R v Vincent HC Auckland CRI 2006-044-285
[2007] NZHC 2077
•30 August 2007
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI 2006-044-0285
THE QUEEN
v
JASON GLEN VINCENT
Hearing: 29 August 2007
Appearances: D Marshall for the Crown
Prisoner in person
H Leabourn (amicus curiae) Judgment: 30 August 2007
JUDGMENT OF STEVENS J
This judgment was delivered by me on Thursday, 30 August 2007 at 11am pursuant to r 540(4) of the High Court Rules.
Registrar/Deputy Registrar
Solicitors/Counsel:
Crown Solicitor, PO Box 2213, Auckland
H Leabourn, PO Box 941, Auckland
Copy to:
J Vincent, C/- Auckland Prison, PO Box 50124, Auckland
R V VINCENT HC AK CRI 2006-044-0285 30 August 2007
Introduction
[1] Jason Glen Vincent appeared for sentence today on one charge of attempted murder under s 173 of the Crimes Act 1961, having been found guilty by a jury at trial in July 2007. The maximum penalty for that offence is 14 years’ imprisonment. The Crown has filed submissions seeking a sentence of preventive detention for Mr Vincent, even though he is already serving a sentence of preventive detention in respect of similar offending. The Crown has also submitted that a greater (concurrent) minimum period of imprisonment, in the region of ten years imprisonment, should be imposed.
Background to the present offending
[2] In late December 2005, Mr Vincent was moved to Auckland Prison at Paremoremo, where he was located in D-Block. In the cell next to him was the victim, Mr Martin. Within days, there was conflict between the two of them, over the level of noise coming from Mr Vincent’s television in his cell at night. He asked a prison officer if he could be moved into segregation, threatening that he would stab someone if he was not moved. There were some mutual threats made by Mr Vincent and Mr Martin. In particular, Mr Vincent made threats to stab Mr Martin over a period of days and engaged in intimidating behaviour by repeatedly dropping a metal object on the floor of his cell. This was Mr Vincent’s way of letting Mr Martin know that he had a knife.
[3] On the morning of 31 December 2005, Mr Martin cleaned his cell. Shortly thereafter, he had a brief conversation with Mr Vincent. He offered to make peace with Mr Vincent or, alternatively, have a “one-out”, which is a fistfight one on one, used to settle disputes. Mr Vincent refused, partly on the grounds that Mr Martin was much bigger than he was. Mr Martin then picked up his gym shoes and sat on the heater pipe outside his cell to put them on. Mr Vincent approached him from the opposite end of the landing, partially concealed from view behind another inmate. With a sharpened butter knife in his hand, he surprised Mr Martin and stabbed him in the chest.
[4] The wound that Mr Martin received penetrated the pericardial sac surrounding his heart and caused lacerations to his heart. The three lacerations to the heart (two to the right atrium and one to the pulmonary vein) caused a cardiac tamponade, which is where the blood accumulates around the heart. In the words of one of Mr Martin’s cardiothoracic surgeons, this is “…a life threatening condition and a person would die if this were left untreated”. This wound was serious enough to nearly kill Mr Martin. He collapsed not long after Mr Vincent stabbed him and was rushed to hospital, where emergency surgery was performed on him. Only the skill of the cardiothoracic surgeons saved Mr Martin’s life.
[5] At his trial in July 2007, Mr Vincent ran the defences of self defence and lack of murderous intent. Both were rejected by the jury and Mr Vincent was found guilty of attempted murder.
Mr Vincent’s criminal history
[6] Mr Vincent has been incarcerated since 1994, following his conviction for the rape of an elderly woman. During his time in prison, Mr Vincent has committed numerous infractions such as fighting and having possession of sharpened objects. On 15 September 2005, he was an inmate housed at Waikeria Prison. There, he walked up to another inmate, George Nicholls, who was working on his own, and stabbed him in the arm, penetrating his bicep and puncturing his chest. Mr Vincent threatened to kill Mr Nicholls if he told prison staff what had happened. Mr Nicholls received treatment at Waikato Hospital for his wounds. After Mr Vincent’s release from segregation at Waikeria following this incident, he offended again. That was on 30 October 2005, when he attacked another inmate, Darcy Hamilton. This time, Mr Vincent approached his victim in the prison yard and asked Mr Hamilton to buy him some items. When Mr Hamilton refused, Mr Vincent threatened to stab him with a screwdriver. Mr Hamilton punched Mr Vincent, who retaliated by stabbing Mr Hamilton in the bicep and then in the neck.
[7] Mr Vincent was convicted of wounding with intent to injure in respect of both attacks. He pleaded guilty in respect of the first attack, but later sought unsuccessfully to withdraw his guilty plea on the basis that he had acted in self-
defence. At his trial in respect of the second incident, Mr Vincent ran a defence of self-defence. It was unsuccessful and he was convicted. He was sentenced to five years’ imprisonment with a minimum of three years in respect of the Hamilton stabbing and three and a half years’ imprisonment in respect of the Nicholls stabbing.
[8] The Court of Appeal upheld his conviction on the charge of wounding with intent to injure in respect of the Hamilton stabbing: see R v Vincent CA3/07 & CA481/06 13 June 2007. The sentence was quashed on appeal and the Court of Appeal imposed a sentence of preventive detention with a five-year minimum period of imprisonment.
[9] It is convenient to summarise Mr Vincent’s custodial history and the chronology of the stabbing incidents. These are as follows:
-26 October 1994: 13 years imprisonment for rape of a 77 year old woman, described by the sentencing Judge as “vicious and brutal”.
- 2003: eligible for automatic release under s 90 Criminal Justice Act
1985. However, this did not occur because on 12 August 2003 the Parole Board made an order pursuant to s 107 Parole Act 2002 that Mr Vincent not be released before his applicable release date which was 17 July 2007.
- 15 September 2005: George Nicholls stabbing occurred.
- 30 October 2005: Darcy Hamilton stabbing occurred.
- 31 December 2005: James Martin stabbing (subject offence).
-24 November 2006: sentenced by Cooper J to concurrent terms of five years’ imprisonment with a minimum period of three years’ imprisonment (Hamilton stabbing) and three and a half years’ imprisonment (Nicholls stabbing). This resulted in a final release date of 17 July 2012.
-13 June 2007: Court of Appeal quashed Cooper J’s sentences and imposed a sentence of preventive detention with a minimum period of five years’ imprisonment.
- 17 July 2007: jury verdict of guilty of attempted murder in relation to
James Martin stabbing.
Prerequisites for preventive detention sentencing
[10] Preventive detention is an indeterminate sentence of imprisonment, imposed on those offenders who pose a significant and ongoing risk to the community. Preventive detention is therefore an extremely serious punishment. The corollary to this is that a person upon whom the sentence is imposed should be told in detail why the sentence is imposed and should understand the full judicial reasoning process with regard to the factors that have been held to be relevant to the determination: see R v D [2003] 1 NZLR 41 at [60]. Glazebrook J, giving the judgment of the Court, there stated that:
The sentence of preventive detention … is undoubtedly one of the most serious punishments that can be imposed.
[11] Section 87 of the Sentencing Act 2002 (the Act) outlines the approach that the Court must take when considering a sentence of preventive detention. It provides:
87 Sentence of preventive detention
(1) The purpose of preventive detention is to protect the community from those who pose a significant and ongoing risk to the safety of its members.
(2) This section applies if–
(a) a person is convicted of a qualifying sexual or violent offence (as that term is defined in subsection (5)); and
(b) the person was 18 years of age or over at the time of committing the offence; and
(c) the court 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 (as specified in subpart 3 of Part 1 of the Parole
Act 2002) of any sentence, other than a sentence under this section, that the court is able to impose.
(3) The High Court may, on the application of the prosecutor or on its own motion, impose a sentence of preventive detention on the offender.
(4) When considering whether to impose a sentence of preventive detention, the court must take into account–
(a) any pattern of serious offending disclosed by the offender’s history; and
(b) the seriousness of the harm to the community caused by the offending; and
(c) information indicating a tendency to commit serious offences in future; and
(d) the absence of, or failure of, efforts by the offender to address the cause or causes of the offending; and
(e) the principle that a lengthy determinate sentence is preferable if this provides adequate protection for society.
(5) In this section and in sections 88 and 90, qualifying sexual or violent offence means–
(a) a sexual crime under Part 7 of the Crimes Act 1961 punishable by
7 or more years' imprisonment; and includes a crime under section
144A or section 144C of that Act; or
(b) an offence against any of sections 171, 173 to 176, 188, 189(1),
191, 198 to 199, 208 to 210, 234, 235, or 236 of the Crimes Act 1961
[12] Effectively, that section imposes eligibility requirements for preventive detention. It also outlines in s 87(4) the factors that the Court must take into account in considering whether to impose preventive detention. Section 88 of the Act also imposes some preliminary procedural requirements. It relevantly provides:
88 Offender must be notified that sentence of preventive detention will be considered, and reports must be obtained
(1) A sentence of preventive detention must not be imposed unless–
(a) the offender has been notified that a sentence of preventive detention will be considered, and has been given sufficient time to prepare submissions on the sentence; and
(b) the court has considered reports from at least 2 appropriate health assessors about the likelihood of the offender committing a further qualifying sexual or violent offence.
…
[13] Should the Court decide that preventive detention is the appropriate sentence, then a minimum term of imprisonment must also be imposed. Hence, s 89 of the Act provides:
89 Imposition of minimum period of imprisonment
(1) If a court sentences an offender to preventive detention, it must also order that the offender serve a minimum period of imprisonment, which in no case may be less than 5 years.
(2) The minimum period of imprisonment imposed under this section must be the longer of–
(a) the minimum period of imprisonment required to reflect the gravity of the offence; or
(b) the minimum period of imprisonment required for the purposes of the safety of the community in the light of the offender's age and the risk posed by the offender to that safety at the time of sentencing.
(3) For the purposes of Part 13 of the Crimes Act 1961, an order under subsection (1) is a sentence.
[14] Again, it may be noted that the focus of imposing a minimum term of imprisonment is partly on the risk posed by the offender to the safety of the community. This risk is assessed with reference to the reports of the health assessors tendered under s 88 of the Act concerning the likelihood of the offender committing a further qualifying violent offence.
Crown stance on sentence
[15] The Crown has submitted that, because the Court of Appeal had imposed a sentence of preventive detention (with the lowest available minimum period of imprisonment) on Mr Vincent as recently as 13 June 2007, “…a further sentence of preventive detention is the only sentence available in respect of the 2005 Martin stabbing (which amounted to attempted murder)”. Crown counsel further submitted that it is appropriate for the Court to impose a greater (concurrent) minimum period of imprisonment, in the region of 10 years’ imprisonment. The Crown accepts that the appropriate manner in which the Court should carry out the sentencing process is
still to go through the preventive detention provisions of the Act in order to work out whether, in fact, preventive detention is the appropriate sentence for Mr Vincent.
[16] In respect of the two requirements under s 88, the Crown submits that:
a) As Mr Vincent is already subject to a sentence of preventive detention, he is on notice that a sentence of preventive detention will be considered and has had sufficient time to prepare his submissions on sentence.
b)The health assessors’ reports prepared in advance of the sentencing before Cooper J on 24 November 2006 remain applicable and may be used for the purpose of the preventive detention sentencing determination in the current case. These reports incidentally were two reports of consultant psychiatrists dated 12 and 16 October 2006 respectively and a report prepared by a registered psychologist under s 88 of the Act dated 1 November 2006. Each report is at least ten months old.
Position of Mr Vincent and amicus curiae
[17] Mr Vincent represented himself at the trial. He has now indicated to the Court that he will be seeking the appointment of a lawyer through the Legal Services Agency to assist him during the sentencing process. Mr Vincent provided a brief written submission for the purposes of the hearing today.
[18] At the trial, Mr Leabourn assisted the Court as amicus. He advised Mr Vincent on matters of law and provided assistance with the cross-examination of witnesses and procedural issues. He has made helpful submissions that will be most valuable on sentence.
[19] Mr Leabourn has also submitted that new reports should be ordered under s 88, on the basis that the Court should take a principled approach to sentencing, given the seriousness of the potential sentence. He considered that the health
assessors reports referred to at [16](b) above were somewhat out of date and not such that they should be relied upon for the purposes of a possible sentence of preventive detention.
Discussion
Notification to offender
[20] The difficulty with the Crown’s approach is that, because a sentence of preventive detention carries with it mandatory considerations, the statutory requirements forming the basis for those considerations must be properly met. This necessarily entails full argument concerning all relevant aspects before the sentencing Judge. I consider that the notice provision in s 88(1)(a) is an important procedural safeguard and should be properly complied with by the Crown. In normal course, I consider that this would require the Crown to serve a formal notice on the offender and then be able to provide proof of service to the Court prior to sentencing.
[21] It is true that Mr Vincent has received a copy of the Crown submissions on sentencing. He will now be well aware of the stance the Crown is taking. But he has only had these submissions for a few days. I consider more notice is needed, allowing ample time for Mr Vincent to prepare submissions or seek legal advice and preferably instruct counsel. This is particularly so, given the risks he now faces.
[22] What is adequate notification and time for preparation of submissions will depend on all the circumstances of the particular case.
Health assessors’ reports
[23] The health assessors’ reports, referred to in s 88(1)(b) of the Act, are likely to play an important role in the sentencing process when preventive detention is being considered. While such reports are not a substitute for the sentencing Judge’s discretion, they are a vital means of providing evidence that contributes to the overall picture, perhaps assisting to provide an answer to the difficult question of whether or
not an offender is likely to commit another qualifying violent offence on their release. As a result, it is only fair and just that the reports to be relied upon be as up to date and comprehensive as is possible, in order to give the Court a full picture when considering the imposition of this most serious sentence.
[24] The reports could also help inform and determine the scope of any minimum term of imprisonment to be imposed under s 89, should preventive detention be considered appropriate. That section specifically requires that the Court look at the risk to the community posed by the offender at the time of sentencing.
[25] As a result, while three reports currently available were compiled in October and November 2006, I consider it is important that two new reports be compiled prior to the sentence of Mr Vincent. While the previous reports may be useful to the health assessors compiling the new reports – as was outlined in R v C [2003]
1 NZLR 30 (CA) at [15], I consider it is important for the purposes of sentencing Mr Vincent on an attempted murder charge to have reports that are as detailed as possible and of reasonable contemporaneity.
Disposal
[26] Accordingly, I direct that the Crown serve Mr Vincent with formal notice pursuant to s 88(1)(a) of the Act that the Crown will be seeking a further sentence of preventive detention with a minimum period of imprisonment under s 89 of the Act of around ten years. I further direct, pursuant to s 88(2) of the Act, that two reports from health assessors be completed. No doubt the health assessors will bear in mind the requirements of s 88(1)(b) when preparing their reports.
[27] In the meantime, I adjourn the sentencing hearing until 9am on 7 November
2007.
Stevens J
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