IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY
CRI-2015-441000024-5 [2015] NZHC 1799
BETWEEN JUDAS JAMES RARERE
Appellant
AND
NEW ZEALAND POLICE First Respondent
AND
DEPARTMENT OF CORRECTIONS Third Respondent
Hearing: 27 July 2015 Appearances:
W R Hawkins for Appellant
M Mitchell for RespondentsJudgment:
31 July 2015
JUDGMENT OF KEANE J
This judgment was delivered by me on 31 August 2015 at 3.30pm pursuant to r 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Solicitors:
Public Defence Service, Napier
Crown Solicitor, Napier
RARERE v POLICE [2015] NZHC 1799 [31 July 2015]
[1] On 12 June 2015 Judas Rarere was sentenced by Judge Adeane in the District Court, Hastings, to imprisonment for 70 days for intentionally damaging the Napier District Court on 18 February 2015 and, cumulatively, to a further 60 days for breach of a sentence of community work on 14 May 2015; a short term of imprisonment exceeding four months.
[2] Mr Rarere, who has now served 42 days of his sentence, appeals his sentence, contending that it is manifestly excessive.
[3] First, Mr Rarere contends, the Judge failed to consider, as he had to, whether a community-based sentence was the least restrictive sentence capable of serving the purposes and principles of sentence; and, in his case, he contends, a sentence of imprisonment, the sentence of last resort, was inherently excessive.
[4] Secondly, he contends, each of the sentences of imprisonment the Judge imposed on him was manifestly excessive in length and, in imposing those two sentences cumulatively, the Judge also failed to have regard to the principle of totality.
Evolution of case
[5] On 18 February 2015 Mr Rarere and another person, who has not since been identified, were captured on closed circuit television defacing the stairwell in the foyer of the Napier District Court with four tags: “RAG”, “NIGGA STOMPS”, “FIST” AND “CRUZ RPGXO1”.
[6] On 27 February 2015 Mr Rarere was charged with defacing the courthouse under s 11A of the Summary Offences Act 1981, a specific offence created in 2008 to encompass tagging and related forms of vandalism,1 which attracts a community-based sentence (community work, supervision, intensive supervision and
community detention),2 and a maximum fine of $2,000.
1 Summary Offences (Tagging and Graffiti Vandalism) Amendment Act 2008.
2 Sentencing Act 2002, s 4(1).
[7] On 18 March 2015, when Mr Rarere made his second appearance, his first before Judge Adeane, the prosecutor applied, on the ground that there had been damage caused, for leave to substitute for the original charge one of intentional damage under s 11(1) of the Summary Offences Act, for which the maximum penalties are a $2,000 fine or three months imprisonment.
[8] Mr Rarere, by then represented by counsel from the Public Defence Service, had intended to plead not guilty to the original charge, putting his identity in issue. When the Judge asked his counsel whether the substituted charge altered the position, counsel said that it did not but added that he had yet to receive disclosure.
[9] The Judge…
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