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.  If the managers had not been awoken and managed to play the fire hose onto the vehicle fires, the damage, which had already extended to the spouting of the tavern, could have been much greater.  So far as the damage and the circumstances of the house arson are concerned, you yourself had the cheek to come back and to also, while the fire was under way, kick in a ranchslider and what that had the effect of doing was to have a flash over in that room and thus increase the fire.  People were panicking.  The daughter of the people that were away thought for an awful moment that her mother and stepfather were still inside.  Reference is made to children going and visiting this house and there was an initial concern that they too were inside, but there was also a possibility that there were others, other than the owners there.  The son‑in‑law of the people cut his hands in trying to investigate whether anyone was inside.

[10]     Dealing with danger to others the Judge said:

[11]     … Your counsel has said that human life was not at risk here.  Well I am afraid that while you knew that the people were away, because you had been right through the place and ransacked it, other people did not know that.  Other people thought there were or there might have been people still trapped in that burning house and one of them cut his hand trying to make sure that there weren’t.  So you did assuredly put other peoples lives at risk, those who responded to the fire, including the members of the fire service themselves.

[11]     Further, the Judge said in discussing the seriousness of the arsons at the house and of the vehicles:

[17]     … as I have said earlier, if it were not for the quick action of the owners, the building may have caught fire as well.  People’s lives were in danger, either way.

[12]     The Judge’s conclusions as to danger to others focused in part on the danger to those who might be fighting the fires.  The Judge was justified in observing that those fighting fires can be placed in danger.  Given Flat 1 was attached to Flat 2 there were obvious dangers to the welfare of the occupants of Flat 2.  This danger was an aggravating feature the Judge was entitled to take into account in assessing the appropriate sentence.  We consider counsel for the appellant’s surprise at the Judge’s observations, at sentencing, regarding danger to others could have been avoided if prior to sentencing the Judge had advised counsel that he proposed to take into account facts beyond those in the summary of facts.  This gives counsel the opportunity, before sentencing, to decide if they wish to challenge the facts asserted:  s 24 Sentencing Act 2002.

[13]     The second complaint by the appellant is that the Judge referred to the appellant as a recidivist burglar and says the Judge effectively sentenced him for burglary.

[14]     At sentencing the Judge said the appellant had twelve previous convictions for burglary which put the appellant in the position of a recidivist burglar.  The Judge further remarked:

[11]     … You are not charged with burglary today, but burglary was part and parcel of the arson of this house.

[15]     The Judge was entitled to take into account when he sentenced the appellant that he had broken into the premises before he set the fire.  This was an aggravating feature of the arson.  It could not sensibly be divorced from the circumstances of the offending: R v Donaldson CA227/06, 2 October 2006.  We reject the suggestion that the Judge inappropriately sentenced the appellant as a recidivist burglar or effectively sentenced him for burglary.

[16]     The appellant submitted that the Judge’s starting point for this offending at seven years’ imprisonment was too long and as a result his final sentence was manifestly excessive.  The Judge took as an appropriate starting point for the arson of the house five years’ imprisonment and added a further two years’ imprisonment for the two car arsons.  Sentences of four to five years’ imprisonment have been imposed for single offences of arson: R v Rameka CA426/04 16 June 2005; R v Grindrod CA263/99 20 October 1999.

[17]     In this case there were a number of aggravating features.  There were three separate offences, one involving a flat, and two involving motor vehicles.  The arson involving the flat carried an obvious danger to life, as previously identified.  The total damage was well over $100,000 and no reparation was possible.  The offending involved the unlawful entry into a house: s 9(b) Sentencing Act.  The appellant is a mature man with over 100 convictions spanning thirty years.  He is clearly a recidivist burglar.

[18]     We are satisfied, taking these factors overall, that a starting point of seven years’ imprisonment, while at the top of the range available to the Judge, was still within the range.  The modest discount given for a very late plea has not been challenged.  The final sentence of six years and three months’ imprisonment, while stern, was not manifestly excessive.

Minimum period of imprisonment

[19]     The appellant submitted that no minimum sentence of imprisonment was justified in the circumstances of this case.  With respect to a minimum period of imprisonment (“MPI”) the Judge said:

[18]     I have mentioned to counsel s 86 of the Sentencing Act, namely a minimum non‑parole period.  Subsection (2) says:

(2)The court may impose a minimum period of imprisonment … for all or any of the following purposes:—

(a)holding the offender accountable for the harm done to the victim and the community by the offending:

(b)denouncing the conduct in which the offender was involved:

(c)deterring the offender or other persons from committing the same or a similar offence:

(d)      protecting the community from the offender.

[19]     Regrettably, Mr Rikiriki, in your case, all of those provisions apply.  So there will be a minimum non‑parole today of a maximum of two thirds which in this case I round down to four years and six months.  Thank you, stand down.

[20]     The Judge’s quote from s 86(2) unfortunately omitted an important portion of the subsection.  Section 86(2) in full provides:

86       Imposition of minimum period of imprisonment in relation to determinate sentence of imprisonment

…

(2)The court may impose a minimum period of imprisonment that is longer than the period otherwise applicable under section 84(1) of the Parole Act 2002 if it is satisfied that that period is insufficient for all or any of the following purposes:—

(a)holding the offender accountable for the harm done to the victim and the community by the offending:

(b)      denouncing the conduct in which the offender was involved:

(c)deterring the offender or other persons from committing the same or a similar offence:

(d)      protecting the community from the offender.

[21]     Thus before the Court may impose a MPI, s 86(2) requires that the Court be satisfied that the period otherwise applicable under s 84(1) of the Parole Act is insufficient for the purposes set out in paras (a) to (d).  It is not simply a question of imposing a MPI where paras (a) to (d) are satisfied.

[22]     As the Crown conceded, in addition, the Judge made an error in his calculation of the MPI.  A minimum sentence of imprisonment can only attach to an individual sentence (s 86(1)).  The Judge imposed cumulative sentences.  The MPI, therefore, could only attach to the longest individual sentence imposed.  However, the Judge took the total cumulative sentence of seven years’ imprisonment, deducted nine months for the guilty plea and incorrectly calculated the MPI as two thirds of the total sentence of six years and three months’ imprisonment.

[23]     The Judge did not identify what sentences he imposed on the individual counts of arson.  To correctly calculate the sentence on which an MPI can be assessed we need to identify the individual sentences.  The Judge began with sentences of five years’ imprisonment for the arson of the flat and two years’ imprisonment with respect to the arson of the cars.  He made a nine month deduction for the appellant’s guilty plea from the total of seven years.  Adjusting the sentences as best can be calculated, results in a four year six month sentence with respect to the arson of the flat and 21 months’ imprisonment for the other arsons.  The MPI, therefore, in terms of s 86 of the Sentencing Act, can only be applied to the sentence of four years and six months’ imprisonment.

[24]     We now turn to consider whether the Judge should have imposed an MPI at all and if so what percentage.

[25]     The first question for the Judge under s 86 is the applicable period under s 84(1) of the Parole Act.  In this case, the applicable period is one third of the finite sentence for the particular offence.  The Judge did not identify why he chose the longest MPI, at two thirds, available to him.  While this was a serious arson it could not be said that the aggravating features in this case, by comparison with other similar types of offending, was such that a two thirds MPI was required.  If an MPI was to be imposed then we do not consider one of more than 50 per cent could have been justified in the circumstances. 

[26]     However, a simple calculation will illustrate the pointlessness of imposing such a sentence.  The appellant will be eligible for parole without an MPI being imposed at one third of his sentence of six years and three months, being two years and one month imprisonment.

[27]     If a 50 per cent MPI is applied to the four year six month sentence for the arson of the flat, that would result in an MPI of two years and three months, only two months more than the one third parole eligibility date.  In those circumstances there would have been little point in the imposition of such a sentence. 

[28]     We acknowledge that the appellant has obtained an advantage as to the calculation of the MPI because the Judge chose to impose cumulative sentences.  For reasons we have identified the minimum period could only apply to an individual sentence, here the longest such sentence.  If the Judge had chosen to impose three concurrent sentences with the longest reflecting all the offending then the minimum imprisonment period would have been rather longer.  However, there is no reason to interfere in the way in which the Judge structured his sentence.

[29]     For the reasons given, therefore, the appeal against sentence is dismissed.  The appeal against the MPI is allowed and the MPI is quashed.

Solicitors:

Crown Law Office, Wellington