Rattigan v Police - [2013] NZHC 1113

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI 2013-485-21 [2013] NZHC 1113

DANIEL JAMES RATTIGAN
Appellant
v

NEW ZEALAND POLICE
Respondent

Hearing: 14 May 2013

Counsel: B Crowley for the Appellant
S McClean for the Respondent

Judgment: 15 May 2013

JUDGMENT OF MALLON J

Introduction

[1] Mr Rattigan is homeless. He is 23 years old. He has many convictions and Youth Court appearances. The matters before me relate to his latest set of offending. He appeals against a sentence of imprisonment of two years one month imposed by the District Court for this offending. The Crown agrees that this sentence is manifestly excessive. The only issue is what the proper sentence should have been. The defence says that the overall end sentence should have been 12 months’ imprisonment, whereas the Crown says it should have been 18 months’
imprisonment.

RATTIGAN v NEW ZEALAND POLICE HC WN CRI 2013-485-21 [15 May 2013]

[2] I am allowing the appeal. The effective overall sentence will be a term of

14 months’ imprisonment. The sentences that make up that overall term are those set out at the end of this judgment.

The offending

[3] The sentences that are the subject of this appeal fall into three groups of offending as follows:

(a) Breach of release conditions (x 3): On 8 October 2012 Mr Rattigan was released from prison on conditions following his convictions for threatening to kill, presenting a firearm, burglary, theft, possessing instruments for conversion and breach of release conditions. The three charges of breach of release conditions arose from Mr Rattigan failing to report to probation as directed (19 October 2012), failing to attend alcohol and drug treatment as per his special condition (30 October 2012) and failing to notify probation of a change in his address (24 December 2012).

(b)Unlawfully interfering with a vehicle: This charge arose in the following circumstances. A car was stolen on 3 November 2013. Entry to the car was initially gained by the smashing of a window. The car was parked in a car park. Mr Rattigan entered the car, took the key from the ignition and slept in it overnight. He was found by the police the next morning sleeping in the back seat.

(c) Incident on 16 February 2013: The other charges arose from an incident on 16 February 2013. The police were called to a disturbance at another address. The police spoke to Mr Rattigan as part of their inquiries. They realised that there was a warrant out for his arrest and advised him that he was under arrest. Mr Rattigan swore at a police officer and struggled with the police as they attempted to restrain him. He also spat in the face of a female officer (but missed). He was also searched and several items were located on him:

(i)a large knife about 20 cm long and an air pistol were located down Mr Rattigan’s trousers;

(ii) a further air pistol was located in his backpack;

(iii)a PlayStation console and…

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: [2013] NZHC 1113
Decision Date: 15 May 2013

CaseChat Overview and Summary

The case of Rattigan v Police involves Daniel James Rattigan, a 23-year-old homeless man with a history of convictions and Youth Court appearances, appealing against a sentence of imprisonment of two years and one month imposed by the District Court for his latest set of offending. The Crown agrees that the sentence is manifestly excessive, and the only issue before the High Court was to determine the appropriate sentence. The defence argued for a sentence of 12 months’ imprisonment, while the Crown proposed a sentence of 18 months’ imprisonment.

The High Court found that the District Court judge's approach of cumulative sentences for the three groups of charges was appropriate. The Court agreed with the defence that the starting point for the first group of offending should have been three months' imprisonment, rather than six months as indicated by the District Court judge. For the second group of charges relating to interference with a motor vehicle, the Court found that a sentence of no more than one month’s imprisonment was appropriate. The Court agreed with the Crown that the appropriate starting point for the third group of charges was 15 months’ imprisonment. Considering the appropriate uplift for previous convictions, adjustment for totality, and discount for early guilty pleas, the Court found that the overall end sentence should have been 14 months’ imprisonment.

The Court allowed the appeal and quashed the original sentence, replacing it with a sentence of 14 months’ imprisonment, allocated as follows: 14 months for possession of an offensive weapon, 14 months each for unlawful possession of a firearm (x 2), one month for dishonestly and without claim of right getting into a motor vehicle, one month for resisting the police, one month for common assault, and three months for receiving stolen property. The Court also imposed conditions for six months after the sentence expiry date, including attending and completing an alcohol and other drug assessment, and a psychological assessment, to the satisfaction of the Probation Officer and service provider.

Orders