R v Pengelly

[2013] NZHC 527

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

CRI 2012-042-2726

CRI 2012-042-2825 [2013] NZHC 527

QUEEN

v

STEVEN KEITH PENGELLY

Hearing:         19 March 2013

Counsel:         M A O'Donoghue with S K O'Donoghue for Crown

A J D Bamford for Prisoner

Sentence:       19 March 2013

SENTENCING BY THE HON JUSTICE KÓS

[1]      Mr Pengelly, you have pleaded guilty to attempted murder1 and two charges of threatening to kill.2   I understand that yesterday in the District Court you pleaded guilty also to being party to dishonestly using a document,3 breach of release conditions4 and theft.5   You are being sentenced today on all six charges.

Circumstances of the offending

[2]      I will describe, briefly, your offending, in the chronological order in which it occurred.

1      Crimes Act 1961, s 173.

2      Crimes Act 1961, s 306(1).

3      Crimes Act 1961, ss 228(b) and 66.

4      Sentencing Act 2002, s 96(1).

5      Crimes Act 1961, s 219.

R v PENGELLY HC NEL CRI 2012-042-2726 [19 March 2013]

Breach of release conditions

[3]      You were released from Rimutaka Prison on 22 February 2012.  One of your release conditions was to report to your Probation Officer once a fortnight.   On

14 June 2012 you breached that by failing to report without reasonable excuse and subsequent attempts to contact you were unsuccessful.

Dishonestly using a document and theft

[4]      In early September 2012 you visited the Auckland home of an 88 year old woman.  Her son had been in prison with you. You had met her when she had visited her son.  On visiting her you rifled through her handbag and recorded her credit card details.  Between 5 and 7 September 2012, you and your girlfriend used those credit card details to pay for $3,223 worth of computer products, mobile telephone equipment and a rental car.  You also did $2,296 worth of damage to that rental car. That too was charged to the credit card.

[5]      Later again in September 2012, you visited your elderly victim again on the pretext of having a coffee and a chat with her.  This time you stole her wallet which contained various cards and $35 cash.  In all, worth about $200.

Threatening to kill

[6]      In early October 2012 you hitchhiked around the South Island for a couple of weeks.  On 2 and 3 October 2012 you sent an ex-girlfriend, over 80 threatening text messages.   Those texts contained explicit threats to shoot her and anyone in her house with a shotgun, threats to kill her sister and threats to kill her community health nurse.

[7]      On 7 October 2012 you sent you ex-girlfriend another series of threatening text messages after she declined your request that she buy you a mobile telephone top-up voucher.  You threatened to stab her with a sword while she was sleeping and to send someone to hurt her.

[8]      The victim, not knowing your whereabouts and fearing for her and her son’s

life, went into hiding until you were located on 14 October 2012.

Attempted murder

[9]      During your South Island odyssey, you found yourself in Nelson.  You had previously stayed at the Men’s Night Shelter there and met the victim of this offending and a female associate.  On 12 October 2012 you spent the evening on the victim’s couch at his house.  The next morning you, the victim and the female associate purchased two casks of wine.  You began drinking at the victim’s house. Around lunchtime you became agitated and aggressive.  The victim’s flatmate and a visitor left as a result. You threatened to stab the victim with a pair of scissors.

[10]     Your explanation for your behaviour is that the victim was being an “egg”, had taken your cigarettes while you were having sex with the female associate, had made a lewd gesture towards her and that his account of his time in prison did not stack up (so you suspected he had been a child sex offender).

[11]     At around 4 pm you approached the victim and punched him three times in the face.  Stunned and in pain, the victim left to go to the kitchen.  He did not fight back.  You followed him and again punched him hard in the face, giving him a bleeding nose. The victim headed to the bathroom.

[12]     You selected a small vegetable knife from the kitchen, but then replaced it in favour of a long-bladed, serrated breadknife.

[13]    You approached the victim, who was then kneeling over the toilet bowl attempting to stem his bleeding nose.  You said to him, “I’m going to kill you”.  You pulled his head back, and you slit his throat with the breadknife.

[14]     You then pushed the victim around the bathroom instructing him to clean up his blood.  The victim escaped the house and staggered across the road to a dairy. An ambulance was called, and he was taken into hospital surgery immediately.  You returned to the bedroom and had sex again with your female associate again.

[15]     You decamped the scene when you heard sirens outside.   You managed to hitch-hike to Blenheim.  The unsuspecting family that took you put you up for the night.  You were arrested in Picton the next day.  You admitted your actions, apart from the verbal statement immediately preceding the throat-slitting.

[16]     The victim’s injuries were significant.   There was considerable blood loss. He states that his throat was literally “hanging out” of the large horizontal cut that you made.   It took twenty stitches to close the wound.   The victim noted the significant depth of the cut.  It exposed the windpipe, tendons, muscles, veins and arteries.

[17]     It was fortunate indeed that both carotid arteries remained intact.  Otherwise your victim would probably have died.

Impact of your offending

[18]     The impact of your offending on the victim has been direct and sustained.  He required life saving surgery.  He is fortunate to be alive.  He spent three nights in hospital.  He feels unsafe walking down the street, particularly if there are skinheads nearby.  He suffers flashbacks as a result of the experience he had at your hands.  He has been placed on antidepressants and sleeping tablets.  The flashbacks have caused him to have what he describes as “psychotic episodes”, and as a result he himself has faced charges of male assaults female and threatening to kill.

[19]     As to the women you threatened they felt scared for their safety because of those threats. Their fear has been perhaps ameliorated by the fact that you are locked up, and you will continue to be locked up for some time.

[20]     The elderly lady from whom you stole felt her trust betrayed.  She suffered a financial loss of $200 because of the stolen cards and wallet.  She was fortunate that the money you charged up to her credit card was reimbursed to her by the bank.

Personal circumstances, pre-sentence report and prior offending

[21]     You are 39 years old.  You have no fixed address.  You have no employment history because you have spent most of your adult life in and out of prison.  You largely refused to engage with the probation officer who prepared your pre-sentence report.  But your responses in police and the s. 38 psychological interview and the s 38   psychological   report   by   Dr   Galvin,   have   given   me   some   reasonable understanding of your background.

[22]     You describe experiencing physical violence and sexual abuse from a young age.  You were expelled from school at the age of 13.  You joined the Black Power gang, although you say you are no longer a member.   You describe yourself as a loner.

[23]     You have serious drug and alcohol issues.  You started sniffing petrol at age

9, were addicted to opiates by your mid-teens and have been through three rehabilitation programmes. At one point you would drink over a litre of spirits daily. You are still on a methadone programme.  You say you now use only cannabis and alcohol.

[24]     Your psychiatric report is alarming.  You have had extensive counselling and medication, and 358 hours of intensive treatment in the High Risk Personality Programme while in  prison  in  2007.   You  are  of average intelligence  but  tests indicate you have strong psychopathic traits.   You have been diagnosed with borderline personality disorder and anti-social personality disorder.  You have severe difficulty regulating your emotions.  You cannot control your behaviour when you are angry.

[25]     The assessment of Dr Galvin is that you knew what you were doing to the victim but you still believed you were morally right and that the victim deserved his injuries.  You do not perceive the text messages you sent to have been threatening. Having read them, Mr Pengelly, your self-perception is seriously deluded.

[26]     Your pre-sentence report indicates that you do not comprehend why you should comply with release conditions.  You have shown contempt generally for the criminal justice system by attempting to escape custody on a number of occasions.

[27]     You  have  over  90  previous  convictions,  mainly  for  drugs,  dishonesty, breaching court orders and driving offences.  You have ten prior convictions for violence, including threatening to kill and wounding with intent to cause grievous bodily harm.

[28]     You are a danger to society, Mr Pengelly, and imprisonment is the only option in this case adequate to denounce your offending and to protect society.

Purposes and principles of sentencing

[29]     I am required by the Sentencing Act 2002 to keep in mind a number of purposes and principles of sentencing.  Section 7 requires me to have regard to the need to hold you accountable for the harm from your offending, the need to promote a  sense  of  responsibility  for,  and  acknowledgement  of,  that  harm.    I  need  to denounce your conduct and I need to deter you and others like you from committing the same or similar offences in the future.

[30]     I must take into account the gravity of your offending, including your degree of culpability.   I must have regard for the seriousness of the types of offences committed by comparison to other types of offending, indicated by the maximum penalty prescribed.  I must consider also the general desirability of consistency with appropriate sentences. And then I need to impose the least restrictive outcome that is appropriate to your circumstances, including your personal circumstances.

Sentencing approach

[31]     I have to decide whether to sentence you concurrently or cumulatively.  In the present case I consider I should treat the events of September and October 2012 as related in nature, all involving criminal actions in the course of your tour of the

South Island.  The lead charge for sentencing purposes is plainly the attempted murder charge.

[32]     Sentences on the threatening, dishonest use and theft charges will be served concurrently – that is at the same time as the term of imprisonment you will serve for attempted murder.

[33]     Non-compliance with court-imposed release conditions is different in nature to your other offending.  A distinct sentence will be imposed for that but it will also be served concurrently, that is at the same time.

[34]     Although these other sentences will be served concurrently, there will be an uplift given to the sentence for the lead charge of attempted murder to reflect the totality of your offending.

Lead charge:  attempted murder

Starting Point

[35]    There is no tariff case for attempted murder, due to the wide variety of circumstances in which that offence can occur.6   Guidance can be found in the Court of Appeal’s judgment in R v Taueki.7    That case provided guidelines for grievous bodily harm offending, but its application to other offences involving the infliction of serious violence was contemplated.8    The 14 year maximum penalty for attempted murder is the same as that for grievous bodily harm offending.  So the sentencing levels and aggravating factors set out in that case have been regularly referred to in sentencing attempted murder.9    However, this Court has noted that slightly longer sentences are often imposed for attempted murder, because it carries with it the more

serious finding of a murderous intent.10

6      See: R v Allen and Jennings CA7/88, 23 June 1988; R v Steeman CA105/03, 5 June 2003.

7      R v Taueki [2005] 3 NZLR 372.

8      R v Taueki [2005] 3 NZLR 372 at [9].

9      See: R v Amohanga HC Hamilton CRI-2006-019-2933, 6 March 2007; R v Rawiri HC Christchurch CRI-2005-009-13229, 7 December 2006.

10     R v Craw HC Auckland CRI-2005-057-000018, 7 June 2006.

[36]     The Court of Appeal in Taueki grouped such offending in three bands and it set out aggravating factors reflecting those set out in the Sentencing Act 2002, which are relevant to assessing the seriousness of the offence.11   Relevant factors here are:

(a)      Extreme violence

(b)       Premeditation (c)          Serious injury (d)          Use of weapons

(e)       Attacking the victim’s head

[37]     I have already set out the circumstances of your offending and I not need to do so again. The violence you used was extreme, albeit over a relatively short period of time.   Your attack progressed in three stages, of increasing seriousness.   The victim each time retreated and offered little resistance.  It was premeditated to a degree, in the sense that you had the opportunity at each stage to desist, but did not do so.   You took some trouble to select your weapon.   The injuries were serious, were to the head, and involved at the relevant stage the use of a knife as a weapon.

[38]     In short, I am satisfied that all five of those aggravating factors are present here.

[39]     The Court of Appeal also set out a number of mitigating factors specific to serious violent offending.  None of them apply to you.  I am not satisfied that there was any provocation as an operative cause of your offending.  Intoxication is not a mitigating factor.12

[40]     It is clear that your offending falls in band three of Taueki.

11     R v Taueki [2005] 3 NZLR 372 at [31].

12     Sentencing Act 2002, s 9(3).

Comparable cases

[41]     There are three comparable cases on which I rely.  I will not set them out in any detail here.  They are R v Komene,13 R v RKS14 and R v Gray.15   Your offending was more serious than Komene (where the start point was 9-10 years) because of the prolonged nature of the attack and higher degree of premeditation.  It was also more serious than Gray (a start point of eight years) in terms of the violence used.  It was similar in seriousness to RKS.

Starting point for lead charge

[42]     In light of these authorities Mr Pengelly, and the particular circumstances of your offending, I am adopting a start point of nine and a half years’ imprisonment before considering personal mitigating and aggravating factors.

Secondary charges

Threatening to kill

[43]     Bearing in mind the case of R v Hutton16  (which involved a similar but shorter barrage of abusive phone calls and text messages to a former partner), on each of the two charges of threatening to kill, I sentence you to eight months’ imprisonment, to be served concurrently.

Dishonestly using a document

[44]     Bearing in mind here the decisions in Barakat v Police,17 Haua v Police18 and

Keenan v Police19  I sentence you to 12 months’ imprisonment on the charge of dishonestly using a document again to be served concurrently.

13     R v Komene CA218/86, 9 February 1988.

14     R v RKS HC Tauranga, CRI 2007-070-002622, 10 December 2007.

15     R v Gray HC Nelson, CRI-2003-042-003687, 7 April 2004.

16     R v Hutton HC Hamilton, CRI-2005-419-379, 20 May 2005.

17     Barakat v Police HC Palmerston North CRI 2008-454-35, 14 August 2008.

18     Haua v Police HC Wellington CRI-2007-485-107, 10 December 2007.

19     Keenan v Police HC Christchurch CRI 2007-409-97, 5 June 2007.

Theft

[45]     On the charge of theft you are sentenced to two months’ imprisonment, to be served concurrently.

Breach of release conditions

[46]    Your pre-sentence report indicates that you are unrepentant and have no conception  of  why  you  should  comply  with  release  conditions.     You  have consistently shown, as I have said, contempt for court-ordered conditions and sentences imposed on you as evidenced by your numerous convictions for trying to escape prison, breach of parole and breach of conditions.

[47]    I impose a sentence of six months’ imprisonment for breach of release conditions, to be served concurrently.

Uplift for total offending

[48]     Because you are being sentenced concurrently on the secondary charges, I am uplifting the sentence on the attempted murder from nine and a half years’ imprisonment to ten and a half years’ imprisonment.

Aggravating factors

[49]     I turn to aggravating factors personal to  you which might justify further uplifting the sentencing starting point.

[50]    The Crown points, as it must, to your prior convictions for violence.  It is apparent from the s 38 report that some of these involved particular cruelty to those victims.

[51]     In  addition,  the  present  offending  occurred  while  you  were  on  release conditions from your imprisonment sentence.

[52]     I agree that these considerations merit increase to your sentence from ten and

a half years’ imprisonment to eleven and a half years’ imprisonment.

Mitigating factors

[53]     In some circumstances diminished intellectual capacity or understanding may serve as a mitigating factor.20    But it is clear that there must be a causative link between the lack of capacity or understanding and the offending.21

[54]     Dr Galvin’s report concluded that you do not suffer from a disease of the mind.  You were found to be capable of knowing the nature of the act constituting your offending.  And you were found to be capable of knowing that your act was morally wrong.  You suffer from borderline personality disorder and anti-social personality disorder.   You do not suffer from a psychotic disorder, and Dr Galvin does not believe that you suffered any disabling dissociative condition during your offending, given your detailed recollection of what occurred.

[55]     When interviewed by Dr Galvin you were lucid and coherent.  It is therefore of real concern that you still seek to justify or diminish your unprovoked violence. You do not exhibit any remorse at all.  Neither in your interview with the doctor, nor with the probation officer, did you express remorse.

[56]     In these circumstances I simply do not believe that there is any factual basis for concluding that mental illness or incapacity diminished, causatively, your responsibility for this offending.

[57]     You pleaded guilty promptly at callover on the most serious charges.  That was not the first reasonable opportunity, which was committal.  You waited until the Crown agreed to withdraw another charge of blackmail.  Had you not made your intention to plead guilty clear from the outset during your police interviews, I would not have been prepared to offer you close to the maximum 25 per cent discount

available.  I am prepared to do so given that you indicated that intention.

20     Sentencing Act 2002, s 9(2)(e).

21     R v M [2008] NZCA 148; R v Sabuncuoglu [2008] NZCA 448.

[58]     The net result of that discount Mr Pengally is that your sentence on the lead charge will be reduced from eleven and a half years’ imprisonment to eight years and eight months’ imprisonment.

Minimum Period of Imprisonment

[59]     I  must  now  consider  whether  a  minimum  period  of  imprisonment  is appropriate.  The Crown seeks a minimum term of 50 per cent of the term imposed. Section 86 of the Sentencing Act 2002 confers a discretion on the Court to impose a minimum period of imprisonment, if the usual minimum non-parole period of one- third of the determinate sentence would not be sufficient to achieve the purposes of accountability, denunciation, deterrence and protection of the community as set out

in s 86(2).22

[60]     In this case I do accept that to permit you to be released after one third of the total sentence would not be sufficient to meet the need to protect the community. While this is a matter where normally the good sense of the Parole Board may be relied on, it is important in this case to record that you appear to have a pathological enthusiasm for the infliction of injury on others.

[61]     You report previously experiencing rage attacks where you come to your senses having half-killed someone.  You have persistent problems in relation to threatening your relationship partners and others.  Your attitude to this attempted murder was callous in the extreme: you saw your actions as justified and you were content to return to your partner and have sex immediately after you slit a man’s throat and left him to bleed to death.

[62]     While on the run from this incident in the Marlborough area you reported having stalked a particular backpacking tourist, and formulating a plan to bash him, and if need be kill him, in order to pay for your fare on the inter-island ferry.

[63]     The risk of your reoffending in a violent manner is high.   I record these matters for the benefit of the Parole Board in due course.

[64]     But I say here, as I have said in Court already today, that I find frustrating that the Court has no tools with which to require you to receive the treatment in prison that you need.23   That is down now to the Department of Corrections, and ultimately  to  the  Parole  Board,  to  ensure  that  you  do.    I  am  reasonably  sure Mr Pengelly that your condition is not one of your own choosing, but one of your own condition.  It is that condition that needs to be addressed.  If it is not addressed then all I am doing is putting you in prison for a period of time, and protecting society for that period of time, after which you will be released and be a danger to

society yet again.  Without treatment there is no real hope for you.  You will find yourself back in prison with the blood of another victim on your hands.   And in doing so you may face more serious charges than you face today.  It is only one away from the most serious charge that you could have faced.

[65]     In the end it is going to be a matter for the Department of Corrections and the medical services that they can provide to discourage that very bleak prospect from occurring.  It is also a matter on which you have to take such responsibility as you can take with, I appreciate, the impairment that your condition mandates.

[66]    However the blunt tools that I have before me today enable simply the imposition of a minimum period of imprisonment.  I impose a minimum period of imprisonment of 50 per cent of your total sentence.  You will serve a minimum of four years and four months’ imprisonment.

Formal Sentence

[67]     You are sentenced, formally, as follows:

(a)       Attempted murder:  eight years and eight months’ imprisonment; (b)           Threatening to kill (two charges): eight months’ imprisonment;

(c)       Dishonest use of a document:  twelve months’ imprisonment; and

(d)      Theft:  two months’ imprisonment. All sentences to be concurrent.

[68]    The final and total sentence therefore is eight years and eight months’ imprisonment.  You will serve a minimum period of imprisonment of four years and four months.

[69]     I am  required  by the  Sentencing Act  finally to  give  you  a  three  strikes warning.  It is this: if after this warning you commit any serious violent, including sexual, offence, other than murder you will serve that sentence without parole or early release.  If you commit murder you will be sentenced to life imprisonment and you may serve that sentence without the possibility of parole.

[70]     That is the sentence of this Court, Mr Pengelly.  Stand down please.

Stephen Kós J

Solicitors:

Crown Solicitor, Nelson