IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY CRI-2014-016-1983 [2016] NZHC 1538

THE QUEEN

v

WARREN CHARLES TE HEI

Hearing: 7 July 2016

Appearances: C R Walker for Crown S Jefferson for Defendant

Sentenced: 7 July 2016

SENTENCING REMARKS OF CLARK J

Solicitors: Crown Solicitor, Gisborne, for Crown Elvidge & Partners, Napier for Defendant

R v WARREN CHARLES TE HEI [2016] NZHC 1538 [7 July 2016]

Introduction

[1] Mr Te Hei, you appear for sentence having been found guilty at trial on two charges: wounding with intent to cause grievous bodily harm,1 which carries a maximum sentence of 14 years imprisonment, and assault with intent to injure.2 The maximum sentence for the charge of assault with intent to injure is three years imprisonment.

Background

[2] You were living in Wairoa in August 2014. You were a patched member of the Mongrel Mob gang although you had been previously a patched member of the Aotearoa Chapter. In the early evening of 8 August 2014 you were involved in a fight with the President of the Aotearoa Chapter and it seems you got the better of the President. You and your partner then immediately travelled to Gisborne in a vehicle driven by a cousin of your partner. You took with you in the vehicle a large machete.

[3] You had the driver go to an address and when the vehicle was parked in the driveway you got out. It seems that you misinterpreted some drunken behaviour on the part of a female friend of the victim as abuse directed at you.

[4] You retrieved the machete from the vehicle and attacked the victim in the driveway. You hit her a number of times in the face with either your fist or the handle of the machete and struck at her head with the machete blade. She held her left arm up to protect herself and received three wounds to her left hand and wrist. She also received bruising and swelling to the left side of her face.

[5] The cousin intervened and took the machete from you and you then got back into the vehicle and left the scene.

1 Crimes Act 1961, s 188(1). 2 Crimes Act 1961, s 193.

Sentencing Act 2002

[6] In a case involving violence of this severity the purposes of deterrence and denunciation are particularly important. The sentence must hold you responsible for your actions and deter you and others from similar behaviour in the future.

[7] I must also have regard for the effect of the offending on the victim. The victim says that the entire event — the attack as well as the trial — has had a huge impact on her life. Physical effects remain years after the incident. Her eye has been damaged and her hand is visibly scarred. She finds herself reliving the incident all the time and she lives in fear that this is not over and that you may kill her or hurt her family.

[8] There are two issues I have to decide today. First, the length of a finite sentence that would be imposed in the event I decide a finite sentence is appropriate. Second, whether I should, as the Crown has asked, sentence you to an indeterminate sentence of preventive detention.

Finite sentence

[9] First I need to determine what the finite sentence would be in the event a finite sentence is decided and the first step in that process is for me to identify a starting point.

Starting point

[10] For wounding with intent to cause grievous bodily harm, a guideline exists in the judgment of the Court of Appeal in R v Taueki.3 In that case the Court of Appeal identified factors which are seen to make the conduct of overall criminality involved in grievous bodily harm more serious.

[11] The Crown submits that the factors which are important in setting the starting point are that the violence was extreme and unprovoked. You used a machete. There was an element of premeditation in your returning to your car to get the machete,

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

and the attack was aimed at the head. The Crown points out that the victim was relatively vulnerable being smaller, and an unarmed female.

[12] The Crown submits that there are no factors reducing the seriousness of the offending, and seeks a starting point of seven years imprisonment on the basis that this offending is best characterised as being in the middle of the second of the Taueki bands.

[13] For you, Mr Jefferson has argued that this offending falls at the lower end of band two. The offending has, it was submitted, some of the characteristics of band one offending because it was impulsive, occurred in a public place, and involved a weapon. Mr Jefferson acknowledges a starting point of five years might be available.

[14] I consider a starting point of six years appropriately reflects the seriousness of the offending.

Uplift for previous offending

[15] You have convictions for attempted murder in 1997, aggravated robbery in 1993 and 1991 and aggravated assault in 1992. The Crown seeks an uplift of nine to 12 months imprisonment. Mr Jefferson correctly accepts that an uplift may be appropriate to reflect your history of violent offending.

[16] Although the convictions are for offences that occurred some time ago they were for serious violence and must be brought into account. The starting point is uplifted by nine months to mark these convictions.

[17] There was no guilty plea and there are no mitigating factors. Indeed, you maintain your innocence.

End finite sentence

[18] Were I to impose a finite sentence I would impose a sentence of six years and 9 months imprisonment.4

[19] I now turn to whether the sentence should be a finite one or the indeterminate sentence of previous detention.

Should a sentence of preventive detention be imposed?

[20] A sentence of preventive detention is imposed to protect the community from those who pose a significant and ongoing risk to the safety of its members.5 It can only be imposed if the Court is satisfied that the offender is likely to commit another qualifying sexual or violent offence after being released from any finite term of imprisonment.

[21] I have to take account of various factors in making this decision. The overall concern is whether you are likely to remain an ongoing risk to the safety of the community that can only be met by the imposing a sentence of preventive detention.

Section 87(4)(a): Any pattern of serious offending disclose by the offender’s history

[22] You have convictions for attempted murder in 1997, aggravated robbery in 1993 and 1991 and aggravated assault in 1992.

[23] You are currently facing charges relating to an alleged assault on another prisoner while you were in prison. Mr Jefferson advises that you are defending this charge on the basis that you were acting in self defence, and that the Court should bear in mind that it occurred in a prison context where you had previously been subjected to violence yourself. In your letter you outlined the history of abuse and

4 Mr Jefferson accepted that a minimum period of imprisonment may be required to uphold the sentencing principles of deterrence, denunciation and accountability. The Crown argues for a minimum term of imprisonment of two-thirds of the starting point. Section 86 of the Sentencing Act provides for the Court to impose a minimum period of imprisonment in cases where the period otherwise effective under the Parole Act 2002 would be insufficient for the purposes of accountability, denunciation, deterrence and protection of the community. That minimum period must not exceed the lesser of two-thirds of the full sentence or 10 years. 5 Sentencing Act 2002, s 87.

violence you have suffered in prison, at the hands of both other prisoners and prison authorities.

[24] It seems clear that the gap in offending was due to your being in custody. A pattern is visible in your offending. The present offending and your outstanding charges, are a continuation of that pattern.

Section 87(4)(b): The seriousness of the harm to the community caused by the offending

[25] Serious physical harm has been caused to the victim of the present offending, and to the victims of past convictions.

Section 87(4)(c): Information indicating a tendency to commit serious sexual or violent offences in the future

[26] The Department of Corrections has made available the usual Provision of Advice to Courts report. I have also been provided, as required by law when considering a sentence of preventive detention, with two reports by health assessors, department psychologist Mr Morrison and forensic psychiatrist Dr Lehany.

[27] The author of the Department’s report considers you have a very high risk of reoffending and a very high risk of doing harm to others.

[28] Mr Morrison noted that you had spent two years and ten months following release from prison without offending and that this demonstrated a capacity to avoid offending.

[29] The Department assessor also recorded that you were accepting of the need to address your tendency to use violence.

[30] Mr Morrison recorded that you do not operate according to prosocial norms because you do not believe they are of use in the environment in which you live. I note that the reports of your life in Anaru Bay that I have read, in letters from people who know you from recent years, tell a different story of your commitment to building a life for you and your family following release from prison.

[31] Mr Morrison provides actuarial assessments that show you are highly likely to reoffend. Dr Lehany outlines the criticisms of using statistical analysis to make predictions about an individual.

[32] Dr Lehany was reluctant to make a prediction as to the likelihood of you offending again. He outlined, though, the competing interpretations of your history. On one hand your score when the Violence Risk Scale was used placed you in the high risk group, with a high probability of offending within two years of release into the community.

[33] On the other hand, he recorded that you are well-equipped to resist coercion by others if you choose to do so.

[34] Your offending seems to be the result of conscious decisions to offend in the context of gang involvement and that involvement with all of its implications for you suggests the risk of serious offending remains.

Section 87(4)(d): The absence of, or failure, of efforts by the offender to address the cause or causes of the offending

[35] Mr Morrison’s report outlines past participation in violence reduction programmes.

[36] Dr Lehany reports that you expressed a desire to no longer offend.

[37] Reports of your life in Anaru Bay show effort to change your situation.

[38] You attended a specialist intensive treatment programme at Montgomery House in 2006 but you were expelled from the programme one week before completion. There were mixed reports of your engagement at times commending you for your participation but also they were cautious regarding what was described as your dominating style during group interactions when you responded to some sessions in a verbally aggressive and intimidating manner.

[39] You were referred to other specialist treatment in early 2009 and completed that programme in 2010. According to the treatment report you made it clear to treatment staff that you had agreed to take part for extrinsic benefit.

[40] Where there has been previous engagement with rehabilitative services, and offending follows that therapeutic intervention, it may indicate an increased risk of reoffending.6

Section 87(4)(e): The principle that a lengthy determinate sentence is preferable if this provides adequate protection for society

[41] The court should sentence offenders to finite sentences if those sentences will adequately protect the community, rather than to an indeterminate sentence.

[42] Mr Jefferson submitted that in this case a finite sentence with a minimum period of imprisonment will adequately protect the community. Mr Jefferson referred to the fact that during your assessment you accepted a need to address your tendency to use violence and you gave an account of having decided to no longer behave in a criminal way.

[43] The stark fact is that the evidence tends to point the other way. You have reached an age of maturity but you continue to demonstrate an entrenched propensity for violence. Your past conduct and current attitudes suggest a very high risk of violent offending. Even a lengthy determinate sentence with a minimum period would see you being released into the community without having responded to treatment.

[44] The Crown submission is well made: that preventive detention puts your release in your hands and provides you with the incentive to engage fully with the available treatment programmes with a view to modifying this aspect of your behaviour. Without that modification members of society continue to be at risk from you.

6 Rosewarne v R [2015] NZCA 537.

[45] I am satisfied on the basis of all of the information available to the Court that you are likely to commit another violent offence if released on parole after a finite term of imprisonment and that therefore a sentence of preventive detention should be imposed.

[46] I emphasis to you that such a sentence has a preventive, not a punitive, purpose and is only invoked in order to protect the community from your further offending. The time you spend in prison will be very much in your hands.

Sentence

[47] On the charge of wounding with intent to cause grievous bodily harm you are sentenced to preventive detention and you are ordered to serve a minimum term of five years which is the minimum period of imprisonment that may be imposed when preventive detention is ordered.7

[48] On the charge of assault with intent to injure you are sentenced to two years imprisonment to be served concurrently.

[49] Mr Te Hei you may stand down.

______Karen Clark J

7 Sentencing Act 2002, s 89.