R v Vincent

[2007] NZCA 238

IN THE COURT OF APPEAL OF NEW ZEALAND

CA3/07
CA481/06
[2007] NZCA 238

THE QUEEN

v

JASON GLEN VINCENT

Hearing:21 May 2007

Court:Wilson, Randerson and Rodney Hansen JJ

Counsel:B J Horsley for Crown

Respondent in person

Judgment:13 June 2007 at 11 am

JUDGMENT OF THE COURT

A        The appeal against conviction is dismissed.

BLeave to appeal against sentence is granted and the appeal is allowed.  The sentence of imprisonment is quashed and the respondent sentenced to preventive detention with a minimum period of five years imprisonment.

REASONS OF THE COURT

(Given by Rodney Hansen J)

Introduction

[1]       The respondent, who on this appeal chose not to avail himself of the legal assistance available to him, pleaded guilty to a charge of wounding with intent to injure and was found guilty after trial on a second charge of the same offence on a separate occasion.  On 24 November 2006 he was sentenced by Cooper J to concurrent terms of five years and three and a half years imprisonment on the two charges.  He was ordered to serve a minimum term of imprisonment of three years.  Cooper J declined the Crown’s application to impose a sentence of preventive detention. 

[2]       The respondent appeals against his conviction on the second charge and the Crown seeks leave to appeal against sentence on the ground that the Judge erred in principle in refusing to impose a sentence of preventive detention.

Background

[3]       At the time the two offences were committed, the respondent was serving a sentence of 13 years imprisonment imposed in 1994 for the rape the previous year of a 77-year-old woman.  She had been asleep in her unit at a retirement village, recovering from breast surgery.  The respondent broke into the unit and subjected her to what was described by the sentencing Judge as a vicious and brutal rape.  When she screamed the respondent threatened to kill her.  He was apprehended several months later.  DNA testing confirmed that he was the offender.

[4]       Under s 90 of the Criminal Justice Act 1985, the respondent was eligible for automatic release in 2003.  However, on 12 August 2003 the Parole Board made an order pursuant to s 107 of the Parole Act 2002 that he not be released before his applicable release date, 17 July 2007.  The sentence of Cooper J extends his final release date to 17 July 2012.  The minimum term of imprisonment took effect from the date of his eligibility for parole on the rape sentence and expired on 26 December 2006.

[5]       The charge to which the respondent pleaded guilty arose out of an incident on 15 September 2005 at Waikeria Prison.  The respondent entered a locker room where another inmate, George Nicholls, was working on his own.  The respondent was armed with a screwdriver.  He told the victim that he was going to stab him, produced the screwdriver and stabbed him in the arm.  The screwdriver penetrated the victim’s left bicep and went into his chest.  The respondent warned the victim that he would kill him if he complained to prison staff.  The victim was treated in the Emergency Department of Waikato Hospital for entry and exit wounds to his arm and a puncture wound that went 2 cm deep into his chest.

[6]       After this attack, the respondent was placed in segregation.  He was released on 12 October 2005.  The second charge arose out of an incident on 30 October.  The Crown alleged the respondent attacked another inmate, Darcey Hamilton, in the prison yard.  Mr Hamilton said the respondent asked him to buy the respondent some gel and some biscuits.  When he refused, the respondent threatened to stab him with a screwdriver.  Mr Hamilton said he punched the respondent in an attempt to stave off the attack.  He was then stabbed in the bicep and in the ensuing scuffle was also stabbed in the neck.  The altercation was broken up by another inmate.  When the victim then offered his hand in a gesture of reconciliation, the respondent punched him in the face.

[7]       The victim received three stab wounds and suffered bruising and abrasions to the face and body.  Two of the stab wounds were alleged to have been caused by a single blow to the victim’s neck, the screwdriver entering one part of the neck and emerging from another.

[8]       The respondent was tried on alternative charges of wounding with intent to cause grievous bodily harm and wounding with intent to injure.  He claimed he acted in self-defence.  He said he was sitting at a table in the exercise yard eating his lunch when Mr Hamilton and two other inmates approached him.  He said he was hit and knocked unconscious.  When he recovered consciousness, he was being punched and kicked by the three.  The respondent said he got Mr Hamilton in a headlock and accidentally wounded him with a pen he had pulled out of his pocket. 

Appeal against conviction

[9]       The respondent rested his appeal against conviction on two grounds.  First, he submitted that his lawyer had failed to adequately put his defence to the jury.  Secondly, he contended that one aspect of Crown counsel’s cross-examination of him had been unfair.

[10]     The respondent’s criticisms of his lawyer’s conduct of the case included his claimed failure to expose flaws in the evidence of prosecution witnesses and to tell the jury the real reason he was attacked (which he claimed to be his conviction for sexual offending).  He did not follow the usual practice of providing a waiver of privilege of communications with his counsel.  There was accordingly no opportunity for us to consider the respective accounts of the respondent and his counsel as to the conduct of the trial.

[11]     Despite this, we are satisfied that there is nothing of substance in his criticisms of trial counsel.  The trial ultimately turned on the jury’s assessment of the credibility of the principal protagonists.  The respondent’s version of events was completely at odds with that of the victim and another inmate, whose accounts were corroborated in important respects by two prison officers.  Defence counsel fairly put the respondent’s evidence to prosecution witnesses.  In our view, the prosecution case was properly tested and the jury given a full opportunity to evaluate the credibility of the witnesses.  For obvious reasons, defence counsel cannot be criticised for not disclosing the offending for which the respondent was imprisoned.

[12]     At the commencement of his cross-examination of the respondent, Crown counsel put a series of questions to the respondent in which he suggested that a prisoner with a tough reputation was less likely to be targeted by other inmates.  These questions arose from, though did not refer to, a letter written by the respondent which had been ruled inadmissible.  The fourth question in the series was:

Mr Vincent, this stabbing might have created some sort of, you could’ve been seen as a bit more tough by other prisoners though as a result of this stabbing don’t you think?…

At this point the Judge upheld a defence objection and the line of questioning was discontinued.

[13]     The respondent submitted that the questions should not have been permitted and may have unfairly prejudiced the jury against him.  However, we are not persuaded that the line of questioning was improper.  Counsel was entitled to explore possible motives for an attack.  In any event, we see no risk that the jury would have been diverted by the questioning from the primary task of determining which of the two versions of events was most likely to be true.

[14]     The appeal against conviction must be dismissed.

Appeal against sentence

Background information

[15]     The information available to the sentencing Judge included two pre-sentence reports, one prepared in respect of each offence, and reports of two psychiatrists and one psychologist prepared pursuant to s 88 of the Sentencing Act 2002.  The respondent was interviewed for the purpose of the first pre-sentence report but declined to speak to the authors of the later reports.

[16]     The respondent is now aged 37.  The reports disclose that he had a traumatic and disruptive upbringing.  He was subjected to physical and sexual abuse.  His pleas to his parents to intervene to stop the sexual abuse were ignored.  His family moved frequently.  He attended many schools and was frequently truant.  He began abusing substances at aged 12 to 13.  He first became involved in criminal activities at the age of 14.  He was in a boys’ home and had ceased his formal education at the age of 15 years.

[17]     Over the next ten years until, at the age of 24 years, he was imprisoned on the rape charge, the respondent accumulated 52 convictions.  Many were for driving-related and relatively minor offending but his convictions included assault (1991), male assaults female (1993) and convictions in 1994 for assault and possession of an offensive weapon.  Six of the convictions were for wilful damage and nine for burglary.

[18]     The reports disclose that, although quiet and compliant towards prison staff, the respondent has a history of intimidatory behaviour towards other inmates.  In addition to the incidents that led to the two convictions, at least one other stabbing incident is reported and, soon after the second of the two offences, the respondent made threatening comments and was found to have weapons in his cell.  In the letter earlier referred to, written by the respondent to his brother and intercepted by the prison authorities, the respondent referred repeatedly to stabbing other prisoners.  In one passage he said:

Stabbing people has become second nature and at this point I see no difference between sticking a knife into a leg of chicken and sticking a knife into a leg of man, the only major difference is that one of those meats is raw and requires a bit more effort to penetrate.

[19]     The respondent has completed a number of psychological and other counselling programmes in prison.  They have included drug and alcohol counselling, anger management counselling and a “Straight Thinking” course.  From 2003 to 2005 he underwent individual psychological treatment following the decision of the Parole Board under s 107 of the Parole Act that he not be released before the applicable release date, that is the date three months before his sentence expiry date.  Such an order is made if the Parole Board is satisfied that the offender would, if released before the applicable release date, be likely to commit a specified offence between the date of release and the applicable release date.  Specified offences are serious sexual crimes and crimes of violence.

[20]     Because he had not interviewed the respondent, one of the psychiatrists reporting under s 88 felt unable to make a risk assessment.  The other psychiatrist also felt constrained but identified five factors that, in his opinion, increased the respondent’s risk of reoffending upon release:

·Previous violence.

·Moderately young age at the time of first violent offence (21 years).

·Substance abuse problems.

·Anti-social attitude.

·Non-compliance with remediation attempts.

The psychiatrist noted that the most recent offending had occurred after the completion of the various counselling programmes, including individual psychological treatment.

[21]     The psychologist had access to numerous previous reports, including reports prepared for the purpose of the s 107 order.  She reported that the respondent’s risk of reoffending had been assessed and reviewed on seven occasions since the s 107 order was granted.  She said that, based on static and dynamic risk factors and noted clinical factors, the respondent had been assessed in May and September 2006 as having a very high risk of violent and general reoffending and a high to moderate risk of sexual reoffending.  She said at para 9.11 of her report:

9.11In summary the four risk measures used in this assessment have a high level of convergence in predicting that Mr Vincent is at least moderate and more likely a high risk of serious sexual/violent re-offending with this risk being higher than the base rate sexual recidivism for similar offenders.  His high score on the PCL:SV, an instrument validated for a New Zealand criminal population similar in terms of index offending, sentence length, ethnicity, and age, provides further evidence both of his high risk of violent/sexual recidivism and that this is likely to occur within a short period after release.

She concluded:

10.1Mr Vincent has committed violent offences against females and males throughout his past, who include both strangers and persons known to him, and appears to be indiscriminate of age.  His proclivity towards violence has also involved the use of weapons and threats causing significant injury.  Consideration of consequences and victim empathy do not feature in his offending.  Mr Vincent’s offence of rape and his lack of treatment would indicate that he continues to pose a significant risk to vulnerable people.  Mr Vincent’s behaviour in prison and the current charges he is facing are continued evidence of his inability to manage his tendency to use violence.

10.2Whilst in the community Mr Vincent had manifested an increasing risk in terms of the severity of his offending.  During Mr Vincent’s time in prison he has made no sustained attempts to modify his violent behaviour.  If unable to manage his risk in a controlled environment, such as a prison, then evidence would suggest that Mr Vincent is unlikely to be able to manage his risk effectively in the community.  Until Mr Vincent can evidence his ability to manage his risk effectively in the controlled environment of the prison then he must be considered a high risk of recidivism in the community, where he would not be subject to such strict control.

Sentencing decision

[22]     The Judge said that, notwithstanding the respondent’s lack of cooperation with the report writers, there was a sufficient basis for him to consider the likelihood of the respondent committing a further qualifying sexual or violent offence.  After reviewing the facts and the submissions of counsel, he decided that a sentence of preventive detention should not be imposed.  His reasons are succinctly set out in his sentencing notes:

[17]     Mr Vincent, your history is such as to give rise to valid concerns about whether you would be a threat to society were you to be released from prison.  I have to say, however, that other than these two offences committed comparatively recently, and within a six week period, you have not behaved in a way which I think ultimately justifies a sentence of preventive detention being imposed.  You were, of course, in prison, but for many years you did not evidently engage in the conduct for which you are now to be sentenced.

[18]     Then I bear in mind the fact that although these offences are offences of a violent nature, and they are what the Sentencing Act describes as “qualifying sentences” for the purposes of preventive detention, they are not offences of the most serious kind and I think they are very different from the rape which resulted in the lengthy sentence that was imposed in 1994.

[19]     Ultimately, I think, as Mr Bradford candidly submitted, there are indicia here which might be thought to justify a sentence of preventive detention.  I have decided not to do so, however, because I consider that society will be able to be adequately protected by a lengthy finite term.  In reaching that view I have been influenced by the long period that elapsed during which you evidently did not offend.  At the end of the day I am not satisfied that a sentence of preventive detention is necessary to protect society.

[23]     The Judge went on to consider the appropriate term of imprisonment.  He said the offending fell within the second sentencing band in R v Taueki [2005] 3 NZLR 372 (CA). Aggravating factors included the degree of premeditation, the use of weapons against unarmed persons and the fact that the assaults occurred while the respondent was serving a sentence of imprisonment for another serious offence. He determined the appropriate starting point to be five years for each offence, discounting the sentence for the first offence to take account of the guilty plea. The Judge rejected a Crown submission that the sentences should be cumulative.

Submissions

[24]     Mr Horsley submitted that the Judge’s decision did not adequately deal with the central issues under s 87(4) of the Sentencing Act.  In particular, he argued that the decision failed to specifically address the risk assessments in the expert reports and the failure of previous extensive treatment.  He contended that the risk of reoffending at the end of the applicable finite sentence must be assessed as high.  The respondent no longer cooperates with the authorities, he has no inclination to address the causes of his offending and his ability to control his violent impulses has deteriorated in prison despite wide-ranging treatment.

[25]     Mr Horsley submitted that in light of this risk profile, none of the factors relied upon by the Judge, either singularly or in combination, justifies the imposition of a finite sentence.  He submitted that the Judge’s reasons do not give the required primacy to the interests of protection of the community.  He said that the punitive effect of imposing a sentence of preventive detention could be minimised by imposing a minimum period of imprisonment of five years.  Such a sentence would have the dual benefits of providing the respondent with a powerful incentive to engage in treatment and providing the public with the added protection of long-term post-release supervision and the possibility of recall.

Discussion

[26]     The Judge did not make a specific finding in terms of s 87(2)(c) whether he was satisfied that the respondent was likely to commit another qualifying sexual or violent offence if released at the sentence expiry date, although it is clear that he accepted there was jurisdiction to impose a sentence of preventive detention.  While acknowledging that there were indicia which might be thought to justify a sentence of preventive detention, he declined to do so because he considered that society would be adequately protected by a lengthy finite term of imprisonment.  In reaching that view, the Judge acknowledged that he was influenced by the absence of offending during the respondent’s first 11 years of incarceration.  He also took into account that the qualifying offences were not of the most serious kind and were of a different nature from the rape for which he was imprisoned. 

[27]     In our view, the Judge was overly influenced by the absence of offending in prison until the stabbing incidents in 2005.  Good behaviour in the controlled environment of a prison does not provide a reliable guide to the risk of reoffending in the outside world – see R v Mataira [1992] 3 NZLR 409 (CA) at 412. And, although there is nothing to show that there were previous violent episodes, for the purpose of the order under s 107 of the Parole Act, the respondent had been assessed in 2003 as at high risk of violent reoffending and a moderate to high risk of sexual reoffending.

[28]     The 2005 offending must be considered in the light of this assessment.  As the Judge said, the offending was not of the most serious kind, but that is because of the relatively minor nature of the injuries inflicted.  There were serious aggravating features of the offending including premeditation, the use of a lethal weapon and the absence of provocation.  It is to be remembered also that the second assault occurred within two weeks of the respondent being released from segregation after the first attack.

[29]     The significance of the offending is magnified by two further considerations.  First, it took place in circumstances where detection was inevitable.  We agree with Mr Horsley that a heightened risk of reoffending may be considered to attach to those who commit serious offences within the controlled environment of a prison – Mataira at 412, see also R v Portsmouth CA243/00 26 October 2000.  While the pressures arising from the rigours of prison life may have triggered the offending, the respondent’s actions reveal an inability or an unwillingness to control his violent propensities and an indifference to the consequences of his actions.

[30]     Secondly, the offending followed a period of intensive psychological counselling.  The risk of reoffending is to be regarded as further increased when offending has followed therapeutic intervention.  By s 87(4)(d) the Court is required to take into account the absence of or failure of efforts by the offender to address the cause or causes of the offending.  The offending suggests that treatment has been ineffective and supports the psychologist’s observation that during his time in prison the respondent has made no sustained effort to modify his violent behaviour.

[31]     The fact that the violence is different in nature from the sexual violence for which he was imprisoned does not detract from the assessment of risk.  This Court addressed the issue in R v Wilson (2002) 19 CRNZ 555.  It said at [23]:

The legislative purpose being protection of the public from very dangerous offenders, the indications of danger need not be confined to recurrent violent crimes of the same type.  Where recurrent similarity is usually seen as relevant in terms of an inference of unremitting propensity.  Yet there may be a clear disposition toward violent offending generally, which may or may not involve a variety of types of violent crimes.  Thus a propensity mix of dangerous behaviours, not just violence of a particular type, may justify a protective sentencing response, although the mix may render more difficult the prognosis of risk.

[32]     In our view, the available information confirms the opinion of the medical assessors that there is a high risk that the respondent will commit an offence of violence if released at the sentence expiry date.  The failure of therapeutic intervention to date gives no cause to hope that the prognosis may change.  On the contrary, the indications are that the respondent would be at serious risk of reoffending on release.  In the circumstances, we respectfully differ from the Judge’s assessment that a lengthy determinate sentence would provide adequate protection for society.

[33]     There is plainly a compelling need for the respondent to undergo further psychological treatment.  He acknowledged that he would welcome a resumption of individual counselling.  A sentence of preventive detention will provide him with a further incentive to engage in such counselling.  That will further the goal of protecting the community, as will the opportunity for supervision post-release and the possibility of recall associated with a sentence of preventive detention.

[34]     We are not asked to impose more than the minimum period of imprisonment provided by s 89(1).  It was not suggested that the term of five years did not appropriately reflect the gravity of the offending or that the minimum period required for the purpose of the safety of the community should be longer.

Result

[35]     For these reasons, we grant the Solicitor-General leave to appeal against sentence.  We allow the appeal and quash the sentence of imprisonment.  In its place, we impose a sentence of preventive detention.  We order that the offender serve a minimum period of five years imprisonment.

Solicitors:
Crown Law Office, Wellington