Rangi v The Queen

[2021] NZHC 1790

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CRI-2021-463-000059

[2021] NZHC 1790

HENDRIX RANGI

v

THE QUEEN

Hearing:	15 July 2021
Appearances:	C Horsley for the Appellant I Hayden for the Respondent
Judgment:	15 July 2021

JUDGMENT OF WALKER J [SENTENCE APPEAL]

This judgment was delivered by me on 15 July 2021 at 4 pm Registrar/Deputy Registrar

HENDRIX RANGI v R [2021] NZHC 1790 [15 July 2021]

Background

[1]Hendrix Rangi pleaded guilty to charges of:

(a)cultivation of cannabis;1

(b)possession of utensils for the use of methamphetamine;2

(c)unlawful possession of a pistol;3

(d)unlawful possession of ammunition;4

(e)wilful damage;5

(f)assault on a person in a family relationship;6

(g)breach of community work;7 and

(h)breach of supervision.8

[2]        On 28 May 2021, Mr Rangi was sentenced to 21 months’ imprisonment by Judge C J Harding in the Whakatane District Court.9

[3]        Mr Rangi appeals. He takes no issue with the individual sentences on the various charges but argues that the Judge erred by failing to consider or address the suitability of a sentence of home detention. The Crown opposes the appeal and argues

1      Misuse of Drugs Act 1975, s 9. Maximum penalty of seven years’ imprisonment.

2      Misuse of Drugs Act 1975, s 13(1)(a) and (3). Maximum penalty of one years’ imprisonment, or a fine not exceeding $500, or both.

3      Arms Act 1983, s 50(1)(a). Maximum penalty of three years’ imprisonment, or a fine not exceeding $4,000, or both.

4      Arms Act 1983, s 45(1). Maximum penalty of four years’ imprisonment, or a fine not exceeding

$5,000, or both.

5      Summary Offences Act 1981, s 11(1)(a). Maximum penalty of three months’ imprisonment or a fine not exceeding $2,000.

6      Crimes Act 1961, s 194A. Maximum penalty of two years’ imprisonment.

7      Sentencing Act 2002, s 71(1)(a). Maximum penalty of three months’ imprisonment or a fine not exceeding $1,000.

8      Sentencing Act 2002, s 70(b). Maximum penalty of three months’ imprisonment or a fine not exceeding $1,000.

9      Police v Rangi [2021] NZDC 10528.

that the Judge was justified in imposing a sentence of imprisonment as the final sentence was not manifestly excessive.

Factual background

[4]        The following facts are taken from the Police Summary of Facts and Community Probation Service Caption Sheet which Mr Rangi accepted as accurate by virtue of his guilty plea.

Cultivation of cannabis, unlawful possession of a pistol and ammunition, and possession of utensils for the use of methamphetamine

[5]        At around 7.45 am on 17 December 2020, Mr Rangi was at an address in Tawera. Police executed a search warrant at the address. The search revealed 25 cannabis plants growing in various areas of the property. The plants were at varying stages of growth.

[6]        Police also searched two vehicles on the property. One vehicle contained one live shotgun cartridge, three live .270 Winchester bullets and a glass pipe for smoking methamphetamine. The other vehicle contained one live .22 bullet and a starter pistol which had been modified to fire .22 bullets.

[7]        Mr Rangi told police that he had planted the cannabis plants and accepted that he was in possession of the pistol and various ammunition located on the property.

Wilful damage and assault on a person in a family relationship

[8]        At around 5 am on 28 February 2021, Mr Rangi was at the same address with his partner. They had been in a relationship for approximately one year. During that time, there had been five previous family harm incidents recorded.

[9]        Mr Rangi and his partner began arguing about where Mr Rangi had taken her vehicle the previous night. Mr Rangi requested the keys. She refused and told him that he cannot use it again.

[10]      Mr Rangi started pushing the victim to get her to hand over the keys. The victim covered her head with her arms while Mr Rangi continued to push her arms. As she would not give him the keys, Mr Rangi began pulling her hair.

[11]      The victim was scared for her welfare and so handed over the keys. Mr Rangi then got into the vehicle and reversed it from the house. He accelerated swiftly towards another vehicle that was parked in the driveway and smashed into the rear of the vehicle with such force that it moved from where it was parked. Mr Rangi then reversed again and crashed into the fence surrounding the property, before leaving the address.

[12]      Mr Rangi told police that he only pushed the victim so that he could leave without the fight escalating further.

Breach of community work

[13]      On 23 September 2020, Mr Rangi was sentenced to 200 hours of community work in the Whakatāne District Court following conviction for two charges of intentional damage, and 100 concurrent hours following conviction for unlawfully carrying/possessing a restricted weapon. On 7 October 2020, he was inducted into that sentence and made aware of his obligations to carry out the sentence. He signed an Instruction to Report to a Probation Officer on Thursdays at 8.30 am.

[14]      On 10 January 2021, Mr Rangi was asked why he was not reporting as required and given a verbal warning. He replied that he had transport difficulties.

[15]      On 29 January 2021, a sanction letter from Corrections was placed in Mr Rangi’s mailbox. He was not home at the time and has yet to respond to the letter.

[16]      On 4 February 2021, Mr Rangi failed to report to a Probation Officer without reasonable excuse. At that time, he had completed 35 hours of community work, and therefore had 165 hours outstanding. Mr Rangi had not reported as required since 26 November 2020.

Breach of supervision

[17]      On 23 September 2020, Mr Rangi was also sentenced to nine months’ supervision. On 28 September 2020, he was inducted into that sentence and signed an Instruction to Report to a Probation Officer as directed.

[18]      On 14 January 2021, Mr Rangi failed to report to a Probation Officer, and was to receive a verbal warning at his next report scheduled two weeks later.

[19]      On 28 January 2021 however, Mr Rangi failed to report to a Probation Officer, and a written warning letter was hand delivered to his address.

[20]      On 11 February 2021, Mr Rangi breached a condition of his sentence of supervision without reasonable excuse by failing to report to a Probation Officer as required.

District Court sentencing

[21]      On 28 May 2021, Mr Rangi was sentenced by Judge Harding. The Judge recognised that Mr Rangi had four convictions for firearm offences, and three prior breaches of community work.

[22]      Judge Harding acknowledged that the pre-sentence report recommended a sentence of intensive supervision and community detention. However, he recorded that the report was prepared prior to Mr Rangi entering a guilty plea on the firearms charge. The Judge therefore considered that the recommendation was one that he could not accept. Firearms offences are viewed seriously by the courts, and in light of Mr Rangi’s previous convictions and gang affiliation, he considered that nothing other than a sentence of imprisonment was appropriate.

[23]      Judge Harding considered defence counsel’s submission of an overall starting point of two and a half years as broadly acceptable, albeit a little low. He considered that the firearms matters alone would require a sentence starting point of between one and a half and two years. He uplifted that by nine months on a collective basis with a

further addition for prior convictions, particularly in relation to firearms offending.10 After deduction for his guilty plea discount, the end sentence was 21 months’ imprisonment. The Judge also imposed standard and special conditions of release and an order for the destruction of the firearm and ammunition.

Legal principles for appeals against sentence

[24]      Appeals against sentence are allowed as of right by s 244 of the Criminal Procedure Act 2011 (“CPA”). They must be determined in accordance with s 250 of the CPA. An appeal against sentence may only be allowed if this Court is satisfied there has been an error in the sentence and that a different sentence should be imposed.11

[25]      As the Court of Appeal said in Tutakangahau v R: “[a] Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles”.12 Nor will the Court simply substitute its own view for that of the original sentencing judge.13

[26]      It is the end sentence which is important from the appellate court’s perspective, not the method by which it was reached. In short, whether a sentence is manifestly excessive is to be assessed in terms of the sentence given, rather than the process by which the sentence is reached.14

Home detention

[27]      Under the Sentencing Act 2002 (the “Act”), a Court considering the imposition of a sentence of imprisonment must have regard to the desirability of keeping offenders in the community as far as that is practicable and consonant with the safety of the community.15 Further, a Court must be satisfied the sentence of imprisonment serves the purposes of accountability, responsibility, denunciation, deterrence and

10 The Judge carefully set out the sentence on each charge. The lead charge was 16 months for the firearms offending. All other terms were imposed concurrently apart from the assault of a person in a family relationship, which was cumulative.

11 Criminal Procedure Act 2011, ss 250(2) and 253.

12     Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].

13 At [36].

14     Repia v R [2011] NZCA 101 at [15].

15     Sentencing Act 2002, s 16(1).

community protection, while providing for victim’s interests.16 The Court must also be satisfied that no other sentence can achieve these purposes and be consistent with the application of relevant sentencing principles.17

[28]      A sentence of home detention is available as an alternative to a short-term sentence of imprisonment.18 A short-term sentence is defined as a determinate sentence of 24 months or less.19 A Court may only impose a sentence of home detention if it is satisfied that the purpose or purposes for which the sentence is being imposed cannot be achieved by any less restrictive sentence such as community detention.20

[29]      It is customary to halve the end sentence if either home detention or community detention is imposed because in a short sentence offenders are released after serving half their sentence.21

[30]      An appeal against the refusal to grant home detention does not provide an opportunity to revisit or review the merits because it is a matter of judgment for the sentencing judge to determine whether home detention is an adequate response to the seriousness of the offending.22 Instead, an appellate court hearing an appeal against the refusal to commute imprisonment to home detention must focus on the identification of error, having regard to the discretionary nature of the circumstances.23

Appellant’s submissions

[31]      Mr Horsley, for Mr Rangi, submitted that the Judge erred by not turning his mind to the requirement to impose a sentence which is the least restrictive outcome that is appropriate in the circumstances, in accordance with the hierarchy of sentences.24 The pre-sentence report recommended a sentence of intensive supervision. As Mr Horsley submits, the pre-sentence report also contemplated that

16     Sections 7(1) and 16(2)(a).

17     Sections 8 and 16(2)(b)-(c).

18     Section 15A(1)(b).

19     Section 4. See also Parole Act 2002, s 4.

20     Section 15A(1)(a).

21     Burton v Police [2017] NZHC 664 at [29].

22     James v R [2010] NZCA 206.

23     Doolan v R [2011] NZCA 542 at [39].

24     Sentencing Act 2002, ss 8(g) and 10A.

home detention was an option available to the Judge. The judge clearly rejected the option of a community sentence but did not unequivocally turn his mind to home detention,

Respondent’s submissions

[32]      The Crown submits that the Judge clearly considered the contents of the pre- sentence report. The community-based sentences have not to date deterred Mr Rangi from further offending, especially in respect of firearms offences. The need to impose the least restrictive outcome must also be balanced against the other principles of sentencing, including the safety of the public.

Did the Judge err by failing to consider commuting Mr Rangi’s sentence of imprisonment to one of home detention?

[33]      The crux of this appeal is the question of whether the sentence is one which should have been commuted to home detention. The purported error identified is whether the sentencing judge actually turned his mind to this question.

[34]There is no challenge to the starting point or deductions.

[35]      In my assessment, Judge Harding did turn his mind to the issue of whether Mr Rangi’s sentence of imprisonment should be commuted. While his conclusion was economically phrased and without elaboration, it is not accurate to say that he failed to consider sentences other than imprisonment. Referring to the pre-sentence report recommendation of a community sentence, the Judge said:

[8] Mr Rangi, I regret the recommendation is not one which I can accept. Firearms matters are viewed seriously by the Courts. You have four previous firearms offences, you are somebody who is said to be involved in a gang and you appear again with another firearm. The Court is bound in those circumstances to look seriously at that. I consider that nothing other than a sentence of imprisonment can possibly be contemplated in the circumstances.

(emphasis added)

[36]      The greatest concern to the Judge was Mr Rangi’s prior firearms offences. Mr Rangi received sentences of community work for those offences. Those sentences

have not only not been served but they have done nothing to deter him from further offending.

[37]      Mr Rangi’s history does not assist his appeal. A variety of community based sentences have been imposed in the past and yet his offending continues. I record as a matter of fairness that following one sentence of home detention Mr Rangi did not offend between 2012 and 2017. The pre-sentence report states that this gap coincides with a period of steady employment as a fitter and welder at a mill in Kawerau. Mr Rangi lost this job in 2016 or 2017. He was unable to find any other work in the area. The report states that this problem was made worse as Mr Rangi is unable to drive as a licensed driver. From that point onwards, Mr Rangi continued to offend. He is a patched Mongrel Mob member and loyal to the gang whom he credits as “not all about bad things.”

[38]      Mr Rangi suggests a sentence of home detention at his address in Tawera. This is where the offending occurred. The property has been deemed technically suitable. However, Mr Rangi’s partner lives at the address and her children visit occasionally for week-ends. The pre-sentence report concludes that home detention is unsuitable given that Mr Rangi would be residing with the victim of the family violence offence. This places her at an obvious risk of further harm. It says that a community detention sentence on the other hand would allow both parties time away from the house and each other to attempt to mitigate that confinement. Mr Rangi’s likelihood of reoffending is assessed as medium risk. He is recorded as stating that “he reacts to a situation without much thought to what he is doing and this reaction can be violent.”

[39]      As a matter of common sense, the confinement inherent in a sentence of home detention elevates risk. Materially, his partner provided a victim impact statement dated 28 February 2021 in which she stated that Mr Rangi is now her ex-partner, that she “want[s] him out and he is no longer allowed to live at the address”. Yet, just a short time later there appears to be a change of heart as the pre-sentence report writer records that the occupant of the proposed address was interviewed and has signed her consent. This is unfortunately a common scenario in the context of family harm.25

25     The suitability of the address did not feature in the Judge’s determination for the simple reason that he concluded that no sentence less than imprisonment was appropriate. I also observe that an

[40]      In light of the seriousness of Mr Rangi’s repeat firearm offending, the ineffectiveness of his prior community-based sentences, and the fact that the victim resides at the proposed home detention address, I consider that the Judge did not err by imposing a sentence of imprisonment rather than a sentence of home detention.

Conclusion

[41]The appeal is dismissed.

............................................................

Walker J

unsuitable address would not necessarily be the end of the matter since it would be open to the sentencing Judge to defer sentencing or grant leave for later application to commute the sentence once a suitable address became available.