R v RAWHITI [2022] NZHC 2680

R v RAWHITI [2022] NZHC 2680 [17 October 2022]IN THE HIGH COURT OF NEW ZEALANDWHANGANUI REGISTRYI TE KŌTI MATUA O AOTEAROAWHANGANUI ROHECRI-2022-083-746[2022] NZHC 2680THE KINGvTAMA RAWHITIHearing: 17 October 2022Counsel: M Wilkinson-Smith for the CrownJ H Waugh for Mr RawhitiSentencing: 17 October 2022SENTENCING NOTES OF GWYN JIntroduction[1] Mr Rawhiti, you appear for sentence having pleaded guilty to the followingcharges:(a) Using a firearm against police;1(b) Unlawful possession of a firearm;2(c) Unlawfully taking a motor vehicle;31 Crimes Act 1961, s 198A(1) carries a maximum penalty of 14 years' imprisonment.2 Arms Act 1983, s 45(1) carries a maximum penalty of four years' imprisonment and/or a fine of$5,000.3 Crimes Act, s 226 carries a maximum penalty of seven years' imprisonment.(d) Unauthorised use of a communication device;4 and(e) Demanding with intent to steal.5[2] In sentencing you today, I apply a law called the Sentencing Act 2002, whichsets out the purposes and principles of sentencing. The main purposes of sentencingin your case are to hold you accountable for the harm you have caused through youroffending; to promote a sense of responsibility for, and acknowledgment of, that harm;to denounce and deter the criminal conduct; to protect the public; and to assist in yourrehabilitation and reintegration into society.6 What that means in practice is that I haveto look at the whole situation and do what I can to mark what you have done, but alsoto acknowledge who you are and your particular circumstances and background.[3] In sentencing you, I will first say something about your offending, explain yourpersonal circumstances, and set out counsel's submissions. I will then calculate asentence by adopting a two-step approach: first, I set a starting point based on theoffences you have pleaded guilty to; and second, I will consider whether to apply anyincreases (uplifts) and discounts to reflect your personal aggravating and mitigatingfactors.[4] Because sentencing is a public process, I have to talk about the detail of whathappened.The offending[5] In July 2019 you had been released from prison on parole. One of theconditions of your release was that you would wear an electronic monitoring (EM)bracelet. In August 2019, you removed your EM bracelet. This led to a prison recallwarrant being issued for you, but you managed to avoid arrest for six weeks throughthe help of your associates. It is during this time that the offending for which you arebeing sentenced today took place.4 Communications Act 2004, s 141A(1) carries a maximum penalty of three months' imprisonmentor a fine of $5,000.5 Crimes Act, ss 239(2) and 66 carry a maximum penalty of six years' imprisonment.6 Sentencing Act 2002, s 7.[6] In the afternoon of 16 September 2019, you and two associates followed avehicle into a carpark, believing that the vehicle had been stolen from one of youraccompanying associates. While the make and colour of your associate's allegedlystolen car matched that of the victim's car, the registration number did not.Nonetheless, your associate parked the car you were in so that it blocked the victim'scar. You then got out of your vehicle, approached the victim with a large knife andtold the victim to get out of the car because it was, in fact, your car. The victimmanaged to drive off without injury but was shaken by the incident. This forms thebasis of the demanding with intent to steal charge.[7] You continued on your travels. On 28 September 2019 you were in Ohakune.While being driven by an associate, your vehicle was stopped by police for a randombreath test. You were in the back seat and had with you a sawn-off .22 calibre rifle.During the course of the interaction, you became agitated and told the driver to driveaway. In response, the constable took the keys out of the ignition. Apparently youwere heavily under the influence of alcohol at the time. You then got out of the carwith your rifle. You had no control over your movements, so that immediately afteryou got out of the car you fell over. While you were coming out of the car, your riflefleetingly pointed at one of the two constables conducting the breath test. The policeofficers ran from the scene and took cover.[8] You and your associate then got into the police car, which at this point wasempty, and drove off. The police car was found a short time later, crashed into thefence of a residential property. The fence and the police car suffered damage as aresult. These facts form the basis of the using a firearm against police, unlawfulpossession of a firearm and unlawfully taking a motor vehicle charges.[9] You were arrested on 30 September 2019. The sawn-off rifle and ammunitionwere found at the property where you were arrested.[10] While in custody, you and an associate came up with a plan to divert yourauthorised phone call to a third party. Through some trial and error, you managed todo this. You got through to a person you believed had complained about drugs at yourhome and questioned her on the phone. This is the basis of the unauthorised use of acommunication device charge.[11] In his victim impact statement, the constable who you pointed a gun atdescribes your offending as the worst thing he has experienced in his policing career.He described fearing for his own life and the life of his workmate and fearing that hewould never return home to see his family and friends again. He thinks about theincident often and regrets the negative and lasting impact your offending has had onhim.[12] The other constable similarly describes your offending as the worst experienceof her policing career. She describes the overwhelming worry she felt when you droveaway with the patrol car with their firearms in it and the prospect of you returning touse those firearms against them. She describes the lasting impact the incident has hadon how she now approaches traffic stops. She expresses regret at the delay inresolution of the case.Personal circumstances[13] Mr Rawhiti, before sentencing you today, I have read a number of reports. Thefirst is the provision of advice to Courts (PAC) Report, dated 2 March 2022, preparedby the Department of Corrections; a Cultural Report prepared under s 27 of theSentencing Act give me a better understanding of your background; and a report froma psychologist prepared under s 38 of the Criminal Procedure (Mentally ImpairedPersons) Act 2003. I have also reviewed your criminal and bail history.[14] The Corrections (PAC) report notes you have an extensive criminal history,dating back to 2000 and involving violent, dishonesty and non-compliance with courtorders related offending. The PAC report says you have a high risk of re-offendingand causing harm to others based on your pattern of repeat offending. The reportwriter considers it is your anti-social associates, tendency towards violence and drugand alcohol abuse which have contributed to your risk of offending.[15] The report recommends that you make significant changes to your lifestyle andstop spending time with the people who have a bad influence over you. Similarly, itrecommends programmes to deal with your drug and alcohol abuse, noting that youwere under the influence of methamphetamine when you committed some of theoffending for which you are being sentenced today. Rehabilitative programmes toaddress your violent tendencies are also recommended to reduce your risk of re-offending. The overall recommendation for you, Mr Rawhiti, is a sentence ofimprisonment with special conditions to address the factors which have contributed toyour offending so far.[16] The cultural report describing your background makes for painful reading. Itdetails the violence you witnessed and were subjected to throughout your childhood,at the hands of your family members (most notably your father), at school and at thevarious youth justice facilities that were supposed to care for you. The report writeracknowledges your awareness of the harm all that violence has caused you. You carrythat trauma and wish to let it go. You have expressed to the report writer a desire tochange your lifestyle and attitude. You know this will involve staying away fromdrugs, firearms and the associates who have a negative influence on you.[17] You told the report writer that once you are released, what you would like todo is start up a hairdressing and tattoo business in Ratana, where you have familysupport. You describe wanting a life where you can "fish and hunt and watch rugby".The report writer considers that the ideal you are after first requires addressing therange of adverse experiences you have endured in your childhood. Counselling willhelp in that regard, but the report also acknowledges the need for you to takeresponsibility and consciously change your path. This will be hard work and thetemptation to return to a life of crime will be present along the way. But if you canmanage to change, with the support of your family and professionals, the report writerthinks you can have the future you want.[18] Mr Rawhiti, the s 38 report prepared by a psychologist also describes yourdifficult childhood. The experiences you endured in childhood meant that you sawviolence as a means to resolve conflict. The survival skills you needed during thatdifficult period have stayed with you and have contributed to your offending. But theyare no longer needed. The psychologist recommended in her report that you undertakeprogrammes which can teach you healthy ways to manage relationships and emotions.Programmes to bring your alcohol and drug use under control are also recommended.The psychologist also recommended that you receive assistance from ACC to addressthe physical, emotional and sexual abuse you suffered in your childhood.Submissions[19] I am now going to summarise what each of Crown counsel, Mrs Wilkinson-Smith, and your lawyer, Mr Waugh, have had to say about the appropriate sentence.[20] Mrs Wilkinson-Smith submits that the most serious, and therefore lead charge,is the charge of using a firearm against police. Counsel says this is a serious offenceand I should impose a significant penalty for it, to discourage you from furtheroffending. Counsel submits that a starting point of between four and five years isappropriate.[21] The Crown says that the starting point should be slightly higher than five years,after taking account of the unlawful taking of the police car and unlawful possessionof firearm charges. Counsel submits that your sentence should be longer than yourassociate's sentence on the charges of unlawful possession of a firearm (18 monthstarting point) and unlawful taking of the police car (uplift of four months) to reflectyour role as the dominant principal offender.[22] Mrs Wilkinson-Smith submits that an increase on the starting point of 12-18months for the charge of demanding with intent to steal, is warranted, to reflect thefact that you were under a sentence at the time of this offending and to reflect yourextensive criminal history involving violence. The Crown does not make a specificsubmission on the unauthorised use of a communications device charge.[23] Having regard to the total sentence, the Crown submits that a start point ofbetween five years four months and six years two months should be adopted for youroffending. This could be reduced on the basis of s 27 cultural factor discounts and aguilty plea discount of between five and ten per cent.[24] Counsel submits that I should consider the importance of public protection insentencing you, given your history and the risk you pose to the public.[25] Your lawyer, Mr Waugh says that your offending is at the bottom end of thescale for all of the charges you have pleaded guilty to. The lead charge, of using afirearm against police involved no intentional pointing of the firearm, no active use ofthe firearm and no verbal threat to do so. The culpability involved could have beenreflected in an unlawful possession of a firearm charge only.[26] Similarly, the unlawful taking of the police car is less serious than the casescited by the Crown. The charge of unlawful possession of a firearm should beabsorbed in the same starting point to arrive at 42 months for the firearm offences. Anuplift of six months should be imposed for the unlawful taking of the police car toresult in a four year starting point for the Ohakune offending.[27] Mr Waugh says that the demanding with intent to steal offending is at thebottom of the range identified for street robberies. There was no planning orpremeditation involved, you approached the victim's vehicle alone, you did not try tohide your identity, the offending took place in a public place, no violence occurred andno injury was inflicted on the victim, who managed to leave the scene as soon as youmade a demand. A starting point of 18 months should be adopted, resulting in a totalstart point of five and a half years. Mr Waugh says this should be reduced to four anda half years to reflect the total offending.[28] Mr Waugh concedes that your criminal history and the fact that this set ofoffending took place while you were on parole warrants an uplift of six months.Counsel submits that this is sufficient, noting that your pattern of offending tends toshow more in the way of intimidation, rather than actual violence and that you havenot had the benefit of any real rehabilitative programmes.[29] Counsel submits that I should give you a discount of at least 20 per centbecause you pleaded guilty to the charges very soon after they were amended andsummaries of facts were presented. While it may not have been at the earliestopportunity, it was very early on in the piece and that should be reflected in thediscount.[30] Mr Waugh says that the various reports prepared to assist the Court insentencing you show how your background has contributed to your offending. Youlearnt in your childhood to fear authority and that you had to use violence to protectyourself. You used drugs and alcohol as an escape from the trauma you carry. Andyou have not had any rehabilitative assistance to address these persistent problems.Counsel submits that there is a clear connection between your background and thecurrent offending. Further, the reports show your remorse and desire to change.Mr Waugh says that a further discount of 25 per cent is appropriate to recognise thosefactors.[31] Mr Waugh says a conviction and discharge is appropriate for the unauthoriseduse of a communications device charge.[32] On counsel's calculation, you would receive an end sentence of just less thanthree years' imprisonment.Starting point[33] Now I will talk about the way I have decided to approach the starting point inyour case. I treat the charge of using a firearm against police as the lead offending andadopt a starting point for that charge as that represents the most serious offending.I then consider any increases (uplifts) for the remaining charges. I will refer to someother cases that involved the same kind of charges, as they can sometimes provide auseful comparison.Using a firearm against police[34] Mr Rawhiti, I agree that your offending on this charge was at the lower end ofthe spectrum. It appears you did not show any intention to actually use the firearmagainst the constables, you did not threaten to use it, your fleeting pointing of the rifleat one of the constables was not preceded by violence, nor was it done in the courseof a violent incident. While I do not underestimate the impact it would have had onthe constables to see an intoxicated man get out of the vehicle with a rifle in hand,I accept your explanation that the firearm was not for use against the police.[35] I am not greatly assisted by the previous cases referred to by the lawyersbecause those cases involved a threat or a demonstrated intention to make policeofficers fear that the firearm may well be used against them. In your case, while theconstables did fear for their safety, it was acknowledged that you pointed the gun atthe constable for a fleeting moment only. Further, this was in the course of anuncontrolled movement from you where, as the constable described it, you were sointoxicated that in one motion you came out of the vehicle with your rifle andimmediately fell over.[36] In comparison, the cases referred to me involve offenders presenting a firearmto the police with some intention to use it, for the purpose of avoiding arrest, forexample.7 Other cases have involved the offender having control of the firearm duringan exchange with the police which has gone on for much longer than happened here.8In those cases the risk of harm to the police was significantly greater than the risk yourvictims faced.[37] I agree with your lawyer that the police could have dealt with what you didwith a lesser charge of unlawful possession of a firearm. This should be reflected inthe starting point. Accordingly, I adopt a starting point of two and a half years for thischarge.Unlawful possession of firearm[38] I now consider an uplift to your starting point to reflect the charge of unlawfulpossession of a firearm. I note here the explanation for your possession of a firearmthat appears in the various pre-sentence reports prepared about you. They say that youhave felt the need to carry a firearm to protect yourself from retribution from the gangyou left. You think that members of the gang you left may try to harm you because ofthe information you say you hold.[39] However, I am also conscious of the fact that during the time of the offending,you were on the run from police. You had taken your electronic monitoring bracelet7 R v Hartley [2012] NZHC 2124; and R v Kahu HC Whanganui CRI-2007-083-159, 19 October2009.8 R v Kahu [2017] NZHC 983; and R v Hartley, above n 7.off. You would, no doubt, have been aware that the police were trying to locate andarrest you and could have done so at any moment. You were actively evading arrestthrough your travels. So, it would have been possible that at any moment you may becalled upon to use the firearm. The firearm was within easy reach during yourencounter with the police at the breath test stop and was found at your property at thetime of your arrest. Considering the other, similar cases, I adopt an uplift of 12 monthsfor this charge.9Unlawful taking a motor vehicle[40] The case of Gemmell is helpful here.10 An uplift of 12 months was imposed inthat case. While you did take a police car and crash it into the fence of a residentialproperty, causing financial damage to both the fence and the car, you did not cause asmuch damage as the offender in Gemmell, nor was your use of the vehicle asdangerous. In your case, the vehicle was recovered a short time later.[41] An uplift of six months is appropriate for the charge of unlawfully taking thepolice car.Demanding with intent to steal[42] This offending is also at the lower end of the spectrum. You were acting alonewhen you attempted to use menacing conduct to force your victim to do what youwanted, but no actual violence occurred. The victim was able to drive off soon after,without injury or loss. Nor was there any planning involved, or premeditation in youroffending, as is plain from its unsuccessful outcome. There was also a degree ofphysical separation between you and your victim in the form of the car window.[43] The Crown has referred me to the case of Opetaia v R.11 I find your offendingto be less serious than that case. The offender in Opetaia, along with his associates,demanded money from the bartender. In the process, he grabbed the bartender's shirt9 Faataape v Police HC Rotorua, 30 November 2009, CRI 2009-463-73; and Harrison v Police HCHamilton, 27 September 2007, CRI 2007-419-101 (with the distinguishing factor of the offenderbeing a committed member of a gang). See also R v Kane [2017] NZHC 340.10 Gemmell v Police [2021] NZHC 1292.11 Opetaia v R [2011] NZCA 621and claimed authority over the "land". The offender and his associates were dressedin gang regalia and had their gang patches displayed. A two-year starting point waswithin available range. That case is not a helpful comparison to your offending. As Ihave described, you approached the victim alone, your interaction was a standaloneone and was not part of a longer interaction, such as in Opetaia, where the offenderand his associates had over time asserted dominance over the victim, and, there is nogang element in your offending, which was considered to be an aggravating factor inOpetaia.[44] A case more similar to your situation is Webster where an 18-month startingpoint was adopted for an offender approaching two strangers, asking for cigarettes andsnatching an iPhone from one victim.12 The offender walked away but then returneda moment later to threaten the other victim and demand his phone as well. Althoughyou did not make actual physical contact with your victim, you did raise a knifewhereas in Webster the offender's threat came from his fists only. Accordingly, anuplift of 18 months is appropriate for this offence.Unauthorised use of a communications device[45] I agree that no uplift is necessary for the unauthorised use of a communicationsdevice charge.[46] This brings me to a starting point of five and a half years' imprisonment. Butthen I have to stand back and assess an appropriate sentence for all the charges youface. I must consider each offence individually, but I also have to make sure that thesentence is proportionate to your overall wrongdoing, when looked at as a whole. Thetotal period of imprisonment should be in proportion to the seriousness of the overalloffending.[47] To reflect totality, I reduce the starting point to four years' imprisonment. Thisstarting point appropriately reflects the totality of the offending for which you arebeing sentenced today.1312 Webster v Police [2017] NZHC 2865. See also Regan v R [2012] NZCA 227.13 Sentencing Act, s 85; and R v Xie [2007] 2 NZLR 240 (CA) at [17].Personal aggravating and mitigating factors[48] I turn now to your personal aggravating and mitigating factors.Previous convictions[49] The law says that a Judge may increase the starting point of the sentence toreflect your previous convictions,14 because they "are relevant as an indicator of yourcharacter and culpability, or because they show the need for a greater deterrentresponse, or as an indicator of risk of reoffending."15[50] You have an extensive criminal history dating back to 2000 of offendingsimilar in nature to the present offending.16 The present offending was committedwhile you were under a sentence. For these reasons, I uplift your sentence by sixmonths.Guilty plea[51] I turn now to your guilty plea.17 I accept your lawyer's submission that youpleaded guilty to the charges as soon as possible once amended summaries of factswere agreed to. I also note that despite the amending of charges, your offending hasbeen found to sit at the lower end of the spectrum. This means the strength of theCrown case was not such as to make convictions inevitable. Your guilty pleas wereentered in a matter of days after pre-trial matters were resolved. In thesecircumstances, I consider a discount of 20 per cent (9 months 3 weeks) is appropriate.Personal mitigating factors[52] In sentencing you today, I must take into account your personal, family,community, and cultural background.18 As the various pre-sentence reports note, yourdifficult upbringing has led you to the use of drugs and to a life of crime. You had adysfunctional upbringing with limited emotional and cultural support. You grew up14 Sentencing Act, s 9(1)(j).15 Orchard v R [2019] NZCA 529 at [39].16 Beckham v R [2012] NZCA 290 at [84].17 Sentencing Act, s 9(2)(b); Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [75].18 Sentencing Act, s 8(i).witnessing violence from family members, school and state care. You yourself werethe subject of violence, abuse and mistreatment.[53] You told the report writers that you have not fully explored your whakapapa orte ao Māori, but it appears from the reports that being cut off from that, together witha pattern of both social and economic deprivation, diminished your opportunities andshaped the choices you made. That does not relieve you of personal responsibility foryour actions, but it does help me to understand how you got to the point where youbecame involved in this offending and to that extent it modifies your culpability.[54] I accept that your present offending is associated with the social, cultural andeconomic deprivation that you have experienced. I acknowledge your desire to changeand the remorse you have expressed in the pre-sentence reports where you related yourpointing of the gun at the police to the violence you witnessed your father inflict onyour mother. Without more than your expression of remorse, however, there is alimited discount I can apply.19 Based on your personal mitigating factors, I apply adiscount of 15 per cent (seven months one week) to your sentence for these factors.20[55] Mr Rawhiti you are 36 years old. This means you are a mature adult and I amnot able to discount your sentence for the rehabilitative prospects that might be presentfor someone younger. But I do accept the cultural report writer's observation, that youfind yourself at a crossroads in life. You have the option of continuing on this path ofcriminality that you have been on for most of your adult life, or you can choose thepath you describe wanting, the one where you can "fish and hunt and watch rugby". Iaccept that you are genuine when you say that you want to change your lifestyle andnever want to hold a gun again. I acknowledge what your whānau says. They loveyou and want to support you, but they also say you have used them and hurt them inthe past. They will support you but you have to do the work and take responsibilityyourself to change your life.[56] I acknowledge that it won't be easy, but I hope you will take the opportunityto live a different life.19 Hessell v R, above n 17.20 See, for example, Woodstock v R [2020] NZCA 472; and Carr v R [2020] NZCA 357.Summary[57] In summary, Mr Rawhiti, I adopt a starting point for your offending of fouryears' imprisonment. This is uplifted by six months to account for your previousconvictions, coming to a sentence of four and a half years' imprisonment. This isdiscounted by 20 per cent for you pleading guilty and 15 per cent for your personalmitigating factors, to arrive at an end sentence of three years and one month.Result[58] Mr Rawhiti, please stand.[59] On the charges of using a firearm against police, unlawful possession of afirearm, unlawfully taking a motor vehicle and demanding with intent to steal, Isentence you to a term of imprisonment of three years and one month.[60] On the charge of unauthorised use of a communications device, you areconvicted and discharged.[61] I direct that the psychological report prepared under s 38 of the CriminalProcedure (Mentally Impaired Persons) Act 2003 (dated 19 April 2022) and the s 27cultural report (dated 23 February 2022) be released to the probation service to assisttheir consideration of appropriate conditions to address your needs.Gwyn JSolicitors:Crown Solicitor, WhanganuiCrowley Waugh, Whanganui