Rarere v Police - [2012] NZHC 779

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI-2012-441-8 [2012] NZHC 779

JUDAS JAMES RARERE
Appellant

v

NEW ZEALAND POLICE
Respondent

Hearing: 24 April 2012

Appearances: S Jefferson for Appellant
CR Walker for Respondent

Judgment: 26 April 2012

JUDGMENT OF TOOGOOD J

This judgment was delivered by me on 26 April 2012 at 4:20 pm
Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

Solicitors:
S Jefferson, Barrister, Auckland: scott@sjbarrister.co.nz
CR Walker, Elvidge & Partners, Napier: Clayton.Walker@elvidges.co.nz

RARERE V NEW ZEALAND POLICE HC NAP CRI-2012-441-8 [26 April 2012]

[1] After a defended hearing, the appellant, Judas James Rarere, was convicted on charges of burglary, unlawfully taking a motorcycle and dangerous driving. In sentencing Rarere in the District Court at Napier on 9 February 2012, Judge Adeane sentenced him to two-and-a-half years’ imprisonment on each of the burglary and unlawful taking charges and imposed a cumulative sentence of three months’ imprisonment on the dangerous driving charge, resulting in a total effective sentence of two years nine months’ imprisonment. He also disqualified the appellant from driving for a period of three years.

[2] Mr Rarere now appeals against his sentences on the grounds that, in total, they were manifestly excessive. The appeal was filed late but there is no opposition to the application for an extension of time.

The offending

[3] The complainant, a Mr Devareau, had parked his brand new $37,000 Harley Davidson motorcycle immediately outside his work premises of Noel Leeming in Hastings Street, Napier. The property is fronted by a ramp and a parking area and the motorcycle was parked close to the door so that Mr Devareau could keep what the District Court Judge described as “a fond eye on it” while he was at work. The District Court Judge surmised that the appellant and his brother, Ihaka Rarere (who pleaded guilty just prior to the defended hearing) targeted the motorcycle. They stole a trailer, attaching it to a car they were using and, with the help of a third person (who was acquitted at trial), manhandled the motorcycle onto the trailer and made off with it.

[4] The appellant was driving the motor vehicle. The alarm on the motorcycle activated while it was being loaded onto the trailer, alerting a number of bystanders, one of whom took a video recording of the events which ensued. In a detailed account of the events, the Judge described the vehicle driven by the appellant attempting to exit the carpark outside Noel Leeming, through one of the busiest roundabout intersections in Hawkes Bay which services two supermarket premises nearby. The driveway from which the appellant wished to exit was obstructed by a queue of traffic waiting to enter the roundabout, with other traffic entering the

carpark. The appellant overtook the waiting cars, mounting the dividing median in the course of doing so, and collided with one of the cars in the queue waiting to enter the roundabout. The impact derailed the trailer causing the motorcycle to fly through the…

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: [2012] NZHC 779
Decision Date: 26 April 2012

CaseChat Overview and Summary

The High Court of New Zealand considered an appeal by Judas James Rarere against his sentences for burglary, unlawful taking of a motorcycle, and dangerous driving. Rarere was sentenced to two-and-a-half years’ imprisonment on each of the first two charges and a cumulative sentence of three months’ imprisonment on the dangerous driving charge, resulting in a total effective sentence of two years nine months’ imprisonment. Rarere argued that the sentences were manifestly excessive and that the starting point for the unlawful taking was too high. He also contended that a discount should have been allowed for his youth.

The court examined the nature of the offending, which involved breaking into commercial premises, stealing a trailer, brazenly taking an expensive motorcycle, and engaging in dangerous driving to avoid arrest. The court noted that the offending caused significant financial loss and had a high risk of injury to the participants and bystanders. The court also considered Rarere’s youth, previous convictions, and the need for accountability, deterrence, and the least restrictive outcome. The court held that the starting point for the unlawful taking was appropriate but that a discount should have been allowed for Rarere’s youth. The court reduced the sentences to concurrent sentences of imprisonment for two years on each of the burglary and unlawful taking charges, bringing the total effective sentence to one of two years three months’ imprisonment.

The court granted leave to appeal out of time and allowed the appeal in part. The other orders of the Court were confirmed.

Orders