RONGANUI v NEW ZEALAND POLICE [2017] NZHC 688

RONGANUI v NEW ZEALAND POLICE [2017] NZHC 688 [10 April 2017]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCRI-2017-404-044[2017] NZHC 688BETWEEN MAIA RONGONUIAppellantAND NEW ZEALAND POLICERespondentHearing: 10 April 2017Appearances: R E Slade for the AppellantM J Mortimer for the RespondentJudgment: 10 April 2017ORAL JUDGMENT OF MUIR J(SENTENCE APPEAL)Counsel/Solicitors:R Slade, Public Defence Service, AucklandM J Mortimer, Meredith Connell, AucklandIntroduction[1] On 23 January 2017, Judge Paul in the Auckland District Court sentenced MaiaRongonui to six months' imprisonment.1 Mr Rongonui had pleaded guilty toindecently acting with intent to insult,2 and assault.3 The complainants in respect ofboth charges were prison officers.[2] Mr Rongonui now appeals his sentence on the grounds that it was manifestlyexcessive.Background[3] At the time of both offences, Mr Rongonui was serving a sentence of threeyears, nine months' imprisonment at the Hawke's Bay Regional Prison. That sentencewas for burglary, property-related offences and attempted aggravated robbery, and wasimposed in the District Court on 11 February 2014.[4] The assault on the prison officer happened on 9 August 2016. Mr Rongonuiwas in his cell while a prison officer was distributing food to other inmates. The celldoor was open so Mr Rongonui could receive some medication which had beenprescribed. Mr Rongonui wanted to pass some milk powder to another prisoner, butwhen told he could not, he became agitated and verbally abusive to the correctionsofficer. He pushed her hard in the chest with both arms, causing her to stumble back.He then lunged at her, but made no connection. He was then restrained and lockeddown. At the time, he commented, "The next time I see you I'm going to smash youover." There were no physical injuries to the officer as a result of the assault.[5] The charge of doing an indecent act with intent to insult happened a few weekslater, on 29 August 2016. While being transferred to a cell that morning, Mr Rongonuigrabbed a female prison officer's bottom, commenting "Sorry Miss, I couldn't help1 Police v Rongonui [2017] NZDC 1053.2 Crimes Act 1961, s 126; maximum penalty, two years' imprisonment.3 Summary Offences Act 1981, s 10; maximum penalty, six months' imprisonment or a $4,000 fine.myself." When spoken to shortly after, Mr Rongonui said "What do you expect? Shewanted it, she led me on." Mr Rongonui later wrote a letter apologising for hisbehaviour, saying he was "stressed out" from being housed in that particular jail, andthat he wanted to see his family. It appears that his offending may have beenintentional so as to effect a transfer to a prison environment closer to home.The judgment of the District Court[6] The Judge rejected Mr Rongonui's request that the sentence be concurrent onhis existing one. He said that this would "send the wrong message", and would say toprisoners on fixed-term sentences that they can assault officers with relative impunity.[7] Judge Paul noted that the offences were separate incidents, occurring withinthe same month. He accordingly adopted a starting point of three months'imprisonment for the assault on the prison officer and six months' imprisonment forthe indecent act. He considered that a cumulative approach to sentencing was requiredand reduced the total nine-month sentence by three months, in order to reflect MrRongonui's early guilty plea. That was, of course, a 33 per cent discount.[8] The Judge therefore sentenced Mr Rongonui to six months' imprisonment. Hemade that sentence cumulative on the existing sentence of three years and nine months'imprisonment.Submissions on appealAppellant[9] For Mr Rongonui, Mr Slade says the sentence of six months' imprisonmentwas manifestly excessive because:(a) The Judge adopted a starting point for the indecent act charge that wastoo high; and(b) The Judge failed to give sufficient consideration to the totalityprinciple, with reference to Mr Rongonui's earlier sentencing in 2014.[10] In respect of the first point, Mr Slade submits that a four month starting pointwould have been appropriate on the indecent act charge. After taking into account theassault charge, and the guilty plea discount, this should have resulted in an endsentence, he says, of five months' imprisonment.[11] In support of that submission Mr Slade referred me to my own decision in Juryv Police.4 There, the defendant had masturbated under his clothing while his lawyerwas attempting to take instructions from him in prison (he had received a custodialsentence the previous day). On appeal against sentence, I observed that a starting pointof four to five months' imprisonment would have been appropriate (the District Courthad adopted five months). Mr Slade submitted that the offending in Jury was on a parwith Mr Rongonui's: although the indecent act in Jury, he said, was more offensive,Mr Rongonui's offending involved physical contact with the complainant.[12] In respect of totality, Mr Slade submits that Judge Paul erred in not referringto and adopting the relevant principles in s 85(2) of the Sentencing Act 2002.[13] He cited a number of cases in which the Court of Appeal has emphasised thatthe totality principle applies where there are successive sentences, even when thosesentences are not proximate and the events are unrelated.5 Mr Slade says the properapproach would have been for the Judge to ask what the overall sentence would havebeen if Mr Rongonui had been sentenced on all charges at the same time. When thisis taken into account, Mr Slade says that a sentence of three months cumulative on theexisting sentence of three years nine months' imprisonment would have beenappropriate.Respondent[14] For the New Zealand Police Mr Mortimer submits that although the six monthsentence fell towards the higher end of the permissible range, it was not manifestlyexcessive. He says that the Court is not required to make a reduction for totality in the4 Jury v Police [2015] NZHC 2587.5 R v Skelton [2011] NZCA 35 at [33]; Faaleaga v R [2011] NZCA 495 at [22]; R v Nuku [1969]NZLR 343 (CA).context of prison offending that goes to the maintenance of discipline.6 But even ifMr Rongonui's previous offending was considered together with his present offending,the overall sentence (four years and three months' imprisonment) was not manifestlyexcessive.DiscussionStarting point for the indecent act charge[15] The maximum sentence for an indecent act with intent to insult is two years'imprisonment.7 There is little sentencing case law in respect of the offence, and thefacts of the cases that do exist are not directly comparable to the present offending.[16] In Walker v Police,8 the appellant was convicted of an indecent act with intentto insult after he unzipped his trousers in front of his former partner and exposed hisgenitals. He repeated several times "I know you want some", before eventuallyzipping up his trousers and leaving her house. The High Court upheld a sentence ofthree months' imprisonment on that charge.[17] In Jury v Police, as noted above, the appellant masturbated under his clothingin front of his lawyer. I considered that act was more serious than the offending inWalker and held that a starting point of four to five months was appropriate.[18] The present offending is, in my view, more serious again in that it involved adirect violation of the victim's person by way of actual assault. Indeed it is possiblethat, on the facts, an indecent assault charge could have been sustained attracting asignificantly higher maximum period of imprisonment9 and a strike warning.10 AsJudge Paul commented, the act was very demeaning of the prison officer and MrRongonui's accompanying statement, "Sorry Miss, I couldn't help myself",exacerbated its seriousness. A slightly higher starting point than the four to fivemonths considered appropriate in Jury was in my view therefore warranted. The6 Relying on Tryselaar v R [2012] NZCA 353.7 Crimes Act 1961, s 126.8 Walker v Police HC Auckland CRI-2004-404-362, 17 August 2005.9 Seven years under the Crimes Act 1961, s 135.10 Sentencing Act 2002, ss 86A-86D.Judge's starting point of six months' imprisonment, while stern, was, in my view,within the available range for such offending, and could not be described as manifestlyexcessive.[19] In particular, the Court was required to recognise in terms of s 9(1)(fa) of theSentencing Act 2002 that an additional aggravating feature (not present in Jury) wasthe victim's status as a Corrections Officer acting in the course of her duty.[20] I further note that, after combining the starting points for the indecent act andthe assault charges (thus reaching an "overall" starting point of nine months'imprisonment), the Judge then reduced this by three months to account forMr Rongonui's early guilty plea. The resultant sentence reduction of 33 per cent wasgreater than the 25 per cent limit set in Hessell v R.11[21] This means that even if the Judge had adopted Mr Slade's suggested startingpoint of four months' imprisonment, added three months for the assault charge, andthen applied the standard 25 per cent guilty-plea discount, the end sentence wouldhave been five months and one week of imprisonment. Again, when this is comparedto the actual end sentence of six months' imprisonment (a difference of three weeks),it could not be said that the sentence Mr Rongonui actually received was manifestlyexcessive. However, I do not place particular weight on this point as it is arguable thatthe combined sentence of nine months' imprisonment should have itself been reducedmarginally for totality before adoption of the 25 per cent discount.Totality adjustment with respect to existing sentences[22] I accept the Crown submission that offences committed in prison that go to themaintenance of discipline are less likely to offend the totality principle. That followsfrom the Court of Appeal's judgment in Tryselaar v R where it said:12Offending in the prison environment, particularly where that offending goesto the maintenance of the discipline needed to effectively manage a penalinstitution, demands a stern response. That would be seriously undermined ifsentences for such offending required adjustment to reflect the fact that theoffender is already serving a sentence of imprisonment.11 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [75].12 Tryselaar v R [2012] NZCA 353 at [18]; see also Ratu v R [2016] NZCA 97 at [24].[23] Although Mr Slade is correct that the offending in Tryselaar itself was verymuch more serious than that which occurred in this case, the principles established bythe Court of Appeal nevertheless have general application to all offending in the prisonenvironment which challenges the maintenance of discipline.[24] Although, therefore, the totality principle remains relevant, and it is necessaryfor it to be considered in each case,13 its impact will be minimised in circumstanceswhere it is appropriate to denounce and deter offending in the prison environment.[25] I consider that Mr Rongonui's offences did go directly to prison discipline, asthey were both committed against Corrections Officers acting in the execution of theirday-to-day responsibilities. The challenge to prison discipline was in this sensesignificantly greater than that involved in the Jury case where the conduct was directedtowards the defendant's own counsel. I agree with Judge Paul's comments to the effectthat management of prisoners is a difficult enough job at the best of times, and it isnecessary to send a clear message that assaults on prison officers are unacceptable.Prisoners should not be given reason to believe that even low-level offencescommitted against such officers will not affect or materially affect their overallsentence. Although Judge Paul should, as a counsel of perfection, have expresslyreferred to the totality principle in reaching his conclusions, and explained why on theparticular facts of the case he was not making such an adjustment, I do not considerthere was material error in failing to make such adjustment in the face of conductwhich so directly challenged the maintenance of the discipline necessary effectivelyto manage a penal institution.[26] Further, I accept the Crown submission that the total sentence of four years andthree months' imprisonment for all relevant offending was not disproportionate to itsoverall gravity. Mr Rongonui's previous sentence was three years and nine months'imprisonment. Given that he was sentenced on multiple charges, including attemptedaggravated robbery and ten charges of burglary,14 including in circumstances wherethere was the very real prospect of direct confrontation with the occupants of therelevant homes, that sentence was lenient. Judge Adeane said as much when13 See Sentencing Act 2002, s 85(2).14 R v Rongonui DC Napier CRI-2013-040-2327, 11 February 2014.sentencing him.15 The sentence of three years and nine months' imprisonment for theearlier offending and what could be described as a stern response to the indexoffending have a balancing effect in any totality assessment.[27] Mr Slade cites Faaleaga v R16 and R v Nuku17 to support his argument that theCourt should reduce Mr Rongonui's sentence on a totality analysis. Both cases didinvolve prison offending and in both the Court of Appeal did reduce the secondsentence on a totality assessment. However, I consider that the cases aredistinguishable. Faaleaga v R concerned a death threat in a letter written to personsoutside the prison, and thus did not directly engage the concerns later expressed inTryselaar about offending relevant to the maintenance of prison discipline. R v Nukuconcerned a violent attack on a fellow inmate. While this did engage institutionaldisciplinary concerns, there was no mention of the earlier sentence having beenlenient, as in this case.Result[28] Accordingly I dismiss the appeal.__________________________Muir J15 At [7].16 Faaleaga v R [2011] NZCA 495.17 R v Nuku [2016] NZHC 254.