Rarere v Police
[2015] NZHC 1799
•31 July 2015
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 remanded Mr Rarere to 18 May 2015 for a Judge alone trial on the substituted charge, allowing one hour, and noted that the issue at trial was to be as to as to Mr Rarere’s identity.
18 May 2015
[10] On 18 May 2015 Mr Rarere’s counsel said that Mr Rarere had telephoned him the day before to say that he was unwell. He had yet to review the CCTV footage with Mr Rarere and to complete exploring with the prosecutor whether Mr Rarere might plead to the lesser original charge. He asked for any warrant to lie until 20 May 2015.
[11] The Judge said that the offence Mr Rarere was charged with was punishable by imprisonment for three months, and confirmed with the prosecutor that he could proceed by way of formal proof within an hour. Mr Rarere’s counsel said he would still prefer to review the CCTV footage with Mr Rarere, but the Judge was not dissuaded.
[12] Towards noon, when Mr Rarere had still not appeared, the Judge heard evidence from two witnesses and in a reasoned decision, as to which there is not and cannot be any issue on this appeal against sentence, found the charge proved.
[13] The first witness, a Court security officer, said that at 2 pm he saw on closed circuit television three men, whom he had seen earlier that day supporting a friend on sentence, acting suspiciously at the bottom of the stairs to the foyer.
[14] Two of them, he said, appeared to write on the stairwell wall with what looked like a pen and then left the building. The tags, he confirmed, had not been there before. They had been “gouged into the wall”. The words “NIGGA STOMPS” were “quite large and quite deep with a pen”.
[15] The second witness, a senior constable, attached to the Court, viewed the footage with the security officer and identified Mr Rarere as one of the two offenders. Mr Rarere, whom he knew, he said, had a distinctive tattoo, a fist on his right cheek. The tags “FIST” and “NIGGA STOMPS”, he said, were Black Power logos.
[16] The senior constable said that he had asked the security officer to take still photographs from the CCTV footage and also to have it copied to a separate CD playable as an exhibit. As it appears, however, the photographs became the sole source of evidence as to the offenders and offence. The CD was not played at the hearing.
[17] Mr Rarere’s counsel cross-examined both witnesses, more especially the senior constable as to his ability to identify Mr Rarere. As to that, the senior constable was completely sure, having had face to face meetings with Mr Rarere, as he told the Judge.
[18] Once the Judge had found the offence proved, he issued a warrant for Mr Rarere’s arrest and noted that on sentence $300 reparation would be claimed to meet the cost of the damage. There is no record as to where that estimate came from.
[19] By the time Mr Rarere appeared for sentence on 12 June 2015 he had also been charged with a breach of a sentence of 80 hours community work, imposed on him on 25 February 2015 for driving while disqualified, by failing to report on 14
May 2015. A further warrant had been issued.
12 June 2015
[20] On 12 June 2015 Mr Rarere again appeared before Judge Adeane, this time in the Hastings District Court. He was represented by another lawyer from the Public Defence Service, who told the Judge that he had seen Mr Rarere as duty solicitor and asked whether it was a sentencing matter. Evidently, he was without full instructions.
[21] After the Judge confirmed that Mr Rarere was for sentence, he himself put to Mr Rarere the community work breach and, when Mr Rarere said he could not remember it, had the probation officer summarise Mr Rarere’s response to his 80 hour sentence. On 14 May 2015, the officer said, Mr Rarere had failed to report and he still had 58.5 hours to complete. Mr Rarere then pleaded guilty.
[22] At that stage the duty solicitor told the Judge that Mr Rarere apologised for not appearing at the defended hearing. He had been unwell. He had pleaded not guilty to intentional damage because he was only responsible for one of the tags, not for the others. The solicitor did not identify which tag Mr Rarere admitted and which he denied.
[23] The duty solicitor then submitted that the least restrictive sentence for Mr Rarere’s intentional damage offence was community work. But, given that Mr Rarere had breached his existing sentence, for which he was to be sentenced also, one possibility might be to cancel that sentence as part of a sentence of imprisonment. That is what the Judge did.
Sentence
[24] Judge Adeane began his remarks on sentence by explaining why Mr Rarere’s offence was one of intentional damage, attracting a sentence of imprisonment, and not of defacing the courthouse, which attracted a community-based sentence. Then, as to Mr Rarere’s offence, the Judge said this:
The substance of the charge is that Mr Rarere decided to graffiti the wall adjacent to the staircase in the Napier District Court and was captured on closed-circuit TV doing just that. Unsurprisingly then a conviction was
entered and a warrant for his arrest issued. He has subsequently been arrested and is also before the Court on a charge of breaching community work to which he has this morning reluctantly entered a guilty plea.
This Court does not like tagging Mr Rarere, anywhere. We do not have tagging in Hawkes Bay and anybody who tags inside the Courthouse, at either Napier or Hastings should know what to expect.
I have regard to your personal circumstances so far as they are relevant. You have previously been in prison and at 22 years of age you have yet to commit yourself to worthwhile citizenship.
[25] After that the Judge imposed the sentences of imprisonment under appeal, without explaining why they were open in principle or how he had calculated them. He cancelled the balance of the sentence of community work.
Imprisonment inherently excessive
[26] On the face of the Judge’s remarks on sentence he imprisoned Mr Rarere without considering, or at least articulating, why he saw no alternative but to impose that sentence, as opposed to a community-based sentence, and that in itself was an error of law.
[27] Before imprisoning Mr Rarere the Judge had first to consider, under s 8(g) of the Sentencing Act 2002, whether that was the least restrictive sentence appropriate in the circumstances. According to s 10A imprisonment is the most restrictive possible sentence.3 It has been described as the sentence of last resort.4
[28] That was a critical issue in this case because when Mr Rarere was first charged with defacing the courthouse under s 11A, the offence specific to his form of offending, he could only have been sentenced to a community-based sentence.
[29] On the evidence before the Judge, furthermore, the damage resulting from the tagging lay within s 11A, which contemplates damage to or the defacing of a building “by writing, drawing, painting, spraying or etching or otherwise marking”
it. That is what Mr Rarere did.
3 Sentencing Act 2002, ss 7 and 8.
4 R v Rawiri [2011] NZCA 244, (2011) 25 CRNZ 258 at 18; Fairbrother v R [2013] NZCA 340 at
[23] – [26].
[30] What aggravated Mr Rarere’s offence was that he tagged Black Power logos within the Napier District Court, a contempt of the Court and an incitement to others who appeared there, and that called for a deterrent response. But those features did not take Mr Rarere’s offence beyond the scope of s 11A either. The community- based sentences it attracts are capable of being both punitive and deterrent.5
[31] Before imprisoning Mr Rarere, furthermore, the Judge had under s 16 to have regard to the desirability of keeping him in the community as far as that was practicable and consonant with public safety.6 Nor could he imprison Mr Rarere unless he was first satisfied that three of the purposes of sentence (accountability, denunciation and deterrence) could not be achieved by any lesser sentence and that no other sentence would be consistent with the s 8 principles applying.7 That is a high threshold.
[32] Conversely, if the Judge considered under s 17 that he had reasonable grounds to believe that Mr Rarere was unlikely to comply with any sentence other than imprisonment he was obliged to say what they were and, unfortunately, he did not.
[33] Finally, to assess these issues, the Judge should have obtained a pre-sentence report, more especially because, while Mr Rarere was represented by an officer from the Public Defence Service, that officer appeared as duty solicitor, apparently without full instructions.
[34] A pre-sentence report may be discretionary, if the only sentence possible is imprisonment.8 But where a Judge is obliged to consider whether to commute a sentence of imprisonment to home detention a report is mandatory.9 It is equally
desirable, in such a case, that the Judge have a report, if only an oral report, in order
5 R v Rawiri, above n 3.
6 Section 16(1).
7 Section 16(2).
8 Section 26(1); Gorman v Police HC Christchurch AP 128/00, 11 August 2000; Henare v Police
HC Christchurch CRI-2010-409-193, 14 October 2010.
9 Section 26A.
to consider any community-based sentence; in this case, particularly, a sentence of community work.10
[35] In R v Toki the Court of Appeal said that while s 26 is permissive and confers a discretion whether to order a pre-sentence report:11
… the well-established practice is that an offender should not be sentenced to a term of imprisonment, except in very rare and exceptional cases, without such a report.
That practice, the Court continued to say, had then been well established for in excess of 60 years.
[36] The Judge must have had Mr Rarere’s criminal and traffic history. As he said, Mr Rarere had been imprisoned before. He had in fact been imprisoned twice before, once in March 2011 and again in April 2012.
[37] The Judge did not refer, however, to the fact that between those sentences Mr Rarere was sentenced to 250 hours community work and had no later breach conviction (it could be, however, that this sentence was subsumed within his second prison term). Nor did the Judge refer to the fact that Mr Rarere had no previous conviction for intentional damage.
[38] There also remains this curiosity. While the transcript does not record that the Judge obtained an oral pre-sentence report, there is a report on file recording oral advice the Judge is said to have received. That advice apparently was that, because Mr Rarere had no convictions for previous breaches, he qualified for further community work, subject to a warning.
[39] Be that as it may, it is too late for me now to consider the options, apart from imprisonment, that were open to the Judge when he imprisoned Mr Rarere. I do not have the reports necessary. I do not know whether home detention or further community work were then feasible or remain so. Furthermore, Mr Rarere has
already served a significant part of his sentence.
10 Section 56.
11 R v Toki [2007] NZCA 335 at [5]; see also Boggs v New Zealand Police [2014] NZHC 123 at
[26] – [27].
[40] After sentence Mr Rarere was entitled to apply to Judge Adeane, as the sentencing Judge, for bail pending his appeal, or to another Judge if the Judge was not available.12 Judge Adeane had minuted the file on sentence, however, directing that any bail application go to him. That may have dissuaded Mr Rarere from applying.
[41] The 42 days that Mr Rarere has now served corresponds to an 84 day short term of imprisonment;13 and any sentence apart from imprisonment is academic. The only issue that I am left with is whether the terms of imprisonment imposed, individually and together, were, as Mr Rarere contends, manifestly excessive.
Comparable previous sentences
[42] In 2006, in Hill v Police, when the only offence able to be charged was intentional damage under s 11, Lang J upheld a five month prison sentence for three intentional damage offences, each on a separate day, involving spray painting, some on a significant scale, and some on bail, by a recidivist offender who had failed to
complete community-based sentences.14
[43] Lang J held, after assessing those offences and the offender as ss 16 and 17 of the Sentencing Act 2002 required, that imprisonment was the only realistic option, stating that “tagging is an insidious form of offending and is difficult to detect” and that recidivist offending is of particular concern. He said that a total sentence of seven – eight months imprisonment would have been open.
[44] In May 2008, just before s 11A became the presumptive offence for tagging, Asher J, in Randell v New Zealand Police, upheld a 28 day sentence for four intentional damage offences; the tagging of two buildings on one day and the tagging of two others two and a half months later.15
[45] Asher J said that the damage caused was considerable. The cost of repair was
$1,092. The offender had also admitted to tagging businesses and houses in Hastings
12 Bail Act 2000, s 54.
13 Parole Act 2002, s 86(1).
14 Hill v New Zealand Police HC Auckland CRI-2006-404-89, 31 March 2007.
15 Randell v New Zealand Police HC Napier CRI-2008-441-8, 5 May 2008.
and Havelock North over three – four months and had pointed out several of these to the police.
[46] Asher J held that this offending justified imprisonment from a starting point of four – six weeks and, after reviewing cases like Hill, where imprisonment had been imposed, and others, to which I will refer shortly, where the sentence in issue was community work, he held that the 28 day sentence finally imposed was not inconsistent with current sentencing levels.
[47] In 2010, in Martin v New Zealand Police, Andrews J quashed a 23 month prison sentence, imposed cumulatively by one month sentences for 23 offences of wilful damage. She halved it by imposing 14 day sentences.16 In a “graffiti spree” the offender had tagged 22 places in Tauaranga on a single night and damaged a car.17 Tagging on such a scale, she said, required a “serious response”, but the sentence was out of all proportion.
[48] In 2008, by contrast, and before s 11A came into force, in Matete-Wilkie v New Zealand Police Potter J quashed a 42 day term imposed for a single offence of wilful damage and imposed 50 hours community work in its place.18
[49] The offender, a 31 year old man, accompanied by a 15 year old boy, had tagged two school buildings in three places using vivid marker pens. He had paid
$100 reparation and his one conviction was unrelated. Imprisonment, Potter J held, was not the least restrictive outcome. Despite the need for denunciation and deterrence, 50 hours community work was proportionate.
[50] Finally, in 2009, in Tavai v Police, after s 11A became the presumptive offence, Chisholm J upheld with hesitation 150 hours community work for the intentional damage of two buildings using orange paint, which cost $1,030 to
remedy.19 He considered that to be “at the top of the range available, if not beyond”,
16 At [28].
17 Martin v New Zealand Police HC Rotorua CRI-2010-470-000013, 22 April 2010.
18 Matete-Wilkie v New Zealand Police HC Gisborne CRI-2008-416-2, 15 February 2008.
19 Tavai v New Zealand Police HC Christchurch CRI-2009-409-000059, 7 May 2009.
but the offender had not responded to lesser terms and tagging in Christchurch was endemic. A deterrent sentence was called for.
[51] In confirming that sentence Chisholm J also noted that on 26 June 2008 the Summary Offences Act 1981 had been amended to introduce the s 11A offence and that it was “specifically crafted for this type of offending”.20 But, he held, where intentional damage is charged under s 11(1), as it had been in that case, the issue whether the sentence was excessive had to be set against the s 11(1) maxima, including imprisonment. Section 11A was irrelevant.
[52] As will be evident, I consider, by contrast, that by introducing s 11A in 2008 the legislature segregated tagging and related forms of vandalism from other forms of intentional damage and, equally deliberately, confined the penalty to a community-based sentence or a fine.
[53] Thus, it seems to me, taggers should normally be charged with the s 11A offence as long as the damage they cause is intrinsic to the tagging, like “etching”, and is not independently serious. To put that conversely, taggers should normally only be charged with intentional damage, attracting a sentence of imprisonment, where the tagging is merely a feature of more extensive damage.
[54] Intentional damage may also be the right charge, however, where the person charged has been a serial tagger, particularly a tagger who has not responded to community-based sentences. It may then be that a sentence of imprisonment is the only possible sentence; and that is able to be anticipated legitimately in the charge laid.
[55] It follows equally, to my mind, that where on sentence an offender charged with intentional damage, has committed a s 11A offence in the strict sense, and is not a serial tagger, who has flouted community-based sentences, that has to be relevant to the sentence imposed. A community-based sentence will normally be called for unless there is some other exceptional factor precluding anything less than a
custodial sentence or home detention.
20 At [11].
[56] Returning to this case, however, the issue whether the 70 day term imposed on Mr Rarere for intentional damage was excessive is to be assessed against Randell and Martin in particular. Hill involved a recidivist offender. Nor are Matete-Wilkie and Tavai to be ignored. Set against those cases, I consider it to be manifestly excessive.
[57] The tagging for which Mr Rarere must be held accountable was relatively confined in scale and involved a degree of “etching” and not wider damage. But it was tagging within the courthouse. It involved the use of Black Power logos. It was a contempt of Court and an incitement to others. A deterrent sentence was called for.
[58] Taking into account that this was Mr Rarere’s first such offence and that he was not wholly responsible for the tagging, it will suffice on this occasion for his sentence to be 28 days imprisonment.
Community work sentence
[59] In imposing the 60 day term for the 14 May 2015 breach of the sentence of
80 hours community work, imposed for disqualified driving, the Judge did not identify his starting point, or any credit he gave for plea, or any uplift he imposed for cancelling the remaining 58.5 hours.
[60] A breach of community work attracts no tariff. In assessing whether Mr Rarere’s sentence is excessive, I rely rather on the sentencing decisions to which Duffy J refers in her helpful survey in Tutaki v Department of Corrections; and I rely on that decision itself, with which I agree, as a basis for comparison.21
[61] There, as here, a sentence of imprisonment had been imposed for a breach of community work, a three month term for a second breach, without any reference to s 16 of the Sentencing Act 2002, and without a pre-sentence report. There, as I must here, Duffy J, having held that there had been errors of process, reassessed the
sentence proportionate to the offence.
21 Tutaki v Department of Corrections HC New Plymouth CRI-2008-443-000011, 24 April 2008; BC-200860909.
[62] In this case the 60 day term the Judge imposed, broadly speaking, lies one month within the three month maximum for the offence, suggesting that if he allowed Mr Rarere any credit for his plea, he must have rated Mr Rarere’s breach deserving of a near maximum sentence. It was not of that order. He had served 21.5 hours and it was his first breach.
[63] In Tutaki, Duffy J also took a two month starting point. But there the offender had served 25 hours of a 140 hour sentence. His response to his sentence had been abysmal. One month before he had been convicted and discharged and warned for a prior breach. In this case, it seems to me, the highest starting point the Judge could have taken was 28 days.
[64] As against that, as in Tutaki, the Judge cancelled Mr Rarere’s remaining community work, 58.5 hours, and that called for an uplift. In Tutaki, where 115 hours remained, the Judge adopted the apparent practice of the District Court, New Plymouth. She uplifted the sentence by one month. Here too a 28 day uplift seems to me to be right. The community work the Judge cancelled had been imposed for driving while disqualified and Mr Rarere had not been further disqualified.
[65] There remains Mr Rarere’s entitlement to a discount for his plea. He entered his plea at the first reasonable opportunity. But, equally, he had no conceivable defence. His breach and its extent were self-evident, as he accepted. At most he would have been entitled to 20 per cent. The result is that I consider that Mr Rarere’s sentence should not have exceeded 56 days.
Conclusions
[66] I grant Mr Rarere’s appeal. The sentences of imprisonment imposed on him involved errors of law and were manifestly excessive. But because he has served a significant part of that short term of imprisonment I am able only to adjust the length of the individual terms imposed and the total sentence.
[67] I quash Mr Rarere’s 70 day sentence for intentional damage and substitute a
28 day term. I quash the 60 day sentence for breach of community work and
substitute a 56 day term. I impose those terms cumulatively. They appear to me proportionate, individually and in totality.
[68] As this sentence, like that under appeal, is a short term of imprisonment, Mr Rarere is entitled to be released after he has served one half of the sentence imposed. He has by my count served 42 days and has thus has completed his sentence.
Assuming that to be so, he is entitled to be released.
P.J. Keane J
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