Ratu v Police
[2022] NZHC 3450
•15 December 2022
IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY
I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE
CRI-2022-443-000059
[2022] NZHC 3450
MATTHEW ROSS RATU v
NEW ZEALAND POLICE
Hearing: 14 December 2022 Appearances:
J C Hannam for Mr Ratu
R L Hicklin for New Zealand Police
Judgment:
15 December 2022
JUDGMENT OF COOKE J
(Sentence appeal)
[1] Matthew Ross Ratu, seeks to appeal his sentence of 19 months’ imprisonment on charges of unlawful possession of restricted weapon (a taser),1 possession of cannabis,2 and driving while suspended (third or subsequent).3
Background
[2] I take the background of the offending from the sentencing notes of Judge Grieg,4 as well as a minute of the trial Judge, Judge Kellar.5
1 Arms Act 1983, s 45(1); maximum penalty of four years’ imprisonment or a $5,000 fine or both.
2 Misuse of Drugs Act 1975, s 7(1)(a) and (2); maximum penalty of three months’ imprisonment or
$500 fine or both.
3 Land Transport Act 1998, s 32(1)(c) and (4); maximum penalty of two years’ imprisonment or
$6,000 fine, and disqualification from holding or obtaining a driver licence for one year.
4 New Zealand Police v Matthew Ross Ratu [2022] NZDC 22369.
5 New Zealand Police v Matthew Ross Ratu CRI-2021-043-001218 [Minute of Judge Kellar].
RATU v NEW ZEALAND POLICE [2022] NZHC 3450 [15 December 2022]
[3] On 28 July the appellant was suspended from driving for excess demerit points until 27 October 2021. On 21 August he was found driving a vehicle on Devon Road in New Plymouth at around 2:09 pm. He was stopped for speeding. In explanation the appellant said he was taking his partner to the hospital she was having stomach pains, but the police noted he was heading in the wrong direction.
[4] Later that day at 5.55 pm the appellant was stopped in a car in Stratford. The officer who stopped him noticed a taser lying next to his feet in the front footwell. The officer saw the appellant trying to hide the taser. The car was subsequently searched and amongst other items, 35.65 grams of cannabis was found on him.
[5] At his judge-alone trial the appellant entered a guilty plea and was convicted for the charge relating to the possession of cannabis.6 He also pleaded guilty to one charge of driving while his driver’s licence was suspended.7 After the prosecution had called evidence the appellant also then entered a guilty plea on the charge of possessing the taser.8 The other charge was dismissed. In his minute Judge Kellar recorded that there was compelling evidence that the appellant was in possession of a taser. The Judge also recorded the appellant’s counsel accepted that “the evidence established Mr Ratu was in possession of the object, knew what it was, had control over it, intended to exercise control over it”.9 At the same time the Judge found that there was no evidence to establish the other charge of possession of knuckle dusters.
[6] Judge Kellar remanded the appellant for sentence.10 He noted that the appellant had been convicted and sentenced for possession of a taser on 17 November 2020. In those circumstances he noted the starting point “is undoubtedly a sentence of imprisonment” but that “the end sentence will not necessarily be a sentence of imprisonment, but it might be close”.11 The appellant was remitted to bail until sentencing.
6 Minute of Judge Kellar, above n 5, at [2].
7 At [1].
8 At [7].
9 At [7].
10 At [8].
11 At [11].
[7] On 14 November 2022 the appellant was sentenced by Judge Grieg. The Judge recorded the appellant’s numerous previous convictions and particularly the previous conviction for carrying a taser. He also had regard to the contents of the pre-sentence report indicating that the appellant was assessed as being at high risk or re-offending.12 He did not accept Mr Hannam’s explanation that the taser was someone else’s and that the appellant had no sinister intent in possessing it.13 The Judge then sentenced the appellant to 12 months’ imprisonment for possessing the taser, and six months for driving while suspended, and uplifted the sentence by three months because of his previous convictions. He then deducted two months’ for the late guilty pleas, arriving at a sentence of 19 months’ imprisonment.
[8] This meant a sentence of home detention had to be considered. The Judge said:14
I have got to consider whether to make that a sentence of home detention, and I do not consider that suitable. I have to hold you accountable, denounce your conduct, deter you, and protect the community. Particularly, you have got a very recent previous conviction for possessing a taser. You have so many breaches of previous court sentences, including a recent breach of home detention. I have no confidence that you would comply and I take note of the police concerns that they have got about the address.
[9] In addition the Judge remitted the appellant’s fines of $8,121 and ordered the weapon and cannabis to be destroyed.
Approach on appeal
[10] An appeal against sentence arises under s 244 of the Criminal Procedure Act 2011. Under s 250(2) the appeal must be allowed if the Court is satisfied that for any reason there is an error in the sentence, and that a different sentence ought to be imposed. On appeal the focus is on the correctness of the end result, and not the process by which it was reached.15
[11]The appellant raises two main grounds of appeal:
12 New Zealand Police v Matthew Ross Ratu, above n 4, at [8].
13 At [11].
14 At [21].
15 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [32]–[35].
(a)That the sentencing Judge erred as he was not the trial Judge and did not have an appreciation of the facts, and by extension that he made conclusions on the facts which were not available to him;
(b)That the sentencing Judge erred by not granting home detention, as it was available, recommended by probation, and was the least restrictive outcome.
The first ground
[12] The appellant argues that it was not apparent that the sentencing Judge had read the minute of Judge Kellar and so was unable to get an appreciation of the surrounding circumstances. The appellant says had Judge Kellar been the Judge sentencing the appellant it would have been open for the defence to submit that the defendant was only briefly in contact with someone else’s taser given it was not his car and others were present. The difference in tone of the facts should have had a positive impact upon the sentencing Judge’s assessment of culpability, and therefore sentence. The appellant says that the “benign explanation” that the appellant had no sinister intent in possessing the taser was available to the Judge to accept given he was not brandishing or threatening with the weapon.
[13] In response the Crown says that the particular facts involved in the appellant’s possession of the taser were not decisive in the Judge’s decision to impose a sentence of imprisonment. What was decisive was the appellant’s relevant previous conviction for possession of a taser and his numerous breaches of previous court sentences.
[14] There should be no misunderstanding about the facts upon which a sentence is imposed following a guilty plea. Under s 24 of the Sentencing Act the Court must accept any fact disclosed by the evidence at trial when there has been such a trial, but otherwise on the basis of “any facts agreed on by the prosecutor and the offender” and any facts that “are essential to a plea of guilty”. Where there is an agreed summary of facts sentencing proceeds on the basis of that summary, and counsel cannot invite the Court to go beyond it.16
16 Pokai v R [2014] NZCA 356 at [30].
[15] The summary of facts here was very brief. The position was more fully described by Judge Kellar then by Judge Greig, but in a manner consistent with the summary. In terms of the essential facts I do not accept there was any error made by the Court. Mr Hannam argued that Judge Kellar’s minute put the offending in a slightly different context, but I do not read it that way, and do not consider there is any error in the sentencing process in relation to the facts.
The second ground
[16] The appellant argues that home detention should have been granted as it was available and recommended in the pre-sentence report and was the least restrictive outcome. The appellant says the Judge’s reasoning for rejecting a sentence of home detention was due to the previous taser conviction. The appellant says that the previous conviction was at a low level of seriousness and that the increased culpability, though obvious, was overstated by the Judge. This is more so given that Judge Kellar was aware of the previous conviction and granted bail pending sentence. The appellant also submits the Judge failed to have regard to s 16 of the Sentencing Act 2002 and the desirability of keeping offenders in the community.
[17] The Crown argues that a sentence less than imprisonment would not achieve the purposes of the Sentencing Act, particularly because the appellant’s recent previous conviction history shows community-based sentences have failed to deter the appellant or protect the community from similar offending. The appellant’s failure to engage with a departmental psychologist means such sentences have failed to assist his rehabilitation.
[18] Section 15A materially provides that a sentence of home detention may be imposed by the Court if the Court would otherwise sentence the offender to a short- term sentence of imprisonment.17 There is no presumption that either imprisonment or home detention is to be preferred, and the Court must exercise its discretion to decide which is more appropriate.18
17 Sentencing Act 2002, s 15A.
18 R v Vhavha [2009] NZCA 588 at [29].
[19] In this case the Judge rejected a sentence of home detention because he considered the appellant had to be held accountable, denounce his conduct, deter him and protect the community. There were factors that the Judge did not address when reaching that decision, however. The first is that the pre-sentence report recommended the sentence of home detention. It did so notwithstanding that it assessed his risk of re-offending as high, and his ability to comply as low. The recommendation was made given the relatively low level nature of the offending. Mr Ratu is also in a relationship with his partner and they have recently had a new child. She lives at an address that is separate from the proposed home detention address with Mr Ratu’s two young children, and her two children from a prior relationship.
[20] As Judge Kellar had indicated, this was a borderline case. In those circumstances the most appropriate sentence is that which is most likely to reduce the risk of re-offending. The Judge plainly considered that a stern response was required. That focusses on the sentencing principles of denunciation and deterrence. The alternative view is that the sentence most likely to reduce the chances of re-offending is one that attempted to facilitate Mr Ratu focusing on his current whānau relationships. This emphasises the sentencing principles of rehabilitation and reintegration. That was the approach that the pre-sentence report appears to have favoured.
[21] Mr Ratu and his partner now have two very young children. One is aged 16 months, and the other 36 weeks. Since having children the only offending that Mr Ratu engaged in prior to this offending involved a breach of supervision, a charge on which he was convicted and discharged. Since that time his second child has been born. His partner has recently been in hospital. In addition Mr Ratu’s mother has been unwell. The proposed home detention address is the address of Mr Ratu’s mother. Mr Ratu’s partner and children would be at another address.
[22] These circumstances explain why the pre-sentence report recommended the sentence of home detention notwithstanding the risks associated with Mr Ratu’s prior history. They suggest that there is a prospect that a home detention sentence would be the most constructive, and will most likely lead to minimising the risk of re-offending. Home detention is not an easy sentence, and still significantly addresses the other sentencing principles referred to by the Judge.
[23] In response to these factors Ms Hicklin referred to s 17 of the Sentencing Act which indicates that the Court retains a discretion to impose a sentence of imprisonment if the Court is satisfied on reasonable grounds the offender is unlikely to comply with any other sentence that would otherwise be appropriate. There are plainly risks that Mr Ratu may not comply. But those risks can be overstated. For example Mr Ratu did previously breach a sentence of home detention in 2018 at the same address as the Judge noted. But that was a sentence of 11 months’ home detention, and the breach only occurred in the last month. Since that time he has developed the relationship, and now has two very young children and an unwell mother. These are significant changes in personal circumstances. The previous offence involving possession of a taser which the Judge emphasised occurred in July 2020, which is also before the children were born. It was also not regarded as serious by the Court, with a sentence of six months’ supervision imposed.
[24] I consider the District Court was in error in imposing a sentence of imprisonment, and rejecting home detention for this kind of offending, without addressing the implications of the personal circumstances described in the pre- sentence report that I have referred to above, and the recommendation in the report. Having addressed those circumstances, whilst acknowledging it is a borderline case, I consider the most appropriate sentence is that of home detention.
[25] For those reasons I allow the appeal and commute the sentence imposed by the District Court Judge to one of nine months’ home detention (which takes into account the one months’ imprisonment now served). It is to be imposed on the basis set out in the pre-sentence report, including the recommended special conditions for home detention contained in that report, but with the additional special condition that Mr Ratu attend a drug and alcohol programme at the direction of a Probation Officer. That is imposed on Ms Hicklin’s suggestion given that cannabis dependency seems to have played a role in the offending. I also note the importance of the special condition concerning the assessment by psychologists. Mr Ratu will need to understand that these conditions are an important part of his sentence.
Cooke J
Solicitors:
Hannam & Corporation Lawyers Ltd, New Plymouth for Mr Ratu Crown Solicitor, New Plymouth for New Zealand Police
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