Ratu v Police - [2022] NZHC 3450

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…

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.

Continue reading Ratu v Police

Details

AGLC: Ratu v Police [2022] NZHC 3450
Case: [2022] NZHC 3450
Decision Date: 15 December 2022

CaseChat Overview and Summary

Matthew Ross Ratu seeks to appeal his sentence of 19 months' imprisonment for unlawful possession of a restricted weapon (a taser), possession of cannabis, and driving while suspended (third or subsequent). The appeal was heard in the High Court of New Zealand at New Plymouth. The legal issues in this case revolve around whether the sentencing Judge erred in imposing a sentence of imprisonment instead of home detention. The appellant argues that the sentencing Judge, not being the trial Judge, did not have an appreciation of the facts and thus made conclusions that were not available to him. He also contends that home detention should have been granted as it was available, recommended by the probation, and was the least restrictive outcome.

The Court considered the appellant's arguments and found that the sentencing Judge did not err in his understanding of the facts. The summary of facts was consistent with the more detailed description provided by the trial Judge. The Court also found that the Judge's decision to reject home detention was influenced by the appellant's previous convictions and breaches of court sentences. However, the Court considered the appellant's personal circumstances, including his recent family developments and the recommendation of the pre-sentence report, and found that home detention was the most appropriate sentence for this case.

The Court allowed the appeal and commuted the sentence to nine months' home detention, with special conditions including attending a drug and alcohol programme at the direction of a Probation Officer. The Court took into account the one month already served by the appellant. The special conditions recommended in the pre-sentence report will also apply, with the additional condition concerning the assessment by psychologists.

Orders