R v Vela
[2019] NZHC 714
•5 April 2019
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2016-009-012760
[2019] NZHC 714
THE QUEEN v
MELAGI VELA
Hearing: 5 April 2019 Appearances:
M G McClenaghan for the Crown Defendant self-represented
S J Hembrow (stand-by counsel)
Judgment:
5 April 2019
REASONS FOR SENTENCE OF COOKE J
[1] On 17 October 2018 Melagi Vela was convicted in the District Court of one charge of causing grievous bodily harm with intent to cause such harm and one charge of wilfully attempting to pervert the course of justice. On 27 February 2019 the Judge declined jurisdiction to sentence and referred Mr Vela to this Court for sentence because the Court had reason to believe Mr Vela should be considered for a sentence of preventive detention.1
1 See Sentencing Act 2002, s 90(2).
R v VELA [2019] NZHC 714 [5 April 2019]
Facts
Causing grievous bodily harm with intent
[2] Prior to the offending, Mr Vela had been in a relationship for a short period with the victim. The victim told the District Court that at the time of trial she still had strong feelings of affection towards Mr Vela.
[3] On the evening of 17 December 2016 at around 10:30 pm to 11:00 pm, the victim arrived at her address intoxicated. She was not able to get into her room and had to ask her elderly neighbour to let her in. The neighbour gave evidence that, while intoxicated, the victim showed no signs of physical damage to her face.
[4] The victim found Mr Vela in her room, and an argument ensued between Mr Vela and the victim. Thereafter the victim said she only remembers waking up and observing her injuries.
[5] On 20 December 2016 the victim presented at Christchurch Hospital with a significantly fractured jaw bone with severe displacement, as well as significant dental trauma and extensive soft tissue swelling. She required surgery the following day, involving the insertion of multiple metal plates and pins. There was no dispute about the fact of these injuries and that they were caused by significant violent force. Mr Vela only disputed his responsibility for the injuries.
[6] The District Court Judge found that the injuries were caused by Mr Vela with the intent to cause the victim serious harm on the evening of 17 December 2016.
Perverting the course of justice
[7] On 5 April 2017 at 9:10 am while Mr Vela was remanded in custody he made a phone call from prison to the victim. During this call the victim informed Mr Vela that there was evidence from the “neighbours” implicating him in relation to the charge of causing grievous bodily harm with the intent to cause that harm. In a further call from prison on 13 April 2017 Mr Vela said “…if you see that fuckin’ old man, can you tell him to shut the fuck up…”. And later, “[c]an you tell him to just fuck up bec-, just shut the fuck up…”
[8] The Judge found that Mr Vela’s conduct in these phone calls amounted to an attempt to try and get the victim to assist him in influencing the neighbour to change his statement and not give evidence against him.
Principles
[9] Section 87(3) of the Sentencing Act 2002 permits this Court to impose a sentence of preventive detention if the person is convicted of a “qualifying sexual or violent offence”, was 18 years of age or over at the time and the:2
[C]ourt is satisfied that the person is likely to commit another qualifying sexual or violent offence if the person is released at the sentence expiry date of any sentence that the [C]ourt is able to impose.
Subsection (5) of s 87 defines a “qualifying sexual or violent offence” as including an offence against s 188 of the Crimes Act 1961 – causing grievous bodily harm with intent to cause that harm.
[10] Section 88 of the Sentencing Act provides that a sentence of preventive detention must not be imposed unless the offender has been notified that a sentence of preventive detention may be imposed, has been given sufficient time to prepare submissions on the sentence, and the Court has considered reports from “at least two appropriate health assessors about the likelihood of the offender committing a further qualifying sexual or violent offence”.
[11] Where preventive detention is determined as appropriate, a minimum period of imprisonment that is not less than five years must be imposed.3
[12] The usual approach to sentencing where the offender is eligible to be sentenced to preventive detention is to first consider what finite sentence may be imposed and secondly, whether that sentence provides adequate protection for society. This is consistent with the mandatory consideration set out at s 87(4)(e) of the Sentencing Act.4
2 Sentencing Act, s 87(2)(c).
3 Sentencing Act, s 89.
4 See Stroobant v R [2018] NZCA 10 at [9].
Health assessor reports
[13] In accordance with the statutory requirements relating to preventive detention, two medical reports have been obtained. Whilst they reach complimentary conclusions in some respects there are differences.
Report of Dr Tegwyn Williams
[14] Dr Tegwyn Williams is a practicing psychiatrist. Dr Williams qualified as a Doctor in 1983 and worked as a Consultant Forensic Psychiatrist in the United Kingdom for over 20 years. He now works as a Consultant Forensic Psychiatrist at the Canterbury Regional Forensic Psychiatric Service.
[15] Dr Williams interviewed Mr Vela on 13 and 30 November 2018 for a total of approximately two hours. On 14 January 2019 Dr Williams interviewed Mr Vela a final time for 90 minutes, this time with the assistance of a Samoan language and cultural interpreter. He explained that the second interview was of greater help.
[16] Dr Williams concluded that Mr Vela exhibited no signs of mental illness, specifically there was no symptoms consistent with a mood disorder or any abnormal experiences. He reported that Mr Vela was raised in a household environment where domestic violence was an appropriate way to resolve conflict. Dr Williams also comments on the interrelationship between Mr Vela’s propensity to violence and his alcohol dependency. He remarks:
[Mr Vela] does however suffer with a psychological dependency on alcohol to help him manage feelings which he finds uncomfortable e.g. the overwhelming feelings of grief having been informed of the death of his grandmother and the perceived infidelity of his partners. The culmination of the disinhibiting effect of alcohol and overwhelming anger increases Melagi Vela’s propensity to violence in these situations.
[17] Dr Williams noted that Mr Vela displayed a tendency to minimise and externalise responsibility for his previous offending. He said that he pleaded a lack of memory when asked about his most recent offending.
[18] Dr Williams records that Mr Vela reported being sexually abused when aged approximately 10 years which was a report he found convincing at interview. He
indicated that this was associated with his difficulties of trust with intimate relationships, consequential distress and anger, and accordingly his propensity to offend. Dr Williams states:
Melagi Vela requires intervention to address the consequences of his early experience of sexual abuse, anger management and alcohol misuse. Due to the sensitive nature of some of these issues the importance of carrying this treatment out in a culturally sensitive way and in Melagi Vela’s language cannot be overstated.
[19] In relation to his tendency to commit serious offences in the future, Dr Williams advises that such predictions so far into the future are unreliable. But he says that:
…without appropriate intervention I would consider that Melagi Vela is a risk of further domestic violence in the context of future intimate relationships, fears about infidelity, anger and alcohol misuse… I feel that this risk can be mitigated by interventions addressing these issues.
[20] On the question of intervention programmes Dr Williams notes that to the extent that Mr Vela has not fully engaged with intervention programmes and treatments, this is due to cultural and language difficulties. He suggests that Mr Vela will likely require future intervention on a one to one basis with the support of an interpreter.
Report of Elizabeth Waugh
[21] Elizabeth Waugh is a clinical psychologist registered with the New Zealand Psychologists Board. She was registered with the Board in 1999. Ms Waugh’s report largely concurs with Dr Williams conclusion that Mr Vela has a high propensity to violence. She adds that Mr Vela “displayed a marked lack of insight into his propensity towards violence”.
[22] Ms Waugh described the results of a number of both static and static/dynamic risk assessments including the Automated Sexual Recidivism Scale – Revised (ASRS- R), the Violence Risk Scale: Sexual Offender (VRS:SO) and Risk of Re-Conviction and Risk of Imprisonment (RoC*RoI). These tended to indicate that Mr Vela’s risk on static scoring was at a moderate level, but that it increased to high risk when the dynamic factors were involved.
[23] Ms Waugh stated Mr Vela has an ability to present well to authority figures who he sees as having power to alleviate his position including the Probation Service and those writing file notes for Corrections whilst he was previously incarcerated. Beneath his ability to present well, Ms Waugh noted Mr Vela continued to engage in rule-breaking and “angry flare ups”. While in prison, she noted Mr Vela committed rule violations including fighting with another prisoner and threatening and aggressive behaviour. She points to prison file notes indicating Mr Vela had become angry with staff, sworn at staff and had displayed “non-compliant and [an] arrogant attitude”. Ms Waugh says “[t]ypically, when he displays problematic behaviour, staff have noted that he tends to blame others and not take responsibility for his actions”.
[24] These findings tend to support Dr Williams’ view that Mr Vela has a strong propensity towards violence and aggression coupled with a tendency to minimise and externalise responsibility when confronted with the reality of his problematic conduct.
[25] Ms Waugh goes on to discuss Mr Vela’s previous experiences with treatment. Mr Vela began treatment with little empathy towards his victim and “cognitive distortions” which allowed him to avoid responsibility and blame his victim and others for his offending, and minimise the harm caused to them. Ms Waugh opines Mr Vela’s need to be seen in a positive light by others interferes with his ability to take responsibility for his negative behaviour, leading him to be, at times, deceptive and manipulative.
[26] Ms Waugh only refers to the allegations of sexual abuse in the context of Mr Vela volunteering this information at interview. Unlike Dr Williams she says that this may have been a “learned statement designed to elicit sympathy from the writer”. It appears, therefore, that she did not share the view that such abuse was related to the origins of Mr Vela’s problems.
[27] Commenting on Mr Vela’s potential to re-offend, Ms Waugh undertakes a detailed analysis of the results of his risk assessment assessments referred to above and concludes that he is:
…at high risk of future intimate partner violence, which could also include sexual violence. Should Mr Vela perceive any threats to himself or his
relationship with a partner, including feeling criticised, belittled, or fear rejection or betrayal particularly through perceived or actual infidelity, Mr Vela is considered to be at high risk of responding with violence, that could potentially result in a loss of life.
(emphasis original).
[28] Ms Waugh’s conclusion as to Mr Vela’s ability to respond constructively to treatment is less positive that Dr Williams. She says his lack of insight into his offending, his tendency to minimise and deny it, means he is less amenable to treatment. His willingness to deceive others also presents a “significant treatment barrier”. She concludes finally:
Should these barriers not be overcome through sufficient motivation to engage with treatment, Mr Vela is considered to pose a high risk of violence within any future relationship. He is noted to typically quickly enter relationships when in the community, and conflict and violence begin soon after.
Submissions for the Crown
Finite sentence
[29] The Crown submits the offending falls into the upper end of band two of the three bands set out in the guideline judgment of the Court of Appeal in R v Taueki on sentencing for the offence of causing grievous bodily harm with intent to cause that harm.5
[30] The Crown points to six aggravating factors in the present case, from the potential aggravating factors identified as relevant by the Court of Appeal in Taueki:6
(a)Extreme violence – the injuries sustained by the victim suggest there was extreme force used by Mr Vela in assaulting the victim as evidenced by the photographs and x-rays attached to the Crown’s submissions.
(b)Attacking of the head – Mr Vela targeted the victim’s head in the assault.
5 R v Taueki [2005] 3 NZLR 372 (CA).
6 See Taueki, above n 5, at [31].
(c)Breach of trust – the victim was in a relationship and co-habiting with Mr Vela at the time and was entitled to place her trust in him.7
(d)Vulnerability of the victim – the victim was intoxicated at the time and is also physically smaller than Mr Vela.
(e)Offending within the sanctity of the home – the attack took place within the victim’s home.
(f)Extent of harm – the victim sustained a significantly fractured and displaced jaw, severe dental trauma and extensive soft tissue swelling. These are long-lasting and permanent injuries.
The Crown submits there are no mitigating features of the offending.
[31] Band two spans five to ten years’ imprisonment. The Crown submits a starting point of between nine and ten years is appropriate in the circumstances and in light of the many aggravating factors.
[32] In relation to the perverting the course of justice charge, the Crown notes that there is no guideline judgment. The Crown cites R v Churchward where the Court of Appeal noted:8
…any attempt to disturb the process of administration of justice is to be deplored and, following conviction, is, in all but the most exceptional circumstances, to be met with a moderately lengthy term of imprisonment.
[33] The Crown highlights that the authorities place emphasis on the intention behind the attempt to pervert the course of justice and its potential effect.9 It also points to Justice Nation’s comments in the High Court in Vince v R:10
An attempt to pervert the course of justice becomes more serious where, if it had been successful, it could have meant someone might have avoided criminal liability for a more serious charge.
7 To the extent this is a separate aggravating feature in terms of the Taueki approach, it appears to apply to situations where the victim is a child in the offender’s care: Taueki, above n 5, at [31].
8 R v Churchward CA439/05, 2 March 2006 at [14].
9 See Miller v R [2014] NZCA 382 at [11].
10 Vince v R [2017] NZHC 2358 at [29].
[34] The Crown submits that in the present case, Mr Vela attempted to exploit the victim’s support of him by getting her to undermine the evidence of the independent witness critical to the prosecution case in respect of the causing grievous bodily harm with intent charge.
[35] The Crown asks the Court to make an uplift of 18 months’ imprisonment to account for the attempted perversion of the course of justice.
[36] In respect of the circumstances of Mr Vela personally, the Crown submits there are no mitigating factors, but that Mr Vela’s previous convictions constitute an aggravating factor. It cites his two convictions for assault with a weapon, one for unlawful sexual connection with a spouse and one for indecently assaulting a female over 16, all in 2007. The Crown notes for that offending he received six years and eight months’ imprisonment, later uplifted. The Crown submits an uplift of 12 months for his previous convictions is appropriate in this case.
Minimum period of imprisonment
[37] The Crown asks the Court in the event a finite sentence is imposed that it be subject to a minimum period of imprisonment pursuant to s 86 of the Sentencing Act of approximately two thirds of the sentence.
Preventive detention
[38] The Crown submits Mr Vela has a serious pattern of offending including violence against a previous partner, involving severe force directed to the victim’s head causing serious injury. It relies on Ms Waugh’s report in submitting Mr Vela is “typically quick to enter relationships when in the community, and conflict and violence begins soon after”.
[39] In terms of the seriousness of harm caused to the community, it is submitted there was significant physical and psychological harm caused to the victim within the context of intimate partner violence.
[40] The Crown submits the risk that Mr Vela is at a high risk of intimate partner violence. It relies on the reports of Ms Waugh and Dr Williams. The Crown highlights Ms Waugh considers Mr Vela to be at a high risk of responding to perceived threats to his ego with violence, that could potentially result in loss of life. The Crown notes Dr Williams’ report highlights Mr Vela’s alcohol dependency as a particular risk factor when coupled with overwhelming anger and as increasing his propensity to violence in such situations.
[41] It is submitted Mr Vela has failed to address the causes of his offending due to his continuous denial of his previous offending and his blaming of his partner and his family for what occurred. The Crown also notes that Ms Waugh’s report highlights Mr Vela’s marked lack of insight into his propensity towards violence. It also draws the Court’s attention to the report’s highlighting of Mr Vela’s propensity to deceitfulness, including in relation to his English proficiency, as a barrier to his undertaking of and benefit from treatment in the past.
[42] Finally, the Crown submits that a lengthy determinate sentence would not provide adequate protection for society because despite the lengthy prison term he served and the treatment attempted in relation to the 2007 intimate partner violence, he remains a risk to the community.
Submissions for the defendant
[43] The defendant is self-represented, and this Court has not received any written submissions from him although he presented oral submissions to me this morning.
[44] Mr Hembrow as stand-by counsel submits in terms of finite sentence that this is a case in the middle of band 2 of R v Taueki, with a starting point of seven and a half to eight years.11 He accepts that there should be an uplift for attempting to pervert the course of justice, while identifying that the utterances were in the nature of “a rant” and that a modest uplift of 12 months would be appropriate. In terms of uplift for aggravating features relating to the offender he submitted that a range of six to 12 months would be appropriate.
11 R v Taueki, above n 5.
[45] He submits that an MPI might be imposed in the present case as more appropriate than preventive detention. He argued that if there was an end sentence of something in the order of 10 years, and MPI of five years might be considered.
[46] In terms of preventive detention his submissions focused on the requirements of s 87(4) of the Sentencing Act. In that respect he submitted;
(a)that two instances of offending some years apart did not provide a sufficient pattern;
(b)that the risk of future offending could be mitigated in the manner suggested by Dr Williams, and that intimate partner violence could be reduced to a low risk with appropriate treatment;
(c)that Mr Vela had worked with a clinical psychologist during his last prison sentence, and there was nothing in the reports that suggested he lacked the capacity to change; and
(d)that the protection of the community could be adequately protected by the imposition of a substantial prison term coupled with an MPI, with the Parole Board providing protection in terms of the safety of his release.
Finite sentence
[47] I begin by first assessing the appropriate level of a finite sentence before going on to address preventive detention.
[48]The two offences, while arising out of the same incident, are different in kind
– one being violence offending, the other being offending against the administration of justice. Thus, the sentences should be imposed cumulatively then adjusted for totality if necessary.
[49] R v Taueki is the Court of Appeal’s guideline judgment for sentencing for the offence of causing grievous bodily harm under s 188(1) of the Crimes Act 1961.12 The judgment sets out three bands for determining an appropriate starting point. To assist the courts in assessing which band is appropriate, the Court of Appeal identified a number of aggravating factors.13
[50] In this case, band one is not appropriate. Band one does not apply to offending of extreme violence or violence which is actually life threatening.14 At trial, Judge Farish found the victim suffered significant jaw bone displacement, significant dental trauma and extensive soft tissue swelling. The victim underwent surgery the following day to repair her damaged jaw, requiring several plates and pins to be inserted. The Judge also accepted the evidence that a treating clinician, Dr Angus Cameron, indicated that a significant degree of force was required to cause the damage to her face. Thus, the injuries suffered by the victim were serious and the attack on her involved extreme violence.
[51] In addition to these two Taueki aggravating factors (extreme violence, and extent of the harm), there are three further relevant factors. The assault involved an attack to the head. The Court of Appeal held attacking to the head will be treated similarly to the use of a weapon.15 Moreover, the victim was particularly vulnerable. She was highly intoxicated at the time of the attack. Finally, the offending involved the violation of the sanctity of the home. Judge Farish accepted the neighbour’s independent account that the attack began shortly after the victim entered her room in an intoxicated and thus vulnerable state. The attack was perpetrated at a time and place where the victim should have been safe.
[52] The presence of five aggravating factors means both bands two and three are open to the Court. However, the example of domestic assault under band three is described as involving “a premeditated home invasion with the use of a weapon brought the scene…”16 The domestic assault does not fit within those parameters, but
12 R v Taueki [2005] 3 NZLR 372 (CA).
13 At [31].
14 Taueki, above n 12, at [36].
15 Taueki, above n 5, at [31].
16 Taueki, above n 5, at [41].
it is clearly more serious than the band one example of domestic assault described as “…not caus[ing] lasting injuries…”17
[53] Given the presence of five aggravating factors, particularly the severity and lasting nature of the injuries, this assault should be seen at the upper end of band two. In my view a starting point of eight years’ imprisonment is appropriate.
[54] In relation to the charge of perverting the course of justice, there is no guideline judgment. The Court of Appeal in R v Hillman considered a benchmark of three years of imprisonment as appropriate in cases of “very severe offending”.18 In R v Clutterbuck the Court of Appeal indicated that sentences in the range of 18 to 24 months’ imprisonment would be appropriate in cases of lesser offending.19 In that case, a starting point of two years was adopted where the defendant had attempted to compel a former partner to withdraw a temporary protection order application by a threat to reveal incriminating information to police.
[55] The present case involves an apparent attempt to have a former partner, apparently still loyal to him, dissuade an independent witness from giving evidence against Mr Vela. It may be, however, that this was a spontaneous comment made by Mr Vela to his partner in a private conversation that neither of them expected to result in any action. It is not suggested that the victim made any attempt to contact the neighbour to prevent the evidence being given. While this is not a case of “very serious offending” with a threat of violence, it is still significant offending. Given the seriousness of the charge Mr Vela faced, attracting a potential penalty of up to 14 years’ imprisonment, and the potential effect of a successful attempt, I adopt a starting point of one and one half years.20
[56] Thus, a cumulative starting point for both offences would be nine and a half years. There is nothing to suggest this starting point should be adjusted for totality.
17 Taueki, above n 5, at [37].
18 R v Hillman [2005] 2 NZLR 681 (CA) at [7]; the cases referred to in Hillman as “very serious” involved the dissuading of witnesses giving evidence by threats of violence.
19 R v Clutterbuck CA372/99, 17 November 1999 at [13] and [17].
20 Miller, above n 9, at [11]; see [33] above.
The overall gravity of Mr Vela’s offending is serious and a cumulative starting point of nine and a half years accords with this.
[57] There are no relevant personal mitigating factors that apply to Mr Vela. But there should be a further uplift for Mr Vela’s previous convictions. In the circumstances a further six months seems appropriate, leading to a total sentence of 10 years’ imprisonment.
Minimum period of imprisonment
[58] As I previously observed in R v Barton, it seems to me as a matter of principle that a minimum period of imprisonment should be neither routine, or imposed in an arbitrary way.21 What is necessary is the close consideration of the particular facts of the case. There is nothing here to suggest that a non-parole period more than approximately three years is required to achieve Mr Vela’s rehabilitative needs and meet the relevant sentencing purposes. He could only be released at that time if he has demonstrated that he does not pose an undue risk of reoffending. The MPI is not directed to that issue. Accordingly, and in light of a total sentence of ten years, no MPI is necessary.
Preventive detention
[59] The starting point in determining whether preventive detention should be imposed once a potential finite sentence has been considered is to ask whether that determinate sentence is adequate to protect society. I consider each of the considerations referred to in s 87 to do so.
Pattern of serious offending
[60] The Crown contends he has a pattern of serious offending including serious violent and sexual offences against a former partner. However, the prior offending referred to, while undoubtedly serious, related to a single period during December
21 R v Barton [2018] NZC 1558 at [29].
2007. Mr Vela’s criminal history is not one of frequent and long-duration offending,22 and there was an extended period between his previous and current offending.23
[61] Mr Vela has nevertheless engaged in two similar and serious occasions of domestic violence offending. There may also be some relevance to the earlier neglect offending in relation to his child, but it is these two occasions of offences that give rise to the potential pattern.
[62] There is some force in the point made by Mr Hembrow that there is a significant gap in time between the two occasions of offences. But the significance of that gap in time is reduced given that Mr Vela was serving a significant period of imprisonment after the first offending. The second offending occurred within a shorter period of time after his release in mid 2014.
[63] Whilst there are only two such occasions, it seems to me that there is a pattern. That is also reflected in the reports of Dr Williams and Ms Waugh who have addressed the nature of his offending behaviour, and have identified a discernible pattern from a psychological point of view.
The seriousness of the harm to the community
[64] Mr Vela’s offending has involved very significant harm to his victims, and accordingly indirectly to the community. Domestic violence is a particular insidious form of offending which exhibits a lack of proper social integration, but also is the cause of social dislocation for victims. This is particularly so as the pattern appears to involve Mr Vela forming a close personal relationship with his victim before engaging in the very serious physical and/or sexual violence.
Tendency to commit serious offences in the future
[65]This appears to me to be the critical element in the present case.
22 See R v Priske, 2 June 1998 (19 charges of offending against six boys over four years).
23 In R v Hapakuku (1991) 7 CRNZ 571 (CA), the offending occurred within months of release from prison for similar gang rape-type conduct; see also R v Taite (1998) 16 CRNZ 10 (CA) (re- offended within 18 days of release).
[66] It seems to me that the actuarial risk assessment referred to in Ms Waugh’s report are important. There is real force in Dr Williams point that attempting to assess risk on the basis of opinions alone involves a degree of speculation. The assessments tend to suggest that there is only a moderate risk of reoffending based on static risk factors. But as factors personal to Mr Vela are introduced, the risks of reoffending significantly increase. This shows that the real risk of reoffending arises from personal attributes associated with Mr Vela. It therefore becomes critical to assess whether those risks can be appropriately mitigated, or subsequently managed.
[67] In the present case, Mr Vela’s propensity means he is presently at high risk of violent offending, as is evident in the conclusions of the reports of Dr Williams and Ms Waugh. Dr Williams in particular sees intensive treatment in a form that Mr Vela can fully engage with, for example, on a one to one basis with the support of a Samoan cultural and language interpreter, as tending to mitigate this risk. It is also relevant that the Court of Appeal in R v Mist held that in determining whether a finite sentence will adequately protect society, the Court must consider possibility of an extended supervision order (ESO).24 Should treatment be unsuccessful such that the risk remains, this can be taken into account by the Parole Board, and Corrections could also apply to the Court for an ESO. In this case, the starting point is a lengthy sentence with the opportunity for Mr Vela to receive more effective treatment, and a backstop that an ESO may be called upon to provide protection for the community if treatment is unsuccessful.
Absence of/failure of efforts
[68] I accept Mr Hembrow’s submission that there has been a willingness by Mr Vela to participate in treatment to deal with his propensity to reoffend. The real issue is the feature identified by both Dr Williams and Ms Waugh that there is an element of deceptive behaviour when engaging in counselling or other treatment programmes. If Mr Vela is to make any genuine progress he needs to engage in such processes with a greater degree of honesty. The observations of Dr Williams that the counselling and treatment take place in a culturally appropriate manner may be very important to achieving this.
24 R v Mist [2005] 2 NZLR 791 (CA) at [101].
Preference for determinate sentence
[69] As indicated in the Act, it is preferable to adopt a lengthy determinative sentence provided that society is adequately protected. In the end what the evidence demonstrates is that there is a potential for Mr Vela to be able to address his propensities to offend. Dr Williams appears to see greater potential of this than Ms Waugh. This is in some ways demonstrated by the outcome of the static risk predicting instruments, compared with the outcomes once the dynamic factors are introduced.
[70] In the end I conclude that society does achieve adequate protection without a sentence of preventive detention, because Mr Vela’s future will largely hinge on whether he does properly address the factors that lead to him offending during his prison sentence. If he does not properly address them, then he is unlikely to achieve a favourable outcome before the Parole Board, and it is possible that an ESO will also be imposed. Given the machinery that is in place, and the examinations that provide a starting point for future assessment, the future for him is very much controlled by appropriate rehabilitation programmes, and decision-making made as a consequence of the outcome of those programmes.
Conclusion
[71] For these reasons I conclude that a sentence of preventive detention is not appropriate.
Conclusion on sentence
[72] Mr Vela should not be sentenced to preventive detention. His offending does not meet the threshold for imposing such a restrictive sentence.
[73]Mr Vela I sentence you to ten years’ imprisonment on both charges.
Cooke J
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