R v RATIMA [2017] NZHC 252

R v RATIMA [2017] NZHC 252 [23 February 2017]IN THE HIGH COURT OF NEW ZEALANDHAMILTON REGISTRYCRI-2016-019-002881[2017] NZHC 252THE QUEENvKINGI RATIMAHearing: 23 February 2017Appearances: D McWilliam and S Gilbert for the CrownA-M Beveridge for the DefendantSentence: 23 February 2017SENTENCING NOTES OF GORDON JSolicitors: Crown Solicitor, HamiltonCounsel; A-M Beveridge, HamiltonIntroduction[1] Mr Ratima, you may remain seated until I ask you to stand.[2] Mr Ratima, you appear for sentencing having pleaded guilty on 2 December 2016 to one charge of robbery.1 You have previously received stage-one and stage-two warnings under the "three strikes" regime for serious violent offending. Thisrobbery is therefore a stage-three offence and I am required by law to impose the maximum sentence of 10 years' imprisonment.2 Further, I must order you to serve that sentence without parole, unless I am satisfied that, given your circumstances and the circumstances of the offence, it would be manifestly unjust to do so.3 It is that last issue that has been the main focus of submissions today and is the main focus of this judgment.Factual background[3] A sentencing Judge would normally begin by setting out the facts of the offending for which the person is to be sentenced. In this case, however, your previous offending is highly relevant to the sentence I must impose today.[4] On 4 August 2014, you were convicted of one charge of robbery. The offending in question occurred on 14 May 2014. On that occasion, you approached a victim who was seated in a stationary vehicle and demanded his car and phone. When he refused, you forcefully dragged the victim out of the car and onto the road. You got into the car and the victim tried to pull you out. He was unsuccessful and you drove off with the vehicle. The victim did not receive any injuries. You were 25 years old at that time. You received a first warning under the "three strikes"regime and were sentenced to one year's imprisonment.4[5] On 10 June 2015, you were again convicted of robbery. The offending occurred on 25 November 2014. On that occasion, you attempted to take thevictim's cellphone after the victim declined to give you money. You punched the1 Crimes Act 1961, s 234; maximum penalty of 10 years' imprisonment.2 Sentencing Act 2002, s 86D(2).3 Section 86D(3).4 Section 86B(1).victim in the chest with a closed fist, causing him to fall backwards onto a park bench and under fear of harm the victim handed over money. The victim did not receive any injuries. You were 25 years old at the time. You received a final warning and were required to serve your entire sentence of one year and fourmonths' imprisonment without parole.5 You also received concurrent sentences ofone month's imprisonment each for two charges of theft.[6] That brings us to the present offending. In the early hours of the morning on 15 May 2016, you spoke with the victim and asked for money. When the victim turned around and walked away, you struck him in the back with your elbow and threw him to the ground. You then proceeded to strike him multiple times in the head with a closed fist. Then, still standing over the victim, you stomped directly on his head. His head smashed into the concrete, causing him to lose consciousness. You then stomped on his head a second time, before searching through his pockets and removing a cellphone and charging cable. You fled the scene but were arrested a short time later. In explanation you told the police that you had punched and kicked the victim but did not steal his phone as you were going to give it back to him. As well as losing consciousness the victim sustained a small laceration above his right eye and a cut to his lip. In a victim impact statement the victim states that, as a resultof the robbery "I had a sore face and bruising and swelling but was discharged from hospital a few hours after arriving there."Personal circumstances[7] You are 28 years old and are of Ngati Raukawa descent. You are single, have no children, and have been unemployed for most of your adult life. You have a history of significant alcohol and drug abuse and have spent most of your adult life living on the streets, in prison, or in psychiatric institutions. You have 105 previous convictions, the majority of which stem from driving-related or dishonesty offending. A number of those convictions were sufficiently serious to warrant a sentence of imprisonment.5 Section 86C(1) and (4).[8] The pre-sentence report writer assesses you as being at a very high risk of reoffending and considers that you pose a high risk of harm to others. The report describes you as a recidivist offender and notes that you have reached your third strike warning in the space of only two years, which is particularly concerning given that you were in prison for the vast majority of that time. Your most recent offence occurred only three weeks after you were released from prison. The writer is also concerned that you have, in some instances, rejected assistance from Mental Health Services.[9] When asked about your offending, you told the pre-sentence report writer thatyou were "not proud" of your offending. You apparently stated dismay at havingbeen charged with robbery by assault, stating that it "wasn't fair". You informed the report writer that you were currently medicated and were feeling "level" although theprospect of long-term imprisonment was causing you to feel low.Psychiatric assessment[10] You pleaded guilty to the present offence on 2 December 2016. A psychiatric assessment dated 23 November 2016 noted that you had a history of mental health issues that had been present since you were about 17 or 18 years old. The health assessor said that you had received a variety of diagnoses, including paranoid schizophrenia, psychotic illness and schizoaffective disorder, though bipolar affective disorder with psychotic symptoms appeared to be the most consistent diagnosis. The assessor also noted that you had alcohol and drug dependence issues as well as possible ADHD during childhood which also needed to be considered.[11] Davison J ordered the preparation of a further psychiatric assessment prior to sentencing, with a particular focus on whether your mental health difficulties were in any way causative of the offending, whether they affected your behaviour in relation to accepting responsibility for your actions or whether they should influence the sentencing process so as to justify applying the manifestly unjust exception. That further report has now been completed.[12] It sets out your recent history. After you were imprisoned in 2015, you made good progress in managing your mental health. At the time of your release fromprison, you were considered to be stable. Shortly after release, however, you presented at the Community Mental Health Service and stated that you did not have money to fill your prescription. You were advised to contact your GP for a medical certificate in support of your application for a sickness benefit. You presented yourself to the Community Mental Health Service again the following day. A mental state examination did not find any evidence of psychopathology and you were advised to continue taking the same medication regime. You had no further contact with any health providers until your arrest in relation to the present offending.[13] Following your arrest and incarceration, you initially presented as expansive, excitable, pressured and slightly disinhibited. You were assessed as mentally unstable, although the report writer suggests this may have been due to the drugs in your system rather than your mental illness. However once you resumed your medication regime, your mental state improved rapidly. On 20 July 2016 a doctor assessed you as being mentally stable. The report writer notes that your demeanour had significantly improved and described you as being pleasant, polite and reflective.[14] You admitted to the report writer that you had consumed large quantities of illegal drugs immediately following your release from prison, including methamphetamine, cannabis and synthetic cannabis. You were also drinking heavily. You admitted that this pattern of multiple drug use and drinking large quantities of alcohol continued until your arrest. You did not take your prescribed medication and were living on the streets for the two days prior to the offending. For those reasons, the report writer concludes that your offending was independent of your mental health condition.[15] You apparently took offence when you were asked about your assault on the victim, but acknowledged that you yourself were shaken when you learned how severely you had assaulted him. You told the writer that you had started crying when you were shown the CCTV footage and realised the extent of the harm you had caused. You said that this had prompted you to plead guilty to the offence. The writer notes that you appeared calmer once you had explained that you felt upset after reviewing the CCTV footage of the assault.[16] The writer acknowledges that a sentence of 10 years' imprisonment without parole is likely to be onerous for you. However in the writer's view, theconsequences of incarceration for you will be no different from any other prisoner and are not influenced by your psychiatric illnesses per se. The writer does however suggest that I make directions requiring you to undertake alcohol and drug counselling and anger management as part of your sentence.Sentence under "three strikes" regime[17] As I have said, the fact that you have been convicted of robbery as a stage- three offence means that I have no option but to sentence you to the maximum term of imprisonment prescribed for the offence, being 10 years' imprisonment. Iacknowledge that this sentence is disproportionate to the gravity of your offending inthis particular instance. However, that is the intent of the "three strikes" regime.You were warned on two previous occasions of the consequences, should you continue to offend in the same manner. Unfortunately, you did not heed those warnings.Sentence without parole[18] That brings me to the matter of a non-parole period. Under the "three strikes" regime, I am required to order that you must serve the entire sentencewithout parole unless it would be manifestly unjust to do so, given your personal circumstances and the circumstances of the offending.[19] What does "manifestly unjust" mean? The Court of Appeal has said that the "manifestly unjust" exception means that any sentence imposed on an offendershould not be grossly disproportionate to the circumstances of the offending and the offender contrary to s 9 of the New Zealand Bill of Rights Act 1990, which prohibits"disproportionately severe treatment or punishment."6 "Disproportionately severe punishment" has been described as conduct which amounts to "inhuman treatment"7 or as "conduct which is so severe as to shock the national conscience."86 R v Harrison [2016] NZCA 381, [2016] 3 NZLR 602 at [83].7 Taunoa v Attorney-General [2007] NZSC 70, [2008] 1 NZLR 429 at [91], per Elias CJ and [176], per Blanchard J.8 At [289], per Tipping J.The case for a finding of manifest injustice must be clear and convincing, but such cases will not necessarily be rare or exceptional.9[20] Whether a sentence can be described as "grossly disproportionate" in anygiven case should be informed by the full range of sentencing objectives and principles.10 The Court of Appeal has identified four factors in particular that may be relevant to this assessment, being:(a) Cases in which the premise underpinning the deterrence rationale, that offenders can understand and respond to the warning, is wrong;(b) Cases in which the offender does not promote a high risk of violent reoffending;(c) Cases where the facts of the offending point to a lower level of culpability than normal; and(d) Cases where the need for deterrence, denunciation and community protection may not necessarily be high.[21] It will be relevant to consider the sentences that have been imposed on other offenders in respect of similar offending, as well as the sentence that would have been imposed upon you, but for the application of the "three strikes" regime.11Discussion[22] I accept the submission for the Crown that there are number of aggravating features which increase the culpability of your offending. The offence involved reasonably significant and gratuitous violence, including two attacks to the head. The second attack to the head occurred when you had already rendered the victim unconscious and he was therefore vulnerable. There was a high risk of serious harm to the victim as a result of these attacks. As it was, the victim was knocked unconscious and received cuts to his face. It was an unprovoked attack.9 R v Harrison, above n 6, at [39] and [108(b)].10 At [96].11 At [103].[23] Your counsel submits that offending of this type would normally attract an end sentence of between four to five years' imprisonment. The Crown submits thatin the absence of the "three strikes" regime, a likely starting point would be at leastfive years' imprisonment. I consider that four years' imprisonment would be an appropriate starting point in your case.[24] Then there is the matter of aggravating and mitigating features relating to you personally. You have a lengthy criminal history, including a number of convictions for dishonesty offending. In my view, this would warrant an uplift of up to a year. Your counsel submitted that your mental health and remorse would normally warrant a discount. I am not certain whether that is warranted. The psychiatric assessor has concluded that your mental health problems were not causative of your offending and any remorse appears to be very limited in scope. On a generous reading of the situation, I consider that you would be entitled to a discount of no more than four months' imprisonment for those two factors.[25] Finally, there is the fact that you pleaded guilty to the offence, albeit in the face of a very strong case against you. Your guilty plea was entered in December 2016, more than six months after the offending. Taking these factors into account, I consider that a discount of 15 per cent would be warranted to reflect your guilty plea.This would result in a final sentence of around three years and eleven months'imprisonment, which is just over a third of the sentence I must now impose. You would have been eligible for parole after approximately one year and three months, as opposed to being released after 10 years. That is a factor which points strongly towards a finding of manifest injustice.[26] A finding of manifest injustice would also be consistent with the directions in the Sentencing Act 2002 that a sentencing court should seek to assist in theoffender's rehabilitation and reintegration12 and that the court must impose a sentence that reflects the gravity of the offending in the particular case.13 Other relevant factors which point towards a finding of manifest injustice include your relative youth and the fact that you have not yet had an opportunity to engage in12 Sentencing Act, s 7(h).13 Section 8(a).rehabilitation in any meaningful way. In this respect I note your counsel'ssubmission that on release from prison in 2016, you sought admission to a methamphetamine rehabilitation programme, but were declined. It is important that you have the opportunity to engage in genuine rehabilitation opportunities. The absence of any previous such opportunities may indicate that the present case is one for which the deterrence rationale, that offenders can understand and can respond to the warning, may be wrong.[27] On the other hand, this court is also required to impose a sentence which holds you accountable for the harm caused by the offending and which promotes in you a sense of responsibility for that harm.14 There is a need to denounce your conduct and to deter others from committing the same or similar offences in future.15That is the purpose of the "three strikes" regime.[28] Your offending in this case was very similar to that which led to your two previous convictions for robbery. The degree of violence which you have used has escalated over the course of the three offences. The speed with which you have accumulated your three convictions is also troubling, particularly given that this most recent offence occurred only three weeks after your release from prison. On the other hand, the culpability of the two earlier offences is not high, which is reflected in the relatively short sentences of imprisonment imposed.[29] This is a difficult case. There are factors which point towards and against a finding of manifest injustice. Ultimately, however, I am satisfied that the gravity of the offending is sufficiently low that to impose a sentence of 10 years' imprisonmentwithout parole would be manifestly unjust, particularly given the mental health difficulties you have experienced and the lack of any real rehabilitative opportunities up until this point.Minimum period of imprisonment[30] I must therefore consider whether to impose a minimum period of imprisonment (MPI). The Crown submits (in the event that the Court determines, as14 Section 7(a) and (b).15 Section 7(e) and (f).I have done, that it would be manifestly unjust to order you to serve the full 10 years without parole) that an MPI is appropriate in your case and has proposed an MPI of six years. Your counsel says five years.[31] I consider that an MPI of five years' imprisonment is appropriate. As I have said, had it not been for the "three strikes" regime, I would have imposed a sentenceof three years and eleven months' imprisonment. You would have been eligible forparole after one year and three months. An MPI of five years means that you will be in prison for at least four times as long as you might otherwise have been. I consider that is sufficient to meet the objectives of the "three strikes" legislation including the sentencing objectives of deterrence, denunciation and community protection, while affording you an opportunity and an incentive to undertake necessary rehabilitative programmes.Result[32] Please stand, Mr Ratima.[33] On the charge of robbery, I sentence you to 10 years' imprisonment. I alsoimpose a minimum period of imprisonment of five years.[34] I discharge you pursuant to s 147 on charges 2 and 3, the Crown offering no evidence on those charges which are alternatives to the robbery charge.[35] I also recommend that you undertake alcohol and drug counselling and anger management.[36] You may stand down, thank you.__________________________Gordon J