Rapana v The Queen

[2013] NZHC 351

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI 2012-488-000081 [2013] NZHC 351

RICHARD WAIPUTERAA RAPANA

v

THE QUEEN

Hearing:         27 February 2013

Appearances: M J Scally for the Appellant

C A Anderson for the Crown

Judgment:      28 February 2013

JUDGMENT OF GILBERT J

This judgment was delivered by me on 28 February 2013 at 9.45am pursuant to Rule 11.5 of the High Court Rules. Registrar/Deputy Registrar

Date: ………………….

Counsel:            M J Scally, Whangarei:  [email protected]

C A Anderson, Whangarei:  [email protected]

RAPANA V R HC WHA CRI 2012-488-000081 [28 February 2013]

[1]      Mr Rapana pleaded guilty to two charges of burglary, one charge of theft, one charge of breaching community work  and a charge of breaching post  detention conditions.     Judge D G Harvey sentenced Mr Rapana to an effective end sentence of two years and 10 months’ imprisonment in relation to these five offences.

[2]      Mr Rapana now appeals against this sentence on three grounds: first, that there was an unjustified disparity between this sentence and that imposed on a co-offender; second, the judge did not take into account Mr Rapana’s remorse; and third, the judge did not take into account Mr Rapana’s mental health issues.

[3]      Ms Scally, for Mr Rapana, responsibly conceded that there is no proper basis for the third of these grounds of appeal.  The only evidence in support of this ground is a letter from a general practitioner whom Mr Rapana consulted in connection with his sickness benefit.   The doctor had minimal contact with Mr Rapana and was unable to make any specific diagnosis of mental health problems.   Ms Scally’s instructions did not permit her to formally abandon this ground of appeal but I am satisfied that there is no substance in it and it must be dismissed.

[4]      The issue of remorse can also be shortly dealt with.  Ms Scally argued that the judge failed to take into account a brief letter of apology Mr Rapana had written on 1 August 2012 saying that he accepted full responsibility for his actions and was deeply remorseful.  The judge did not specifically refer to this letter when sentencing Mr Rapana but this does not mean that he overlooked it.  The judge recorded that he had  read  the  pre-sentence  report,  the  submissions  filed  by  the  Crown  and  by Mr Rapana’s counsel and had listened to the oral submissions made at the hearing.

[5]      In any event, Mr Rapana did not automatically qualify for a discount for remorse by writing this short letter.  The Supreme Court has made clear that such a discount will be appropriate only where a defendant’s remorse is substantiated following a proper and robust evaluation of all the circumstances.  McGrath J, giving the reasons of the court, stated at [64]:

Sentencing judges are very much aware that remorse may well be no more than self-pity of an accused for his or her predicament and will properly be

sceptical about unsubstantiated claims that an offender is genuinely remorseful.  But a proper and robust evaluation of all the circumstances may demonstrate a defendant’s remorse.   Where remorse is shown by the defendant  in  such  a  way,  sentencing  credit  should  properly  be  given separately from that for the plea.

[6]      I am not persuaded that Mr Rapana’s letter demonstrates genuine remorse such that a further discount was required, beyond the 25 per cent discount given for his  guilty  plea.    The  probation  officer  advised  in  her  pre-sentence  report  that Mr Rapana had  been  assessed as  having a high  risk  of re-offending  and  a low motivation to change. This assessment is not consistent with genuine remorse.

[7]      Ms Scally also argued that the judge failed to take into account Mr Rapana’s offer to pay reparation.   I do not accept this submission.   Mr Rapana’s offer of reparation is recorded in the first sentence of the pre-sentence report which the judge read.  The judge considered the issue of reparation but was unable to make any order for two reasons.  First, he did not have victim impact reports and was therefore not aware of the amount required for reparation.  Second, Mr Rapana did not have the financial means to pay reparation.  The judge dealt with the issue at [7] and [9] of his sentencing notes:

[7]  In preparing for sentencing I have had the advantage of reading a full pre-sentence report.   I have read the submissions filed by the Crown and your counsel.  I have listened to the submissions made to me today.  I note with extreme displeasure that I do not have victim impact reports, neither do I have verified reparation amounts.  That is totally unsatisfactory and I wish to make it clear that at all future sentencings for matters of this nature the Court expects that information.  I hasten to add that it is not your fault that I do not have that information and you will not have that visited upon you.

[9]   I would like to be able to be able to provide for reparation to your victims but even although I do not have the reparation figures I accept that in this  case  a  reparation  order  would  be  an  empty  order  given  your  own financial circumstances.

[8]      For these reasons, I consider that the second ground of appeal must also be dismissed.  The judge did not overlook Mr Rapana’s offer of reparation, nor did he make any error in declining to allow a further discount for Mr Rapana’s unsubstantiated claim of remorse.

[9]      I turn now to the principal ground of the appeal, namely the claimed disparity between the sentence imposed on the appellant and that imposed by a different judge

on his cousin, Edward Rapana.  Both offenders were sentenced for two charges of burglary but they were co-accused on only one of these.  Edward Rapana was also sentenced on charges of receiving, resisting police and driving with excess blood alcohol whereas the appellant was sentenced for three other offences being theft, breach of post detention conditions and breach of community work.  It appears from the sentencing notes that these offenders had different personal circumstances and histories of previous convictions.  The appellant received an effective end sentence of  two  years  and  10 months’ imprisonment  for  his  offending  whereas  Edward Rapana received an end sentence of 18 months’ imprisonment.

[10]     Ms Scally accepts that a direct comparison between these end sentences is not appropriate because they were for different offences and there were also personal mitigating features in Edward Rapana’s case which did not apply to the appellant. She  also  acknowledges  the  differences  in  their  previous  offending.    For  those reasons, Ms Scally relies solely on what she argues is an unjustified disparity in the starting points adopted by the two sentencing judges.

[11]     Judge Harvey adopted a starting point of two years’ imprisonment for the lead offence which was the burglary in which Edward Rapana was a co-offender.  He then took  into account  that  the appellant  was being sentenced  for two  separate burglaries.  He adjusted the starting point to three years’ imprisonment to reflect the totality of this offending.   It is not suggested that the judge was outside the permissible range in setting this starting point, only that there was an unjustified disparity between this starting point and the two year starting point adopted by Judge Moses.

[12]     Judge Harvey applied an uplift of six months to his starting point to take account of Mr Rapana’s previous convictions.  He allowed the full available discount of 25 per cent for Mr Rapana’s guilty plea.   This produced a sentence of two years seven  months’ imprisonment  for  the  two  burglaries.    The  judge  sentenced  the appellant to nine months’ imprisonment for the theft to be served concurrently.  He then imposed sentences of three months’ imprisonment for each of the breaches of post detention conditions and community work.   He directed that these latter sentences be served concurrently with each other but cumulatively with the sentence

imposed for the burglaries.  This resulted in an effective end sentence of two years

and 10 months’ imprisonment for the five offences.

[13]     In sentencing Edward Rapana on 21 May 2012, Judge Moses stated that ordinarily he would have adopted a starting point of three years’ imprisonment, the same as the starting point adopted by Judge Harvey.  However, taking into account the relatively small  amount  of property taken  and  Edward Rapana’s  psychiatric problems which he considered affected his culpability and responsibility, he adopted a starting point of two years’ imprisonment.     While the judge did not identify the extent of the adjustment made on account of mental health, it appears that it was the main factor justifying it.

[14]     As noted, there is no longer any complaint that Judge Harvey should have made an adjustment for mental health issues in the appellant’s case.   The only difference between the judges in setting their starting points is that Judge Harvey did not make any adjustment for the comparatively small amount of property taken.  The extent of this disparity is unquantified but likely to be relatively modest given that diminished culpability on account of mental health issues is recognised as a matter justifying a significant discount.  The comparison is also confounded by the fact that the two offenders were being sentenced on separate burglary charges.

[15]     I am  not  persuaded  that  there  was  any significant  disparity between  the starting points adopted by the two judges once account is taken of the different factors bearing on their respective sentencing decisions.  In my view, this case falls well short of the threshold required to justify interference with the sentencing judge’s decision on the ground of disparity between co-offenders.  The applicable test was set out by McMullin J in R v Lawson [1982] 2 NZLR 219 (CA):

The disparity argument is not infrequently raised in this Court.   For that reason we reiterate that differences in the length, and sometimes the type of sentence imposed on co-offenders, unfair although they may sometimes appear  to  be  in  the  view  of  co-offenders  who  think  they  suffer  by comparison,  are  not  of  themselves  enough  to  found  an  appeal  against sentence on a disparity argument.  Sentencing is not an exact science and the circumstances of one offender can rarely be closely compared with those of another.   The sentencing judge must not only consider the relative involvement of the individuals in the offence but also the mitigating factors affecting  each.  But  a  marked  difference  in  the  sentences  imposed  on

co-offenders, and for which no justification can be shown, may be of importance to the administration of justice generally in that such a marked and unjustified difference would tend to bring the administration of justice into disrepute.... But the test is objective; not subjective.   It is not merely whether the offender thinks that he has been unfairly treated but whether there is a real justification for that grievance; whether a reasonably minded independent observer aware of all the circumstance of the offence and of the offenders   would   think   that   something   had   gone   wrong   with   the administration of justice.

Conclusion

[16]     For the reasons given, the appellant has not persuaded me that there is any merit in any of his three grounds of appeal.

Result

[17]     The appeal against sentence is dismissed.

M A Gilbert J