Rare v Police

[2017] NZHC 524

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

CRI-2017-416-3 [2017] NZHC 524

UNDER	the Criminal Procedure Act 2011
IN THE MATTER	of an appeal against sentence pursuant to section 250
BETWEEN	EDWARD HEMI RARE Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	21 March 2017
Counsel:	M A Terekia for Appellant M Mitchell for Respondent
Judgment:	22 March 2017

JUDGMENT OF THOMAS J

[1]      Mr Rare was found guilty and convicted at a Judge alone trial in the District Court at Gisborne1 on a charge of injuring with intent to injure,2 threatening to kill3 and causing wilful damage.4

[2]      He was sentenced to three years and four months’ imprisonment.5   He appeals against his sentence on the basis it is manifestly excessive.  In particular, the starting point was too high, the uplift for accompanying charges and criminal history was too high,  no  discount  was  provided  for  time  spent  on  restrictive  EM  bail,  and  a

manifestly excessive cumulative sentence was applied for the remittance of his fines.

1      New Zealand Police v Rare [2016] NZDC 23507.

2      Crimes Act 1961, s 189(2) (maximum penalty five years imprisonment).

3      Section 306(1)(a) (maximum penalty seven years imprisonment).

4      Summary Offences Act 1981, s11(1)(a) (maximum penalty three months imprisonment or a fine not exceeding $2,000).

5      New Zealand Police v Rare [2017] NZDC 290 at [7]–[8].

RARE v NEW ZEALAND POLICE [2017] NZHC 524 [22 March 2017]

Facts

[3]      The victim was at home with her young daughter.  While in the shower she became aware of a group of men swearing and banging on her front door.   The defendant and two other men were on her door step.  When she opened the door the defendant yelled that he was “gonna smash [her] head in” and “this is not the last time you’ll see me”.  The men had an aggressive demeanour and the defendant, in particular, was threatening. This gave rise to the threatening to kill charge.

[4]       The defendant punched the victim two or three times in the head and throat. The victim’s young daughter began screaming in the bedroom.  The victim went to comfort her.  The defendant followed her into the house.  He ripped her t-shirt and again punched her twice in the head, this time while she was holding her daughter. This gave rise to the injuring with intent to injure charge.

[5]      The  victim  impact  statement  describes  the  victim’s  injuries  as  bruising around her neck and tender bruises around her head region.  She had to go to hospital for assessment due to a prior head injury.  The evidence noted by the Judge in the conviction decision also describes the victim having difficulty breathing immediately after pressure was applied to her throat.

[6]      The defendant then repeatedly punched holes in the walls of the hallway and

the victim’s bedroom, which gave rise to the causing wilful damage charge.

District Court decision

[7]       The District Court Judge adopted a starting point of two and a half years’ imprisonment  for  the  injuring  with  intent  to  injure  charge.    He  considered  the conduct fell within band two of Nuku.6   The aggravating features were vulnerability of the victim, as she lived alone, an attack to the head, premeditation, and multiple offenders.  It was also a home invasion and there was a young child in the house at

the time.

6      Nuku v R [2012] NZCA 584.

[8]      The  Judge  uplifted  the  starting  point  by  six  months  to  take  account  of Mr Rare’s six previous convictions and the accompanying charges.   There was no guilty plea.  The Judge did not allow any discount for remorse or consider time spent on EM bail.   He considered any expression of remorse was a convenient one.  A cumulative sentence of four months’ imprisonment was imposed in substitution for

$17,785.77 in unpaid fines.

Standard on sentencing appeals

[9]        Section 250 of the Criminal Procedure Act 2011 governs sentence appeals from the District Court to the High Court.  It provides:

250     First appeal court to determine appeal

(1)      A first appeal court must determine a first appeal under this subpart in accordance with this section.

(2)      The first appeal court must allow the appeal if satisfied that—

(a)      for any reason, there is an error in the sentence imposed on conviction; and

(b)      a different sentence should be imposed.

(3)      The first appeal court must dismiss the appeal in any other case.

[10]     When a sentence is challenged as being manifestly excessive, the focus of the appellate Court is on whether the end result is correct, rather than the exact process by which it was reached.7    If the Court finds there is a material error affecting the sentencing process, the Court will then form its own view of the appropriate sentence.8     This  allows  the Court  to  undertake  the sentencing exercise  itself  to determine whether the sentence was manifestly excessive.9

[11]     In sentencing an offender the Court must take into account that the offender spent time on EM bail.10    Mr Rare was on EM bail with a 24 hour curfew for four and a half months.  It is not apparent from the file whether this was brought to the

attention of the sentencing Judge.  It was not referred to in the written submissions of

7      R v Ripia [2011] NZCA 101 at [15].

8      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30].

9 At [32].

10     Sections 9(2) and (3A).

counsel then acting for Mr Rare.   In any event, it has been raised now and it is something which should have been considered in sentencing. There was, therefore, a material error affecting the sentencing process and I will now form my own view of the appropriate sentence.

Starting Point

[12]     The Judge placed this in band two of Nuku. The bands from Nuku are as follows:11

(a)      Band  one:  where  there  are  few  aggravating  features,  the  level  of violence is relatively low and the sentencing judge considers the offender’s culpability to be at a level that might have been better reflected in a less serious charge, a sentence of less than imprisonment can be appropriate.

(b)Band two: a starting point of up to three years’ imprisonment will be appropriate where three or fewer of the aggravating factors listed at [31] of Taueki12 are present.

(c)      Band three: a starting point of two years up to the statutory maximum (either  five  or  seven  years,  depending  on  the  offence)  will  apply where three or more of the aggravating features set out in Taueki are present and the combination of those features is particularly serious. The  presence  of  a  high  level  of  or  prolonged  violence  is  an aggravating  factor  of  such  gravity that  it  will  generally require  a starting  point  within  band  three,  even  if  there  are  few  other aggravating factors.

[13]     The Court gave the following guidance of evaluating aggravating factors:13

[42]     We emphasise that a sentencing judge needs not only to identify aggravating factors but also to evaluate the seriousness of a particular factor. One very serious factor could have the effect of lifting the offending into a

11     Nuku above n 6 at [38].

12     R v Taueki [2005] 3 NZLR 372.

13     Nuku above n 6.

higher band.  Equally, if a number of aggravating factors are present but only in a mild form, that may result in the offending being placed in a lower band. The level of seriousness of the aggravating factors will also, of course, affect where an offence is positioned within a band.

[14]     The relevant factors in this case are:

(a)      Premeditation – there was some level of premeditation as Mr Rare decided to go to the victim’s house with the intent of, at the very least, confronting her.

(b)Attacking the head – the Judge found that Mr Rare hit the victim in the head at least four times.  This included the application of force to the throat area causing the victim difficulty in breathing.

(c)      Multiple attackers – while multiple men confronted the victim, only Mr Rare actually attacked her.   However, the presence of the other men increased the seriousness of the offending as it added to the level of fear and intimidation brought to bear on the victim, even if they did not themselves physically assault her.

(d)Vulnerability of victim – the female victim was at home, with only her young daughter, and in the shower when the men arrived.  Some of the blows to the victim were struck when she was holding her child.

(e)      The violence occurred in front of her child.

(f)      Home invasion – the attack took place in the victim’s home.

(g)      The violence was accompanied by the threat to kill and the damage to

the victim’s house.

[15]     The three offences all form part and parcel of the same offending.   The offending as a whole would fall within the top of band two or bottom of band three of Nuku and I consider two years and eight months’ imprisonment an appropriate starting point on a totality basis.

Uplift

[16]     Mr Rare’s conviction history shows two common assault charges in 2013, and three common assault and one male assaults female charges in 2010.  The Judge described  these as  six  violence convictions  in  the last  six  years,14   which  could perhaps more fairly be described as six violence convictions in three years, the last of which  was  over three  years ago.    I consider an  uplift of two months to be appropriate.

EM Bail

[17]     Mr Rare spent four and a half months on restrictive EM bail.  The bail was for 24 hours a day seven days a week. There is no evidence of the frequency and duration  of  authorised  absences.    There  is  agreement  that  Mr  Rare  was  fully compliant  with  his  EM  bail  conditions.    Counsel  for  Mr Rare  submitted  that  a discount in the vicinity of three months might have been appropriate.  The Crown accepts that the time spent on EM bail should be recognised and the amount of the discount is a matter of judicial discretion.  I consider a discount of three months to be appropriate.

Cumulative sentence in substitution for fines

[18]     Mr Rare had $17,785.77 outstanding in fines at the time of sentencing in respect of which the Judge imposed a cumulative sentence of four months’ imprisonment.

[19]     Counsel for Mr Rare submits this is manifestly excessive.  A sentence of two to three months would be appropriate.  Defence counsel relies on La Rue.15   In that case $6,244 of fines were remitted to 300 hours of community work in the District Court.  On appeal this was replaced with 200 hours of community work.  He also relies on Brand where $13,824 of fines were remitted to a sentence of three months

imprisonment.16      On  appeal  this  was  replaced  with  a  sentence  of  two  months

14     New Zealand Police v Rare above n 5at [7].

15     La Rue v Ministry of Justice Collections Unit [2016] NZHC 666.

16     Brand v The Registrar of Collections at New Plymouth HC New Plymouth CRI-2008-443-25, 10

November 2008.

imprisonment.  However, as pointed out by Crown counsel this took account of the

defendant’s youth at the time of committing the offences for which he was fined.

[20]     The considerations for remitting fines are:17

[9]       … No guidance is given in the legislation as to the relationship between the amount of fines remitted and the number of hours of community work imposed.  Plainly, the discretion to be exercised under s 88 is intended to be broad, taking into account all relevant circumstances.   Relevant considerations would include the amount of the fines, the crimes for which they were imposed, the length of time over which they were accumulated, the reasons for non-payment, the extent to which the offender has paid or has attempted to pay, the financial and other circumstances of the offender and the likelihood or otherwise of the balance of fines being paid (where remission of part of the fines is to be considered).

[21]     Examples  referred  to  in  La  Rue  were  Tocker  v  Ministry  of  Justice Collections,18    where  $10,753.52  of  fines  was  substituted  with  60  hours  of community work, and Ross v Ministry of Justice,19  where $30,000 of fines were substituted with 400 hours of community work.

[22]     The  Crown  submits  that  Mr  Rare  has  continued  to  accumulate  a  large quantity of fines over a period of years for similar/identical offending.  The public policy reasons for which fines are imposed and enforced require a deterrent sentence in this instance. Therefore four months is not manifestly excessive.

[23]     Mr Rare’s fines were imposed for a number of driving offences between 2008 and 2015.   They were for offences such as failing to comply with learner licence conditions, driving a vehicle with no warrant or registration, failing to produce his driver’s licence, three speeding fines and parking fines.  The fines began when he was about 19 years old.  Sometimes he received a number of fines for one incident – for example in 2009 he was fined $430 for failing to display an L plate plus $430 for being an unaccompanied learner driver.   It is not difficult to see how these fines quickly tallied into an unmanageable debt.  That is not to excuse the infringements

but  to  put  some  context  around  Mr  Rare’s  situation.    The  amount  currently

17     La  Rue  above  n  16  as  cited  from  Davis  v  Registrar  of  Collections  Unit  at  Dunedin

HC Christchurch CRI-2005-412-13, 3 May 2005 at [9].

18     Tocker v Ministry of Collections HC Wellington CRI-2010-435-4, 18 May 2010.

19     Ross v Ministry of Justice HC Hamilton CRI-2010-419-19, 9 June 2010.

outstanding is made up of $16,867.77 of unpaid fines, and $918.00 of enforcement fees.

[24]     If a community work sentence were substituted in lieu, a sentence in the region of 180 to 200 hours would be appropriate.  Converting that to a sentence of imprisonment results in two months’ imprisonment.

Conclusion

[25]     The appeal is allowed.   The end sentence of three years and four months’ imprisonment is quashed and replaced with a sentence of two years and nine months’ imprisonment.

Thomas J

Solicitors:

Woodward Chrisp, Gisborne for Appellant

Crown Solicitor’s Office, Gisborne for Respondent