RARE v NEW ZEALAND POLICE [2017] NZHC 524

RARE v NEW ZEALAND POLICE [2017] NZHC 524 [22 March 2017]IN THE HIGH COURT OF NEW ZEALANDGISBORNE REGISTRYCRI-2017-416-3[2017] NZHC 524UNDER the Criminal Procedure Act 2011IN THE MATTER of an appeal against sentence pursuant tosection 250BETWEEN EDWARD HEMI RAREAppellantAND NEW ZEALAND POLICERespondentHearing: 21 March 2017Counsel: M A Terekia for AppellantM Mitchell for RespondentJudgment: 22 March 2017JUDGMENT OF THOMAS J[1] Mr Rare was found guilty and convicted at a Judge alone trial in the District Court at Gisborne1 on a charge of injuring with intent to injure,2 threatening to kill3and causing wilful damage.4[2] He was sentenced to three years and four months' imprisonment.5 He appeals against his sentence on the basis it is manifestly excessive. In particular, the starting point was too high, the uplift for accompanying charges and criminal history was too high, no discount was provided for time spent on restrictive EM bail, and a manifestly excessive cumulative sentence was applied for the remittance of his fines.1 New Zealand Police v Rare [2016] NZDC 23507.2 Crimes Act 1961, s 189(2) (maximum penalty five years imprisonment).3 Section 306(1)(a) (maximum penalty seven years imprisonment).4 Summary Offences Act 1981, s11(1)(a) (maximum penalty three months imprisonment or a fine not exceeding $2,000).5 New Zealand Police v Rare [2017] NZDC 290 at [7]–[8].Facts[3] The victim was at home with her young daughter. While in the shower she became aware of a group of men swearing and banging on her front door. The defendant and two other men were on her door step. When she opened the door thedefendant yelled that he was "gonna smash [her] head in" and "this is not the last time you'll see me". The men had an aggressive demeanour and the defendant, in particular, was threatening. This gave rise to the threatening to kill charge.[4] The defendant punched the victim two or three times in the head and throat.The victim's young daughter began screaming in the bedroom. The victim went to comfort her. The defendant followed her into the house. He ripped her t-shirt and again punched her twice in the head, this time while she was holding her daughter. This gave rise to the injuring with intent to injure charge.[5] The victim impact statement describes the victim's injuries as bruisingaround her neck and tender bruises around her head region. She had to go to hospital for assessment due to a prior head injury. The evidence noted by the Judge in the conviction decision also describes the victim having difficulty breathing immediately after pressure was applied to her throat.[6] The defendant then repeatedly punched holes in the walls of the hallway andthe victim's bedroom, which gave rise to the causing wilful damage charge.District Court decision[7] The District Court Judge adopted a starting point of two and a half years'imprisonment for the injuring with intent to injure charge. He considered the conduct fell within band two of Nuku.6 The aggravating features were vulnerability of the victim, as she lived alone, an attack to the head, premeditation, and multiple offenders. It was also a home invasion and there was a young child in the house at the time.6 Nuku v R [2012] NZCA 584.[8] The Judge uplifted the starting point by six months to take account of Mr Rare's six previous convictions and the accompanying charges. There was noguilty plea. The Judge did not allow any discount for remorse or consider time spent on EM bail. He considered any expression of remorse was a convenient one. A cumulative sentence of four months' imprisonment was imposed in substitution for$17,785.77 in unpaid fines.Standard on sentencing appeals[9] Section 250 of the Criminal Procedure Act 2011 governs sentence appeals from the District Court to the High Court. It provides:250 First appeal court to determine appeal(1) A first appeal court must determine a first appeal under this subpart in accordance with this section.(2) The first appeal court must allow the appeal if satisfied that—(a) for any reason, there is an error in the sentence imposed on conviction; and(b) a different sentence should be imposed.(3) The first appeal court must dismiss the appeal in any other case.[10] When a sentence is challenged as being manifestly excessive, the focus of the appellate Court is on whether the end result is correct, rather than the exact process by which it was reached.7 If the Court finds there is a material error affecting the sentencing process, the Court will then form its own view of the appropriate sentence.8 This allows the Court to undertake the sentencing exercise itself to determine whether the sentence was manifestly excessive.9[11] In sentencing an offender the Court must take into account that the offender spent time on EM bail.10 Mr Rare was on EM bail with a 24 hour curfew for four and a half months. It is not apparent from the file whether this was brought to the attention of the sentencing Judge. It was not referred to in the written submissions of7 R v Ripia [2011] NZCA 101 at [15].8 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30].9 At [32].10 Sections 9(2) and (3A).counsel then acting for Mr Rare. In any event, it has been raised now and it is something which should have been considered in sentencing. There was, therefore, a material error affecting the sentencing process and I will now form my own view of the appropriate sentence.Starting Point[12] The Judge placed this in band two of Nuku. The bands from Nuku are as follows:11(a) Band one: where there are few aggravating features, the level of violence is relatively low and the sentencing judge considers theoffender's culpability to be at a level that might have been betterreflected in a less serious charge, a sentence of less than imprisonment can be appropriate.(b) Band two: a starting point of up to three years' imprisonment will beappropriate where three or fewer of the aggravating factors listed at [31] of Taueki12 are present.(c) Band three: a starting point of two years up to the statutory maximum (either five or seven years, depending on the offence) will apply where three or more of the aggravating features set out in Taueki are present and the combination of those features is particularly serious. The presence of a high level of or prolonged violence is an aggravating factor of such gravity that it will generally require a starting point within band three, even if there are few other aggravating factors.[13] The Court gave the following guidance of evaluating aggravating factors:13[42] We emphasise that a sentencing judge needs not only to identify aggravating factors but also to evaluate the seriousness of a particular factor. One very serious factor could have the effect of lifting the offending into a11 Nuku above n 6 at [38].12 R v Taueki [2005] 3 NZLR 372.13 Nuku above n 6.higher band. Equally, if a number of aggravating factors are present but only in a mild form, that may result in the offending being placed in a lower band. The level of seriousness of the aggravating factors will also, of course, affect where an offence is positioned within a band.[14] The relevant factors in this case are:(a) Premeditation – there was some level of premeditation as Mr Raredecided to go to the victim's house with the intent of, at the very least,confronting her.(b) Attacking the head – the Judge found that Mr Rare hit the victim in the head at least four times. This included the application of force to the throat area causing the victim difficulty in breathing.(c) Multiple attackers – while multiple men confronted the victim, only Mr Rare actually attacked her. However, the presence of the other men increased the seriousness of the offending as it added to the level of fear and intimidation brought to bear on the victim, even if they did not themselves physically assault her.(d) Vulnerability of victim – the female victim was at home, with only her young daughter, and in the shower when the men arrived. Some of the blows to the victim were struck when she was holding her child.(e) The violence occurred in front of her child.(f) Home invasion – the attack took place in the victim's home.(g) The violence was accompanied by the threat to kill and the damage tothe victim's house.[15] The three offences all form part and parcel of the same offending. The offending as a whole would fall within the top of band two or bottom of band three of Nuku and I consider two years and eight months' imprisonment an appropriatestarting point on a totality basis.Uplift[16] Mr Rare's conviction history shows two common assault charges in 2013,and three common assault and one male assaults female charges in 2010. The Judge described these as six violence convictions in the last six years,14 which could perhaps more fairly be described as six violence convictions in three years, the last of which was over three years ago. I consider an uplift of two months to be appropriate.EM Bail[17] Mr Rare spent four and a half months on restrictive EM bail. The bail was for 24 hours a day seven days a week. There is no evidence of the frequency and duration of authorised absences. There is agreement that Mr Rare was fully compliant with his EM bail conditions. Counsel for Mr Rare submitted that a discount in the vicinity of three months might have been appropriate. The Crown accepts that the time spent on EM bail should be recognised and the amount of the discount is a matter of judicial discretion. I consider a discount of three months to be appropriate.Cumulative sentence in substitution for fines[18] Mr Rare had $17,785.77 outstanding in fines at the time of sentencing inrespect of which the Judge imposed a cumulative sentence of four months'imprisonment.[19] Counsel for Mr Rare submits this is manifestly excessive. A sentence of two to three months would be appropriate. Defence counsel relies on La Rue.15 In that case $6,244 of fines were remitted to 300 hours of community work in the District Court. On appeal this was replaced with 200 hours of community work. He also relies on Brand where $13,824 of fines were remitted to a sentence of three months imprisonment.16 On appeal this was replaced with a sentence of two months14 New Zealand Police v Rare above n 5at [7].15 La Rue v Ministry of Justice Collections Unit [2016] NZHC 666.16 Brand v The Registrar of Collections at New Plymouth HC New Plymouth CRI-2008-443-25, 10 November 2008.imprisonment. However, as pointed out by Crown counsel this took account of thedefendant's youth at the time of committing the offences for which he was fined.[20] The considerations for remitting fines are:17[9] No guidance is given in the legislation as to the relationshipbetween the amount of fines remitted and the number of hours of community work imposed. Plainly, the discretion to be exercised under s 88 is intended to be broad, taking into account all relevant circumstances. Relevant considerations would include the amount of the fines, the crimes for which they were imposed, the length of time over which they were accumulated, the reasons for non-payment, the extent to which the offender has paid or has attempted to pay, the financial and other circumstances of the offender and the likelihood or otherwise of the balance of fines being paid (where remission of part of the fines is to be considered).[21] Examples referred to in La Rue were Tocker v Ministry of Justice Collections,18 where $10,753.52 of fines was substituted with 60 hours of community work, and Ross v Ministry of Justice,19 where $30,000 of fines were substituted with 400 hours of community work.[22] The Crown submits that Mr Rare has continued to accumulate a large quantity of fines over a period of years for similar/identical offending. The public policy reasons for which fines are imposed and enforced require a deterrent sentence in this instance. Therefore four months is not manifestly excessive.[23] Mr Rare's fines were imposed for a number of driving offences between 2008and 2015. They were for offences such as failing to comply with learner licence conditions, driving a vehicle with no warrant or registration, failing to produce hisdriver's licence, three speeding fines and parking fines. The fines began when hewas about 19 years old. Sometimes he received a number of fines for one incident –for example in 2009 he was fined $430 for failing to display an L plate plus $430 for being an unaccompanied learner driver. It is not difficult to see how these fines quickly tallied into an unmanageable debt. That is not to excuse the infringementsbut to put some context around Mr Rare's situation. The amount currently17 La Rue above n 16 as cited from Davis v Registrar of Collections Unit at DunedinHC Christchurch CRI-2005-412-13, 3 May 2005 at [9].18 Tocker v Ministry of Collections HC Wellington CRI-2010-435-4, 18 May 2010.19 Ross v Ministry of Justice HC Hamilton CRI-2010-419-19, 9 June 2010.outstanding is made up of $16,867.77 of unpaid fines, and $918.00 of enforcement fees.[24] If a community work sentence were substituted in lieu, a sentence in the region of 180 to 200 hours would be appropriate. Converting that to a sentence of imprisonment results in two months' imprisonment.Conclusion[25] The appeal is allowed. The end sentence of three years and four months' imprisonment is quashed and replaced with a sentence of two years and nine months'imprisonment.Thomas JSolicitors:Woodward Chrisp, Gisborne for AppellantCrown Solicitor's Office, Gisborne for Respondent