LEOTA v R [2018] NZCA 200

LEOTA v R [2018] NZCA 200 [18 June 2018]NOTE: HIGH COURT ORDER PROHIBITING PUBLICATION OFWITNESS' NAME, ADDRESS OR OCCUPATION REMAINS IN FORCE.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA552/2017[2018] NZCA 200BETWEEN PAKA JUNIOR LEOTAAppellantAND THE QUEENRespondentHearing: 23 May 2018Court: French, Ellis and Woolford JJCounsel: L B Cordwell for AppellantI R Murray for RespondentJudgment: 18 June 2018 at 12.30 pmJUDGMENT OF THE COURTThe appeal against sentence is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Woolford J)[1] On 7 September 2017, Paka Leota was sentenced by Clark J topreventive detention with a minimum period of imprisonment of eight years and eightmonths on one charge of causing grievous bodily harm.1 He now appeals thatsentence. He says he should have received a determinate sentence of 11 years'1 R v Leota [2017] NZHC 2184.imprisonment, which he would serve without parole (because of the three-strikeslegislation) and cumulatively on the sentences he was already serving.Factual background[2] The offence occurred in the Hawke's Bay Regional Prison on 21 March 2015,where Mr Leota was a serving prisoner. Less than two years earlier, on29 October 2013, Mr Leota had been sentenced to nine years' imprisonment oncharges of wounding with intent to cause grievous bodily harm and wounding withintent to injure.2 The sentence of nine years' imprisonment was cumulative on asentence of three years nine months' imprisonment earlier imposed on Mr Leota on15 August 2011 on charges of aggravated robbery and kidnapping.3[3] The victim of the 2015 offending was also a serving prisoner. Mr Leota andanother inmate inflicted a violent beating on the victim in Mr Leota's cell because theyperceived he was somehow at fault when a plan to smuggle drugs into the prison failed.The victim's injuries were so serious that but for the intervention of another prisonerand medical professionals it is likely he would have died. He suffered severe andpermanent brain injury and multiple fractures to the side of his face, jaw, nose,cheek and eye socket. He cannot use his arms or legs and is unable to speak. He isconfined to a wheelchair.Health assessor's reports[4] In sentencing Mr Leota, the Judge had the benefit of two health assessors'reports. The first report was prepared by a clinical psychologist, Ms Sabine Visser.Ms Visser noted that Mr Leota had a longstanding pattern of violence and an antisociallifestyle associated with his drug use, but had engaged in treatment for his substanceabuse with success. She assessed him as at the higher end of a moderate risk forserious violent reoffending following his release into the community. She concludedthat, taking into consideration Mr Leota's age, criminal history and potential to benefitfrom undergoing psychological treatment to address his violence, a lengthydeterminate sentence "may" be sufficient to mitigate his future potential risk.2 R v Leota [2013] NZHC 2857.3 R v Leota DC Auckland CRI-2010-004-16518, 15 August 2011.[5] The second report was by a consultant psychiatrist, Dr Mhairi Duff. Dr Duffnoted that Mr Leota showed patterns of both violence throughout his adult life, but alsoof being able to sustain non-violent periods for years principally during periods whenhe was relatively substance free and formed more "pro-social or stabilisingattachments". She assessed him as at moderately high risk of future violent offending.She considered there was a risk that the imposition of a sentence of preventivedetention would remove hope for Mr Leota, and he would give "more consistent reignto his antisocial personality and be left unmotivated even intermittently to workproductively" with the Department of Corrections. She was, therefore, of the viewthat the imposition of a sentence of preventive detention risked increasing thefrequency and severity of violence in prison.High Court sentencing[6] After reviewing the factual background and the impact of the offending on thevictim, the Judge determined that a starting point of 10 years' imprisonment wasappropriate.4 She then uplifted the starting point by one year to recognise Mr Leota'slengthy list of previous convictions for violent offending.5 This brought thestarting point to 11 years' imprisonment. The Judge was of the view that there wereno mitigating factors and accordingly determined that if she were to imposea determinate sentence it would be 11 years' imprisonment.6 The Judge noted that asMr Leota had been convicted of a stage-2 offence, if she were to impose afinite sentence on Mr Leota, he would have to serve the full term of that sentencewithout parole.7[7] The Judge then turned to the question of whether a sentence ofpreventive detention was more appropriate. She noted that the purpose of a sentenceof preventive detention is to protect the community from those who pose a significantand ongoing risk to its safety.8 The Judge then referred to a range of factors she wasrequired to consider under the Sentencing Act 2002 in making this decision.94 R v Leota, above n 1, at [19].5 At [23].6 At [24] and [28].7 At [29] citing the Sentencing Act 2002, s 86C(4)(a).8 At [33].9 At [33].Section 87(4)(a): any pattern of serious offending disclosed by the offender's history[8] The Judge noted Mr Leota's pattern of serious offending and recorded that hislevel of violence had escalated over the years, as had the frequency of his offending.10She was of the view that Mr Leota clearly had a propensity for violence.Section 87(4)(b): seriousness of the harm to the community caused by the offending[9] In terms of the seriousness of the harm to the community, the Judge referred tothe appalling and lifelong injuries to the victim and the suffering caused to his partnerand family.11 She was of the view it was unarguable he had caused serious harm tothe community.Section 87(4)(c): information indicating a tendency to commit serious offences in thefuture[10] Here, the Judge referred to the pre-sentence report as well as the reports byMs Visser and Dr Duff.12 She recorded that the assessments indicated a likely benefitto Mr Leota if he could access treatment for his antisocial attitudes and violentbehaviour.13 The Judge therefore strongly recommended that Mr Leota be givenaccess to intensive anti-violence programmes.14 The Judge also noted that Mr Leotamaintained positive relationships with his family and previous partner and the manyreferences she had read testified to another side to Mr Leota.15 The Judge thought thatthis support may provide further encouragement to Mr Leota to remain violence free.16Section 87(4)(d): absence of, or failure of, efforts by offender to address the cause orcauses of the offending[11] The Judge noted that Mr Leota had engaged in various alcohol anddrug programmes.17 In earlier years he had low motivation to engage, but he hadengaged more in the Corrections environment. It seemed clear to the Judge, however,10 At [35].11 At [36].12 At [37]–[42].13 At [41].14 At [41].15 At [42].16 At [42].17 At [43].that Mr Leota had not fully addressed his substance abuse issues, given that it wasthe victim's alleged failure to smuggle drugs into prison that lead to the assault onhim.18 The Judge noted that Mr Leota had not been offered any formal violencerelapse prevention treatment programme and shared Dr Duff's view that Mr Leotashould be prioritised for such a programme.19Section 87(4)(e): the principle that a lengthy determinate sentence is preferable if thisprovides adequate protection for society[12] The Judge was of the view that a sentence of preventive detention did offergreater assurance around the public's safety than release at the conclusion of adeterminate sentence when the high risk that Mr Leota presently posed may still bethere. The Judge said:20The benefit to the community, and possibly you, of a sentence of preventivedetention is that you can yourself work towards the earliest possible releaseand you may be incentivised to do so. But if you do not the society remainsprotected by your continued incarceration.[13] In conclusion, the Judge's assessment was that Mr Leota posed a significantongoing risk to the safety of the community.21 She was satisfied that a sentence ofpreventive detention was necessary for the community's protection.22 She thereforesentenced Mr Leota to preventive detention with a minimum period of imprisonmentof eight years and eight months.23Grounds of appeal[14] Mr Leota appeals on the grounds that the Judge:(a) did not place sufficient weight on the views expressed in the healthassessors' reports; and18 At [43].19 At [44]–[45].20 At [48].21 At [51].22 At [51].23 At [52].(b) failed to consider the availability of an extended supervision order(ESO).Discussion[15] Mr Leota has no issue with the sentence of 11 years' imprisonment whichthe Judge assessed as appropriate had she not imposed a sentence of preventivedetention. Under s 188(1) of the Crimes Act 1961, the maximum sentence for theoffence is 14 years' imprisonment and, as the Judge noted, it is difficult to conceive ofa worse example of an assault in terms of its ferocity, and the severity of the effects onthe victim who barely escaped death.24 However, because the sentence would beimposed cumulatively on the sentences he was already serving and, moreover, wouldbe served in full without parole because of the effects of the three-strikes legislation,Mr Leota may well spend longer in prison if he were sentenced to 11 years'imprisonment than if he were sentenced to preventive detention with a minimumperiod of imprisonment of eight years and eight months. Mr Leota's counsel broughtthis to his attention, but Mr Leota instructed counsel that he wanted a release datewhich was certain so that he could work towards it, rather than the uncertainty ofrelease from a sentence of preventive detention.[16] Mr Leota was warned of the possibility of a sentence of preventive detentionwhen he was sentenced by Brewer J to nine years' imprisonment in 2013. In that casealso, Mr Leota's victim was fortunate to survive. He would not have survived ifsurgeons had not been able to remove a bone fragment from his brain and relieve thepressure that bleeding into his brain was causing. Brewer J stated:25I have decided that a sentence of preventive detention is not justified in yourcase. Despite the effects your current offending has had, the worryingescalation of it, and your long record of criminal offending, I take into accountcomments that you have the ability to change. However, you should be in nodoubt whatsoever that if there is further offending it is most unlikely that aJudge would decide that preventive detention was not the best option for you,or at least would consider it was the best option for everybody else.24 At [28].25 R v Leota, above n 2, at [54].[17] In the present case, although the health assessors believed a determinatesentence may be more efficacious than a sentence of preventive detention in reducingthe risk of further violent offending, the risk assessment and final decision on theimposition of preventive detention is a judicial one guided by the availableinformation.26 A judge must consider, but is not bound to follow, health assessors'reports. Here, the Judge clearly took the opinions of Ms Visser and Dr Duff intoaccount, but made her own assessment of risk, which she was obliged to do.In particular, she was entitled to disagree with Dr Duff that preventive detention poseda risk of removing all hope from Mr Leota, making reoffending more likely. In ourview, the Judge was entitled to conclude that a sentence of preventive detention wouldincentivise Mr Leota to change. With a sentence of preventive detention Mr Leotaknows that he will stay in prison unless he changes.[18] It also cannot be said both health assessors' reports pointed clearly againstpreventive detention. Ms Visser's report is broadly favourable to Mr Leota andexplicitly recommends a determinate sentence, although expresses reservations abouthis denial of the index offending. However, while Dr Duff's report identified a risk ofa loss of hope, in our view the report as a whole does not clearly favour a determinatesentence. Dr Duff also noted that it is "clear that Mr Leota has the potential capacityfor even higher levels and frequency of violence". Earlier in the report she notedMr Leota may commit future violent offending even after long periods of apparentmoderation or improvement in behaviour. She noted:Neither sanctions such as imprisonment nor potential reinforcement ofprosocial behaviour such as declassifications and movement to goodbehaviour units appear to have had significant impact on improving theintermittent violence that has persisted.She considered Mr Leota committed the index offending in circumstances where therewere no clear external stressors or triggers. These comments are clearly supported byMr Leota's offending history. They support the Judge's conclusion that Mr Leota'sunpredictable and escalating violence posed a risk to the community that could not bemanaged by a determinate sentence.26 R v Johnson [2004] 3 NZLR 29 (CA) at [19]; and R v Exley [2007] NZCA 393 at [46].[19] As to the availability of an ESO, while this Court has stated that the possibilityof the imposition of an ESO must be considered as a relevant factor in determiningwhether to impose preventive detention,27 that does not mean preventive detentionshould not be imposed simply because an ESO is available. An ESO is not a directreplacement for a term of preventive detention. A fact-specific assessment is requiredas to the risk reduction effect of an ESO in a particular case.[20] ESOs were originally designed to better manage the risks of child sex offenderswho are perceived as often ingratiating themselves to the victim through a process ofgrooming. An ESO is unlikely to mitigate the risk of someone like Mr Leotacommitting intermittent acts of relatively spontaneous and serious violence.Preventive detention provides greater protective features in this context. Although theJudge ought to have considered — and referred to — the availability of an ESO, we areof the view that this is not one of those finely balanced cases where the availability ofan ESO may tip the balance against preventive detention.28 It may have been finelybalanced in 2013 when Mr Leota was first considered for preventive detention, but itis not finely balanced now.[21] In conclusion, we are of the view that the Judge did not err in imposingpreventive detention. Preventive detention is not a last resort.29 Mr Leota has nearlykilled two men in separate episodes of violence. He has an extensive history ofviolence. His violence appears to be purposeful rather than initiated by a loss ofcontrol. Neither imprisonment nor potential reinforcement of positive behaviourappear to have had significant impact on improving the intermittent violence that haspersisted for many years now. The Judge was entitled to conclude that Mr Leota poseda significant and ongoing risk to the safety of the public.Result[22] The appeal against sentence is dismissed.Solicitors:Crown Law Office, Wellington for Respondent27 R v Mist [2005] 2 NZLR 791 (CA) at [100]–[102].28 See R v Parahi [2005] 3 NZLR 356 (CA) at [33]–[34].29 R v C [2003] 1 NZLR 30 (CA) at [6].