R v Rikiriki - [2009] NZCA 217

IN THE COURT OF APPEAL OF NEW ZEALAND
CA788/2008
[2009] NZCA 217
THE QUEEN
v
SONNY BILLY RIKIRIKI
Hearing:25 May 2009

Court:Hammond, Ronald Young and Clifford JJ
Counsel:P T Birks for Appellant

S B Edwards and K F Salmond for Crown

Judgment:29 May 2009 at 2.30pm

JUDGMENT OF THE COURT

A.The appeal against sentence is dismissed.
B.The appeal against the minimum period of imprisonment is allowed and the minimum period of imprisonment is quashed.

____________________________________________________________________
REASONS OF THE COURT
(Given by Ronald Young J)
Introduction
[1]       On two days in June 2007 the appellant set fire to a flat and two cars. He was to face trial on three counts of arson (s 267(1)(b) Crimes Act 1961), one of burglary and one of theft but pleaded guilty to the three arson counts three days before trial. The Crown offered no evidence on the two other counts and the Judge discharged him.
[2]       The appellant says that Judge McGuire’s sentence of six years and five months’ imprisonment for the arsons was manifestly excessive and that the minimum non‑parole period of four years six months’ imprisonment was not appropriate.
Background facts
[3]       Early on 4 June 2007 the appellant broke into an unoccupied flat in Rotorua.   Once inside he ransacked the premises and set fire to it by burning a plastic container on the stove and opening a gas cylinder in the lounge. The estimate of damage to the flat was $55,500.
[4]       In the early hours of 12 June 2007 the appellant entered the enclosed yard of a tavern in Rotorua. He then broke into a Holden utility vehicle and set fire to the front seat. The car burnt and the rear wall of the tavern was also damaged. The total damage was $52,000.
[5]       That same night the appellant set fire to a second vehicle in the same area causing $4,000 worth of damage.
Discussion
[6]       The appellant’s first submission is that the Judge’s sentence was inflated by an erroneous view of the facts that life was endangered by these arsons. The appellant says because he was not charged with the more serious offence of arson endangering life (s 267(1)(a)) the Judge should not have taken into account any possible danger to life.
[7]       An amended summary of facts was prepared for the sentencing. It did not directly assert that lives were endangered from any of the arsons. However, it identified that Flat 1 (subject to the arson) was unoccupied but that Flat 2 (attached to Flat 1) was occupied at the time of the arson and the occupants were asleep inside when the fire began.
[8]       As to the other arsons there was nothing to suggest in the summary of facts that there was anyone in the tavern when the vehicles were set on fire.
[9]       It seems, however, that the Judge had additional material regarding the circumstances of the offending. At sentencing he said:
[6]       Just a couple of other things relating to the arsons, the vehicles first.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Rikiriki

Details

AGLC: R v Rikiriki [2009] NZCA 217
Case: [2009] NZCA 217
Decision Date: 29 May 2009

CaseChat Overview and Summary

In the case of R v Rikiriki, the appellant, Sonny Billy Rikiriki, appealed against both his sentence and the minimum period of imprisonment imposed by Judge McGuire. Rikiriki was found guilty of three counts of arson committed in June 2007. The court had to decide whether the sentence of six years and five months' imprisonment was manifestly excessive, and if the minimum non-parole period of four years and six months was appropriate. The court also had to determine if the judge's consideration of potential danger to life and the appellant's status as a recidivist burglar were justified.

The court found that the judge was justified in considering the potential danger to life, as the circumstances of the offending suggested that lives were at risk. The court also found that the judge was entitled to consider the appellant's status as a recidivist burglar, as it was an aggravating feature of the arson. The court further found that the starting point for the sentence, while at the top of the range available to the judge, was still within the range and the final sentence of six years and three months' imprisonment was not manifestly excessive. However, the court found that the judge misapplied the law when calculating the minimum period of imprisonment, and that a two-thirds minimum period of imprisonment was not justified in the circumstances. The court quashed the minimum period of imprisonment and remitted the case to the sentencing judge for reconsideration.

In conclusion, the Court of Appeal dismissed the appeal against the sentence but allowed the appeal against the minimum period of imprisonment and quashed it. The case was remitted to the sentencing judge for reconsideration of the minimum period of imprisonment.

Orders