Rangirangi v R
[2016] NZHC 122
•10 February 2016
IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY
CRI-2015-441-50
CRI-2016-441-3 [2016] NZHC 122
BETWEEN BRYCE RANGIRANGI
Appellant
AND
THE QUEEN Respondent
Hearing: 3 February 2016 Appearances:
M Dixon and W R Hawkins for Appellant
F E Cleary for RespondentJudgment:
10 February 2016
JUDGMENT OF LANG J [on appeal against sentence]
This judgment was delivered by me on 10 February 2016 at 3.30 pm, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date……………
RANGIRANGI v THE QUEEN [2016] NZHC 122 [10 February 2016]
[1] Mr Rangirangi pleaded guilty in the District Court to a charge of causing grievous bodily harm with intent to injure and a charge of theft. On 27 January
2016, Judge Rea sentenced Mr Rangirangi to two years and five months imprisonment on those charges.1
[2] Mr Rangirangi appeals against sentence on the basis that the Judge failed to apply a discount to reflect the fact that he committed the offence in order to protect his partner who was under attack from two other persons.
Factual background
[3] The charges were laid as a result of an incident that occurred on 6 June 2015. On that date Mr Rangirangi went with his partner, Ms Goodnight, to a retail shop in central Hastings. They were accompanied by Ms Goodnight’s brother and by several young children. Mr Rangirangi was carrying one of the children on his shoulders throughout the incident that followed. The two complainants, Mr Habets and his partner Ms Zhang, were working in the shop at the time. Ms Zhang was the owner of the business and Mr Habets was working at the store on a voluntary basis.
[4] After Mr Rangirangi’s group had been in the store for some time, Ms Zhang and Mr Habets formed the view that they were stealing items of clothing. They confronted Mr Rangirangi and Ms Goodnight about this in the area around the till. The situation deteriorated quickly, and Ms Zhang and Mr Habets became involved in an argument with Ms Goodnight. This developed into a physical altercation that took the form of pushing and shoving.
[5] Mr Rangirangi initially walked away from the incident and left the premises. Very quickly afterwards, however, he re-entered the shop and punched Mr Habets three times in the face and head. Mr Habets immediately fell to the floor. Mr
Rangirangi then turned and walked out of the premises.
1 R v Rangirangi [2016] NZDC 1235.
[6] The struggle between Ms Zhang and Ms Goodnight continued for a few more minutes, with Ms Goodnight gaining the upper hand. Her brother eventually removed her from the scene.
[7] Mr Habets suffered significant injuries as a result of the punches delivered by Mr Rangirangi. He received a broken jaw, a fractured eye socket and a fractured vertebra. He was also required to undergo surgery because of bleeding to the brain.
Procedural background
[8] There are currently two appeals before the Court. In order to explain how this has occurred, it is necessary to set out in some detail the procedural background.
[9] Mr Rangirangi was initially charged in the alternative with causing grievous bodily harm with intent to do so and causing grievous bodily harm with intent to injure. He sought a sentence indication on the lesser charge, but the Crown indicated it was not prepared to accept a plea to that charge.
[10] The Crown changed its position after Judge Rea indicated that the sentence to be imposed on Mr Rangirangi would not be greatly affected by a plea to the less serious charge. On that basis Mr Rangirangi pleaded guilty to the alternative charge on 27 November 2015, and the Crown offered no evidence on the more serious charge.
[11] Following the entry of the guilty plea, Judge Rea conducted a disputed facts hearing on 14 December 2015. This was necessary because Mr Rangirangi maintained he had assaulted Mr Habets in order to protect Ms Goodnight from being attacked by Mr Habets and Ms Zhang. Judge Rea indicated when Mr Rangirangi entered his plea that if Mr Rangirangi’s version of events was found to be correct, it may be possible for the end sentence to fall within the range that would make home detention an available sentencing option.
[12] At the conclusion of the hearing on 14 December 2015, Judge Rea delivered an oral decision in which he rejected Mr Rangirangi’s evidence and found that he was not acting in defence of Ms Goodnight when he assaulted Mr Habets.2
[13] On 16 December 2015 Mr Rangirangi purported to file an appeal against the Judge’s findings at the disputed facts hearing. This appeal was given the number CRI 2015-441-50, and allocated a fixture on 3 February 2016.
[14] On 25 January 2016, I held a telephone conference with counsel to address my concern that the Court did not have jurisdiction to hear an appeal against a finding as to a disputed mitigating fact. I advised counsel that I considered Mr Rangirangi needed to be sentenced in the District Court. After sentencing he could file an appeal against sentence. This could include a challenge to the Judge’s findings at the disputed facts hearing.
[15] Mr Rangirangi was duly sentenced by Judge Rea on 27 January 2016. On 1
February 2016 he filed an appeal against sentence. This was given the number CRI
2016-441-3, and allocated a hearing date of 3 February 2016.
[16] The sole issue raised by the first appeal can now be determined in the second appeal. I therefore dismiss the appeal filed under CRI 2015-441-50.
The sentence
[17] The Judge correctly observed that the starting point for the sentence to be imposed on the lead charge was to be selected having regard to the guideline judgment of the Court of Appeal in Nuku v R.3 He held that the offending fell between Bands 2 and 3 identified in Nuku, and adopted a starting point of two years nine months imprisonment.
[18] The Judge reduced the starting point by four months, or ten per cent, to
reflect Mr Rangirangi’s guilty pleas. In doing so, he reduced the discount that would
otherwise have been available for the guilty pleas to reflect Mr Rangirangi’s lack of
2 R v Rangirangi [2015] NZDC 24828.
3 Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39.
success at the disputed facts hearing and the fact that the complainants had been required to give evidence at that hearing.
Relevant principles
[19] The starting point in respect of a sentence to be imposed in relation to an offence involving violence may reflect mitigating factors in respect of the offending. These include the fact that the offending has occurred in response to provocation from the victim, and/or where the defence of self-defence would have been available but for the fact that the offender used excessive force.
[20] Where the prosecution does not accept the existence of a mitigating factor, the position is governed by s 24(2) of the Sentencing Act 2002 (the Act). If the disputed mitigating fact does not relate to the nature of the offence or to the offender’s part in the offence, the offender must establish the asserted fact on the
balance of probabilities.4 The prosecution is required to negate beyond a reasonable
doubt the existence of any other disputed mitigating factor.5
The Judge’s decision
[21] The Judge rejected Mr Rangirangi’s version of events in the following
paragraphs of his decision:6
[20] The DVD of Mr Rangirangi assaulting Mr Habets is clear. As I have said, he left the shop, or he appeared to be leaving the shop with the three year old on his shoulders. The DVD then shows him returning and assaulting Mr Habets in the way that I have described.
[21] Perhaps the most significant part of the DVD and the evidence that I have seen in this case, is what happens instantaneously thereafter. Mr Rangirangi claims that the reason why he was acting the way that he was, was to protect and save his partner, Ms Goodnight. He, in fact, immediately turned on his heel and he left the shop without paying any attention to Ms Goodnight at all. He says that he was justified in doing that in the context of what was happening because her brother was present and justified in doing that in the context of what was happening because her brother was present and presumably could look after her interests at that point, but it is of major significance that at the time he struck Mr Habets, Mr Habets in fact was not
4 Sentencing Act 2002, s 24(2)(d).
5 Section 24(2)(c).
6 R v Rangirangi, above n 2.
directly involved with Ms Goodnight and that he simply struck him and then left.
[22] I find it is completely and utterly unacceptable to raise at this stage that he was somehow trying to protect her when the visual evidence makes it quite clear that his intention was to punch Mr Habets to disable him, and then to immediately leave. There is nothing at all to indicate he paid any attention to the partner he said he was protecting immediately after the punching occurred. In fact, the attack that Ms Goodnight was then involved in on Ms Zhang continued and it is quite clear as Mr Rangirangi is leaving the premises, that Ms Goodnight is punching Ms Zhang to the head area while she has her trapped on the ground.
[23] Mr Rangirangi, in his evidence, said that he believed that his partner was under attack; both from Mr Habets and from Ms Zhang. I completely and utterly reject that explanation. That is not borne out by the video evidence, it is certainly not borne out by the way he behaved. He was showing no interest at all in protecting his partner who, it seems was involved in her own assault on Ms Zhang, and I entirely reject that he was acting in any way in self defence.
[24] Therefore I am quite satisfied that the defendant has not discharged the onus on him and therefore I completely reject any suggestion that he was acting in excessive self defence on this occasion.
[25] All that I can say is that he behaved violently and then left the scene. Whether he had some reason for doing so; only he will know, but the [objective] of evidence certainly does not bear out his assertion that he went in there to protect his partner.
Appellate approach
[22] A determination under s 24 of the Act requires the sentencing Judge to make an evaluative assessment of the evidence. As the Court of Appeal observed in Heke v R, this is a determination of relevant facts rather than the exercise of a judicial discretion.7 For that reason an appellate Court has an obligation to consider the evidence and reach its own opinion on the facts in the dispute. This approach accords with the view expressed by the Supreme Court in Austin Nichols & Co Inc v Stichting Lodestar.8 Where the sentencing Judge enjoys a particular advantage through having seen and heard the witnesses, however, the appellate Court is likely to accord weight to that fact. When issues of credibility arise, an appellate Court will normally only interfere with primary findings where those findings are plainly
not open to the fact finder.9
7 Heke v R [2010] NZCA 476 at [19].
8 Austin Nichols & Co Inc v Stichting Lodestar [2008] 2 NZLR 141 (SC) at [16].
9 Kueh v R [2013] NZCA 616 at [32]; Chetty v R [2015] NZCA 241 at [82].
[23] In the present case Mr Rangirangi’s claim that he was acting in defence of his partner obviously related both to the nature of the offence and to Mr Rangirangi’s part in it. As a result, the Crown bore the onus of disproving that assertion beyond reasonable doubt. The Judge therefore erred in proceeding on the basis that Mr Rangirangi was required to prove the existence of the disputed fact on the balance of probabilities. Notwithstanding this error, the terms in which the Judge rejected Mr Rangirangi’s evidence suggest that his decision would have been the same even if he had applied the correct onus of proof. It is necessary, however, for this Court to make its own assessment of the evidence.
The evidence
[24] Mr Rangirangi gave evidence at the disputed facts hearing. He acknowledged that he had attempted to steal a singlet from the store. He said that as he walked away from the area around the till, he saw that Mr Habets and Ms Zhang had joined forces to attack Ms Goodnight. He could see that Ms Goodnight’s brother was doing nothing to help. He therefore returned to the shop and punched Mr Habets three times. He said he did so in order to stop Mr Habets from attacking Ms Goodnight.
[25] The Crown relied on the oral evidence given by Mr Habets and Ms Zhang, and upon CCTV footage downloaded from cameras in the shop. Ms Zhang and Mr Habets could obviously not give evidence about Mr Rangirangi’s intention when he punched Mr Habets. They were adamant, however, that they were not the aggressors in the incident involving Ms Goodnight. They said that she was the aggressor in that incident.
Decision
[26] The Judge was obviously in a far better position than this Court to make overall findings of credibility because he had the benefit of seeing and hearing all of the witnesses. He did not, however, base his credibility findings on a preference for the evidence of Mr Habets and Ms Zhang over that given by Mr Rangirangi. Rather, the Judge rejected Mr Rangirangi’s evidence largely because he did not consider it was consistent with what was shown on the CCTV footage.
[27] Like the Judge, I consider the CCTV footage to be the most reliable evidence regarding the events that occurred in the shop. The film footage is not entirely satisfactory, because the struggle in the area around the till is depicted at the very top of the screen. Participants in that part of the incident are only shown from the waist down. It is also difficult to ascertain from the CCTV footage how the scuffle between Ms Goodnight and the complainants developed. In addition, it is not possible to see what part Mr Habets played in the scuffle. The principal protagonists appear to have been Ms Goodnight and Ms Zhang.
[28] The position is different once Mr Rangirangi walks to the door of the shop whilst still carrying a child on his shoulders. The film footage clearly shows that he returns to the shop within a matter of seconds. He then walks directly up to Mr Habets and begins punching him in the head. Once Mr Habets falls to the floor, Mr Rangirangi walks immediately out of the shop. He does not speak to Ms Goodnight or to her brother, and does not offer Ms Goodnight any assistance. He simply leaves her to continue her struggle with Ms Zhang.
[29] I agree with the Judge’s assessment of the significance to be accorded to this aspect of the evidence. The film footage does not confirm that Mr Habets was involved to any significant degree in the struggle between Ms Goodnight and Ms Zhang. More importantly, it does not contain any hint that Mr Rangirangi was motivated in his attack on Mr Habets by a desire to protect and assist Ms Goodnight. If that was his objective, one would expect him to have shown some interest in extracting Ms Goodnight from her struggle with Ms Zhang. At the very least, one would have expected him to either confront Ms Zhang or assist Ms Goodnight to withdraw from the struggle.
[30] Mr Rangirangi’s explanations for his failure to assist Ms Goodnight are also far from convincing. His primary explanation for leaving the shop after punching Mr Habets was that he believed that Ms Goodnight’s brother would be able to take care of things from that point on. This does not sit well with Mr Rangirangi’s evidence that he had been forced to intervene because the brother had failed to take any steps protect Ms Goodnight during the struggle with Ms Zhang and Mr Habets.
[31] Mr Rangirangi also said that he left the shop immediately after punching Mr Habets because his children were screaming at the doorway. This does not explain, however, why he did not take any steps at all to extract Ms Goodnight from the situation in which she found herself.
[32] Mr Rangirangi’s actions in leaving the shop immediately after punching Mr Habets demonstrate beyond reasonable doubt, in my view, that he formed the intention to assault Mr Habets without reference to what was occurring between his partner and Ms Zhang. I therefore agree with the Judge’s conclusion, and largely for the same reasons. It follows that the Crown has satisfied the onus on it to disprove the existence of the mitigating factor upon which Mr Rangirangi relies.
The discount for guilty pleas
[33] Mr Rangirangi also contended that the Judge should not have reduced the discount applied in respect of his guilty pleas to reflect the fact that the complainants were required to give evidence at the disputed facts hearing. This argument is based on a submission that the Crown did not need to call those witnesses at the hearing, and Mr Rangirangi should not penalised because it elected to do so.
[34] I do not accept this submission. Mr Rangirangi’s argument at the disputed facts hearing was based on his assertion that he acted in defence of Ms Goodnight, who was being attacked by Mr Habets and Ms Zhang. Given that claim, it is not surprising that the Crown elected to call the complainants as witnesses at the disputed facts hearing. If it had not taken that step the Judge would only have been left with Mr Rangirangi’s version of events.
[35] The discount to be given for a guilty plea reflects two policy considerations. The first is that the plea is regarded as an acknowledgement by the offender that he or she accepts responsibility for the offending. The weight to be given to that factor in the present case is obviously diminished significantly by Mr Rangirangi’s claim at the dispute facts hearing that he was acting in defence of his partner. He maintained that stance in his discussions with the probation officer who prepared the pre- sentence report.
[36] The second policy consideration is that the offender should be given credit because the guilty plea removes the need for a trial. This means that the State is not put to the expense of a defended trial, and victims are not required to re-live the trauma of the offending by giving evidence. Although the guilty pleas obviated the need for a full trial in the present case, the Crown was still required to prepare for the disputed facts hearing. Mr Habets and Ms Zhang were also required to give evidence at that hearing. This factor further diminished the value of the guilty pleas.
[37] The Judge relied upon the decision of Thomas J in Curtis v Police as authority for the proposition that the credit for a guilty plea may be reduced where the offender challenges a summary of facts.10 Curtis was decided in 1993, well before the enactment of the Sentencing Act 2002. The leading authority is now the decision of the Court of Appeal in Hessell v R, where the Court held that the discount to be given for a guilty plea will not be diminished where a defendant acts reasonably in requiring a disputed facts hearing to be held.11 The Court then went on to say:12
[47] If, however, the defendant adopts an unreasonable stance, propounding a view of the facts the s 24 judge completely or largely rejects, then a sentencing judge should re-evaluate whether the standard guilty plea discount remains appropriate. It will not be appropriate, for instance, if the s 24 hearing effectively turns into a mini-trial which the defendant “loses”. Then there will have been little or no saving in costs to the state. As well, victims and other witnesses will still have had the stress of giving evidence.
[48] In circumstances where the s 24 judge considers the defendant has adopted an unreasonable stance, the judge should re-evaluate the discount taking into account the extent to which the case was delayed by the need for a disputed facts hearing, the length of the hearing itself, and the number of witnesses that had to be called, including whether any victim was required to give evidence.
[38] Applying these principles, I consider that the stance taken by Mr Rangirangi at and following the disputed facts hearing justified a significant reduction in the discount to be applied in respect of his guilty pleas. I note that in Nathan v R, a discount of 25 per cent was reduced to 15 per cent where the Court of Appeal held
that evidence given at a disputed facts hearing significantly diminished the extent to
10 Curtis v Police (1993) 10 CRNZ 28.
11 Hessell v R [2009] NZCA 450, [2010] 2 NZLR 298 at [46].
12 Hessell v R, above n 10.
which the offender was prepared to accept responsibility for his offending.13 In that case the hearing had occupied half a day, but the complainants were not required to give evidence. The hearing in the present case occupied at least that amount of time, and the complainants were both required to give evidence. I therefore consider that a reduction from 25 per cent to ten per cent was within the available range.
Result
[39] The appeal against sentence is dismissed.
Lang J
Solicitors:
Crown Solicitor, Napier
13 Nathan v R [2011] NZCA 284.
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