In the Court Of Appeal of New Zealand
CA702/2009
[2010] NZCA 120

BETWEEN	THE QUEEN
Appellant

AND	WATTIE ADOLF KAHU
Respondent

Hearing:	18 March 2010

Court:	O'Regan, Ellen France and Rodney Hansen JJ

Counsel:	K A L Bicknell and J E Mildenhall for Appellant
J G Rowan QC for Respondent

Judgment:	31 March 2010 at 4 pm

JUDGMENT OF THE COURT	
A	Leave to appeal is granted.
B	The appeal is dismissed.
____________________________________________________________________

REASONS OF THE COURT
(Given by Rodney Hansen J)

Introduction
[1]	Mr Kahu has spent 24 of the last 26 years of his life in prison.  Twenty-four hours after he was last released in March 2007 he assaulted his partner and, when the police were called, he presented a firearm at them and fled.  On his appearance for sentence on charges of assault, escaping from custody and using a firearm to resist arrest, he was sentenced by Mallon J to six years imprisonment with a minimum period of imprisonment of four years.  The Judge declined the Crown’s application to sentence Mr Kahu to preventive detention.
[2]	The Solicitor-General seeks leave to appeal against the sentence on the grounds that it is manifestly inadequate and wrong in principle.  It is submitted that in deciding against a sentence of preventive detention the Judge took into account irrelevant considerations and erred in the weight to be given to mandatory factors.  Ms Bicknell argued that a finite sentence does not provide adequate protection for the community.
Further background
[3]	Mr Kahu is now aged 43.  He spent his early years in a seriously dysfunctional family environment.  He was the victim of violence and sexual abuse.  He was removed into the care of Social Welfare at the age of 11 and spent time in various state institutions.  He left school at the age of 14 years without qualifications.  He first appeared before the courts at the same age.  By his sixteenth birthday he had accumulated 22 convictions.  That has now risen to 58.  
[4]	He was first sentenced to imprisonment in 1982 at the age of 15.  Within a short time of his release, he had reoffended and was back in prison again.  A pattern had begun that has been repeated frequently since.  It has been associated with an escalation in the seriousness of his offending.  Sentences of four years, two years, six years and four years six months in 1984, 1986, 1988 and 1994 respectively were for clusters of offending involving violence and dishonesty.
[5]	Soon after his release in 1996, Mr Kahu committed another series of violent offences.  They involved the use of weapons – an axe, a gun and knives.  In the most serious incident, two occupants of a house Mr Kahu burgled suffered serious stab wounds when he attacked them with two carving knives he had taken to the premises.  He pleaded guilty to multiple counts of kidnapping, assault with a stabbing or cutting instrument and to charges of wounding with intent to cause grievous bodily harm and threatening to kill or do grievous bodily harm.  He was sentenced by Paterson J to a total of 12½ years imprisonment. 
[6]	In the course of his sentencing remarks, the Judge said:
... You are very lucky you are not facing more serious charges today, you are also lucky that for (sic) a quirk in the Statute, you are not eligible for preventive detention because the events I have only briefly recounted, clearly indicate that you are a danger to the public.
[7]	Mr Kahu was released on 30 October 2006.  He reportedly had difficulty complying with conditions of his release.  According to a report by Ms Christina Fon of the Department of Corrections, prepared under s 88 of the Sentencing Act 2002, he re-established contact with gang associates, relapsed to substance use and was arrested on wilful damage charges.  He was recalled by the Parole Board in early February 2007.
[8]	Mr Kahu was released for a second time on 19 March 2007.  The day after his release he went to the headquarters of the Black Power gang in Wanganui where he consumed alcohol and smoked methamphetamine.  After picking his partner up from work, he returned to her home where he made sexual advances to her.  She told him she did not want to have sexual intercourse.  He became insistent and was aggressive and abusive when she tried to get away.  He ended up grabbing her by the throat and squeezing her around the neck, although not with enough force to stop her breathing.  She managed to get away from him and he allowed her to leave the house.  She went to the police and made a complaint.

[9]	The police visited the address and spoke to Mr Kahu through an open window.  He was later advised he was under arrest and that he was required to accompany the officers to the police station.  He said he would get changed and come outside but left by a rear door and fled before he could be apprehended.
[10]	Early the following morning the police returned to the house.  They located Mr Kahu.  He pointed a double-barrelled sawn-off shotgun at the two police constables before again fleeing the address.  Later that morning he turned himself in to the police.
[11]	Mr Kahu pleaded guilty before trial to the charge of escaping from custody and pleaded guilty to the remaining charges in the course of his trial in the District Court.  A later application to vacate those pleas was withdrawn.  The Crown sought a sentence of preventive detention.  Nine of Mr Kahu’s previous convictions since 1983 are for offences that would qualify as violent offences under s 87(5)(b) of the Sentencing Act 2002. 
Sentencing of Mallon J
[12]	Mallon J comprehensively reviewed the factors which, by s 87(4), the Court is required to take into account:
(a)	Pattern of offending
[13]	The Judge noted there was a pattern of violent offending involving weapons and that offending mostly occurred within a short time following Mr Kahu’s release from prison.  The time between release and offending ranged between the one day which elapsed in 2007 and 155 days.  She noted that weapons had been used or their use threatened in association with dishonesty offending, kidnapping and home invasion.  She said the two most serious bouts of offending involved strangers.
(b)	Serious harm to the community
[14]	Mallon J said Mr Kahu’s previous offending had involved serious harm to the community.  She noted in particular the serious psychological effects on the victims of the offending for which Mr Kahu was sentenced in 1996.  She said the present offending was “considerably less serious”.  The assault was not prolonged, it involved no physical injury and Mr Kahu’s partner was not prevented from leaving.  The firearm was presented but not discharged and Mr Kahu surrendered to the police. 
(c)	Risk of reoffending
[15]	Mallon J noted Ms Fon’s findings that, by reference to static and dynamic features, Mr Kahu is at high risk of reoffending.  Ms Fon had reported that further offending is likely to involve a weapon, to be committed against an unknown person during the commission of a home invasion or towards the police during attempts to avoid detection and is likely to involve persons being detained against their will.  She had also said that further violent offending is likely to occur extremely rapidly following the release from prison.  
[16]	The findings of the psychologist who provided the second report, Mr Peter Robertson, a senior clinical psychologist with the Capital and Coast Central Regional Forensic Mental Health Service, were less pessimistic.  The Judge quoted the following passage from his report:
In summary then it is clear from this assessment and past risk assessments that Mr Kahu is a member of the group of violent offenders who have a high likelihood of reoffending violently within a short period of time.  Given his past behaviour it is likely that violence would occur when intoxicated, in the context of his intimate relationship or instrumentally or impulsively in the context of a criminal offence and would be likely to involve weapon use.  While the historical factors that form part of his risk profile will not change, the dynamic factors could and have responded to appropriately tailored packages of treatment, supervision and management.  It was clear during the assessment process that there is promise in the dynamic HCR risk factors including lack of insight, negative attitudes, active impulsivity and unresponsiveness to treatment and given the right conditions these could and would change further.  It also needs to be noted that many of the HCR risk management factors will be reduced with the formulation of sound integration plans that will need to be primarily the responsibility of the Department of Corrections’ Reintegration and Probation services rather than of Mr Kahu himself.
(d)	Efforts to address the causes of the offending
[17]	Mallon J noted Mr Kahu had been offered a variety of interventions.  He had declined to take part in some of them but in other respects he had actively sought therapeutic input.  Some of the programmes had been successful.  The Judge noted that Mr Kahu’s “psychological skills” and learning difficulties had been barriers to his successful participation in other programmes.
[18]	The Judge referred to Ms Fon’s view that the recent offending suggested that Mr Kahu’s observed behavioural and attitudinal changes from the interventions were largely superficial and easily undermined.  Ms Fon thought it possible that he had exhausted the extent of the programmes and expertise that the Department of Corrections could offer.  However, the Judge noted that Ms Fon had earlier commented that a strategy to mitigate Mr Kahu’s literacy difficulties would assist him to avail himself of intensive specific treatment.  The Judge also noted that Ms Fon had agreed with Mr Kahu’s self-assessment in October 2008 that he had a 50 per cent motivation to avoid offending.  Although that self-assessment had improved immediately prior to sentencing, Ms Fon saw the catalyst for change as the impending sentence and the current ill health of Mr Kahu’s partner.  She said it did not warrant any change to her assessment of the risk of reoffending. 
[19]	Mr Robertson thought treatment programmes could be more effective if they were tailored to Mr Kahu’s special needs.  The Judge noted that Mr Robertson had identified two factors that may have been obstacles to effective treatment.  She quoted the following passage from his report:
Mr Kahu has been offered a variety of interventions commensurate with his level of risk and treatment needs and therefore it could be argued that containment might be the only effective means of dealing with his level of risk.  However, there are two major factors that indicate that classing him as “treatment resistant” would be premature.  Firstly, the hours of such interventions have been disproportionately small considering the amount of time he has spent in prison and the extent of his dysfunction.  Secondly, there are several major responsivity issues that if more fully integrated into his treatment could not only render interventions more accessible and effective but also significantly decrease the dynamic individual and lifestyle factors that place Mr Kahu in a high risk category.  These potentially treatment interfering and destroying factors include: his significant learning difficulties, difficulties with regulating his emotions and interacting with others and the need for practical and culturally appropriate individual and group rehabilitation programmes.
Overall assessment
[20]	The Judge expressed concern about Mr Kahu’s drug use and his association with the Black Power gang.  She said that had his offending been of the kind he committed in 1996, she would have considered a sentence of preventive detention appropriate.  In the end, she decided that the overall picture did not “displace the preference the statute expresses for a finite sentence if at all possible”.  She identified the following factors as supporting that conclusion at [51]:
a)	The offending on this occasion, while serious, was not of the horrific nature for which you received the 12 year, six month terms;
b)	You have actively participated in a number of the interventions made available to you and appeared to have made some progress.  That indicates that a preventive detention sentence is not necessary to provide the incentive that you actively participate in programmes that are offered to you;
c)	You have demonstrated that your progress was insufficient because you immediately reoffended, and that further programmes are needed to be more specifically targeted, but your offending was not of a kind that demonstrates that you have made no gains whatsoever;
d)	I note in particular that your partner was able to remove herself from the situation and was not physically harmed, that the use of the firearm was to intimidate the police to get away and that you gave yourself up the next morning.
Submissions
The Crown
[21]	Ms Bicknell submitted that the Judge erred in giving excessive weight to the first two of the factors she relied on in deciding that a finite sentence would provide adequate protection for society, namely, the less serious nature of the most recent offending and the presence of positive signs of rehabilitation.
[22]	Ms Bicknell submitted that the Judge misdirected herself in focusing on the less serious nature of the recent offending.  She submitted that the proper focus should have been on Mr Kahu’s history of serious violent offending which characteristically involved the use of weapons and threatened or actual physical harm.  She reminded us that the entrenched pattern of offending was marked by rapid recidivism and was often associated with alcohol or drug abuse.  
[23]	Ms Bicknell referred us to decisions of this Court emphasising that when exercising the discretion under s 87 it was necessary to have regard, not just to the instant offending, but to the totality of the offending – R v McGee and R v Rowe.  She relied on the following passage in R v Dea:
Where the facts indicate that preventive detention may be appropriate, the court’s focus is not on the impact of the present offending but rather is on whether the offending, when seen in context, demands a special reaction for the protection of a society or a group within society.
[24]	In support of her submission that the Judge placed too much weight on Mr Kahu’s participation in rehabilitative programmes, Ms Bicknell pointed to Ms Fon’s conclusion that he had only limited insight into the causes of his offending and tended to “externalise responsibility to persons, situations or states rather than acknowledge his contribution to his current situation”.  She placed particular emphasis on Mr Kahu’s failure to implement the relapse prevention skills he had been taught and to place himself in situations which he should know put him at high risk of reoffending.
[25]	Ms Bicknell submitted that this is not a finely balanced case.  Mr Kahu’s likely response to treatment is uncertain.  His recent offending indicates that he is currently either unwilling or unable to control his violent impulses.  A sentence of 

preventive detention is necessary in order to protect the community and would have the further benefit of providing Mr Kahu with an incentive to engage in treatment.
Defence
[26]	Mr Rowan QC submitted that when the Judge’s sentencing remarks as a whole are considered, it is clear that she did not misdirect herself.  She was entitled to give weight to the fact that the current offending was not as serious as much of Mr Kahu’s previous offending.  He pointed out that Mallon J recognised the need for him to urgently engage in literacy and violence prevention programmes and to her reference to the more optimistic assessment of Mr Robertson as to Mr Kahu’s likely response to further interventions.
[27]	Mr Rowan further submitted that a sentence of preventive detention would hamper Mr Kahu’s access to rehabilitation programmes.  He relied on the evidence of a Department of Corrections officer, filed for the purpose of the appeal, that a sentence of preventive detention would result in a security classification that would deny Mr Kahu access to some rehabilitation programmes and delay his participation in a violence prevention programme until shortly before his first appearance before the New Zealand Parole Board.  (Without objection from the Crown, we grant leave to admit this evidence.)
Decision
[28]	Jurisdiction to impose a sentence of preventive detention exists if the requirements of s 87(2) are met.  Section 87(2) provides:
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.
[29]	Mallon J did not expressly state that she was satisfied that Mr Kahu was likely to commit another qualifying offence if released at the sentence expiry date.  However, a finding that she had jurisdiction is implicit in her concluding remarks.  Her decision turned on the weight she attached to the factors in s 87(4) and, in particular, to her finding that in the circumstances of the case, the appropriate finite sentence would provide adequate protection for society.  This involves the exercise of discretion.  This Court will interfere with the decision only if it is shown to have been exercised on a wrong principle or is clearly wrong.
[30]	In our view, the Crown has failed to show that Mallon J erred in the exercise of her discretion.  She was entitled to give prominence to the less serious nature of the current offending provided, of course, that it did not affect a proper weighing of the pattern of serious offending disclosed by Mr Kahu’s history.  A balanced assessment of the risk he posed to the community necessarily required the Court to recognise that his most recent offending did not involve some of the most alarming features of his previous offending.
[31]	There is no indication that, in drawing a valid and relevant distinction between past and present offending, the Judge failed to give appropriate weight to the disturbing features of the current offending as well as what had gone before.  She said:
However, even if the offending is not particularly grave, the offending must be considered in the context of your overall pattern of offending, because the focus is on the risk you pose in the future.  In terms of the pattern, I note that the offending was soon after release, that you were on drugs, that it involved violence and a firearm.  There are therefore some similarities, but there are also differences.  In particular the offending was not motivated by money and did not involve strangers.  You did not cause any physical injury and did not have to be overpowered to bring an end to your offending.  You ceased it at your own accord.
[32]	The recent offending also offered support for the view that previous interventions had achieved positive, if limited, outcomes as the Judge noted.  While Mr Kahu had failed to avoid the gang associations and drug culture which had been identified as triggers of his violent behaviour, he showed an enhanced ability to control his responses.
[33]	This could be attributed to what was described by Mr Robertson as Mr Kahu’s relatively successful participation in treatment programmes and the efforts made by him and others involved in his rehabilitation.  Mr Robertson went on to say, in the passage quoted by the Judge set out in [16] above, that there is promise that some of the factors contributing to a high risk of reoffending could change.  These included lack of insight, negative attitudes, active impulsivity and unresponsiveness to treatment. 
[34]	In our view, Mr Robertson’s report provided solid grounds for the view that, provided the programmes made available to Mr Kahu are tailored to addressing those responsivity factors identified by Mr Robertson as impeding the effectiveness of treatment, there is a reasonable prospect of a positive response to treatment.  He concluded:
If Mr Kahu were to be offered interventions that fully integrate these individual factors thereby optimising chances of response to treatment, there would be two likely pathways for him.  If things go well he will be able to lead a life in a way that benefits both himself and society and refrain from future violent or other offending.  If on the other hand Mr Kahu remained unable to change his violent offending despite the implementation of an individually tailored programme fully integrating the above factors, the Court and Society at large would at least be assured that Mr Wattie Kahu has been provided with the best available rehabilitation and his choice to reoffend would not at that time have been made in the absence real alternatives.
Mr Kahu has many strengths that will help him to move his life on in a positive direction.  These include: the ability to engage well when he feels comfortable, a history of successful participation in programmes where his particular learning and psychological needs are able to be incorporated.
[35]	At the hearing, there was doubt as to the impact a sentence of preventive detention would have on the rehabilitative programmes available to Mr Kahu.  We gave leave to counsel to file memoranda addressing the issue.
[36]	The memorandum of the Crown quotes the Acting Director of Psychological Services, Department of Corrections, as advising that the criteria for entry into specialist treatment programmes, including alcohol and drug treatment programmes, are not based on sentence type and do not exclude those serving sentences of preventive detention.
[37]	Counsel for the appellant does not dispute this advice but reaffirms that a sentence of preventive detention affects prisoner classification and, in practice, may prevent or delay participation in rehabilitation courses.  We are asked to note, however, that in classifying prisoners for security purposes, assessors also take into account a prisoner’s behaviour, particularly compliance with prison rules, how settled the prisoner is into his or her sentence and the motivation of the prisoner to address his or her offending.
[38]	This advice tends to suggest that programmes targeted to Mr Kahu’s specific needs may be more readily available if a finite sentence is imposed.  However, it is unnecessary for us to attach any weight to that likelihood for the purpose of this appeal.  We are satisfied that the sentence imposed by the Judge was justified.  The Solicitor-General has not shown she erred in declining to sentence Mr Kahu to preventive detention.
Result
[39]	Leave to appeal is granted and the appeal is dismissed.

Solicitors: 
Crown Law Office, Wellington for Respondent