Ranui v Department of Corrections HC Invercargill CRI-2011-425-000040

[2011] NZHC 1529

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CRI-2011-425-000040

NAVARD DAVID RANUI

Appellant

v

DEPARTMENT OF CORRECTIONS

Respondent

Hearing:         27 September 2011

Appearances: K Henry for Appellant

M J Thomas for Respondent

Judgment:      27 September 2011

ORAL JUDGMENT OF HON JUSTICE FRENCH

Introduction

[1]      Following a plea of guilty, the appellant Mr Ranui was convicted in the District Court of breaching a community work sentence.  He was sentenced to a term of imprisonment of six weeks.

[2]      He now appeals that decision on the grounds that the sentence was manifestly excessive and wrong in principle.

Facts of the offending

[3]      On 27 August 2010 Mr Ranui was sentenced to 300 hours’ community work

for burglary.  He was a first offender.

RANUI V DEPARTMENT OF CORRECTIONS HC INV CRI-2011-425-000040 27 September 2011

[4]     Immediately after the sentence was imposed, his obligations regarding compliance with the community work sentence were fully explained to him.  Despite that, he went on to breach his community work requirements on three occasions that came before the Court.   On the first occasion, 14 October 2010, he was convicted and discharged.  On the second, 15 March 2011, he was convicted and required to come up for sentence if called upon.  The third occasion is the occasion at issue in this appeal, when he was sentenced to six weeks’ imprisonment on 20 September

2011.

[5]      As at the time of sentencing, Mr Ranui had completed 144 hours of his community work sentence, and had 156 hours outstanding.

Sentencing in the District Court

[6]      The information before the sentencing Judge included a pre-sentence report. It  told  the Judge that  Mr Ranui  is  22  years of age.   The report  recommended community detention.

[7]      The Judge, however, did not accept that approach, and imposing a term of imprisonment of six weeks had this to say:

[1]       I am not so sure that I agree with that [submission] Mr Ranui. Yes I need to consider the hierarchy. Yes I need to consider the least restrictive sentence,   but   it   has   to   be   the   least   restrictive   appropriate   in   the circumstances. It is not just a matter of heading up the hierarchy having regard to the previous sentences that have been imposed. You are now on your third breach of community work. You would have been given warnings in the past, and the breaches have been during a very short space of time. You simply have not got on with the sentence. You were sentenced for burglary.  It  is  a  serious  conviction.  You  received  a  large  number  of community work hours. The Court stood back from sending you to prison on your first conviction, but did consider the matter to be serious hence that sentence. That Court expected that sentence to be done and here you are time after time not getting on with that sentence, coming back to the Court on breach charges, and now you want the Court to sentence you to another community based sentence.

[2]       I do not like what I read in the report. It says that you reported that you were depressed. There is no medical evidence about that, and you claim the  Community  Work  Centre  made  you  unmotivated,  but  then  you  did become motivated when you realised the severity of the consequence of the breach, but then it was too late because you had been served with the breach. In other words you just could not be bothered getting on with the sentence

this Court imposed, which means that there was no consequence for you of the offending in the first place. It does not work like that.

[3]       It also says here that the Community Probation Service records show a series of non compliance by failing to report without reasonable excuse. What that says to me is that you just did not show up and despite being back here in Court on two previous occasions and, as I say, no doubt you were warned by the Judge, you breached again and here you are.

[4]       I go back to where I started. A sentence of community detention is something for the Court to consider, but the Court is not required to impose that sentence having regard to your history and other sentences that have been imposed. It has to adequately meet the purposes and principles of the Sentencing Act and I do not think it does here. There was two prior breaches and this is your third. I take the view that the only appropriate sentence here is a short period of imprisonment. That is what other defendants in your position are sentenced to frequently in this Court and I do not see, given what I have read, that you should be treated any differently.

Grounds of appeal

[8]      On appeal, counsel Ms Henry advances the following arguments. (a) She submits that the Judge has erred in principle in that:

(i)       He failed to consider home detention.

(ii)He wrongly relied on a note in the pre-sentence report about Community  Probation  Service  records  showing  a  series  of non-compliance by failing to report without reasonable excuse. Relying on that note is said to be an error of principle because the records had never been disclosed or proved.

(b)      It is also submitted that the sentence was manifestly excessive.

[9]      For its part, the respondent, the Department of Corrections accepts that while the Judge may not have followed the Taueki model of sentencing,[1] the outcome was within range and did not involve any error of principle such as would warrant

appellate intervention.

Discussion

[1] R v Taueki [2005] 3 NZLR 372.

[10]     Turning first to the issue of the Community Probation Service records.

[11]     This was a matter that was raised in the pre-sentence report.   The records apparently show that in addition to the three breaches that resulted in Court appearances, Mr Ranui had also received three warnings: one in May, the second in December and the third in April.  Ms Henry acknowledges that although she saw this in the pre-sentence report, she did not dispute it.  In those circumstances, I consider that the Judge was fully entitled to rely on the records as an aggravating feature.

[12]     I accept that the Judge has not specifically mentioned home detention in his decision.   As noted by Dobson J in Iwikau, home detention must be considered notwithstanding the general principle that breaches of community work will usually result in imprisonment in the absence of some good excuse or explanation.[2]

[2] Iwikau  v   Department  of  Corrections  HC  Palmerston  North  CRI-2008-454-000042,  26 September 2008 at [13].

[13]     However, I also accept Ms Thomas’ submission that it is implicit in what the Judge was saying about community detention that he also held the same view as regards home detention: namely that, given the seriousness of the breach, home detention would be an insufficient response, notwithstanding that it has a deterrent function.

[14]     In my view, having regard to all the information before the Judge, that was a view that was open to him. As Ms Thomas has emphasised to me, it is important for the District Court to be able to uphold the integrity of the community work sentence. In this case, Mr Ranui has demonstrated an extraordinarily casual attitude to the sentence.  His breaches can be fairly described as flagrant, given the number of them and the warnings.

[15]     Having regard to those factors of the offending, and the comparator cases,[3] it cannot  be  said  in  my  view  that  the  six-week  prison  sentence  was  manifestly

excessive.  The issue is not whether I would have imposed that sentence had I been the Judge at first instance, but rather whether it was a sentence that was open to the Judge and within range.

[3] Fahey v Police HC Palmerston North CRI-2008-454-000021, 4 June 2008; Tutaki v Department of Corrections HC New Plymouth CRI-2008-443-000011, 24 April 2008; Henare v Police HC Christchurch CRI-2010-409-000193, 14 October 2010.

[16]     After careful consideration, I have decided that it was within range.   The appeal is accordingly dismissed and the sentence is confirmed.

Solicitors:

Southern Law, Invercargill

Crown Solicitor’s Office, Invercargill