R v Rawhiti
[2022] NZHC 2579
•6 October 2022
IN THE HIGH COURT OF NEW ZEALAND WHANGANUI REGISTRY
I TE KŌTI MATUA O AOTEAROA WHANGANUI ROHE
CRI-2019-083-001342
[2022] NZHC 2579
THE KING v
TAMA MICHAEL RAWHITI
Hearing: 5 October 2022 Appearances:
J J Harvey for the Crown
J H C Waugh for Mr Rawhiti
Judgment:
6 October 2022
JUDGMENT OF COOKE J
(Declining adjournment of sentencing)
[1] The defendant’s sentencing has been adjourned twice. By application dated 23 September the Crown seeks to further adjourn the sentencing, now scheduled for 17 October, to facilitate the provision of reports under s 88 of the Sentencing Act 2002 to enable the Court to consider a potential sentence of preventive detention. The length of the proposed adjournment is uncertain, but likely until at least early next year. The application for an adjournment is opposed by the defendant.
Relevant background
[2] The defendant was released on parole from Hawkes Bay Prison on 3 July 2019 following a sentence of imprisonment on a number of charges imposed in July 2013. Following his release he engaged in a spree of further offending. He was arrested and has been remanded in custody since 30 September 2019.
R v TAMA MICHAEL RAWHITI [2022] NZHC 2579 [6 October 2022]
[3] In January this year he entered guilty pleas to the offending. The delay until January arose from the delays in the availability of jury trials, particularly over the period affected by COVID-19. The most serious charge is that of using a firearm against police under s 198A(1) of the Crimes Act 1961. For the purposes of sentencing defence counsel sought a report under s 38 of the Criminal Procedure (Mentally Impaired Persons) Act 2003 to inform the sentencing exercise, and also indicated that a cultural report would be sought.
[4] The reports required for sentencing were duly obtained. The sentencing was scheduled in the District Court at Whanganui on 30 June. Shortly before that hearing however, the Crown indicated that it wished the Court to consider the possibility of a sentence of preventive detention. By memorandum dated 30 June the Crown gave formal notice under s 88 that it was seeking consideration of the sentence of preventive detention. In order for that sentence to be considered the District Court needed to transfer the sentencing to the High Court. In addition two health assessor reports were required to address the applicable matters under s 88 of the Sentencing Act.
[5] Judge Krebs considered whether to adjourn the sentencing and transfer the proceeding to the High Court on 30 June. He decided to do so indicating:1
I cannot impose a sentence in this court which would require him to undergo the necessary counselling and reform, whereas the High Court can in the form of a sentence of preventive detention. By a slim margin, I intend to decline jurisdiction on this occasion and remit Mr Rawhiti for sentencing in the High Court so that preventive detention can be considered.
The second reason I am taking this step is because there is something of a tension between the need to reflect past difficulties set out in the cultural report with the need in a case such as this for a significant deterrent sentence. Some further guidance in the High Court in that regard would be helpful.
[6] At that time the District Court also directed that the two reports be provided under s 88.
[7] The defendant was then due to be sentenced in the Whanganui High Court on 16 September. By letter dated 29 July 2022, but received by the Court on 30 August, Dr J A Short of Te Whatu Ora advised that the earlier report from Ms Shelly Lomas,
1 R v Rawhiti CRI-2022-083-746, 30 June 2022 at [12]–[13].
dated 19 April 2022 was available to the Court, but that it had not been possible to provide a report from a second health assessor as required. In those circumstances the Court had no option but to adjourn the scheduled sentencing. I did so by minute dated 6 September during which I said:2
Section 88 of the Sentencing Act requires at least two reports from appropriate health assessors if the sentence of preventive detention is to be considered. The earlier report from Shelly Lomas is not a report under s 88. For the avoidance of doubt pursuant to s 38 of the Criminal Procedure (Mentally Impaired Persons) Act 2003 two reports have been ordered to be provided from sufficiently qualified health assessors directed to the questions arising under s 88(1)(b) of the Sentencing Act. It is not simply a matter of obtaining a report from another assessor as Dr Short suggests.
In the circumstances the Court has no option but to adjourn the scheduled sentencing. The Registrar is to schedule a further telephone conference in approximately four to six weeks’ time and also provisionally establish a new sentencing date.
I record Mr Rawhiti’s position as expressed by Mr Waugh. He has been on remand since [2019] and had entered guilty pleas in January. He will be close to the period of time served by the time of sentencing apart from the potential of a preventive detention sentence. It is inappropriate that his sentencing should be taking so long.
…
In any event the reality is that a person cannot be sentenced to preventive detention without the required reports. They are being unreasonably delayed. If reports are not available the time will be reached where it will be necessary to proceed with sentencing without considering preventive detention. Not only does this involve a failure to meet the requirements of the legislation, but it also gives rise to a potential risk to public safety.
[8] Since that time the potential for sourcing reports privately has been further explored. Dr Short referred the Registrar to Dr Eric Monasterio. On 21 September Dr Monasterio advised the Registrar that he was extremely busy and that there was no chance of completing his report by 10 October. When asked when it could be completed he has advised that it would be either late December or early January 2023. It is also significant that this involves only one s 88 report. As I stressed in the minute two reports are required if a sentence of preventive detention is to be considered.
2 R v Rawhiti CRI-02019-083-1342, 6 September 2022 at [3]–[5] and [7].
[9] Since the hearing I have asked the Registrar to make an inquiry about a further report being provided through the Department of Corrections. A response has been provided that a report could be made available, but not before mid-December.
Assessment
[10] Determining whether the sentencing should be further adjourned involves a consideration of the rights of the defendant to be sentenced reasonably promptly after entering guilty pleas, balanced against the interests of justice including any need to protect the public.
[11] Mr Rawhiti has been remanded in custody since September 2019. The initial delays were associated with the availability of jury trials, particular over the period affected by COVID-19. There has then been a further delay since Mr Rawhiti pleaded guilty in January 2022. The Crown did not indicate that it was intending to seek a sentence of preventive detention until 30 June. In the meantime other reports were obtained. Mr Harvey explained that it was the content of these reports that caused the Crown to consider that preventive detention was a possibility. I accept that to a point
— the pre-sentence report did indicate that Mr Rawhiti was at a high risk of reoffending and a very high risk of harm to others. But it was dated 2 March, the s 27 report was dated 23 February, and Ms Lomas’ report was dated 19 April. So there was still a material delay before the Crown gave notice that it wished the Court to consider the sentence of preventive detention on 30 June.
[12] The delays since then are attributable to institutional failures. The current system does not ensure the availability of timely reports, including under s 88 of the Sentencing Act for the purposes of sentencing. The advice has been that it is not possible for reports to be provided by Te Whatau Ora and that psychologists will need to be approached privately. When redirecting the Court to a private provider, advice has been received that a report is not available until the end of this year or the beginning of the next. It would also appear that only one report can be available in that period. The Department of Corrections has now been asked, and indicated a second report can be made available, but not until mid-December.
[13] Institutional shortcomings are not an acceptable reason for a delay in the sentencing of a defendant. The defendant here will have waited around one year to be sentenced following a guilty plea. That is too long. And this is now the third application to adjourn the sentencing so that s 88 reports can be obtained.
[14] The Crown has earlier indicated in their sentencing submissions to the District Court that it was seeking a finite sentence of between five years and four months and six years and two months, subject to any personal mitigating factors arising from the s 27 report. Mr Waugh indicated for the defendant that he would be suggesting a starting point of three to four years, although the earlier written submissions to the District Court suggested four years and six months. Mr Rawhiti has been in custody on remand now for just over three years. If the sentencing is delayed until two s 88 reports are available he will likely have been in custody between three and four years. There is a real prospect that by the time of his sentence he will be released on time served, or that his pre-sentence detention would extend beyond a parole eligibility date, and even a prospect he could be remanded in custody for a period longer than a finite term of imprisonment.
[15] That is balanced with the key consideration that is the risk to the public. Mr Harvey argued that the Court should await at least one s 88 report to see what that risk might be. I accept that there is a relevant risk. But I also accept Mr Waugh’s point that Mr Rawhiti has now been assessed in three reports — the s 38 report, the s 27 report, and the normal pre-sentence report. Whilst a risk is plainly apparent, I also accept Mr Waugh’s submission that the reoffending risk is equivalent to many defendants appearing before the Court.
[16] Judge Krebs only accepted that the sentencing would not proceed in the District Court, and would need to be transferred to the High Court, by a “slim margin”. He partly did so because of the difficulties of the sentencing exercise. This is not a case where it is obvious that a sentence of preventive detention may be involved. Indeed I can say on a preliminary assessment that it seems unlikely that that sentence would be appropriate. But I accept it is a possibility.
[17] It is also relevant that the risk to the public can be managed by other means. Those include the recommendations in the reports for treatment programmes, and release conditions. Furthermore if the Crown is concerned that there is an ongoing risk to the public it is also possible for it to seek either a Public Protection Order or an Extended Supervision Order associated with the end of the sentence. In other words the risk to the public can be managed by other techniques.
[18] The ultimate problem here is not only that timely s 88 reports are not available, but also that there is very little certainty about when they can be. One s 88 report may be available in mid-December, and a second early next year. Two are required if the sentence of preventive detention is to be considered. The institutional shortcomings mean the position is inadequate in my view.
[19] I have given consideration to Mr Harvey’s submission that the Court should await at least one s 88 report before declining a longer adjournment. But given that this report would not be available until mid-December at the earliest I do not think that is an acceptable way forward.
[20] It is the combination of factors in the present case, including that preventive detention is not a likely sentence, which cause me to decline the application.
[21] The application to adjourn the sentencing is declined, and the sentencing will proceed on 17 October.
Cooke J
Solicitors:
Wilkinson Smith Lawyers, Whanganui for the Crown Crowley Waugh, Whanganui for the Defendant
0
0
0