R v Wheble
[2022] NZHC 2730
•20 October 2022
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2020-044-3577
[2022] NZHC 2730
THE KING v
ANTHONY JOHN WHEBLE
Hearing: 20 October 2022 Appearances:
M Nathan for Crown
D Hoskin for Defendant
Judgment:
20 October 2022
SENTENCING REMARKS OF LANG J
Solicitors:
Crown Solicitor, Auckland
Steindle Williams Legal Limited, Auckland
R v WHEBLE [2022] NZHC 2730 [20 October 2022]
[1] Mr Wheble, you appear for sentence having pleaded guilty to a charge of attempted murder.1 The maximum sentence for that offence is 14 years imprisonment.
Background
[2] You have pleaded guilty on the basis of an agreed summary of facts. This records that you are currently serving a sentence of seven years imprisonment on another charge of attempted murder to which you pleaded guilty in 2019. That offence was also committed whilst you were in prison. You are required to serve the full term of that sentence because it was a “second strike” offence. Furthermore, you are serving the sentence cumulatively on a sentence of four years six months imprisonment imposed on 30 October 2015 on charges of aggravated robbery and assault with intent to rob. Your current release date is in November 2026.
[3] The current charge arises from events that occurred on 12 January 2020 when you were in the exercise yard at Auckland Prison. The victim of your offending was also present in the yard. He had both lower legs in plaster due to an unrelated injury he had sustained earlier. He was sitting on the ground and leaning up against a wall.
[4] You were pacing up and down and occasionally talking to the victim. You then walked up to him and kicked him in the forehead. This caused him to slump to the ground in a defenceless state. You then lifted his head and repeatedly stabbed him in the face with a shank, or weapon, made from a toothbrush with a disposable razorblade inserted in the end. You then let go of his head, took a step back and proceeded to kick him in the head on five occasions.
[5] By this stage the victim was unconscious and had slumped to the ground. You held his head up with one hand and cut both his eyelids with the shank. You then stabbed him in the face on 14 occasions. When the victim slumped over onto his left side, you repeatedly sliced the right side of his neck, causing a deep laceration above his carotid artery, ten centimetres in length. Not satisfied with this, you stepped back and kicked the victim in the head on a further seven occasions.
1 Crimes Act 1961, s 173.
[6] Corrections staff then entered the yard and you ceased your assault. You were searched and found to be in possession of two shanks. The assault on the victim lasted for approximately a minute and was recorded in full by CCTV cameras.
[7]As a result of the attack the victim received numerous injuries. These included:
(a)A 10cm laceration to the neck requiring 12 stitches.
(b)A 1.5cm laceration to the right eyelid.
(c)A 0.5cm laceration to the left eyelid.
(d)Bruising and swelling to both eyes.
(e)Extensive swelling and bruising to the forehead.
(f)Multiple cuts to the face and neck.
Approach
[8] The major issue to be determined today is whether I should sentence you to a finite sentence, as your counsel suggests, or to the indeterminate sentence of preventive detention, as the Crown submits is appropriate.
[9] I propose first to consider the finite sentence that would be imposed, should that be the sentencing option I find to be appropriate. I will then consider whether to impose a sentence of preventive detention.
Finite sentence
Starting point
[10] Your offending has numerous aggravating features. The first is that it involved a sustained attack over the period of about a minute. It included the infliction of kicks to the head and body, and the use of a sharp instrument to stab and cut the victim on numerous occasions. It resulted in moderate injuries to the victim, although these
could have been fatal if you had been able to penetrate the carotid artery with the weapon you were using. A further aggravating feature is that you were armed with two weapons in a prison environment. There was therefore some premeditation involved.
[11] I also accept the Crown’s submission that the victim was vulnerable because of his pre-existing injury. This meant he had no means of escaping from you or protecting himself from your attack.
[12] The circumstances of the present offending are very similar to those surrounding your earlier conviction for attempted murder. The offending on that occasion occurred in the day room of another prison in 2018. You were stalking the victim around the room, armed with a shank. You ran up behind the victim, grabbed his shoulder, and with your right hand cut him across the throat above the carotid artery. You tried to cut the victim’s throat on two further occasions before another prisoner intervened and you backed off. After the victim had been placed in the recovery position you ran back to him and stomped on his head twice. Another prisoner intervened at this point, but you returned to the victim and kicked him six more times in the head. The Judge who sentenced you on that occasion took a starting point of ten years imprisonment.2
[13] I consider the attack in the present case to be more serious than your offending in 2018 because of the number of stab wounds and blows you inflicted and the vulnerability of the victim. I would therefore select a starting point of 12 years imprisonment.
Aggravating factors
[14] Given your previous criminal history, and in particular your previous conviction for attempted murder, I would add an uplift of one year to reflect aggravating factors personal to you. This results in a sentence of 13 years imprisonment before taking into account mitigating factors.
2 R v Wheble [2019] NZHC 1301 at [22].
Mitigating factors
[15] Your guilty plea came in the face of an overwhelming Crown case, occasioned by the fact that the entire incident was captured on CCTV. You would therefore have had little prospect of acquittal had you gone to trial. Furthermore, your plea was not entered until the morning of the trial.
[16] I would apply a discount of ten per cent to reflect your guilty plea even though that could probably be regarded as generous. This would result in a discount of 16 months.
[17] I also have the benefit of a report tendered under s 27 of the Sentencing Act 2002 (the Act). This reveals that you grew up in difficult circumstances with your parents separating when you were just nine years of age. At this time you witnessed your father assaulting your mother with a knife and threatening to kill her. He went to prison for these actions. You were then looked after by your mother, who appears to have provided you with a stable and supportive home environment. At 12 years of age you went to live with your father and grandmother, but it seems they were unable to provide as supportive an environment as your mother had done.
[18] You became involved in criminal activity and the consumption of alcohol and drugs. Your grandmother could not cope with your behaviour and arranged for you to be placed in state care, where you remained for three years. This was an extremely difficult period for you because of the multiple forms of abuse you suffered whilst in care. This came on top of the trauma you suffered after witnessing your father assaulting your mother and undergoing psychotic episodes on several occasions.
[19] You last spent time with your father in May 2014, when you were 19 years of age. You had just been released from prison after serving a sentence of imprisonment imposed on dishonesty and assault charges. Two months later you went back to jail after being arrested on two charges of robbery. Thereafter, you did not see your father again. Your father died in 2015 and you were granted compassionate leave from prison to go to his funeral, but you consider you have never had the opportunity to properly mourn your father’s death.
[20] You have suffered from mental health issues in the form of ADHD and OCD for many years. This means you feel paranoid whilst in prison and have reported believing that the staff have been trying to poison your food.
[21] For the last two years you have been in isolation. You have therefore had virtually no interaction with your family and other prisoners, and the report says this has had a detrimental effect on your mental and physical wellbeing. It appears there has been very little treatment whilst you have been in prison for your underlying mental health conditions.
[22] I have no doubt that these mental disorders, coupled with the traumatic events you were exposed to during your formative years, have led directly to your imprisonment and the fact that you have offended violently whilst in prison. I would allow a further discount of ten per cent, or 16 months, to reflect the factors identified in the s 27 report.
[23] The discounts I have applied would reduce the sentence to one of ten years four months imprisonment. Both counsel agree you should receive a cumulative sentence. This means you would be required to serve a total of 17 years four months imprisonment on the two charges of attempted murder. Furthermore, as I have already recorded, you must serve the whole of the seven-year sentence imposed in 2019 because it was a “second strike” offence. The legislation that has repealed the “three strikes” regime does not have retrospective effect.
[24] Having regard to totality principles I would reduce the sentence to be imposed on the present charge to one of eight years imprisonment. This means you would serve an effective sentence of 15 years imprisonment on the two charges of attempted murder. I consider that to appropriately reflect the overall culpability of your offending. I would then make an order under s 86(1) of the Act requiring you to serve one half of your sentence before being eligible to apply for parole. This means you would not be eligible to apply for parole until November 2030.
Preventive detention
[25] You are eligible for a sentence of preventive detention because of your age and your previous convictions for aggravated robbery and attempted murder. Those are both qualifying offences for the purposes of a sentence of preventive detention.
[26] In deciding whether to impose a sentence of preventive detention, I must first determine whether it is likely you will commit another qualifying offence upon your release.3 I am also required to take into account the five factors set out in s 87(4) of the Act. Having considered these I must stand back and determine whether to impose the finite sentence of imprisonment or a sentence of preventive detention. The underlying concern I am required to address is whether you are likely to remain an ongoing risk to the safety of the community, such that the imposition of a sentence of preventive detention is necessary.
[27] That sentence is not, however, one of last resort. In other words, it is not a sentence that can only be imposed after other sentencing options have been tried without success.
[28]The issues I am required to take into account under s 87(4) are as follows:
(a)any pattern of serious offending disclosed by your history;
(b)the seriousness of the harm to the community caused by the offending;
(c)information indicating a tendency to commit serious offences in the future;
(d)the absence of, or failure of, your efforts to address the causes of the offending; and
(e)the principle that a finite sentence of imprisonment is preferable if this provides adequate protection for the community.
3 Sentencing Act 2002, s 87(2)(c).
Any pattern of serious offending
[29] As I have already observed, the present offending is very similar in nature to, albeit more serious than, the offending that led to your conviction for attempted murder in 2019. In addition, you have five convictions for aggravated robbery going back to 2010. You also have convictions for robbery, common assault and assaulting a prison officer.
[30] I consider your criminal history shows a clear pattern of serious violent offending, particularly given your more recent convictions for attempted murder committed in a prison environment.
Seriousness of harm to the community caused by the offending
[31] Your earlier offending involving aggravated robbery obviously caused serious harm to the community. The wider community is not affected by the offending giving rise to your two convictions for attempted murder. However, such offending is clearly serious within a prison environment because it leads other prisoners and prison staff to justifiably fear for their safety.
Information indicating a tendency to commit serious violent offences upon release
[32] In this context the past is a good predictor of the future. The fact that you have been involved in offending involving violence for many years suggests there is a significant likelihood you will offend again in a similar way in the future.
[33] In addition, I now have the benefit of two health assessors’ reports tendered under s 88 of the Act. One of these has been prepared by a psychologist, whilst the other has been prepared by a psychiatrist.
[34] The reports confirm you have been involved in numerous violent incidents both in your younger years and whilst in prison. After setting out details of your past conduct, Dr Louw, the psychologist, describes actuarial risk measures he has used to assess the likelihood of future violent offending. Similar instruments were used to assess the effectiveness of protective factors that may guard against future offending. Dr Louw, a clinical psychologist, makes the following observations:
55Considering static and dynamic risk factors as well as protective factors for future violent offending, Mr Wheble is assessed to present with a very high risk of committing serious violent offences in future, both in prison and outside of prison. Possible future victims of further serious violence include other prisoners, male and female custodial and non-custodial staff; and are likely to be from behind the victim and with no apparent warning. Attacks are likely to involve weapons and could range from everyday objects (like a hot water flash) to crafted stabbing objects (shanks) and his victims’ heads and faces would be the most likely target.
…
[35] When assessing the likelihood of you committing a further qualifying violent offence, Dr Louw says:
57Likelihood of Mr Wheble committing a further qualifying violent offence.
Mr Wheble committed his two most recent qualifying violent offences while in prison and in high or maximum-security units. His estimated risk of violent reoffending using a standardised risk assessment measure (VRS) placed him in the highest risk category. There appears to be a strong link between substance use and his violent offending. Mr Wheble has to date not completed offending rehabilitative treatment to address his violent offending and drug treatment needs. At the time of completing this assessment, Mr Wheble was assessed to present with a very high risk of committing a further qualifying violent offence, either inside or outside prison. Mr Wheble has consistently demonstrated a very low tolerance for frustration when custodial or non-custodial staff do not comply with his requests, and he has been willing to resort to destruction of property and self-harm in an attempt to coerce staff into complying with his requests. When generalising this known low tolerance of frustration to settings outside of prison, coupled with the nature of his offending prior to his incarceration (nine qualifying offences for a consideration of preventive detention) it is likely that Mr Wheble would continue to be volatile and to commit serious violence offences.
58Given Mr Wheble’s relatively young age (27 years) and his barriers (mental instability, threatening demeanour) to participating in intensive rehabilitative treatment, his assessed very high risk of violent reoffending will likely endure for many years to come. Information from Mr Wheble’s mental health assessment and treatment team may provide more information about the likely prognosis and progression of his condition and how this may relate to his risk of violence in future. Importantly, it might also provide some management recommendations and a mental health rehabilitation pathway to assist Mr Wheble in prison and on any release.
[36] The report of Dr Karayiannis, the psychiatrist, is to similar effect. He concludes:
102.Mr Wheble is considered a very high risk of general offending and high risk of violent recidivism. Several dynamic risk-enhancing factors are present and relevant that increases his risk of violent reoffending and will be the focus of treatment. Mr Wheble displays a relative poverty of risk-modifying or protective factors; but which are potentially subject to rehabilitative interventions.
103.In addition, it is uncertain as to whether the offending was driven by a psychotic process (delusion or hallucination); although some previous mental health staff had believed it was a partial factor.
104.In regard to recidivism, the most likely scenario would be a repetition of his previous offending: unprovoked assault on a stranger. This may be a little mitigated if Mr Wheble would engage in mental health services and accept treatment.
Absence or failure of efforts to address causes of offending
[37] The material before me is virtually silent regarding attempts you have made to rehabilitate yourself. Dr Louw refers to the fact that you have commenced and then been exited from a drug treatment programme on two occasions. On one occasion this was for assaulting another prisoner. On the other it was because you said you felt unsafe. Dr Karayiannis says he doubts whether you would engage in anger management sessions or tolerate group therapy.
[38] I note, however, that you told Dr Louw you were willing to participate in treatment programmes if you were offered them. You also acknowledged to Dr Louw that you knew you needed to address your risk factors. I therefore proceed on the basis that you have not yet participated in rehabilitative measures designed to address the risk of future violent offending.
The principle that a lengthy determinate sentence is preferable if this provides adequate protection for the community
[39] This principle also speaks for itself. It reflects Parliament’s preference for the imposition of a finite sentence where that is sufficient to provide adequate protection for the community
Conclusion
[40] Although your most recent offending occurred within the prison environment, you have several previous convictions for offending involving violence whilst in the
community. The intensity of this type of offending has clearly escalated since you have been in prison. The causes of this are likely to be complex and deep seated. This means there is no reason to believe your readiness to resort to violence will ease without significant therapeutic intervention. I consider you present a very high risk of future violent offending upon your release from prison because your current disposition is to use violence, including serious violence, whenever you encounter what you perceive to be a threatening situation. This is unlikely to change once you are released from prison because it is so deeply ingrained within you.
Should a sentence of preventive detention be imposed?
[41] It is now necessary for me to stand back and determine whether a sentence of preventive detention should be imposed, rather than a finite cumulative sentence of eight years imprisonment.
[42] The strongest factor militating against a sentence of preventive detention is the fact that you are just 27 years of age and have not yet participated in any form of meaningful therapeutic intervention to address your violent tendencies. Your counsel also submits that a sentence of preventive detention imposed on a person so young would amount to a crushing sentence. However, this submission needs to be measured against the fact that the health assessors’ reports make it clear that you will require significant treatment if there is to be any hope of rehabilitation.
[43] Your counsel also submits the community could be protected upon your release from a finite sentence through an extended supervision order, which would impose restrictions on many aspects of your life. However, such an order has only limited ability to address the underlying causes of offending. That process must be undertaken before an extended supervision order can be of any realistic utility.
[44] There clearly remains a question as to whether you are genuinely willing to confront and address the causes of your offending. This gives rise to an obvious concern that, if you were to receive a finite sentence, you would serve it in a mindset of denial. This concern is supported by references in the two reports from the health assessors indicating that you minimise your offending and in fact deny aspects of it. Should you serve your sentence in a mindset of denial this would inevitably result in
you returning to the community without having addressed the underlying causes of the offending.
[45] I cannot take that risk. I consider a sentence of preventive detention is the only means by which you will be persuaded to focus your mind on that issue to the point where you will engage meaningfully in such therapeutic and rehabilitative processes as may be offered to you in prison. I also consider such a sentence will provide you with an incentive to engage in these processes because you will know there is little possibility of release until such time as you have addressed the causes of your offending.
[46] I take on board the submission your counsel makes that you may regard a sentence of preventive detention as crushing. However, I would urge you to focus on the fact that the minimum term of imprisonment will only be one of five years. This is just one year longer than you are already required to serve under the terms of your existing sentence. Thereafter, you will be eligible for parole on the sentence of preventive detention but only if you satisfy the parole authorities that you have undertaken such therapeutic intervention as will result in you no longer being a risk of future violence within the community.
[47] I also consider a sentence of preventive detention may enable you to gain access more quickly to therapeutic intervention, assuming you are willing to accept it, than would be the case if you were to receive a cumulative finite sentence. As I have already observed, a finite sentence would result in you being ineligible for parole for many years. As I understand the position it is likely that you will be able to obtain therapeutic intervention more quickly with the imposition of a sentence of preventive detention than with the finite sentence I would be required to impose on you.
[48] I have therefore concluded a sentence of preventive detention provides the only effective means by which the community will be protected from the risk of future violent offending by you.
Sentence
[49] On the charge of attempted murder you are sentenced to preventive detention. You are to serve that sentence concurrently with your existing sentence and you are ordered to serve a minimum term of five years imprisonment before being eligible to apply for parole.
Lang J
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