R v Panapa
[2024] NZHC 3161
•29 October 2024
NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 202 OF THE CRIMINAL PROCEDURE ACT 2011. SEE
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2022-009-2037
[2024] NZHC 3161
THE KING v
MARCUS PAUL PANAPA
Hearing: 29 October 2024 Counsel:
W S Taffs for Crown
R A Peters for Defendant
Date:
29 October 2024
SENTENCING NOTES OF McHERRON J
Introduction
[1] Mr Panapa, you were found guilty of violent offending against your former partner at a jury trial before me earlier this year. You are here for sentencing on 20 charges. The charges are:
(a)Assault with a weapon (x 2).1
1 Crimes Act 1961, s 202C. Maximum penalty of 5 years’ imprisonment.
R v PANAPA [2024] NZHC 3161 [29 October 2024]
(b)Male assaults female (x 7).2
(c)Kidnapping (x 3).3
(d)Threatening to kill or do grievous bodily harm (x 3).4
(e)Injuring with intent to cause grievous bodily harm (x 3).5
(f)Attempting to pervert the course of justice (x 2).6
[2] I will decide what is an appropriate finite term of imprisonment for your offending, and whether I should impose a minimum period of imprisonment (an MPI). However, because of your history of violent offending, I also have to consider whether preventive detention is the appropriate sentence.7
[3] As your counsel Mr Peters puts it, the main issue before this Court is whether a significant but finite term of imprisonment is sufficient to meet the interests of justice, as opposed to the argument of the Crown that preventive detention should be imposed.
[4] Mr Panapa you have been sentenced many times before by many Judges and you know that I cannot just look at you and impose a sentence. Where preventive detention is in issue, the sentencing will take some time.
[5]I will address five matters:
(a)First, I will describe the facts of the offending. Sentencing is a public process.
2 Crimes Act, s 194(b). Maximum penalty of 2 years’ imprisonment.
3 Crimes Act, s 209(b). Maximum penalty of 14 years’ imprisonment.
4 Crimes Act, s 306(a). Maximum penalty of 7 years’ imprisonment.
5 Crimes Act, s 189(1). Maximum penalty of 10 years’ imprisonment.
6 Crimes Act, s 117(a). Maximum penalty of 7 years’ imprisonment.
7 Mr Panapa’s jury trial was transferred to the High Court because preventive detention was sought. See R v Panapa [2022] NZHC 671.
(b)Second, I will outline the approach taken to assess a starting point for all your offending together considering any mitigating and aggravating factors of the offending.
(c)Third, I will apply any uplifts or reductions from that starting point to reflect your personal aggravating and any mitigating factors. This will allow me to decide on a finite term of imprisonment.
(d)I will then consider whether to impose an MPI.
(e)Finally, I will consider whether a sentence of preventive detention is warranted.
Purposes and principles of sentencing
[6] In sentencing you today, I will apply the Sentencing Act 2002. The main purposes of sentencing in your case are to hold you accountable for the harm you have caused by your offending; to promote a sense of responsibility for, and acknowledgement of that harm; to denounce and deter such violence in our community; to protect the public; and to assist in your rehabilitation and reintegration into society.8 I must consider the gravity of your offending and your degree of culpability, and the seriousness of that offending. Your sentence must be consistent with other similar cases, and I should impose the least restrictive sentence appropriate in the circumstances. It is accepted by both Mr Peters and Mr Taffs that your offending must result in a sentence of imprisonment.
Acknowledgment of the victim
[7] First though, I want to acknowledge the complainant, Ms S, and her whānau. I have read your moving and powerful victim impact statements, and I have heard them read out in Court today. I acknowledge the harm this offending has brought to you all, as well as your desire to not be defined by this experience. In particular, to Ms S, I acknowledge your statement that although you have been caused a lifetime of damage, you will rise from this with resilience he cannot touch.
8 Sentencing Act 2002, s 7.
[8] I do have to describe the offending though in some detail, as that is the basis of the sentencing, and I apologise in advance that this may be painful. At a later point, I will also refer to specific parts of the victim impact statements.
[9] Mr Peters submits that “it is casting too wide a net to include [the impact of the offending] on family members” when determining the appropriate sentence. Applying the Victims’ Rights Act 2002, I disagree.9 I grant leave for the statement of the complainant’s mother to be considered.10 It is a matter for me to determine the weight I place on the statement — it is only one part of the overall picture though.11
Background
[10] Mr Panapa, you and Ms S began a relationship at the end of March 2021. At that time, you were serving a sentence of intensive supervision in relation to previous intimate partner violence.
Christchurch offending
[11] The first charge on which you were found guilty dates back to April 2021. You and Ms S were at a park, when she asked if she could use a public toilet. You told her to wait, and then hit her on the back of her head twice with a cell phone. The following incidents occurred over the same three-week period between April and May 2021:
(a)You would sit on a chair next to Ms S’s bed and punch her while she was lying in bed.
(b)You punched her in the head on a number of occasions, and then kicked her ribs when she was on the ground.
(c)When you were both in the car, you would hit Ms S.
9 Victims’ Rights Act 2002, s 17AAB.
10 Victims’ Rights Act, s 21(2).
11 Victims’ Rights Act s 22B(c).
(d)You would sit on a chair next to the bed, holding a pipe or a hammer. You would question Ms S about her faithfulness. You would hit her with the pipe or the hammer, usually in her back.
[12] During one period of four days between April and May 2021, you would not let Ms S leave the house. You would hit her. You told Ms S she could leave the house with her children, but then said that if her children arrived to pick her up, they would be held hostage.
[13] On 14 and 15 May 2021, Ms S was detained in the house. She did not answer the door on 14 May when the Police conducted a welfare check. Further:
(a)That same day, an argument started over dinner. You threw the pan on the floor and made Ms S clean it up on her hands and knees. You did this while sitting nearby with a knife and threatening to kill her if the Police showed up.
(b)Later that night, you made Ms S lie on the floor of the bedroom for long periods of time and did not allow her to go to the toilet. You sat in front of Ms S cutting her clothes up with a knife. You used a blowtorch to burn a hole in clothing Ms S was wearing. You said you would stab Ms S in the face, and demanded she tell you who she was cheating with. Ms S acquiesced and made a false confession.
(c)On several occasions, you said you would stab Ms S if Police arrived. You said she was not going to “walk out of this alive” and that, if you could not have her then “nobody else could”.
(d)That evening, you put a vacuum cleaner pipe against the door of the bedroom to track whether Ms S had left the house during the night.
[14] In the morning of 15 May 2021, you awoke with the belief the pipe had moved, and Ms S had left the house to cheat on you. You told her to leave and hit her on the back of the head with the vacuum cleaner pipe twice. Ms S began to run, but you grabbed her and punched her. She was pushed to the ground in the living room face
first. You punched her five or six times in the back of the head. Ms S screamed and begged you to stop. You stopped at some point, and Ms S escaped to a neighbour’s house.
Auckland and Wellington offending
[15] In June 2021, as part of your intensive supervision sentence, you were living in a rehabilitative facility in Auckland. You left this facility and contacted Ms S, despite your bail conditions prohibiting you from doing so. Ms S travelled to Auckland to meet you.
[16] The violent nature of the relationship resumed, and you punched Ms S in the head a few times. You and Ms S travelled to Wellington to stay at a backpackers. Ms S took a shower in a communal bathroom, with individual cubicles. You became angry because another male was using another cubicle. You banged on the door to Ms S’s cubicle and demanded she open it. She did so. You punched Ms S in the ribs and stomach before showering with her.
[17] Ms S attempted to leave you by catching a ferry, however she could not book or board as you had taken her ID. You found her at the ferry terminal and took her back to the backpackers. There you began to kick and spit on her. You told her to get into the wardrobe and hang herself. You kicked her in the head causing her head to hit a brick wall. You made Ms S sit in the corner of the room for several hours while you lay on the bed. You told her the only way she could leave was through the window, which was not possible in a third-floor room.
[18] The next morning, Ms S tried to flee you in the hallway, but you caught up to her in the elevator and slapped her in the face with the back of your hand.
[19] Following a hospital visit, Ms S was booked a room by Women’s Refuge. You messaged her saying you could not live without her, and she agreed to meet you. You became suspicious of the room’s origin and punched her in the head. You and Ms S then left the accommodation, where the Police appeared and arrested you.
Perverting the course of justice
[20] In August 2021, you were in custody at Christchurch Men’s Prison. You made phone calls on 6 August and 8 August where you threatened, blamed and verbally abused Ms S.
Impact on victim
[21] At this stage, I again want to acknowledge again the impact all of the offending had on Ms S. The harm to the victim, a factor I will weigh when sentencing the Christchurch and Wellington and Auckland offending, is evident. Ms S says the relationship “quickly turned into a horror story”. She says “my body and my mind were violated in ways that will take a lifetime to heal”. “The sense of security I once felt was shattered”. Finally, Ms S says that you Mr Panapa may have chosen “cruelty and violence, but [she] choose[s] strength and survival.”
[22] Her mother describes you as a “monster who kept [Ms S] isolated, alone and terrified”. You stole their family’s peace, and they are “all scarred by what she went through”. She says, “the months of isolation, abuse, torment and manipulation cannot be undone”.
Approach to sentence
[23] Mr Taffs, counsel for the Crown, and Mr Peters, your counsel, both agree that I should assess the offending in three distinct chunks: looking at the Christchurch offending, the Auckland and Wellington offending, and the perverting the course of justice offending. I will therefore come to three cumulative starting points and then adjust for totality.
[24] However, counsel disagree on the specific approach I should take to this. Mr Taffs suggests the lead offence is the charge of kidnapping, and kidnapping is inextricably linked with violence.
[25] Mr Peters does not agree.12 He says that the lead offences — when considering the overall picture, not just the maximum penalty — are the injuring with intent to cause grievous bodily harm and assault with a weapon charges. He submits the kidnapping charges are aggravating features of the violent offending.
[26] I prefer the approach of Mr Peters and I acknowledge Mr Taffs’ submission that choosing the lead offence ultimately doesn’t matter in the scheme of things.13 Adopting that approach will not compromise my ability to “look at the matter fairly and in its totality”.14 Accordingly, I will take injuring with intent to cause grievous bodily harm as the lead offence, and consider the kidnapping and the other offences within that framework.
[27] I have been referred to, and have considered, many cases that counsel say are similar to your two sets of offending and while I have considered these cases, I am not going to go through each case to say your case is more serious than that one, or less serious than that one. Sentencing is not meant to be a mechanical exercise.
Finite Sentence — Christchurch offending
Range
[28] Mr Peters says five years’ imprisonment is an appropriate starting point for the Christchurch offending. Mr Taffs considers a starting point in the region of six years to six and a half years is appropriate.
Relevant aggravating factors
[29] Mr Taffs highlights the prolonged period of your offending, describing “three weeks of torture”. Much of the violence occurred at a place where Ms S was entitled to feel safe and secure.15 Your offending was persistent, with repeated assaults, detention, threats and cruelty. Ms S has told of being held “hostage”. You used weapons, including a cell phone, metal vacuum cleaner pipe and a blowtorch. You
12 Compare Hourigan v R [2020] NZHC 2753 at [15].
13 Applying R v Wharton (2003) 20 CRNZ 109.
14 At [29]. R v Hill & Others HC Rotorua, CRI-2005-063-3096, 27 October 2006 at [29].
15 Lufe v R [2018] NZCA 327 at [13(c)].
repeatedly struck Ms S’s head. You threatened to kill her, to ensure her compliance and continued detention. You did not restrict your threats to her, and threatened her children also. You caused significant physical and emotional harm.
[30] Mr Taffs says Ms S was vulnerable, because of your physical strength and because of the control that you exerted over her. You were physically abusive and also emotionally abusive. There were definite elements of cruelty present, including preventing Ms S from going to the bathroom, taking a blowtorch to her clothes, and forcing her into false confessions of infidelity.
[31] Mr Peters agrees “on the whole” with the aggravating features identified by the Crown. However, he “maintains there was a level of spontaneity” to your offending and does not accept you were premeditated in the violence you inflicted. Although you must have recognised that you were not a suitable individual to be entering into an intimate relationship at all, I accept there was only a moderate level of premeditation.
[32]Neither counsel identified any mitigating features of this offending.
Discussion
[33] Mr Taffs has provided me with cases that involve both violence and kidnapping.16 The longer and continuous period of offending warrants a higher starting point than Tipene, but the lack of long-term physical injuries requires a proportionate approach. I have also considered other cases of injuring with intent to cause grievous bodily harm in a domestic context.17 I consider this offending to be at the upper end of band 1 of R v Taueki, the guideline judgment for serious violence offending.18 This is because the offending was at the lower end of the spectrum but it involved some aggravating features, including attacks to the head, use of a weapon, a vulnerable victim and a degree of premeditation.
16 Tipene v R [2014] NZCA 56; R v Yates [2012] NZHC 3387; Anguna v R [2020] NZCA 127; Moffatt v R [2015] NZHC 107.
17 Davidson v R [2020] NZCA 230; Lufe v R, above n 15; Tekuru-Reid v R [2018] NZHC 2419.
18 R v Taueki [2005] 3 NZLR 372 (CA). See also Henwood v Police [2021] NZHC 2763.
[34] I have decided to adopt a starting point of six years’ imprisonment in relation to each of the two Christchurch injuring to cause grievous bodily harm charges.
[35] I will also adopt a starting point of six years’ imprisonment for each of the two Christchurch kidnapping charges.19
[36] For each of the two Christchurch threatening to kill charges, I adopt a starting point of two years’ imprisonment.20
[37] For the Christchurch threatening to do grievous bodily harm charge, I adopt a starting point of one and a half years’ imprisonment.21
[38] For each of the two Christchurch assault with a weapon charges of which you were found guilty, I adopt a starting point of two years’ imprisonment.22
[39] For each of the three Christchurch male assaults female charges, I adopt a starting point of one year’s imprisonment.23
[40] Each of these starting points in relation to the Christchurch offending is to be considered concurrently, resulting in a starting point of six years’ imprisonment in respect of all the Christchurch offending.
Finite Sentence — Auckland and Wellington offending
Range
[41] Mr Peters says three years is an appropriate starting point for the Auckland and Wellington offending. Mr Taffs says between three and a half and four years’ imprisonment is appropriate.
19 Considering Cash v R [2021] NZCA 369 at [20]. See also R v McIntyre [2019] NZHC 1162 at
[32] and [34]; R v Salt [2017] NZHC 1979 and Wilson v R [2015] NZHC 2653.
20 See Faaleaga v R [2011] NZCA 495; Simon v R [2014] NZCA 207; Sands v Police [2021] NZHC 2302; Taylor v Police [2014] NZHC 1139 and Burton v R [2014] NZCA 221.
21 Faaleaga, above n 20 and Simon, above n 20.
22 Fifita v Police [2013] NZHC 763; Mohib v Police [2017] NZHC 123.
23 See Parsons v Police [2018] NZHC 2214; Bonfert v R [2012] NZCA 313; Bolton v Police [2016] NZHC 1297.
Relevant aggravating factors
[42] There are similar aggravating features in respect of this offending, but to a lesser degree. Mr Panapa, you were persistent in contacting the victim and continuing your violent relationship despite the intervention of the rehabilitation programme, the Police and Women’s Refuge. I consider your detention of Ms S to be significantly aggravating, as she was stuck in a different city with no way to travel or escape you, as you had taken her phone and wallet, and exerted significant psychological control over her. She was trapped in a room with no way out. Once again, you repeatedly attacked her head, including causing it to hit a brick wall, and caused injuries consistent with blunt trauma to the head. Your offending had cruel elements, including spitting on Ms S and telling her to hang herself.
[43] Mr Peters says that Ms S had some agency in the relationship, and the overall picture painted of an abusive and coercive relationship should be questioned in respect of this offending. He points specifically to Ms S’s invitation to you to come to the room that was arranged by the Women’s Refuge. I do not take this into account as a mitigating factor or otherwise. The jury heard evidence from Dr Monasterio that counter-intuitive behaviours of victims of battering relationships can include remaining or returning to intimate-partner relationships with their abuser, despite ongoing violence.
Discussion
[44] Having regard to these aggravating factors, I consider the Wellington serious violence offending to be within band 1 of Taueki, but closer to the middle of the band, rather than at the upper end.24
[45] I have decided to adopt a starting point of four years’ imprisonment for the Wellington injuring with intent to cause grievous bodily harm charge.25
24 Taueki, above n 18.
25 See Parker v R [2023] NZCA 608 at [11] and [22]–[24]. Evans v Police [2020] NZHC 108.
[46] I will also adopt a starting point of four years’ imprisonment for the Wellington kidnapping charge.26
[47] And a starting point of six months’ imprisonment for each of the three Wellington and Auckland male assaults female charges.27
[48] Each of these starting points in relation to the Wellington and Auckland offending is to be considered concurrently, resulting in a starting point of four years’ imprisonment in respect of all the Wellington and Auckland offending.
Finite Sentence — Attempting to pervert the course of justice
Range
[49] Attempting to pervert the course of justice strikes at the heart of the administration of justice, and usually warrants a “moderately lengthy term of imprisonment”.28 I must focus on the “intention behind the attempt[s] and on its potential effect.”29
[50] Mr Taffs suggests three years’ imprisonment is an appropriate starting point for this offending, when viewed in concert with other cases.30 He highlights the premeditated nature of the phone calls (given your previous threats during the violence offending), their actual effectiveness (as Ms S did withdraw her complaint for a period), and the persistence of the communication (including two phone calls that circumvented the prison system).
[51] Mr Peters reads the cases differently and supports a starting point of between two years and six months and two years and nine months.
26 R v Wharton, above n 13; R v Ross [2021] NZHC 37; Anguna v R, above n 16.
27 Wati v R [2015] NZHC 2064; Wawatai v Police [2015] NZHC 406; Smith v Police [2013] NZHC 3406.
28 R v Churchward CA439/05, 2 March 2006 at [14].
29 M(CA469/2013) v R [2013] NZCA 385.
30 R v Undersen [2022] NZHC 141; R v Sharma [2017] NZHC 2925; R v Potter [2015] NZCA 25;
Miller v R [2014] NZCA 382.
Discussion
[52] The recent decision of Moore J in Undersen is helpful.31 That case also involved intimate partner violence, and prison phone calls. I consider your conduct is more serious than that in Henare v R, which involved two Facebook messages, no threats or abuse, but “direct pressure”.32 Your offending is not as serious as R v Mare Te Rupe, which contained direct threats to, and abuse of, multiple individuals over multiple calls.33
[53] The attempt was directly made and was successful (for a period), in contrast with Maney.34
[54] The abusive language you used in the calls, the direct threat of violence: “I’ll fucking send someone there cunt...to fucking smash your head in bitch”, the blaming of Ms S for your imprisonment “you’re the reason I got caught, you fucking narking mouth bitch” all elevate the seriousness of this offence. I am satisfied that, despite the lower number of calls and their shorter duration, their content justifies a starting point of three years in line with Ledgerwood.35
Overall starting point
[55] I must step back and consider totality and proportionality.36 Taken cumulatively, the starting sentence would be 13 years. I consider a reduction of two years to be appropriate to reflect the totality of all the offending. Therefore, the overall adjusted starting point will be 11 years’ imprisonment.
Personal aggravating and mitigating factors
Prior offending
[56] Mr Panapa, you have a significant criminal history. I will shortly canvass this in much more detail when I come to discuss preventive detention. For now, it is
31 R v Undersen, above n 30.
32 At [48] citing Henare v R [2018] NZHC 900. Henare had a starting point of 13 months.
33 R v Mare Te Rupe [2021] NZHC 788 — starting point of four years.
34 Maney v R [2018] NZCA 193 at [22], discussing Harting v R [2016] NZCA 296.
35 Ledgerwood v R [2017] NZHC 822.
36 Sentencing Act, s 85.
sufficient to say that in your relationships you have quickly become paranoid, controlling and violent.37 Ms S is the ninth woman whom you have subjected to intimate partner violence. Twice before, you have attempted to pervert the course of justice and pressure your former partners through abuse and requests to “drop the charges”.
[57] Mr Peters acknowledges that an uplift is necessary in respect of your prior offending and suggests one year. Mr Taffs emphasises the consideration of protection of the public,38 and the need for proportionality in this uplift.39 The Crown suggests a “significant uplift” is appropriate.
[58]I will uplift by one and a half years to account for your prior offending.
Offending while on supervision and bail
[59] You committed the Christchurch offending while subject to intensive supervision for violent offending against another former partner.40 You were subject to a protection order also, which was breached in early March 2021. At the time, the District Court said, about you:41
... if he is to engage in the sentence of intensive supervision which continues to run, it seems to me that things will look up for Mr Panapa.42
[60] Mr Panapa, you did not heed that warning, and began offending against Ms S within two months. The Crown says I should consider that to be “highly aggravating”. You were then placed in a residential rehabilitation programme in Auckland to address violence and anger issues. You left this programme (which was a condition of intensive supervision) and were also at that point subject to a bail condition to not contact Ms S. Violating this, you contacted Ms S, and the Wellington offending then
37 See Panapa v R [2023] NZCA 348.
38 Enoka v R [2018] NZCA 185 at [28].
39 Julian v R [2012] NZCA 453 at [17]; Taylor v R [2014] NZCA 561 at [13]; Tiplady-Koroheke v R [2012] NZCA 477 at [24]; Hodgkinson v R [2012] NZCA 478 at [21]; and Brown v R [2014] NZCA 93 at [13].
40 This sentence commenced on 13 January 2021.
41 New Zealand Police v Panapa [2021] NZDC 4056 at [4].
42 New Zealand Police v Panapa [2021] NZDC 4056 at [4].
occurred. For this, Mr Peters again responsibly acknowledges an uplift is required. Mr Peters suggests six months. I agree.
[61]I will uplift by six months to reflect this factor.43
No mitigating factors available
[62] Mr Panapa, you can receive no credit for a guilty plea, as the matter went to trial. Although you were found not guilty of three of the 23 charges,44 Mr Peters responsibly acknowledges that is not enough to warrant any credit.
[63] Counsel have been unable to identify any other mitigating factors. I understand you had difficult experiences when younger, including periods of homelessness and gang associations. But you describe yourself as having had a good upbringing with no history of physical, emotional, or sexual abuse. I am also aware that you have a tentative diagnosis of ADHD. You acknowledge use of methamphetamine but suggest you have not been in the community for enough time to develop an addiction. You have three children. However, as Ms Kioa reports, your aggressive behaviour and resulting protection orders have meant that maintaining a relationship with your children has not been viable.
[64] Although I have considered all of this, I have not received adequate information to justify any discrete reduction.
[65] I know you have been in prison for some time. Corrections confirms you would receive 1,214 days pre-sentence detention. That equates to roughly three years and four months as ‘time served’. I mention this for completeness — but I have not taken this into account in determining the length of your sentence.45
43 Sentencing Act, s 9(1)(c).
44 Assault with a weapon; and attempting to pervert the course of justice (x 2).
45 Sentencing Act, s 82.
Minimum period of imprisonment
[66] The Crown asks me to impose an MPI.46 This would mean, rather than being eligible for parole at around one third of your sentence,47 you would be required to stay in prison for longer. An MPI can be imposed where the Court is satisfied that such would be necessary to either hold an offender accountable for the harm done to the victim and the community, to denounce and deter the conduct, or protect the community from the offender.48
[67] An MPI must not exceed the lesser of two-thirds of the full term of the sentence or ten years.49
[68] Section 86(1) of the Sentencing Act says that if a court sentences an offender to a determinate sentence of imprisonment of more than two years for a particular offence, an MPI can be imposed only in relation to “that particular sentence”. The Court of Appeal has recently considered the effect of this where there are multiple charges in Burrows v R, holding that the correct approach is to take one charge as the lead offending, and to impose concurrent sentences for other charges, rather than sentence on each charge cumulatively.50 However, two or more sentences that contain MPIs may be imposed cumulatively in cases where cumulative sentences may be lawfully imposed.51
[69] Mr Taffs submits an MPI is required to achieve all the purposes in the Sentencing Act. Mr Peters accepts that your offending warrants an MPI but questions the likelihood of you only serving one third of any sentence. I understand his submission to be in support of a lower MPI for you.
Conclusion in relation to finite sentence
[70] In summary, if I were to sentence you to a finite period of imprisonment, I would adopt a global starting point for your offending of 11 years. This would be
46 Sentencing Act, s 86(1).
47 Parole Act 2002, s 84(1).
48 Sentencing Act, s 86(2).
49 Sentencing Act, s 86(4).
50 Burrows v R [2023] NZCA 115 at [53].
51 Broughton v R [2018] NZCA 70 at [15].
uplifted by two years for your personal aggravating factors, to arrive at an end sentence of 13 years’ imprisonment.
[71] Having regard to the totality of your offending, I also consider an MPI would be warranted. This is to be set by reference to the index offences of injuring with intent to cause grievous bodily harm.
Preventive detention — introduction
[72] Mr Panapa, the Crown requests you to be sentenced to preventive detention today. That would mean that you would be subject to an MPI of at least five years, after which you would remain imprisoned unless and until the New Zealand Parole Board considers you no longer pose a significant and ongoing risk to the community. The purpose of preventive detention is to protect the community from offenders who pose such a risk, rather than to punish you.52 It is not a sentence of last resort.53
[73] Mr Peters opposes the sentence of preventive detention. His primary submission is that a lengthy finite sentence is preferable in your case and provides adequate protection for society.
Pre-requisites for preventive detention
[74] For the Court to be able to impose preventive detention, three requirements must be met:54
(a)you must have been convicted of a qualifying sexual or violent offence;
(b)you must have been at least 18 years old at the time of offending; and
(c)the Court must be satisfied you are likely to commit another qualifying sexual or violent offence if you are released at your sentence expiry date.
52 Sentencing Act, s 87(1).
53 R v C CA 249/02, 17 October 2002 at [6].
54 Sentencing Act, s 87(2).
[75] In assessing this third requirement, the Court must consider the following factors:55
(a)any pattern of serious offending disclosed by your history;
(b)the seriousness of the harm to the community caused by your offending;
(c)information indicating a tendency to commit serious offences in the future;
(d)the absence of, or failure of efforts, by you 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.
[76] There is no dispute that the offences of kidnapping and injuring with intent to cause grievous bodily harm are qualifying offences,56 and you were aged in your late 30s at the time of the offending.
Is Mr Panapa likely to commit another qualifying violent offence if he were to be released at his sentence expiry date?
[77] Applying the finite sentence I have already reached at [70], the sentence expiry date will be around 2034.
Is there a pattern of serious offending?
[78] Here, in considering whether there is a pattern of serious offending, I can consider the full range of your violent offending,57 not just the convictions that in themselves would qualify for preventive detention. I have already mentioned the eight other women against whom you have been convicted of offences. Including the offending for which I am sentencing you today, your conviction history reveals:
55 Sentencing Act, s 87(4).
56 Sentencing Act, s 87(5)(b).
57 R v Hetherington [2015] NZCA 248.
(a)17 convictions for male assaults female;
(b)five convictions for assault on a person in a family relationship;
(c)five convictions for assault with a weapon;
(d)five convictions for threatening to kill or cause grievous bodily harm;
(e)four convictions for contravening a protection order;
(f)four convictions for perverting the course of justice;
(g)three convictions for assault to injure causing grievous bodily harm;
(h)three convictions for common assault; and
(i)two convictions for assault with intent to injure.
[79] You have 117 convictions in total, including for driving offences, dishonesty and non-compliance, and you have served 17 sentences of imprisonment.
[80] There is a preliminary question here: whether offending of your type should properly be amenable to a sentence of preventive detention. It is important to address this question first, and remember, Mr Panapa, I am not just speaking to you. This is not a threshold in the statute or the case law, but as Mr Peters has noted it is relatively rare to impose preventive detention as a sentence option in situations where the offender’s history and index offending is solely intimate partner violence. Mr Peters says that “in the main, [preventive detention] is applied in cases of sexual offending, particularly with reference to under-age victims”. I do not agree with the narrowness of this contention. Preventive detention has been imposed for violent offending alone in several cases.58 But I have carefully considered Mr Peters’ point: whether yours is the type of case where preventive detention is warranted.
58 See Stephens v R [2011] NZCA 341; R v JWTW HC Hamilton, CRI-2010-019-3093, 28 July 2011;
Greathead v R [2014] NZCA 49; Nuku v R [2019] NZCA 25.
[81] I have concluded the answer is yes, in principle. Preventive detention is available for recidivist family violence offenders.
[82] The primary, and only, question, is whether you meet the criteria for preventive detention to be imposed and if you do, preventive detention will be warranted — subject to the Court’s residual discretion to decline to impose preventive detention.59
[83] Compared to the charges in R v R, which, by a “fine margin” fell below the level of seriousness of the offending captured by preventive detention,60 the overall picture of your history could be seen as “sinister”,61 while not among the very worst cases of violence and harm. I am particularly concerned about the following factors:
(a)The weapons you used included an axe, a knife, a vacuum cleaner pipe, a blowtorch, a methamphetamine pipe and a cigarette lighter.
(b)You made frequent and repeated attacks to the head, which have often resulted in loss of consciousness.
(c)You detained your partners within their homes and in vehicles, sometimes for prolonged periods.
(d)You consistently engaged in cruelty, as recognised by the District Court in 2012, including using abusive and degrading insults.62 This conduct was described as “demeaning and sadistic” by Ms Kioa, whose report I will come to shortly.
(e)You attempted suffocation and strangulation during your assaults. There is evidence that strangulation and suffocation in an intimate partner context is uniquely harmful and cause for concern.63
59 R v C, above n 53.
60 R v R [2012] NZHC 479 at [113] and [114].
61 At [114].
62 R v Panapa DC Christchurch CRI-2010-009-010813, 9 August 2012 at [9].
63 Law Commission Strangulation: The Case for a New Offence (NZLC R138, 2016) at [1.2]; and see Shramka v R [2022] NZCA 299, [2022] 3 NZLR 348.
(f)The six protection orders in force against you.
(g)Your attempts to manipulate, avoid or obstruct justice.
[84] You have only one conviction for sexual offending, an indecent act in 2008, in respect of which I have no information. I am not considering the risk of sexual offending at all, as there is no evidence that risk exists. I am solely concerned with your propensity for, and future risk of, violent offending.
[85]I conclude that you have a pattern of serious offending.
What is the seriousness of the harm?
[86] In April 2022, when transferring your case to the High Court, Mander J made the following comments:64
Family violence is an issue of deep concern to the community. Mr Panapa is a recidivist offender...his apparent inability to desist from such violent offending against his partners is a matter of significant public concern. Such family violence, when coupled with his controlling behaviours and intimidation, is of very real concern to the community.
[87] Justice Mander emphasised that, viewed against the background of continuing violence perpetrated by you against multiple partners, the charges “must be viewed as both serious and troubling” and “particularly grave”.65
[88] I agree. There can be no dispute that your harm has had pervasive effects on our entire community. The community needs to be protected from your harm. The victim impact statements I’ve heard today reinforce that.
Does Mr Panapa have a tendency to commit serious offences in the future?
[89] To assist me in this question, I have the reports of two health assessors,66 as well as your pre-sentence report.
64 Panapa, above n 7, at [15].
65 At [9] and [11].
66 Sentencing Act, s 88(1)(b).
Dr Peter Dean
[90] Dr Peter Dean is a forensic psychiatrist. He is the Director of Area Mental Health Services for the Midland Region. As you know, Mr Panapa, Dr Dean interviewed you in September 2024. He also had your criminal history and the Crown summary of facts of this offending.
[91] When considering risk, Dr Dean concluded that you show a “persistent pattern of criminal offending, which [you appear] unable to contain.” He said “[you] d[o] not survive long in the community without reoffending.” Dr Dean considers your risk exists in the context of intimate relationships with women. He reported your statement that all your intimate relationships had been violent.
[92] Dr Dean did not consider you experience any mental illness or psychiatric disorder. However, he considers your pattern of antisocial behaviours is consistent with a diagnosis of antisocial personality disorder, and a secondary diagnosis of methamphetamine use disorder.
[93] Dr Dean considers you have an attitude of blaming the system and externalising behaviours rather than taking responsibility for your actions. He reports that you minimise the extent of your offending.
[94] Dr Dean notes your emphasis on the fact that you have never been offered a programme in prison for violence, drug treatment or any other rehabilitation activity. He reports your willingness to engage in these programmes and your sense that you could benefit from them, but warns that you will need to actively engage in such treatment.
Psychological Assessment Report by Lucy Kioa
[95] Clinical Psychologist Lucy Kioa attempted to interview you, Mr Panapa, but you declined to engage with her after a period. She was able to review comprehensive records, including previous psychological reports, the facts of your prior offending, sentencing notes of the District Court and other material. I have found her report very helpful.
[96] She considered you presented with a pattern of suspiciousness, an underlying antisocial attitude and a hostile attribution bias. You avoided accepting personal responsibility and focused on the perceived impacts perpetrated on you by the criminal justice system.
[97] Ms Kioa mentioned you are considered to pose some risk in the prison environment, acting threateningly and holding influence over more vulnerable residents. You have been involved in multiple incidents of violence in prison, towards both staff and other residents, but these do appear to have decreased in frequency.
[98] Ms Kioa considers you demonstrate a pattern of relatively rapidly reengaging in violent offending. She thought that your offending against Ms S represented a continuation of your violence propensity and an escalation in the seriousness relative to your prior violence.
[99] More positively, Ms Kioa considers you engaged actively in your individual sessions with the Corrections psychologist and that you made some progress. Obviously, however, these treatment sessions did not prevent your offending against Ms S.
[100] Ms Kioa considers that it is highly likely you have an underlying neurobiological predisposition to difficulties with attention, hyperactivity, impulsivity and emotional lability. People with such a predisposition need a high reward environment to help them learn and do not respond well to punishment. This presents great challenges to you overcoming your antisocial beliefs within a prison environment. However, to your credit, Ms Kioa also highlights your desire to engage in offence-focused interventions. She says you have consistently attended the psychological treatment opportunities offered to you and that you have sought these out in recent years. She thought that, given sufficient time, you have the potential to benefit from a higher intensity treatment option to address your offending cycle, if given the opportunity to do so with a timeframe that allows you to develop a sense of safety and a functioning therapeutic relationship.
[101] Applying actuarial tools, Ms Kioa assessed you as having “a very high risk of violence” and considered such violence “is imminent on developing an intimate relationship in the community” with an adult female partner. Ms Kioa considered that this risk of violence, and difficulties with substance abuse, are likely to “endure over time and require long term management”.
[102] Ms Kioa says that you will need to manage your behaviour to reduce your security classification whilst in prison, and then complete the preparatory, core and maintenance phases of a high-intensity treatment programme. In the meantime, she recommends:
(a)further assessment of your mental health and potential neurocognitive challenges, such as post-traumatic stress and attentional difficulties, and, where relevant, for a formal diagnosis to be obtained and any necessary medical intervention to be started; and
(b)individual sessions to support you to manage your behaviour, in order to be ready for the Special Treatment Unit for Men with Violent Offending (STU:VO).
[103] Then, after completion of the STU:VO programme, she recommends a graduated and lengthy rehabilitation period in a residential supported rehabilitation facility.
Pre-sentence report
[104] The pre-sentence report, prepared by the Probation Service, says you are at “a very high risk of harm to others, in particular to intimate partners.” The report writer considered you minimised your offending, asserting Ms S had been “free to go”. Some of your statements concerned the writer of that report, including that if you detained someone, they would not be able to go. The report writer thought you demonstrated limited respect or empathy for the trauma Ms S experienced during your relationship with her.
[105] A treatment pathway for you was identified, which again requires a security classification of low-medium and would result in you completing the STU:VO programme. You would be required to complete an alcohol and drug programme prior to commencing the STU:VO programme.
Is there an absence of efforts to rehabilitate?
[106] I understand your view is that Corrections has failed to give you any help, and that the criminal justice system is against you. You describe yourself as a product of the system.
[107] Mr Panapa, I have to tell you that deflecting blame for your actions in this way will not serve you well. You need to take ownership of your behaviour, and acknowledge the role you have played in this continual cycle that keeps leading you here, and back to prison.
[108] I do acknowledge, however, that it is regrettable you have not yet been placed on a sentence with a reasonable opportunity to access violence related treatment in custody. I understand your longest prior sentence for a single conviction was two years and five months. You have not yet had a sentence of sufficient length for you to complete all phases of the treatment that you need.
[109] Mr Peters emphasises Ms Kioa’s conclusion that a “longer period than he has previously received” would be required to undertake treatment and rehabilitation.
[110] Against that I must consider that you had engaged in 43 treatment sessions with a Corrections psychologist prior to the offending for which I am sentencing you today. At sentence for your offending in your last violent relationship, you were given the opportunity to participate in a residential programme to address your offending. It seems you were put on a sentence of intensive supervision to facilitate this, a sentence I consider was very lenient given the facts of the offending. But, rather than making the most of this opportunity you were given to obtain treatment, you chose to abscond from supervision to recommence the violent relationship with Ms S.
[111] You need to own your own behaviour Mr Panapa. But, on balance, I consider that despite your attitude, there has been an absence of adequate treatment offered to you and so I am reluctant to conclude you have failed in efforts to rehabilitate. So, the question for me is really whether you should be given the opportunity to engage effectively with intensive treatment.
Is a lengthy determinate sentence preferable?
[112] There is an important principle when considering a preventive detention sentence: a lengthy determinate sentence is preferable if this provides adequate protection for society.67
[113] One of the factors I must also take into account is the possibility that on your release you would be made subject to an extended supervision order (ESO) if you do not make suitable rehabilitative progress.68 An ESO can last up to 10 years and can greatly restrict a person’s liberty by placing conditions on them designed to reduce the risk of reoffending and protecting and enhancing public safety.69 This would provide another incentive for you to engage meaningfully in treatment. It would also ensure that a finite sentence will appropriately protect the community.
[114] An ESO is not an “agreeable alternative” to preventive detention,70 but it is a “potential safety valve” which shores up the principle that a lengthy determinate sentence is preferable to preventive detention if this provides adequate protection for society.71 In finely balanced cases, the possibility of an ESO being imposed may tip the balance in favour of a finite sentence.72 In your case, whether an ESO would be sought, and imposed, and its terms, is uncertain. I do not think this tips the balance one way or another.
67 Sentencing Act, s 87(4)(e).
68 R v Mist [2005] 2 NZLR 791 (CA) at [100]; T (CA502/2018) v R [2022] NZCA 83 at [30].
69 R v Undersen, above n 30 at [109]
70 R v Hutchinson [2007] NZCA 55 at [19].
71 R v Mist, above n 68, at [101].
72 R v Parahi [2005] 3 NZLR 356 (CA), (2005) 21 CRNZ 754 at [87]; see also R v Hohaia [2018] NZHC 254 at [48].
Preventive detention — conclusion
[115] Broadly, Mr Peters says the threshold for imposing preventive detention based on risk has not been met. He says Dr Dean was not able to give a definitive answer on any likelihood of you committing further qualifying offences. I do not accept that argument and prefer the formulation of Ms Kioa that you have a high risk, that will persist to 2034 and beyond without treatment.
[116] The Crown says it is a “virtual certainty” that without significant intervention and support, you will re-offend against other women in the community. I agree. I am concerned about the escalation of the offending, and your general attitude, with the violence against your last two partners being significantly worse.
[117] However, I am persuaded that, instead of preventive detention, you should be given the chance to undertake and respond positively to treatment over the course of a lengthy finite sentence.
[118] A lack of proper access to treatment combined with the principle that a finite sentence is preferable may be decisive.73 However, if there is little confidence in an offender’s likely response to treatment, an indefinite term may be required to mitigate the risk of reoffending and provide the safety of lifetime recall.74
[119] A finite sentence of 13 years is a long sentence, longer than you have had before. I am confident this will be a motivator to make meaningful and permanent changes. If you do not take the opportunity to rehabilitate while in prison, you will serve all of that period in custody and, after release, you will then likely be subject to severe restrictions under an ESO.
[120] I have carefully considered the appropriate course of action. I have decided that I will not impose a sentence of preventive detention today on the basis that you should have an opportunity to address your offending through a determinate sentence with a detailed treatment plan.75 I am not persuaded that your potential for
73 See Cooper v R [2020] NZCA 683 at [19] and [21]–[22]; Pritchard v R [2010] NZCA 403; R v Coe [2018] NZHC 24118; and R v Neketai [2015] NZHC 396 at [46].
74 Pritchard v R [2010] NZCA 403 at [40].
75 Cooper v R, above n 73, at [26].
rehabilitation is exhausted. Ms Kioa’s report gives cause for confidence and optimism that you are motivated to engage and reform. If that does not occur, the relevant authorities will be able to reassess your risk at the time of release and if that risk is too high, take appropriate protective measures such as applying for an ESO that among other things can place restrictions on your ability to commence intimate partner relationships.
[121] I do not underestimate how hard it may be for you to make real change. But Mr Panapa, you must recognise that preventive detention will be considered again if you commit further violent offending, either in prison, or on release. I hope knowing that will assist you in completing rehabilitation programmes. But what happens next, Mr Panapa, will be up to you. If you engage with rehabilitation and make the changes you need to make, then you will get out of prison earlier and be a safer and better person. If not, you will stay in jail a much longer time. It is all up to you.
Sentence
[122]Could you please stand Mr Panapa.
[123] I sentence you to a total of 13 years’ imprisonment, with an MPI of six and a half years.
[124] That sentence is structured as three cumulative groups of concurrent sentences as follows:
Christchurch offending (six years; all sentences concurrent)
(a)Index offence: injuring with intent to cause grievous bodily harm (x 2): six years’ imprisonment;
(b)kidnapping (x 2): six years’ imprisonment;
(c)threatening to kill (x 2): two years’ imprisonment;
(d)threatening to do grievous bodily harm: one and a half years’ imprisonment;
(e)assault with a weapon (x 2): two years’ imprisonment;
(f)male assaults female (x 3): one year’s imprisonment.
Wellington and Auckland offending (four years; all sentences concurrent)
(g)Index offence: injuring with intent to cause grievous bodily harm: four years’ imprisonment;
(h)kidnapping: four years’ imprisonment;
(i)male assaults female charges (x 4): six months’ imprisonment.
Attempting to pervert the course of justice (three years; sentences concurrent)
(j)attempting to pervert the course of justice (x 2): 3 years’ imprisonment.
[125] In respect of the Christchurch offending, I set the MPI at four years’ imprisonment. In respect of the Wellington offending, I set the MPI at two and a half years’ imprisonment. These MPIs are to be imposed cumulatively, leading to a combined MPI of six and a half years’ imprisonment. The MPI is calculated on the basis of two thirds of the sentence for the index offending of injuring with intent to cause grievous bodily harm, applied cumulatively in respect of each of the Christchurch and Wellington offending (totalling 10 years’ imprisonment).
[126]Mr Panapa, you may stand down.
McHerron J
Solicitors:
Raymond Donnelly & Co for Crown
0
44
0