R v Lisiate

[2020] NZHC 531

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2018-044-001823

[2020] NZHC 531

THE QUEEN

v

SIUAKI LISIATE

Hearing:	17 March 2020
Appearances:	D M A Wiseman for Crown R Mansfield for Defendant
Judgment:	17 March 2020

SENTENCING NOTES OF VENNING J

Solicitors:           Meredith Connell, Auckland

R M Mansfield, Auckland

R v LISIATE [2020] NZHC 531 [17 March 2020]

[1]                  Siuaki Lisiate you appear for sentence today having pleaded guilty to the charge of wounding with intent to cause grievous bodily harm. The maximum penalty for that offence is 14 years’ imprisonment.

[2]                  I am to sentence you on the basis of the summary of facts you pleaded guilty to. That discloses that you, together with your co-defendants Te Ariki Poulgrain and Tama Tapine, were serving time in the maximum security wing at Auckland Prison at Paremoremo. The victim, Mr Burton, was also a sentenced prisoner in that unit. Mr Burton has a significant and serious criminal history. He is also disabled to the extent he has a prosthetic leg.

[3]                  You are a senior member of the Cripps gang. Mr Tapine and Mr Poulgrain were also associated with that gang in the prison.

[4]  At around 9.30 am on 11 May 2018 Mr Burton was walking down the landing from his cell towards a cross-passage grill. As he approached where Mr Tapine was standing Mr Tapine suddenly and without warning punched Mr Burton with a right hook to the face. Mr Burton stumbled back and fell to the ground.

[5]                  Mr Poulgrain and you then joined in the attack on Mr Burton. Mr Tapine took no further part.

[6]                  By this stage Mr Burton was lying on the ground. You removed two shanks you had on you and repeatedly stabbed Mr Burton to the head and face and upper torso. You also kicked Mr Burton numerous times. During the assault you stabbed at Mr Burton over 40 times. Mr Poulgrain also stabbed Mr Burton about 10 times. During the assault Mr Burton curled up, trying to defend himself and shield his face.

[7]                  Even though you knew Corrections Officers were outside the landing you kept up the assault. You only stopped when the Corrections Officers entered the landing in force. At that stage you threw down the shanks before you were secured at the rear of the landing. Mr Burton was taken to hospital with life threatening injuries. He sustained a number of stab wounds to his arm and torso that needed operative repair. The most serious injury he sustained was an injury to his right eye. He now has

permanent damage to that eye. There is no victim impact statement from Mr Burton but the serious injury you inflicted on him is a matter of record.

[8]                  The issue for the Court today is whether to impose a finite sentence of imprisonment, namely imprisonment for a number of years, or whether to impose a sentence of preventive detention. A sentence of preventive detention has no end date. You would only be released if the authorities are satisfied you no longer pose a threat of violence to the community.

[9]                  The first step is to fix the appropriate finite sentence that would apply in the event that was imposed.

[10]              In R v Taueki the Court of Appeal established three bands which reflect seriousness of violent offending, depending on the number of aggravating features and other relevant circumstances.1 Your offending falls squarely into band 3 which is a band 3 between nine and 14 years. Your offending is serious offending with three or more aggravating features. In your case the combination of aggravating features is particularly bad.

[11]              In Taueki the Court, for example, talked about offending within band 3 as an episode of street violence where multiple attackers set upon a victim in a planned attack using weapons brought to the scene for the purpose and where serious and lasting injuries were inflicted on the victim. The Court said in such a case such offending would call for a starting point in the lower to middle range of band 3 but where a victim was particularly vulnerable a higher starting point would be required, or where a victim was left with injuries that had an ongoing impact on their enjoyment of life a starting point towards the top end of band 3 would be called for.

[12]              In your case, in the assault on Mr Burton, there are a number of aggravating features. First, the extent of the violence. The attack was a sustained attack on Mr Burton while he had been rendered defenceless and vulnerable on the ground. You used two shanks which you had brought to the assault to stab him. You only ceased the attack when you were driven back by the Corrections Officers.

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

[13]              Clearly the attack was planned. You played a lead role in planning the attack and the execution of it. You accept in the summary of facts that you had directed Mr Tapine and Mr Poulgrain to take part.

[14]              Further aggravating features are that there were the three of you involved in the attack, and at least two of you in the sustained attack on Mr Burton. The attack was also to his head and face.

[15]              Finally, Mr Burton suffered grave injuries. He was transported to Auckland Hospital in a life threatening condition. As I have said a number of the injuries required operative repair, and he has permanently severely diminished vision from his right eye.

[16]              The Crown submits a starting point of 10 years, three months is appropriate but that should be uplifted by a year to take account of the fact you offended whilst subject to a sentence and given your previous convictions for serious violence.

[17]              Mr Mansfield submits a starting point in the region of nine and a half years should be taken. He accepts the Court may consider an uplift given your history and circumstances.

[18]              I have had regard to the sentences imposed in a number of other cases of serious violence which counsel have referred to.2 I have also had regard to the starting point this Court took in relation to your co-accused. I make it clear however, I consider your case to be different to and more serious than that of your co-offenders. Mr Tapine faced a charge of assault with intent to injure which carries a maximum of three years’ imprisonment. He only punched Mr Burton and then withdrew from the incident. Mr Poulgrain faced a charge of wounding with intent to injure which carries a maximum of seven years. In his case the Court took a starting point of five years, six months.

[19]              The Court is also required to have regard to the purposes and principles of the Sentencing Act 2002 to the extent they are relevant. In your case Mr Lisiate, the most

2      R v Shepherd HC Auckland CRI-2007-044-9145, 19 October 2010; R v R Wereta [2014] NZHC 2555; and R v D Wereta [2019] NZHC 2734.

relevant are to hold you accountable for the harm you have caused, to denounce your conduct, to deter it as much as it is possible, and to keep the community safe.

[20]              Having regard to the above considerations, in particular your role and culpability, I take a starting point of 10 years, three months. I uplift that for six months for the fact you offended while serving an existing sentence. I decline to add an uplift for your previous offending, although it is of a similar, violent nature.

[21]              I turn to mitigating factors personal to you. The Court has a number of reports before it which deal with your personal background.

[22]              There is a very full report from the probation officer who interviewed you for the purposes of the pre-sentence report. In addition, Mr Mansfield has arranged for a report to be prepared on your behalf as well. There are also three medical reports prepared for the purposes of s 88 of the Sentencing Act.

[23]              Unfortunately Mr Lisiate your circumstances are all too commonly seen by this Court when sentencing prisoners for serious violent offending. A broken home, failure to complete schooling, early abuse of alcohol and drugs and involvement in gangs are common features.

[24]              You are now 39 years old. It is apparent from all the reports that you are effectively institutionalised. You were first imprisoned at the age of 17. Since then you have amassed about 25 convictions for serious offending. The offending has escalated from burglary to assault to robbery to aggravated robbery to murder before this present offending.

[25]              Your parents were both Tongan but you were born in New Zealand. Your father left your family when you were about four or five years old. You told one report writer your stepfather came on the scene when you were about seven or eight and you considered him to be a good influence. Other reports suggest he himself was sentenced to imprisonment when you were about 17.

[26]              Your family was a church going family but you apparently lost your way. You told one report writer you were glad to see the back of church. By the time you had started secondary school your life was in a downward spiral. You attended three different secondary schools. By about 12 or 13 you had started smoking cannabis. You left school without any formal qualifications and just got caught up in a gang.

[27]              You were first detained at the age of 14 years old. When you were returned from that care you got back into a youth gang. That is when your affiliation with the Cripps began.

[28]              You speak fondly of your family but consider you have let them down. Your mother seems to have been a strong influence. You respect her and her place in the family and you say you are embarrassed at your situation. You say you do not want your family to see you in prison. Your brother participated with at least two of the report writers and provided insight into your circumstances and background.

[29]              One of the report writers Mr Mansfield commissioned on your behalf suggested that you are a product of the State and a broken criminal justice system. She says you have been failed by society. Mr Lisiate, I do not find those sort of suggestions at all helpful. It is misguided and simply serves to reinforce your behaviour by excusing or minimising your responsibility for what you have done and that is of no assistance to you or the community in the long run. While, as the report writer notes your own whanau’s dysfunction created significant disadvantages to you, you have to accept responsibility for the decisions you make rather than seek to blame others. For whatever reason, your circumstances were not strong enough or settled enough to keep you at school and to prevent you engaging in alcohol and drugs at the age of 12 or 13. But a number of people who come from disadvantaged backgrounds similar to you have gone on to lead productive lives and have not offended in the way you have.

[30]              In the course of the interviews with the report writers you continued to seek to excuse your offending. You say you were in a position where you had to attack Mr Burton or be attacked by him. You say you could not approach prison staff for assistance as that is just not done, so you fashioned the shanks and decided to take the action you did. You expressed little remorse for the offending and considered the

incident arose because Mr Burton was placed in the same landing as you. You suggest the prison authorities were responsible for that.

[31]              I reject the suggestion that you were acting in self-defence because Mr Burton was a violent person who had threatened you. You have a record as I have said of attempting to minimise and excuse your actions. The footage that I saw was clear Mr Lisiate. Mr Burton was no threat to you at the time of this particular assault. He may be a violent man but there was no threat to you on this occasion.

[32]              If you genuinely felt under threat you should have told the authorities. You say there is a rule in prison not to tell. Mr Mansfield has filed a copy of an affidavit from Mr Taylor, another recidivist criminal. He says you can’t judge someone’s actions in a given situation by the standards of the community.

[33]              Mr Lisiate, you had no right to take matters into your own hands, even if Mr Burton had threatened you or you had heard a threat. To suggest you had to act pre- emptively and attack him in the way you did or you are somehow justified in doing so is, as Downs J said in R v D Wereta to advocate for the law of the jungle, not the rule of law which applies in our communities and also in prison.3 I do not accept any allowance should be made for your suggestion you were acting in any form of proactive self-defence.

[34]              The probation officer assessed you as utilising a victim role in justifying your actions. You have a lack of insight into your behaviour and a sense of entitlement and you engage in activity which you know is illegal and wrong and harmful. You are a high risk to others in his opinion.

[35]              Mr Mansfield referred the Court to the Court of Appeal decision of Vincent.4 In that case the Court allowed a reduction of six months to reflect the prisoner’s circumstances and the fact the prisoner was institutionalised. He considered some allowance should be made for the frustrations that arise in prison.

3      R v D Wereta, above n 3.

4      Vincent v R [2015] NZCA 201.

[36]              I am bound to take those observations into account and I also take account, as much as I can, your personal circumstances and background. I allow six months.

[37]              The most significant reduction from the starting point is for your guilty plea. You are entitled to a credit for that, which I fix at 15 per cent. It cannot be higher. The guilty plea came late, about three weeks before trial. I do not overlook the submission made Mr Mansfield made that you were concerned with your co-defendants’ positions, but the reality is that your guilty plea came against the background of an overwhelming Crown case against you bearing in mind the CCTV footage, your own statements and the evidence of the Corrections Officers who witnessed the assault.

[38]              In summary, if this Court was to impose a finite sentence upon you for this offending it would be a sentence of eight years, eight months with a minimum non- parole period of five years, two months. A minimum term of that length would be required to reflect the seriousness and circumstances of the offending. The interests of denunciation, deterrence, protection of the community and holding you accountable require the imposition of a longer minimum term than the standard.

[39]              But as I have said the real issue is whether I am required to impose the indeterminate sentence of preventive detention.

[40]              You qualify for consideration of a sentence of preventive detention. The offence is a qualifying offence. You are obviously over the age of 18 years. The Court is then required to take into account the factors set out in s 87(4) of the Sentencing Act 2002. Preventive detention may be imposed if it is necessary to protect the community because of the risk you pose.

[41]              The Court of Appeal has confirmed that preventive detention is not a sentence of last resort.5 It is not a sentence that can only be imposed after other sentencing options have been tried without success, although in your case it is fair to say you have been subjected to lengthy terms of imprisonment without reform and which have been followed by an ongoing pattern of violent behaviour and offending.

5      R v C [2003] NZLR 30 (CA).

[42]The factors I am required to take into account are:

(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 violent offences in the future;

(d)the absence of or failure of efforts by you to address the cause or causes of the offending; and

(e)the principle that a lengthy finite sentence is preferable if it provides adequate protection for the community.

Any pattern of serious offending

[43]              You undoubtedly have a pattern of serious offending. I put the notations in the Youth Court to one side. You have 25 convictions in the adult Court. Much of the offending has occurred while you have been on bail or in prison. Your first qualifying violent offence was a robbery in May 1998 when aged 17. You stole a car and assaulted the victim, the owner. You punched him several times to the head until he fell to the ground. You continued punching and kicking him. The sentencing notes records your shoe prints were still visible on his body eight hours later.

[44]              You followed that with another aggravated robbery in August 1998. Then in August and September 2001 you committed a series of four aggravated robberies. You were sentenced to 10 years’ imprisonment.

[45]              Your most serious offending then took place while you were in prison. You were one of three men convicted of murdering another prisoner. You and your co- offenders were all serving prisoners and members of the Cripps Gang. The victim was a member of a rival gang. You organised and led the attack to kill the victim in retribution for some perceived slight and to send a message to the other gang. While

you did not kill him yourself the Court found you had a primary role in procuring the death of the victim, and that you directed the outcome from beginning to end.

Seriousness of the harm to the community

[46]              As noted, your offending has caused life threatening harm and permanent damage to Mr Burton. Scarce medical and hospital resources were applied to him. Violence of any type causes disruption to the community. You also put Corrections Officers, who play an important role in prisons on behalf of the community, at risk by your actions.

A tendency to commit serious offences in the future

[47]              You have been assessed by Dr Jacques, a consultant forensic psychiatrist and Ms Coutinho, a senior clinical psychologist. In addition, Sanjeeta Sharma, another clinical psychologist, was engaged by Mr Mansfield to provide a further report. In Dr Jacques’ opinion you present a high risk of committing a further qualifying offence, particularly an offence of a serious and violent nature. You have risk factors across all domains and considerations of the report he used.

[48]              Whilst Ms Coutinho noted the risk assessment is not an exact science, she also considered you at high risk of violent reoffending in a similar matter, certainly within a prison environment and following your release into the community if you continued with your current attitudes and lifestyle. Of concern she noted you seem to find violence intrinsically rewarding.

[49]              Ms Sharma also considers you are at high risk of violent re-offending in a similar manner in the future.

[50]              In Nuku v R the Court of Appeal considered preventive detention was appropriate for an offender whose risk of reoffending appeared highest even whilst in prison.6 While it was required to consider the risk at the sentence expiry date, as in Nuku your position is that without serious efforts at rehabilitation, your risk of serious violent offending in the community remains high. Your previous actions have made

6      Nuku v R [2019] NZCA 25.

that clear. Your most serious offending may have been in prison but that is because you have spent a substantial part of your life there.

Absence of failure of efforts to address the cause

[51]              Ms Sharma considered that you showed some willingness to work on your pattern of violent offending. She considered you have some insight into your issues. It seems from the reports Mr Lisiate that you are an intelligent enough man and you really should understand your circumstances and the situation you are in.

[52]              Ms Coutinho noted that as a result of your security classification you have not received treatment to address your offending. You did briefly attend a psychological treatment in August 2019 but withdrew after one session, suggesting you did not need support, and it was up to you to change. Later you have suggested you withdrew because you were grieving the death of a relative.

[53]              Dr Jacques noted you have expressed a desire to access help and change but considers that to be motivated largely out of concern about the shame you have brought on your family rather than any genuine insight into the harm caused to the victims of your offending.

[54]              While there are reports that you say you are motivated to address your offending behaviour and want to address your security clarification the prison records note a pattern of non-compliance and abusive behaviour towards Correction Officers has continued between February 2018 and September 2019, even after the incident involving that has led to you being sentenced this morning. I agree with the Crown submission that in reality you have given no indications of a change in attitude.

[55]              Overall the reports suggest you lack insight into your offending. In R v Flightly the Court of Appeal held that although the offender was motivated to undertake rehabilitation the lack of insight into the causes of the offending, perception of unjust treatment and the fact he had previous unsuccessful attempts at rehabilitation counted against him.7 Yours is a very similar case.

7      R v Flightly [2009] NZCA 173.

Principle of the length of determinate sentence

[56]              Ms Sharma considers a lengthy determinate sentence could provide adequate protection for society, but only if you make use of the treatment options available to you. Overall she considers an indeterminate sentence could have a more deterrent effect on you, and incentivise you to engage in appropriate courses. Ms Coutinho notes your expressed willingness to engage and suggests that could be taken into account when considering if a determinate sentence would be sufficient.

[57]              Dr Jacques considers that preventive detention may be the only way to ensure you engage with appropriate programmes and in that echoes Ms Sharma’s views.

[58]              It is particularly relevant in this case you are already subject to life imprisonment. The Court could impose a finite sentence for the current offending. The Court of Appeal has made it clear that life imprisonment is not necessarily a bar to a sentence of preventive detention. I consider your offending in this case to be of sufficient seriousness to warrant the imposition of preventive detention even though you are serving a sentence of life imprisonment. The risk you pose to the community cannot be met by a finite term even bearing in mind the possibility of an extended supervision order on your release.

Consideration

[59]              Standing back as the Court must do and determining how to exercise its discretion in light of the above considerations the ultimate issue is whether you are likely to remain an ongoing risk to the safety of the community both in and out of prison that can only be met by the imposition of preventive detention.

[60]              Mr Lisiate, in my judgment regrettably the causes of your offending are deep- seated within you. I consider you to be a high risk of reoffending in a violent way. You have no insight into your offending. You lack empathy for victims and the people you harm. Your offending and the risk you pose the community both within prison and outside prison is such that a sentence of preventive detention is required.

[61]              Please stand. Mr Lisiate, on the charge of wounding with intent to cause grievous bodily harm you are sentenced to preventive detention. You are to serve a minimum term of five years, two months’ imprisonment. Stand down.

Venning J