Rau v Police HC Auckland CRI 2010-419-76

[2010] NZHC 2148

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2010-419-76

BETWEEN  JOSEPH GEORGE JUNIOR RAU Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         24 November 2010

Counsel:         R Barnsdale for the appellant

S N Cameron for the respondent

Judgment:      24 November 2010

(ORAL) JUDGMENT OF POTTER J

Solicitors:           Crown Solicitor, P O Box 19-173, Hamilton 3244

Copy to:            R Barnsdale, P O Box 19-303, Hamilton 3244

RAU V NEW ZEALAND POLICE HC HAM CRI-2010-419-76 24 November 2010

[1]      This matter comes before the Court as a second appeal against sentence in somewhat unusual circumstances.

[2]      The appellant George Junior Rau was sentenced on 20 February 2009 by Judge Connell[1]  to three and a half years imprisonment, having pleaded guilty to a charge of robbery.  He appealed against that sentence and the appeal was dismissed by Ellis J.[2]

[1] The Crown v Rau DC Hamilton CRI-2008-019-006398, 20 February 2009.

[2] Rau v New Zealand Police HC Hamilton CRI-2009-019-006398, 4 May 2010.

[3]      Mr Rau filed a second appeal on 9 September 2010.  The basis for the appeal is that he provided co-operation to the Police which led to the arrest and conviction of one of his co-offenders in the aggravated robbery, but that factor was not taken into account on sentencing.   Mr Barnsdale, counsel for Mr Rau, explained that although this matter was raised before Ellis J on the appeal it was not able to be advanced   because   it   appears   that   full   information   was   not   then   available. Accordingly, it was necessary for a further appeal to be filed.  Application is made to extend the time for appealing.  That application is not opposed by the Crown, as Ms Cameron confirmed today.

[4]      The assistance provided by Mr Rau to the Police is advanced under two headings:

a)       He gave evidence at depositions which implicated a co-offender, Mr Te Kuka in the aggravated robbery in respect of which Mr Rau was charged and convicted.  That led to Mr Te Kuka entering a guilty plea. Ms Cameron explained that Mr Rau’s evidence was crucial in the apprehension and conviction of Mr Te Kuka as there was no other evidence available.  At the time of sentencing Mr Rau’s co-operation with the authorities in this respect was not known.  The depositions were held over until Mr Rau was sentenced, as is required.

b)        Mr Rau provided further co-operation at a disputed facts hearing on 5

November 2009 before Judge Harland in the Hamilton District Court.[3]

Mr Te Kuka claimed that he was pressurised into becoming a party to the aggravated robbery.  Mr Rau gave evidence.  The Judge accepted that Mr Te Kuka had been the subject of pressure by Mr Rau and two other co-offenders who were not identified.  That finding was taken into account in sentencing Mr Te Kuka.

[3] The Crown v Te Kuka DC Hamilton CRI-2008-019-008118, 5 November 2009.

[5]      However,  Judge  Harland  said  she  had  significant  difficulties  with  the credibility of Mr Rau and, importantly in relation to the matter now before the Court, Mr Rau did not, and has never, identified the other two co-offenders who were instrumental with him in the planning of the aggravated robbery.  Apparently Mr Te Kuka was a late addition to the plans of Mr Rau and the other two co-offenders, who I understand, are cousins of Mr Rau.

[6]      It seems clear therefore that while Mr Rau provided valuable assistance to the Police that led to the conviction of Mr Te Kuka, his assistance was selective and to an extent self-serving.  He elected not to be forthright and honest with the Police in relation to the other two co-offenders, the identity of whom and the nature of their participation in the aggravated robbery, were well known to him.

[7]      Mr Barnsdale submits that because of Mr Rau’s co-operation with the Police, which has previously not been taken into account in sentencing, a further discount to the existing sentence should be made.     He said that not only is this a matter of justice for Mr Rau but there is a public interest to be served so that those who would co-operate by providing valuable information to the Police, are encouraged to come forward.  Mr Barnsdale accepted that the extent of any discount will depend on the degree of assistance provided.

[8]      The Crown accepts that a further discount should be allowed but in relation to the level of assistance provided by Mr Rau, notes that his co-operation was to an extent self-serving and led to the conviction of only one of his co-offenders.   Ms Cameron submitted that Mr Rau was obviously prepared to “dob in” the somewhat

naive Mr Te Kuka but not to provide information to the Police about the two co- offenders who with him had been instrumental in planning the aggravated robbery. She acknowledged, however, that Mr Rau’s co-operation was essential in the apprehension and conviction of Mr Te Kuka.   She submitted that a small further allowance should be made in the range of three months.

[9]      The sentencing Judge in structuring his sentence[4] took a starting point of four and a half years and applied an uplift for personal factors relating to Mr Rau of six months.   From the revised starting point of five years he allowed a discount of eighteen months for the guilty plea entered early on, though not at the first opportunity (it was entered approximately four months after Mr Rau was charged). The end sentence was therefore three and a half years.  The discount allowed was thirty per cent.   That discount was appropriate, though not ungenerous, in the circumstances.

[4] At [12].

[10]     I have referred to a number of authorities in relation to discounts allowed by the Court for co-operation with the Police.   In R v Hadfield[5]the Court of Appeal recognised that a discount of up to sixty per cent could be appropriate to reflect an early guilty plea and co-operation with the Police.  Cases such as R v Simpson[6] and R v Grace[7]  recognise that the extent of any discount to be given for this kind of assistance depends primarily on value, namely the value of the information provided by the accused person.

[5] R v Hadfield CA337/06, 14 December 2006.

[6] R v Simpson [2008] NZCA 467.

[7] R v Grace [2008] NZCA 243.

[11]     Other relevant factors, which are not present in this case, include the degree of personal risk involved and whether the offender has suffered any adverse consequences as a result of the co-operation given to the Police.  Also whether the offender is motivated by genuine remorse will be a relevant factor.

[12]     Of those factors mentioned, the only one relevant here is the extent and value of the co-operation provided to the Police by Mr Rau.   On my assessment it was qualified assistance.  While the information he provided to the Police had significant

and essential value in relation to the conviction of Mr Te Kuka, Mr Rau was not honest with the Police and elected to withhold information that could have led to the apprehension of those who, with him, were at the heart of this criminal offending.

[13]     While I accept that a further allowance is appropriate, it must be modest.  A further allowance of three months from the existing sentence is in my view appropriate.    (The  end  discount  is  equivalent  to  thirty  five  per  cent  on  my calculation).

[14]     Accordingly the result is:

a)        The application for an extension of time to appeal is allowed.

b)        The sentence of three and a half years imprisonment is quashed.

c)        It  is  substituted  with  a  sentence  of  three  years  three  months imprisonment.