Rarere v Police - [2015] NZHC 1799

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 Respondents

Judgment:

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] NZHC 1799
Decision Date: 31 July 2015

CaseChat Overview and Summary

The High Court of New Zealand was presented with an appeal by Judas James Rarere against his sentence, arguing it was manifestly excessive. Rarere had been sentenced to imprisonment for intentionally damaging the Napier District Court and for breaching a sentence of community work. Rarere contended that the court failed to consider whether a community-based sentence was the least restrictive and that each of the sentences of imprisonment was manifestly excessive in length. The court had to decide whether the sentences imposed were appropriate and whether they complied with the principles of sentencing. The High Court found that the original sentences were indeed excessive and that the court had failed to consider the appropriate alternative sentences. The court quashed the original sentences and substituted new ones, which were deemed proportionate. The final orders were that the 70-day sentence for intentional damage was reduced to 28 days and the 60-day sentence for breach of community work was reduced to 56 days, to be served cumulatively. Given that Rarere had already served 42 days, he was entitled to be released immediately.

Orders