R v Wellm

[2009] NZCA 175

IN THE COURT OF APPEAL OF NEW ZEALAND

CA581/2008
[2009] NZCA 175

THE QUEEN

v

BRETT STUART WELLM

Hearing:25 February 2009

Court:Chambers, Gendall and Allan JJ

Counsel:L O Smith for Appellant

A R Burns for Crown

Judgment:7 May 2009 at 11 am

JUDGMENT OF THE COURT

A        The time for appealing is extended.

B        The appeal is allowed. 

C        The order requiring the appellant to serve a minimum term of imprisonment of 17 years is quashed.  In substitution therefor, an order is made requiring the appellant to serve a minimum period of imprisonment of 15 years. 

REASONS OF THE COURT

(Given by Chambers J)

A three hour rampage

[1]       At 5.30 pm on 26 November 2007, Brett Wellm, the appellant, aged 43, went up to a house in Howick.  He was carrying a large red Bible – and, concealed, a knife.  He knocked on the door; Frances Gavin, aged 83, answered.  She was reluctant to let Mr Wellm in, but, using the Bible, he managed to persuade her to let him in.  He immediately became aggressive towards his victim.  He forced Mrs Gavin downstairs into the garage area.  He tied her up.  He then assaulted her using a spade and a pair of hedge clippers he found on the premises.  He struck her with these items, hitting her head, her torso, and her arms.  He also punched and kicked her.  The sentencing judge, Harrison J, rightly termed the attack “barbaric”. 

[2]       Mrs Gavin tried to play dead.  Eventually Mr Wellm left her in the garage, semi-conscious and lying in a pool of blood.  Mr Wellm went upstairs and stole some items, which he put in his backpack.  He then deliberately lit fires in the kitchen, the lounge and the bedrooms.  When he left the house, it was ablaze, with Mrs Gavin tied up downstairs and unable to escape.

[3]       Fortunately, a member of the public saw smoke coming from the house.  He called the fire service.  They put the fire out, but not before a great deal of damage had been caused to the house.  Thankfully, Mrs Gavin was saved.  She spent 25 days in hospital.  She was treated for a fracture to the skull, scalp lacerations, fractures to her ribs, and what were called “de-gloving” injuries to her arms, hands and fingers. 

[4]       Leaving the house ablaze, Mr Wellm returned to his girlfriend’s flat nearby.  A short time later, he arranged for a taxi to pick him up to take him to Manurewa.  The taxi, shortly after setting off, was stopped at a police cordon.  A little later he ordered the taxi driver to return to his girlfriend’s house.  Again, the taxi was held up by the police cordon.  Mr Wellm got out of the taxi, handing the taxi driver a stolen cheque to pay for the fare. 

[5]       From there, Mr Wellm walked to another address in Howick, the home of Jann and Brett Aspden.  He broke in.  Mr Aspden arrived home from karate training at about 8.30 pm to find Mr Wellm inside the garage.  The occupant put Mr Wellm on the ground and told him to remain there while the police were called.  Mr Wellm asked to use the toilet.  He was allowed to do so.  He then broke the window above the toilet and escaped.  Mr Aspden caught him, however, and held him until the police arrived. 

[6]       The police took Mr Wellm to Middlemore Hospital for treatment to the cuts to his wrists.  (He had cut his wrists when climbing out of the toilet window to escape.)  While at the hospital, Mr Wellm became aggressive towards Detective Constable Darren Kane and punched him on the forehead.  He then said he was going to kill Detective Constable Kane. 

[7]       On 5 March 2008, Mr Wellm pleaded guilty to the following charges:

(a)attempting to murder Mrs Gavin;

(b)assaulting Mrs Gavin;

(c)aggravated burglary (Mrs Gavin’s home);

(d)arson;

(e)aggravated burglary (the Aspdens’ home);

(f)threatening to kill Detective Constable Kane.

[8]       Mr Wellm was committed for sentence in the High Court after psychological and psychiatric reports indicated he was a potential candidate for preventive detention.  (Attempted murder is a qualifying offence for that sentence.)

[9]       Harrison J, on 4 July 2008, sentenced Mr Wellm to preventive detention on all counts.  He also ordered Mr Wellm to serve a minimum term of imprisonment (MPI) of 17 years.  Mr Wellm does not appeal against the sentence of preventive detention, but does appeal against the MPI order.  The sole ground of appeal is that the MPI is excessively long. 

[10]     The appeal was filed over a month late.  Mr Wellm has explained the delay.  He said he contacted the lawyer who represented him at sentence, but she said she was unable to do his appeal.  He then contacted another criminal lawyer, whose secretary said he would contact Mr Wellm.  But he did not.  He then contacted Mrs Smith, who represented him on the appeal before us.  Mr Burns, for the Crown, did not oppose Mr Wellm being given an extension of time for appealing.  In the circumstances, we think an extension is justified and grant it. 

Was the MPI manifestly excessive?

[11]     Whenever a judge sentences an offender to preventive detention, he or she must also fix an MPI.  The relevant statutory provision is s 89 of the Sentencing Act 2002:

(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.  …

[12]     It is well recognised that s 89 entails a two-stage test: R v C [2003] 1 NZLR 30 at [25]-[29] (CA). First, the sentencing judge must assess the MPI required to reflect the gravity of the offence. As this court said in R v C, the focus of this first step is “to reflect the gravity of the offence at a sufficient level to punish, denounce and deter, bringing to account all relevant sentencing considerations bearing on those issues, save the public protection dimension which is the focus of para (b)”: at [26]. Harrison J undertook this exercise. He concluded that the minimum term under para (a) would have been ten years. He reached that figure by taking an MPI of 13 years, but allowing a three year reduction for Mr Wellm’s guilty pleas: HC AK CRI 2007-092-18897 4 July 2008 at [37]. No one challenges his reasoning on this first stage.

[13]     His Honour then evaluated the second stage.  He concluded a ten year MPI would not be appropriate for public protection purposes.  He fixed the MPI at 17 years for these reasons:

[39]     I refer to the length of your history of violence, its repetitive and random nature, its intensity, its premeditation, and its escalation on this occasion.  I regret to say that I am satisfied that you are beyond reformation.  I regret also having to record that, if and whenever you are released back into the community, you will continue to cause great physical and emotional harm, or more likely take a life. Your violence knows no boundaries.  You have no empathy.  You are unable to help yourself.  You should be detained in custody, Mr Wellm, until you are no longer physically able to beat people. 

[14]     It is on this stage of the enquiry that Mrs Smith submits the judge fell into error.  Essentially, she submits:

(a)The judge failed to give any weight at all at this stage to Mr Wellm’s guilty pleas and to the fact the Parole Board will not release Mr Wellm until satisfied does not pose an undue risk to the safety of the community or any person or class of persons;

(b)The length of the MPI was significantly out of line with comparable cases. 

[15]     We consider those submissions in turn. 

Failure to recognise the guilty pleas

[16]     Mrs Smith’s first point was that the guilty pleas remain relevant on the second stage of the test, as on the first.  She cited in support of that submission R v C at [27]. We accept that submission. It is very important that the benefit of guilty pleas should be explicitly acknowledged at the second stage of the s 89 test. This is for two reasons.

[17]     First, if it is not recognised, one can imagine exchanges in defence counsel’s chambers along the following lines:

Defence counsel: You are a prime candidate for preventive detention.  The court will have to fix an MPI.  If you plead guilty, the MPI will be reduced under the first stage of the s 89 test, but it won’t do you much good, as under the second stage, public protection is the only consideration. 

Defendant: In that case, there’s no advantage in pleading guilty.  I’ll go to trial. 

[18]     Secondly, the fact a defendant has pleaded guilty is an indication that the defendant at least recognises his or her wrongdoing, which is perhaps the first step on the long road to reformation.  All other things being equal, a defendant who has pleaded guilty poses less risk to the public than a defendant who, while guilty, steadfastly refuses to acknowledge it. 

[19]     Mrs Smith submitted Harrison J had ignored the guilty pleas when undertaking the second stage assessment.  Certainly, His Honour made no reference to them at this stage.  We suspect there is merit in Mrs Smith’s submission.

[20]     Mrs Smith’s second point was that the judge had placed no weight on the fact that the Parole Board is not permitted to release anyone on parole unless it is satisfied he or she will not pose an undue risk to the safety of the community or any person or class of persons: see s 28(2) of the Parole Act 2002.  This was a point this court had emphasised in R v C: at [27]. Indeed, given that fact, this court had had to grapple with why Parliament had empowered the sentencing court to lengthen MPI’s. This court’s conclusion as to Parliamentary intention was in these terms:

[28]     … Parliament, in addressing the matter in this way, may have had in mind the interests of victims in having a maximum [sic – minimum?] certain period during which parole cannot be considered.  Against that must be balanced the difficulties of forecasting risk in relation to events capable of taking place only well into the future.  Also to be borne in mind is the general desirability of leaving matters to the judgment of the parole board, after the minimum period of imprisonment required to reflect the gravity of the offence under para (a) has been served.  That said, sentencing Courts must not overlook the fact that Parliament has given them the responsibility of fixing the longer of the para (a) and para (b) periods, if they differ.  Thus in a case where the Judge comes to the view that risk clearly outstrips gravity, it is the risk assessment which must prevail. 

[21]     Mrs Smith made the point that, even if an MPI of 15 years (which she advocated) was substituted for the judge’s 17 years, Mrs Gavin would still have the assurance of knowing that Mr Wellm would almost certainly not be eligible for parole in her lifetime.  She submitted that Harrison J’s approach had given too little weight to the Parole Board’s primary responsibility to determine if and when Mr Wellm should be released on parole. 

[22]     She also referred in this regard to R v Kahui [2008] NZCA 581, in which this court reduced an MPI from 16 years to 13 years. In that case, the first stage enquiry had led to an MPI of 12 years. The sentencing judge had, however, imposed a 16 year MPI on a public protection basis. This court held that there was no “sufficient basis to conclude that a minimum period of about a third longer than the minimum period required to reflect the gravity of the offending [was] necessary for the protection of the public”: at [62]. Mrs Smith noted that the uplift in this case was far more than a third – it was 70%. In her view, that strongly indicated the judge had not only ignored the guilty pleas but also failed to give any weight to the Parole Board’s continuing function. We consider this submission has merit.

MPI out of line with other cases

[23]     Any judge fixing an MPI must take into account general principles of sentencing, including the principle set out in s 8(e) of the Sentencing Act, namely “the general desirability of consistency with appropriate sentencing levels and other means of dealing with offenders in respect of similar offenders committing similar offences in similar circumstances”: see R v Gordon [2009] NZCA 145 at [17]. Mrs Smith submitted that 17 years was manifestly out of line and thus breached s 8(e).

[24]     She referred in particular to three cases.  The first was R v Hapi [1995] 1 NZLR 257 (CA), a case with very similar facts and circumstances to the current case. Mr Hapi, a 26 year-old man with an extensive criminal record, entered a 78 year-old widow’s home at night. After switching the power off, he attacked her with a knife, inflicting over 20 stab wounds. He then sexually assaulted her, stabbed her in the side of the head, and left her in her car, after cutting off the telephone to the house. The woman survived, but felt unable to return to her home of 50 years. Mr Hapi pleaded guilty to, among other things, sexual violation and wounding with intent to cause grievous bodily harm. The sentencing judge noted Mr Hapi’s lack of remorse and a psychiatric report that he was likely to reoffend in the future. The judge sentenced Mr Hapi to preventive detention with an MPI of 15 years. Mr Hapi appealed against the MPI. This court did not allow the appeal, but regarded “15 years as representing the top of the range available to the Judge”: at 262. The offending in Hapi, as in the present case, was horrific.  The need for public protection from both offenders is obvious.  We find it very hard to draw much distinction between the two men on a “public protection” basis.  Mr Hapi, as well as seriously wounding his elderly victim, sexually violated her; Mr Wellm did not do that, but did set fire to his victim’s home.  Both men were incredibly lucky not to be facing murder charges. 

[25]     Mrs Smith’s next case was R v Reekie CA339/03 3 August 2004. Mr Reekie was found guilty of 31 offences, committed over a ten year period against four female complainants. The offending included burglary, sexual violation, and rape. The sentencing judge imposed preventive detention, with a 25 year MPI. The sentencing judge concluded that, on the first stage of the enquiry, a 20 year MPI was justified. Under the second stage, however, he increased that by five years to reflect the risk Mr Reekie posed to the community. This court accepted that a 20 year MPI in respect of the gravity of the offending was open to the sentencing judge: at [32]. It did not consider any uplift on that was justified under the second stage: at [35]. This court therefore substituted an MPI of 20 years.

[26]     Mrs Smith relied on that case for two reasons.  First, she noted how much more serious Mr Reekie’s offending was compared with Mr Wellm’s: 20 years versus 10 years on the first stage of the enquiry.  Secondly, she noted the case was supportive of the proposition that uplifts under the second stage will be modest where they are justified.  (In Reekie, of course, this court found no uplift was justified.)  She noted that Mr Reekie had ended up with an MPI of 20 years, even though he had not pleaded guilty, whereas Mr Wellm had got only three years less, for less serious offending and having pleaded guilty.

[27]     Finally, Mrs Smith relied on Kahui.  In that case, Mr Kahui had entered the complainant’s home at night.  Over a four to five hour period, Mr Kahui, having threatened the complainant with weapons and punching her four or five times around the head, raped her on a number of occasions.  He also performed other degrading sexual acts on her and forced her to perform oral sex on him.  He then abducted the complainant, but fortunately she made an escape.  Following trial, he was convicted. 

[28]     The sentencing judge sentenced Mr Kahui to preventive detention.  He fixed an MPI of 16 years, which, as we have already noted, this court reduced to 13 years.  Mrs Smith accepted that the present case, notwithstanding Mr Wellm’s guilty pleas (compared with Mr Kahui’s refusal to acknowledge guilt), justified a longer MPI on “public protection” grounds.  But not much longer. 

[29]     Mrs Smith also referred us to the helpful tables annexed to Kahui, where this court reviewed MPI’s imposed in a number of cases where preventive detention had been held warranted. 

[30]     Having carefully considered these three cases, together with those in Kahui’s schedule and other cases cited by counsel, we are satisfied that the MPI imposed in the present case was manifestly excessive and was out of line with MPI’s imposed in other cases.  The need for public protection here was marginally greater than in Kahui and Hapi (where 15 years was upheld, but said to be at the top of the range).  The need for public protection warranted a lower MPI than Mr Reekie was ordered to serve.  In our view, a 15 year MPI was warranted. 

[31]     We want to make it crystal clear, however, that, while we are allowing the appeal and reducing the MPI, this does not mean that Mr Wellm will be released into the community in 15 years time regardless.  He will not be released into the community at all unless and until the Parole Board is satisfied on appropriate evidence that he will not pose an undue risk to the safety of the community or any person or class of persons. 

Result

[32]     We allow the appeal.  We quash the MPI of 17 years and substitute an MPI of 15 years. 

Postscript

[33]     The judge purported to impose preventive detention on all charges, even though only one of them was a qualifying offence, namely attempted murder.  Preventive detention should not have been ordered with respect to non-qualifying offence.  Each of them should have received the concurrent sentence appropriate to that offence: see Sentencing Act, s 83, especially subss (4) and (5).  This error on the judge’s part has no practical effect, as the indeterminate sentence properly ordered on the attempted murder charge prevails.  We mention this point simply to ensure that High Court judges are aware that s 87 of the Sentencing Act does not permit the imposition of preventive detention for non-qualifying offences simply because the offender is being sentenced at the same time for a qualifying offence. 

Solicitors:
Lorraine O Smith, Auckland, for Appellant
Crown Law Office, Wellington