Warren v The the Queen
[2022] NZCA 179
•11 May 2022 at 3 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA510/2017 [2022] NZCA 179 |
| BETWEEN | RHYS RICHARD NGAHIWI WARREN |
| AND | THE QUEEN |
| Hearing: | 28 March 2022 |
Court: | Dobson, Woolford and Hinton JJ |
Counsel: | Applicant in person by AVL |
Judgment: | 11 May 2022 at 3 pm |
JUDGMENT OF THE COURT
The application for leave to withdraw the notice of abandonment of an appeal against conviction and sentence is declined.
____________________________________________________________________
REASONS OF THE COURT
(Given by Dobson J)
Introduction
In 2017, the applicant, Mr Warren, was convicted of attempted murder of two police officers, using a firearm against a third and wounding a fourth officer with intent to cause him grievous bodily harm. He was sentenced by Brewer J who concluded that in terms of a finite sentence, a term of 19 years’ imprisonment with a minimum period of imprisonment (MPI) of 10 years would be appropriate.[1] However, the Judge went on to find that the length of finite sentence was insufficient to address the risk of serious reoffending. Accordingly, Mr Warren was sentenced to preventive detention with a minimum period of 10 years’ imprisonment.[2]
[1]R v Warren [2017] NZHC 1913 [Sentencing notes] at [50] and [55].
[2]At [86].
Mr Warren had represented himself at trial. The High Court appointed Mr Mansfield as counsel assisting. After sentencing, Mr Warren lodged an appeal against conviction and sentence in September 2017. In late-2017 this Court appointed Mr Ewen as standby counsel to assist Mr Warren in pursuit of his appeal.
However, in early-2018 Mr Ewen filed a memorandum indicating that Mr Warren rejected the prospect of any assistance from him. Mr Ewen conveyed to the Court Mr Warren’s attitude that he was not subject to the Court’s jurisdiction.
In August 2018 Mr Warren wrote to the Court stating that he did not accept the Court’s jurisdiction and that he was disengaging from the court proceedings and the criminal justice system. That step was followed in December 2018 by Mr Warren filing a signed and witnessed notice of abandonment of his appeal.
On 2 March 2021 the Court received a notice of appeal on the form for a standard appeal against conviction, completed by Mr Warren, purporting to initiate a fresh appeal against conviction and sentence. Since its receipt it has been treated as an application to withdraw his notice of abandonment of the appeal filed in 2017.[3]
[3]Court of Appeal (Criminal) Rules 2001, r 35.
Given Mr Warren’s indication that he intended to represent himself, Ms Kincade QC was appointed as counsel to assist the Court. Ms Kincade filed thorough submissions addressing arguments in support of Mr Warren being allowed to withdraw his notice of abandonment of the original appeal, and advancing arguments on the merits of his appeals against conviction and sentence.
Throughout all stages of the proceedings, Mr Warren has asserted that the laws of New Zealand do not apply to him on the basis of Māori sovereignty. The courts’ consistent response has been that there is no legal basis for this claim. The proposition was, for example, rejected by the Supreme Court when Mr Warren sought leave to appeal a pre-trial judgment of Brewer J to that effect.[4] Most recently, on 25 February 2022, Mr Warren conveyed a demand that the Court immediately order his release, relying on the same proposition that the laws of New Zealand do not apply to him. In the event that the Court did not do as he asked, he indicated that he would not appear at the hearing of the application to withdraw the notice of abandonment of his appeal.
[4]Warren v R [2016] NZSC 156 at [4], noting that “similar arguments have been considered and rejected by the courts on numerous occasions”, citing R v Mitchell CA68/04, 23 August 2004 and R v Miru CA65/01, 26 July 2001. See also the decision of this Court on Mr Warren’s bail appeal where the same argument was rejected: Warren v R [2016] NZCA 490 at [9]–[10].
On 22 March 2022 the Court issued a minute recording that it would not comply with Mr Warren’s demand to immediately order his release and that it would proceed to hear argument on the application in his absence should he maintain his stance that he would not appear. The minute emphasised that it was open to Mr Warren to appear should he change his mind.
On 25 March 2022 the Court received a further communication from Mr Warren. It repeated the theme of previous communications, requiring orders for his immediate release on the ground that he is not subject to the laws of New Zealand. The document repeated the earlier advice that he would not attend the hearing.
The Registry was advised by Corrections personnel at Waikeria Prison on the morning of the hearing that Mr Warren had confirmed his intention not to appear.
After the hearing had commenced and the Court had indicated that the hearing would proceed in the applicant’s absence, a short adjournment was called to transfer the hearing from VMR, which was causing technological difficulties, to MS Teams. However, at approximately 10.20 am, the Court was advised by Ms Kincade’s junior that the applicant now wished to participate in the hearing. There was a break for technological reasons and the hearing resumed at approximately 10.30 am with attendance by the applicant via audio link. Mr Warren repeated the same ground as he has relied on throughout. That argument must fail. We accept the reasoning previously given by this Court that New Zealand courts are subservient to Parliament and must apply an Act of Parliament as enacted.[5] The relevant criminal legislation applies to Mr Warren. His argument would require the “political end of change to the criminal justice system rather than the exercise of the judicial function of appellate review … under the present statutory criminal justice system”.[6] Mr Warren is not entitled to put himself outside the laws of New Zealand.
The offending
[5]R v Mitchell, above n 4, at [13]–[14].
[6]R v Miru, above n 4, at [10].
In March 2016 cannabis was spotted in the property occupied by Mr Warren and in an adjoining property by an aerial police search. Police personnel on the ground were directed to the properties to destroy the plants. While doing so, police officers heard gunshots from the vicinity of Mr Warren’s house and the Armed Offenders Squad (AOS) was called. AOS personnel surrounded the house and after unsuccessful urging using the telephone and a loudhailer for any occupants to come out, armed police entered the house.
Mr Warren was hiding, holding a loaded rifle, some distance from the point of entry. At close range he fired at the leading armed officer, Sergeant White. The Judge found on the evidence at trial that Mr Warren had pointed the rifle at the officer’s head.[7] Fortuitously, the bullet deflected off the officer’s rifle with a number of fragments of the bullet wounding the officer in the face. Other fragments of the bullet struck a second officer, Constable Mauheni who was behind Sergeant White, who was badly wounded. Numerous other officers, in adjoining rooms to where Mr Warren was, fired through walls in the direction of Mr Warren’s shot, intending to prevent Mr Warren from firing further shots.
[7]Sentencing notes, above n 1, at [10].
Mr Warren fired two further shots in this initial exchange, fragments of one of which struck a third officer, Constable Flinn, in the leg. All the police officers who had entered the house then left, but armed officers remained in the area to continue observing the house.
On exiting the house, one of the officers had dropped a police-issue Glock pistol and approximately an hour after the first altercation Mr Warren used it to shoot at another officer, Sergeant Marsh, who was lying prone on the ground some 35 metres from the front of the house. Although Mr Warren denied firing the pistol, the Judge was satisfied on the evidence at trial that he had fired two shots from the pistol in this aspect of the offending.[8] One of the shots wounded Sergeant Marsh in the hand.
[8]At [17].
The initial shooting of the police officers in the house resulted in one charge of attempted murder of Sergeant White, one of wounding Constable Flinn with intent to cause him grievous bodily harm, and one of using a firearm against Constable Mauheni. The shots from the Glock pistol resulted in a second charge of attempted murder, this time of Sergeant Marsh.
At sentencing the Judge adopted a total starting point for the offending against the three officers in the house of 14 years’ imprisonment.[9] He assessed separately the attempted murder of Sergeant Marsh. On a standalone basis the offending against Sergeant Marsh would have attracted a starting point of 12 years’ imprisonment but on the application of totality this was reduced to four years, and added to the starting point for the first group of offences to produce a total starting point of 18 years’ imprisonment.[10] Relevant previous convictions would have resulted in an uplift of a further year resulting in an appropriate finite sentence of 19 years’ imprisonment.[11] If imposed, the Judge indicated that it would have been subject to an MPI of 10 years.[12]
[9]At [21] and [38].
[10]At [46] and [48].
[11]At [49]–[50].
[12]At [55].
However, the Judge was satisfied that preventive detention was required and that sentence was imposed with a minimum period of imprisonment of 10 years.[13] In reaching that conclusion, Brewer J relied on health assessors’ reports which had been sought under s 87 of the Sentencing Act 2002, which discussed the prospect of Mr Warren committing further qualifying violent offences.[14]
Grounds for withdrawing notice of abandonment
[13]At [85].
[14]At [68]–[78].
There are two circumstances in which this Court will grant an application for withdrawal of a notice of abandonment of an appeal.[15] The first is if the abandonment is not the result of a deliberate and informed decision to the extent that it should be recognised as a nullity. The second is where an applicant satisfies the court that exceptional circumstances exist which require the abandonment to be withdrawn in the interests of justice. That assessment is to be undertaken having regard to the importance of finality in criminal proceedings and the circumstances in which the applicant originally committed to abandoning the appeal.[16]
Was the abandonment a nullity?
[15]R v Cramp [2009] NZCA 90 at [26].
[16]At [26], referring to R v Bridgeman CA87/04, 10 November 2005 at [9].
Ms Kincade suggested that the lack of legal advice that Mr Warren had received at the time he abandoned his appeal meant the decision was not informed and could be considered null and void. An abandonment will be void where it was not the result of a “deliberate and informed decision”, meaning that “the mind of the applicant did not go with his act of abandonment”.[17] But the fact that an appellant withdraws his or her appeal without legal advice cannot of itself render the abandonment null and void.[18]
[17]R v Medway [1976] QB 779 at 798, adopted in New Zealand in R v MacKay [1980] 2 NZLR 490 (CA) at 491.
[18]Eschbank v Police (1989) 5 CRNZ 157 (HC).
Mr Warren rejected any input from Mr Ewen and was acting on his own behalf in late 2018 when he committed to abandoning his original appeal. In the new notice of appeal lodged in March 2021, Mr Warren stated that it had taken him until then to learn the law sufficiently and research the evidence that had been given at his trial to enable him to pursue an appeal. He also stated that previous documents he had filed should be treated as null and void. It might be inferred from that statement that he was unaware of the effect of the earlier abandonment of his original appeal.
Mr Warren’s notice of abandonment has his signature endorsed with the words “under duress”, but that appears on a number of his documents including his early 2021 notice purporting to commence a fresh appeal. The phrase is used to reflect his protest at having to participate in legal processes at all, rather than claiming that he was pressured to complete the document in question. Three months lapsed between Mr Warren writing to the Court in September 2018 to advise that he rejected the Court’s jurisdiction and was withdrawing his appeal, and the filing of his notice withdrawing his appeal. The abandonment was therefore a deliberate step, not taken on the spur of the moment.
Despite the research and learning he referred to in March 2021, the primary ground relied on by Mr Warren remains the untenable one that he has asserted from the very outset. From all of his communications it is clear that he appreciated the finality of abandoning his appeal in late 2018 and has had a change of heart more recently. We are not persuaded that his notice of abandonment should be treated as null and void.
Exceptional circumstances?
The second possible ground for withdrawing the notice of abandonment requires at least a provisional view to be taken of the prospective merits of the appeal in order to assess whether the interests of justice require that notice to be set aside. We analyse Mr Warren’s case from the perspective that there would need to be a substantial prospect that a miscarriage of justice would occur if his appeal was not reinstated.
Does the proposed conviction appeal raise a substantial prospect of a miscarriage of justice?
Ms Kincade made a number of criticisms of the Judge’s summing-up to submit that a miscarriage of justice had occurred, or was likely to have occurred.
(a) Lies direction
Mr Warren gave evidence in his own defence. In the Crown closing address, the jury was told that Mr Warren had been “quite dishonest about certain parts of the events and what he says that he knew and didn’t know what he says he did and didn’t do”. In his summing-up, Brewer J raised the topic of lies in the following terms:
[11] I need to say something to you about lies. That is because the Crown says that virtually all of Mr Warren’s evidence in this case is lies. And Mr Warren has submitted to you that quite a number of Crown witnesses have also told you lies and have colluded with each other to deceive you.
The Judge went on to give a relatively standard lies direction as contemplated in s 124 of the Evidence Act 2006. His direction included the following:
The law says it is important for you to understand that people tell lies for all sorts of reasons. If you do decide that Mr Warren has told a lie, you don't just write him off for that reason. You need to decide why he told the lie and then put it into its appropriate context in the evidence. And don’t jump to the conclusion that because he lied about something then he must have lied about everything else. And it is very important not to jump to the conclusion that if he lied about something he must be guilty. … So, be very careful before you decide that a lie, if you have decided there is one, indicates guilt.
The Judge added:
The same is true of the Crown witnesses. If you were to find that one of them had lied, well then of course you would start looking very carefully at all the rest of their evidence. But the principle is still the same. Don’t jump to conclusions, and put it into context.
Ms Kincade submitted that the Judge had overstated the extent to which the Crown contended Mr Warren had told lies, and that a proper lies direction ought to have provided specific examples in directing the jury as to how they should deal with lies. Further, she submitted the Judge’s lies direction confusingly mixed a direction about finding that the defendant had lied with a direction about any lies the jury considered had been told by Crown witnesses.
There was an element of overstatement in the Judge attributing to the Crown an assertion that “virtually all of Mr Warren’s evidence in this case is lies”, but only in a very minor sense. The Crown closing address was a thoroughly reasoned rejection of Mr Warren’s explanation for his conduct on the day of the offending. First, the Crown contrasted Mr Warren’s evidence claiming he was fearful, with text messages sent to friends and whānau as the events unfolded. The jury was invited to find that the attitudes expressed in those texts were dramatically different from Mr Warren’s evidence of his frame of mind at the time. In addition, the closing address contrasted Mr Warren’s explanation of the circumstances in which he fired at the police with the evidence from the officers. Jurors would readily have taken the view that there were stark differences between Mr Warren’s explanation and the evidence of the police officers. The Crown closing urged rejection of Mr Warren’s version. That is not significantly different from a summation that virtually all of his material evidence was said to be untrue.
Ms Kincade submitted that the Judge’s overstatement ignored several factual matters on which Mr Warren’s evidence agreed with, or did not dispute the evidence of Crown witnesses. That may be so, but the Crown closing focused on the issues in dispute on which it had to discharge the onus and there were disputes as to his credibility on a significant majority of those points. We do not accept that the overstatement in the Judge’s summing-up risked misleading the jury in their assessment of the evidence.
The second criticism of the lies direction was that use of specific examples of evidence that the jury may find to be lies should have been provided to improve their understanding of the s 124 direction. Such specific examples are desirable in many cases, but they are not mandatory. Here there were stark differences between the evidence of the police officers who observed Mr Warren and other Crown evidence, and his own recollection of his actions at the time. We agree with the Crown that in this case, where so many of Mr Warren’s claims were said to be lies, it would have been impractical to refer to all or even most of those examples. Choosing specific examples from his evidence of potential lies would risk giving a prominence to those examples which could distract the jury.
The lack of specific examples did not impair the clarity of the message that had to be given about lies. The necessary elements of a s 124 direction were clearly conveyed.
The third aspect of Ms Kincade’s criticisms of the lies direction was that it was confused by reference to Mr Warren’s contention that there had been lies told by Crown witnesses. The terms of s 124 of the Evidence Act focus explicitly on the possible need for a warning in respect of evidence that a defendant lied before or during the proceedings. Ms Kincade cited the decision in Khairati v R.[19] In that case, the complainant had accepted that she had lied, and the Judge’s s 124 direction mixed up the prospect of the jury finding that both the complainant and Mr Khairati had lied. Unsurprisingly in that context this Court found it “unorthodox and risky” to refer in a s 124 direction to the prospect of lies by witnesses other than the defendant.[20] Ms Kincade submitted the contrasting prospects of who the jury should believe led to the risk of jurors treating their task as a decision on which version they believed, rather than an assessment of whether the Crown evidence that they did believe had established the elements of the offence beyond reasonable doubt.
[19]Khairativ R [2017] NZCA 31.
[20]At [27].
The question is whether the reference to lies by other witnesses has impaired the clarity of the message required to be conveyed in a s 124 warning or led the jury astray. In the circumstances of this case, we are satisfied that it did not. The summing‑up made it clear that Mr Warren raising self-defence did not alter the onus on the Crown to prove all elements, including proof that Mr Warren did not act in self‑defence.
We accept Ms Kincade’s submission that the lies direction in this case was important because the jury would necessarily have to consider Mr Warren’s credibility to determine the merit of his self-defence claim. They had to consider his evidence of what he was reasonably thinking at the time of the conduct giving rise to the charges. But for the reasons given, we do not consider there was any error in the lies direction given by the Judge that would have led the jury astray on this issue.
(b) Mischaracterisation of self-defence
Ms Kincade submitted that the Judge’s summing-up mischaracterised the defence Mr Warren was advancing on his own behalf in relation to the first shot. Mr Warren’s evidence and his closing address to the jury had raised both the prospect that the rifle had gone off by accident on the first occasion and the prospect that he fired in self‑defence. In overview, the Judge stated that Mr Warren’s case was that he was terrified and shot only to defend himself. Later in the summing-up when dealing with the first charge of attempted murder the Judge said:
It has to be a deliberate shooting. Mr Warren, in his address to you, said on a couple of occasions that he accidentally fired the first shot, but then on other occasions he appeared to be saying that he was merely frightened and panicked and fired. That is something that you are going to have to resolve by looking at the evidence and, in particular, the evidence that Mr Warren gave in the trial, both when he was giving his side of the story at the beginning and then when he was in cross-examination.
Ms Kincade submitted that these comments from the Judge conveyed that Mr Warren had raised inconsistent or contradictory explanations by way of defence. Arguably, this could have created an adverse impression with the jury when, on Ms Kincade’s analysis, Mr Warren could be seen as advancing self-defence as an explanation for his conduct overall, but that having armed himself out of fear, his rifle had first fired accidentally when he was panicked.
These passages in the Judge’s summing-up were an accurate reflection of what Mr Warren had said in evidence, and in his closing address. We do not accept that the way the Judge’s comments were expressed created a risk of the jurors thinking that the defence lacked credibility because of a suggestion from the Judge that there were inconsistent or contradictory aspects of that defence.
Indeed, the Judge’s summing-up finessed the prospects of findings of accidental discharge of the rifle and self-defence in terms that reflected the options possibly available to Mr Warren. The Judge provided a relatively extensive summary of Mr Warren’s version of events leading to the first shot being fired. This was expressed in terms paraphrasing Mr Warren’s evidence from his perspective:
… and I’m shaking with fear and the rifle goes off and then all mayhem breaks loose; I didn’t fire with the intention of killing Constable White, I didn’t fire with the intention of hurting Constable White, it just happened that way; … and at the time that I fired that rifle, if you find it to be an intentional firing of the rifle, all I was trying to do was defend myself because I fully expected the Police to shoot me dead any moment.
Ms Kincade next submitted that the Judge misdirected the jury on the elements of self-defence. She criticised the absence of an explicit recognition by the Judge that an initial aggressive act by the defendant in some form of pre-emptive strike could also constitute a form of self-defence. However, that prospect was adequately acknowledged by the Judge:
If Mr Warren honestly believed that the Police were going to shoot him then he would be entitled to use reasonable force to defend himself from being shot.
Ms Kincade criticised the Judge’s question trail, for addressing the questions on the prospect of self-defence in what she submitted was the wrong sequence. The jury were directed to determine all the elements of the charge before considering self‑defence. She submitted that a jury should be directed to consider a defendant’s frame of mind relative to the prospect of a reasonable belief in the need for self‑defence, before considering issues of whether the Crown had made out the requisite intention to carry out the actus reus of the offences involved. Ms Kincade argued that if a jury is required first to be satisfied that the defendant had the requisite intention, then as a matter of logic the prospect of self-defence becomes irrelevant. The jury would be assessing the evidence on the defendant’s state of mind (i.e., as to whether there was a reasonable basis for believing in the need for self-defence), when they had closed minds because of the answer to the earlier question as to whether the Crown had made out the requisite intention. Ms Kincade cited this Court’s decision in Mafi v R which included the following:[21]
[26] We accept that in similar types of trials this Court has recommended that as a matter of logic a Judge should direct the jury to consider self-defence before any issue of intention. However, as Mr Carruthers submits, a failure to follow this course will not necessarily result in miscarriage of justice. That is because, regardless of the order in which the jury addressed the issues, it did so according to the Judge’s express direction that self-defence was a complete defence to the charge.
[21]Mafi v R [2015] NZCA 408 (footnotes omitted). See also Stretch v R [2020] NZCA 195 at [23]. For an example of a case where the order in which the jury considered self-defence and the mental elements of the offending were material, see Tobin v R [2020] NZCA 66 at [28].
We agree that it would generally be preferable for the jury to be directed to consider self-defence before the mental elements of the offending. But we also agree that a failure to do so will not lead to a miscarriage of justice where there is little risk that the jury would have erred in their consideration of self-defence. This case is like that in Mafi, given that it was perfectly clear to the jury that if the Crown could not negate a reasonable prospect of self-defence, then that would be a complete defence to each of the charges in which it was raised. That position is obvious from the Judge’s explanation of the question trail. The specific questions relevant to making out the defence were identified and it was clear that the jury’s answers to those questions could lead to a finding of not guilty despite any earlier findings.
Ms Kincade has made the most that counsel possibly could of criticisms of the summing-up. Having reflected on her arguments, we are satisfied that there is no substantial prospect of a miscarriage, so as to trigger a concern that the interests of justice require the Court to set aside the notice of abandonment.
Does the proposed sentence appeal raise a substantial prospect of a miscarriage of justice?
Ms Kincade made separate submissions on the prospects of a successful appeal against sentence.
At sentencing the Judge determined that there were no mitigating factors that would justify a discount from the final period of the finite sentence he identified.[22] There was no cultural report under s 27 of the Sentencing Act 2002 tendered to the Court on Mr Warren’s behalf.
[22]Sentencing notes, above n 1, at [50].
Nor did other reports prepared identify any mitigating factors or provide reason to think Mr Warren’s prospects of rehabilitation were high. The pre-sentence report prepared in May 2017 was completed without positive input from Mr Warren. He initially indicated he would participate in an interview and then refused. On the basis of reported attributes, the report placed his risk of reoffending and harm to others as very high.
Of the psychologist’s reports prepared under s 88 of the Sentencing Act, the first prepared in June 2017 by a Waikato District Health Board psychologist indicated that there was no mental illness present, but declined to provide a future risk assessment in the absence of engagement by Mr Warren. In an addendum from that psychologist in August 2017, the opinion was that Mr Warren’s risk of future reoffending would remain significant unless he engaged in structured violence prevention programmes, but the report noted that a detailed assessment remained impossible due to Mr Warren’s refusal to engage. A second psychologist’s report prepared by a Department of Corrections clinical psychologist on 1 August 2017 opined on the basis of static psychological tests that Mr Warren was at least at high risk, and more likely at very high risk, of further violent offending shortly after release. Both psychologists reported that in their limited dealings with Mr Warren he had been polite and friendly and all reports were obviously limited by a lack of Mr Warren’s engagement with the writers.
Ms Kincade has recently procured a s 27 report from Ms Shelley Turner who attributes Mr Warren’s severe stance towards people in positions of authority as understandable given the colonial history of Aotearoa and particularly the impact on his iwi, Ngāti Awa. All of Mr Warren’s most serious offending (both present and past) has taken place when people in positions of authority have come onto a property occupied by him. Mr Warren’s upbringing and former pro-offending attributes were affected by economic, social and cultural deprivation suffered by Ngāti Awa.
Essentially in reliance on the mitigating circumstances detailed in the s 27 report, Ms Kincade submitted that on an appeal against sentence, a 20 per cent discount for cultural factors would be warranted which would have the effect of reducing the proposed finite sentence to 15 years’ imprisonment. Ms Kincade also submitted that the Judge had concluded a sentence of preventive detention was necessary without adequately canvassing the alternatives including an Extended Supervision Order. Such an order would leave the decision on the need for any further controls over Mr Warren at the conclusion of a finite sentence to those equipped to assess it at the time. Ms Kincade was also critical of a failure to analyse the inadequate rehabilitative opportunities previously afforded to Mr Warren.
In responding to these prospects for a sentence appeal, Ms Mildenhall for the Crown submitted that at the time of Mr Warren’s sentencing in 2017, s 27 reports were relatively rare and, given his consistent rejection of New Zealand laws applying to him, it would not be appropriate to now review the prospects of a successful sentence appeal on the basis that a recently prepared s 27 report might have made a difference. The Crown also rejects criticisms of the adequacy of the Judge’s analysis and justification for a sentence of preventive detention.
The mandatory considerations the Court must take into account in considering a candidate for preventive detention are those in s 87(4) of the Sentencing Act. They are as follows:
87 Sentence of preventive detention
…
(4) When considering whether to impose a sentence of preventive detention, the court must take into account—
(a)any pattern of serious offending disclosed by the offender's history; and
(b)the seriousness of the harm to the community caused by the offending; and
(c)information indicating a tendency to commit serious offences in future; and
(d)the absence of, or failure of, efforts by the offender to address the cause or causes of the offending; and
(e)the principle that a lengthy determinate sentence is preferable if this provides adequate protection for society.
On the basis of the evidence at Mr Warren’s trial and the content of the reports available to the Judge on sentencing, the decision that the sentence of preventive detention was required was clearly open to the Judge. The level of violence in his offending had escalated and the charges could easily have included a homicide. Mr Warren was unrepentant and denied that he could be constrained by New Zealand law. We can see no compelling argument that the Judge’s analysis was in error.
A constraint for report writers considering the risk of an offender committing violent offences in the future where the candidate declines to participate is that they are more heavily dependent on predictions based on past conduct, rather than their current opinion reflecting the offender’s post-conviction attitudes.
Since the time of the offending Mr Warren has been consistently staunch in rejecting the application of all aspects of New Zealand criminal law to his conduct. That stance severely limits the prospects of positive engagement with rehabilitative processes. We are not inclined to treat Mr Warren’s belated engagement on positive terms with the writer of a s 27 report as an exceptional circumstance that would justify withdrawal of the earlier notice of abandonment of his appeal.
We are accordingly satisfied that the threshold for granting leave to withdraw the notice of abandonment is not reached in respect of either an appeal against conviction or sentence and his application to do so is declined.
Postscript: When this judgment was ready for delivery on 6 May 2022, Mr Warren purported to file further materials in support of his appeal. No leave was sought to do so, and no grounds were advanced for consideration of those materials. They cannot influence the outcome.
Solicitors:
Crown Law Office, Wellington for Respondent
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