R v Ruatoto HC Whangarei CRI-2011-027-103

[2011] NZHC 1110

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI-2011-027-103

THE QUEEN

v

TREVOR JOHN RUATOTO

Counsel:         M B Smith for Crown

D J Blaikie for Prisoner

Judgment:      15 September 2011

SENTENCING NOTES OF BREWER J

SOLICITORS

Marsden Woods Inskip & Smith (Whangarei) for Crown

DJ Blaikie (Kaikohe) for Prisoner

R V RUATOTO HC WHA CRI-2011-027-103 15 September 2011

Introduction

[1]      Mr Ruatoto, you appear for sentence on one charge of wounding with intent to injure.  You pleaded guilty to that charge on 4 August 2011.  The maximum term of imprisonment for that offence is seven years.

Facts

[2]      At about 10.30 pm on 21 December 2010 you were watching an argument that was taking place in a carpark in Kerikeri.  This argument involved three other males and there was a large number of people watching.

[3]      Your victim, a 48 year old European man who was unknown to you, was walking along the road when he heard the yelling coming from you and your associates in the carpark.  He was curious and he came to take a look.   However, when he got there one of the young females that was with the group came over and told him that he should go because the people present were very angry and he was not safe.  Upon being told this your victim immediately turned and walked away.

[4]      However, he soon saw that you and two other males were following him.  He kept on walking and behind him someone started calling out to him, referring to him as “white boy”.  This was repeated a number of times and in the end your victim had no option but to turn to try to talk his way out of it.  As he turned to tell you all that he had “no beef” with you, you punched him on the right hand side of his face.

[5]      The punch damaged your victim’s nose, knocked a tooth out and split his lip. This required a number of stitches to repair.  The dental treatment necessary to repair the damage cost $2,705.

[6]      When you punched him, another one of the males with you pushed the victim and the combined force of your punch and the push caused your victim to fall to the ground.   Someone then stood on the victim’s head, effectively pinning him to the ground, while others kicked and punched him a number of times.  Your victim lay still and did not resist.

[7]      After a short period of time you left the victim alone and walked off.  When you were spoken to by Police on 22 December 2010 you denied assaulting the victim and said that you had gone straight home.

Purposes and principles of sentencing

[8]      Sentencing you today will be a three-step process.  The first step is to look at the seriousness  of  your  offending.   To  do  that  I have to  take into  account  the principles and purposes of sentencing.  As part of that exercise I have to consider similar cases to see what others have been sentenced to for similar offending.  This first step will result in a starting point of imprisonment.

[9]      The second step in the sentencing process today will be to look at factors that relate to you personally.  This is done in order to see whether the starting point of imprisonment should be adjusted either up or down.   I can tell you now that the result of this second step will put you within a range where I will have to consider a sentence of home detention.

[10]     The third step in sentencing you today, therefore, will be to consider whether you should serve a short term of imprisonment or whether you should instead serve a period of home detention.

The first step

[11]     Your case falls within band one of a case called R v Taueki.[1]  This was a street attack where you attacked your victim in a public street in circumstances where the attack was impulsive and no weapons were involved.  However, you were with two other people who attacked your single victim and the harm done to him, particularly the loss of a tooth, will have lasting effect.  As the cost of the dental treatment alone shows, the victim has also suffered financial detriment.

[1] R v Taueki [2005] 3 NZLR 372 (CA).

[12]     The starting point for a Taueki band one offence is in a range of between

three and six years’ imprisonment.  However, Taueki relates to a class of offending

which is more serious than yours and so it is the categorisation of the offence to which I have regard rather than the starting point range, which I regard as being useful for reference only.

[13]     Another case which sets sentencing standards, this time for the offence of injuring with intent to injure, is R v Harris.[2]  As in your case, an intent to cause an injury is required and harm has to result.  If your offence had been an injuring with intent to injure offence, I would put you into band two of R v Harris; that is to say, the intent to injure resulted in moderate injuries and so sentences of up to two years’ imprisonment can be justified.   However, the charge R v Harris deals with is less serious  than the offence to  which  you  have pleaded  guilty,  and  again  I use its sentencing bands as reference points.

[2] R v Harris [2008] NZCA 528.

[14]     So far as aggravating features are concerned, and in the light of the earlier discussion with the lawyers about how I must treat the summary of facts, I am to sentence you on the basis that you acted alone and not in concert with the other males.  However, I am also to sentence you on the basis that you were aware of their presence and that in striking your victim as you did you left him vulnerable to the attacks of the others, and you were aware that they were aggressive and were calling out “white boy”.  I will also sentence you on the basis that you did not take part in a racially motivated attack.

[15]     So far as aggravating features are concerned, therefore, I take into account that you were not part of a group attack on the victim, but you were aware of the presence of the others and you struck the first blow.   Although your attack was impulsive, there must have been at least a short period of time when you allowed your anger and frustration stemming from your earlier argument with your cousin to join with the anger and aggression of the others who you knew were following close behind you.

[16]     Given the references to “white boy”, I can only conclude that the motive of the others for the attack was racially charged and you were at least aware of that and made the victim vulnerable to the others.

[17]     There are no mitigating features of your offending.

[18]     The Crown submits that I should adopt a starting point of two-and-a-half to three years’ imprisonment.  Your own lawyer submits that the starting point should be no more than two years’ imprisonment.

[19]     I have considered the other cases the lawyers have referred to in their written submissions, and in light of the circumstances I impose a starting point of two years’ imprisonment.

The second step

[20]     I now turn to look at factors relating to you personally.

[21]     You are 18 years old.  At the time of the offence you were 17 years old.  You are a tall and powerfully built young man and your chronological age does not immediately indicate your physical ability to deal out violence if you wish to do so. You were raised by your maternal grandparents and have not had any contact with your biological father.  Your grandfather has passed away and you have been living with your grandmother.  You have two younger brothers who live with their mother in Kerikeri.

[22]     You appear to have a supportive extended family.   I note the presence in

Court today, for example, of your uncle.   However, you left school at the age of

14 years with no formal qualifications. You told the writer of the pre-sentence report that this was due to your “disruptive behaviour while hanging out with the wrong crowd”.   You began an alternative education programme, but that closed due to a lack of funding.  You have, however, completed an environmental studies course at North Tec.  Nevertheless, you were unemployed at the time of this incident and have only ever worked intermittently and part-time.   Your lawyer says that your uncle might offer you employment in the kiwifruit industry in the future.

[23]     A very  serious  aggravating  factor  for  you  is  your  criminal  record.    On

24 September  2008,  when  you  were  15  years  old,  you  committed  two  acts  of

wounding with intent to cause grievous bodily harm.  You were sentenced on those charges on 24 July 2009 to one years’ supervision and four months’ community detention.

[24]     On 21 May 2010, when you were 17 years old, you offended again.   This time you committed common assault, resisting Police, escaping and burglary.   On

17 August 2010 you were sentenced to 200 hours’ community work and a further four months’ community detention.

[25]     The point is, Mr Ruatoto, that at the time you attacked this victim you were still subject to the sentence of the Court.   You had 163 community work hours remaining and the four months’ community detention had expired only a few days before your attack on your latest victim.

[26]     I impose an uplift on your sentence of six months’ imprisonment to take into account  these  factors.    This  takes  your starting  point  to  two  years  six  months’ imprisonment.

[27]     I now turn to your mitigating features.  You have expressed remorse and you have offered to make reparation.   Words are cheap, Mr Ruatoto, and to give real credit for remorse a Court looks to see some tangible action taken pursuant to it. The offer of reparation is hollow given that you have never had permanent employment, have no qualifications, and live in an area of the country where there is an extremely high unemployment rate amongst unskilled young males.   I appreciate that your uncle has genuine hopes of getting you work in the kiwifruit industry.   But at the moment I am looking at a young man who can only count on a small welfare benefit from the State.  With no assets, no income, and only hopes that a job will eventuate at some point in the future, there is no realistic opportunity for reparation.  On the legal authorities which bind me, I cannot simply make an order of reparation where there is no ability to comply with it, so I will not be making a reparation order.

[28]     Nevertheless, because of your youth and because of the eloquent way in which your lawyer has pleaded your case, I am going to give you the benefit of the doubt and I will reduce your sentence by 5% to take into account these factors.

[29]     The main mitigating factor applicable to  you,  however, is that  you have pleaded guilty to the offence. You did not do so at the earliest possible moment but I accept that the situation was complex.  You were charged originally under s 189(1) of the Crimes Act 1961.   The charge was injuring with intent to cause grievous bodily harm and that has a maximum penalty of 10 years’ imprisonment.  That is a more serious charge than the one to which you eventually pleaded guilty.

[30]     After  you  were  committed  for  trial  on  that  charge,  the  Crown  Solicitor prepared an indictment containing the more serious charge of wounding with intent to  cause  grievous  bodily  harm  (which  carries  a  maximum  penalty  of  14 years’ imprisonment) and, as an alternative charge, your current charge of wounding with intent to injure (which carries a maximum penalty of seven years’ imprisonment). This was done in March 2011.   In May 2011 you indicated that you would plead guilty to the current charge. You did so on 4 August 2011.

[31]     Against this history, I am not in a position to hold that you pleaded guilty at the first available opportunity.  But neither did you leave it to the last minute.  You entered your plea after negotiations with the Crown had been completed and accordingly I will allow you a further discount of 15%.  This provides an end point, in the round, of 24 months’ imprisonment.

Home Detention

[32]     I can impose a sentence of home detention only if I am satisfied that the purposes for which the sentence is being imposed cannot be achieved by any less restrictive  sentence  or  combination  of  sentences.    I am  satisfied  of  that.   Your previous record and the fact that you were just days out of your period of community detention   when   you   re-offended   in   this   way   mean   that   the   principles   of accountability, deterrence and protection of the community will not be served by a less restrictive sentence or combination of sentences.  I have already determined that I would otherwise sentence you to a short term sentence of imprisonment.

[33]     I am satisfied, however, that in your case a sentence of home detention is appropriate.    I do  that  because  of  your  youth  and  because  both  your  interests,

Mr Ruatoto, and those of society would be best served by doing as much as is possible at this stage in your criminal career to provide for your rehabilitation and reintegration.  Put simply, you are at a turning point in your life.  That may not mean much to  you  as  an 18 year old male.   I suspect that  your ability to  appreciate consequences and forward plan your life is limited.

[34]     But let me put it this way.  This is your last chance.  If you reoffend you will go to jail.  There is legislation now which is known as the “three strikes legislation”. If you had been 18 years old when you offended in this way then you would be already subject to that legislation.  I would be telling you that any further offending would mean that you would have to serve the whole of your sentence without the chance of parole.  Any further offending after that would mean that you would have to serve the maximum term of imprisonment specified for the offence.  If you were standing before me two down the track, you would be going to prison for seven years and not home detention.

[35]     You are now 18 years old.  There will be no further slack cut for you by the system.  If you reoffend not only will you be going to prison but if you go to prison again for violent offending you will probably be subject to that legislation I talked about.  It is over to you from this point, Mr Ruatoto.

[36]     In setting the period of your home detention I take into account that you have spent approximately two months in custody prior to this.

[37]     Accordingly, I sentence you to a period of 10 months’ home detention.  The home detention address is 23 Jacaranda Place, Kerikeri. As soon as you are released from here you are to go directly to that address and await the arrival of the officials who will establish the electronic monitoring regime.

[38]     At the request of your lawyer, and in amplification of the standard conditions which apply to home detention, I direct that you attend anger management courses and programmes to address your alcohol use as will be determined by your probation officer.

[39]     On the remaining count in the indictment, the first count, you are discharged.

[40]     Stand down.

Brewer J