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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Vincent

Details

AGLC: R v Vincent [2007] NZCA 238
Case: [2007] NZCA 238
Decision Date: 13 June 2007

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard an appeal from Jason Glen Vincent against his conviction for two charges of wounding with intent to injure, committed while he was serving a sentence for rape. The Crown also sought leave to appeal against his sentence of concurrent terms of imprisonment. The Court dismissed the appeal against conviction but granted leave to appeal against sentence and allowed the appeal, substituting a sentence of preventive detention with a minimum period of five years imprisonment.

The primary legal issue for the Court was whether the Judge had erred in principle by refusing to impose a sentence of preventive detention, given the risk of reoffending posed by Vincent. The Court found that the Judge had given insufficient weight to the risk assessments and the failure of previous treatment efforts. The Court concluded that Vincent's risk of reoffending upon release was high and that a sentence of preventive detention was necessary to protect the community.

The Court emphasised that good behaviour in prison does not necessarily indicate a low risk of reoffending in the community. Vincent's violent offending while in prison, despite previous therapeutic intervention, revealed an inability or unwillingness to control his violent tendencies. The Court also noted that Vincent's propensity for violent offending, not limited to sexual crimes, justified a protective sentencing response. Consequently, the Court found that a lengthy finite term of imprisonment would not adequately protect the community and imposed a sentence of preventive detention with a minimum period of five years imprisonment.

Orders