RATU v NEW ZEALAND POLICE [2022] NZHC 3450

RATU v NEW ZEALAND POLICE [2022] NZHC 3450 [15 December 2022]IN THE HIGH COURT OF NEW ZEALANDNEW PLYMOUTH REGISTRYI TE KŌTI MATUA O AOTEAROANGĀMOTU ROHECRI-2022-443-000059[2022] NZHC 3450MATTHEW ROSS RATUvNEW ZEALAND POLICEHearing: 14 December 2022Appearances: J C Hannam for Mr RatuR L Hicklin for New Zealand PoliceJudgment: 15 December 2022JUDGMENT OF COOKE J(Sentence appeal)[1] Matthew Ross Ratu, seeks to appeal his sentence of 19 months' imprisonmenton charges of unlawful possession of restricted weapon (a taser),1 possession ofcannabis,2 and driving while suspended (third or subsequent).3Background[2] I take the background of the offending from the sentencing notes of JudgeGrieg,4 as well as a minute of the trial Judge, Judge Kellar.51 Arms Act 1983, s 45(1); maximum penalty of four years' imprisonment or a $5,000 fine or both.2 Misuse of Drugs Act 1975, s 7(1)(a) and (2); maximum penalty of three months' imprisonment or$500 fine or both.3 Land Transport Act 1998, s 32(1)(c) and (4); maximum penalty of two years' imprisonment or$6,000 fine, and disqualification from holding or obtaining a driver licence for one year.4 New Zealand Police v Matthew Ross Ratu [2022] NZDC 22369.5 New Zealand Police v Matthew Ross Ratu CRI-2021-043-001218 [Minute of Judge Kellar].[3] On 28 July the appellant was suspended from driving for excess demerit pointsuntil 27 October 2021. On 21 August he was found driving a vehicle on Devon Roadin New Plymouth at around 2:09 pm. He was stopped for speeding. In explanationthe appellant said he was taking his partner to the hospital she was having stomachpains, but the police noted he was heading in the wrong direction.[4] Later that day at 5.55 pm the appellant was stopped in a car in Stratford. Theofficer who stopped him noticed a taser lying next to his feet in the front footwell. Theofficer saw the appellant trying to hide the taser. The car was subsequently searchedand amongst other items, 35.65 grams of cannabis was found on him.[5] At his judge-alone trial the appellant entered a guilty plea and was convictedfor the charge relating to the possession of cannabis.6 He also pleaded guilty to onecharge of driving while his driver's licence was suspended.7 After the prosecution hadcalled evidence the appellant also then entered a guilty plea on the charge of possessingthe taser.8 The other charge was dismissed. In his minute Judge Kellar recorded thatthere was compelling evidence that the appellant was in possession of a taser. TheJudge also recorded the appellant's counsel accepted that "the evidence establishedMr Ratu was in possession of the object, knew what it was, had control over it,intended to exercise control over it".9 At the same time the Judge found that there wasno evidence to establish the other charge of possession of knuckle dusters.[6] Judge Kellar remanded the appellant for sentence.10 He noted that theappellant had been convicted and sentenced for possession of a taser on 17 November2020. In those circumstances he noted the starting point "is undoubtedly a sentenceof imprisonment" but that "the end sentence will not necessarily be a sentence ofimprisonment, but it might be close".11 The appellant was remitted to bail untilsentencing.6 Minute of Judge Kellar, above n 5, at [2].7 At [1].8 At [7].9 At [7].10 At [8].11 At [11].[7] On 14 November 2022 the appellant was sentenced by Judge Grieg. The Judgerecorded the appellant's numerous previous convictions and particularly the previousconviction for carrying a taser. He also had regard to the contents of the pre-sentencereport indicating that the appellant was assessed as being at high risk or re-offending.12He did not accept Mr Hannam's explanation that the taser was someone else's and thatthe appellant had no sinister intent in possessing it.13 The Judge then sentenced theappellant to 12 months' imprisonment for possessing the taser, and six months fordriving while suspended, and uplifted the sentence by three months because of hisprevious convictions. He then deducted two months' for the late guilty pleas, arrivingat a sentence of 19 months' imprisonment.[8] This meant a sentence of home detention had to be considered. The Judgesaid:14I have got to consider whether to make that a sentence of home detention, andI do not consider that suitable. I have to hold you accountable, denounce yourconduct, deter you, and protect the community. Particularly, you have got avery recent previous conviction for possessing a taser. You have so manybreaches of previous court sentences, including a recent breach of homedetention. I have no confidence that you would comply and I take note of thepolice concerns that they have got about the address.[9] In addition the Judge remitted the appellant's fines of $8,121 and ordered theweapon and cannabis to be destroyed.Approach on appeal[10] An appeal against sentence arises under s 244 of the Criminal Procedure Act2011. Under s 250(2) the appeal must be allowed if the Court is satisfied that for anyreason there is an error in the sentence, and that a different sentence ought to beimposed. On appeal the focus is on the correctness of the end result, and not theprocess by which it was reached.15[11] The appellant raises two main grounds of appeal:12 New Zealand Police v Matthew Ross Ratu, above n 4, at [8].13 At [11].14 At [21].15 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [32]–[35].(a) That the sentencing Judge erred as he was not the trial Judge and didnot have an appreciation of the facts, and by extension that he madeconclusions on the facts which were not available to him;(b) That the sentencing Judge erred by not granting home detention, as itwas available, recommended by probation, and was the least restrictiveoutcome.The first ground[12] The appellant argues that it was not apparent that the sentencing Judge had readthe minute of Judge Kellar and so was unable to get an appreciation of the surroundingcircumstances. The appellant says had Judge Kellar been the Judge sentencing theappellant it would have been open for the defence to submit that the defendant wasonly briefly in contact with someone else's taser given it was not his car and otherswere present. The difference in tone of the facts should have had a positive impactupon the sentencing Judge's assessment of culpability, and therefore sentence. Theappellant says that the "benign explanation" that the appellant had no sinister intent inpossessing the taser was available to the Judge to accept given he was not brandishingor threatening with the weapon.[13] In response the Crown says that the particular facts involved in the appellant'spossession of the taser were not decisive in the Judge's decision to impose a sentenceof imprisonment. What was decisive was the appellant's relevant previous convictionfor possession of a taser and his numerous breaches of previous court sentences.[14] There should be no misunderstanding about the facts upon which a sentence isimposed following a guilty plea. Under s 24 of the Sentencing Act the Court mustaccept any fact disclosed by the evidence at trial when there has been such a trial, butotherwise on the basis of "any facts agreed on by the prosecutor and the offender" andany facts that "are essential to a plea of guilty". Where there is an agreed summary offacts sentencing proceeds on the basis of that summary, and counsel cannot invite theCourt to go beyond it.1616 Pokai v R [2014] NZCA 356 at [30].[15] The summary of facts here was very brief. The position was more fullydescribed by Judge Kellar then by Judge Greig, but in a manner consistent with thesummary. In terms of the essential facts I do not accept there was any error made bythe Court. Mr Hannam argued that Judge Kellar's minute put the offending in aslightly different context, but I do not read it that way, and do not consider there is anyerror in the sentencing process in relation to the facts.The second ground[16] The appellant argues that home detention should have been granted as it wasavailable and recommended in the pre-sentence report and was the least restrictiveoutcome. The appellant says the Judge's reasoning for rejecting a sentence of homedetention was due to the previous taser conviction. The appellant says that theprevious conviction was at a low level of seriousness and that the increased culpability,though obvious, was overstated by the Judge. This is more so given that Judge Kellarwas aware of the previous conviction and granted bail pending sentence. Theappellant also submits the Judge failed to have regard to s 16 of the Sentencing Act2002 and the desirability of keeping offenders in the community.[17] The Crown argues that a sentence less than imprisonment would not achievethe purposes of the Sentencing Act, particularly because the appellant's recentprevious conviction history shows community-based sentences have failed to deter theappellant or protect the community from similar offending. The appellant's failure toengage with a departmental psychologist means such sentences have failed to assisthis rehabilitation.[18] Section 15A materially provides that a sentence of home detention may beimposed by the Court if the Court would otherwise sentence the offender to a short-term sentence of imprisonment.17 There is no presumption that either imprisonmentor home detention is to be preferred, and the Court must exercise its discretion todecide which is more appropriate.1817 Sentencing Act 2002, s 15A.18 R v Vhavha [2009] NZCA 588 at [29].[19] In this case the Judge rejected a sentence of home detention because heconsidered the appellant had to be held accountable, denounce his conduct, deter himand protect the community. There were factors that the Judge did not address whenreaching that decision, however. The first is that the pre-sentence report recommendedthe sentence of home detention. It did so notwithstanding that it assessed his risk ofre-offending as high, and his ability to comply as low. The recommendation was madegiven the relatively low level nature of the offending. Mr Ratu is also in a relationshipwith his partner and they have recently had a new child. She lives at an address thatis separate from the proposed home detention address with Mr Ratu's two youngchildren, and her two children from a prior relationship.[20] As Judge Kellar had indicated, this was a borderline case. In thosecircumstances the most appropriate sentence is that which is most likely to reduce therisk of re-offending. The Judge plainly considered that a stern response was required.That focusses on the sentencing principles of denunciation and deterrence. Thealternative view is that the sentence most likely to reduce the chances of re-offendingis one that attempted to facilitate Mr Ratu focusing on his current whānaurelationships. This emphasises the sentencing principles of rehabilitation andreintegration. That was the approach that the pre-sentence report appears to havefavoured.[21] Mr Ratu and his partner now have two very young children. One is aged 16months, and the other 36 weeks. Since having children the only offending thatMr Ratu engaged in prior to this offending involved a breach of supervision, a chargeon which he was convicted and discharged. Since that time his second child has beenborn. His partner has recently been in hospital. In addition Mr Ratu's mother has beenunwell. The proposed home detention address is the address of Mr Ratu's mother.Mr Ratu's partner and children would be at another address.[22] These circumstances explain why the pre-sentence report recommended thesentence of home detention notwithstanding the risks associated with Mr Ratu's priorhistory. They suggest that there is a prospect that a home detention sentence would bethe most constructive, and will most likely lead to minimising the risk of re-offending.Home detention is not an easy sentence, and still significantly addresses the othersentencing principles referred to by the Judge.[23] In response to these factors Ms Hicklin referred to s 17 of the Sentencing Actwhich indicates that the Court retains a discretion to impose a sentence ofimprisonment if the Court is satisfied on reasonable grounds the offender is unlikelyto comply with any other sentence that would otherwise be appropriate. There areplainly risks that Mr Ratu may not comply. But those risks can be overstated. Forexample Mr Ratu did previously breach a sentence of home detention in 2018 at thesame address as the Judge noted. But that was a sentence of 11 months' homedetention, and the breach only occurred in the last month. Since that time he hasdeveloped the relationship, and now has two very young children and an unwellmother. These are significant changes in personal circumstances. The previousoffence involving possession of a taser which the Judge emphasised occurred in July2020, which is also before the children were born. It was also not regarded as seriousby the Court, with a sentence of six months' supervision imposed.[24] I consider the District Court was in error in imposing a sentence ofimprisonment, and rejecting home detention for this kind of offending, withoutaddressing the implications of the personal circumstances described in the pre-sentence report that I have referred to above, and the recommendation in the report.Having addressed those circumstances, whilst acknowledging it is a borderline case, Iconsider the most appropriate sentence is that of home detention.[25] For those reasons I allow the appeal and commute the sentence imposed by theDistrict Court Judge to one of nine months' home detention (which takes into accountthe one months' imprisonment now served). It is to be imposed on the basis set out inthe pre-sentence report, including the recommended special conditions for homedetention contained in that report, but with the additional special condition thatMr Ratu attend a drug and alcohol programme at the direction of a Probation Officer.That is imposed on Ms Hicklin's suggestion given that cannabis dependency seems tohave played a role in the offending. I also note the importance of the special conditionconcerning the assessment by psychologists. Mr Ratu will need to understand thatthese conditions are an important part of his sentence.Cooke JSolicitors:Hannam & Corporation Lawyers Ltd, New Plymouth for Mr RatuCrown Solicitor, New Plymouth for New Zealand Police