entered.  The evidence at trial was that during those 12 seconds thumping sounds consistent with a beating could be heard coming from the cell.

[6]      Mr Poi’s injuries were so serious that, but for the intervention of another prisoner and medical professionals it is likely he would have died.  On arrival at the Emergency Department Mr Poi was deeply unconscious with obstructed breathing due to his facial injuries. The formal statement of the head of intensive care at Hawkes Bay Hospital is detailed and lengthy.  It is enough for me to say that Mr Poi suffered severe and permanent brain injury, multiple fractures to the side of his face, his jaw, nose, cheek and eye socket.

Victim impact statement

[7]      Te Aroha Mohi, Jason Poi’s partner and mother of their children has made a statement that was eloquent and moving.   She likens the effect of the injuries on Mr Poi to the effects on the family — shattered, broken and fractured.  Ms Mohi is left alone to witness the pain and distress of the children being robbed of their father while she deals with the loss of someone precious to her.   She describes a lonely, dark and frightful journey.

[8]      Mr Poi’s older sister Rohario speaks in her statement of the actual physical pain she suffers and the guilt she feels because she asked her brother to live but the life he lives is lonely and incomparable to the life he had.

Grievous bodily harm: starting point

[9]      In sentencing you I am to be guided by the purposes and principles of the Sentencing Act 2002.  In a case involving violence of this severity, and within the prison environment, the purposes of deterrence and denunciation are particularly relevant. As is the protection of the community.

[10]     In deciding the sentence to be imposed I will have regard to all the factors relevant to your offending including what has been said in the reports prepared for sentence.  The effects of your attack on Mr Poi is a prominent consideration for me in deciding the sentence.  Mr Poi requires around-the-clock care and assistance.  He suffers extreme fatigue.  He cannot use his arms or legs and is unable to speak.  I understand  he remains  in  a wheelchair.   These  life-long injuries  have  taken  an enormous toll on him and his family.    I have referred to Ms Mohi’s  emotional struggle  with  the  stress  of  caring  for  Mr Poi  and  relocating  the  family  for  his treatment.

[11]     The Sentencing Act requires a court to impose the least restrictive outcome that is appropriate in the circumstances.   The key issue for me is what length of sentence should be imposed if I decide a finite sentence is appropriate and secondly whether I should, as the Crown has asked, sentence you to an indeterminate sentence of preventive detention.

[12]     When I talk about a determinate sentence I mean a sentence for a fixed term as opposed to a sentence of no fixed term.

Starting point

[13]     The starting point is to be determined by applying the guidelines established by the Court of Appeal.2   The factors relevant to assessing the overall criminality of your conduct comes down, really, to the brutality of the assault and the severity of the injuries to Mr Poi.  The blows were almost exclusively targeted at Mr Poi’s head and were intended to cause very serious injury.   He has suffered traumatic brain

injury with permanent long-term effects as a result of the attack.

2      R v Taueki [2005] 3 NZLR 372 (CA).

[14]     The Crown submits there was a high degree of premeditation.  Whether it can be called “high”, or not, the fact is you were angered by Mr Poi’s failure to deliver contraband into the prison.  So you led him into your cell and set upon him.  Mr Poi was alone with you, vulnerable and defenceless.

[15]     The Crown submits a starting point of 10 years’ imprisonment is appropriate.

The cases which the Crown has put before the Court are broadly comparable.3

[16]     Your  counsel  submits  on  the  other  hand  nine  and  a  half  years  is  an appropriate starting point because it is consistent with the starting point adopted by Edwards J in sentencing your co-offender, Mr Samoa.

[17]     However, in sentencing Mr Samoa, the Judge took account particularly of two factors which are not present in your circumstances.  First, Mr Samoa tried to assist Mr Poi following the attack by sitting him upright and splashing water into his face and he eventually sought help for Mr Poi.

[18]     Secondly, the Judge took into account of the fact that Mr Samoa entered the cell 12 seconds after you and the victim, by which time the violence was already underway.  To the extent that they can be regarded as mitigating the offence, there are no such mitigating factors in your case.

[19]     A starting point of ten years’ imprisonment is appropriate.

Aggravating factors

[20]     You have a lengthy list of previous convictions for violent offending.  As the Crown submitted, your victims have included members of the public — male and female, prison officers, and now a prison inmate.   Your convictions include convictions for kidnapping in 2007 and 2010, aggravated robbery in 2010, wounding with intent to injure in 2010, grievous bodily harm in 2011 and 2015 and injuring with intent to injure in 2015.  Two of these convictions were for attacks on prison

officers.

3      R v Wereta [2015] NZHC 2248; Tuau v R [2013] NZCA 623; Mafi v R [2015] NZCA 408 and

Rowles v R [2016] NZCA 208.

[21]     Those convictions are recent and were for serious violence.  They aggravate your assault on Mr Poi and they are relevant to the sentence to be imposed on you today.  The fact you committed this offending while in prison serving sentences for previous violent offending is also an aggravating factor.

[22]     The Crown seeks an uplift of at least 12 months’ imprisonment to reflect your recent  history  of  violent  offending.     Mr  Jefferson  submits  that  an  uplift  of six months’  imprisonment  is  sufficient.    Mr  Jefferson  suggests  that  making  a distinction with the sentencing of Mr Samoa would be an artificial distinction.

[23]     I consider an uplift of twelve months’ imprisonment appropriately marks your historical and recent violent history.   That brings the starting point to 11 years’ imprisonment.

Mitigating factors

[24]     There are no mitigating factors.  Dr Duff, consultant psychiatrist, in his report of 21 August 2017 says you continued to deny any involvement in the assault.  You even reported that your counsel had underperformed and you talked extensively to Dr Duff about the reasons why you could not adequately defend yourself at trial.

[25]     As Dr Duff notes, you have a tendency to blame factors beyond yourself.

[26]     You gave a detailed account of your version of the incident to Ms Visser, the clinical psychologist, who also prepared a report.  Her report is dated 19 July 2017. As the trial Judge, I heard and saw the evidence.   The version you offered to the assessors is implausible and, typically it seems, is blaming of others.

[27]     You  must  have  realised  the  consequences  of  maintaining  that  position because, as at 4 September, only three days ago, your counsel Mr Jefferson stated in his written submissions that you no longer maintain your innocence and you accept the guilty verdict. That at least may provide some small comfort to Mr Poi’s family.

End finite sentence

[28]     If I were to impose a finite sentence, it would be 11 years’ imprisonment. Such  a  sentence  would  be  consistent  with  other  sentences  given  for  similar offending.  A sentence of 11 years would be in one sense lenient.   The maximum sentence for this charge is 14 years.   And it is difficult to conceive of a worse example of an assault in terms of its ferocity, and the severity of the effects on the victim who barely escaped death.

[29]    Because you have been convicted of a stage-two offence if I impose a determinate sentence on you today — that is, a fixed term sentence — you will have to serve the full term of that sentence, without parole.4

[30]     Section 86C(6) of the Sentencing Act requires me to state what minimum period of imprisonment I would have ordered if this were not a stage-two offence. Because of:

–    the viciousness of the attack;

–    the devastating and permanent nature of Mr Poi’s injuries;

–    the fact the attack occurred while you are a serving prisoner; and

–    your history of violent offending

[31]     I would have imposed a non-parole period of imprisonment of 80 per cent of the full term.  That is, I would have imposed a minimum period of eight years and eight months.5

[32]     I consider the ongoing risk that you present when I assess whether a sentence of preventive detention is necessary.  I turn to that question next.

4      Sentencing Act 2001, s 86C(4)(a).

5      This footnote has been added after sentence. In purporting to impose a minimum period of eight years and eight months I was in error.   No such minimum period can be imposed.   That is because under s 86 of the Sentencing Act 2002 a minimum period of imprisonment must not exceed the lesser of two-thirds of the full term or 10 years. Two thirds of 11 years is seven years three months.

Should a sentence of preventive detention be imposed?

[33]   This conviction qualifies you for preventive detention.   The purpose of preventive detention is to protect the community from those who pose a significant and ongoing risk to its safety.6    If I am satisfied you are likely to commit another violent offence when you are released from any fixed term of imprisonment, I am able to impose a sentence of preventive detention.   I have to consider a range of factors in making this decision, factors such as:

–    any pattern of serious offending disclosed by your history;

–    the seriousness of the harm to the community caused by your offending;

–    whether  the  information  before  the  Court  indicates  a  tendency  to reoffend; and

–    the absence or failure of efforts by you to address the cause of your offending.

[34]     If I believe the community would be adequately protected by a fixed term, then a fixed term and not an indeterminate sentence should be imposed.  I turn to the factors that are relevant.

Section 87(4)(a): any pattern of serious offending disclosed by the offender’s history

[35]     Your pattern of serious offending is shown in your conviction record.  The level of violence has escalated over the years and the frequency has increased.  The latest assault is a reflection of what appears to be your propensity for violence.  You are clearly a repeat offender.

Section 87(4)(b): seriousness of the harm to the community caused by the offending

[36]     In terms of the seriousness of the harm to the community, I have already detailed the appalling and lifelong injuries to Mr Poi. You nearly killed him.  I have

6      Sentencing Act 2002, s 87.

discussed the suffering of Mr Poi’s partner and his family.  It is unarguable that you

have caused serious harm to the community.

Section 87(4)(c): information indicating a tendency to commit serious offences in future

[37]     The Department of Corrections has assessed your risk of future offending and harm as high.

[38]     Dr Duff reported occasional loss of control associated with substance abuse in which rages occur but in general your violence appears to be what was described as functional, or purposeful, rather than as a result of a loss of control.

[39]     Ms Visser, the clinical psychologist, assesses you as being at the higher end of a moderate risk for serious violent re-offending following release into the community.  Ms Visser highlighted the ongoing risk factors as violent lifestyle, prior supervision failures, a lack of employment when in the community, substance abuse as well as having antisocial attitudes and peers who support use of violence and offending.

[40]     Similarly Dr Duff assessed your risk of violent reoffending as moderately high.  You are reported as likely to target people you feel have wronged you while minimising your own involvement or responsibility.  Access to a violence relapse prevention programme is highly recommended by the experts to address the causes of your offending.

[41]     The assessments indicate likely benefit to you if you can access treatment for your antisocial attitudes and violent behaviour.  I strongly recommend that you are given access to intensive anti-violence programmes.

[42]     It is also worth noting that you maintain positive relationships with your family and previous partner, who visit you in prison.  The many references I have read testify to another side to you.  A strong theme comes through those letters.  The theme is their support of you, their desire to be there for you when you are released

and the desire they have that you achieve peace and success.   This support may provide further encouragement to you to remain violence free.

Section 87(4)(d): absence of, or failure of, efforts by offender to address the cause or causes of the offending

[43]     You have engaged in various alcohol and drug programmes.  In earlier years you had low motivation to engage but you have engaged to a greater extent, apparently, in the Corrections environment.  That said, given it was Mr Poi’s failure to bring in drug contraband that inflamed you, it seems clear, as Dr Duff reports, that you have not fully addressed your substance abuse issues.

[44]     You have not been offered any formal violence relapse prevention treatment programme because the programme seems to be targeted to those who are moving towards release into the community.  Dr Duff considers it is imperative that you be prioritised for a violence relapse prevention programme to avoid a recurrence of significant violence within the prison environment.

[45]     I share Dr Duff ’s view that you should be prioritised for such a programme,

for your own benefit and to mitigate the risks you present to those around you.

Section 87(4)(e): the principle that a lengthy determinate sentence is preferable if this provides adequate protection for society

[46]     The Sentencing Act lays down the principle that if a lengthy determinate sentence provides adequate protection for society, that is preferable to preventive detention.  I have to assess the risk you may pose to the community many years from now on your release.

[47]     A sentence of preventive detention, as Mr Manning submitted may not result in a materially longer time in custody than a fixed sentence.   But it does offer a greater assurance around the public’s safety than release at the conclusion of a finite sentence when the high risk you presently pose may still be there.

[48]     The benefit to the community, and possibly you, of a sentence of preventive detention is that you can yourself work towards the earliest possible release and you

may be incentivised to do so.   But if you do not the society remains protected by your continued incarceration.

[49]     Mr Jefferson makes the point that prison is currently your community and this community is not protected from your propensity for violence.  The suggestion, based on an observation by Dr Duff, is that preventive detention risks increasing the frequency and severity of your violent episodes within the Corrections environment.

[50]     But recent history shows that is not so.  You have had a sustained period of non-violence  within  the  prison  environment.     More  to  the  point  the  prison community is less populated than the wider community and it stands to reason that fewer numbers are therefore exposed to the risk you present.  As well, the prison system is better geared to containment and management of episodic violence than the less structured wider community.

[51]     Mr Jefferson has advocated strongly and responsibly for you but taking into account   your   violent   criminal   history,   that   the   violence   has   escalated,   is unpredictable,  has  recurred  in  prison  and  that  you  have  sought  to  deflect responsibility for it — until the week of your sentencing — my assessment is that you pose a significant and ongoing risk to the safety of the community.   I am satisfied a sentence of preventive detention is necessary for the greater community’s protection.  Preventive detention means indefinite imprisonment.

[52]     The  Sentencing Act  requires  the  Court,  when  sentencing  an  offender  to preventive detention to also order a minimum period of imprisonment.  I consider a term  of eight  years and  eight  months  appropriately reflects  the  gravity of  your offending and is both necessary and adequate to protect the community.

[53]     Mr Leota, I urge you to take advantage of the programmes that have been strongly recommended by the professional assessors so that you may work towards your earliest possible release.

[54]     Please stand.

Sentence

[55]     On the charge of wounding with intent to cause grievous bodily harm you are sentenced to preventive detention with a minimum period of imprisonment of eight years and eight months.

[56]     Please stand down.

Karen Clark J

Solicitors:

Crown Solicitor, Napier