Rangi v Police HC Whangarei CRI-2011-488-57
[2011] NZHC 1890
•10 November 2011
IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
CRI-2011-488-57
CRI-2011-488-60
CRI-2011-488-61
CRI-2011-488-62
IN THE MATTER OF the Sentencing Act 2002
BETWEEN JAE TUTERE RANGI Appellant
ANDTHE NEW ZEALAND POLICE Respondent
Hearing: 8 November 2011
Appearances: E P Henderson for Crown
R J Bowden for Appellant
Judgment: 10 November 2011 at 1:15 PM
JUDGMENT OF PETERS J
This judgment was delivered by Justice Peters on 11 November 2011 at 1:15 pm
pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Date: ...................................
Solicitors: Marsden Woods Inskip & Smith, Crown Solicitor, PO Box 146, Whangarei email: [email protected]
Counsel: R J Bowden, Barrister, P O Box 1862, Whangarei email: [email protected]
RANGI V POLICE HC WHA CRI-2011-488-57 10 November 2011
[1] The appellant appeals a sentence imposed on him in the District Court in
Whangarei on 11 August 2011.
Facts
[2] The District Court Judge was required to sentence the appellant for:
(a) An assault on a female carried out on 19 October 2010. This assault
was on the appellant’s partner.
(b)Three offences committed on 25 April 2011. These offences comprised common assault, on the same woman as in the earlier assault; intimidation of another person (the woman’s son) by threatening him; and intentional damage of a motor vehicle, that motor vehicle belonging to the same woman.
(c) Breaches of a sentence of community detention which had been imposed on the appellant on 17 December 2010. The breaches had occurred on 25 and 27 April 2011.
[3] In addition, the court was required to address an application for an order cancelling the sentence of community detention to which I have referred and for the imposition of another sentence in substitution.1 The basis for the application was that the appellant had not complied with the requirements of the sentence. There was no opposition to the application.
[4] The first issue on the appeal is to ascertain what sentence the Judge imposed in respect of the matters referred to in [2] and [3] above. The issue arises because the Judge expressed himself inconsistently when describing the component parts of the sentence. For reasons set out below, however, I am satisfied that the Judge intended to impose 20 months’ imprisonment in respect of all of the matters referred to in [2] and [3] above.
[5] The grounds of appeal are, first, that the Judge imposed cumulative sentences, when he ought to have imposed concurrent sentences, and that the Judge did not clearly articulate which sentences were to be concurrent and which cumulative.
[6] Counsel for the appellant submitted that the appellant is subject to the sentence the Judge imposed on him in Court and that, at the conclusion of the sentencing process, the Judge expressed the component parts of the sentence in a manner which equated to less than 20 months and it is that lesser figure which represents the sentence to which the appellant is subject.
[7] In support of that submission Counsel referred me to the decision of the Court of Appeal in R v Love.2 That case is authority for the proposition that the sentence that is imposed on a prisoner is that which is imposed in open Court by the Judge and that it is necessary to ascertain what sentence the Judge intended to impose from their sentencing remarks. The Court of Appeal also said that the warrant of commitment may be an aid to interpretation but it is not decisive.
[8] Accordingly, it is necessary to determine what sentence the Judge intended to impose. Several of the warrants were signed by another Judge and, accordingly, I do not put any weight on them.
[9] In [9] of his decision, the Judge took the male assaults female charge of 19
October 2010 as the lead charge. The Judge adopted a starting point of one year’s imprisonment on that charge. The Judge then uplifted that starting point by four months to take into account the appellant’s previous offending, which included a number of convictions for violence related matters. The Judge then allowed a further four months for the offending on 25 April 2011, having taken into account that the appellant was on bail at the time.
[10] The Judge imposed a further one month’s imprisonment in lieu of the sentence of community detention, which the Judge cancelled, and imposed one month’s imprisonment for each breach of that sentence.
[11] On a cumulative basis, these sentences total 23 months.
[12] Next, the Judge deducted three months on account of the appellant’s guilty plea. The Judge stated that this resulted in a term of imprisonment of 20 months, which it would, and then said that he did not consider that total term of imprisonment to be out of proportion to the gravity of the offending.
[13] The final paragraphs of the Judge’s notes are not so straightforward. In these paragraphs, the notes record that the Judge said that he would sentence the appellant to 12 months’ imprisonment on the male assaults female charge and that he would also impose particular release conditions. The Judge then said:
[13] In respect of the charges that he intentionally damaged the motor car, the intimidation of [Mr C], the assault on [Ms C], [the appellant] will be sentenced to two months’ imprisonment which will be concurrent on the assault charge. In respect of the intentional damage, he will be sentenced to one month; and intimidation he will be sentenced to one month. In respect of the community work, he will be sentenced to one month’s imprisonment. For the two breaches of community work, they will be the balance of the months so there is a total by my calculation of 20 months in prison.
[14] The appellant submits that it is clear from this paragraph that the Judge was intending to sentence the appellant to two months’ imprisonment, concurrent on the lead charge, for the offences on 25 April 2011; one month’s imprisonment in lieu of the cancelled sentence of community detention; with the “balance of the months” in respect of the two breaches of community detention.
[15] However the Judge may have expressed himself, it is the total sentence which is critical and on that matter the Judge was consistent throughout. The total sentence was to be 20 months. In R v Xie,3 the Court of Appeal reiterated that the important matter is that the final sentence reflects the totality of the offending and said that how the total sentence is made up is not important.
[16] Counsel for the Crown submitted that a sentence of 20 months’ imprisonment was not manifestly excessive, and I accept that submission. Counsel for the appellant submitted that the sentence on the 25 April 2011 offending should have
been concurrent with that on the lead charge. I do not accept that submission. The offending was some seven months later and was different in kind.
Result
[17] I dismiss the appeal. To avoid confusion, however, I vary the orders made by the Judge as follows:
(a) First, on the lead charge, being CRN11088001017, the appellant is sentenced to one year five months’ imprisonment. The release conditions, which the Judge imposed as recorded in [11] of his notes, remain.
(b) For each offence committed on 25 April 2011 and referred to in [2](b)
above, being the offences charged in CRN11088002224, 2225 and
2226, the appellant is sentenced to four months’ imprisonment, these sentences to be served concurrently with each other and with the sentence imposed in respect of the offence charged in CRN11088001017.
(c) On each breach of community detention, being the offences charged in CRN11088500810 and 0819, the appellant is sentenced to one month’s imprisonment. The sentences on these charges are to be served cumulatively as against each other and as against the sentences referred to above.
(d)I confirm the Judge’s order cancelling the sentence of community detention imposed on the appellant on 17 December 2010 and I substitute a term of imprisonment of one month, to be served cumulatively on all other sentences.
[18] There will be no order as to costs.
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PETERS J
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