Rapana v Police

[2012] NZHC 950

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

CRI-2012-442-10 [2012] NZHC 950

EBONY SHEREE JESSIE RAPANA

v

NEW ZEALAND POLICE

Hearing:         7 May 2012

Counsel:         J Webber for Crown

I Miller for Appellant

Judgment:      8 May 2012

In accordance with r 11.5, I direct the Registrar to endorse this judgment with the delivery time of 3:30pm on the 8th May 2012.

JUDGMENT OF WILLIAMS J

[1]      Ebony Rapana appeals against sentence imposed in the District Court in Nelson on 2 April 2012.  She faced three charges, two counts of assault with a blunt instrument, and one count of breach of intensive supervision.   The learned Judge imposed an overall prison sentence of 19 months being six months on the first assault count, four months on the breach of intensive supervision, and nine months on the second assault count.

[2]      Ms Rapana argues that the sentence was manifestly excessive and that the

Judge should have imposed an appropriate term of home detention.

EBONY SHEREE JESSIE RAPANA V NEW ZEALAND POLICE HC NEL CRI-2012-442-10 [8 May 2012]

Facts

[3]      On 9 February 2010, Ms Rapana had an argument with her brother and, while getting out of a vehicle, she grabbed a bolt and struck him over the head with it.  The blow  caused a three centimetre cut  to  her brother’s  scalp  requiring anaesthetic, staples and a tetanus injection.

[4]      The appellant was sentenced to intensive supervision on that matter but had to be resentenced on 27 June 2011 for breach of its conditions. A further sentence of intensive supervision was imposed, despite a pre-sentence report recommendation of imprisonment.   On 5 January 2012, Ms Rapana breached that sentence again.   I understand that this was her fifth breach overall.

[5]      Ms Rapana also committed another assault while serving her sentence of intensive supervision.  That occurred on 25 November 2011. According to the police summary, Ms Rapana hit the victim on the left ear with a pair of scissors.  She then hit the victim on the side of the head with a beer bottle, causing the victim to collapse.  She then kicked the victim about 10 times on the body.  At the conclusion of the assault she declared “Remember me, Ebony Rapana, tell everyone.”

[6]      The victim received small cuts to her ear and face, bruising to her head, arms and the back of her left leg, and scratched on her right leg.

[7]      There is a dispute about this version of events, Ms Rapana saying there were no kicks but accepting there were some punches while the victim was defenceless. These factual disputes have not been resolved.

[8]      The standard pre-sentence report for Ms Rapana showed little sympathy for her situation.  Community detention and home detention were both discussed.  The report provided:

However, Ms Rapana’s risk of reoffending, her risk to the community and her lack of compliance with community-based sentences would indicate that a community-based sentence is not appropriate at this time.  Therefore, the court may wish to hold Ms Rapana accountable for her actions and deter her from further offending by way of imposing a term of imprisonment.

[9]      His Honour Judge Zohrab accepted that  advice and refused  to impose a sentence of home detention.  He concluded that home detention would “not send out the right message”.  He emphasised the seriousness of the assault and the fact that it was committed while on sentence for an earlier assault.

[10]     As I have said, Ms Rapana argues that the prison term imposed upon her was manifestly excessive and that the Judge should have exercised his discretion to impose home detention.

[11]     On the term of imprisonment, the appellant argued that the Judge erred by:

(a)      overestimating the objective seriousness of offending for the second assault;

(b)      failing to take into account the totality of offending;

(c)      failing to provide a discount for the guilty plea in relation to some charges; and

(d)not  providing  a  discount  for  time  spent  serving  the  sentence  of intensive supervision.

[12]     In  respect  of  the  refusal  to  impose  a  sentence  of  home  detention,  the argument was that the Judge erred by:

(a)      failing to appreciate that home detention has its own deterrent and denunciative effect;

(b)failing to conclude that home detention would be the least restrictive sentence appropriate in the circumstances in light of the appellant’s family support in Nelson; and

(c)       becoming distracted over the presence of the appellant’s son in court.

[13]     Mr Miller  argued  that  a  term  of  imprisonment  of  12  months  was  more appropriate, and this term should be converted to the equivalent in home detention.

[14]     The police argued that the sentence imposed was well in range on a totality principle given the seriousness of the two assaults, and Ms Rapana’s steadfast refusal to comply with her sentence of intensive supervision.

Manifestly excessive?

[15]     The authorities are clear that it is not the process by which the sentencing Judge reaches his or her conclusion, but the conclusion itself which is to be the focus of analysis.1   This assessment turns on the maximum penalty, sentencing in similar cases and the particular circumstances of the offending and offender.2

[16]     I turn now to address each of the submissions made under this heading.

Submission 1:   Overestimate of objective seriousness of offending for the second assault

[17]     I do not think there is anything in this point.  Assault with a weapon carries a high maximum penalty.  The sentence imposed was at the low end of the spectrum (12 months out of a possible 5 years).

[18]     Although counsel did not refer to it, I think R v Harris is a more appropriate tariff analogy than Taueki here.3     It provides guidelines for injuring with intent to injure. Those guidelines provide:4

[10]      An offence of injuring with intent to injure involves establishing both an intent to cause an injury and an actual injury resulting. At least in general terms, the mens rea for this offence will coincide with the actus reus. Cases where there is a broad correspondence between the actual injury and what was intended (or the level and nature of the violence inflicted) can fairly be sentenced primarily by reference  to  the  seriousness  of  the  injury  suffered,  an  approach which we think is broadly consistent with Taueki. On this basis, we

1 R v MacCulloch [2005] 2 NZLR 665 (CA) at [50].

2 R v Monkman CA445/02 3 March 2003 at [6].
3 R v Harris [2008] NZCA 528.

4 At [10].

envisage bands and starting point sentences (ie before allowance for personal aggravating and mitigating factors) as follows:

Band one:        where  there  is  little  injury  and  few  aggravating features and where the sentencing judge considers the culpability to be at a level which might have been better reflected in a less serious charge, a sentence of less than imprisonment can be appropriate: Taueki at [27];

Band two:        where the injuries are moderate, sentences of up to two years' imprisonment can be justified;

Band three:      for serious injury, sentences from 18 months up to the maximum of five years can be justified (subject to complying with s 8(c)(d) of the Sentencing Act

2002).

[19]     A helpful comparative case is Blondell v Police.5    In that case the appellant, Ms Blondell, was appealing a 11 month prison term for assaulting with a weapon, as well  as  three  lesser  charges  (theft,  disorderly  behaviour,  dishonest  use  of  a document).  She struck a man on the back of the head with a tyre iron, causing him to bleed profusely. The blow to the head, the other discrete charges and the effects on the victim prompted a 15 month starting point, reduced by 4 months for a guilty plea and the fact Ms Blondell had children. Clifford J upheld the sentence as permissible for cases falling within band 2.

[20]     Both assaults being sentenced here were similar, in that they involved blows to the head causing moderate injury in accordance with band 2 of Harris.   The second assault here, in particular, seems to have been more serious than in Blondell, involving multiple kicks (at least on one view of it) while the victim was on the ground.  It was also committed while under sentence for the previous assault.

[21]     A sentence of nine months is in range in these circumstances.

Submission 2: Failure to consider totality

[22]     The relevant provisions here are ss 85(2) and (3):

85       Court to consider totality of offending

5 [2012] NZHC 533

...

(2)      If cumulative sentences of imprisonment are imposed, whether individually or in combination with concurrent sentences, they must not result in a total period of imprisonment wholly out of proportion to the gravity of the overall offending.

(3)       If, because of the need to ensure that the total term of cumulative sentences   is   not   disproportionately   long,   the   imposition   of cumulative sentences would result in a series of short sentences that individually  fail  to  reflect  the  seriousness  of  each  offence,  then longer concurrent sentences, or a combination of concurrent and cumulative sentences, must be preferred.

[23]     Counsel for the appellant accepts the individual sentence for the first assault (six months) is fair, but says the result of adding each sentence together is a final term “wholly out of proportion to the gravity of the overall offending”.

[24]     First, it should be noted that counsel was proceeding on the basis that the length of imprisonment for the second assault was wrong in principle.  As I have said, in my view, it was not, for the reasons I have outlined.

[25]     Second, stepping back and considering the 19 month sentence as a whole, I do not think Judge Zohrab needed to make further adjustments for totality here.  I refer to R v Bradley, where the Court of Appeal said:6

... a cumulative sentence may offend the totality principle if the aggregate sentence is substantially above the normal level of sentences for the most serious of the individual offences involved, or if its effect is to impose on the offender a crushing sentence not in keeping with his record and prospects... it is crucial in arriving at a sentence for several offences, after considering them individually, to stand back and look in a broad way at the totality of the criminal behaviour.

[26]     I do not think either of the grounds discussed in Bradley applies here.  I have not found any cases which suggest that 19 months is “substantially above the normal level of sentences” for two assault with a blunt instrument charges in these circumstances,7 and I would not say the end result here is “crushing”.  It is consistent with the actual offending and with the appellant’s record of not complying with community based, non-custodial sentences.  I will consider the suitability of home

detention separately.

6 R v Bradley [1979] 2 NZLR 262 (CA) at 263-264.

[27]     On appeal, the appellate court, as I have said, does not focus on the process by which the final result was reached, but on whether the end result is manifestly excessive.   I have considered that question in relation to the first submission and in light of the decision in Harris.  Despite any defects in process, the end result was not clearly excessive.  Rather, it was consistent with the banding in the guideline case.

Submission 4:  Failure to provide discount for time already spent serving intensive supervision

[28]     This might be described as a brave submission.  The appellant breached the conditions of her intensive supervision repeatedly.  According to Judge Zohrab, she evidenced no motivation to comply and no remorse for breaching the order.8      Any time spent “serving” the sentence of intensive supervision would be of negligible mitigating effect.

Was home detention appropriate?

[29]     There is no prevailing presumption of home detention when a case is within range.  Whether it is appropriate is a matter of discretion for the sentencing Judge.9

As the following authorities establish, it is difficult to overturn an exercise of that discretion.  In James v R, the Court of Appeal said:10

... an appeal against a refusal to grant home detention does not provide an opportunity to revisit or review the merits. The question is whether Judge Tuohy erred in exercising his sentencing discretion: that is, did he apply an incorrect  principle,  give  insufficient  or  excessive  weight  to  a  particular factor, or was he plainly wrong? Ms Guy Kidd for the Crown properly accepts that home detention can satisfy the objectives of deterrence and denunciation, but to a degree. We are satisfied, in accordance with earlier authority in this Court, that the decision about whether home detention will meet those objectives in a particular case is a strictly evaluative exercise. 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.

8 At [4].

9 R v Stacey [2008] NZCA 465 at [21].

10 James v R [2010] NZCA 206 at [17].

In a case like this, the sentencing Judge is required to form a judgment on whether   imprisonment   is   necessary   or   home   detention   can   respond adequately to the seriousness of the offending. The closer one gets to the dividing  line,  the  more  difficult  it  becomes  to  articulate  reasons  for preferring one approach to the other. In such cases, the view of a sentencing Judge  from  the  jurisdiction  in  which  crimes  of  the  type  in  issue  are frequently tried assumes greater weight. He or she will be in a much better position than an appellate Court to determine which type of offending falls on one side of the line or another. The broader the base of similar offending a particular Judge sees, the more likely it is that the chosen sentencing response will be appropriate.

[31]     Here,  Judge  Zohrab  seemed  to  have  engaged  in  the  evaluative  exercise required. The Judge said:12

In my view the sentence of home detention would not send out the right message.  You have been given help and opportunities by the Court.  This is a bad case of assault whilst subject to a sentence for assault whilst everybody has offered you help and assistance so nothing short of prison is appropriate.

[32]     Mr Webber  correctly pointed  to  s 17  of  the  Sentencing Act  2002  which provides:

Nothing in this Act limits the discretion of a court to impose a sentence of imprisonment on an offender if the court is satisfied on reasonable grounds that the offender is unlikely to comply with any other sentence that it could lawfully impose and that would otherwise be appropriate.

[33]     I  note  also  the  very  firm  advice  from  the  pre-sentence  report  that  the appellant showed no remorse for any of her offending here. Although the appellant’s argument was that the  shift from Porirua to  Nelson brought her within a more supportive network, Mr Webber was right to point out that the appellant’s most recent breach of intensive supervision occurred in Nelson and she was already living in   Nelson   when   interviewed   for   pre-sentence   reporting.      The   change   of circumstances did not seem to impress the interviewing officers.

[34]     The appellant focused on critical comments Judge Zohrab made in respect of the appellant bringing her son to court.  He said:

11   R v D [2008] NZCA 254 at [66].

You tell me that your interests are the interests of your son and I am told that he has been at court today.  I cannot believe that you brought him along to court knowing that there was a prospect of you being sentenced to prison.  It would be incredibly upsetting for your son to be here watching what is happening and it shows me that you have little understanding or insight into what it must be like for a four year old to be put into that position.  You still have a lot to learn about being a mother.

[35]     There are cases to the effect that inappropriately acerbic remarks made by

Judges can provide a foundation for reducing or even quashing sentences.13

[36]     I do not know whether Judge Zohrab discussed this matter in court with the appellant and so knew that there were childcare options available for the appellant’s son or whether this was a spontaneous remark without knowledge of relevant background.  If the latter, the comment, would be insensitive to say the least.  Having said  that,  I  just  do  not  accept  that  the  comment  was  significant  enough  to overshadow the Judge’s reasoning on sentence choice, supported as it was by pre- sentencing interviews.  I do not think there is merit in this point.

Conclusion

[37]     Accordingly,  it  is  my  view  that  the  sentence  was  within  range  and  not manifestly excessive.  Similarly, I do not think that Judge Zohrab erred in failing to consider home detention.

[38]     The appeal is dismissed accordingly.

Williams J

13 See Halls Sentencing at I.7.6 referring there to Forbes v Police HC Auckland AP 94/87, 3 July 1987 and Loper v Police HC Dunedin AP 71/93, 14 September 1993.