RAWIRI v NEW ZEALAND POLICE [2019] NZHC 1085

RAWIRI v NEW ZEALAND POLICE [2019] NZHC 1085 [17 May 2019]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECRI-2019-409-46[2019] NZHC 1085BETWEEN ERNEST SAMUEL RAWIRIAppellantAND NEW ZEALAND POLICERespondentHearing: 16 May 2019Appearances: J Tupaea for AppellantK Courteney for RespondentJudgment: 17 May 2019JUDGMENT OF MANDER J[1] The appellant, Ernest Rawiri, pleaded guilty to charges of burglary and breachof community work after receiving an indicated sentence of 14 months' imprisonmentfor the burglary. Judge Couch sentenced him to 15 months' imprisonment on bothcharges. Mr Rawiri appeals his sentence on the basis the Judge erred in notsubstituting a sentence of home detention.Facts[2] At about 7.30 am on 10 December 2018, Mr Rawiri and his son entered avacant address without authority. The appellant cut the pipes of a heat pump unit atthe address with bolt cutters in order to remove it. His son entered a garage at the rearof the property and took a container of builders' putty. The pair were disturbed andleft the address without taking the heat pump. They were located nearby by police.[3] The charge of breaching community work arose from Mr Rawiri's previoussentence of 70 hours' community work. On 22 September 2018 the appellant failedto attend community work as directed. Community Corrections advised that he hadnot reported for community work since 15 September, despite attempts to reengagewith him. Mr Rawiri still had 23 hours of community work to serve.District Court decisionSentence indication[4] Judge Couch's sentence indication was for the charge of burglary alone. TheJudge considered the aggravating features of the offending were that the address wasa dwelling house (though unoccupied at the time) and that significant damage wasdone to the heat pump. He found it a mitigating factor that the offending appeared tobe opportunistic, which might be thought generous given he had bolt cutters in hispossession. Judge Couch adopted a starting point of 12 months' imprisonment.[5] An uplift of six months was applied for personal aggravating features. Theseincluded the appellant being subject to a sentence at the time of the offending and hisextensive criminal history. Judge Couch then allowed a four month discount for aguilty plea, arriving at an indicated end sentence of 14 months.[6] His Honour then raised the issue of home detention. He stated he did not rulethat possibility out, but would wish to see a pre-sentence report and evidence of asuitable address where the home detention could be served before making a decision.Sentencing judgment[7] At sentencing Judge Couch adopted the reasoning set out in his sentenceindication decision and applied an uplift of one month for the breach of communitywork. The Judge then considered whether home detention would be an appropriatealternative to imprisonment. He referred to a letter the appellant had provided thatcontained expressions of remorse for his offending. However, the Judge consideredthe sentiments expressed were inconsistent with the content of the pre-sentence report.Having regard to that feature and other aspects of the pre-sentence report, as well asthe appellant's criminal history, the Judge concluded that home detention was notappropriate.Approach to appeal[8] An appeal against sentence may only be allowed by this Court if it is satisfiedthere has been an error in the imposition of the sentence and that a different sentenceshould be imposed.1 As the Court of Appeal observed in Tutakangahau v R, a courtwill not intervene where the sentence is within the range that can properly be justified.2It is only appropriate for this Court to intervene and substitute its own views if thesentence being appealed is "manifestly excessive" or is unjustifiable upon theapplication of the relevant sentencing principles.3SubmissionsAppellant's submissions[9] Mr Tupaea, for the appellant, submitted that the sentencing Judge erred in notimposing a sentence of home detention. He argued that the Judge placed too littleweight on the letter of apology written by Mr Rawiri to the Court and the fact theappellant was willing to undertake restorative justice, and gave too much weightinstead to the first part of the pre-sentence report.[10] While acknowledging that Mr Rawiri had minimised his offending to the reportwriter, Mr Tupaea submitted that the Judge had failed to give weight to the balance ofthe pre-sentence report and that Mr Rawiri's acceptance of the sentence indication andhis guilty plea should be taken as further indications of remorse.[11] Mr Tupaea originally submitted in his written submissions that the appellanthad entered his guilty plea because the sentence indication put forward a "strong viewof home detention as an end sentence". In oral submissions Mr Tupaea responsibly1 Criminal Procedure Act 2011, ss 250(2) and 250(3).2 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].3 Ripia v R [2011] NZCA 101 at [15].resiled from that submission and acknowledged the Judge had simply left that open asan option. However, he maintained that home detention was a suitable sentence in thiscase.Respondent's submissions[12] Ms Courteney, for the respondent, submitted that Judge Couch did not err insentencing Mr Rawiri. The sentence imposed was consistent with the indicationprovided. The Judge had clearly indicated a sentence of imprisonment was likely, butleft the possibility of home detention open pending receipt of further favourableinformation. The information subsequently provided was found to be insufficient tosatisfy him that home detention would be appropriate. The sentence imposed wastherefore justified and was not manifestly excessive.Decision[13] The sentence imposed followed the sentence indication that had earlier beenprovided, with the only change being an uplift of one month for the breach ofcommunity work in respect of which there can be no complaint.[14] Judge Couch in his sentence indication expressed the possibility of homedetention but nothing more. He made it clear that it would depend upon the nature offurther information received before sentencing. There is no presumption in theSentencing Act for or against the substitution of home detention for a sentence ofimprisonment.4 The decision requires an exercise of judgment measured against thestatutory principles and purposes of sentencing which a sentencing Judge is calledupon to assess when deciding whether home detention is an adequate sentence in thecircumstances.[15] Mr Tupaea sought to explain to me the difficulty he had explaining toMr Rawiri the ingredients of the charge of burglary and how the offence had beencommitted as a result of his admitted actions. However, I do not consider that explains4 R v Vhavha [2009] NZCA 588 at [29]; Osman v R [2010] NZCA 199 at [20]; Palmer v R [2016]NZCA 541 at [19].the account given by Mr Rawiri to the pre-sentence report writer, parts of which, asJudge Couch commented, are not credible.[16] Mr Tupaea submitted that Judge Couch failed to have regard to the rest of thepre-sentence report which set out Mr Rawiri's personal and cultural circumstances andwas generally positive about the way he interacted with his family and the shame hefeels as a result of leading his son into this offending. Regrettably, however, Mr Rawirihas a long history of offending and is assessed as having a medium to high likelihoodof further offending. He also has numerous breaches of various Court-imposed orders,although he has successfully served sentences of home detention previously.[17] In support of the appeal, reference was made to Mr Rawiri's willingness toengage in restorative justice to make amends. However, the genuineness of that offerhas to be assessed in the context in which it was made, which was to the pre-sentencereport writer during an interview in which Mr Rawiri took minimum responsibility forhis offending, having denied any criminality, and maintained that his presence on theproperty was quite innocent.[18] In deciding whether to commute a prison term to one of home detention it canbe difficult in marginal cases to articulate the reasons for preferring one approach toanother and the margin of appreciation extended to judges is usually significant.5 Thesame standard of review applies as it does for any other sentence appeal. Mr Rawirineeds to be able to show that a material error was made and satisfy the appellate Courta different sentence should have been imposed.[19] I do not consider the sentencing Judge in the circumstances of the present caseerred in declining to substitute a sentence of home detention. Judge Couch consideredMr Rawiri's expressed remorse and regret for his offending, set out in his letter, to be"very largely at odds" with the statements he made to the pre-sentence report writer towhom he sought to suggest that his actions were less serious. Mr Rawiri provided anaccount which conflicted with the summary of facts and was not believable. Havingread Mr Rawiri's account in the pre-sentence report it is apparent he sought to5 Palmer v R, above n 4, at [19].minimise his actions, stating that he did not think he was doing anything wrong. Astance he took throughout the interview.[20] Judge Couch specifically addressed the question of home detention as adiscrete issue. His reasons for declining to commute the term of imprisonment tohome detention are clear and, in the circumstances, are justifiable in the exercise ofhis discretion. In the absence of Mr Rawiri having demonstrated an error in JudgeCouch's approach or the sentence being manifestly excessive, the appeal must bedismissed.Result[21] Appeal dismissed.Solicitors:Joseph Tupaea, ChristchurchRaymond Donnelly & Co, Christchurch