R v Warren

[2017] NZHC 1913

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CRI-2016-087-335 [2017] NZHC 1913

THE QUEEN

v

RHYS RICHARD NGAHIWI WARREN

Counsel:

A J Pollett and N T C Batts for Crown

Prisoner in person
R M Mansfield (Amicus Curiae)

Charges:

Attempted murder (2)
Using a firearm against a law enforcement officer
Wounding with intent to cause grievous bodily harm

Plea:

Not Guilty

Sentenced:

11 August 2017

SENTENCING NOTES OF BREWER J

Solicitors:

Hollister-Jones Lellman (Tauranga) for Crown

R v WARREN [2017] NZHC 1913

Introduction

[1]      Mr Warren, the jury found you guilty of the following charges: (a)     Attempting to murder Sergeant White;

(b)      Using a firearm against Constable Mauheni;

(c)       Wounding Constable Flinn with intent to cause him grievous bodily harm;

(d)      Attempting to murder Sergeant Marsh.

[2]      The maximum penalty for each of these charges is 14 years’ imprisonment.

Background

[3]      The charges arose from what happened at Onepu Springs Road on 9 March

2016.  In summary, the Armed Offenders Squad (AOS) came to the house you were occupying because police officers involved in a cannabis recovery operation had reported shots being fired in the vicinity.  The Police suspected that whoever fired the shots was in the house.  They surrounded the house and used a loud hailer system to appeal to any occupants to come out.  You chose to remain concealed in the house and you neither responded to the Police appeals nor gave any sign that you were there.  The Police got the landline number for the house and rang it repeatedly.  You did not answer the telephone.

[4]      The Police threw stones onto the roof of the house to try to get any occupant to engage with them. You remained concealed and did not react.

[5]      The Police made a reconnaissance of the exterior of the house.  Members of the AOS went up to the house very carefully and then worked around the outside of it.   They broke several windows to see inside and they made voice appeals.  You stayed hidden and silent.

[6]      The Police again made appeals through a loud hailer system.  You did not respond.

[7]      Finally, after some hours, the Police decided to go into the house and search it.   They decided to do this very carefully as they suspected that there might be someone inside and that he might be armed.

[8]      First the Police made sure that there was no-one in the kitchen/lounge area. Then they started to work their way down the hall where the bedrooms and bathroom are.  The hall is short, only six metres in length.  It is narrow, only about a metre wide.

[9]      Sergeant  White  led  the  way  down  the  passage.    He  was  wearing  the protective gear of an AOS officer and he was carrying his rifle up to his shoulder and looking forward over the optical sight. At the end of the hall, to the right, there is an alcove leading to the bathroom.   That is where you were hiding.   You knew that police officers had entered the house and that they were searching the rooms.  You could hear them.   You knew there were police officers coming down the passage towards you.   You did nothing to alert them to your presence.   You had armed yourself with an ex-Army .303 bolt action rifle.  You had chambered a round and you waited silently for the Police to reach you.

[10]     Sergeant  White  came  to  where  the  alcove  adjoins  the  hallway.     He demonstrated in evidence that he leaned forward and tilted round to his right so as to see into the alcove.  You had your weapon raised and as soon as you saw Sergeant White you fired it at his head.  He was so close to you that you could have reached out and touched him.  When you fired, you intended to kill the officer.  You did not succeed because, fortuitously, the bullet struck the sight mounting on Sergeant White’s rifle.  The bullet and part of the sight mounting fragmented and a number of the fragments wounded the officer in the face.  He was dazed.

[11]     At the same time, fragments from the bullet and/or the sight mounting struck Constable Mauheni in the head.  Constable Mauheni was following closely behind Sergeant White.  You did not intend to shoot Constable Mauheni when you fired at

Sergeant White, but you knew that there were police officers other than Sergeant White in the house and in firing your weapon you were using it against all of the police officers present.

[12]     Constable Mauheni dropped to the floor immediately, badly wounded.   He was unconscious, or only partly conscious.  In the same instant, Sergeant White went down to the floor, instinctively using his body to shield Constable Mauheni.

[13]     Other police officers present in the bedrooms closest to the kitchen area, and Constable Flinn who was back down the hall, began firing their rifles towards you. They were firing through the walls and their intention was to protect themselves and their fellow officers by preventing you from firing further shots.

Mr Warren: Sir, is this your summary? Bench: Yes, it is.

[14]     But you did fire two more shots down the hallway.  These were deliberate shots into an area where you knew police officers were present.  Your rifle was bolt action.  So, after the first shot you had to work the bolt to eject the cartridge case, load another round and close the bolt.  You then fired a second time, repeated the process and fired a third time.

[15]     One  of  these  shots  struck  a  doorframe  alongside  Constable  Flinn.    It fragmented and a number of fragments struck him in the leg.  In firing these shots you, at the least, intended to cause any officer in the hall grievous bodily harm. Constable Flinn’s wounds were certainly grievous bodily harm.

[16]     All of this happened in a very short space of time and lots of things were happening simultaneously.   The Police managed to evacuate the wounded officers and you were again alone in the house.  You then found that a Police Glock pistol had been left behind (it had been dropped by Constable Mauheni when he collapsed from his wounds).

[17]     The Police outside the house detailed officers to keep it under watch.  One of the officers told to do this was Sergeant Marsh.  The sergeant was armed with a rifle and he took up a prone position about 35 metres from the front door, sighting in that direction.  You saw him through a window.  Given his position, you could see only his head and shoulders.   A bit over an hour after you had first shot at the Police inside the house, you took the Glock pistol and fired at Sergeant Marsh.  I am sure that you fired two shots.  The Glock’s magazine had 17 rounds in it when Constable Mauheni dropped the pistol.   There were 15 rounds in it when it was found later inside the house. Witnesses who heard you shoot reported one or more sounds.

[18]     The jury found that in shooting at Sergeant Marsh you intended to kill him. You nearly succeeded.  One shot hit him in the left ring finger as he held the rifle. The bullet passed through his palm and instead of striking him in the neck or chest was stopped by the forward edge of the rifle magazine.   That is where the bullet lodged.

[19]     The Police maintained their watch over your house and kept trying to get you to engage with them.   They knew you were in text message communication with friends and whanau and worked through them.   Eventually, the next day, a police officer who you and your whanau trusted went into the house and brought you out. You were unharmed.

[20]     Mr Warren, there are two decisions I have to make today.   The first is the appropriate finite sentence for the charges on which you have been convicted.  The second is whether, instead of that sentence, you should be sentenced to preventive detention.

Finite sentence

[21]   Each of the charges proved against you carries a maximum term of imprisonment of 14 years.   I will treat the attempted murder charge concerning Sergeant White, the charge of using a firearm against Constable Mauheni and the charge of wounding with intent to cause grievous bodily harm relating to Constable Flinn as one group of charges and the attempted murder charge concerning Sergeant Marsh as a distinct charge.

Mr Warren: Sir, I rebut the assumption that I am Mr Warren. I am not Mr Warren.

[22]     There is no formula I can follow to reach a correct sentence.  So, what I am going to do is follow an assessment procedure which the Court of Appeal has said is an appropriate way to approach sentencing for crimes which result in really serious bodily harm. The case is called R v Taueki.1

[23]     Taueki establishes three broad sentencing bands.  There is no doubt that your offending in the first group of charges places you in band 3, which has a sentencing range of nine to 14 years’ imprisonment.  The aggravating factors which I find to be applicable are:

(a)      Premeditation

[24]     There was a significant degree of premeditation to your offending.  Although I do not think that you intended by your silence to lure the Police into the house so you could ambush them, I am sure from the evidence that you knew the Police were present and you deliberately remained silent.  You armed yourself and waited to see what would happen.  You were aware that the Police had entered the house, were searching the rooms at the other end of the passage and were making their way down towards you.  At some point you decided that you were going to shoot at the Police in the house.  This was not because you were acting in self-defence, a justification rejected by the jury, but because of your anger at the way the Police were behaving, which you considered to be in breach of your rights.  It is theoretically possible that the jury rejected your self-defence evidence because it found that although you acted in  self-defence,  you  used  excessive  force.    But  I  am  sure  that  was  not  what happened.   Your silence, the text messages you sent after the shooting, and the attempt to kill Sergeant Marsh, along with your anger at the Police, convince me of

that.

1      R v Taueki [2005] 3 NZLR 372 (CA).

(b)      The serious injuries you inflicted

[25]     Sergeant  White,  Constable  Mauheni  and  Constable  Flinn  all  suffered significant injuries.  Constable Mauheni’s injury involved the penetration of his skull by part of the sighting mechanism from Sergeant White’s rifle.

[26]     You  have  just  heard  three  of  the  victim  impact  statements  read  to  you. Sergeant White did not read his.  It tells me that he has shrapnel injuries to his face and right hand.

Mr Warren, Sir, I’d just like to say something. I’m sorry any of this happened. I’ve got no hatred towards the Police.

Bench: Thank you for that, Mr Warren.

[27]     Sergeant White’s hand injury became infected and he had to spend four days in hospital and undergo two lots of surgery.  He had to return to hospital weeks later for a further operation to remove shrapnel embedded in his finger, and he still has shrapnel in his finger today.   Some of the effects he suffers will be permanent, including scarring to his face.

[28]     As you heard, Constable Mauheni had to undergo brain surgery.  He had a depressed skull fracture and shrapnel had to be removed, and also removed from his face, neck and chest.   He was in hospital for nine days.   He has had to receive intensive help from speech therapists, psychiatrists and other brain injury specialists. His rehabilitation has been lengthy, difficult and he suffered a large drop in pay while on light duties for a period which continued for over a year.

[29]     Constable Flinn, again as you heard, suffered multiple wounds to his left knee.  Surgery has removed some of the bullet fragments but many are still inside the knee.  It took about four months of rehabilitation before Constable Flinn was able to return to full duties.

[30]     All of the officers continue to suffer the psychological trauma to be expected from surviving wounds in the context of a near death experience.

(c)      Use of a weapon

[31]     The ex-Army .303 rifle you used is a lethal weapon.   As an experienced hunter/gatherer,  you  knew that.   You  used it  three times,  deliberately,  and  in  a confined space, where your chances of killing an officer or officers were very high. You used it with the specific intention of killing Sergeant White.

(d)      Attacking the head

[32]     Your first shot was aimed at Sergeant White’s head.  You were very close.

Sergeant White’s survival can properly be called miraculous.

(e)      Public officials

[33]     You deliberately attacked police officers.  In respect of the charge of using a firearm concerning Constable Mauheni, that factor is inherent.  The same is not true of the attempted murder of Sergeant White and wounding Constable Flinn with intent to cause him grievous bodily harm.

Discussion

[34]     I  do  not  find  any  mitigating  factors  in  your  offending.    Mr Mansfield suggested to me that  I might take into account that  you acted in response, not seeking out violence, and I paraphrase, to provocative and unnecessary actions by the Police.  You indicated at trial that you think the Police should not have entered the house but should have taken a more patient approach and negotiated with you through whanau.  I do not see that as a mitigating factor.  Of course, the Police could have acted differently.  But nothing they did excuses or mitigates your conduct.  You have strong views, repeated today, that you feel entitled to act as you did.  You chose to use lethal force in anger and aggressively.  You did not have to.  All you ever had to do was pick up the telephone, or make yourself known, and none of this would have happened.

[35]     I have been referred by the Crown in their initial written submissions to a number of cases involving attacks on police officers.  I will list them in my written

record of this sentencing but I will not go through them with you.2    As is to be expected, none is very close to your case but they do show me the range of previous sentences.

[36]     The Crown submits that for the first group of offending I should adopt a starting point of 14 years’ imprisonment.  Mr Mansfield, who I asked to provide me with an alternative view, suggests a starting point of 12 to 13 years’ imprisonment.

[37]     Your offending in this group of charges involved the use of  lethal force against three police officers acting in the course of their duty.  You intended to kill Sergeant White and it is only by the Grace of God that you did not succeed.  The Courts recognise that attacks on police officers should increase otherwise appropriate sentences.3  That is the only way the Courts can denounce and deter such attacks.

[38]     Having regard to the overall combination of aggravating factors, I will fix a starting point of 14 years’ imprisonment.   This will be the sentence on the lead charge of the attempted murder of Sergeant White.   There will be concurrent sentences on the other charges in this group: 10 years on the charge of using a firearm against Constable Mauheni and nine years on the charge of wounding Constable Flinn with intent to cause him grievous bodily harm.

Mr Warren: Let the record show that one does not accept this Court’s jurisdiction. Sir, no disrespect, but I challenge your jurisdiction because I am a beneficiary of Maori incorporation, Rangatira Maori.

Bench: Yes, I understand that, Mr Warren. You have made that point repeatedly.

2      R v Allen CA7/88, 23 June 1988; R v Murray (1997) 14 CRNZ 524 (CA); R v Samuels [2009] NZCA  153;  R  v  McDonald  HC  Auckland  CRI-2009-004-16897,  22  September  2009; R v Simiona HC Wanganui CRI-2010-083-378, 7 April 2011; R v Smith HC Christchurch CRI-

2010-009-010435, 4 November 2011; Rajgopaul v R [2011] NZCA 593; R v Toleafoa [2012] NZHC 3059.

3      Cooper-Siggleko v R [2012] NZCA 580, at [12].

Sergeant Marsh

[39]     The attempted murder of Sergeant Marsh must be dealt with separately.   It occurred more than an hour after the Police had left the house and established a surveillance cordon. The same aggravating factors apply:

(a)      Premeditation

[40]     You found the Glock pistol dropped by Constable Mauheni.  You had plenty of time to think about using it.  You decided to shoot at Sergeant Marsh and there was  nothing  happening  which  might  have  hurried  that  decision.   You  saw  that Sergeant Marsh was there, about 35 metres away, and you made the decision to shoot at him. This was a significant degree of premeditation.

Mr Warren: Sir, I object. I don’t accept this Court’s jurisdiction.

Bench: Mr Warren, your choices at this time, if you want to hear the rest of the sentence, is to listen to what I have to say or you can go downstairs now. Which do you choose?

Mr Warren: Well, to my knowledge you have no jurisdiction. Bench: Yes, that is your knowledge. Which choice do you make?

Mr Warren: Let the record show I will appeal this to a higher court. I withdraw from this hearing accordingly.

[Mr Warren leaves the courtroom]

Bench: The law requires me to pronounce sentence in open Court and so I shall continue with the sentencing in the absence of Mr Warren who has chosen to take no further part.

(b)      The serious injuries inflicted

[41]     One of Mr Warren’s bullets struck the end of Sergeant Marsh’s left ring finger, tearing the finger apart and breaking the bone in the end of the finger.  The bullet then passed through the finger and the palm of the hand before lodging in his rifle’s magazine.  Sergeant Marsh had to undergo extensive reconstructive surgery. He has lost most of the feeling in the end third of the finger and some movement. His grip is affected.  The finger is disfigured and he suffers recurring bouts of pain because of nerve damage.  He says in his victim impact statement that this will never improve.

(c)      Use of a weapon

[42]     The 9 mm Glock pistol is a lethal weapon.  Mr Warren knew that.  He was unfamiliar with it and the evidence I heard is to the effect that at 35 metres, actually hitting Sergeant Marsh was problematic for a novice shooter.   But the jury found Mr Warren shot at Sergeant Marsh intending to kill him.

(d)      Attacking the head

[43]     All Mr Warren could see of Sergeant Marsh were his head and shoulders. They were his targets.

(e)      Public official

[44]     Sergeant  Marsh  was  a  police  officer  acting  in  the  course  of  his  duty. Mr Warren knew that, of course.

[45]     I see no mitigating features in this offending.  Mr Mansfield suggested, again I paraphrase, that I should regard Mr Warren’s use of the pistol as a bit of experimenting and that it was only happenstance that Sergeant Marsh was actually struck.   But, the jury found that Mr Warren fired with the intention of killing, notwithstanding his evidence that he never fired the pistol at all.

[46]     As a standalone offence, it is also in band 3 of Taueki.  With this combination of aggravating features, I place it towards the highest end of the band.  I would adopt a starting point of 12 years’ imprisonment.

Totality

[47]     I cannot simply add the two starting points together.  14 years plus 12 years would make a total of 26 years.  The law does not support such a lengthy starting point.  What I have to do is stand back and assess what the appropriate starting point is having regard to the totality of Mr Warren’s offending.

[48]     The Crown, in its written submissions, and Ms Pollett today, submits that I

should uplift the 14 years starting point by four years to make a total starting point of

18 years’ imprisonment.  Mr Mansfield does not disagree with that.  My view is that we are getting to a level where caution is necessary to avoid too lengthy an outcome. I accept that an uplift of four years’ imprisonment for the offending against Sergeant Marsh is a proper uplift on the basis that it is added to the 14 years starting point for the first group of offences.  So, it would be served consecutively.  The total starting point is now 18 years’ imprisonment.

[49]     The Crown submits, and Mr Mansfield agrees, that an uplift is necessary to have  regard  to  Mr  Warren’s  relevant  previous  convictions.    I  agree.    I  accept Mr Mansfield’s submission and the uplift would be one year since I still must have regard to the totality principle.   I will discuss these previous convictions in detail when I consider whether preventive detention is appropriate.

[50]     I do not find any personal mitigating factors which would reduce the starting point. So, if a finite sentence is to be imposed, it would be 19 years’ imprisonment.

Minimum period of imprisonment

[51]     Finally,  in  this  section  of  the  sentencing  I  need  to  consider  whether  a minimum period of imprisonment should be imposed.

[52]     Normally, for serious offending the Parole Board can consider whether to release a prisoner on parole after he has served one-third of his sentence.  However, a Court can order a longer minimum period of imprisonment for any of the following purposes:

(a)       To  hold  Mr Warren  accountable  for  the  harm  done  to  the  police officers and the community by his offending;

(b)      To denounce his conduct;

(c)       To deter him or other persons from committing the same or similar offences;

(d)      To protect the community from him.

[53]     In my view, all of those purposes apply to Mr Warren’s situation.  I will not repeat the features of his offending which cause me to reach this conclusion.  The Crown submits that a minimum non parole period of at least 50 per cent is appropriate.    Mr Mansfield  agrees  that  a  minimum  period  of  imprisonment  not exceeding 50 per cent is appropriate.

[54]     In my view, a 50 per cent minimum period of imprisonment would have been appropriate were it not for the reports of Dr Kumar and Dr Halliday which I have received recently.  I will discuss these in detail when I come to the examination of the sentencing option of preventive detention.  At this point, I simply say that the assessments of Mr Warren’s risk of committing violent offences in the future are very worrying.  If I were to impose a minimum period of imprisonment on a 19 years finite sentence, it would be the maximum available to me which is 10 years.

[55]     What all that means is that if I were to sentence Mr Warren to a finite sentence of imprisonment, it would be 19 years with a minimum period of imprisonment of 10 years.   But I have to put that to one side now and go on to consider the issue of preventive detention.

Preventive Detention

[56]     Attempted murder, wounding with intent to cause grievous bodily harm and using a firearm against a law enforcement officer are all qualifying offences for a sentence of preventive detention.

[57]     In  its  initial  written  submissions  on  sentence,  the  Crown  did  not  raise preventive detention as a sentencing option because it said that preventive detention is regarded as a sentence of last resort.  That is not right.  A sentence of preventive detention is not a sentence of last resort, it is a sentence designed to protect the community from offenders who pose a significant and ongoing risk to the safety of its members.  It is not in itself a punishment.  If I conclude that Mr Warren is likely to commit another qualifying offence if released on parole after a finite term of imprisonment, then I may sentence him to preventive detention.  The Crown, having seen the health assessors’ reports, now recognises the availability of a sentence of preventive detention and has filed a supplementary memorandum addressing that availability.

[58]     The Sentencing Act 2002 sets out a number of factors I have to take into account.  The first is whether there is any pattern of serious offending disclosed by Mr Warren’s history.  He has two relevant convictions.

[59]     The first is on a charge of wounding with intent to cause grievous bodily harm which he committed on 7 September 2009.  He pleaded guilty to that offence one week out from his trial.  His victim was Mr McLeod.  He was a dog ranger who went  to  Mr Warren’s  address  to  seize unregistered  dogs.    Mr Warren  assaulted Mr McLeod by punching and kicking him and he struck him at least one blow with a piece of 4x2 timber.   He then turned a hose on Mr McLeod.   Judge Bidois, in

sentencing him, said:4

[21]     The aggravating features that I see, Mr Warren, are these. Firstly, there is the use of a weapon. You stand there as a reasonably powerful young man. You assaulted Mr McLeod, who is an elderly gentleman. In the first place there was no need to assault him and, secondly, no need to use a weapon of any kind. By doing so you increased the risk of more serious

harm being done. You clearly elevated the charge that was then available to the Crown.

[60]     The Judge accepted that the attack was spontaneous, although Mr Warren had time to withdraw.  Mr McLeod was knocked to the ground and then assaulted.  He had a significant facial injury and was bruised and battered. The Judge said:

[24]     There is some dispute as to whether he is a public official. He is clearly in a position that can be distinguished from a policeman, ambulance driver or that type of person. As an animal control officer he has the power to go onto private property and carry out duties that a normal citizen cannot. He was merely going about his lawful duty when he was attacked.

[61]     The Judge gave Mr Warren a significant discount for his plea of guilty and for the remorse which he then showed.  Judge Bidois described what happened:

[33]     As you said, you wished you could turn back the clock but you cannot. You lost your self-control over a period of a minute or two and you assaulted Mr McLeod by punching him, kicking him and then striking him at least once with the piece of 4x2.

[34]     One only needs to look at the photographs to see the extent of the violence. Many of the blows were struck to the face and there was extensive bruising, black eyes, closed eye, cuts and a wounding. His ear was swollen and cut. Fortunately they were not life threatening injuries.

[62]     As to sentence, the Judge adopted a starting point of six-and-a-half years and then, surprisingly, gave Mr Warren a full 25 per cent discount for the plea of guilty, with a further 10 per cent for his apology, remorse and offer of amends.  Mr Warren’s final sentence was four years and three months’ imprisonment.

[63]     Mr Warren’s other relevant conviction was for assaulting a police officer. That took place on 10 January 2010 while he were on bail awaiting trial for attacking Mr McLeod.  He was sentenced on 13 January 2010 by Judge Rollo.5   He was then

21 years old.   Again, he pleaded guilty.   The Judge described what happened as follows:

[4]       Relevant to the issue before me today is that on 10 January 2010, the two officers went to your address to monitor your compliance with your bail conditions. You eventually came to a window, you did not open it and did not maintain eye contact with the senior Constable who was the victim of the aggravated  assault.  The  constables  were  of  the  opinion  that  you  were

breaching the non alcohol condition. They knocked on the door, which you eventually answered. A passive breath test was undertaken which showed you had been consuming alcohol. You then perceived you would be arrested for breaching your bail and you have attacked the senior Constable in quite a savage way, punching him about the head and biting him in the shoulder. Photographs which are before me show the extent of that injury, which you now regret, to your credit.

[64]     The explanation Mr Warren gave to the Police was that he did not want to be arrested for breaching his bail.   The Judge accepted that Mr Warren had genuine remorse  and  set  a  starting  point  of  12  months’ imprisonment,  which  took  into account that there were also two charges of resisting the police officers.  From this, the Judge deducted four months to take into account the mitigating factors, and so the end sentence was eight months’ imprisonment with six months’ special release conditions.

[65]     There are two disturbing features of this offending when considered with the current offending.  The first is that all involve attacks on public officials going about their duty.   The second is the rapid escalation in the seriousness of Mr Warren’s offending.

[66]     For the first two offences, Mr Warren accepted responsibility and expressed remorse.  Now, with much worse offending, he expresses entitlement and feels that it is he who deserves compensation.

[67]     The next factor is the seriousness of the harm to the community caused by Mr Warren’s offending.  Here, his attacks were on police officers acting in the course of their duty.  They were representatives of the community, and acting as such.  The Police perform duties which are vital to the preservation of the safety of the community.  In doing so, they not infrequently put themselves at risk – as this case demonstrates.  Mr Warren’s attacks on the police officers, resulting in serious injuries to all four of them, certainly caused serious harm to the community.

[68]     The third factor is information indicating a tendency on Mr Warren’s part to commit serious offences in the future.  Here, I have had the benefit of the two health assessors’ reports.   They are not as complete as I would like them to be because,

although Mr Warren met each of them, he refused to undergo a psychological or psychiatric assessment.

[69]     To Dr Halliday he explained that he does not believe the New Zealand Crown has a mandate to govern Maori and that Maori have not ceded sovereignty.   He explained his belief that the New Zealand Crown does not have a constitution, has no legal right to govern Mr Warren and that he is being illegally detained.  Mr Warren said he believes the Police and Justice Department are a private company registered in the United States and that they are conspiring against him.

[70]     Dr Halliday was left with the impression that Mr Warren’s presentation and discussion indicates some paranoid thinking and conspiracy ideation.  Having seen Mr Warren give evidence, and having listened to him today, I agree.

[71]     Dr Halliday notes that the current offending occurred within two years of Mr Warren’s release from prison in 2014 for his previous offending.   Dr Halliday said that reports from prison staff across four sites are consistent.  Mr Warren is said to be aggressive, non-compliant, abusive, paranoid and self-entitled.  He has incurred at least 16 misconducts since he was remanded in custody on the current charges in March  2016.    These  have  been  for  varying  behaviours  including  fighting  with another inmate, smoking cigarettes, challenging staff to fight, misuse of the intercom system, disobeying lawful orders, threatening behaviour towards staff, sparring, having unauthorised medication and breaking observation windows.  Of concern is the high number of incidents recording Mr Warren as threatening, abusive, swearing and being aggressive towards custodial staff.

[72]     Dr Halliday notes that Mr Warren attended a three month Medium Intensity Rehabilitation Programme (MIRP) in 2011.  Although the programme facilitator’s report suggests he gained some insight into his offending behaviour and evidenced some behavioural change, this does not seem to have lasted.  Dr Halliday does not consider  this  programme  to  be  of  sufficient  intensity  nor  suitable  to  manage Mr Warren’s risk of further violent offending.  He would need a prolonged period of individual  therapy  working  on  interpersonal  skills,  communication  and  emotion

management prior to being ready to address other offending needs, and even then

Dr Halliday does not consider Mr Warren’s prognosis to be good.  He said:

30… Individuals with profiles similar to Mr Warren do not do well in therapy. Mistrust and suspiciousness will be high and hostile attributional bias and conspiracy theories will be evident. Should Mr Warren  feel  significantly  threatened  or  disempowered  during therapy the likelihood of aggressiveness is high…

[73]     Dr Halliday accepts that his formulation of Mr Warren is tentative as it relies on file information only.  However, this is what he says:

34Mr   Warren   has   previously   described   a   relatively   uneventful childhood. It appears that in his early adolescence he gravitated towards an antisocial peer group resulting in his exit from school and the beginning of antisocial behaviour. In his late adolescence he engaged in crime and substance use, both likely used to manage emotions and boredom.

35It appears that at some stage Mr Warren learned to have an anti- establishment or activist view towards the New Zealand government. More   importantly   he   has   developed   beliefs   challenging   the legitimacy and sovereignty of the New Zealand governing bodies and disregards their authority. His political beliefs appear to have strengthened over time to include those who work for the public sector; those who might challenge what he views as his indigenous rights or those who attempt to control his behaviour. Mr Warren believes he is justified in using a high level of force and violence to redress the balance of control and maintain his rights. In addition, his tendency to be non-trusting and have a hostile attributional view exasperates  the  situation  to  where  ambiguous  stimulus  may  be viewed as threatening.

36Mr Warren appears to hold the core belief of “I will do what I want” and becomes aggressive when his autonomy is challenged. His belief system legitimises the use of violence through his anti-European, anti-system  stance.  However,  his  behaviour  does  not  appear  to adhere  to  values  ascribed  through  Te  Ao  Maori;  it  is  possible Mr Warren believes he is a sovereign entity.

37With regard to the index offence Mr Warren perceived himself as a target of injustice by the Police who he believes are agents of an illegitimate governing system and conspiring against him. His political beliefs coupled with his beliefs about violence, autonomy and general anti-sociality allowed him to react with extreme violence in order to protect his property and perceived rights.

[74]     In his summary of risk and risk management, Dr Halliday says:

43In summary, based on static and dynamic risk factors as well as structured professional judgement, Mr Warren is considered to be at

moderate risk of general offending, and at least a high risk and more likely a very high risk of further violent offending. His high score on the PCL: SV, an instrument validated for a New Zealand criminal population who are similar in terms of index offending, sentence length, ethnicity, and age, provides further evidence both of his high risk of violent recidivism and that this is likely to occur within a short period after release. It is noted that his most recent violent offences occurred within two years of his release from prison and his prior violent offending occurred within four months of each other.

44The  most  plausible  scenario  for  further  serious  offending  by Mr Warren relates to reactive violence. Mr Warren has demonstrated a disregard for authority and societal norms and a willingness to commit  serious  violence  against  those  he  perceives  as  a  threat. Mr Warren  has  demonstrated  willingness  to  use  weapons  in  the commission of violence and a willingness to commit serious harm to victims. Mr Warren’s belief system will allow him to justify the use of excessive force in the commission of violent acts.

45Mr Warren is most likely to react with fierce aggressiveness should he perceive himself as being targeted or believe that his rights are being impinged. This highlights a serious concern in the community as  violence  is  likely  to  result  in  significant  harm  or  fatality  to victims.

46Given the high number of aggressive incidents he has been involved in during imprisonment, he is assessed as being a very high risk of engaging   in   violent   behaviour   against   both   Department   of Corrections staff (male or female) and fellow inmates during the remainder of his sentence.

[75]     Dr Kumar gave a brief report following his meeting with  Mr Warren  on

29 May 2017.  Mr Warren was polite to him.  Again, he declined to participate in a mental health assessment and Mr Warren discussed his political ideology at great length.  Dr Kumar noted that Mr Warren did engage in a psychiatric assessment with Dr Skipworth on 4 May 2016 and that Dr Skipworth did not find any evidence of mental illness.  Neither did a previous psychological assessment.  Dr Kumar did not form the impression that Mr Warren’s refusal to participate in his assessment was driven by any underlying mental illness.

[76]     In an addendum to his report dated 8 August 2017, Dr Kumar reviewed the background materials but stressed that he was handicapped in his assessment of Mr Warren’s risk of future offending because Mr Warren did not participate in a clinical  assessment  by  him.     However,  based  on  the  information  available, Mr Warren’s history and attitudes are associated with an increased risk of violent

reoffending.  Nevertheless, because Mr Warren has not yet received any structured rehabilitation programme targeted at a decreasing risk of future violence, Dr Kumar found it would be difficult to speculate whether Mr Warren’s risk factors may be modified.  Dr Kumar said:

From a risk management perspective, it is difficult to postulate any plans or interventions that could be put in place in order to reduce his future risk of reoffending because he did not engage in the attempted assessment. His overall negative attitude to people he sees in positions of authority or indeed against the entire legal framework, suggests he will continue to present with negative  attitudes  towards  any  community  based  supervision  or rehabilitation efforts.

[77]     Finally, Dr Kumar concludes that based on the information available to him:

… it is my considered opinion that Mr Warren’s risk of future reoffending would remain significant unless he could engage in a structured violence prevention programme and was able to modify some of the clinical risk factors associated with future violence.

[78]     When I consider Mr Warren’s history to this point, his very firm views of his rights,  his  absolute  rejection  of the laws  and  processes  under  which  his  fellow New Zealanders live, and the observations of the health professionals, I conclude that there is a very high likelihood that Mr Warren will commit serious offences in the future.   That likelihood would only be reduced if he changed his beliefs and accepted that he is subject to the laws and processes of New Zealand.

[79]     The next factor I have to consider is the absence of or failure of efforts by Mr Warren to address the causes of his offending.  As I have said, he was ordered by Judge Rollo to undergo six months’ special release conditions when he was released and he has undergone the MIRP while in prison.  The current offending shows that these have not been of assistance.   The problem is there will be no further programmes to enable him to address the causes of his offending unless and until he is willing to change his views.

[80]     The  next  principle  is  that  a  lengthy  finite  sentence  is  preferable  if  this provides  adequate  protection  for  society.    If  I  sentence  Mr  Warren  to  a  finite sentence, he might be subjected to an extended supervision order if the Chief Executive of the Department of Corrections applies for one before his release.  This

would allow the Parole Board to impose special conditions on him when he is released from prison.

[81]     In considering whether to sentence  Mr Warren to preventive detention, I should take into account whether an extended supervision order might be granted following a finite sentence.   If a finite sentence combined with an extended supervision order would adequately protect the public from his violent offending then I should give Mr Warren a finite sentence instead of preventive detention. However,  because  a  sentence  of  preventive  detention  provides  the  ongoing protection of life parole and the ability to recall, a finite sentence to be followed by the available backstop of an extended supervision order should not be viewed as an agreeable alternative to preventive detention.

[82]     Having considered all these factors, I have formed the view that Mr Warren poses a significant and ongoing risk to the safety of the community and that in order to protect the community from him I should impose a sentence of preventive detention. This is why:

(a)      This is the third time he has attacked public officials, members of the Police on two occasions, in a relatively short period of time.   The current offending is at the highest level of seriousness and, from a community safety point of view, very worrying.

(b)Mr Warren is 28 years of age.  He has very firm views on his right not to be controlled by the law of New Zealand nor the officers who enforce them.   He feels he is entitled to use lethal violence if his rights, as he sees them, are breached.   If I impose a finite sentence, there is a real risk that he will be released from prison without having changed his behaviour at all.  That would pose an unacceptable risk to the general public.

(c)       I find there is a real risk Mr Warren would not change his behaviour.

That is backed up by the reports of the health assessors.  Although there is no evidence of an underlying mental health condition, he does

have indications of paranoia and conspiracy ideation.  There is not the slightest hint at present that he would be prepared to engage with intensive rehabilitative programmes.    He would have to first acknowledge  that  he  has  a  problem  and  be  willing  to  attempt  to change.  Mr Mansfield suggests that I should sentence Mr Warren to a lengthy finite sentence because, while serving it, he might change. But I see no sign that he would, and I am not prepared to take the risk.

[83]     For these reasons, I do not think that the option of a finite sentence with the possibility of an extended supervision order would be suitable in Mr Warren’s case. That would only be effective if he did decide to change while serving his sentence. If he did not, an extended supervision order would not be effective since he does not consider himself subject to the laws and processes of New Zealand.  His tendency to resort to violence when challenged would remain.

[84]     In his case, I think a sentence of preventive detention would be the best incentive for him to engage successfully in treatment.  He could “tough out” a finite sentence and emerge even more entrenched in his views than he is already.  But a sentence of preventive detention means that he will only be released once the Parole Board decides that he has changed sufficiently to make it safe to release him. Knowing that, and over time, Mr Warren could come to consider the possibility of reform.

[85]     I am also required to impose a minimum period of imprisonment when I sentence Mr Warren to preventive detention.  I determined the minimum period of imprisonment under a finite sentence in his situation to be 10 years’ imprisonment.  I believe that 10 years’ imprisonment is the appropriate minimum period required for the purpose of safety of the community in the light of his age and the risk posed by him at the present time.

Sentence

[86]     Following his convictions for attempted murder, using a firearm against a police officer and wounding with intent to cause grievous bodily harm, I sentence

Mr Warren  to  preventive  detention  with  a  minimum  period  of  imprisonment  of

10 years.

Brewer J