Ratnam v The Queen

[2020] NZHC 1505

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2020-404-000161

[2020] NZHC 1505

BETWEEN

NAVINIEL RATNAM

Appellant

AND

THE QUEEN

Respondent

Hearing:	30 June 2020
Appearances:	A M Desai (on behalf of P Hamlin) for Appellant L N Wilson for Respondent
Judgment:	30 June 2020

JUDGMENT OF LANG J

[on appeal against sentence]

This judgment was delivered by me on 30 June 2020 at 3.30 pm.

Registrar/Deputy Registrar Date……………

Solicitors:

Crown Solicitor, Auckland

NAVINIEL RATNAM v R [2020] NZHC 1505 [30 June 2020]

[1]    Mr Ratnam pleaded guilty in the District Court to charges of burglary, injuring with intent to injure and failing to carry out his obligations in relation to a computer search. Mr Ratnam entered his pleas after accepting a sentence indication given by Judge Sainsbury on 31 May 2019.1 A significant delay then occurred until sentencing.

[2]    On 31 March 2020 Judge J M Jelas sentenced Mr Ratnam to an effective term of two years two months imprisonment.2

[3]    Mr Ratnam appeals against sentence on the basis that Judge Jelas erred in principle in several respects when constructing the sentence. He contends this has led to an end sentence that is manifestly excessive.

The offending

[4]    The charges of burglary and injuring with intent to injure were laid following an incident that occurred in the early hours of 21 April 2018. On that date Mr Ratnam and four associates went to an address in Glen Eden. He and two of his associates knocked on the door of the address and asked the female occupant who answered the door to ask the male victim to come to the door. The victim told the female not to let Mr Ratnam and his associates into the address. He then locked himself in a bedroom.

[5]    Mr Ratnam and his two associates gained entry to the address by pushing past the female who had answered the door. They forced the bedroom door open and attacked the victim, punching him multiple times to the head. They also demanded money. The victim was then subjected to a concerted attack by Mr Ratnam and his associates in which he was kicked and punched on numerous occasions to the face and body.

[6]    When Mr Ratnam and his associates eventually left the address they took jewellery belonging to the victim, including a ring and gold chain having a total value of around $3,000. They also took the victim’s wallet containing $310 in cash and his iPhone valued at approximately $800. In addition, they stole a cellphone and television set belonging to the female occupant who had answered the door. As they

1      R v Ratnam DC Auckland CRI-2018-004-9784, 31 May 2019.

2      R v Ratnam [2020] NZDC 5643.

left the address they smashed the driver’s door window of the victim’s vehicle and stole a bag of clothing from it.

[7]    When the police subsequently arrested Mr Ratnam on 5 September 2018 he was found to be in possession of a cellphone. He refused their request to open the cellphone and was therefore charged with failing to comply with a search obligation.

The sentence indication

[8]    Judge Sainsbury took a starting point of four years imprisonment on the lead charges of burglary and injuring with intent to injure. He did not increase this to reflect the charge relating to refusal to allow the police access to the cellphone at the time of his arrest, but applied an uplift of three months to reflect earlier convictions for dishonesty offences and burglary.

[9]    Turning to mitigating factors, the Judge allowed four months to reflect the fact that Mr Ratnam had been subject to strict EM bail conditions for a considerable period. He then indicated a discount of 20 per cent would be available to reflect guilty pleas.

The Judge concluded his indication with the following observations:3

[16]      What other matters may provide a discount for this sentence I cannot give any exact numbers for because I at the moment do not know. But I will at least say this, if significant reparation was paid, and by paid I mean there is money at sentencing, not a promise of the best endeavours at some indeterminate time in the future, that will make a significant difference. In my view payment of reparation may end up in a discount of around the 20 percent mark.

[17]      If there is something done about underlying drug issues in terms of genuine rehabilitation and particularly if something serious was there to be undertaken, that would make a significant difference. Restorative justice if it turned out to be feasible would also assist. There may be others such as cultural background, psychiatric history and the like, I just do not know.

The sentence

[10]   Judge Jelas adopted Judge Sainsbury’s starting point of four years imprisonment and the uplift of three months to reflect previous convictions. She also allowed a discount of ten months, or 20 per cent, to reflect the fact that Mr Ratnam

3      R v Ratnam, above n 1.

had paid $3,000 by way of reparation to the victim from savings he had accumulated prior to sentencing. The Judge considered, however, that issues relating to remorse and rehabilitation were encapsulated within that discount.

[11]   By the time Mr Ratnam was sentenced his counsel had obtained a report from a psychiatrist, Dr Armstrong. This described in considerable detail the difficulties to which Mr Ratnam had been subjected during his childhood and youth. The Judge summarised these as follows:4

[15]      The second factor that has been emphasised on your behalf that warrants additional credit is the content of Dr Armstrong’s report. In that report Dr Armstrong highlights some aspects of your personal history which includes the abuse that you suffered from a young age of approximately six or seven until you were around 14 years. You experienced difficulties in schooling due to behavioural issues and you were placed in the care of what was then known as Child Youth and Family Services. You were initially placed in group homes and other community settings. Your offending began and it led to you being placed in a youth justice facility Korowai Manaaki when you were 16 years old.

[16]      When you were released from Korowai Manaaki, you were placed in a boys’ home in Hamilton. It is reported that you did not do very well in the beginning, but then you began to engage in sport and you did do well at school and ended up feeling positive about the experience.

[17]      Unfortunately, however, the facility was only available to you while you were at school and under the age of 17. Once you reached the age of 17, Oranga Tamariki no longer had responsibility for you and you were required to essentially make your own way in life. You were still young and did not have significant family support nor financial support. You began to offend again. This resulted in you being back before the Court and also experiencing your first sentence of imprisonment when you were aged 18 years.

[18]      Drugs and alcohol have been a feature of your life from a young age. You first began using drugs in your mid-teens it is reported and then when you were aged 19, methamphetamine. You described the effects of methamphetamine as taking away your sense of anxiety and negative thoughts, however, you acknowledge the downside of being under the influence of methamphetamine was the poor judgments and behaviours that you engaged in.

[19]      Dr Armstrong diagnoses you as suffering from post-traumatic stress disorder and also a major depressive disorder.

[20]      You have found the prison environment difficult to cope with and, as a result, you are currently voluntarily segregating from other prisoners. This is described by you to Dr Armstrong as due to gang involvement and concerns for your safety.

4      R v Ratnam, above n 2.

[21]      Dr Armstrong expresses the opinion that in a custodial environment there are few chances for you to engage in appropriate therapies for your post- traumatic stress disorder as there are limited resources to prisoners. He also expresses the opinion that it is possible you may not receive specific treatment for some of the personal challenges that you face and in coping with the prison environment.

[12]   The Judge acknowledged that Mr Ratnam’s mental health issues would make it more difficult for him to cope with living in a prison environment. She applied a discount of three months to reflect that factor and a further credit of ten months to reflect the credit to be given for guilty pleas. This produced the end sentence of two years two months imprisonment.

Grounds of appeal

[13]   On Mr Ratnam’s behalf Mr Desai contends Judge Jelas erred in two interrelated respects. First, he submits the Judge departed materially from the sentence indication given by Judge Sainsbury. Secondly, he contends the Judge failed to give Mr Ratnam adequate discount to reflect the factors identified in Dr Armstrong’s report.

Did the Judge depart from the sentence indication?

[14]   Mr Desai relies in this context on the reference by Judge Sainsbury to the possibility that other matters such as Mr Ratnam’s cultural background and psychiatric history might result in further discounts being available on sentencing. He submits that Judge Jelas departed materially from the sentence indication when she made the following observation:5

[27]  The issue becomes the level of credit for all of these factors.  I  consider the level of credit that Judge Sainsbury indicated of 20 percent for reparation to have been generous and in my view the reparation amount he indicated encompassed remorse and your rehabilitation prospects. To be in the position to pay the amount that you have demonstrates your remorse and demonstrates the significance steps that you have made towards rehabilitation. I do not intend to impose a discrete credit for those factors. I consider the reparation amount, remorse and rehabilitation prospects can all be reflected in the 20 percent discount that Judge Sainsbury has indicated.

Mr Desai submits there is nothing in Judge Sainsbury’s sentence indication to support the Judge’s interpretation of it.

5      R v Ratnam, above n 2.

[15]   I accept this submission as far as it goes, but the extent to which further credit could be given for remorse and rehabilitative efforts was very much a matter for the Judge who sentenced Mr Ratnam. Those factors did not form part of the sentence indication because Judge Sainsbury did not make any commitment to giving further credit for these factors. I am therefore satisfied Judge Jelas did not depart from the sentence indication in the manner submitted by Mr Desai.

Did the Judge give Mr Ratnam insufficient credit for the factors identified in  Dr Armstrong’s report?

[16]   The Judge gave discrete recognition to the matters identified in Dr Armstrong’s report by allowing a discount of three months to reflect difficulties he will face whilst serving a sentence of imprisonment. Mr Desai contends she should have given a greater discount to reflect the deprived nature of Mr Ratnam’s upbringing and the very real difficulties he has suffered from an early age. He says the Judge should have reduced the sentence by a further  six  months  to  reflect  the  issues  identified  in Dr Amstrong’s report.

[17]   I accept that another Judge may have given Mr Ratnam a greater discount to reflect the factors identified by Dr Armstrong but this does not mean the end sentence was manifestly excessive because that did not occur. The ultimate issue is not whether individual components of a sentence were too high or too low but whether the end sentence is manifestly excessive. In the present case two factors suggest the end sentence was, if anything, very lenient.

[18]   First, I consider the starting point of four years imprisonment to be generous. The offending comprised the premeditated burglary of a residential address at night by three intruders who clearly expected, and in fact intended, the male occupant to be present at the address. It also involved all three intruders acting in concert to inflict significant violence on the victim. This included blows to both the head and body. In addition, it resulted in a considerable quantity of valuable property being stolen.

[19]    Mr Ratnam could easily have been charged with aggravated robbery rather than burglary.  Had that been the case, the starting point for his offending would have

been between seven and ten years imprisonment.6 I therefore consider Mr Ratnam is extremely fortunate Judge Sainsbury selected a starting point of just four years imprisonment. It could easily have been 12 to 18 months higher than this.

[20]   Secondly, I agree with Judge Jelas’s observation that the discount of 20 per cent to reflect the reparation paid to the victim was high. Mr Ratnam did not pay full reparation. He paid sufficient to compensate the victim for the value of the jewellery that was stolen. The sum he paid did not, however, compensate the victim for the cash and iPhone taken from the house, or the clothing stolen from the victim’s vehicle. Nor does it compensate the female occupant of the address for the cellphone and television set that were also stolen in the burglary.

[21]   Taken together, these factors persuade me the end sentence cannot be regarded as manifestly excessive.

Result

[22]The appeal against sentence is dismissed.

Lang J

6      R v Mako [2000] 2 NZLR 170 (CA) at [58].