Rangi v R
[2014] NZCA 524
•30 October 2014 at 10.15 am
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA339/2014 [2014] NZCA 524 |
| BETWEEN | TUAINEKORE CHARLIE RANGI |
| AND | THE QUEEN |
| Hearing: | 14 October 2014 |
Court: | Harrison, Asher and Lang JJ |
Counsel: | D S Niven for Appellant |
Judgment: | 30 October 2014 at 10.15 am |
JUDGMENT OF THE COURT
The appeal is dismissed.
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REASONS OF THE COURT
(Given by Asher J)
On 10 August 2012 Tuainekore Charlie Rangi, together with his co-defendant Huy Anh Ho, committed an aggravated burglary on two complainants at their home. At 8.30 pm Mr Ho came to their door. He was allowed in because the complainant who opened the door believed another person to be outside. Once inside he demanded money and a car. Then Mr Rangi came in uninvited through the back door and locked it behind him. Mr Ho obtained a knife in the kitchen which had a 20 centimetre blade, and both Mr Ho and Mr Rangi behaved in a threatening manner towards the complainants demanding money.
One of the complainants objected to the car being taken. He was cut on the face by Mr Ho. When a complainant resisted Mr Rangi intervened pushing the complainant back up against the wall with sufficient force to put a hole in the gib board. Mr Ho proceeded to threaten with the knife. Mr Rangi then lifted the front of his shirt displaying a black handgun. He appeared to be getting worked up. He racked and handed the gun to Mr Ho before approaching one of the complainants and punching him about the head. Approximately eight blows were landed. The complainant covered his head with his arm and suffered minor bruising.
Mr Rangi then retrieved the handgun from Mr Ho. After some more threatening actions and behaviour Mr Rangi and Mr Ho left. They took a black Toshiba laptop valued at $1,000, two silver cameras, a cellphone worth $950 and two other cellphones. Computer power leads were also grabbed. A Commodore motor vehicle was taken without permission. The gun was later found to be an imitation. The kitchen knife that had been used was found in the glovebox of the car.
Mr Rangi and Mr Ho were initially charged with aggravated robbery. Early on Mr Ho pleaded guilty to an amended charge of aggravated burglary. Mr Rangi continued to protest his innocence. It was only on the morning of his trial that he changed his mind and pleaded guilty to an amended indictment of aggravated burglary. He was then sentenced to two years and nine months’ imprisonment by Judge Rea.[1] Mr Rangi appeals against this sentence.
[1]R v Rangi DC Auckland CRI-2012-090-5542, 21 March 2014.
In sentencing Mr Rangi, Judge Rea considered himself bound by an earlier sentence that had been imposed in respect of Mr Ho.[2] He felt obliged to adopt the same three and a half year starting point that had been set. He observed that he might have had a different view as to the seriousness of the offending, but for parity reasons had to accept that starting point.[3]
[2]R v Ho DC Auckland CRI-2012-090-5542, 26 July 2013.
[3]At [11].
The Judge rightly characterised Mr Rangi’s past offending history as appalling. He had been sentenced to imprisonment on a number of occasions and his previous offending list ran to 12 pages, including many burglary and violence or violence-related counts. He then found himself bound by the uplift applied to Mr Ho who also had a bad record, of two months. He observed that an uplift of up to a year could have been expected. We agree with that observation.
Nevertheless, considering himself obliged for parity reasons to adopt the three and a half year starting point and the uplift of two months, he reached a starting point of three years and eight months’ imprisonment and allowed a small discount for the late plea of guilty on the day of the trial of four months. In doing this he observed:
[15] I set the discount, combined for the EM bail and for the steps that you have taken at seven months, and that gives an end sentence of two years [and] nine months’ imprisonment, which is the same that Ho received.
The Judge observed that home detention was out of the question, and that if he had had a free hand he would have imposed a minimum non-parole period because of Mr Rangi’s past and continuing danger to the community.
Mr Niven raises a single point on this appeal. He observes that Mr Rangi was on electronically monitored bail for approximately 18 months. He submits that the total discount for the guilty plea and the time spent on bail of seven months was manifestly inadequate, and that he should have received an end sentence less than that imposed on his co-offender.
Mr Niven took us to a number of cases where various discounts had been granted for periods spent on electronic bail. We have found them of no assistance. While the time spent on EM bail acts as a mitigating factor in sentencing,[4] there is no rule about how much of a discount should be given. Section 9(3A) of the Sentencing Act 2002 sets out several factors to be taken into account in determining any discount. However, the level of discount is within the judge’s discretion and there is no arithmetical formula that should be applied.[5] On occasions judges in the process of exercising their sentencing discretion will provide for some modest discount under this head. This is what Judge Rea did on this occasion. We see no error in his approach.
[4]Sentencing Act 2002, s 9(2)(h).
[5]R v Faisandier CA185/00, 12 October 2000 at [28]; R v Tamou [2008] NZCA 88 at [19]; Baillie v R [2010] NZCA 507 at [18]; Keown v R [2010] NZCA 492 at [12].
Moreover, we agree with Judge Rea that the end sentence that he felt obliged by reasons of parity to impose was lenient. Indeed, in our view it was extraordinarily lenient, given the elements of home invasion, the use of weapons, the use of violence to assist in the burglary, and Mr Rangi’s appalling record. We agree with the Judge that a minimum term could well have been an option.
The appeal has no merit and Mr Rangi should regard himself as extremely fortunate to receive the sentence he did.
Result
The appeal is dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent
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