R v Rawhiti

[2022] NZHC 2680

IN THE HIGH COURT OF NEW ZEALAND WHANGANUI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGANUI ROHE

CRI-2022-083-746

[2022] NZHC 2680

THE KING

v

TAMA RAWHITI

Hearing:	17 October 2022
Counsel:	M Wilkinson-Smith for the Crown J H Waugh for Mr Rawhiti
Sentencing:	17 October 2022

SENTENCING NOTES OF GWYN J

Introduction

[1]        Mr Rawhiti, you appear for sentence having pleaded guilty to the following charges:

(a)Using a firearm against police;1

(b)Unlawful possession of a firearm;2

(c)Unlawfully taking a motor vehicle;3

1      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.

R v RAWHITI [2022] NZHC 2680 [17 October 2022]

(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, which sets out the purposes and principles of sentencing. The main purposes of sentencing in your case are to hold you accountable for the harm you have caused through your offending; 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 your rehabilitation and reintegration into society.6 What that means in practice is that I have to look at the whole situation and do what I can to mark what you have done, but also to acknowledge who you are and your particular circumstances and background.

[3]        In sentencing you, I will first say something about your offending, explain your personal circumstances, and set out counsel’s submissions. I will then calculate a sentence by adopting a two-step approach: first, I set a starting point based on the offences you have pleaded guilty to; and second, I will consider whether to apply any increases (uplifts) and discounts to reflect your personal aggravating and mitigating factors.

[4]        Because sentencing is a public process, I have to talk about the detail of what happened.

The offending

[5]        In July 2019 you had been released from prison on parole. One of the conditions 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 recall warrant being issued for you, but you managed to avoid arrest for six weeks through the help of your associates. It is during this time that the offending for which you are being sentenced today took place.

4      Communications Act 2004, s 141A(1) carries a maximum penalty of three months’ imprisonment or 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 a vehicle into a carpark, believing that the vehicle had been stolen from one of your accompanying associates. While the make and colour of your associate’s allegedly stolen 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’s car. You then got out of your vehicle, approached the victim with a large knife and told the victim to get out of the car because it was, in fact, your car. The victim managed to drive off without injury but was shaken by the incident. This forms the basis 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 random breath 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 drive away. In response, the constable took the keys out of the ignition. Apparently you were heavily under the influence of alcohol at the time. You then got out of the car with your rifle. You had no control over your movements, so that immediately after you got out of the car you fell over. While you were coming out of the car, your rifle fleetingly pointed at one of the two constables conducting the breath test. The police officers ran from the scene and took cover.

[8]        You and your associate then got into the police car, which at this point was empty, and drove off. The police car was found a short time later, crashed into the fence of a residential property. The fence and the police car suffered damage as a result. These facts form the basis of the using a firearm against police, unlawful possession of a firearm and unlawfully taking a motor vehicle charges.

[9]        You were arrested on 30 September 2019. The sawn-off rifle and ammunition were found at the property where you were arrested.

[10]      While in custody, you and an associate came up with a plan to divert your authorised phone call to a third party. Through some trial and error, you managed to do this. You got through to a person you believed had complained about drugs at your

home and questioned her on the phone. This is the basis of the unauthorised use of a communication device charge.

[11]      In his victim impact statement, the constable who you pointed a gun at describes 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 he would never return home to see his family and friends again. He thinks about the incident often and regrets the negative and lasting impact your offending has had on him.

[12]      The other constable similarly describes your offending as the worst experience of her policing career. She describes the overwhelming worry she felt when you drove away with the patrol car with their firearms in it and the prospect of you returning to use those firearms against them. She describes the lasting impact the incident has had on how she now approaches traffic stops. She expresses regret at the delay in resolution of the case.

Personal circumstances

[13]      Mr Rawhiti, before sentencing you today, I have read a number of reports. The first is the provision of advice to Courts (PAC) Report, dated 2 March 2022, prepared by the Department of Corrections; a Cultural Report prepared under s 27 of the Sentencing Act give me a better understanding of your background; and a report from a psychologist prepared under s 38 of the Criminal Procedure (Mentally Impaired Persons) 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 court orders related offending. The PAC report says you have a high risk of re-offending and causing harm to others based on your pattern of repeat offending. The report writer considers it is your anti-social associates, tendency towards violence and drug and alcohol abuse which have contributed to your risk of offending.

[15]      The report recommends that you make significant changes to your lifestyle and stop spending time with the people who have a bad influence over you. Similarly, it

recommends programmes to deal with your drug and alcohol abuse, noting that you were under the influence of methamphetamine when you committed some of the offending for which you are being sentenced today. Rehabilitative programmes to address your violent tendencies are also recommended to reduce your risk of re- offending. The overall recommendation for you, Mr Rawhiti, is a sentence of imprisonment with special conditions to address the factors which have contributed to your offending so far.

[16]      The cultural report describing your background makes for painful reading. It details 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 the various youth justice facilities that were supposed to care for you. The report writer acknowledges your awareness of the harm all that violence has caused you. You carry that trauma and wish to let it go. You have expressed to the report writer a desire to change your lifestyle and attitude. You know this will involve staying away from drugs, 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 to do is start up a hairdressing and tattoo business in Ratana, where you have family support. 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 the range of adverse experiences you have endured in your childhood. Counselling will help in that regard, but the report also acknowledges the need for you to take responsibility and consciously change your path. This will be hard work and the temptation to return to a life of crime will be present along the way. But if you can manage to change, with the support of your family and professionals, the report writer thinks you can have the future you want.

[18]      Mr Rawhiti, the s 38 report prepared by a psychologist also describes your difficult childhood. The experiences you endured in childhood meant that you saw violence as a means to resolve conflict. The survival skills you needed during that difficult period have stayed with you and have contributed to your offending. But they are no longer needed. The psychologist recommended in her report that you undertake programmes 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 address the 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 offence and I should impose a significant penalty for it, to discourage you from further offending. Counsel submits that a starting point of between four and five years is appropriate.

[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 possession of firearm charges. Counsel submits that your sentence should be longer than your associate’s sentence on the charges of unlawful possession of a firearm (18 month starting point) and unlawful taking of the police car (uplift of four months) to reflect your role as the dominant principal offender.

[22]      Mrs Wilkinson-Smith submits that an increase on the starting point of 12-18 months for the charge of demanding with intent to steal, is warranted, to reflect the fact that you were under a sentence at the time of this offending and to reflect your extensive criminal history involving violence. The Crown does not make a specific submission on the unauthorised use of a communications device charge.

[23]      Having regard to the total sentence, the Crown submits that a start point of between five years four months and six years two months should be adopted for your offending. This could be reduced on the basis of s 27 cultural factor discounts and a guilty plea discount of between five and ten per cent.

[24]      Counsel submits that I should consider the importance of public protection in sentencing 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 the scale for all of the charges you have pleaded guilty to. The lead charge, of using a firearm against police involved no intentional pointing of the firearm, no active use of the firearm and no verbal threat to do so. The culpability involved could have been reflected in an unlawful possession of a firearm charge only.

[26]      Similarly, the unlawful taking of the police car is less serious than the cases cited by the Crown. The charge of unlawful possession of a firearm should be absorbed in the same starting point to arrive at 42 months for the firearm offences. An uplift of six months should be imposed for the unlawful taking of the police car to result in a four year starting point for the Ohakune offending.

[27]      Mr Waugh says that the demanding with intent to steal offending is at the bottom of the range identified for street robberies. There was no planning or premeditation involved, you approached the victim’s vehicle alone, you did not try to hide your identity, the offending took place in a public place, no violence occurred and no injury was inflicted on the victim, who managed to leave the scene as soon as you made a demand. A starting point of 18 months should be adopted, resulting in a total start point of five and a half years. Mr Waugh says this should be reduced to four and a half years to reflect the total offending.

[28]      Mr Waugh concedes that your criminal history and the fact that this set of offending 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 to show more in the way of intimidation, rather than actual violence and that you have not had the benefit of any real rehabilitative programmes.

[29]      Counsel submits that I should give you a discount of at least 20 per cent because you pleaded guilty to the charges very soon after they were amended and summaries of facts were presented. While it may not have been at the earliest opportunity, it was very early on in the piece and that should be reflected in the discount.

[30]      Mr Waugh says that the various reports prepared to assist the Court in sentencing you show how your background has contributed to your offending. You learnt in your childhood to fear authority and that you had to use violence to protect yourself. You used drugs and alcohol as an escape from the trauma you carry. And you have not had any rehabilitative assistance to address these persistent problems. Counsel submits that there is a clear connection between your background and the current 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 those factors.

[31]      Mr Waugh says a conviction and discharge is appropriate for the unauthorised use of a communications device charge.

[32]      On counsel’s calculation, you would receive an end sentence of just less than three years’ imprisonment.

Starting point

[33]      Now I will talk about the way I have decided to approach the starting point in your case. I treat the charge of using a firearm against police as the lead offending and adopt 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 some other cases that involved the same kind of charges, as they can sometimes provide a useful comparison.

Using a firearm against police

[34]      Mr Rawhiti, I agree that your offending on this charge was at the lower end of the spectrum. It appears you did not show any intention to actually use the firearm against the constables, you did not threaten to use it, your fleeting pointing of the rifle at one of the constables was not preceded by violence, nor was it done in the course of a violent incident. While I do not underestimate the impact it would have had on the 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 lawyers because those cases involved a threat or a demonstrated intention to make police officers fear that the firearm may well be used against them. In your case, while the constables did fear for their safety, it was acknowledged that you pointed the gun at the constable for a fleeting moment only. Further, this was in the course of an uncontrolled movement from you where, as the constable described it, you were so intoxicated that in one motion you came out of the vehicle with your rifle and immediately fell over.

[36]      In comparison, the cases referred to me involve offenders presenting a firearm to the police with some intention to use it, for the purpose of avoiding arrest, for example.7 Other cases have involved the offender having control of the firearm during an exchange with the police which has gone on for much longer than happened here.8 In those cases the risk of harm to the police was significantly greater than the risk your victims faced.

[37]      I agree with your lawyer that the police could have dealt with what you did with a lesser charge of unlawful possession of a firearm. This should be reflected in the starting point. Accordingly, I adopt a starting point of two and a half years for this charge.

Unlawful possession of firearm

[38]      I now consider an uplift to your starting point to reflect the charge of unlawful possession of a firearm. I note here the explanation for your possession of a firearm that appears in the various pre-sentence reports prepared about you. They say that you have felt the need to carry a firearm to protect yourself from retribution from the gang you left. You think that members of the gang you left may try to harm you because of the 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 bracelet

7      R v Hartley [2012] NZHC 2124; and R v Kahu HC Whanganui CRI-2007-083-159, 19 October 2009.

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 and arrest you and could have done so at any moment. You were actively evading arrest through your travels. So, it would have been possible that at any moment you may be called upon to use the firearm. The firearm was within easy reach during your encounter with the police at the breath test stop and was found at your property at the time of your arrest. Considering the other, similar cases, I adopt an uplift of 12 months for this charge.9

Unlawful taking a motor vehicle

[40]      The case of Gemmell is helpful here.10 An uplift of 12 months was imposed in that case. While you did take a police car and crash it into the fence of a residential property, causing financial damage to both the fence and the car, you did not cause as much damage as the offender in Gemmell, nor was your use of the vehicle as dangerous. 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 the police car.

Demanding with intent to steal

[42]      This offending is also at the lower end of the spectrum. You were acting alone when you attempted to use menacing conduct to force your victim to do what you wanted, 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 your offending, as is plain from its unsuccessful outcome. There was also a degree of physical 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 offending to 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 shirt

9      Faataape v Police HC Rotorua, 30 November 2009, CRI 2009-463-73; and Harrison v Police HC Hamilton, 27 September 2007, CRI 2007-419-101 (with the distinguishing factor of the offender being 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 621

and claimed authority over the “land”. The offender and his associates were dressed in gang regalia and had their gang patches displayed. A two-year starting point was within available range. That case is not a helpful comparison to your offending. As I have described, you approached the victim alone, your interaction was a standalone one and was not part of a longer interaction, such as in Opetaia, where the offender and his associates had over time asserted dominance over the victim, and, there is no gang element in your offending, which was considered to be an aggravating factor in Opetaia.

[44]      A case more similar to your situation is Webster where an 18-month starting point was adopted for an offender approaching two strangers, asking for cigarettes and snatching an iPhone from one victim.12 The offender walked away but then returned a moment later to threaten the other victim and demand his phone as well. Although you did not make actual physical contact with your victim, you did raise a knife whereas in Webster the offender’s threat came from his fists only. Accordingly, an uplift 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 communications device charge.

[46]      This brings me to a starting point of five and a half years’ imprisonment. But then I have to stand back and assess an appropriate sentence for all the charges you face. I must consider each offence individually, but I also have to make sure that the sentence is proportionate to your overall wrongdoing, when looked at as a whole. The total period of imprisonment should be in proportion to the seriousness of the overall offending.

[47]      To reflect totality, I reduce the starting point to four years’ imprisonment. This starting point appropriately reflects the totality of the offending for which you are being sentenced today.13

12     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 to reflect your previous convictions,14 because they “are relevant as an indicator of your character and culpability, or because they show the need for a greater deterrent response, or as an indicator of risk of reoffending.”15

[50]      You have an extensive criminal history dating back to 2000 of offending similar in nature to the present offending.16 The present offending was committed while you were under a sentence. For these reasons, I uplift your sentence by six months.

Guilty plea

[51]      I turn now to your guilty plea.17 I accept your lawyer’s submission that you pleaded guilty to the charges as soon as possible once amended summaries of facts were agreed to. I also note that despite the amending of charges, your offending has been found to sit at the lower end of the spectrum. This means the strength of the Crown case was not such as to make convictions inevitable. Your guilty pleas were entered in a matter of days after pre-trial matters were resolved. In these circumstances, 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, your difficult upbringing has led you to the use of drugs and to a life of crime. You had a dysfunctional upbringing with limited emotional and cultural support. You grew up

14     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 were the subject of violence, abuse and mistreatment.

[53]       You told the report writers that you have not fully explored your whakapapa or te ao Māori, but it appears from the reports that being cut off from that, together with a pattern of both social and economic deprivation, diminished your opportunities and shaped the choices you made. That does not relieve you of personal responsibility for your actions, but it does help me to understand how you got to the point where you became 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 and economic deprivation that you have experienced. I acknowledge your desire to change and the remorse you have expressed in the pre-sentence reports where you related your pointing of the gun at the police to the violence you witnessed your father inflict on your mother. Without more than your expression of remorse, however, there is a limited discount I can apply.19 Based on your personal mitigating factors, I apply a discount 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 am not able to discount your sentence for the rehabilitative prospects that might be present for someone younger. But I do accept the cultural report writer’s observation, that you find yourself at a crossroads in life. You have the option of continuing on this path of criminality that you have been on for most of your adult life, or you can choose the path you describe wanting, the one where you can “fish and hunt and watch rugby”. I accept that you are genuine when you say that you want to change your lifestyle and never want to hold a gun again. I acknowledge what your whānau says. They love you and want to support you, but they also say you have used them and hurt them in the past. They will support you but you have to do the work and take responsibility yourself to change your life.

[56]      I acknowledge that it won’t be easy, but I hope you will take the opportunity to 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 four years’ imprisonment. This is uplifted by six months to account for your previous convictions, coming to a sentence of four and a half years’ imprisonment. This is discounted by 20 per cent for you pleading guilty and 15 per cent for your personal mitigating 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 a firearm, unlawfully taking a motor vehicle and demanding with intent to steal, I sentence you to a term of imprisonment of three years and one month.

[60]      On the charge of unauthorised use of a communications device, you are convicted and discharged.

[61]      I direct that the psychological report prepared under s 38 of the Criminal Procedure (Mentally Impaired Persons) Act 2003 (dated 19 April 2022) and the s 27 cultural report (dated 23 February 2022) be released to the probation service to assist their consideration of appropriate conditions to address your needs.

Gwyn J

Solicitors:

Crown Solicitor, Whanganui Crowley Waugh, Whanganui