Rarere v Police
[2012] NZHC 779
•26 April 2012
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: [email protected]
CR Walker, Elvidge & Partners, Napier: [email protected]
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 air; it was seriously damaged. The car which the appellant was driving managed to limp away, but shortly thereafter it broke down and the appellant and his brother were arrested.
[5] The appellant and his brother claimed to be under the influence of ‘P’ at the time of the offending. That was quite correctly dismissed by the sentencing Judge as a factor to be taken into account. 1
The view taken by the District Court
[6] The District Court Judge expressed his views of the offending in these terms:2
[8] This was a piece of bare-faced banditry in which the interests of the motorcycle owner were completely ignored. So too was the safety of the whole law abiding community going about its business at that time and place. All totally disregarded by a pair of idiots who pursued their reckless adventure regardless of what the consequences might be. The Court is entitled to have that in mind when sentencing, even for the offence of unlawfully taking the motorcycle which carries with it a seven year maximum prison term in contrast with the ten years available for burglary and taking of the trailer.
[7] The Judge determined that the way in which the offending was carried out involved dangerous driving of a serious kind which put at risk the safety of members of the public who were in the vicinity in large numbers. He concluded that a substantial term of imprisonment was justified.
[8] In respect of the burglary and the charge of unlawfully taking the motorcycle, the Judge adopted a starting point of two-and-a-half years’ imprisonment. He considered an uplift was required in respect of the totality of the offending, imposing a cumulative period of three months’ imprisonment on the dangerous driving charge, giving an effective sentence related to the seriousness of the offending of two years
nine months’ imprisonment.
1 Police v Rarere DC Napier, CRI-2011-041-2389, 9 February 2012, at [7], relying on s 9(3) of the
Sentencing Act 2002.
2 At [8].
[9] On account of the appellant’s decision to defend the charges “to the bitter end”, the Judge considered that no discount was due to the appellant.
[10] The Judge noted that the appellant was aged only 18 years, but referred to his history of previous convictions, including one for unlawfully interfering with a motor vehicle and other convictions for dishonesty.
[11] The Judge remitted the appellant’s outstanding fines and unsatisfied orders to undertake community work, and disqualified him from driving for a period of three years.
The appellant’s submissions on appeal
[12] The appellant argues on appeal that:
(a) The sentence imposed was manifestly excessive; and
(b)The starting point adopted in relation to the unlawful taking was too high.
[13] The appellant submits that the totality of the offending justified a starting point of only 18 month to two years’ imprisonment.
[14] Mr Jefferson observed that repeat offending involving the taking of motor vehicles has attracted starting points in the region of four years’ imprisonment: Bell v Police3 and Graham v Police.4 Taki v Police,5 where a three year starting point was upheld on unlawful taking charges (amongst others), was also cited, counsel emphasising that the appellant in that case had 49 previous convictions for dishonesty.
[15] Counsel for the appellant attempted to distinguish the instant case on the basis that the appellant has only five previous convictions and that the starting point
3 Bell v Police HC Napier AP58/97, 11 September 1997.
4 Graham v Police HC Auckland CRI-2006-404-458, 12 October 2006.
5 Taki v Police HC Rotorua CRI-2010-470-25, 2 July 2010.
of two-and-a half years had wrongfully placed him in the recidivist category of offender.
Submissions on behalf of the Police
[16] For the respondent, Mr Walker submitted that the sentence was not manifestly excessive having regard to the following features of the offending:
(a) It involved breaking into commercial premises, stealing a trailer, brazenly taking an expensive motorcycle, and engaging in an episode of outrageous and dangerous driving to avoid arrest.
(b)It caused significant financial loss through the damage to the trailer and the motorcycle with the appellant being in no position to make reparation.
[17] In relation to the appellant’s personal circumstances, Mr Walker noted that the offending occurred only 20 days after the appellant had been sentenced in respect of three dishonesty/property convictions. Although noting the appellant’s youth, Mr Walker submitted that he already had a poor criminal record including previously being dealt with on six relevant dishonesty or property charges and two relevant drunk driving charges. Mr Walker also placed reliance on the views expressed in Bell v Police, Graham v Police, and Taki v Police, arguing that Bell and Graham involved more serious offending with correspondingly higher starting points, with reductions for pleas of guilty while Taki involved less serious offending but a starting point higher than the one adopted by the Judge in the present case.
This Court’s approach on appeal
[18] The general approach to appeals against sentence has been to treat them as an appeal against a discretion. It has been held that sentencing should not be
approached afresh on appeal and that:6
6 D v Police [2008] BCL 954 at [39].
[T]he Supreme Court intended to exclude appeals against the exercise of discretions from the approach enunciated in [Austin Nichols & Co Inc v Stichting Lodestar].7 In those circumstances, the orthodox and time- honoured approach to appeals against discretionary decisions remains intact.
[19] On this approach, the principles enunciated in May v May8 continue to apply.
[20] As the Court observed in R v Kingi:9
In the end ... it may not make much difference how the approach is characterised; an appellate court will interfere if satisfied that the lower court has erred in its approach and produced an outcome which falls outside the range of sentences, or the type of sentence, which was properly available.
Discussion
[21] The appellant’s attempt to distinguish Taki on the basis of criminal history confuses its relevance in determining the starting point. As was said in R v Columbus, sentencing for burglary should follow the normal approach to sentencing:10
As a Full Court of this Court has emphasised, the starting point identifies the culpability inherent in the offending by reference to its circumstances: R v Taueki [2005] 3 NZLR 372 at [42] – [44] (CA). The same principle applies in burglary sentencing, where “the intrinsic nature and gravity of the offence charged” is the primary consideration: R v Power [1973] 2 NZLR 617 at 618 (CA). The dual purposes of transparency and of providing a basis for assessing consistency between cases are served by this approach.
[22] Accordingly, the relevance of previous convictions will generally (although not always) be confined to consideration at the second stage of sentencing – consideration of factors personal to the offender. The comparison of the respective appellants’ criminal records is of limited assistance, therefore, when attempting to distinguish Taki from the current appeal.
[23] Guidance on burglary sentencing has also been provided by a full Bench of this Court in Senior v Police11 where the Court observed three categories of burglar:
7 Austin Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103; [2008] 2 NZLR 141.
8 May v May [1982] 1 NZFLR 165
9 R v Kingi HC Auckland CRI-2011-404-255, 17 October 2011.
10 R v Columbus [2008] NZCA 192, at [13].
11 Senior v Police (2000) 18 CRNZ 340
(a) the first time burglar;
(b) the recidivist burglar; and
(c) the spree burglar.
[24] Although the guidance on sentencing levels is very general, Senior does suggest that a starting point of three years’ imprisonment, before uplift for prior offending, is high for an offender falling between categories one and two, which is where the appellant sits. Senior suggests that a starting point of four years’ imprisonment is high for a recidivist burglar, and that takes into account prior offending.
[25] Although dated, Bell v Police provides a good point of comparison with the current case. There, Gendall J upheld an appeal against sentence on charges of unlawful taking of motor vehicle, theft and reckless driving while disqualified. He replaced the end sentence of four years’ imprisonment with a starting point of four years less a 25 per cent discount to reflect a guilty plea and the age of the offender. The 18-year old offender in that case had a history of 40 dishonesty convictions.
[26] The approach in Bell was followed by Randerson J in Graham. In that case, there had been three unlawful conversions and a burglary together with a dangerous driving charge. A starting point of four years was presumed on appeal by Randerson J and, allowing a 25 per cent discount for youth and guilty plea, the three-year end sentence was upheld.
[27] In Taki, Joseph Williams J held that the totality of the offending (which involved unlawful taking of motor vehicle, theft and being in an enclosed yard) had similar elements to Bell and Graham, both of which involved a combination of car conversion and theft. Nonetheless, the overall offending was less serious than that in Bell and Graham. He declined to interfere with the sentence imposed, holding that the difference in culpability was reflected in the starting point of three years (compared with four years in those cases).
[28] I do not think, given the approach taken in Taki, Bell and Graham, that there can be any complaint with the starting point adopted in the current case. The comparatively lower seriousness of the offending in this case is reflected in a lower starting point. In coming to that view, I take into account the distress and financial impact upon the victim for whom the motorcycle was a treasured possession.
[29] Further, it cannot be said that the burglary starting point was imposed cumulatively. The burglary charge on its own would have justified a starting point of more than six months and accordingly it is evident that the Judge decided to adopt the unlawful taking charge as the lead offence and uplift the starting point by six months to reflect the additional charges. Such a course was open to him, given that the burglary was a pre-cursor to the main objective of stealing a valuable motorcycle.
[30] In the end, the real issue is whether the total end sentence was within the range properly available to the Court in all of the circumstances.
Should the Judge have allowed a discount for the youth of the appellant?
[31] The Judge referred to the fact that the appellant is aged only 18, but he did not consider any discount should be allowed on that basis. Although the point was not taken by Mr Jefferson in his written submissions, I issued a Minute on the day before the hearing inviting both counsel to consider and prepare oral submissions on the implications, if any, of the Court of Appeal’s recent judgment in Churchward v
R.12 In that case the Court said:
[77] Youth has been held to be relevant to sentencing in the following ways: (a) There are age-related neurological differences between
young people and adults, including that young people may be more vulnerable or susceptible to negative influences and outside pressures (including peer pressure) and may be more impulsive than adults.
(b) The effect of imprisonment on young people, including the fact that long sentences may be crushing on young people.
12 Churchward v R [2011] NZCA 531, at [77].
(c) Young people have greater capacity for rehabilitation, particularly given that the character of a juvenile is not as well formed as that of an adult.
[32] The Court cited a passage from Pouwhare v R,13 where the Court had made the following observations:
[96] As these decisions illustrate, the fact than an offender is a young person can sometimes be given radical effect on sentence, unconstrained by any normative percentage, even where offending is serious. In other cases that is not possible. The young age of the offender cannot be accorded presumptive, let alone paramount, weight. The objective seriousness of the offending, the young person's part in it, anything aggravating and otherwise mitigating must also be weighed.
[33] Mr Jefferson referred me to the sentencing Judge’s description of the offending as “bare-faced banditry”,14 and said it could only be explained by youthful bravado and risk-taking. He submitted an allowance should be made on that account.
[34] Mr Walker submitted that a discount for youth would not be appropriate in a case such as this where the appellant had shown himself to be immersed in a criminal environment through his close association with the Black Power gang. He told me from the Bar about a recent confrontation, in October 2011, in which the appellant had been shot, but said that even that experience did not appear to have had the salutary effect which might have been expected. Mr Walker submitted that the appellant’s history of offending showed a level of contempt for the courts and the community which justified giving less weight to his youth than might otherwise be appropriate.
Discussion
[35] I acknowledge that the youth of the offenders in both Bell and Graham was taken into account by the Courts in sentencing for offending which was similar to the offending in this case, but the Judges in those cases did not have the benefit of the recently-developed approach to the youth factor discussed in Pouwhare and
Churchward, nor to the science which underpins it.
13 Pouwhare v R [2010] NZCA 268, at [96].
14 At [8].
[36] In May 2011, the Prime Minister released an important Report by his Chief Science Adviser, Sir Peter Gluckman, and others which was the first step in the provision of advice on how New Zealand might improve the outcomes for young people in their transition from childhood to adulthood.15 The Report explains that recent findings of scientific research indicates that maturation – among boys especially – is not complete until well into the third decade of life, and that the last
functions to mature are those of impulse control and judgment.
[37] The views of the Court of Appeal in Pouwhare and Churchward require the courts to take a more nuanced approach to youth offending than was previously the case. To the extent that the District Court Judge failed to give fuller consideration to the implications of the appellant’s age in the context of impulsive and reckless offending, he erred in a respect which entitles this Court on appeal to consider whether the error led him to impose a sentence which was manifestly excessive in the circumstances.
[38] Judge Adeane did not expressly refer to ss 7 and 8 of the Sentencing Act in his justification for imposing a sentence of two years nine months’ imprisonment on an 18-year old offender, but it seems clear that he placed greatest emphasis upon making the appellant accountable for what was serious offending, which could have had serious consequences for innocent bystanders. It may also be assumed that the Judge placed weight on the need for deterrence. He did not refer to the requirement in s 8(g) of the Act to impose the least restrictive outcome that is appropriate in the circumstances.
[39] I am satisfied that, while the factors relied upon justified a two years nine months’ starting point on the basis of the offending, some discount ought to have been made on account of the appellant’s youth. The brazen nature of the offending, which carried not only a high risk of injury to the participants and bystanders but also a high risk of apprehension, is referable, to a degree which ought to have been recognised, to the impulsive behaviour and risk-taking of adolescents. In my view, a
discount of six months’ imprisonment should have been allowed to the appellant on
15 Sir Peter Gluckman Improving the Transition: Reducing Social and Psychological Morbidity
During Adolescence (Office of the Prime Minister’s Science Advisory Committee, May 2011).
that account. The result remains a substantial punishment, but one which is the least that should be imposed in the circumstances.
Result
[40] Leave to appeal out of time is granted.
[41] The appeal is allowed in part and the sentences of two years six months’ imprisonment imposed by the District Court on the burglary and unlawful taking charges are reduced to concurrent sentences of imprisonment for two years on each. The other orders of the Court are confirmed, with the result that the cumulative sentence of three months’ imprisonment on the dangerous driving charge brings the total effective sentence to one of two years three months’ imprisonment.
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Toogood J
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