Raumati v The Queen
[2020] NZHC 703
•7 April 2020
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE
CRI-2020-419-17
[2020] NZHC 703
BETWEEN LINK RAUMATI
Appellant
AND
THE QUEEN
Respondent
Hearing: 3 April 2020 (by AVL/telephone) Counsel:
M J James for Appellant
A S Alcock for Respondent
Judgment:
7 April 2020
JUDGMENT OF BREWER J
This judgment was delivered by me on 7 April 2020 at 4:00 pm Registrar/Deputy Registrar
Solicitors:
Crown Solicitor (Hamilton) for Respondent
RAUMATI v R [2020] NZHC 703 [7 April 2020]
Introduction
[1] On 25 February 2020 Judge RLB Spear sentenced Mr Raumati to two years 11 months’ imprisonment.1 Mr Raumati now appeals that sentence contending it is manifestly excessive.
[2] My task is to decide whether the Judge made an error such that a lesser sentence should be imposed.
Background
[3] Further to a contact made on an online dating application, the complainant drove from Hamilton to Huntly to meet a young woman. At the address he was given he met the young woman and her sister. The complainant drove them to a restaurant, bought them a meal and afterwards returned to the address to drop them off. Shortly after arriving back at the address Mr Raumati and his friend, Mr Strickland (both 24 years of age), approached the vehicle. Mr Raumati got into the front passenger seat of the car and Mr Strickland got into the back passenger seat. The two women also got into the back seat. Mr Strickland was wearing a bandana covering his face so only his eyes were visible.
[4] As soon as he got into the car Mr Raumati grabbed the back of the complainant’s neck with his hands and demanded the complainant drive them around. Mr Strickland joined in the demands from the back seat and abused the complainant with a racist epithet.
[5] The complainant complied and began driving. Mr Raumati threatened him with violence unless the complainant drove to an ATM. Mr Raumati told the complainant that the complainant was making him angry and he appeared to become enraged. The complainant was fearful.
[6] The complainant duly went to an ATM. Mr Raumati walked the complainant to the ATM so that the complainant would withdraw cash. The complainant withdrew
$60 and gave it to Mr Raumati.
1 R v Raumati [2020] NZDC 3344.
[7] One of the females from the vehicle threatened the complainant with a complaint of rape and demanded money for herself. The complainant gave her another
$60.
[8] The complainant, Mr Raumati and the female concerned got back into the vehicle. The complainant asked to be let go. He was instead made to keep driving the group and he did so stopping at locations as directed so that Mr Strickland could buy cannabis and Mr Raumati could buy alcohol.
[9] The complainant told the group he needed to go to Hamilton because he had a job to go to. He drove the group to his home in Hamilton. When they arrived, Mr Raumati searched the complainant to ensure he did not have a cellphone which he might use to call the police. Mr Raumati then got into the driver’s seat of the vehicle. He told the complainant that if the complainant called the police they would kill him.
[10] Mr Raumati then drove off with the group in the complainant’s vehicle. The complainant called the police and there was then a lengthy high speed pursuit which ultimately resulted in the vehicle crashing. Mr Raumati and Mr Strickland fled from the vehicle and were located by a police dog handler hiding nearby. They were arrested.
[11] Mr Raumati faced charges of kidnapping, robbery, threatening to kill and unlawfully taking a motor vehicle. Mr Strickland was charged only with threatening to kill and unlawfully taking a motor vehicle. On the day of trial the Crown agreed to withdraw the kidnapping charge and Mr Raumati and Mr Strickland pleaded guilty to the remaining charges. The summary of facts was unchanged.
The District Court sentence
[12] Judge Spear adopted the charge of robbery as the lead charge. He set a starting point of two years’ imprisonment. He uplifted the starting point by 12 months to allow for the other two charges. There was a further uplift of six months to take account of Mr Raumati’s record of previous convictions. That was a total of three-and-a-half years’ imprisonment.
[13] The only discount given was 15 per cent for the pleas of guilty. That resulted in the end sentence of two years 11 months’ imprisonment.
[14] The Judge took a starting point for Mr Strickland of 18 months’ imprisonment for the charges of threatening to kill and unlawful taking of a motor vehicle. He commented that the 12 months uplift he applied to Mr Raumati’s sentence for the same offending was reduced to recognise the totality of the offending. Mr Strickland’s end sentence was one year five months’ imprisonment.
The appeal
[15] Ms James for Mr Raumati submits that every component of Mr Raumati’s sentence was reached in error. Specifically:
(a)the starting point was too high;
(b)the uplift for the remaining two charges was too high;
(c)the uplift for previous convictions was too high; and
(d)the discount for guilty pleas was inadequate.
[16] On the calculation of the starting point, Ms James referred me to the decision of the Court of Appeal in R v Mako and the non-exhaustive list of factors that can generally be taken into account when placing an offence in its proper relative position on the scale of seriousness.2 Ms James also referred me to a number of other cases which, she submits, illustrate that the Judge’s starting point was too high. However, the factual backgrounds in those cases are quite different to the one in this case. It is difficult to draw much assistance from other cases which have different factual backgrounds. It is better to be guided by tariff cases (if there are any) and first principles.
2 R v Mako [2000] 2 NZLR 170 at [34] – [52].
[17] Ms James’s ultimate submission was that the starting point should have been 12 months’ imprisonment, one half of that adopted by the Judge.
[18] Similarly, Ms James criticised the uplift of 12 months’ imprisonment on the remaining two charges. Her submission was that the two charges should be considered features that go only to the seriousness of the robbery offence. Ms James submitted that an uplift of six to nine months’ imprisonment for these charges would have been appropriate.
Discussion
[19] An appeal against sentence is an appeal against the end sentence. If the end sentence is manifestly excessive then that is an error which should be corrected. If the end sentence is not manifestly excessive then it does not really matter how the sentencing Judge chose to construct the sentence.
The starting point
[20] In this case, it was open to the Judge to consider the three charges as part of a single event and to adopt an overall starting point focused on the charge of robbery. Looked at in this way, the issue becomes whether the Judge’s combined starting point of three years’ imprisonment is outside the range available to him.
[21] Robbery,3 in this case, is theft accompanied by threats of violence to the complainant used to extort the $60 Mr Raumati forced the complainant to withdraw from the ATM. The maximum penalty is 10 years’ imprisonment.
[22] It is clear there was some premeditation. The Judge found, and was entitled to infer from the summary of facts, that it was not happenstance that Mr Raumati and Mr Strickland came out to the car and began the events which followed. There was immediate violence used by Mr Raumati to the complainant. Thereafter, the complainant was detained against his will and continued to be detained at the time of the robbery. The withdrawal of the kidnapping charge does not change the underlying facts.
3 Crimes Act 1961, s 234.
[23] The seriousness of the robbery is aggravated by the fact that Mr Raumati was not acting alone. Mr Strickland and at least one of the females were parties to his offending. As the Judge recognised, aggravated robbery4 (which carries a maximum penalty of 14 years’ imprisonment) can be made out where the robber acts with another person or persons. Again as the Judge recognised, sentencing can be only for the offence charged but the fact that Mr Raumati was not acting alone increases the seriousness of his offending as a robber.
[24] The seriousness of the robbery is also exacerbated by the fact that the complainant was kept in detention after the robbery. He was not released until he had driven to his home. At that point, Mr Raumati and the others knew where he lived. It was at that point the threat to kill was made and Mr Raumati drove the group away in the complainant’s vehicle.
[25] I pause to note that the Judge’s fixing of a starting point of 18 months’ imprisonment for Mr Strickland on the unlawful taking and threatening to kill charges is within range and could have applied to Mr Raumati if there had been no robbery.
[26] On a first principles basis, I cannot see that a starting point of 30 per cent of the maximum sentence for robbery can be outside the range available to the Judge when considered against the totality of the offending. The Court of Appeal in Mako, a tariff decision applying to aggravated robbery, identified the following offending as warranting a starting point of between 18 months to three years’ imprisonment:
[59] At the other end of the scale would be street robbery by demanding that the victim hand over money or property such as an item of clothing, where a knife or similar weapon is produced or where offenders acting together by bullying or menacing conduct enforce the demand though no actual violence occurs. Depending upon the circumstances the starting point would be between 18 months and 3 years. Actual physical enforcement might well require a higher starting point.
[Emphasis added]
4 Crimes Act 1961, s 235.
[27] Mako does not apply directly to Mr Raumati’s case because Mr Raumati was not charged with aggravated robbery. But where the underlying facts of the case fit within Mako’s criteria then the decision is of guidance with suitable adjustment.
[28] When taking into account the aggravating factors I have already discussed, I consider that a combined starting point of three years’ imprisonment for Mr Raumati’s sentence was within the range available to the Judge.
The uplift for previous convictions
[29] An increase in sentence for an offender’s history of relevant offending is not given as an additional penalty for the previous offending. Relevant previous offending can cause the Court to increase a starting point to emphasise the need for deterrence and to take account of public safety.5 It also goes to the character and culpability of the offender in relation to the current offending.6
[30] Mr Raumati was found guilty of two charges of aggravated robbery on 24 February 2011 (in the Youth Court)7 and convicted on a third charge of aggravated robbery on 11 November 2014. On that occasion he was sentenced to two years and three months’ imprisonment. Also on 24 February 2011 he was sentenced on a charge of unlawfully taking a motor vehicle and on 15 May 2013 with unlawfully getting into a motor vehicle.
[31] The Judge was entitled to uplift the starting point to take account of these proven offences and convictions. The uplift of six months was one-sixth of the starting point. An uplift for previous offending should be proportionate to the starting point taking into account the particular circumstances.8 Uplifts of one-quarter of the starting point are unexceptional when an offender has a number of relevant previous offences involving robbery. The uplift of six months in this case was available to the Judge.
5 R v Casey [1931] NZLR 594 (CA) at 597; Te Hau v R [2013] NZCA 431 at [18].
6 R v Casey [1931] NZLR 594 (CA) at 597; Te Hau v R [2013] NZCA 431 at [18].
7 While matters dealt with in the Youth Court do not constitute convictions for offences, they form part of the behavioural history of the offender, and so may be considered under s 9(4)(a) of the Sentencing Act 2002: Kohere v Police (1994) 11 CRNZ 442 (HC) at 444, cited in R v Rongonui [2009] NZCA 279, [2010] 1 NZLR 742, at [88].
8 Tiplady-Koroheke v R [2012] NZCA 477 at [24].
The discount for guilty pleas
[32] The Supreme Court in the well-known case of Hessell decided that a maximum discount of 25 per cent of a sentence can be awarded where pleas of guilty are entered at the first available opportunity.9 That was certainly not the case here. Nor can it be said that the Crown, at the last moment, so changed the charge picture that, in effect, the entry of the pleas of guilty could be taken to be at the first available opportunity. In this case, the summary of facts remained unchanged and all that happened was that the Crown withdrew the kidnapping charge.
[33] I consider the Judge was very generous in allowing a 15 per cent discount in these circumstances.
Decision
[34] Mr Raumati was sentenced to two years 11 months’ imprisonment. In the light of the above discussion, I find that that sentence was within the range available to the Judge. It is not a manifestly excessive sentence.
[35]The appeal is dismissed.
Brewer J
9 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [75].
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