R v MH
[2025] NZHC 501
•13 March 2025
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
I TE KŌTI MATUA O AOTEAROA
TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE
CRI-2024-063-001741
[2025] NZHC 501
THE KING v
MH
Hearing: 13 March 2025 Appearances:
L K McMaster for Crown J E Tarrant for Defendant
Sentence:
13 March 2025
SENTENCING NOTES OF HARVEY J
Solicitors/Counsel:
Crown Solicitors, Rotorua
Jessica Tarrant, Barrister, Hamilton
R v MH [2025] NZHC 501 [13 March 2025]
Introduction
[1] MH, you appear for sentencing today having pleaded guilty to charges of injuring with intent to cause grievous bodily harm,1 possession of an offensive weapon,2 threatening to kill3 and resisting Police.4
[2] Your case was transferred from the District Court to this Court because Ms McMaster, for the Crown, has asked for a sentence of preventative detention. She argues that such a sentence is appropriate in the circumstances because you pose a real risk of committing another qualifying violent offence if you were to be released at the end of a finite sentence. She also says that a further minimum period of imprisonment of 50 per cent of the end sentence is justified. Your counsel, Ms Tarrant, asks for a finite sentence so that you can access appropriate rehabilitative support and programmes, with the additional support of a strengthened extended supervision order (or ESO) when you are released.
[3] This sentence is in four parts. First, I outline the facts of your offending. Second, I discuss your personal circumstances. Third, I will fix your sentence. Finally, I will decide whether a sentence of preventative detention should be imposed.
The offending
[4] According to the agreed summary of facts, on the morning of 24 October 2023, you and your father were at home. An argument broke out after he refused to take you to another address. You threatened to punch the victim and you grabbed him as he tried to walk past you, manhandling him around the lounge and smashing a glass cabinet in the process. Your father was then able to get out of the house, as he jumped over the decking wall onto the driveway. You gave chase, grabbed him by the shoulders and tried to drag him back into the house. When that failed, you grabbed a large umbrella and struck him across the stomach area, breaking the umbrella.
1 Crimes Act 1961, s 189(1). Maximum penalty: 10 years’ imprisonment.
2 Crimes Act 1961, s 202A(4)(b). Maximum penalty: three years’ imprisonment.
3 Crimes Act 1961, s 306(1)(a). Maximum penalty: seven years’ imprisonment.
4 Summary Offences Act 1981, s 23(a). Maximum penalty: three months’ imprisonment or a $2,000 fine.
[5] You then grabbed another weapon, a half-size steel shovel. When he saw you pick up the shovel, your father adopted a foetal position to protect himself. You aimed the shovel at his covered head and struck him with full force six to seven times — however, the blows struck his arm which he was using to shield his head. The attack ended when a member of the public intervened and told you to stop. This gave your father the opportunity to get into their car and leave the address.
[6] The Armed Offenders Squad from Hamilton went to arrest you as they assessed you were high risk. When they arrived, almost four hours later, you were still in a heightened and aggressive state. The Police attempted to negotiate but you did not listen and could be seen to be holding a large kitchen knife. You repeatedly threatened to kill any officer who entered the house from the time they arrived until your arrest.
[7] Police deployed CS gas and you came out of the bedroom you had barricaded yourself in and adopted a fighting stance. You were tackled to the ground by a member of the Armed Offenders Squad, and you responded by tensing yourself and putting your arms under your body. Another member of the Armed Offenders Squad had to assist to gain control over you, but you were not subdued until a police dog was used. You were then taken into custody.
[8] The victim suffered several large scratches to his body and a large hematoma to his right forearm.
Personal background
[9] The following information about your personal background comes from your pre-sentence and s 88 reports, and the letters provided by your mother and partner.5
[10] You are 38 years old, of Ngāti Porou and Ngāti Tūwharetoa whakapapa. You have three biological children and a whāngai son. You had a troubled and unstable childhood. You witnessed domestic violence at home within the context of parties and heavy alcohol use. You also report suffering physical abuse and an instance of sexual abuse. You struggled academically at school, were bullied, fought with your peers and
5 It is important to note that you refused to engage with the pre-sentence report writer and it was therefore written without your input.
showed aggression towards teachers. You began using drugs and alcohol at an early age and have continued to use alcohol and cannabis throughout adulthood.
[11] You have longstanding family connections to the Mongrel Mob and were a patched member of Black Power until 2013 (having been recruited in prison in 2009). You were assaulted in prison in 2013 by Black Power once they found out you were incarcerated for child sexual offending, and you claim to have sustained a significant brain injury as a result. You report suffering difficulties with memory since then. However, because you denied access to your medical records, the details could not be verified. Likewise, your claims of suffering from foetal alcohol syndrome, ADHD, PTSD or psychosis or both could not be verified.
[12] Your partner lives in Hamilton. However, due to family harm incidents including a serious assault against her in 2022, as well as your continued violent offending, the conditions of your extended supervision order prevent you from entering Hamilton. Despite this, your partner remains supportive of you. Your parents have also remained supportive. Despite your offending against your father, they have consented to you living with them following release, more than once. Given your second assault against him, Corrections are now considering altering your ESO to prevent you from entering Turangi, to allow your father to be safe in his own home.
The pre-sentence report
[13] The 4 March 2025 the pre-sentence report noted that you have a history of problematic relationships with your partners, and that you have struggled with relationships within your whānau. Due to your offending, you have struggled to maintain long term employment. The pre-sentence report recorded that you have consistently shown a disregard for authority, a lack of empathy for victims and no remorse for your offending. Most of your violence appears to be due to poor emotional regulation. The report says that you have not taken responsibility for your behaviour, often shifting the blame or seeking to justify your actions.
[14] The report writer discussed your criminal history and noted that the offending involved a mix of victims (older and younger family members, Police and Corrections
staff, fellow prisoners and partners) but mostly involved violent offending. A 10-year extended supervision order (ESO) was imposed on 1 March 2018.
[15] The pre-sentence report recorded your offending related factors as a violent propensity and an offending supportive attitude. Alcohol and relationships have also contributed to your offending at various times. The report assesses your likelihood of re-offending as very high. Despite efforts to support you to address your offending behaviour, you have failed to engage. This was largely due to your behaviour towards staff which meant that only superficial engagement could happen to avoid triggering a hostile or aggressive response.
[16] In addition, the pre-sentence report recorded that you have accumulated five breaches of your ESO. While in custody for your current charges, you have also accumulated an average of one to two misconducts per month against custodial and medical staff. These involved assaults, verbal abuse and threatening behaviour. The report noted that this behaviour, alongside your offending, risk assessment and ESO restrictions, limits your options for suitable community-based accommodation.
[17] Further, the report stated that after your most recent release on 7 June 2023, emergency accommodation was arranged for you in Rotorua but this proved unsuitable due to the behaviour of the other occupants. You were unable to stay at your partner’s house in Hamilton because, as mentioned, your conditions of release prevent you from entering that area. As also mentioned, although you had assaulted your father before, your parents were supportive of you living with them, provided you took your medication. You initially engaged with community mental health but this was not maintained. This made it problematic to confirm if you were taking your medication.
[18] The pre-sentence report noted that before your recent offending you had difficulty engaging with Corrections staff and were often hostile, aggressive, intimidating and threatening to your recent Probation officer. This led to a charge being laid and for your reporting to the Probation officer to be moved from the Corrections site to the Police station. The report summarised that you continued to show a severe lack of self-regulation and that you react violently towards others with little to no provocation in both a community and custodial environment. There are no
apparent signs of remorse and you seem not to discriminate in terms of victim type. Your response to your ESO has been poor. You have exhausted options to be housed safely in the community. The report recommended imprisonment and invited the Court to consider preventive detention.
Section 88 reports
Dr Kumar’s report
[19] Psychiatric and psychological reports were filed per s 88 of the Sentencing Act 2002. Dr Kumar prepared a psychiatric report dated 2 December 2024, and noted findings in the psychological report by Helen Venning that you:
(a)had grown up in a lifestyle of alcohol abuse and domestic violence which you modelled as you grew older;
(b)developed an entrenched belief system that normalised alcohol and substance use;
(c)considered others could be controlled by violence, that women were inferior to men and that others were unreliable and untrustworthy;
(d)you often drew negative interpretations of the motives of others and relied on substances from an early age to manage your distress and to socialise with others; and
(e)you used violence to develop a reputation among antisocial peers, make personal gains, establish the compliance of others and to reduce anxiety associated with perceived or real threats.
[20] In Dr Kumar’s opinion, you displayed features of antisocial personality disorder with a longstanding history of conduct disorder since childhood, criminal behaviour as an adult, interpersonal conflict associated with violence, not taking responsibility for your actions, impulsivity, lack of remorse, dysfunctional intimate relationships, superficiality and substance abuse. Although you claimed to suffer from
ADHD and a traumatic brain injury suffered while in prison, as mentioned, you declined Dr Kumar access to your medical records to corroborate these claims. Dr Kumar found that you present:
… with a combination of static, dynamic and risk management factors which suggest [your] risk of committing a violent offence will be high. For [you], violence appears to have become an entrenched pattern of behaviour which serves a range of purposes including establishing [your] dominance, gaining respect from others, acquiring gains and managing anxiety arising from feeling threatened by a sense of persecution from others.
Dr Muirhead’s report
[21] Dr Muirhead’s report found that your RoC*RoI score confirmed that you were at a very high risk of imprisonment within five years of being released. The VRS assessment also placed you in the high-risk category. Likewise, when assessed on the PCL:SV, your total score (and scores for both interpersonal traits and socially deviant behaviour) were above average. Your risk of future sexual violence was assessed under the VRS:SO as being above average, however this was largely due to your high risk of violent and general offending rather than due to sexual deviancy. Under the RSVP-V2, you were also assessed as a moderate-high risk for sexual violence.
[22]The report recorded that you were:
… able to remain free of violence and sexual convictions for approximately four and a half years in the community between 2018 and 2022. This period occurred at the same time as [you] beginning a new relationship with [your] current partner and becoming a father. It is possible that this relationship and becoming a father mitigated some of [your] risk for a period of time, though [your] return to violence in 2022 was perpetrated against [your] partner. Since that lapse, [you have] engaged in further serious violence in the community and frequent violence while incarcerated. It appears that after [your] return to violence and your imprisonment, the additional restrictions around being with [your] family led to a loss of hope and [your] motivation to be a good role model for his children waning.
[23]The report concluded that while:
… the high level of oversight required by an ESO paired with significant wrap around support from Probation and Police may have reduced [your] violence for a time, [you were] convicted of further significant violence while serving an ESO. After considering [your] RoC*Rol, VRS, [your] PCL:SV score, as well as other relevant clinical factors such as fluctuating medication adherence, continued and frequent violence and threatening behaviour in prison (including aggression during interview with the current writer), and
limited noticeable treatment gains, [you were] assessed as posing a very high risk of future violence.
Approach to sentencing
[24] Deciding on your sentence involves two steps. First, the appropriate starting point must be determined, while taking account of any aggravating or mitigating factors of the offending. Second, that starting point must be adjusted to consider any aggravating or mitigating factors personal to you. Having regard to the purposes and principles of sentencing is also necessary.6 Important principles include holding you accountable for harm, promoting a sense of responsibility, denouncing your conduct, deterring you and other persons from committing similar offending, protection of the community, and assisting your rehabilitation and reintegration.
[25] The gravity of your offending must also be considered, including your degree of culpability, the seriousness of the offending in comparison with other types of offending, and the desirability of consistency with appropriate sentencing levels. The law requires that the Court must impose the least restrictive outcome that is appropriate in the circumstances, in accordance with the hierarchy of sentences and orders. The Court must take account of any of your particular circumstances that would mean that a sentence that would otherwise be appropriate, would be disproportionately severe. I must also consider your personal, whānau, community and cultural background in imposing a sentence with a rehabilitative purpose.
Starting point
Crown submissions
[26]Ms McMaster submitted that your offending includes four aggravating factors:
(a)The use of a weapon: you used the umbrella and a half-size steel shovel. While not inherently deadly, Ms McMaster emphasised that you used two weapons in a sustained assault.
6 Sentencing Act 2002, ss 7 and 8.
(b)The attacks to the head: you aimed six to seven full force blows to the victim’s head with a steel shovel, which he successfully deflected by adopting the foetal position. Ms McMaster contended that, while unsuccessful, you were attempting to attack the victim’s head with the steel shovel.
(c)The vulnerability of the primary victim: Ms McMaster argued the victim was vulnerable by virtue of his age (he was 57 years old at the time), his position on the ground and your use of a weapon.
(d)The secondary victims were constables acting in the course of their duty: you threatened to kill the Police officers who were attempting to arrest him.
[27] Counsel argued that your offending falls within band two of R v Taueki, for which starting points between five to 10 years are appropriate.7 Ms McMaster submitted that your offending is most comparable to the domestic violence example at [39(c)] in Taueki. Although not premeditated, counsel noted that your offending involved the use of two weapons which justifies a starting point in this region.
[28] Counsel also argued that your offending was similar to that in M v R.8 There the offender became enraged with his 11-year-old stepson when he lost the dogs during a hunting trip. He hit the victim approximately four times on the lower back with the butt of his rifle. A starting point of six years’ imprisonment was upheld by the Court of Appeal. Ms McMaster submitted the victims in both the current offending and M v R were vulnerable due to their age. Counsel also contended that your offending was more serious because it involved attempted attacks to the head. Nevertheless, Ms McMaster argued both sets of offending involved a spontaneous assault in a fit of anger at a minor issue. Counsel submitted M v R supports a starting point in the region of six years’ imprisonment.
[29] Ms McMaster also submitted that your offending is similar to, albeit more serious than, the offending in R v Abbott.9 There the offender tried to hit the victim once in the head with a rock the size of a softball. However, the victim raised her arm
7 R v Taueki [2005] 3 NZLR 372 (CA).
8 M (CA428/2009) v R [2010] NZCA 127.
9 R v Abbott [2013] NZHC 62.
and the rock struck that instead. The offender punched and kicked the victim about the head multiple times. Kós J adopted a starting point of four years and six months’ imprisonment, finding that the offending fell at the top end of band one and the lower end of band two. Counsel argued that the present offending was more serious due to your use of weapons. Ms McMaster highlighted your sustained efforts to cause the victim significant harm. Counsel submitted a higher starting point is justified here.
[30] Ms McMaster argued that an uplift of nine to 12 months for your charges of possession of an offensive weapon, threats to kill, and resisting police is appropriate to reflect the totality of your offending. Counsel submitted that your threats to Police while using the knife to prevent them entering the property and to evade arrest is a serious example of offending of this kind. The Crown sought a starting point of between six years and nine months’ imprisonment to seven years’ imprisonment.
Defence submissions
[31] Ms Tarrant submitted that your offending falls on the cusp of bands one and two of Taueki. Referring to the example of a street attack at [37(a)] of Taueki, counsel contended that your offending was impulsive and brought about by minimal provocation. She emphasised that while the attack was aimed towards the victim’s head, the head was not hit due to deflection by the victim. Furthermore, Ms Tarrant noted that only minor/medium injuries were inflicted and these were not of a lasting effect. Counsel argued the only aggravating factors of your offending were:
(a)The extreme violence: you used a shovel to strike the victim six to seven times to their body and towards their head with full force. The head was not hit because the victim deflected it with their arm.
(b)The use of a weapon: you used a shovel found at the scene as well as an umbrella.
(c)The vulnerability of the victim: as mentioned, your father 57 years old and you attacked him while he was on the ground.
[32] Ms Tarrant also referred to Karawana v R, in which there was an altercation after the offender had been consuming alcohol.10 The offender retrieved an air pistol and shot the victim five times in the head. One of the pellets damaged the victim’s right eye and blindness resulted. The Court of Appeal held the appropriate starting point for wounding under s 188(2) was three years’ imprisonment.
[33] Counsel mentioned the case of Lakau v R where the offender struck the victim twice in the face without warning outside a restaurant.11 The offender then held the victim while an associate punched him multiple times in the head. The offender then delivered another punch sending the victim to the ground. While on the ground, the offender stomped on the victim’s face, holding a table and fixture to provide leverage and power to stomp. The victim attempted to sit up, but the offender punched him again in the head and he was kicked by the associate two more times, once to the body and once to the head. The attack lasted 18 seconds. The victim sustained numerous abrasions and bruises to his head, as well as a concussion. The sentencing judge adopted a starting point of four years’ imprisonment for the lead offence.
[34] Ms Tarrant submitted that taking into consideration the circumstances of this case, a starting point in the range of three years and six months’ to four years’ imprisonment is appropriate for the lead charge of injuring with intent to cause grievous bodily harm. Counsel then contended that an uplift of six to 10 months’ imprisonment is appropriate for the remaining violence/resisting offending. Ms Tarrant seeks an aggregate starting point of four years’ to four years and 10 months’ imprisonment.
Discussion
[35] I consider your present offending falls on the cusp between bands one and two of Taueki. It appears to be most similar to the example of a domestic assault (albeit against a family member rather than a partner) at [37(b)] of Taueki. This is because the attack was impulsive, the victim was vulnerable and no lasting injuries were caused. However, here there was also the use of two weapons during a sustained
10 Karawana v R [2013] NZCA 516.
11 Lakau v R [2024] NZHC 2578.
assault, and the only reason more serious injuries were not inflicted was likely due to the defensive actions of the victim which protected his head.
[36] Turing to the case law cited by counsel, your case has some similarities to M v R. It involved use of a weapon to strike a victim multiple times over a minor and impulsive provocation. While the victim in M v R was more vulnerable, aged only 11 years old, the present offending involved the use of a more dangerous weapon and was aimed at the victim’s head, albeit unsuccessfully. It was also part of a sustained assault involving an earlier scuffle inside the house, the attack with the umbrella and a chase before the attacks with the shovel. Nonetheless, the assault in M v R appears to have resulted in lasting injuries and, in particular, it potentially fractured the victim’s femur. I consider that the offending in this case is somewhat less serious than in M v R as it did not result in any lasting injuries.
[37] I also consider the present offending to be slightly less serious than in R v Abbott. That case involved home invasion, direct blows to the head and more serious injuries to the victim. On the other hand, the use of a weapon was less pronounced there. Both involved a sustained assault. In contrast, I consider your offending to be more serious than in Karawana v R. Although the resulting injuries were more serious in that case, the offender was specifically found not to have intended to cause grievous bodily harm.12 There was also no evidence the victim was vulnerable nor was the offending of a sustained nature.
[38] I also find your offending to be slightly more serious than in Lakau v R. That case did not involve an inherently vulnerable victim, there was no use of a weapon and the assault was serious but not sustained. On the other hand, it involved two assailants and direct blows to the head. Nonetheless, the victim does not appear to have suffered lasting injuries, although the effects of the victim’s concussion is unclear on the face of the decision.
[39] Taking the aggravating factors of your offending into account, as well as relevant case law, I find that a starting point of four years and four months’
12 This led the Court of Appeal to quash the conviction under s 188(1) and replace it with one under s 188(2).
imprisonment is appropriate for the lead charge of injuring with intent to cause grievous bodily harm.
[40] To this starting point, I consider an additional uplift of 12 months is justified for your charges of possession of an offensive weapon, threats to kill, and resisting police. The details of your offending are extremely serious and represent, as Ms McMaster submitted, a vivid example of offending of this kind. You barricaded yourself in your room for hours while threatening to kill Police officers and brandishing a kitchen knife. You were only subdued through the use of CS gas and a Police dog. Taking this uplift into account, a total starting point of five years and four months’ imprisonment is appropriate in your case.
Aggravating and mitigating personal factors
[41]I turn now to consider your personal factors.
Previous convictions
[42] Ms McMaster sought a 10 per cent uplift to reflect your significant history of violent offending over 20 years. This offending includes the following convictions:
2004 Assault person with a blunt instrument 2009 Common assault x 4 Assault police x 2
Assault person with a blunt instrument
Males assaults female
2005 Males assaults female Resisting police 2011 Assault with intent to injure Common assault x 2 2006
Assault with intent to injure Common assault x 3
Possession of an offensive weapon Male assaults female
assault police x 3
2012 Indecent assault
Injures with intent to injure
2006 Resisting police 2022 Resist police Assault police 2007 Possession of an offensive weapon 2023 Behave threateningly x 2 2008 Threatening to kill
Possession of an offensive weapon
[43] Ms Tarrant accepted that an uplift of six to nine months for your previous offending would be appropriate and proportionate. Given the extensive nature of your previous offending, an uplift of 10 per cent is justified in this case.
Guilty pleas
[44] Ms McMaster acknowledged that you entered a guilty plea early and that a reduction of up to 25 per cent could be available for this. Ms Tarrant submitted that a reduction of 25 per cent is appropriate in accordance with Hessell v R.13 Given the early nature of your guilty pleas, a reduction of 25 per cent is appropriate.
Other factors
[45] Without seeking any further reductions, Ms Tarrant raised three further points as mitigating factors of your offending. First, the s 88 reports identified that you were subject to systemic deprivation impairing your choices throughout life, which counsel submitted diminishes your moral culpability and “normalised” your criminal behaviours.14 Second, in early life, you suffered a traumatic brain injury which Ms Tarrant contended had some kind of causal link to your violent offending. While counsel acknowledged the s 88 report writers were unable to provide further information regarding the background factors for injury, she argued that it is well known that such injuries can cause significant issues with anger and violence.
[46] Third, the s 88 reports record that you have identified with suffering from ADHD, psychosis, sleep problems, anxiety and PTSD. You did not grant access to review your medical records, so these conditions could not be confirmed by the report writers. However, Ms Tarrant argued that it is clear from the reports that when you are compliant with your medication these symptoms and health issues decrease, which suggests they are a relevant factor in your life.
[47] I consider that there is insufficient information available to provide any reductions for your traumatic brain injury and mental health issues. In part, this is because of your refusal to co-operate with the report writers by sharing your relevant
13 Hessell v R [2010] NZSC 135.
14 Citing Zhang v R [2019] NZCA 507.
medical records. Without these records, or an independent diagnosis, the Court is left with unverified self-reported issues. On the other hand, I consider a 10 per cent reduction is appropriate for the difficulties you experienced during childhood, including exposure to domestic violence, drugs and alcohol, limited parental oversight, subjection to physical abuse and one instance of sexual abuse, as set out above and in your s 88 reports. As stated in Dr Muirhead’s report:
Together, these experiences likely formed beliefs that violence and substance use are normal and appropriate ways of solving problems, and that [you] had to learn to look after [yourself] because — others cannot be relied upon and will likely hurt [you].
[48] These entrenched beliefs were referred to frequently in your reports. This demonstrates that the deprivations and challenges of your upbringing was a contributory factor of your offending justifying the above reduction.
End finite sentence
[49] Taking a total starting point of five years and four months’ imprisonment, adding a 10 per cent uplift for previous offending, and applying reductions of 25 per cent for your guilty pleas and 10 per cent for your personal backgrounds results in an end sentence of four years’ imprisonment.
[50] I also note that the firearms prohibition order sought under s 39A of the Arms Act 1983 is unopposed. It is granted, as I am satisfied that, on the balance of probabilities, the imposition of such an order is necessary, reasonable and appropriate to assist in managing the risk you pose to public safety.
Minimum period of imprisonment
Legal principles
[51] Section 86 of the Sentencing Act applies here. It provides that the Court may order that an offender who is to be sentenced to a determinate sentence of more than two years’ imprisonment must serve a minimum period of imprisonment that is longer than the period otherwise applicable under s 84(1) of the Parole Act 2002 if the Court is satisfied that that period is insufficient for all or any of the following purposes:
(a)holding the offender accountable for the harm done to the victim and the community by the offending;
(b)denouncing the conduct in which the offender was involved;
(c)deterring the offender or other persons from committing the same or a similar offence; and/or
(d)protecting the community from the offender.
[52] An MPI must not exceed two-thirds of the full term of the sentence.15 When an MPI is under consideration, the sentencing judge must carry out a two-stage process. First, fix the maximum length of sentence by reference to all relevant sentencing considerations. Second, and as a separate exercise, consider whether the offending itself is sufficiently serious that serving the normal minimum period of one-third of the sentence will be insufficient to meet one or more of the four specified purposes in s 86(2) of the Sentencing Act. The assessment should not be conducted in a routine or mechanistic way, without regard to the circumstances of the individual case.16 An MPI can only be justified if there are aggravating factors in a particular case that render the normal parole period clearly inadequate for the purposes of punishment, denunciation, deterrence or protection of the community.17
Crown submissions
[53] Regardless of whether an order of preventative detention is made, Ms McMaster submitted that a minimum period of imprisonment of at least 50 per cent of the nominal end sentence is necessary. Counsel contended that previous sentences of imprisonment have not deterred you from re-offending in any serious way, and it is clear from the factors discussed above that you present a real and significant risk of re-offending upon release. Ms McMaster argued that the serious nature of the present offending, in light of you criminal history and lack of insight and remorse, are such that your release after one third of the end sentence (whether fixed or nominal) would be insufficient to hold you accountable for your actions, to
15 Sentencing Act 2002, s 86(4)(a).
16 Tang v R [2021] NZCA 266 at [35].
17 R v Gordon [2009] NZCA 145.
denounce your conduct, to deter you and others from committing similar offences, and to protect the community.
Defence submissions
[54] Ms Tarrant acknowledged that a minimum period of imprisonment of 50 per cent to two thirds of the finite sentence is appropriate in this case given your criminal history and offending while on an extended supervision order.
Discussion
[55] MH, I find that imposing an MPI of 66 per cent would be justified if you are granted a determinate sentence. This is mainly for reasons of ensuring the community is protected from your offending for at least this period. You have offended repeatedly, with violence and against multiple vulnerable victims. This would result in an MPI of approximately two years and seven months.
Should you be sentenced to preventive detention?
Legal principles
[56] Section 87 of the Sentencing Act provides that the purpose of a sentence of preventive detention is to protect the community from those who pose a significant and ongoing risk to the safety of its members. Section 87 applies if a person is convicted of a qualifying violent offence and was aged 18 years or more at the time of the offence. There is no dispute you have been convicted of a qualifying violent offence committed when you were more than 18 years old. The only remaining issues under s 87 is whether you are likely to commit another qualifying offence if you were to be released at the end of a sentence, other than one of preventative detention.
[57]The Court of Appeal in Pascoe v R held:18
Once an offender's statutory eligibility for its imposition is satisfied, the Judge must conduct a fact intensive inquiry. It is essentially an exercise in judicial evaluation of the risk the offender would pose to the community if he was released from custody at the expiry date of an otherwise appropriate finite sentence.
18 Pascoe v R [2013] NZCA 594 at [14].
[58] The decision whether to impose that sentence is discretionary, requiring the balancing of numerous and often conflicting considerations.19 In determining whether preventive detention is appropriate, the Court is required to take account of the five factors set out in s 87(4):
(a)any pattern of serious offending disclosed by the offender’s history;
(b)the seriousness of the harm to the community caused by the offending;
(c)any information indicating a tendency to commit serious offences in the future;
(d)any absence 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.
[59] The Court of Appeal has held that the sentence has a preventive, not a punitive, purpose and may only be ordered to protect the community from further offending.20 This Court must assess the nature and relevance of your current and past offending and its relationship to future risk. Then the overall risk of future serious reoffending must be assessed. The Court must then finally determine how that risk is best mitigated — taking account of the principle that a finite sentence is to be preferred when it provides adequate protection for the community. The assessment of risk must relate to the risk of reoffending at the sentence expiry date of the notional finite sentence.21 The critical sentencing consideration here is community protection.22
[60] Further, the Court of Appeal in R v Leitch held that the requirement the Court be “satisfied” does not require proof beyond reasonable doubt. Rather, the Court must simply make up its mind — being satisfied “is indicative of a state where Court on the evidence comes to a judicial decision.”23
19 M (CA236/15) v R [2016] NZCA 77 at [28].
20 R v Johnson [2004] 3 NZLR 29 (CA) at [22] and [24].
21 Cooper v R [2020] NZCA 683 at [24].
22 R v C (CA249/02) [2003] 1 NZLR 30 (CA) at [5].
23 R v Leitch [1998] 1 NZLR 420 (CA) 428.
Crown submissions
[61] Ms McMaster submitted there is a clear pattern of your involvement in serious offending. You have accrued 55 convictions over a 20-year period, in addition to the present charges. While incarcerated, you have also amassed 36 misconduct findings and have been named in 146 incident reports which include assaults on Corrections officers and being in possession of weapons. Counsel contended you pose a real risk of serious harm to the community, especially in domestic settings towards your partners, relatives or father. You have also offended in a sexual and violent manner against family members, which shows an entrenched pattern of harmful behaviour.
[62] Regarding your tendency to commit serious offences in future, Dr Kumar’s report found you presented with ongoing violent ideation, had no insight into the impact of substance abuse or violence on others around you, and had a rigid pattern of thinking where you do not take responsibility for your actions and instead blame others. Your history of breaching court-imposed conditions was noted which limited your ability to participate in supervision. He considered your poor insight would limit your compliance and responsiveness to treatment and supervision. Dr Kumar considered you had poor stress and coping abilities and have used violence or substance abuse to manage. He concluded you appear to have an entrenched pattern of behaviour serving several purposes including establishing dominance, gaining respect, acquiring gains and managing anxiety arising from feeling threatened by a sense of persecution from others.
[63] Dr Muirhead noted that, upon completion for your sentence for violent and sexual offending committed in 2012, you were assessed as a very high risk of future violent offending and a high risk of future sexual offending. You were released from prison in June 2023 and rapidly returned to problematic behaviour. Dr Muirhead found that your offending appears to have developed from antisocial beliefs around using violence to achieve your goals and your strong sense of entitlement. Your RoC*RoI indicated a very high risk of imprisonment within five years of release and you were placed in the high-risk category of the VRS assessment. Dr Muirhead considered that judicial sanctions including imprisonment have had a limited impact
on reducing your risk of violence. The report assessed your risk of further qualifying offending as very high and your risk of future sexual offending as moderate-high.
[64] Regarding an absence or failure of efforts to address the causes of your offending, Ms McMaster referred to your five convictions for breaching an extended supervision order granted by this Court on 1 March 2018. She further highlighted that you have offended on four occasions since it was granted. As referred to in Dr Muirhead’s report, counsel submitted that you have had the benefit of significant resources and support from your managing probation office while subject to the above order, but that you nonetheless returned to your previous pattern of offending.
[65] Ms McMaster contended that this is a continuation of your violent offending spanning over 20 years. Counsel argued that most of the gaps in your offending history were attributable to periods of incarceration and that this long-standing pattern of offending is evidence of an absence or failure of efforts to address the causes of your offending. Ms McMaster also noted Dr Kumar’s finding that you minimise and do not take full responsibility for your violent behaviour. Dr Muirhead’s report detailed you have previously engaged in eight sessions with a Corrections psychologist but have continued to commit violent offences.
[66] Counsel submitted that a lengthy determinate sentence would not be preferable. Given the contents of the reports and the high likelihood of you re-offending following release, she contended that a determinate sentence combined with an extended supervision order would not provide adequate protection of the public. In summary, the extended supervision order has not protected the community nor mitigated your violent offending. The two s 88 reports recorded that you are likely to commit another qualifying offence if released at the end of a finite sentence. For these reasons, and taking all factors into consideration, counsel argued a sentence of preventive detention is required to protect the community from the risk you pose.
Defence submissions
[67] Ms Tarrant submitted that while your criminal history shows a pattern of lower-level offending, there is no pattern of serious violent offending nor any pattern of sexual offending — you having only two convictions for sexual offending in 2006
and 2012 respectively. Counsel accepted that offending of the present kind is serious generally.
[68] Ms Tarrant also acknowledged the contents of the reports suggest there is no doubt that, without appropriate oversight and support, there is a high risk you will commit further violent offending. However, counsel contended that the assessment of risk must relate to your risk of re-offending at the sentence expiry date of the notional finite sentence. In that context, she cites two comments made by Dr Kumar
… current scientific literature reports certain factors that are associated with the risk of reoffending in groups of people who have committed violent offences. These factors can not predict an individual’s risk of reoffending in the distant future with any degree of certainty.
…
It is possible should [MH] be offered appropriate rehabilitation designed for reducing violent re-offending his future risk may change.
[69] Ms Tarrant further argued that you have taken part in some interventions by way of individual psychological treatment up until 2021, albeit nothing since. Counsel also noted you obtained a “brief” alcohol and drug programme in 2016, but nothing since. The extended supervision order was imposed on you in 2018. Ms Tarrant submitted there is no evidence to suggest anything has been done with you or offered to you since 2021.
[70] Counsel confirmed that your last lengthy sentence was imposed in 2013 of three years’ imprisonment for indecent assault and injuring with intent. Ms Tarrant was unsure if you served the entire sentence or were released on parole, but during this hearing that has been clarified. Nevertheless, counsel submitted that most of your convictions resulted in short terms of imprisonment where the parole board would not have been involved and during which you would not have had time to complete any interventions meaningfully or even to be referred to programmes in time before release. Ms Tarrant contended that you have never served a lengthy period of imprisonment during which intervention could be provided, and that this is a factor the Court needs to consider notwithstanding the five year sentence discussed earlier.24
24 Citing Pritchard v R [2010] NZCA 403.
In essence, counsel argued that in recent years efforts to help mitigate the risks you pose have been limited.
[71] In contrast, Ms Tarrant submitted that a finite sentence would provide you with the opportunity to participate in prison-based rehabilitative programmes and that the community would be adequately protected by a finite sentence if it offered a realistic prospect of reform before release. Counsel contended that, even if an MPI is imposed, you would likely serve the whole sentence before release given your history. Ms Tarrant referred to the Court of Appeal’s discussion in Moore v R of the inconsistencies between preventative detention and various human rights instruments.
[72] Counsel considered the conditions of your current extended supervision order which was imposed in 2018 for a period of 10 years. Ms Tarrant argued that you have only breached the ESO a few times while it has been in force. While she acknowledged this may be as a result of you being in custody or remand for further offending, she submitted this established that you are not one of the most serious ESO breach offenders in the community. Although there has been further offending, counsel contended that little rehabilitation has been undertaken with you since 2021.
[73] Further, Ms Tarrant cited statements in Moore v R suggesting those on preventive detention may receive low priority for rehabilitative programmes.25 Counsel argued that upon release, the ESO conditions could be reviewed and enhanced to reduce the risk of reoffending and promote rehabilitation and reintegration. Furthermore, Ms Tarrant submitted that there is also the possibility of imposing an intensive monitoring condition under s 107IAC of the Parole Act 2002, requiring you to submit to being accompanied and monitored for up to 24 hours per day. An order imposing such a condition can only be made once and for a maximum of 12 months.
[74] For these reasons, Ms Tarrant contended that a finite sentence would be appropriate in the circumstances if you are provided with the appropriate rehabilitative interventions while in prison. You would then continue with your (potentially strengthened) ESO upon release. Accordingly, your counsel sought for a finite sentence to be imposed.
25 Moore v R [2023] NZCA 286 at [92].
Discussion
[75] The protection of the community is the critical preventive detention sentencing consideration.26 MH, your criminal history reveals a pattern of serious violent offending. This can be seen in their number and degree of severity, often involving domestic violence towards partners or family members. This is further supported by your misconduct while incarcerated, as recently as January and March 2025. In contrast, this pattern has not been constant. Following the imposition of the ESO in 2018, there was a period of three to four years without any violent offending. However, this changed when you assaulted your partner, leading to your exclusion from Hamilton and eventually followed by further violent offending including your present charges.
[76] The seriousness of the harm caused by your offending should not be understated. You are fortunate your father was not more seriously injured. Moreover, your other offending has caused significant harm to its primary and secondary victims, including your children, who witnessed the assault against your partner in 2022. As you know, witnessing domestic violence when young can have serious and detrimental impacts. In addition, the s 88 reports are not reassuring. With the pre-sentence report, they provide information indicating you are likely, or that you have a tendency, to commit more serious offences in the future. While they cannot predict whether you will definitely offend, they do provide evidence pointing in that direction.
[77] I find that there have been efforts by you and Corrections to address the causes of your offending. Dr Muirhead’s report records that you have had at least 129 individual sessions across eight psychological interventions since 2009. You completed a brief alcohol and other drug and an intermediate programme in 2016, both of which you had engaged well in. During the three to four years when you did not offend (and before, during and after 2021) Corrections report putting significant effort into providing you with wrap-around support, more than other offenders on their caseload. Corrections report having somewhat superficial interactions with you following your recent offending. This in part seems to due to the risk you pose to staff, given your numerous instances of misconduct, which include physical assaults.
26 R v C (CA249/02), above n 19, at [5].
[78] A somewhat trite example is that your psychological assessment conducted by Dr Muirhead also had to be stopped early due to the aggressive and intimidating attitude your adopted after being asked about your sexual offending. Alongside the numerous judicial interventions which have failed, I consider there have been numerous attempts by Corrections (and to a lesser extent) by yourself to address the causes of your offending. A failure to accept responsibility or show remorse for your actions, or to express empathy for your victims, is a recurring theme in your reports.
[79] Considering the principle that a lengthy determinate sentence is preferable if it provides adequate protection for society, it must be noted that following your last lengthy sentence from 2013 to 2018, you demonstrated significant rehabilitative potential for around four years under the conditions of your ESO and with psychological interventions until 2021. After these interventions ceased, you fell back into serious and violent reoffending from 2022 onwards.
[80] As noted by Dr Muirhead, it will be challenging to manage your current risk of future violence when you are released since there has been severe family harm since your period of relatively good behaviour. There will likely continue to be barriers to accessing your partner and children, and you may also not be able to reside with your parents. This raised the issue of where you might stay when released. As mentioned in the pre-sentence report, your response to your ESO has been poor and you seem to have exhausted options to be housed safely in the community.
[81] Consideration should also be had to Keane J’s prior decision declining to sentence you to preventive detention in 2013 when sentencing you for your indecent assault charge against a young relative and your injuring of another young relative with reckless disregard.27 At that time, the Judge considered you were on the cusp of a sentence of preventive detention, but he chose to impose a finite sentence because, among other reasons, you:
(a)had never undergone a lengthy sentence of imprisonment;
(b)had never been warned about the possibility of preventive detention;
27 [Redacted].
(c)an extended supervision order could be imposed on your release; and
(d)you had not yet conducted group therapy.
[82] MH, you have now undergone a lengthy sentence of imprisonment and demonstrated some rehabilitative prospects despite your ultimate relapse. As your counsel has raised, this may be the result of a failure to support and monitor your mental health — as some of this support seems to have ceased in 2021 prior to your recent offending. Furthermore, although you have been warned by Keane J about the possibility of preventive detention, I consider this warning was in relation to qualifying sexual offences, which you have not committed since.
[83] Nonetheless, Dr Muirhead’s report stated that, alongside your high security classification, your limited motivation for group therapy or treatment while in prison has prevented you from participating in a special treatment unit. This suggests your ongoing reluctance to take up the opportunity provided and promoted by Keane J to participate in group therapy. This needs to change and I implore you to participate in group therapy and all rehabilitative offerings possible.
[84] Accordingly, while there may be a risk that if you were released at the sentence expiry date of my proposed sentence, you may commit another qualifying violent offence, I am not satisfied that this is so. In particular, I note that the vast majority of your offending would not satisfy the definition of “qualifying offence” under the Act. Rather, as submitted by Ms Tarrant, much of your offending, though extremely serious, is not at the highest end of the spectrum.
[85] Furthermore, I do not consider that preventative detention is appropriate at this point in time. I note that you have demonstrated considerable rehabilitative potential during the period after your ESO was issued in 2018. However, I warn you that you must take the time while in prison to consider your family and to get involved in Corrections’ rehabilitative programmes, especially group therapy. By that process you can start to address the causes of your offending, eventually get released, and rejoin your family.
[86] But that can only happen if you take your medication consistently and stop acting and reacting with aggression and violence to Corrections staff, independent professionals and other inmates. You should also be supported via your ESO in terms of ensuring that your medication is taken regularly and at the times prescribed — Corrections should consider altering the conditions of the ESO accordingly. This will be crucial to your ongoing efforts at rehabilitation. But please make no mistake MH, should you commit any further acts of violence while in prison, then you will have significantly increased the risk of receiving a sentence of preventative detention to the point of certainty. You have been given opportunities to engage properly in rehabilitation but have not taken them up. You must take responsibility for your actions and do so now. Your future is in your own hands.
Sentence
[87] MH, would you please stand. I sentence you to four years imprisonment for the charges before you, consisting of:
(a)Four years imprisonment for the lead charge of injuring with intent to cause grievous bodily harm; and
(b)12 months’ imprisonment for the remaining charges to be served concurrently.
[88] You must serve a minimum period of imprisonment of 66 per cent of that sentence, being two years seven months.
[89]I make a firearms prohibition order under s 39A of the Arms Act 1983.
[90]You may now stand down.
Harvey J
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