R v Ratima

[2019] NZHC 1586

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2018-044-4320

[2019] NZHC 1586

THE QUEEN

v

JAMES KINGI RATIMA

Hearing:

9 July 2019

Appearances:

S Teppett for Crown

P Hamlin and S Vincent for Defendant

Judgment:

9 July 2019

SENTENCING REMARKS OF LANG J

R v RATIMA [2019] NZHC 1586 [9 July 2019]

[1]    Mr Ratima, you appear for sentence today having pleaded guilty to a charge of injuring with intent to injure.1 The maximum penalty for that charge is five years imprisonment.

[2]    You have pleaded guilty on the basis of a summary of facts that you accept. This records that you are currently a sentenced prisoner. You are serving a sentence of ten years imprisonment imposed on 23 February 2017 on a charge of robbery involving assault. You are required to serve a minimum term of five years before being eligible to apply for parole on that sentence.

The charge

[3]    On 16 May 2018 you were housed in the special needs unit of the Auckland Prison at Paremoremo. At about 11 am that day, you were involved in a serious assault of another prisoner. This prisoner had gone to the Top East landing grille to collect tea and hot water from a Corrections Officer on the other side of the grille. Without any form of warning you approached this prisoner from behind. You ran a short distance before jumping in the air and kicking the prisoner in the back of the head with your right foot. The blow struck him in the head with considerable force. It caused his head to smash violently against the grille before he fell to the ground. As a result of the incident the prisoner suffered a fracture of his left cheek bone and left jaw, as well as a laceration to his left eyebrow.

Starting point

[4]    The starting point to be applied to this charge falls to be determined in accordance with several  Court of Appeal  authorities, including Nuku  v  R  and  R   v Taueki.2 The most obvious aggravating factors here are the fact that you struck a forcible blow to the back of the victim’s head. He was in a vulnerable position at that time because he could not see you coming. As a result, he could take no evasive action or take any steps to defend himself against, or prepare himself for, the blow that he received. The injuries the victim suffered were significant, although it appears they are unlikely to be of long-lasting effect.

1      Crimes Act 1961, s 189(2)

2      Nuku v R [2012] NZCA 584; [2013] 2 NZLR 39; R v Taueki [2005] 3 NZLR 372 (CA).

[5]    The authorities that counsel have counsel have referred to suggest a starting point of between two years and two years seven months imprisonment.3 Ordinarily, having regard to the aggravating features I have identified, I would select a starting point of two years two months imprisonment.

[6]    I need to take into account, however, the material contained in a report from a psychiatrist that your counsel provided me with just before sentencing began today. This reveals that you have had long-standing psychiatric issues. You have been diagnosed with ADHD. You have also had diagnoses of schizophrenia and psycho- effective disorders. These undoubtedly played a part in the offending. The underlying disorders were aggravated by the fact that, shortly before the offending, you were taken off the medication you had been on. You were then placed on another medication that was approximately one-half as strong as the earlier medication.

[7]    You had indicated to prison staff during the weeks leading up to the incident that you did not feel well and that you felt suspicious and paranoid about those around you. These included the victim, with whom you had had several confrontations in earlier days or weeks. You had apparently told the prison authorities you should not be housed on the same landing as this person, but they told you they could do nothing about it and you needed to put up with it. You told the psychiatrist that on the day of the offending you felt paranoia towards all of those around you, including your victim because of your earlier confrontations with him.

[8]    There is a suggestion in the notes kept by the prison health authorities that you may have been diverting the medication you were receiving to others. For present purposes I put that to one side but, if correct, it would obviously reduce the amount of discount of could apply to reflect that factor because it would mean you effectively brought your problems on yourself.

[9]    The psychiatrist considers you were suffering from a significant benzodiazepine withdrawal at the time of your offending. A state of withdrawal is likely to have contributed significantly to your tendency to experience anger, fear,

3      R v Rewa [2015] NZHC 2459; Feau v R [2019] NZCA 72; Elizalde v New Zealand Police [2015] NZHC 959

persecutory thinking and agitation. These, in turn, are likely to have increased your tendency to respond violently to your perception of the situation.

[10]   I need to take that into account, because it affects the starting point. It affects the starting point because it means that other factors were at play as well as your desire to hurt this victim. I propose to reduce the starting point that would otherwise be appropriate by six months to reflect this factor. This means I adopt a starting point of 20 months imprisonment.

Aggravating factors

[11]   You have several previous convictions for offending involving violence. The most relevant of these is the conviction for which you are currently serving a significant sentence of imprisonment. You also have other convictions for offending involving violence. The Crown suggests a modest uplift of two months to reflect this factor. This is not to punish you again for your earlier offending. Rather, it reflects the fact that the current offending is made more serious by the fact that you have paid no heed to earlier sentences imposed on you. I apply the uplift of two months to reflect this factor. This produces a sentence of 22 months imprisonment.

Mitigating factors

[12]   The only mitigating factor I propose to apply is in relation to your guilty plea. You were fortunate, in my view, that the Crown was prepared to reduce the charge to one of injuring with intent to injure.

[13]   You are currently subject to the “three strikes” regime and a conviction on the more serious charge that you originally faced would have required you to serve the maximum sentence on that charge. This is likely to have been a sentence of 14 years imprisonment. As it is, the charge to which you have now pleaded guilty does not engage the “three strikes” regime.

[14]   Your counsel suggests a discount of 25 per cent to reflect the fact that you entered an immediate guilty plea. I take into account the reduction of the charge and

the considerable benefit you have already received from that. I propose to allow a discount of five months, or around 20 per cent, to reflect that factor.

[15]   I do not propose to apply any additional discount to reflect your underlying psychiatric conditions. You have been within a prison environment for a long time now and appear to be coping notwithstanding the conditions from which you suffer. It is essential, however, that you maintain the medication prescribed to you to avoid the risk of being involved in similar incidents in the future.

Sentence

[16]   On the charge of injuring with intent to injure you are sentenced to 17 months imprisonment. That sentence is to be served cumulatively on the existing sentence you are serving on the charge of robbery.

[17]Stand down.

Lang J

Solicitors:
Crown Solicitor, Auckland