R v Maney

[2023] NZHC 1239

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CRI-2022-063-3836

[2023] NZHC 1239

THE KING

v

JASON REX THOMAS MANEY

Hearing:	24 May 2023
Appearances:	R Jenson and P F Lee (via AVL) for the Crown M Bott for the Defendant
Judgment:	24 May 2023

SENTENCING NOTES OF HARVEY J

Solicitors:           Crown Solicitor, Tauranga Counsel:  M Bott, Barrister, Wellington

R v MANEY [2023] NZHC 1239 [24 May 2023]

Introduction

[1]                 Jason Rex Thomas Maney, you appear for sentencing today having been found guilty last September 2022 by a jury of two charges: strangulation, which carries a maximum penalty of seven years’ imprisonment;1 and wounding with intent to cause grievous bodily harm, which carries a maximum penalty of 14 years’ imprisonment.2

[2]                 The Crown seeks a sentence of preventive detention. Alternatively, Mr Jenson submitted that if a finite sentence is imposed, then this should be at the upper end of the scale along with an uplift. If preventive detention is not imposed, counsel contended that the Court may also consider a further uplift for community protection.

[3]                 Your counsel, Mr Bott, argued that preventive detention is not appropriate. You will know that this is the second time in three years that a sentence of preventive detention has been sought.3 I will have to consider that submission, along with those of your counsel, as part of this sentencing decision.

[4]                 As you know Mr Maney, due to matters beyond our control in seeking the reports needed for your sentencing, there has been a long delay between the time you were found guilty, and today’s sentencing. While I make no criticism of the health experts who prepared your reports, this unfortunate delay is regretted. I am sorry you have had to wait so long.

[5]This sentence will be in four parts:

(a)First, I will cover the facts of your offending.

(b)Second, I will talk about your personal circumstances, including the risk factors identified by the health professionals who interviewed you.

(c)Third, I will fix your sentence.

(d)Finally, I will assess whether you should be subject to a sentence of preventive detention.

1      Crimes Act 1961, s 189A(a).

2      Section 188(1).

3      R v Maney [2019] NZHC 2048.

The facts

[6]                 Mr Maney, as the trial judge, I had the benefit of hearing all of the evidence and the verdicts. In any case, the facts are reasonably clear.4 You and the complainant, who I refer to as K, had been in a relationship for approximately three years. The evidence confirms that there has been one previous attended family harm incident between you two.

[7]                 On Friday 6 November 2020, at an evening Guy Fawkes celebration at your home in Rotorua, you verbally abused K, referring to her in derogatory terms. Also present was K’s teenage son. Eventually, she left and returned to her home in Paengaroa, a drive of 40 minutes from Rotorua.

[8]                 After being rebuffed when text messaging K, several days later, you then decided to go to the house she was then living in at Paengaroa, in the company of a friend of both you and K, who I will refer to as B.

[9]                 Just after 8 am on 10 November 2020, you arrived at K’s home. It would have taken you approximately 40 minutes, depending on traffic, to get to Paengaroa. You woke K by knocking on the door. Once she let you and B in, you asked K for a hug which she refused. She told you that you could not talk to her as you did in front of her son and expect everything to be fine the next day. K then walked back to her bedroom and got back into bed. You followed her and either got into or onto the bed beside her. You then leaned over K and put your arm around her neck into a headlock. She told you to stop. Before passing out she continued trying to tell you to stop as your actions were restricting her breathing.

[10]              The medical evidence appears to confirm that while K was unconscious, you undertook a serious assault about her face and head. She awoke to find B attempting to apply first aid to her head with a towel. The photographic evidence of the Police confirmed that there were large blood stains on the bedding. After that, during what

4      While some of the evidence of K was unequivocal on certain points when she made her original statement to the Police dated 12 November 2020, subsequently, she changed her evidence during the trial. Where there is a conflict, I prefer K’s earlier evidence and statements, both in writing and subsequently given at the earlier aborted trials.

K described as a long drive to Rotorua and back, she was eventually taken by B to Tauranga Hospital, passing in and out of consciousness. All the while, you were tracked from your home address to K’s home and her bedroom before returning to Rotorua.

[11]              The medical evidence confirms that K suffered facial injuries and a brain bleed. She required surgery under general anaesthetic to repair a cut to her eyelid and remained in hospital briefly for the ongoing treatment of her injuries.

Victim impact statement

[12]K has not filed a victim impact statement.

Personal background

[13]              Mr Maney, you are 42 years old and are of Māori – Te Arawa, Ngāti Raukawa, Ngāi Te Rangi – and Scottish descent. The PAC report records that you have a significant criminal history commencing at the age of 17. You have amassed 64 criminal convictions between 1997 and 2020, consisting of violence, firearms, drugs, non-compliance, dishonesty and driving related offending. You have been subject to 28 sentences of imprisonment. At the time of your present offending, you were subject to parole release conditions. You had already breached your parole four times.

[14]              In addition, you have previously been convicted eight times for serious violence and have three convictions for assaulting either Police or Prison Officers. You have a history of intimate partner violence.

[15]              In 2021, you attacked your ex-partner’s sister by punching her in the head and then kicking her while she was on the ground. You said you became angry about a custody dispute. Three weeks later you broke into your female relative’s home and indecently assaulted her, which at the time you alluded to being a form of revenge. In 2004 you assaulted a fellow prisoner by punching him in the head then stomping on his head; he later died of his injuries. When you were released in 2007 you continued to violently offend. You punched a Police Officer in the head three to four times when being transported to Rotorua District Court. Once again in prison you assaulted

another inmate including by stomping on his head, and another still in 2010 when you broke his leg and jaw.

[16]              In June 2012 you assaulted your then partner in the course of an argument, throwing her to the ground and punching her in the head. While on parole in August 2013 you wounded another ex-partner by beating her. During that time, you were in possession of a sawn-off shotgun and ammunition. In 2015, you assaulted your partner by punching her and assaulted a female associate. A few months after that, while incarcerated, you assaulted two police officers.

[17]              In 2016, you threatened to kill an elderly male relative then lunged at him and grabbed his neck. That same year you attacked your mother causing fractured bones in her face.

[18]              The PAC report and s 27 reports record a very troubled upbringing. You told the report writer that you experienced physical, mental and sexual abuse as well as neglect. Your mother was a teenager when you were born, and you had to be resuscitated at birth. Your father was violent and beat you from infancy. You were often hit in the head, causing many head injuries and likely concussions. You may have suffered impairment as a result of this. Your father also abused your mother. You were sexually abused by family members. You then went to live with your grandparents where you were physically abused by your grandfather. You ran away at 12 years old and were homeless before being placed into a youth facility.

[19]              The report writer notes that your childhood instability, normalisation of violence and experience of sexual abuse may have contributed to your offending. Although you have no formal diagnosis, the report writers suggest your head injuries may also be a contributing factor, noting research connecting traumatic brain injury with offending, particularly intimate partner violence.

[20]              You have spent most of your adult life in prison and describe yourself as “institutionalised”. You say you made a decision to leave the Mongrel Mob. You describe to the report writer that you have connected with Christianity and this is helping you understand the need to control your anger. In prison you completed

programmes in anger management, alcohol and drugs and Tikanga Māori. You engaged with ACC counselling and departmental psychologists and have been prescribed medication to address your post-traumatic stress disorder (PTSD). You want to take part in a residential rehabilitative programme to address your offending. However, the PAC report writer notes that your engagement in rehabilitative programmes has significantly decreased in recent years due to your low motivation or being exited from programmes due to disruptive or aggressive behaviour. You say that the programmes have not been right for you.

[21]              The report writer notes PTSD is in general linked with offending. Your institutionalisation has left you with limited life skills, making it more difficult for you to break the cycle of reoffending and reimprisonment. The report also states that you have been provisionally accepted into the Grace Foundation but the report writer does not support that option at this time. Instead, a sentence of imprisonment is recommended.

[22]              The PAC report states that your offending against K is consistent with an entrenched pattern of violent offending. You maintained to the report writer that you were not guilty and therefore showed no remorse or empathy towards K. The PAC report concludes that you are at high risk of reoffending.

Health assessor reports

[23]              Psychiatric and psychological assessments have now been filed. The psychiatric assessment dated 12 December 2022 was completed by Dr Peter Dean. The second is from Ms Katie-Marie Jervis dated 20 March 2023, a registered psychologist. There is a third report from Dr Hans Laven, dated 4 November 2022, a clinical psychologist.

Dr Dean’s report

[24]              Dr Dean finds that you did not present in the interview with any signs or symptoms of a major psychiatric disorder. He states your background and behaviours are consistent with a dysfunctional personality structure of an antisocial type, characterised by impulsiveness and aggression. This is likely to have been enhanced

by the use of substances. He also states that although he does not have a formal assessment from an appropriately trained psychologist, you have a number of features indicative of a diagnosis of psychopathy.

[25]              Dr Dean comments that given you do not have a psychiatric disorder the best risk indicator is your past behaviour. He notes that despite undertaking that you were making attempts to turn your life around you have continued to violently offend. Ultimately Dr Dean concludes that it is beyond his expertise to predict risk and provide a recommendation on sentencing.

Ms Jervis’ report

[26]              Ms Jervis’ report outlines the 14 previous reports prepared for you starting in 2003. She notes that your engagement with psychological services has been disjointed because of low motivation, a lack of insight and ongoing offending behaviour.

[27]              In addition, Ms Jervis notes that you exerted effort in the interview to present yourself positively, referring to your faith in God and self-rehabilitation leading to insights and a change of views. However, she records that between assessment interviews, despite professing your now calm disposition, you seriously assaulted a Corrections Officer and were placed in maximum security. She states that at times you displayed a lack of empathy regarding your overall violent offending.

[28]              Further, Ms Jervis’ report indicates significantly that evidence suggests your pattern of life for violence has remained steady since your youth and has shown no signs of decline.

[29]              According to Ms Jervis, your employment history has been “sparse”. She confirms the diagnosis of PTSD was made in 2010 by a clinical psychologist.

Dr Laven’s report

[30]              Dr Laven says that based on your description of your symptoms and the medication you had been prescribed, it is clear that you were diagnosed with a psychotic illness. You described the symptoms occurring when you were in an

isolation cell with disturbed sleep through constant light, which Dr Laven states is a type of experience known to cause psychosis. He comments that the medication has controlled these symptoms which were not affecting you at the time of the interview.

[31]              In addition, Dr Laven states that your description of PTSD symptoms are credible and your childhood experiences were more than sufficient to cause PTSD. There was no obvious evidence of Foetal Alcohol Spectrum Disorder or intellectual deficit.

[32]              Further, Dr Laven concludes that while the range of your past general offending is likely to be due primarily to personality, entitlement and criminal attitudes, some or many of your violent offences were likely to result from PTSD reactions, and that almost certainly included violence against partners. He also comments that you meet diagnostic criteria for antisocial personality disorder and a degree of psychopathy was indicated by your behaviour.

[33]              Finally, Dr Laven concludes until you have had the opportunity to benefit from psychological treatment for your primary conditions, your potential to overcome offending patterns cannot be predicted.

Approach to sentencing

[34]              In imposing your sentence today, I will first determine finite sentences for the charges of strangulation and wounding with intent to cause grievous bodily harm, taking account of any aggravating and mitigating features of the offending. I will then apply any uplifts or discounts to reflect personal factors.

[35]I will then consider whether you should be sentenced to preventive detention.

[36]              Throughout the whole exercise I must have regard to the purposes and principles of sentencing. Important principles include holding you accountable for harm, promoting a sense of responsibility, denunciation of your conduct, deterrence for you and other persons from committing similar offending, protection of the community, and assisting your rehabilitation and reintegration.

What are appropriate finite sentences for the two charges?

Starting point

[37]              Mr Jenson submitted that a starting point for both charges should be nine to ten years with an uplift of between 12 to 24 months for previous offending. Mr Jenson also argued that a further uplift for community protection may also be appropriate if a finite sentence is imposed. Following my questions on the subject, your counsel has agreed that a starting point of nine to ten years is appropriate.

[38]              As mentioned earlier, the maximum penalty for wounding with intent to cause grievous bodily harm is 14 years’ imprisonment, and the maximum penalty for strangulation is seven years’ imprisonment.

[39]              An important case on sentencing for serious violence and grievous bodily harm is R v Taueki.5 Another important case is Shramka v R which provides guidance for sentencing on strangulation offending.6 In that case the Court set out eight principal aggravating features:7

(a)premeditation;

(b)history of strangulation or prior very serious domestic violence;

(c)vulnerability including the relevance of psychological impacts;

(d)home invasion, even where not reinforced by a formal Court order/breach of protection order;

(e)aggravated violence including where a loss of consciousness arises;

(f)threats to kill;

(g)enduring harm to the victim, including psychological; and

(h)harm to associated persons.

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

6      Shramka v R [2022] NZCA 299.

7 At [42].

[40]              The Court of Appeal also said that a strictly mathematical approach would be inappropriate because sentencing is an evaluative exercise. Where aggravating features are present, the Court must consider the intensity of the factor and the harm it has caused. The Court said that an example involving six of the eight elements above could mean a starting point of five and a half years’ imprisonment.8 Where a history of strangulation or other serious domestic violence was present as well, then a starting point of six years would be appropriate.9

Aggravating features of strangulation offending

[41]              So, what then were some of the aggravating features of the strangulation offending? There was a degree of premeditation involved because you went to K’s home several days after the incident that occurred on 6 November 2020. On the other hand, it could be said that you were seeking a reconciliation but, as is clear from the text messaging between you both, K appeared to be in no mood for that. So, while it could be said there was a degree of premeditation, equally possible, is that you went to see her in an effort to try and make up for what had happened several days before. Even K acknowledges that your first interaction with her was intended to be conciliatory. However, when she did not respond how you expected then, as the jury have found, strangulation and a serious assault leaving K unconscious took place.

[42]              While there is no history of strangulation between you and K, there is a history of serious domestic violence on your part. I refer to your four previous convictions for violence, three against your former partners and one against your mother, all of which resulted in sentences of imprisonment. These are family violence offences, however you were not subject to a protection order at the time.

[43]              In terms of vulnerability of the victim, she had returned to bed when you strangled her. Before she lost consciousness she repeatedly asked you to stop. Once she had lost consciousness you then went on to seriously assault her to the head while she was unconscious and therefore particularly vulnerable. That she was unconscious and helpless would have been obvious to you.

8 At [47].

9 At [48].

[44]              Regarding the aggravating feature of home invasion or breach of a protection order, that does not apply here. You were not barred from being at K’s home and there was no protection order in place at the time. Even so, by travelling from Rotorua to Paengaroa you were breaching your prison release conditions. That of course is a separate matter and not included in the context of aggravating features of strangulation. More importantly, the Court of Appeal in Shramka recognises the right of a victim not to be harmed in their own home and says that invasion of the sanctity of the home is an aggravating factor in all violent offending.10

[45]Aggravated violence is present because K lost consciousness.

[46]              Regarding enduring harm to the victim, including psychological, undoubtedly the incident was harrowing for K. Despite her claims that it was B who assaulted her, which the jury did not accept, that K would have been harmed psychologically is obvious. Arguably, that is also amplified by the scheme to have her change her story, the involvement of Mr Whatarau and others in that process, and when considering K’s evidence during the trial, all of these elements contribute to a degree of psychological harm to K, whether she admits that or not. This is in addition to the serious physical harm that was caused to K. As already mentioned, she required surgery.

[47]              Finally, in the context of harm to associated parties, namely K and her teenage son, there is no evidence that he was present when the assault took place. He was at Rotorua at the Guy Fawkes event on because K said she did not appreciate being spoken to in an abusive manner in his presence. No doubt K’s son, seeing the injuries that has his mother had suffered, would be affected by that. However, there is no extra evidence as to the extent of harm, psychological or otherwise, to him. Common sense would suggest that seeing his mother seriously injured afterwards would have had some impact. The Family Violence Act 2018 defines psychological abuse of a child as including causing or allowing a child to see or hear, or creating a risk of seeing or hearing, the physical, sexual or psychological abuse of a person with whom the child has a family relationship, such as their mother.11

10     Shramka v R [2022] NZCA 299.

11     Family Violence Act 2018, s 11(2).

Mitigating features of strangulation offending

[48]              You did not force your way into K’s home, she invited you in and your initial conversation with her was amicable. As mentioned, there was no protection order in place and it would appear that you travelling to K’s home was an effort to effect a reconciliation.

Conclusion on strangulation offending

[49]              The Court of Appeal in Shramka sought to avoid providing guidance that was too strict or mechanical. It wanted to avoid providing a specific number of aggravating factors which had to be present in order to fall into a specific band of seriousness which would therefore dictate the starting point.12 The Court instead gave examples to indicate the worst type of strangulation offending. It is very similar to your offending in this case, Mr Maney.13 The only difference is that you did not breach a protection order by being in K’s home. The Court noted that in the example they provide, six of the eight aggravating features were present. The Court said that, assuming those six factors were present, this would justify a starting point of five and a half years’ imprisonment. If, as mentioned, there was also a history of strangulation or serious domestic violence, this would justify a six year starting point.14

[50]              In this case, the aggravating features present are: a degree of premeditation; history of serious domestic violence; victim vulnerability; that the strangulation occurred in the victim’s home; aggravated violence; enduring harm to the victim; and harm to associated persons.

[51]              In my assessment, the most serious aggravating elements in this case are the presence of serious domestic violence on previous occasions, the vulnerability of the victim, the relevance of psychological impact, aggravated violence, and enduring harm to the victim. Based on the similarity of the offending to the example provided in Shramka, the number of aggravating features present and the degree of seriousness

12     Shramka v R [2022] NZCA 299 at [43]–[45].

13 At [46].

14 At [47].

of those features, I consider that a starting point of six years for the strangulation charge is appropriate.

Aggravating features of wounding with intent to cause GBH offending

[52]              What then are the aggravating features of the wounding with intent to cause grievous bodily harm offending? Your offending was somewhat premeditated in that you travelled a not insignificant distance to the victim’s home where you then offended. As mentioned, it is unclear what your intentions were when you began your trip.

[53]              Once there however, you did inflict serious injury on the victim. Once unconscious you beat her to the head and she required surgery. This incorporates two aggravating features: serious injury, and the attack to her head. Attacks to the head can have very serious consequences and are treated in a similar manner to attacks involving the use of weapons.15

[54]              The victim was particularly vulnerable to your physical attacks because you had already strangled her into unconsciousness. She was therefore defenceless and unable to continue even attempting to stop you.

[55]The attack occurred in the victim’s home, specifically her bed.

Mitigating features of wounding with intent to cause GBH offending

[56]Apart from the absence of aggravating factors, there are no mitigating factors.

Conclusion on wounding with intent to cause GBH offending

[57]              The Court of Appeal guideline judgment in Taueki, suggests that offending will fall in band two if three aggravating features are present; and band three if three or more aggravating features present.16 Here there are five aggravating features present, to some degree. I note that there is overlap between the aggravating features present

15     R v Taueki [2005] 3 NZLR 372 (CA) at [31(e)].

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

in the strangulation offending and the wounding offending. However, if you were to be sentenced on the wounding offending alone, a starting point falling within band three, that is nine to 14 years’ imprisonment, or the upper end of band two, which is five to 10 years’ imprisonment, would not be unjustified.

Overall starting point

[58]              Considering the assessment of each of the charges and the starting points individually available for each of those charges, although high, I do not think that the starting point proposed by the Crown is excessive. I adopt an overall starting point of nine years’ imprisonment for the strangulation and wounding with intent charges.

Personal aggravating and mitigating factors

[59]              I now turn to your personal circumstances set out in your pre-sentence report. These may justify an uplift or discount to the starting point of nine years.

Personal aggravating factors

[60]              Mr Jenson highlighted that you have 65 previous convictions, including 17 for violent offending, including four in the context of family or intimate partners. The Crown submits that this justifies an uplift in the vicinity of 12–24 months’ imprisonment.

[61]I accept that an uplift of 12 months for your prior offending is appropriate.

Personal mitigating factors

[62]              Crown counsel have argued that neither your expression of any regret nor your personal background should attract any great discount to your sentence. Mr Jenson submitted that while the relevance of your background is evident from the reports, you have received discounts for this in the past. There have also been significant efforts and interventions to address issues which you have not engaged with. The Crown suggests that in those circumstances, if the Court imposes a finite sentence, then only a small discount for personal factors is appropriate.

[63]              I note that the PAC report states that you maintain your innocence and therefore show no remorse or empathy towards K. The PAC report also said that you have a tendency to adopt the position of a victim.

[64]              That said, your childhood was very difficult, those who should have cared for you and protected you did not. Instead, you were abused physically and sexually and as a result, doubtless traumatised regularly as a child. This has understandably led to serious and ongoing behavioural issues. Added to that has been the reference to the possibility of traumatic brain injury. I acknowledge that you have been given discounts for this in relation to sentences in the past. However, I do not think that as your past is clearly still affecting you in an ongoing way, that the discounts provided to you before cannot also be ongoing. In the circumstances, a discount of 15 per cent is appropriate to recognise your background.

End finite sentence

[65]              Taking a starting point of nine years’ imprisonment, adding an uplift of 12 months for previous offending, and applying a discount of 15 per cent for your background, arrives at an end sentence of eight years’ and six months’ imprisonment.

Should you be sentenced to preventive detention?

Crown submissions

[66]              In summary, Mr Jenson submitted that preventive detention aims to protect the community from those who pose significant and ongoing risks to public safety. He confirmed that you meet the criteria of having been convicted of a qualifying offence and being over 18 at the time of the offending. The Court must also be satisfied that you are likely to commit another qualifying sexual or violent offence if released when you finish your sentence. In considering the risk, Mr Jenson highlighted that the Court will be guided by the reports before making its own decision on preventive detention.

[67]              Counsel then referred to the reports of Dr Dean and Ms Jervis. He argued that Dr Dean confirmed you do not have a major psychiatric disorder but instead identified the features that suggest a diagnosis of psychopathy.  Dr Dean, according to counsel,

made it clear that there was a risk of failure for any future treatments, given the ongoing denial of offending. Mr Jenson argued that Ms Jervis’ report was even more critical, emphasising as she did, your high risk of reoffending. Counsel also emphasised that you met a number of the s 87(4) considerations regarding preventive detention.

[68]              Finally, counsel contended that preventive detention would ensure that you complete any required treatment and then satisfy the Parole Board that you will not pose an undue risk to the community before release. Added to that, he argued, were the ongoing protections offered by life parole and the sanction of recall which will be available if preventive detention is imposed.

[69]              Mr Jenson emphasised that an “incentivised” sentence is the only adequate means of protecting the community while providing a hope for you being rehabilitated to a point where it is safe for you to be released back into the community.

Mr Maney’s submissions

[70]              Mr Bott provided comprehensive submissions on this point. In summary, he submitted that a sentence of preventive detention should not be imposed. He reminded the Court that preventive detention is the most severe penalty a court can impose. Mr Bott contended that you are entitled to maintain your innocence despite a guilty verdict and that this is not a “block to treatment”. He argued that you are institutionalised and takes issue with the idea that further imprisoning someone who is already institutionalised, potentially indefinitely, is an appropriate response.

[71]              In addition, Mr Bott submitted that traumatic brain injury issues must be addressed and that at the very least an MRI scan should be completed as soon as possible. This will then assist in identifying relevant treatment measures, including medication, that could be applied to support your rehabilitation. Counsel argued that while there was responsibility on your part so too was their responsibility on the part of the state in failing to provide the tools and treatments required to end the seemingly constant circle of offending and imprisonment.

[72]              Mr Bott submitted that you are not a “lost cause” and the High Risk Personality Programme, referred to by Ms Jervis, is an example of a rehabilitation programme that you could potentially benefit from. I note that this is not currently running, but that it may recommence in Auckland prisons this year.

[73]              Mr Bott also referred to the ability for an extended supervision order (ESO) to be imposed if you do not sufficiently engage with rehabilitation programmes during your sentence. Ultimately, your counsel contended that preventive detention is not the only option and should not be imposed in your case.

Legal principles

[74]              Preventive detention falls under s 87 of the Sentencing Act 2002. The purpose of preventive detention is to protect the community from those who pose a significant and ongoing risk to the safety of the public.17 Importantly, it is not intended to be punitive.18

[75]              The imposition of preventive detention must be carefully considered.19 Even if the s 87 conditions are fulfilled, this does not mandate a sentence of preventative detention. The Court has ultimate discretion.20

[76]The s 87(4) factors which the Court must consider are:

(a)any pattern of serious offending disclosed by the offender’s history; and

(b)the seriousness of the harm to the community caused by the offending; and

(c)information indicating a tendency to commit serious offences in the future; and

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

(e)the principle that a lengthy determinate sentence is preferable if this provides adequate protection for society.

17     Section 87(1).

18     R v Johnson [2004] 3 NZLR 29 (CA).

19     Geoff Hall Hall’s Sentencing (online ed, LexisNexis) at [SA87.1].

20     R v Leitch [1998] 1 NZLR 420 (CA) at 429.

[77]              The Court of Appeal in R v Parahi provided helpful commentary on the purpose and nature of preventive detention.21

[78]              Another useful case is R v Batchelor, where the Court of Appeal upheld a decision of the High Court declining to impose preventive detention.22 Mr Batchelor had committed rape within three months of completing a sentence of imprisonment for a previous rape. In that case, a lengthy finite sentence, further treatment and the availability of an ESO at the end of Mr Batchelor’s sentence were held to be adequate to protect the community.23 This was despite health assessors not being overly optimistic about the prospect of successful treatment.

[79]              Then there is the Court of Appeal decision Cooper v R where an appeal was allowed quashing a preventive detention sentence for charges of wounding or injuring with intent to cause grievous bodily harm.24 In relation to the principle in s 87(4)(e), the Court emphasised that the availability of an ESO might assist at the conclusion of a finite sentence, and in fact a court must consider the possibility of an ESO when determining whether a finite sentence will provide adequate protection to the community.25 In Cooper, the Court held that the community would be safer if Mr Cooper was motivated to reform.26

[80]              The possibility of an ESO is relevant to the assessment of preventive detention. If a finite sentence, combined with an ESO would provide adequate protection to the public, then this is to be preferred to preventive detention.27

[81]              If I find that a sentence of preventive detention is appropriate then I must also order that you serve a minimum period of imprisonment (MPI) of at least five years.28

21     R v Parahi [2005] 3 NZLR 356 (CA) at [84]–[86].

22     R v Batchelor [2021] NZCA 160.

23 At [25].

24     Cooper v R [2020] NZCA 683.

25 At [26].

26 At [27].

27     R v Mist [2005] 2 NZLR 791 at [96]–[97].

28     Sentencing Act 2002, s 89(1).

Discussion

[82]              As you know, on 20 August 2019, Brewer J when sentencing you for causing grievous bodily harm and the request that you be sentenced to preventive detention, agreed that your criminal history showed a pattern of serious offending.29 He then summarised your history of offending.30 He considered the seriousness of the harm to the community caused by your offending and whether there was information that demonstrated your tendency to commit serious offences in the future. He concluded that your past behaviour meant that preventive detention was a real possibility.31

[83]              Brewer J noted that you had failed to properly address the causes of your past offending. More importantly, after considering your background history further, and after citing the many supportive submissions made on your behalf, including the reference to the Puwhakamua programme overseen by Billy McFarlane, at the end of his sentencing notes, as counsel has highlighted, Brewer J gave you this warning:32

But I would say that preventive detention would be inevitable if you commit a third strike. I think your understanding of that simple fact is likely to assist you in sticking with the programme.

[84]               The reports of Dr Dean and Ms Jervis address issues in relation to harm caused, risks of future offending, and your efforts to address the causes of your offending. As to risks, as mentioned, Dr Dean concluded that the best predictor of behaviour is past behaviour. Ms Jervis’ assessment conclusions are equally compelling, as to the risks of reoffending that you pose to the community.33

[85]              The latest PAC reports do not differ markedly from those submitted in 2019. Arguably, the situation today is worse for this reason: Brewer J made it plain to you in August 2019 that, while you qualified for preventive detention then, he would not impose that sentence because he considered you were serious about change. He also

29     R v Maney [2019] NZHC 2048 at [15].

30 At [16].

31     At [19]–[20].

32 At [37].

33    At paragraph 11 of her report Mr Jervis stated: There has been a significant level of serious harm to the community because of his offending, with him causing harm to multiple victim types including those in authority (e.g., police, prison staff, psychiatrists), family members (e.g., his mother, aunt, and intimate partners) and those recently acquainted to him or stranger victims. While in prison his use of violence has been fatal, in the community many of his assaults have caused serious injury and have had the potential to be fatal.

accepted that Mr McFarlane’s programme would assist you changing your behaviour for the better. Even so, Brewer J also made it clear that that would be your last chance and that, in effect, should there be any further offending of a serious nature, then you could expect a sentence of preventive detention.

[86]              As you know, your last sentence for violence of a domestic nature involved your mother and causing her injuries that included breaking her eye socket. As mentioned, Brewer J sentenced you to three years’, 10 months’ imprisonment. You were then released on strict conditions. Despite all of this, you went on to commit further serious violence, as confirmed by the jury’s conclusions at your trial in 2022.

[87]              While I acknowledge the presence of many of the s 87(4) criteria, I must also take into account the principle that a lengthy determinate sentence is preferable if this provides adequate protection for society.34 As mentioned above, the ability to impose an ESO in addition to a finite sentence is an important consideration and may tilt the balance against imposing preventive detention.35

[88]              Mr Maney, I have also received the letters from your mother, from your siblings and from your uncle and I have carefully reviewed those and taken them into account.

[89]              I also accept that the observations in the cases I mentioned, Batchelor and Cooper, are relevant here. While you have committed serious offending, caused serious harm, do not show significant remorse, and have demonstrated repeat offending, preventive detention remains a severe sentence. With the principle that a lengthy determinate sentence is preferable if this will provide adequate societal protection in mind, in combination with the availability of an ESO, I decline to impose a sentence of preventive detention.

34     Sentencing Act 2002, s 87(4)(e).

35     R v Batchelor [2021] NZCA 160 at [25]. See also R v Leitch [1998] 1 NZLR 420 at 430.

Minimum Period of Imprisonment

[90]              If a court sentences an offender to a determinate sentence of imprisonment of more than two years for a particular offence, it may, at the same time as it sentences the offender, order that the offender serve a minimum period of imprisonment in relation to that particular sentence.36 An MPI must not be longer than the lesser of two-thirds of the full term of the sentence, or 10 years.37

[91]              Mr Jenson argued that an MPI of two thirds was appropriate. Mr Bott instead submitted that no MPI should be imposed because he argued it would let the Department of Corrections ignore your rehabilitation needs and only start to consider that once the MPI had been completed.

[92]              Mr Maney I am going to impose an MPI of 60 per cent. I am imposing this MPI mainly for reasons of ensuring the community is protected from your offending for at least this period of time. You have offended repeatedly, with violence and against multiple, vulnerable victims. You have had some engagement with rehabilitation in the past but I implore you to take up further rehabilitation and to engage with the rehabilitation that will be offered to you. As foreshadowed, I also consider than an ESO is appropriate.

Sentence

[93]              Mr Maney, would you please stand. On the charges of wounding with intent to cause grievous bodily harm and strangulation, I sentence you to eight years’ and six months’ imprisonment.

[94]              You must serve a minimum period of imprisonment of 60 per cent of that sentence being five years.

Please stand down.

Harvey J

36     Sentencing Act 2002, s 86(1).

37     Section 86(1).