R v Tawhai
[2022] NZHC 998
•10 May 2022
IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE
CRI-2021-092-238 [2022] NZHC 998
THE QUEEN v
WILLIAM SPRING TAWHAI
Hearing: 10 May 2022 Appearances:
R B Annandale for Crown
A B Fairley and M A Heffernan for Defendant
Sentence:
10 May 2022
SENTENCING REMARKS OF PETERS J
Solicitors:Marsden Woods Inskip Smith, Crown Solicitor, Whangārei Thomas Wilson, Whangārei
R v TAWHAI [2022] NZHC 998 [10 May 2022]
Introduction
[1] Mr Tawhai, you appear for sentence having pleaded guilty to the following charges:
(a)two of assault on a person in a family relationship;1 and
(b)one of wounding with intent to injure.2
[2] The offending was committed against S, your then partner, on 8 November 2020. As originally laid, the charges you faced were the two assaults to which I have just referred, and kidnapping which the Crown has not pursued.
[3] The wounding charge to which you pleaded guilty has a maximum sentence of seven years’ imprisonment, and was charged as an alternative to the more serious offence of wounding with intent to cause grievous bodily harm, which has a maximum sentence of 14 years’ imprisonment. When you entered your guilty pleas on 16 April 2021, it was to the lesser wounding offence.
[4] The inevitable outcome of your sentencing today will be a period of imprisonment. However, the main issue is whether I should impose what we refer to as a finite term of imprisonment or preventive detention, in which case the date of your release will be a matter for the Parole Board. Judge McDonald referred you for sentence to the High Court because he thought a sentence of preventive detention was possible. Mr Annandale, for the Crown, does seek such a sentence. Mr Fairley, for you, submits that such a sentence is not required.
[5] If the Crown seeks a sentence of preventive detention, the Court follows a two- step process. The first is to determine the appropriate finite sentence for your offending. The second is to consider whether you are likely to commit another qualifying offence at the end of that finite sentence. If the answer to that question is yes, and other circumstances warrant, the Court may impose a sentence of preventive detention.
1 Crimes Act 1961, s 194A. Maximum penalty: two years’ imprisonment.
2 Section 188(2). Maximum penalty: seven years’ imprisonment.
The offending
[6] I start by saying a few words about the offending. At about 7 pm on 8 November 2020, you and S were in her car. You had been in a relationship for about a year, but apparently had recently separated. You were driving, and you asked S to go for a walk to talk about your relationship and why it had cooled. S did not wish to and asked to be driven home.
[7] Unhappy with this response, you drove off at speed. S asked to get out but you began punching her arms and shoulders whilst you were driving. You also began abusing her verbally. When she tried to get out of the car, you grabbed her clothing, around the neck, to stop her.
[8] You then drove on and parked and dragged S out of the car. When she managed to get back into the car, you leaned in and punched her repeatedly in the face with a clenched fist, at least six or seven times. You did this with such force that one of her teeth fell out. When she again tried to get out of the car, you grabbed her by her hair and pulled her out. Eventually you stopped your attack and drove S home.
[9] The result of all of this physical violence was that S lost a tooth and, in her victim impact statement, she says that several of her top teeth were pushed up into her gums and she is having ongoing dental treatment. She was terrified, her right eye socket and left finger were fractured, she suffered bruising to her head and torso, and she had a swollen and black right eye.
[10] S read her victim impact statement to the Court this morning. She says that she has headaches, migraines, cannot remember things, aches constantly, and I have already referred to the damage you inflicted to her teeth. As I have said, she is having ongoing dental work and, for the first time in her life, she is not working. She misses employment and, of course, that imposes a financial burden on her as well. She does not wish to be in her car. She is constantly on edge, was terrified during the attack and every time she hears a noise she is fearful that it is you. She has flashbacks and is traumatised. I am sorry to say that not one thing she said this morning was a surprise.
Reports and information
[11]Let me come on to the information I have for sentencing today.
[12] First, I have your criminal history which I have considered in some detail and which I shall talk about shortly.
[13] Secondly, I also have a pre-sentence report from the Department of Corrections and, although this is a year old now, it is consistent with the other information I have. In particular, this report refers to your very difficult and totally unsatisfactory upbringing, your adolescent years, and your criminal record.
[14] Thirdly, I have a report from Ms Louise Henare dated 19 July 2021, which is very helpful and which I shall discuss shortly.
[15] Lastly, in the context of preventive detention, I have reports from two health assessors. One is from Dr Sanjeeta Sharma, a clinical psychologist, dated 2 December 2021, and the other is from Dr John Jacques, a forensic psychiatrist, dated 9 December 2021.
Criminal history
[16] I turn now to your criminal history. I shall have more to say about it later but, for the moment, it is enough to say that at 54 or 55 years of age, your criminal history runs to 10 pages. If I exclude the offending committed when you were under the jurisdiction of the Youth Court, you started offending in 1982 when you were 15 and you have not really stopped since. I have counted just more than 70 convictions and there are numerous sentences of imprisonment. In the main, your convictions are for crimes against property, driving offences, failing to answer bail and violence.
[17] On my reading of it, the crimes against property were committed prior to October 1993, so they are historic and quite different to the current offending.
[18] The driving offences are also quite different. However, I have counted 32 convictions for violence. This offending includes virtually all forms of assault —
common assault, assault on a Police officer, assault with a blunt instrument, assault with intent to injure and aggravated assault. There are also many convictions for male assaults female, assault on a person in a family relationship and numerous instances of you contravening protection orders. In other words, family or relationship violence. You have also been convicted of threatening to kill, possessing offensive weapons, wounding with intent to cause grievous bodily harm and sexual violation by rape.
Finite sentence
[19] Now, I said a moment ago that the first thing I have to do is determine the finite sentence that your offending would warrant and this in itself requires a two-step process. It requires I fix what is referred to as the “starting point” for the offending, and that I then uplift it and reduce it for matters personal to you.
[20] In determining the starting point, I am required to have regard to the relevant purposes and principles of sentencing. Those particularly apt in this case are to hold you accountable, to denounce your conduct, to deter you from future offending of this nature and to protect the community from you.
[21] Counsel have referred me to a number of authorities, including Nuku v R, in which the Court of Appeal set out “bands” of starting point for this offending.3
[22] Mr Annandale submits that your offending falls into band three and that a starting point of four years, three months to four years, six months’ imprisonment is required.
[23] Mr Fairley submits the starting point should be at the top of band two, possibly in the lower part of band three. Mr Fairley submits that a starting point of two years, six months’ imprisonment is required if I treat the assaults as part and parcel of the wounding charge. I shall treat them that way because the offending was largely one episode.
3 Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39 at [38]; R v Taueki [2005] 3 NZLR 372 (CA);
Sun v R [2014] NZCA 278; and Maihi v R [2016] NZCA 205.
[24] Having considered the submissions, and the cases to which I was referred, I am satisfied that a starting point of, say, three years, nine months to four years’ imprisonment is required because:
(a)this was a prolonged and unprovoked attack;
(b)you inflicted serious injury, and attacked S’s head;
(c)S was vulnerable. She would be no physical match for you; and
(d)your offending has had a significant adverse impact on her, physically and mentally.
[25] Then I am required to take account of your prior criminal history. Your significant history of violence, and violence against women with whom you are in a relationship, warrants an increase of up to nine months.
[26] Then I must take account of mitigating factors. These are the matters in Ms Henare’s report and your guilty pleas.
Ms Henare’s report
[27] Ms Henare’s report provides important information about the circumstances which have brought you before the Court — today and previously.
[28] Mr Annandale submits that Ms Henare has overstepped her area of expertise in some respects, particularly her diagnosis of mental health conditions and appropriate treatment. I am inclined to agree, but there is still much in Ms Henare’s report that is important.
[29] Ms Henare interviewed you, and two of your children, Kiri and Gilbert. Ms Henare’s report records in considerable detail what I have already referred to as a very difficult and unsatisfactory upbringing. Regular and significant physical violence by your father to your mother which you tried to prevent even as a young child; his violence to you and your sisters; sexual abuse from adults with whom you came into
contact; and your far too early departure from the education system. It was far too early because you were only 13 and you also plainly have ability. Then there was the untimely death of your much-loved partner, Sharlene, and the severing of your relationship with your then very young children after her death.
[30] Ms Henare believes that you are remorseful for the current offending. She believes that it is the product of circumstance and background, that you will engage with rehabilitation services, and she tells me that your children are both willing to support you and to reconnect with you.
[31] Mr Fairley submits that the matters in the report reduce your culpability and also evidence a nexus between the matters covered in the report and the offending for which you are before the Court, and submits that I should reduce the starting point by 20 per cent.
[32] Mr Annandale submits that I should make no reduction because you have had ample time by your mid-50s, and having been incarcerated for much of it, to address these issues.
[33] I do not accept that submission and I have taken full account of the matters in Ms Henare’s report. I accept that you have not had anything like the chances and positive role models that others have had. However, I must balance that against the fact that you are now in your mid-50s, and yet another woman has been injured at your hands, because you resort to violence when you are angry. I say yet another woman because the Court has already heard some information as to your prior offending, and I am also going to come to that shortly.
[34] In those circumstances, a 15 per cent discount is the most that I can allow in respect of the matters identified in Ms Henare’s report, and that is what I propose to allow.
Guilty pleas
[35] I am also required by the Sentencing Act 2002 to reduce the starting point further for your guilty pleas.
[36] Mr Fairley submits you should have the maximum permissible of 25 per cent. Mr Annandale submits that, at most, a 20 per cent reduction should be allowed.
[37] I am satisfied that 20 per cent is the maximum to which you could possibly be entitled. I am entitled to take account of the fact that convictions on the wounding and assault charges were inevitable. I am going to give you 20 per cent.
End sentence/minimum period of imprisonment
[38] So in terms of the finite sentence exercise, taking into account the starting point, the uplift for prior convictions, and allowing reductions totalling 35 per cent, the finite sentence I would impose for your offending would be three years’ imprisonment.
[39] I would impose a minimum period of imprisonment of two thirds, so two years, because I am not satisfied that the period which would otherwise apply under the Parole Act 2002 would be sufficient to protect the community from you.
Preventive detention
[40] This brings me to what everyone in the courtroom has recognised as the critical issue today, which is whether a sentence of preventive detention is available and, if so, whether it should be imposed.
[41] Preventive detention is a sentence of imprisonment for an indefinite period. Its purpose is not to punish but to protect the community from those who pose a significant and ongoing risk to the safety of its members.4 If that sentence is imposed, you will be released only when the Parole Board is satisfied you no longer pose a risk to the community.
[42] Three pre-requisites must be satisfied before the Court can consider a sentence of preventive detention. The first two are not in issue. You have been convicted of a qualifying violent offence and you were over 18 years at the time you committed it.5
4 Sentencing Act, s 87(1).
5 Sections 87(2)(a) and 87(2)(b).
[43] The third pre-requisite is that I must be satisfied that you are likely to commit another qualifying offence if released at the expiry date of the finite sentence.6 If this requirement is met, then I have a final decision make as to whether I should impose a sentence of preventive detention.7 As Mr Fairley submits, this is always an extremely difficult decision to make because it requires the Court to look forward, and to make a judgement about what is the best course.
Experts’ reports
[44] Let me start with the experts’ reports which I am required to consider. The health assessors are required to give me their views on the likelihood of you committing a further qualifying offence and that is why I have the reports from Dr Sharma and Dr Jacques.8
[45] Dr Sharma interviewed you twice. She obtained a thorough account of your very difficult upbringing, your personal life, and your criminal history. Dr Sharma considered your criminal history particularly concerning. She discerned an entrenched pattern of antisocial behaviour dating back to adolescence. Despite being sentenced to terms of imprisonment, you have carried out further, serious, intimate partner violence, breached protection orders, assaulted others, and failed to answer bail.
[46] Dr Sharma says your pattern of offending shows that you have used violence as a means to an end, that you use violence promptly after release, and that you have failed to make meaningful treatment gains. Dr Sharma says you have a problem with relationships, and when your partner does not pay you sufficient attention or do as you wish, you use violence to punish her. There is also some history of substance abuse. Dr Sharma considers your risk of violent re-offending is high.
[47] On the more positive side, Dr Sharma says your risk of violent offending reduces significantly when you are in a structured, custodial environment, that you have responded positively to vocational or work training and to the constructive use of your time. She believes you have insight into the factors that led to the current
6 Section 87(2)(c). In this case the date will be eight years and one month from 5 June 2020.
7 Leonard v R [2013] NZCA 553 at [7].
8 Sentencing Act, s 88(1)(b).
offending and that you acknowledge the serious harm you caused to S. Insight has not, however, provided any restraint on you to date. Dr Sharma also believes you have the intellectual capacity to respond to treatment. She says you have participated in cultural programmes, and have become fluent in Te Reo. All of this indicates, Mr Tawhai, that you are an intelligent person who can make progress when you apply yourself.
[48] I come on now to Dr Jacques’ report. He likewise interviewed you twice. He too carried out a thorough review of your family, childhood, and trauma history, education and occupational history, relationship history, substance use, past treatment and current mental state.
[49] Dr Jacques assessed your risk of violent re-offending on the basis of what is referred to as the HCR 20 Version 3. This is a risk assessment tool which Dr Jacques used, but only as a guide. His opinion, based on that assessment, is that you have multiple risk factors for future violence. He notes that previous interventions have been of limited effect, that you largely blame S and her family and associated difficulties for your offending, you were in denial about previous offending, that you demonstrate long-standing victim blaming and no victim empathy, and you have offended repeatedly within a relatively short time of release. He believes your risk of re-offending, and the likelihood of specifically committing a future qualifying offence, is high.
[50] On the other hand, and again on the positive side, Dr Jacques also considers that you have insight into your difficulties and appear willing to engage in treatment.
[51] Having regard to these experts’ reports, and having regard to your criminal history, I am satisfied that you are likely to commit another qualifying violent offence at the sentence expiry date of the finite sentence I would impose. Given that, I turn now to the various matters that I must take into account in considering whether to impose a sentence of preventive detention.9
9 Section 87(4).
A pattern of serious offending/seriousness of harm to the community
[52] The first matters are whether your history discloses a pattern of serious offending, and the seriousness of the harm to the community caused by the offending.
[53] Mr Annandale submits, and Mr Fairley accepts, that your criminal history does disclose a pattern of serious offending.
[54] Mr Annandale submits, correctly, that since 1996 you have used violence frequently and it has always been of sufficient seriousness to be met by a sentence of imprisonment.
[55] As I have indicated, I have reviewed your criminal history in some detail, so I am familiar with it.
[56] You have committed some 70 offences, 32 of which involve violence, excluding your convictions for robbery. I have not been able to identify any lengthy period in which you have refrained from offending. I have also received and considered information in respect of your more recent offending and sentences.
[57] In December 2004, when you would have been 36 or 37, you were sentenced to six years’ imprisonment for 19 offences that you committed between February 2002 and December 2004. By my count, 12 of those were for violence. The others were for failing to answer bail and driving offences.
[58] The violence offending included wounding with intent to cause grievous bodily harm, for which you were sentenced to five years’ imprisonment. As I understand Dr Sharma’s report, this offending comprised a serious assault of your then partner, Georgina. It was so violent that she was hospitalised.
[59] In 2007, whilst serving that sentence but on day release from the prison so that you could go to work, you formed a relationship with another woman. This appears to have been going reasonably well, even though it was, of course, a breach of your conditions. However, you argued with her when you would not return to prison as you were required to do, and as she wished you to do. That argument culminated in your
offending against her in 2007, this offending including a representative charge of sexual violation by rape.
[60] In May 2008, Judge Crosbie sentenced you to 10 years’ imprisonment for this offending, that sentence being concurrent with the balance of the sentence imposed in 2004. The Judge also imposed a non-parole period of five years. As I understand it from the Crown, however, you served the entire 10 years.
[61] You were then released on 28 May 2018, and were subject to parole conditions until 27 November 2018.
[62] Shortly after those conditions expired, you formed a relationship with someone I understand was named Lydia. In February 2019, you assaulted Lydia as well, this assault consisting of punches with a closed fist. You also breached a protection order. In March 2019, Judge Glubb sentenced you to 13 months’ imprisonment for this offending.
[63] You were released from prison in early September 2019. You then formed a relationship with S, and that culminated in you committing serious violence against her.
[64] So, in my view there is a clear pattern of serious offending, particularly of violence against women with whom you are in a relationship.
Harm to the community
[65] There is no dispute that your offending has caused harm, not only to S but to all your other victims.
Tendency to commit serious offences in the future
[66] The next matter I have to consider is whether you have a tendency to commit serious offences in the future and, for the reasons I have already discussed, I am satisfied that you do.
Absence of, or failure of, efforts by the offender to address the cause or causes of the offending
[67] The next factor is the absence of, or failure of, efforts made by you to address the cause of causes of your offending. That is really the issue in this case. How much comfort can I have that you will now address the reasons you offend and take the steps required to ensure there is never any repeat?
[68] The information I have as to the rehabilitation courses or treatments that you have undertaken to date is as follows.
[69] First, there was a six-month Violence Treatment group course in April 1999. Apparently, the reports of those administering the course, as to your engagement and prognosis, were not encouraging but I have not seen those reports, they were some time ago, and I do not put much weight on it.
[70] In 2007, you attended a Medium Intensity Rehabilitation Programme. The reports were that you engaged more positively with that course but you re-offended shortly thereafter which I assume was the sexual violation by rape offending.
[71] You completed a three-month drug and alcohol course in 2015 or 2016 and, again, the reports were generally positive. That was an encouraging sign, given that there is a history of alcohol and drug abuse.
[72] As I understand it from Dr Sharma’s report, you are now having counselling provided through ACC for past trauma, and were or are having individual sessions with a psychologist.
[73] You were also completing a Man Up programme at the time you were remanded in custody for the current offending.
[74]However, there have been opportunities you have not taken up.
[75] Dr Jacques reports that you declined to attend a Special Treatment Unit Rehabilitation Programme. I note also that in his sentencing remarks in 2008, Judge
Crosbie said that you had refused to undertake the Violence Prevention Programme at Rimutaka Prison, and refused to attend Moana House in Dunedin, which offers an intensive rehabilitation programme. I assume the Moana House course is the same as the Special Treatment Unit Rehabilitation Programme to which Dr Jacques refers.
[76] I observe also that the only course you did between your imprisonment for rape in 2008 and your release in 2018 was the drug and alcohol course in 2016. That you undertook only one, three-month, course in 10 years is revealing. You were in prison for serious offending and did nothing beyond that to address the causes of your offending. You just waited out the sentence until its expiry date, knowing that at that point you would have to be released.
[77] Mr Fairley submits that you are eager to change so that you do not re-offend, and that you should be given the opportunity and assistance required to make that change. The experts confirm this willingness, as does Ms Henare. Mr Fairley also submits that you have not had significant opportunities to rehabilitate, and that those available have not been tailored to your specific requirements. Mr Fairley notes that Dr Sharma considers that you are likely to respond best to individual, one on one, treatment and he submits that, if this treatment is made available to you, the risk you pose at present will diminish and is likely to be much less on your release. You will also be older then, and your propensity to offend will further diminish as a result.
[78] I am willing to accept you wish to change and I also agree that you should be given the means to do so. However, a sentence of preventive detention does not preclude that. On the contrary, I consider it more likely to incentivise you to confront and change your behaviour, than a finite sentence. I have no doubt that if I imposed a finite sentence you would simply wait it out as you have before, and nothing would change.
Preference for lengthy determinate sentence
[79] The next matter I need to consider is that, as a matter of principle, there is always a preference for a lengthy, determinate sentence if such a sentence would provide adequate protection to the community.
[80]I am not able to impose a lengthy determinate sentence for this offending.
[81] I could impose a finite sentence, in which case the Department of Corrections might well seek an extended supervision order on your release.
[82] However, having taken into account all of the relevant matters, I do not propose to do so. I am satisfied that you will continue to pose a significant and ongoing risk to the safety of the community until you change your response to events or people who displease you. I do not consider this likely to occur with a finite sentence, even with the possibility of an extended supervision order.
Sentence
[83]Mr Tawhai, please stand.
[84] On the charge of wounding with intent to injure, I impose a sentence of preventive detention. I impose a minimum period of imprisonment of five years.
[85] On each charge of assault on a person in a family relationship, I impose a sentence of six months’ imprisonment. These sentences are to be served concurrently with each other, and with the sentence of preventive detention.
[86]Please stand down.
Peters J