The Queen v Matete
[2006] NZCA 294
•17 October 2006
IN THE COURT OF APPEAL OF NEW ZEALAND
CA100/06
THE QUEEN
v
KINO HOKI MATETE
Hearing:9 October 2006
Court:Glazebrook, Gendall and Venning JJ
Counsel:V C Nisbet for Appellant
S B Edwards for Crown
Judgment:17 October 2006 at 12.30pm
JUDGMENT OF THE COURT
THE APPEAL IS DISMISSED.
____________________________________________________________________
REASONS
(Given by Gendall J)
[1] The appellant was sentenced to preventive detention in the High Court at Wellington, and a minimum non-parole period of six years fixed, on 24 February 2006. She had pleaded guilty to three crimes of violence, wounding with intent to injure, causing grievous bodily harm with intent to cause injury and injuring with intent to injure. She appeals against the sentence of preventive detention.
Background
[2] The appellant was on parole having been released from a sentence of five years imprisonment imposed on 17 June 1999 for wounding with intent to cause grievous bodily harm, when she attacked a woman on 29 June 2004 who was sitting in a car in a public place. She stabbed or punched her in the face whilst holding an open pocket knife, so as to wound the victim. She gave herself up to the police and was remanded in custody to Arohata Prison on 9 July 2004. It was not until 18 November 2005 that the appellant pleaded guilty.
[3] In the meantime, the appellant had been the subject of a psychological assessment on 17 November 2004 by a consultant psychologist who expressed the opinion that the appellant was at a very high risk of serious violent re-offending. A further report dated 15 December 2004 from a consultant psychiatrist was forwarded to the District Court which expressed the view that the appellant did not have a psychiatric disorder but would benefit from undergoing anger management.
[4] Another psychiatrist referred to factors which were associated with an increased long-term risk, saying that the appellant would benefit from violence prevention programmes. The psychiatrist stated that without such intervention the probability of further violent offending “will be significant”. That was on 8 June 2005 and was an accurate prediction, because of what followed.
[5] On 9 June 2005, whilst on remand in Arohata Prison, the appellant, together with a co-offender, caused grievous bodily harm to a fellow prisoner by throwing boiling water at her face, back and legs through the grill in her cell door. The victim sustained severe burns and in particular to her face. Less than a month later, on 5 July 2005, the appellant attacked a prison officer at Arohata Prison punching her about the face and striking her arm with sufficient force to break the victim’s arm. She also head-butted the prison officer in the face.
[6] The sentencing Judge described the boiling water incident as being an attack which was a very serious offence characterised by planning and cruelty, carrying a grave risk of injury to the victim. Each of the incidents described, the Judge said, involved the use of violence against another woman whom the appellant knew, the violence being serious involving the use of a weapon where one was available.
Appellant’s criminal history
[7] This comprised an extensive list of serious crimes but significantly 12 crimes of violence, including assault with intent to injure and one of wounding with intent to cause grievous bodily harm, the last conviction being imposed in June 1999 for which the appellant received a sentence of five years imprisonment.
Sentencing decision
[8] In imposing preventive detention the Judge had before him five psychiatric or psychological reports. He heard oral evidence from two of the psychiatrists, one of whom had been instructed by defence counsel. The Judge discussed the personal circumstances of a long history of rebelliousness on the part of the appellant, her previous very poor criminal record for violent offending and the opinions or assessments of the health professionals. Essentially, the Judge concluded that the appellant posed a significant risk of violence to others, both in prison and the community. Unless there was a commitment by her to change there was a real risk of further offending, which could only be reduced by taking of intensive treatment.
[9] The Judge said that if he was to impose a determinate or finite sentence he would adopt concurrent sentences, increasing the effective term to reflect the totality of the offending. He took as a starting point a sentence of 11 years imprisonment in respect of the offence involving the attack using boiling water, mistakenly believing that it was a charge of causing grievous bodily harm with intent to cause such harm. In fact the charge had been amended and the appellant pleaded guilty to the charge of causing grievous bodily harm with intent to injure which carried a lesser maximum penalty. The Judge concluded that had he been sentencing the appellant for the first or one offence alone, he would not have imposed preventive detention but the two subsequent events altered that conclusion, given the views of the psychiatric experts to the effect that the appellant’s offences of serious violence were likely to continue in the absence of sustained psychiatric intervention and a real commitment on the part of the appellant.
[10] The Judge concluded that the determinate sentence, which he would otherwise impose of nine years imprisonment was not sufficient to protect the public and that the appellant’s:
refusal to co-operate with recent report writers is of concern and it is also necessary to recognise that [the appellant’s] history shows [she is] very easily triggered in a range of circumstances. So I conclude that [she is] likely to offend at the end of a determinate sentence.
[11] The Judge said that if the appellant was not able to overcome her difficulty she was highly likely to re-offend on release and she presented a very real risk to the community. He then imposed a sentence of preventive detention and set the minimum non-parole period at six years. On the charges of causing grievous bodily harm with intent to injure and wounding with intent to injure the appellant was sentenced to preventive detention. On the charge of injuring with intent she was sentenced to three years imprisonment.
[12] When it was drawn to the Judge’s attention that the appellant had in fact pleaded guilty to the charge of causing grievous bodily harm with intent to injure, and that two of the assault charges had been withdrawn, he corrected his sentencing remarks. He said that the starting point he would have chosen could not of course been 11 years imprisonment, but rather seven years and a determinate sentence of six years imprisonment, if such were to be imposed, would have been appropriate. The Judge said that alternatively he could have sentenced on a cumulative basis. However, he concluded that that did not make any difference to his decision to impose the sentence of preventive detention.
Counsel’s submissions
[13] Mr Nisbet, on behalf of the appellant, contended that the Judge’s mistake in determining the appropriate starting point on the lead charge, led him into error in imposing a sentence of preventive detention. He argued that in all the circumstances such a sentence was manifestly excessive. He highlighted that the appellant, although having a history of violent offending had been in the community for approximately two years prior to the first offence for which she was to be sentenced, and that much of her other offending had been committed within a prison environment. He submitted that the risk the appellant posed to the community at large was less than to those persons who lived or worked in the prison environment.
[14] Counsel said that many male violent offenders had worse criminal records than the appellant but had not been sentenced to preventive detention. He contended that if sentenced to preventive detention, the appellant would not immediately receive psychiatric or psychological treatment, which defeats the purpose of such a sentence. He argued the Judge did not give sufficiently serious consideration to the alternative to a sentence of preventive detention, it being a sentence really imposed for crimes of violence and even rarer in respect of a young woman. He contended that the sentence was inappropriate and excessive and a finite sentence would have met the concerns of the Court and protection of society.
[15] Mr Nisbet submitted that at its highest, protection of the community would require a finite sentence of no more than nine years, although he did not contest the imposition, and length, of the minimum non-parole period.
Discussion
[16] The purpose of, and principles applicable, when considering a sentence of preventive detention are well known. They appear in s 87 of the Sentencing Act 2002. The purpose of such a sentence is to protect the community from criminals who pose a significant and ongoing risk to the safety of the public. The appellant is over the age of 18, and if the Court was satisfied that she was likely to commit another qualifying violent offence, if released after the expiry of a finite sentence, there is jurisdiction to impose preventive detention. Health assessors made the point, as is well known to the Courts, that long-term predictions of risk of offending are difficult to make and it is not possible to determine the effects any rehabilitation measures may have during a long period of incarceration. Nevertheless, the consensus view expressed to the sentencing Judge was that without intensive and effective treatment being undertaken, and completed, the appellant posed an ongoing high risk of repeated serious violent offending.
[17] Relevant considerations for a sentence of preventive detention may include the nature of the offending, its gravity and time span, the category of victims and impact on them, any response to previous rehabilitation and steps taken to avoid re-offending, and acceptance of responsibility. The statutory principles the Court must take into account under s 87(4) include the pattern of serious offending disclosed by the offender’s history; the seriousness of harm to the community caused by the offending; information indicating a tendency to commit serious offences in the future; the absence of, or failure, of efforts by an offender to deal with the causes of offending; and the principle or proposition that a lengthy determinate sentence is preferable if it provides adequate protection for society. Finally, preventive detention remains a matter of discretion for the sentencing Judge but is not a sentence of last resort.
[18] We do not think that the appellant is assisted by the argument that the Judge initially erred in taking a starting point for a finite sentence for the lead offence at a higher level than otherwise should have been the case. The short point is that if a finite sentence of nine years imprisonment (regarded as otherwise necessary by the Judge) would not provide sufficient protection for the community, then a lesser finite sentence equally would not provide such protection. The submission that some of the appellant’s more serious violent offences occurred whilst she was in custody, and therefore generally the wider community was not likely to be at risk, is novel, but not accepted. The “community” and “society” referred to in s 87, includes those who are in, and work in, prisons. It is artificial to contend that they are not deserving of protection to the same extent as persons outside institutions. If the proposition is valid that the retaining of the appellant in prison for an extended period would defeat the purpose of the sentence, because it increased the risk to those who are within the institution from serious violent offenders, then such offenders would be more likely to be released earlier than others. That cannot be the case. It is quite clear that it is only in the prison environment that the treatment and programmes necessary to rehabilitate the appellant can take place.
[19] The opinions of the health assessors before the sentencing Judge were those of a consultant psychologist who, in November 2004 expressed the opinion that:
Ms Matete is currently at a very high risk of serious violent re-offending. This risk may be reduced via the successful completion of treatment. Without treatment, she is not considered to have the skills necessary to manage anger and her propensity to behave violently.
[20] That was a reasonably accurate prediction given the later offending that occurred in June and July 2005.
[21] The consultant forensic psychiatrist expressed the view in February 2005 that without therapeutic intervention in a violence prevention programme the probability of the appellant’s further violent offending “will be significant”.
[22] The psychiatrist engaged on behalf of the appellant, who saw her the day before the boiling water attack, expressed the well known view that there is an inherent difficulty in making predictions of future risk:
…it can reasonably be concluded a risk exists especially in the short term [but] quantifying this risk for a time some years hence is problematic.
[23] Finally, Professor Brinded on 10 February 2006 expressed the view that the type of impulsive anger and violence as evidenced here arises out of a personality disorder characterised by anti-social behaviour and a propensity to act impulsively and violently and:
“It is of course a significant concern that this behaviour has continued even when incarcerated on at least two occasions where she has perpetrated serious assaults.
….
Unfortunately it does appear that this type of behaviour is an established pattern with regard to Ms Matete and without significant psychological intervention it is unlikely that Ms Matete will be able to be assisted in breaking this cycle of violence.
[24] It may have been open for the sentencing Judge to impose cumulative sentences rather than approach the matter by looking at concurrent finite sentences. But, even on that basis, a total term could not have exceeded 11 or 12 years. Some Judges may have approached the matter on that basis but it is not possible for us to conclude that the sentencing Judge erred in the exercise of his discretion to impose preventive detention. Certainly, it was an option open to him to conclude that a finite term whether it be six or nine years was insufficient to protect society. He accurately referred to and considered all the necessary pre-requisites, and apart from health assessors’ reports he heard two of them give oral evidence, and he went to the trouble of obtaining a further report as to the availability and probable commencement time of treatment programmes for the appellant. As mentioned it was an especially troubling fact that after having been seen by the psychologists and psychiatrists (indeed on the very next day after being assessed by her own psychiatrist, when expressing appropriate sentiments for rehabilitation), she seriously offended in respect of the boiling water incident and the later attack upon the corrections officer.
[25] One of the accepted advantages of a sentence of preventive detention is that it provides a tangible incentive for a prisoner to undertake necessary programmes so as to rehabilitate him/herself and to satisfy the Parole Board that they would be safe to be released into the community. A finite sentence does not necessarily carry the same incentive. The stage had been reached with this appellant that unless there was a real incentive to pursue and complete successfully treatment programmes, so that she no longer resorted to serious violence, then the protection of the community required that she remained in prison indefinitely. The Judge recognised that the opportunity for release perhaps might not be too far in the future when he fixed the minimum non-parole period at six years. Whilst counsel said that the Parole Board would not release the appellant at that time, that is speculative. If she had successfully completed the programme so that the community was no longer at risk from her if released, then it would be entirely open to the Parole Board to grant to her release but of course subject to conditions that follow upon a sentence of preventive detention.
[26] We conclude by saying that it is imperative that treatment for the appellant commence immediately given her offending whilst in custody and the contents of the specialists’ reports, and we note that attempts are now being undertaken to pursue this end.
[27] Given the appellant’s history, her current crimes, and gloomy prognosis, a sentence of preventive detention was one that was open to the Judge. Whilst, strictly, he erred in considering the available finite sentence, he did not err in his assessment whether preventive detention was appropriate. We are not able to disturb or interfere with the exercise of his discretion.
Result
[28] The appeal is dismissed.
Solicitors:
V C Nisbet, Wellington for AppellantCrown Law Office, Wellington
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