RATU v R [2016] NZCA 97

RATU v R [2016] NZCA 97 [7 April 2016]IN THE COURT OF APPEAL OF NEW ZEALANDCA535/2015[2016] NZCA 97BETWEEN MATTHEW ROSS RATUAppellantAND THE QUEENRespondentCA450/2015BETWEEN EDWARD ZBEDO THOMASAppellantAND THE QUEENRespondentHearing: 11 February 2016Court: French, Simon France and Ellis JJCounsel: M J English for Appellant RatuC J Tennet for Appellant ThomasM J Lillico and S L Graham for RespondentJudgment: 7 April 2016 at 12.30pmJUDGMENT OF THE COURTA The appellant in CA535/2015 is granted an extension of time to appeal.B The appeal against sentence in CA450/2015 is dismissed.C The appeal against sentence in CA535/2015 is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by French J)Introduction[1] The appellants, Mr Thomas and Mr Ratu, pleaded guilty in the High Court to charges arising out of the 2013 riots at Spring Hill Corrections Facility.[2] Mr Thomas was sentenced by Faire J to a term of imprisonment of five yearsand two months' imprisonment for arson and causing riotous damage.1[3] Mr Ratu was sentenced by Lang J to two years and five months'imprisonment for causing riotous damage.2[4] Both now appeal their respective sentences. The Court directed the appeals be heard together.Factual background[5] The riot began when prison officers were assaulted as they attempted to stop two fights that had broken out between prisoners in Unit 16B.[6] The assaults developed into a full-scale riot lasting over six hours. The rioters caused extensive damage to the prison. They fashioned weapons by breaking furniture and then used the weapons to smash the building and other property. The rioters also lit several fires. The fire spread, endangering the lives of staff and other prisoners still detained in their cells. Eventually the authorities were able to clear the unit so the Fire Service could prevent the fire from spreading any further.[7] The damage was so extensive the unit had to be demolished and 89 prisoners relocated to other facilities. The cost of repair was estimated at $5 million.1 R v Thomas [2015] NZHC 1783.2 R v Ratu [2015] NZHC 79.[8] Neither Mr Ratu nor Mr Thomas was involved in the assaults on the prison officers.[9] However, they were involved in a number of events during the riot, both together and separately. These were usefully summarised in the Crown submissions. The accuracy of the summary was not disputed and is set out here accordingly.3Combined participation14.1 Together with others, Mr Thomas and Mr Ratu walked around compound C randomly smashing the glass on the grills and doors to each cell.14.2 Together with others, they collected items from around thecompound and added these to the fire (although Mr Ratu is notcharged with arson).14.3 Together with one other, they climbed out of the staff base window carrying TVs and keyboards and threw them out into the pod. They also took files and read them.14.4 Together with others, they supplied other prisoners, who were smashing through windows and unlocked doors, with weapons by breaking up chairs, tables and benches.Mr Ratu14.5 Together with others, Mr Ratu used an unknown object to hit the staff base doors and windows.14.6 He alone entered the activity room armed with a pole and walked toward a window. He used the pole and smashed it twice against the window.14.7 He alone walked to the staff base steps and used a pole to hit the top of the door approximately nine times. He paused as he received a drink from an associate and then struck the staff base door another three times before walking away.14.8 Together with others, he entered the dining room armed with weapons and began to smash various fixtures in the room.Mr Thomas14.9 Together with others Mr Thomas began using pieces of wood to hit the staff base windows.14.10 Together with others, he broke into an interview room and removed property, destroying it by smashing it against windows and walls.3 Contrary to a submission by Mr Tennet at the hearing, the summary of facts states Mr Thomas did read the files he and others took from the staff base.14.11 Together with others, he uplifted various items from the kitchen and dining room and threw them against the staff base doors and windows. These items were destroyed in this process and were eventually consumed by the fire.14.12 Together with others, he broke into the interview room and walked out carrying computers, a desk, a table and a box containing interview files. With others, he smashed these on the ground just outside the staff base window.Arson (Mr Thomas)15 The arson charges relate to Mr Thomas gathering various items and using them to fuel the fires started by other prisoners. This includes:15.1 Taking a wheelie bin and placing it on the fire;15.2 Entering the staff base where a small fire had been started and using prisoners' files and other paperwork to fuel and maintain the fire in the staff base, causing it to further engulf the office area; and15.3 Along with one other person, throwing a barbecue onto the fire.(footnotes omitted)[10] We now turn to consider the individual appeals.Appeal by Mr Ratu[11] The sentencing took place on 5 February 2015. The appeal was filed out of time but the Crown did not oppose an extension of time, which is accordingly granted.[12] Justice Lang adopted a starting point of three years and three months' imprisonment, which he then uplifted by three months on account of Mr Ratu'sprevious convictions.4 The Judge then applied a three month discount for time spent on electronically monitored bail, a two month reduction (five per cent) to reflect thatMr Ratu had "saved the State the cost of a trial" and 20 per cent discount for theguilty pleas, arriving at an end sentence of two years and five months' imprisonment.The Judge imposed this sentence cumulatively on another sentence of one year andseven months' imprisonment that Mr Ratu was then serving for injuring with intent4 R v Ratu, above n 2.to injure and theft. That sentence (which we shall call the injuring sentence) had been imposed in the District Court on 25 November 2014 by Judge Roberts.5[13] The sole ground of appeal relates to the issue of totality and the following statement made by Lang J:[20] Having indicated that I propose to impose a cumulative sentence, I am bound to have regard to totality principles. You will be subject to automatic release on the sentence you are currently serving in or about April this year after serving approximately nine months imprisonment. I take the view that no further adjustment is necessary to reflect totality principles in relation to the sentence I am about to impose.[14] Contrary to a Crown submission, we agree the only sensible interpretation of this paragraph is that Lang J assumed the sentence he was imposing (the riot sentence) would commence on the release date of the injuring sentence: 26 March 2015.[15] We also accept the Judge's assumption was wrong. Under s 75 of the Parole Act 2002, the effect of making the riot sentence cumulative on the injuring sentence was that the two were added together to form a notional single sentence that started at the date of the first sentence. In other words, it was deemed to be a four year sentence starting 25 November 2014.[16] Had the robbery sentence started on 26 March 2015, as Lang J assumed it would, the end sentence date would have been August 2017. As it is, the end sentence date is 30 June 2018, although Mr Ratu was eligible for parole three months earlier than he would have been had Lang J's assumption been correct.[17] Counsel agree a cumulative sentence was appropriate. They also agree, as do we, that it would not be appropriate for this Court simply to amend the sentence to achieve what Lang J intended. The issue for us is whether, having regard to both sets of offending, a four year sentence appropriately reflected the overall offending by Mr Ratu or whether a discount for totality was required.5 R v Ratu DC New Plymouth CRI-2014-021-440, 25 November 2014.[18] In order to do that, it is necessary for us to now set out the background facts relating to the injuring offending.[19] At the time of the riot (June 2013) Mr Ratu was serving a sentence for money laundering. His first release date under that sentence was 9 December 2013. By that time, the charge relating to the riot had been laid. On his release date he was initially remanded in custody but then on 18 December 2013 was granted electronically monitored bail.[20] On 28 May 2014 Mr Ratu committed the offences of injuring with intent to injure and theft. The victim was an adult male. Mr Ratu attacked the victim by punching him in the face with a short sharp jab followed by a barrage of closed fist punches to the head and face. The man fell to the ground. Mr Ratu then stomped and kicked him about the head and body area. At one point, the victim heard his ribs crunch.[21] He was able to get to his feet but Mr Ratu followed and dragged him back tocontinue the attack before taking the man's cell phone and shouting threats warningthe victim not to go to the police. The victim sustained cuts to the inside of his mouth and bruising around his head and face. He also had sore ribs.[22] Following a sentence indication, Mr Ratu pleaded guilty to injuring with intent to injure and theft on 25 November 2014.[23] We now turn to consider the overall offending.[24] It is well established that offending in the prison environment demands a stern response, particularly where that offending goes to the maintenance of the discipline needed to effectively manage a penal institution.6 The Spring Hill prison riots were the worst in New Zealand's history and Mr Ratu took a very active part.Indeed, he could be regarded as fortunate not to have been charged with arson.6 Tryselaar v R [2012] NZCA 353 at [18].[25] We also consider the injuring with intent to injure was serious offending, involving as it did a prolonged attack on a man with blows and kicks to the head and then stealing from him.[26] As regards personal factors, we note the early guilty plea to the 2014 incident, but, on the other hand, this was offending while on bail, which is a significant aggravating factor and, in our view, would also preclude any discount for the restrictive conditions of bail. The guilty plea in relation to the riot offending was relatively late and, in our view, to award an additional discount for saving the costs of the trial is contrary to the Supreme Court decision in Hessell and should not be granted.7[27] Mr Ratu also has a very extensive criminal history. He has over 100 previous convictions and as at the date of the 2014 incident had served 62 sentences of imprisonment. The convictions include demanding with menaces, aggravated robberies, kidnapping, burglaries, receiving and theft as well as wilful damage.[28] Having regard to all the circumstances, including the sentences imposed on other rioters, we are satisfied a discount for totality is not required and that a four year sentence is not a disproportionate response to the overall offending. Appellate intervention is not warranted.Appeal by Mr Thomas[29] Justice Faire took as his lead offence the arson charge and adopted a starting point of six years' imprisonment, which he uplifted by 12 months on account of theriotous damage charge.8 Turning to personal factors, the Judge then added anotherthree months for Mr Thomas' previous convictions but also gave discounts for hisefforts towards rehabilitation (10 per cent) and the guilty pleas (20 per cent),resulting in an end sentence of five years and two months' imprisonment.[30] In submitting the sentence was manifestly excessive, Mr Tennet's main pointwas that the Judge failed to take into account a neuropsychological report dated7 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [45].8 R v Thomas, above n 1.24 June 2014. The report shows aspects of Mr Thomas' cognitive functioning arewell below average and that he has various behavioural disorders. However, the report does not show there is any causative link between these matters and the offending such as would moderate his culpability and impact on sentence. Nor does the report suggest the problems render imprisonment more difficult for Mr Thomas than would otherwise be the case. In those circumstances, we do not consider the Judge erred by failing to take the report into account.[31] A related point raised by Mr Tennet was that the Judge should have given Mr Thomas a discount for remorse in light of the psychological report. We do not accept that argument. The psychological report does not address the question of remorse directly. But the pre-sentence report does and it states any remorse verbalised by Mr Thomas related to the loss of his freedom, not the consequence of his actions on others. We consider the Judge was justified in declining to give any discount for remorse.[32] We also consider the Judge was justified in declining to give any discount for totality. The sentence he imposed was cumulative on a sentence of five and a half years, which Mr Thomas was serving at the time of the riot. That sentence had been imposed for arson, two counts of aggravated burglary, and assault with a weapon. In our view, an adjustment for totality was not warranted. As noted in Tryselaar v R, to make an adjustment to a sentence for offending while in prison on account of the fact the offender was already serving a sentence of imprisonment would undermine the principle that a stern response to offending in a prison environment is required.9 We accept two of the other rioters were given discounts for totality but in neither case was the offender serving sentences for arson and violence.10[33] Mr Tennet also took issue with the Judge's uplift of 12 months for the riotousdamage charge, as well as the amount of the discounts given for the guilty pleas. Mr Thomas was charged with both offences on 27 August 2013. He pleaded guilty to the riotous damage charge one year later. After applying unsuccessfully for a discharge without conviction on the arson charge, he pleaded guilty to that offence in9 Tryselaar v R, above n 6, at [18].10 R v Rewha [2014] NZHC 2636; R v Fruean [2015] NZHC 1670.May 2015. In those circumstances we consider a 20 per cent discount was, ifanything, generous. For the reasons already mentioned in Mr Ratu's appeal, we alsoconsider the Judge was correct in declining to award a further five per cent discount for saving the Court costs.[34] As for the uplift of 12 months on account of the riotous damage charge, we consider that was amply justified and well within the range applied to other rioters.[35] Ultimately, as Mr Tennet accepted, the question is whether the end sentence was manifestly excessive regardless of the method of calculation.11 We are satisfiedan end sentence of five years and two months' imprisonment was available to theJudge and that appellate intervention is not required.Result[36] Mr Ratu's application for an extension of time to appeal is granted.[37] Mr Ratu's appeal against sentence is dismissed.[38] Mr Thomas' appeal against sentence is also dismissedSolicitors:Public Defence Service, Auckland for Appellant RatuCrown Law Office, Wellington for Respondent11 Criminal Procedure Act 2011, s 250; Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.