KATIPA v R [2016] NZCA 441

KATIPA v R [2016] NZCA 441 [16 September 2016]NOTE: PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OFCOMPLAINANTS PROHIBITED BY S 139 OF THE CRIMINAL JUSTICEACT 1985.IN THE COURT OF APPEAL OF NEW ZEALANDCA357/2015[2016] NZCA 441BETWEEN WILLIAM KATIPAAppellantAND THE QUEENRespondentHearing: 31 August 2016Court: Wild, Courtney and Woodhouse JJCounsel: A G Speed for AppellantN E Walker for RespondentJudgment: 16 September 2016 at 11 amJUDGMENT OF THE COURTA An extension of time to appeal is granted.B The appeal, which is against the sentence of preventive detention, is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Wild J)Introduction[1] This is an appeal against sentence.1 It is, in two respects, unusual.[2] First, Mr Katipa is seeking to bring this appeal 10 years out of time. So he requires a lengthy extension of time to appeal.[3] Secondly, the issue on appeal is unusual. The appeal is against a sentence of preventive detention imposed on Mr Katipa by Nicholson J in the High Court at Hamilton on 18 February 2005 for offending that occurred in 1994. The ground of appeal is that the Judge erred, when deciding to impose preventive detention, in taking into account a rape committed by Mr Katipa on 12 February 2002. For Mr Katipa, Mr Speed argues that the Judge could not lawfully take that 2002 offending into account. Thus, the issue on appeal is: did Nicholson J err in takingMr Katipa's 2002 offending into account when considering, in February 2005,whether to sentence him to preventive detention for his 1994 offending?[4] We deal firstly with Mr Katipa's application for an extension of time toappeal. Mr Speed was quite frank in accepting that Mr Katipa had "sat on his hands in his cell" for 10 years. However, given the importance of the issue raised on thisappeal, Ms Walker did not oppose an extension of time. We grant an extension and focus on the substance of the appeal.[5] In order to deal properly with Mr Speed's argument, we need first to set outthe factual background and the relevant legislation.Factual background[6] The following table sets out the relevant events. We have drawn these largelyfrom the chronology contained in Ms Walker's helpful submissions for the Crown:Date Event12 August 1994 Mr Katipa invades a home and rapes a 19-year-old woman in the presence of her two-year-old daughter. This rape goes undetected until 2004 (the 1994 rape).12 February 2002 Shortly after his release from prison for a different offence1 R v Katipa HC Hamilton CRI-2004-024-550, 18 February 2005 [Sentencing notes].(burglary), Mr Katipa rapes a 13-year-old girl (the 2002rape).14 February 2002 Following his arrest for the 2002 rape, Mr Katipa provides aDNA blood sample.30 June 2002 Commencement of the Sentencing Act 2002.19 September 2002 Fisher J sentences Mr Katipa to 11 years imprisonment witha minimum non-parole period of seven years for the 2002rape, and also on associated charges of threatening to killand indecent assault.27 May 2004 The DNA blood sample, taken some two years earlier, issubmitted to the ESR for analysis.19 May 2004 Mr Katipa is charged with the 1994 rape.9 June 2004 ESR reports that Mr Katipa's DNA matches that found onthe victim of the 1994 rape.30 August 2004 Upon being arraigned at the start of his trial for the 1994rape, Mr Katipa pleads guilty. Cooper J convicts him anddirects, under s 88(1)(b) of the Sentencing Act, that reportsbe obtained from two appropriate health assessors to assistthe Court in considering whether Mr Katipa should besentenced to preventive detention.18 February 2005 Nicholson J sentences Mr Katipa to preventive detentionwith a minimum non-parole period of 10 years for the 1994rape. The Judge had adjourned the sentencing from15 February, requesting counsel to file further submissionsas to the question of whether the relevant legislationpermitted him to impose a sentence of preventive detention.26 June 2015 Mr Katipa files his notice of the present appeal againstsentence.Applicable legislation[7] Mr Katipa committed the 1994 rape before the commencement date of the Sentencing Act. Section 153 of the Sentencing Act deals with this situation. It provides:153 Offender convicted of specified offence committed before commencement date(1) This section applies if—(a) an offender is sentenced on or after the commencement date for an offence committed before that date that is a specified offence as defined in section 75(4) of the Criminal Justice Act 1985; and(b) had the court been dealing with the offender immediately before the commencement date, the court would have2 R v Katipa HC Hamilton T020855, 19 September 2002.sentenced the offender to preventive detention under section 75 of the Criminal Justice Act 1985 or committed the offender to the High Court in accordance with section 75(3) of that Act.(2) The court may deal with the offender under sections 87 to 90.[8] The relevant part of s 75 of the Criminal Justice Act provided:375 Sentence of preventive detention(1) This section shall apply to any person who is not less than 21 years of age, and who either—(a) Is convicted of an offence against section 128(1) of the Crimes Act 1961; or(b) Having been previously convicted on at least one occasion since that person attained the age of 17 years of a specified offence, is convicted of another specified offence, being an offence committed after that previous conviction.(2) Subject to the provisions of this section, the High Court, if it is satisfied that it is expedient for the protection of the public that an offender to whom this section applies should be detained in custody for a substantial period, may pass a sentence of preventive detention.[9] Those parts of s 87 of the Sentencing Act relevant to this appeal provide:87 Sentence of preventive detention(1) The purpose of preventive detention is to protect the community from those who pose a significant and ongoing risk to the safety of its members.(2) This section applies if—(a) a person is convicted of a qualifying sexual or violent offence (as that term is defined in subsection (5)); and(b) the person was 18 years of age or over at the time of committing the offence; and(c) the court is satisfied that the person is likely to commit another qualifying sexual or violent offence if the person is released at the sentence expiry date (as specified in subpart 3 of Part 1 of the Parole Act 2002) of any sentence, other than a sentence under this section, that the court is able to impose.3 The section was repealed as from 30 June 2002 by s 166(a) of the Sentencing Act 2002.(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'shistory; 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.[10] Mr Speed also referred us to s 4 of the Criminal Justice Act.4 That provided that penal enactments are not to have retrospective effect to the disadvantage of an offender. Mr Speed emphasised the following part of s 4(2): no court shall have the power, on the conviction of an offender of anyoffence, to impose any sentence or make any order in the nature of a penalty that it could not have imposed on or made against the offender at the time ofthe commission of the offence, [11] Section 6 of the Sentencing Act is the current equivalent of s 4 of the Criminal Justice Act. It gives an offender the right, upon sentence, to the benefit of any lesser penalty that was in force at the time the offence was committed. These provisions have no application to preventive detention: it has remained throughout the same indeterminate sentence.Sentence of Nicholson J[12] For two reasons, we need refer to this only briefly. The first reason is that Mr Speed does not argue against a sentence of preventive detention, if Nicholson J was correct in holding that he could take the 2002 rape into consideration. Thesecond reason is that Mr Speed's argument relies almost entirely on the Supreme4 Section 4 was also repealed, as from 30 June 2002, by s 166(a) of the Sentencing Act.Court's judgment in Mist v R, a judgment delivered just over nine months after Nicholson J had sentenced Mr Katipa.5[13] As we have mentioned, Nicholson J adjourned the sentencing and requested further submissions from counsel as to whether he could take into account the 2002 rape in sentencing Mr Katipa. The Judge held he could. He considered he wasbound by this Court's judgment in R v Bryant, dealing with an appeal against a sentence of preventive detention.6 The sequence of events in Bryant was this:Date EventBetween October 2001 and February 2002Offending — four incidents of sexual violation by unlawful sexual connection, four incidents of indecent assault and one of inducing an indecent act on young boys in a publicswimming pool or at the boys' homes.30 June 2002 Commencement date of Sentencing Act.November 2002 Further conviction (he had another conviction from 1999) for possession of large quantities of objectionable images and films depicting the abuse of children and bestiality.19 February 2003 Mr Bryant sentenced to preventive detention for the October 2001–February 2002 offending.[14] As to the chronology of events just set out, Panckhurst J, delivering thisCourt's judgment, explained:[6] Because the offending occurred before the Sentencing Act 2002 (the Act) came into force but the sentencing itself post-dated its enactment, s 153 applied. Thereby an offender who is convicted of a specified offence as defined in s 75(4) of the Criminal Justice Act 1985 and who would have been sentenced to preventive detention in terms of that section, is to be dealt with under ss 87 to 90 of the new Act. This meant that the Judge, who had presided at the trial, was first required to consider the threshold question whether preventive detention would have been the sentencing response under the previous regime and, if so, the new sections governing preventive detention were to be applied in relation to the imposition of that sentence.[15] In sentencing Mr Bryant on 19 February 2003 to preventive detention, theJudge took into account Mr Bryant's November 2002 offending. As this Court observed, that offending "was of close relevance, since it comprised tens of thousands of images, and films, which depicted the abuse of children andbestiality".75 Mist v R [2005] NZSC 77, [2006] 3 NZLR 145.6 R v Bryant CA236/03, 16 December 2003.7 At [7].[16] Although the correctness of the sentencing Judge doing that does not appear to have been challenged in Bryant, this Court implicitly endorsed the lawfulness ofthe Judge's approach. The appeal against the sentence of preventive detention wasdismissed. Indeed, as Nicholson J pointed out in his sentencing remarks in the present case, this Court in Bryant had "considered information about [Mr Bryant's] situation at the time of the hearing of the appeal".8[17] With the benefit of counsel's submissions, Nicholson J outlined his approachthus:[12] After Ms Foster drew the Bryant judgment to my attention, I gave Mr Barnsdale and Mr Douch the opportunity of making further submissions on the point. They have both done so this morning. In the result, and with some reservation, I consider that even if I were not strictly bound by the Court of Appeal judgment in the Bryant case, I should be guided by it and should decide the s 153 threshold question upon the basis of the legislation and law which existed immediately before 30 June 2002, but upon the basis of all the relevant information that is available to the Court today.The argument for Mr Katipa[18] Mr Speed informed us "I hang my hat on Mist v R". While he accepted thatMist was concerned with a different point, Mr Speed submitted that the "reasoning process" in Mist led to the result that Mr Katipa could not and would not have been sentenced to preventive detention at the time he committed the 1994 rape. Therefore Nicholson J could not sentence him to preventive detention in 2005.Decision[19] We do not accept Mr Speed's argument. In Mist the appellant had committed several sexual offences when under the age of 21. He was 21 when he was convicted and sentenced to preventive detention. By the time Mr Mist was sentenced, the Criminal Justice Act had been replaced by the Sentencing Act. The issue in Mist was whether, given the provisions of s 153(1)(b) of the Sentencing Act, Mr Mist had lawfully been sentenced to preventive detention. Mist is directed to the law applying at the time of the offence. The ratio decidendi of Mist is that a court8 Sentencing notes, above n 1, at [11].cannot impose on an offender a penalty that could not have been imposed on him at the date he committed the offence.9[20] Mist says nothing directly about the issue on this appeal — whether, at the time he sentenced Mr Katipa, Nicholson J could lawfully take into consideration all the information by then known to the Court, in particular the 2002 rape.[21] Although Mist does not support Mr Speed's argument, the judgmentdelivered by Tipping J for himself and Blanchard J does explain the effect of s 153(1)(b) of the Sentencing Act. It contains these passages:[69] We agree with the Court of Appeal's conclusion that s 153(1)(b)does not require the sentencing Court to deem itself for all purposes to besitting "immediately before the commencement date". What the subsectionis saying is that the sentencing Court must be satisfied that it both could and would have sentenced the offender to preventive detention under the law which applied immediately before the commencement date. The sentencing process must be viewed as taking place on its actual date but the law to be applied is the previous law. The purpose of the section as a whole is tomake sure that a person who offended under the old law, but is to be sentenced under the new law, qualifies for preventive detention under both regimes.[71] the Sentencing Act uses the phrase "immediately before the commencement date" in a number of different places In some situationsthe phrase is used simply to signify that the previous law is to apply. In this usage it is not the date which is important, simply what law is to apply. In other instances the phrase is designed to make relevant an individualoffender's particular circumstances on the date immediately before thecommencement date.[72] we think it is tolerably plain that in s 153(1)(b) the phrase ["immediately before the commencement date"] must have been intended toserve the former purpose, that is the purpose of making the previous law applicable to a present day sentencing exercise. The Court must sentence today on the basis of the law which previously applied. [92] There is no notional sentencing on the day before the SentencingAct came into force. The sentencing takes place on its actual date. The only retrospective element is that the law to be applied is the law as it stood on the day before the commencement date. In short, for the purposes of s 4(2), all steps (offending, conviction and sentence) are to be treated as taking place on the same day. For the purposes of s 153(1)(b) all these steps are9 Mist v R, above n 5, at [5], [62], [88] and [107].treated as happening on their actual dates. The only change is that instead of applying the law which is in force on the sentencing date, the Court is directed by a savings provision [s 153(1)(b)] to apply the law which previously applied.(footnotes omitted)[22] That approach accords with the approach Nicholson J took in imposing preventive detention. When he committed the 1994 rape, Mr Katipa:(a) was "not less than 21 years of age". He was, in fact, 29 years old (hewas born on 16 December 1965); and(b) had offended against s 128(1) of the Crimes Act 1961 — sexual violation by rape.10[23] Thus Mr Katipa was eligible for preventive detention at the time he committed the 1994 offence. He could have been sentenced to preventive detention. That is what distinguishes this case from Mist. Mr Mist was not 21 years of age at the time of the offending for which he was sentenced. He therefore could not be sentenced to preventive detention at the time he committed those offences. In contrast, in the present case the correct approach for Nicholson J, as explained by Tipping and Blanchard JJ in Mist, was to sentence Mr Katipa on the basis of all relevant information known to the Court at the time of sentencing. That included the 2002 rape. As outlined by Tipping and Blanchard JJ in [69] of their judgment inMist, the sentencing Court was satisfied "that it both could and would havesentenced [Mr Katipa] to preventive detention under the law which appliedimmediately before the commencement date [of the Sentencing Act]".[24] Reinforcing the correctness of that approach are the following four points. First, that approach accords with the well established practice that a court sentences an offender on the basis of all relevant information known to the court at the time of sentencing. For example, in R v McGee, dealing with a Solicitor-General's10 There is no issue about any increase in sentence for Mr Katipa's offence of rape. The maximumsentence, pursuant to s 128B(1) of the Crimes Act 1961, was increased from 14 to 20 years imprisonment as from 1 September 1993 by s 2 of the Crimes Amendment Act (No 2) 1993. It has remained unchanged ever since.application for leave to appeal where the offender had not been sentenced to preventive detention, this Court observed:11 [The Solicitor] submitted that once the statutory prerequisite of twoqualifying offences has been met, the whole offending history can andshould be taken into account. That is clearly correct More recently, in R v DST, again dealing with preventive detention, Whata J observed:12 having established jurisdiction in terms of s 75(4), I am able to take into account all of your sexual offending, both prior and subsequent to the offending against [the victims], as it necessarily forms part of the factual matrix in the assessment of the risk presented by you to the community and its members.[25] Although applying that approach to Mr Katipa requires taking into account the 2002 rape, in other cases it could operate to the benefit of the offender being sentenced. For example, if some mitigating factor(s) had occurred or emerged between the date of the offence and the date of sentencing, then the court is required to take that factor(s) into account.[26] Secondly, in determining the appropriate determinate sentence for Mr Katipa, Nicholson J factored in the 2002 rape. He explained that in the following passages in his sentencing remarks:13[72] If I were deciding the appropriate determinate term of imprisonment for the 1994 offending without consideration of the 2002 offending, I wouldfind a starting point of eight years' imprisonment for the sexual violation byrape offence. To this I would add three years' imprisonment for theaggravating factors relating to that offence, as stated earlier. From theresultant 11 years' imprisonment, I would deduct only one year'simprisonment for the only mitigating factor of the guilty plea because it was not made until the morning of the trial. This would result in an effectivedeterminate sentence of ten years' imprisonment for the 1994 sexualviolation by rape offence.[74] However, the appropriate determinate sentence of imprisonment for the 1994 offences must allow for the additional factors arising from the 200211 R v McGee (1995) 13 CRNZ 108 (CA) at 112.12 R v DST [2014] NZHC 955 at [72].13 Sentencing notes, above n 1.offending, but must not result in a total period of imprisonment wholly out of proportion to the gravity of the overall 1994 and 2002 offending.[75] Having regard to all the now available relevant information relating to those two series of offences which I have described earlier, I consider thatthe appropriate cumulative term to be added to the 11 years' imprisonmentsentence for the 2002 offending would be six years' imprisonment, makingan effective resultant term of imprisonment for both those series of offencesof 17 years' imprisonment.[27] We understood Mr Speed to accept that approach to fixing a determinatesentence for Mr Katipa. So Mr Speed's argument involves factoring in the 2002 rape in fixing an appropriate determinate sentence but ignoring it in considering whether imposition of a sentence of preventive detention is required. Both upon sentencing in 2005. The inconsistency involved in that suggests error.[28] Thirdly, and more specifically, the approach accords with the purposes and principles of sentencing as they are set out in ss 7–9 of the Sentencing Act. We mention particularly:(a) s 7(1)(g) — the purposes for which a court may sentence an offenderinclude "to protect the community from the offender";(b) s 8(h) — in sentencing an offender the court "must take into accountany particular circumstances of the offender that mean that a sentence that would otherwise be appropriate would, in the particular instance,be disproportionately severe". This principle encompassescircumstances that have arisen since the offending; and(c) s 9(2) — to the extent they are applicable in the case, the court must take into account as mitigating factors the age of the offender, any remorse shown by the offender or anything described in s 10 of the Act (offers or agreements to make amends) or time spent on bail with an electronic monitoring condition. All these matters are to be assessed as at the time of sentence.[29] Fourthly, but no less cogently, the purpose of preventive detention is protection of the community. That was expressly stated in s 75(2) of the Criminal Justice Act, and it is similarly stated in s 87 of the Sentencing Act:(1) The purpose of preventive detention is to protect the community from those who pose a significant and ongoing risk to the safety of its members.[30] Any need to protect the community, and any risk to the safety of members of the community, is to be assessed at the time of sentencing on the basis of all relevant information known to the court. In considering any need for preventive detention, it is unthinkable that the court should be required to take no cognisance of an offence or offences (particularly if serious) for which the person being sentenced has been convicted. But, on the approach advocated by Mr Speed, Nicholson J was required to ignore Mr Katipa's 2002 rape. That cannot be correct, and we are satisfied that itis not the approach mandated by the applicable legislation.Result[31] The application for an extension of time to appeal is granted.[32] The appeal against the sentence of preventive detention is dismissed.Solicitors:Crown Solicitor, Manukau for Respondent