TAWHAI v R [2023] NZCA 444

TAWHAI v R [2023] NZCA 444 [14 September 2023]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA229/2022[2023] NZCA 444BETWEEN WILLIAM TAWHAIAppellantAND THE KINGRespondentHearing: 18 July 2023Court: Gilbert, Lang and Woolford JJCounsel: A C Cresswell for AppellantM J Lillico for RespondentJudgment: 14 September 2023 at 9.30 amJUDGMENT OF THE COURTA The appeal is allowed.B The sentence of preventive detention with a minimum period ofimprisonment of five years is set aside. A sentence of three years'imprisonment with a minimum period of imprisonment of two years issubstituted.____________________________________________________________________REASONS OF THE COURT(Given by Gilbert J)[1] Mr Tawhai, now aged 56, pleaded guilty to two charges of assault on a personin a family relationship (his former partner) and one charge of wounding with intentto injure her. Peters J considered that the appropriate finite sentence for this offendingwould be three years' imprisonment with a two-year minimum period of imprisonment(MPI).1 However, the Judge concluded that in order to protect the community fromMr Tawhai a sentence of preventive detention should be imposed with an MPI offive years.2[2] Mr Tawhai now appeals against his sentence.The facts[3] The Judge summarised the facts of the offending as follows:[6] At about 7 pm on 8 November 2020, [Mr Tawhai] and[the complainant] were in her car. [Mr Tawhai and the complainant] had beenin a relationship for about a year, but apparently had recently separated.[Mr Tawhai was] driving, and [he] asked [the complainant] to go for a walkto talk about [their] relationship and why it had cooled. [The complainant]did not wish to and asked to be driven home.[7] Unhappy with this response, [Mr Tawhai] drove off at speed.[The complainant] asked to get out but [Mr Tawhai] began punching her armsand shoulders whilst [he was] driving. [Mr Tawhai] also began abusing[the complainant] verbally. When she tried to get out of the car, [Mr Tawhai]grabbed her clothing, around the neck, to stop her.[8] [Mr Tawhai] then drove on and parked and dragged [the complainant]out of the car. When she managed to get back into the car, [Mr Tawhai] leanedin and punched her repeatedly in the face with a clenched fist, at least six orseven times. [Mr Tawhai] did this with such force that one of her teeth fellout. When she again tried to get out of the car, [Mr Tawhai] grabbed her byher hair and pulled her out. Eventually [Mr Tawhai] stopped [his] attack anddrove [the complainant] home.[9] The result of all of this physical violence was that [the complainant]lost a tooth and, in her victim impact statement, she says that several of hertop teeth were pushed up into her gums and she is having ongoing dentaltreatment. She was terrified, her right eye socket and left finger werefractured, she suffered bruising to her head and torso, and she had a swollenand black right eye.Criminal history[4] Mr Tawhai has a number of convictions for violent offending against womenwith whom he has been in an intimate relationship. He was first imprisoned as anadult at the age of 22, receiving three months for common assault. Successive terms1 R v Tawhai [2022] NZHC 998 [Sentencing judgment] at [38]–[39].2 At [84].of imprisonment for violent offending have been imposed over the years. His age atthe date of sentencing is shown below:(a) Age 29 — two years for male assaults female (x 3).(b) Age 30 — two years for assault with intent to injure (x 2).(c) Age 37 — five years for multiple offences committed over the periodfrom February 2002 to December 2004, including common assault,male assaults female (x 2), contravening a protection order (x 3),assault with a blunt instrument, threatening to kill/cause grievousbodily harm (x 2), aggravated assault, assaulting police and woundingwith intent to cause grievous bodily harm.(d) Age 41 — 10 years for rape.(e) Age 51 — 13 and a half months for assault on a person in a familyrelationship and contravening a protection order.Sentencing judgment[5] The Judge considered there were four aggravating features of the offending:3(a) It involved a prolonged and unprovoked attack.(b) The serious injuries inflicted, including to the complainant's head.(c) The complainant's comparative vulnerability because she was nophysical match for Mr Tawhai.(d) The serious adverse impact on the complainant, both physically andmentally.3 At [24].[6] Taking these factors into account, the Judge considered that an appropriatestarting point for a finite sentence would be between three years and nine months' andfour years' imprisonment.4 The Judge would have applied an uplift of nine months forprior offending.5 From that starting point, the Judge would have allowed a 15 per centdiscount for personal mitigating factors outlined in a detailed cultural report.6The Judge would have allowed a further discount of 20 per cent for the guilty pleas.7Applying these discounts, the Judge stated that the indicative finite sentence wouldhave been three years' imprisonment and she would have imposed a two-year MPI.8[7] The Judge then turned to consider whether a sentence of preventive detentionwas required. She acknowledged this was "an extremely difficult decision".9[8] The Judge received reports from Dr Sharma, a clinical psychologist, andDr Jacques, a forensic psychiatrist. Taking account of these reports and Mr Tawhai'scriminal history of violence, the Judge was satisfied he would be likely to commitanother qualifying violent offence if he was released at the expiry date of the finitesentence that would otherwise be imposed.10 She found that Mr Tawhai's criminalhistory disclosed a clear pattern of serious offending, particularly violence againstwomen with whom he is in a relationship.11[9] The Judge noted the efforts Mr Tawhai had made to address the causes of hisoffending — a six-month violence treatment group course in April 1999, a mediumintensity rehabilitation programme in 2007, a three-month drug and alcohol course in2016, a Man Up programme at the time he was remanded in custody for the indexoffending, and he was receiving individual counselling sessions provided throughAccident Compensation Corporation at the time of sentencing.124 At [24].5 At [25].6 At [34].7 At [37].8 At [38] and [39].9 At [43].10 At [51].11 At [64].12 At [69]–[73].[10] However, the Judge also noted that Mr Tawhai had failed to take up otherrehabilitative opportunities that had been offered to him. In particular, the sentencingremarks of Judge Crosbie in 2008 recorded that Mr Tawhai had refused to undertakea violence prevention programme at Rimutaka Prison and an intensive rehabilitationprogramme at Moana House in Dunedin.13[11] The Judge observed that the only course Mr Tawhai participated in after he wasimprisoned for rape in 2008 until he was released in 2018 was the drug and alcoholcourse in 2016. The Judge considered it revealing that this three-month course wasall Mr Tawhai did to address the causes of his offending in that 10-year period.14[12] This was pivotal to the Judge's decision to impose a sentence of preventivedetention rather than a finite sentence. Although the Judge accepted that Mr Tawhaiwishes to change and should be given assistance to do so, she said that preventivedetention would not preclude this. On the contrary, preventive detention would bemore likely to incentivise Mr Tawhai to confront and change his behaviour than a finitesentence. The Judge was concerned that if she imposed a finite sentence, Mr Tawhaiwould simply wait it out as he had done before, and nothing would change.15The Judge acknowledged the principle in s 87(4)(e) of the Sentencing Act 2002 that alengthy, determinate sentence is preferable if this provides adequate protection forsociety.16 However, the offending was not sufficiently serious to attract a lengthydeterminate sentence and so that was not an option.17[13] The Judge concluded that Mr Tawhai will continue to pose a significant andongoing risk to the safety of the community until he changes his "response to eventsor people who displease [him]". She did not consider change would be likely to occurwith a finite sentence, even allowing for the possibility of an Extended SupervisionOrder (ESO).1813 At [75].14 At [76].15 At [78].16 At [79].17 At [80].18 At [82].Submissions[14] Ms Cresswell, for Mr Tawhai, submits that the Judge erred in concluding thatMr Tawhai would simply wait out any finite sentence and nothing would change.This does not align with the Judge's acceptance of the views expressed by the expertsand the s 27 report writer that Mr Tawhai is motivated to change. Ms Cresswell arguesthat there was very little information before the Court as to why Mr Tawhai haddeclined to participate in other programmes and the Judge should not have placed somuch weight on this factor based on comments made by Judge Crosbie in hissentencing remarks 15 years ago. She submits that those comments are not reflectiveof Mr Tawhai's motivation to change at the time of sentencing for the index offending.[15] Ms Cresswell says that Mr Tawhai's case can be distinguished from thosewhere the offenders exhibit a total lack of remorse or insight, or who have gone ontooffend despite having received appropriate treatment, or who simply refuse to attendtreatment programmes. She notes that Dr Jacques considered Mr Tawhai was likelyto engage in offence related therapy and treatment for his own trauma and abuse.[16] Ms Cresswell emphasises that Mr Tawhai has had no prior warning about theimposition of preventive detention if he were to reoffend. This has been an importantfactor in other cases such as R v Parahi and R v Nicholls.19[17] Further, Ms Cresswell argues that the Judge gave insufficient consideration tothe prospect that an ESO could provide adequate protection for the community.She referred to other cases where the prospect of an ESO being imposed on suitableterms was an influential, if not decisive, factor in declining to impose preventivedetention.20[18] Mr Lillico, for the Crown, emphasised that it is not for this Court to re-makethe sentencing decision; in the absence of error, the Court cannot interfere.He emphasised the pattern of intimate partner violence, which he described asentrenched. Each time he was released after serving a finite sentence, Mr Tawhai very19 R v Parahi [2005] 3 NZLR 356 (CA) at [77]; and R v Nicholls [2020] NZHC 824 at [46].20 Referring to R v Underson [2022] NZHC 141 at [112]–[113] and R v Parker [2021] NZHC 439 at[50].shortly offended again. Mr Lillico notes that the rape occurred on 13 October 2007,when Mr Tawhai was on day release while serving a lengthy sentence of imprisonmentimposed in December 2004. Mr Tawhai served the entirety of his 10-year sentencefor the rape offending. He was released on 28 May 2018 and was subject to post-release conditions until 27 November 2018. He offended again in February 2019 byassaulting his new partner. He was sentenced to 13 and a half months' imprisonmentfor this offending and was released in September 2019. He then formed a relationshipwith the complainant and committed the index offending a little over a year later, inNovember 2020.[19] Mr Lillico says that the treatment Mr Tawhai has received has either beenineffectual or he has refused it. He drew particular attention to the following passagein the report from Dr Jacques:Having reviewed the work [Mr Tawhai] has completed through theDepartment of Corrections it is notable that his attitudes towards interventionshave been negative at times and he has chosen to prioritise other activity overoffence related work. He seemed more amenable to working on his anger andrelationship programmes, but these were through controversial programmessuch as Man Up. According to the available information and [Mr Tawhai's]self-report, he has not completed any work on his own trauma and difficulties.These are important areas of intervention and of relevance in his ownoffending against women. He demonstrated long standing victim blaming,and no victim empathy, and he linked this to being abused and exploited bywomen in the past. He lacks trust in women.[20] Mr Lillico submits that an ESO will only make a difference in borderline cases.He contends that the relationship counselling Mr Tawhai is receiving will not addressthe problems he has and an ESO would not be effective to keep possible future partnerssafe.Assessment[21] A sentence of preventive detention, where an offender is imprisonedindefinitely, sits at the top of the sentencing hierarchy. The greatest care should beexercised in determining whether to impose such a sentence. In particular, thesentencing judge must be satisfied by cogent evidence that a compelling case has beenmade that no less restrictive means are available to adequately protect the public fromthe risk posed by the offender, other than by indefinite deprivation of their liberty.[22] Section 87(4) of the Sentencing Act requires the court, when consideringwhether to impose a sentence of preventive detention, to take into account the principlethat a lengthy determinate sentence is preferable if this provides adequate protectionfor society. This provision, taken together with the requirement in s 89 that an MPI ofat least five years must be imposed, suggests that Parliament did not intend thatsentences of preventive detention would generally be an appropriate response tooffending that is not sufficiently serious to justify a lengthy determinate sentence ofimprisonment, and even less so when the entire term of the finite sentence would besignificantly less than the minimum five-year MPI requirement.[23] We have some reservations about the appropriateness of attempting to justifyimposing preventive detention, certainly not without cogent evidence, on the assumedbasis that it will act as an incentive for the offender to undertake or submit to treatment.There is no mention of this as a relevant consideration in the Sentencing Act.[24] Mr Tawhai is of Ngāti Maniapoto and Ngāpuhi descent. A consistent themethat emerges from all of the reports is that Mr Tawhai had a seriously disadvantagedbackground. Extreme violence and serious alcohol abuse were normalised throughouthis formative years. He suffered regular and significant physical abuse at the handsof his father from an early age. At times he was unable to attend school because of hisinjuries. He also witnessed his father giving his mother regular beatings. From theage of about seven he was sexually abused by more than one perpetrator.[25] Mr Tawhai first ran away from home at the age of eight. He was placed in aboys home at the age of 10 or 11 where he says he suffered further physical and sexualabuse. Mr Tawhai ran away from home for the last time and left school at the age of13. He then lived on the streets with a group of other children and adults and starteddrinking alcohol and using cannabis. He was only 14 when he received his firstconviction, which was for burglary. His criminal pathway was sadly predictable.[26] The expert reports confirm that Mr Tawhai's history of violent offending andhis difficulty maintaining normal, healthy intimate relationships were causallycontributed to by the significant abuse he suffered and witnessed during his upbringingand the resultant trauma which remains largely unresolved.[27] However, there is some cause for optimism. From all accounts, Mr Tawhainow has some insight into his offending, and he has expressed remorse for his actions.Dr Sharma states that Mr Tawhai recognises his need for professional help to copewith his traumatic experiences and wishes to engage in treatment. She considers hehas the intellectual capacity to respond to appropriate treatment. Dr Jacques was of asimilar view, expressing the opinion that Mr Tawhai is likely to engage in appropriateoffence-related therapy and treatment to address his own trauma and abuse.[28] The Judge said she had no doubt that if a finite sentence was imposed,Mr Tawhai would simply wait it out, not engage in any rehabilitative treatment, andnothing would change.21 We are not quite so pessimistic. The Judge's concern needsto be considered in the light of the expert views of both Dr Sharma and Dr Jacquesthat Mr Tawhai is willing to engage in appropriate treatment and is likely to do so.Further, Mr Tawhai has in fact taken a number of positive rehabilitative steps whileincarcerated. He has gained qualifications in painting and cooking and has expressedinterest in eventually starting his own business. He has also participated in culturalprogrammes and become proficient in te reo. This has apparently given him a senseof purpose as a grandfather and father (he has four children). Dr Sharma explainedthat this gives Mr Tawhai hope and increased motivation to make positive changes:On the positive side, Mr Tawhai has the intellectual capacity to respond totreatment. During the course of his incarceration he has participated incultural programs and has become fluent in Te Reo. This has allowed him tofeel that he has purpose as a grandfather and father and [he] would like toimpart his knowledge about his Tikanga to the younger generation. At thispoint his children and grandchildren are the key emotional anchors whichmotivate him to want to change. It is possible that him being supported tomaintain regular contact with his children and grandchildren might increasehis hope and motivation to make positive changes in his life.[29] It appears Mr Tawhai may now be able to look forward to the prospect ofreconnecting with his whānau and receiving some support, particularly from his eldestson and daughter. Both expressed willingness to reconnect with their father and assistwith his rehabilitation. Mr Tawhai has apparently also been offered accommodationand support from a friend, a 79-year-old kaumātua, who wishes to help him.21 Sentencing judgment, above n 1, at [78].[30] Another relevant factor is Dr Jacques' opinion that the particular riskMr Tawhai poses is likely to reduce as he ages. As noted, he is now aged 56.[31] The Judge mentioned the possibility of an ESO, but she was satisfied that thiswould not mitigate the risk Mr Tawhai poses to the safety of the community.However, the Judge received little assistance on this issue and did not explain why anESO would not be effective to mitigate the risk, irrespective of the terms that could beimposed:[81] I could impose a finite sentence, in which case the Department ofCorrections might well seek an [ESO] on your release.[82] However, having taken into account all of the relevant matters, I donot propose to do so. I am satisfied that you will continue to pose a significantand ongoing risk to the safety of the community until you change yourresponse to events or people who displease you. I do not consider this likelyto occur with a finite sentence, even with the possibility of an [ESO].[32] Dr Sharma did not address the question of whether an appropriately structuredESO could adequately mitigate the risk Mr Tawhai poses to the community.She simply stated that "the community would be best protected if Mr Tawhai servesan indeterminate sentence, whereby he would have the benefit of ongoing supervisionfor the rest of his life". That may be so, but the imposition of an indeterminatesentence of preventive detention cannot be justified merely on the basis it wouldprovide the "best" protection for the community.[33] Dr Jacques briefly addressed whether an ESO could mitigate the relevant riskand appears to have considered that this would be a viable and effective option.He stated that an ESO "alongside careful multiagency release planning may offerprotection of potential victims upon release".[34] We intend no criticism of Dr Sharma or Dr Jacques in making the observationthat it is unfortunate that the Judge was not given greater assistance as to whether theless restrictive option of a finite sentence coupled with the likelihood of an ESO onsuitable terms would not sufficiently mitigate Mr Tawhai's risk. In Chisnall vAttorney-General, the evidence of Ms Rachel Leota, the National Commissioner ofthe Department of Corrections, was recorded as being that rates of reoffending of aserious nature for those subject to an ESO were "generally low", as is borne out by thestatistics collected by the Department over a number of years and set out in thejudgment.22 Given the potential scope and nature of the conditions that can be imposedwith an ESO, it is not clear to us why this less restrictive measure could not adequatelymitigate the risk Mr Tawhai poses, assuming this risk remains sufficiently elevated tojustify an ESO at the time of his release after serving a finite sentence.[35] We have come to the conclusion that there is an error in the sentence and adifferent sentence should be imposed.23[36] In summary, the Judge imposed preventive detention for three reasons.First, she was concerned Mr Tawhai would not otherwise engage in rehabilitativetreatment and it was necessary to impose preventive detention to incentivise him to doso. Secondly, the index offending was not sufficiently serious to justify the impositionof a lengthy determinate sentence. Thirdly, an ESO would not sufficiently mitigatethe risk, irrespective of the conditions that might be imposed.[37] For the reasons already given, we have come to a different view on whether asentence of preventive detention is required to incentivise Mr Tawhai to engage in thetreatment he needs. We agree with the Judge that a lengthy determinate sentence isnot available because the offending is not sufficiently serious, even with the significantuplift applied for prior offending. However, this tells against the imposition of asentence of indefinite duration. The selection of an indeterminate sentence and anMPI of five years in preference to a finite sentence of three years and an MPI oftwo years raises a concern that the sentence may be viewed as being disproportionatelysevere. As to the third reason, the limited evidence available suggests thatappropriately tailored conditions of an ESO ought to be effective in mitigating the riskMr Tawhai poses to the safety of the community. There is in fact no evidence to showthat this less restrictive outcome must be rejected in favour of an indeterminatesentence.22 Chisnall v Attorney-General [2021] NZCA 616, [2021] 2 NZLR 484 at [47].23 Criminal Procedure Act 2011, s 250.Result[38] The appeal is allowed.[39] The sentence of preventive detention with an MPI of five years is set aside.A sentence of three years' imprisonment with an MPI of two years is substituted.Solicitors:Crown Solicitor, Whangārei for Respondent