R v Te Hei
[2017] NZHC 1744
•26 July 2017
IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY
CRI-2015-020-003175 [2017] NZHC 1744
THE QUEEN
v
WARREN CHARLES TE HEI
Hearing: 26 July 2017 Appearances:
J Rielly for the Crown
C J Tennet and M Houra for the DefendantSentencing:
26 July 2017
SENTENCING NOTES OF WOOLFORD J
Solicitors / Counsel:
Ms J Rielly, Crown Solicitor’s Office, Napier
C J Tennet, Wellington
R v TE HEI [2017] NZHC 1744 [26 July 2017]
Introduction
[1] Mr Te Hei, you appear for sentence having been found guilty at trial of one charge of wounding with intent to cause grievous bodily harm.1 This crime carries a maximum penalty of 14 years imprisonment.
[2] As you know, you appear in this court because preventive detention is an available sentence.
Factual background
The current offending
[3] The offending took place while you and the victim were inmates in Hawke’s Bay Regional Prison. On the morning of 19 September 2015 you and other inmates were free to walk around the facility.
[4] You attacked the victim in a corridor. At the time of the attack, he was dressed in a towel and carrying toilet paper in both hands. You struck the victim in the neck, upper torso, and head, and pushed his face into the concrete wall. You then straddled his body and punched him in the head. You continued to punch the victim in the head at least two to three times once correction officers had arrived before obeying instructions to stop.
[5] The complainant was taken to hospital in a semi-conscious state. As a result of the assault he suffered multiple fractures to his jaw. He required surgery to his face which required insertion of multiple plates and screws.
[6] At trial, you gave evidence that the attack was a pre-emptive strike in self- defence. You say you were challenged to a fight by the victim due to efforts you had made to renounce your gang affiliation, and that you feared you would be attacked by multiple prisoners if you did not strike first. Further, you gave evidence that you and the victim were wrestling. However, you acknowledged repeatedly striking the
victim, and clearly your claim of self-defence was rejected by the jury.
1 Crimes Act 1961, s 188(1).
Personal circumstances
[7] I turn now to your personal circumstances. You are a 46-year-old man of Ngāti Kahungunu descent. You were raised by your grandparents, although you spent time in youth facilities. Unfortunately, you have spent the majority of your adult life imprisoned, with a long history of offending. Much of this appears to be gang-related. You have been affiliated with the Mongrel Mob since you were around
15. You became a patched member of the Mongrel Mob in around 2000. You have previously been a patched member of its Aotearoa chapter.
[8] You report that your offending began when you were aged around 10, when you were involved in burglaries with older relatives. Your first convictions came at the age of 15. You have over 100 previous convictions, including 10 notations in the Youth Court. These include a significant number of dishonesty offences, as well as driving convictions and drug possession convictions. Most relevantly, you have eight previous convictions for violent offending, being:
(a) Assault in 1987;
(b) Aggravated robbery in 1990; (c) Assault in 1991;
(d) Aggravated assault in 1992;
(e) Aggravated robbery with a firearm in 1992; (f) Attempted murder in 1996; and
(g)Wounding with intent to cause grievous bodily harm and assault with intent to injure in 2014.
[9] As a result of these convictions you have spent a significant portion of your life in prison. Notably you spent around 18 years in prison from 1993 following your aggravated robbery conviction. While in prison you were convicted of
attempted murder, which prolonged your sentence. You were eventually released, however, from prison in 2011 at the age of 41. You moved to Gisborne to live with your partner, now your wife. During this period your life took a turn for the better. You were active in your local community and marae, your relationship with your wife and family was positive, and you took steps to disengage from the Mongrel Mob, affiliating with a faction which you describe as more family orientated. In
2014 you successfully completed parole. Your probation officer described a positive relationship with you, and considered that you actively sought help from her, and interacted well with your family and the community. Notably, she was of the view that at times you resisted gang-related provocation in your community, and avoided confrontation in favour of intervention by the police.
[10] It appears from the recent health assessment reports before me that you are continuing your efforts to disengage so far as possible from gang involvement. The reports record that you had started the process of removal of tattoos before your transfer to Auckland prison stopped the process, and that you want all your gang tattoos removed.
Approach to sentencing
[11] Throughout the sentencing process the Court must have regard to the purposes and principles of sentencing as set out in the Sentencing Act 2002.2 Of particular relevance to serious violent offending of this kind is the need to promote in you a sense of responsibility for your offending and to denounce the conduct in which you were involved. On the other hand, the Court must bear in mind the purpose of assisting with your rehabilitation and reintegration, take into account your
background and must impose the least restrictive outcome appropriate in the circumstances.
[12] There are two issues to be decided today. First, the length of a finite sentence to be imposed if I decide to impose a finite sentence on you. Secondly, whether I
should, as the Crown submits, sentence you to preventive detention.
2 Sentencing Act 2002, ss 7 and 8.
[13] You will be well aware of what preventive detention means given you are already serving preventive detention for previous offending, which was imposed on
7 July 2016.3 A sentence of preventive detention means that you would be
imprisoned indefinitely. A minimum period of imprisonment would be imposed by this Court, but your actual date of release would be determined thereafter at the discretion of the Parole Board.
[14] Although you are already subject to a sentence of preventive detention, that does not have any impact on my decision today. It is clear that the court has the power to impose a second sentence of preventive detention.4 However, an existing sentence of preventive detention does not make a second more likely. In T (CA43/2013) v R the Court of Appeal noted:5
The cases establish… that the issue of whether or not to impose a second sentence of preventive detention must be determined on a principled basis. It cannot be driven solely by the practical utility of the sentence. As this Court noted in R v Mackrell, each offence requires the appropriate response even if it may have no practical effect where it is of a lesser (or equal) duration than another sentence. Subject to totality principles, the Court is required to fix the appropriate sentence for the offending in question irrespective of any other sentence that is imposed.
[15] I note here, however, that your existing sentence of preventive detention is relevant in that no sentence may be cumulative on an indeterminate sentence of imprisonment.6 Thus, I cannot impose a cumulative finite sentence on you.
Finite sentence
Starting point
[16] I start by considering an appropriate finite sentence for your offending and your personal circumstances.
3 R v Te Hei [2016] NZHC 1538.
4 T (CA43/2013) v R [2013] NZCA 497 at [23]; R v Howse [1963] NZLR 971 (CA) at 972;
Mackrell v R (1998) 16 CRNZ 1 (CA) at 8–9.
5 At [26], citing R v Kitching HC Auckland CRI-2008-004-12022, 7 August 2009 at [18]; R v
Mackrell, above n 4, at 8.
6 Sentencing Act 2002, s 23
[17] Setting a finite sentence is a two-step process. The first is to set a starting point based on the offending itself and the second is to adjust that starting point in light of your personal circumstances.7
[18] The guideline judgment for offending of this kind is R v Taueki.8 The Court of Appeal in that case set out three sentencing bands for wounding with intent to cause grievous bodily harm. Crown counsel submits, and your counsel accepts, that the appropriate band for your sentence is band two, justifying a starting point of five to 10 years imprisonment. Band two is offending that features two or three of the aggravating features listed by the Court of Appeal in that case.
[19] The following aggravating factors were present in your offending:9
(a) Premeditation – The Crown submits that you were waiting for your victim in the corridor. Indeed this is consistent with your own narrative that you were planning to attack the victim in advance of any counter-attack. While this is not the most serious example of premeditation, it was by no means impulsive offending.
(b)Attack on the head – You repeatedly punched the victim in the head, and hit his head on the wall. Attacks on the head can have particularly serious consequences.
(c) Extreme violence – This was a violent attack on the victim. It continued despite the intervention of prison officers.
(d)Serious injury – As a result of the attack the victim was hospitalised and required surgery on his jaw. I note, however, that this was largely a result of the attack on the head and extreme violence involved, so I
am wary of double counting this factor.
7 R v Taueki [2005] 3 NZLR 372 (CA); Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.
8 R v Taueki, above n 7.
9 R v Taueki, above n 7, at [27].
[20] I consider a starting point between the lower end and middle of band two is appropriate. I therefore take a starting point of six years imprisonment for the offending. In fixing that term I have taken account of a number of other relevant cases, including the earlier sentence imposed on you.10
Adjusting the starting point
[21] As I have detailed, you have a lengthy criminal history, including a significant number of convictions for serious violence. Indeed, you were on remand for the 2014 offending when this assault took place. An uplift is required to reflect your greater culpability and also the need for increased deterrence. It is also appropriate to apply an uplift to reflect the fact that the offending occurred in a
prison setting.11 Offending in prison must be taken seriously; others in custody are
entitled to protection, as are staff.
[22] In combination I apply a total uplift of nine months imprisonment, which is
12.5 per cent of the starting point, bringing the total appropriate finite sentence to one of six years and nine months imprisonment.
Preventive detention
[23] I turn now to whether a finite sentence is sufficient or whether a sentence of preventive detention is warranted.
[24] A sentence of preventive detention is imposed to protect the community from those who pose a significant and ongoing risk to the safety of its members.12 It can only be imposed if the Court is satisfied that the offender is likely to commit another qualifying sexual or violent offence after being released from any finite term of imprisonment.
[25] In making this assessment the Court is required to consider reports from at least two appropriate health assessors about the likelihood of the offender
10 R v Te Hei [2016] NZHC 1538; R v Wereta [2014] NZHC 2555; R v Wereta [2015] NZHC 2683 and R v Lake [2017] NZCA 39.
11 Lake v R, above n 10, at [7].
12 Sentencing Act 2002, s 87.
committing further offences.13 Three specialist reports have been prepared for
today’s hearing:
(a) A report by psychiatrist Dr Rishi Duggal, who interviewed you on
17 March 2017 for a total of 90 minutes;
(b)A report by clinical psychologist Ms Sabine Visser, who interviewed you on three occasions in early March 2017 for a total of approximately five hours; and
(c) A report by clinical psychologist Ms Anja Isaacson, who interviewed you on 6 June 2017 for two hours.
The third report was filed by defence counsel.
[26] I have also received a letter of remorse from you, which emphasises your remorse for your gang involvement, and regret for the impact your offending has had on your family.
[27] In order to impose preventive detention I must be satisfied of three factors. It is clear that the first two are met. You are over 18 and the crime for which you are convicted is a qualifying offence. Therefore the determinative question is whether I am satisfied that you are likely to commit another qualifying sexual or violent offence if you are released at the sentence expiry date. This is a matter for the Court’s discretion.
[28] In answering this question I am required by the Sentencing Act to take into account five factors.14 I shall address each in turn.
Section 87(4)(a) — pattern of serious offending disclosed by the offender’s history
[29] First, any pattern of serious offending disclosed by your history. You have convictions for attempted murder, aggravated robbery, aggravated assault and
13 Sentencing Act, s 88.
14 Sentencing Act 2002, s 87(4).
wounding with intent to cause grievous bodily harm. The offending occurred as long ago as 1996, and as recently as 2014. While there are some long gaps between offending during this time, these predominantly occurred while you were in custody. As Dr Duggal reported your history suggests you are a recidivist offender, criminally versatile and with a propensity towards violent offending.
[30] However, previous violent offending is largely gang-related. All three health assessment reports note that you wish to withdraw from gang life, and that you have been attempting to do so since soon after your release in 2011. You ascribe some of your subsequent offending to problems handing back your Aotearoa Mongrel Mob gang patch. You told Ms Visser that you did not consider withdrawal possible while in prison. She considered your only partial success “is not a reflection of [a] lack of [either] willingness nor motivation but the actual nature of the gangs”. You told Ms Isaacson that you feel particularly threatened while in prison.
Section 87(4)(b) — seriousness of the harm to the community
[31] Secondly, the seriousness of the harm inflicted on the community by your offending. Serious physical harm has undoubtedly been caused to the present victim, and to victims of your past offences.
Section 87(4)(c) — tendency to commit serious offences in future
[32] Thirdly, your tendency to commit serious offences in the future.
[33] The statistical tools used by the health professionals who interviewed you converge in assessing you as being at a high risk of violent re-offending.
[34] However, all three reports noted some reservations in light of changes in your behaviour in the last six years. Dr Duggal’s report was the least optimistic, noting that you are still at high risk. However, he considered the period of positive function you have experienced may have led to a change in your motivation and ability to engage with rehabilitation programmes and counselling. Ms Visser emphasised that you exhibit risk-reducing factors that should be taken into consideration. In her view these have led to behavioural changes, reflected in your pro-social behaviour in the
community, willingness to acknowledge previous offending and motivation to limit your gang participation.
[35] Further, Ms Isaacson’s report considered that while you are at a high risk of committing further relevant violence offences within a gang-related situation and/or in the prison environment, you are at a low risk within neutral community situations.
Section 87(4)(d) — efforts by the offender to address cause of offending
[36] Fourthly, the rehabilitative efforts made by you in the past. Your engagement with structured programmes has been mixed. In 2006 you attended a two-month intensive treatment programme at Montgomery House. You were expelled one week prior to completion due to having female visitors at night, in breach of the rules.
[37] More recently, however, you have made more concerted and successful attempts to engage with rehabilitation opportunities. You undertook the year-long Special Treatment Unit Rehabilitation Programme from 2009. This was more successful and you completed the programme. On completion it was considered that you had made some progress and gained some insight into your attitudes. It was considered, however, that your progress was hindered by your ongoing gang affiliation.
[38] You have also completed educational courses while in prison, notably achieving NCEA Level 1 in 2008 despite leaving school before the age of 15. You also learnt a wide range of skills while on release in the community and put these to positive use.
[39] On release from prison in 2011 you had a period of positive interaction in the community, largely due to your own efforts and your relationship with your family. This was, however, disrupted by serious offending less than three years later. You have consequently offended while on remand for this serious offending.
[40] Further, the reports indicate optimism for future rehabilitation. Dr Duggal concludes:
Given the islet of positive functioning in Mr Te Hei’s life prior to his current period of incarceration, Mr Te Hei may have developed motivation to meaningfully re-engage with a violence reduction program. He may also be a good candidate for alcohol and drug counselling.
Section 84(7)(e) — principle that a lengthy determinate sentence is preferable
[41] I consider that this is a finely balanced matter. On the one hand you have a long history of offending which has escalated over time. You have struggled to engage in some rehabilitation programmes, and continued to reoffend despite such opportunities. On the other hand, you have indicated that you are willing to address your offending and its underlying causes. You engaged with rehabilitation programmes more successfully in 2010. You have accepted that gang connections have a significant impact on your life and indicate that you wish to reduce your involvement in the gang. It appears that on your release in 2011 you did so to at least some extent. You engaged in the community in pro-social ways, including by volunteering and assisting others in that community. All three expert reports indicate that you have made positive changes since 2010.
[42] On balance, I am not satisfied that you are likely to violently reoffend when released into the community if not subject to a sentence of preventive detention. Ms Isaacson noted her opinion that your risk of violent offending was limited to gang-related contexts rather than against members of the community as a whole. This is not an excuse for offending. However, I consider that it does limit your risk of reoffending when you are removed from the pressures of gang life. You appear to be making a genuine attempt to remove yourself. You have demonstrated an ability to live pro-socially in the community, and a desire to do so again. It appears likely that you are now better equipped to engage with rehabilitation programmes than in the past. I consider that your motivation to change is genuine and, combined with your age, may well point towards reduced risk.
[43] For that reason I will not impose a second term of preventive detention on you.
[44] Instead, I will impose a finite sentence of imprisonment. I consider that your offending was sufficiently serious to justify a minimum period of imprisonment, as
serving the normal minimum period of one-third of the sentence will not be enough to punish, deter and denounce the offending. A longer term than the non-parole period is required for a sufficient response in the eyes of the community.15
Accordingly, I impose a minimum term of imprisonment of three years.
Setting aside the second strike warning
[45] I am aware that upon conviction, following the guilty verdict brought back by the jury, you were given a second-strike warning by Judge Adeane on 15 December
2016. This was given to you in error as this offence pre-dated the first-strike warning given on conviction for a similar offence of wounding with intent to cause grievous bodily harm in March 2016.
[46] I accordingly set the second-strike warning aside, pursuant to s 180(3) of the Criminal Procedure Act 2011, leaving in place the first-strike warning given to you in March 2016.
[47] I remind you now of that first-strike warning, Mr Te Hei. If you are convicted of any serious violent offence (except murder) committed after you received the first warning, you will receive a final warning. In addition, if the Judge imposes a sentence of imprisonment for that offence, other than life imprisonment for manslaughter or preventive detention, then you will serve that sentence without parole or early release. If you are convicted of a murder committed after you received the first warning, you will be sentenced to imprisonment for life. You must serve the life sentence without parole unless it would be manifestly unjust to do so. If you receive a life sentence without parole, you will not be released from prison. If serving the sentence without parole would be manifestly unjust, the Judge must specify the minimum period of imprisonment you will serve.
Conclusion
[48] Mr Te Hei, please stand. On the charge of wounding with intent to cause grievous bodily harm on which you were found guilty by the jury, I sentence you to a
15 R v Gordon [2009] NZCA 145 at [15].
finite sentence of six years and nine months imprisonment with a minimum period of imprisonment of three years.
[49] Please stand down.
Woolford J
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