Rawiri v Police

[2019] NZHC 1085

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2019-409-46

[2019] NZHC 1085

BETWEEN

ERNEST SAMUEL RAWIRI

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

16 May 2019

Appearances:

J Tupaea for Appellant

K Courteney for Respondent

Judgment:

17 May 2019

JUDGMENT OF MANDER J

[1]    The appellant, Ernest Rawiri, pleaded guilty to charges of burglary and breach of community work after receiving an indicated sentence of 14 months’ imprisonment for the burglary. Judge Couch sentenced him to 15 months’ imprisonment on both charges. Mr Rawiri appeals his sentence on the basis the Judge erred in not substituting a sentence of home detention.

Facts

[2]    At about 7.30 am on 10 December 2018, Mr Rawiri and his son entered a vacant address without authority. The appellant cut the pipes of a heat pump unit at the address with bolt cutters in order to remove it. His son entered a garage at the rear of the property and took a container of builders’ putty. The pair were disturbed and left the address without taking the heat pump. They were located nearby by police.

RAWIRI v NEW ZEALAND POLICE [2019] NZHC 1085 [17 May 2019]

[3]    The charge of breaching community work arose from Mr Rawiri’s previous sentence of 70 hours’ community work. On 22 September 2018 the appellant failed to attend community work as directed. Community Corrections advised that he had not reported for community work since 15 September, despite attempts to reengage with him. Mr Rawiri still had 23 hours of community work to serve.

District Court decision

Sentence indication

[4]    Judge Couch’s sentence indication was for the charge of burglary alone. The Judge considered the aggravating features of the offending were that the address was a dwelling house (though unoccupied at the time) and that significant damage was done to the heat pump. He found it a mitigating factor that the offending appeared to be opportunistic, which might be thought generous given he had bolt cutters in his possession. Judge Couch adopted a starting point of 12 months’ imprisonment.

[5]    An uplift of six months was applied for personal aggravating features. These included the appellant being subject to a sentence at the time of the offending and his extensive criminal history. Judge Couch then allowed a four month discount for a guilty plea, arriving at an indicated end sentence of 14 months.

[6]    His Honour then raised the issue of home detention. He stated he did not rule that possibility out, but would wish to see a pre-sentence report and evidence of a suitable address where the home detention could be served before making a decision.

Sentencing judgment

[7]    At sentencing Judge Couch adopted the reasoning set out in his sentence indication decision and applied an uplift of one month for the breach of community work. The Judge then considered whether home detention would be an appropriate alternative to imprisonment. He referred to a letter the appellant had provided that contained expressions of remorse for his offending. However, the Judge considered the sentiments expressed were inconsistent with the content of the pre-sentence report.

Having regard to that feature and other aspects of the pre-sentence report, as well as the appellant’s criminal history, the Judge concluded that home detention was not appropriate.

Approach to appeal

[8]    An appeal against sentence may only be allowed by this Court if it is satisfied there has been an error in the imposition of the sentence and that a different sentence should be imposed.1 As the Court of Appeal observed in Tutakangahau v R, a court will not intervene where the sentence is within the range that can properly be justified.2 It is only appropriate for this Court to intervene and substitute its own views if the sentence being appealed is “manifestly excessive” or is unjustifiable upon the application of the relevant sentencing principles.3

Submissions

Appellant’s submissions

[9]    Mr Tupaea, for the appellant, submitted that the sentencing Judge erred in not imposing a sentence of home detention. He argued that the Judge placed too little weight on the letter of apology written by Mr Rawiri to the Court and the fact the appellant was willing to undertake restorative justice, and gave too much weight instead to the first part of the pre-sentence report.

[10]   While acknowledging that Mr Rawiri had minimised his offending to the report writer, Mr Tupaea submitted that the Judge had failed to give weight to the balance of the pre-sentence report and that Mr Rawiri’s acceptance of the sentence indication and his guilty plea should be taken as further indications of remorse.

[11]   Mr Tupaea originally submitted in his written submissions that the appellant had entered his guilty plea because the sentence indication put forward a “strong view of home detention as an end sentence”. In oral submissions Mr Tupaea responsibly

1      Criminal Procedure Act 2011, ss 250(2) and 250(3).

2      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].

3      Ripia v R [2011] NZCA 101 at [15].

resiled from that submission and acknowledged the Judge had simply left that open as an option. However, he maintained that home detention was a suitable sentence in this case.

Respondent’s submissions

[12]   Ms Courteney, for the respondent, submitted that Judge Couch did not err in sentencing Mr Rawiri. The sentence imposed was consistent with the indication provided. The Judge had clearly indicated a sentence of imprisonment was likely, but left the possibility of home detention open pending receipt of further favourable information. The information subsequently provided was found to be insufficient to satisfy him that home detention would be appropriate. The sentence imposed was therefore justified and was not manifestly excessive.

Decision

[13]   The sentence imposed followed the sentence indication that had earlier been provided, with the only change being an uplift of one month for the breach of community work in respect of which there can be no complaint.

[14]   Judge Couch in his sentence indication expressed the possibility of home detention but nothing more. He made it clear that it would depend upon the nature of further information received before sentencing. There is no presumption in the Sentencing Act for or against the substitution of home detention for a sentence of imprisonment.4 The decision requires an exercise of judgment measured against the statutory principles and purposes of sentencing which a sentencing Judge is called upon to assess when deciding whether home detention is an adequate sentence in the circumstances.

[15]   Mr Tupaea sought to explain  to  me  the  difficulty  he  had  explaining  to Mr Rawiri the ingredients of the charge of burglary and how the offence had been committed as a result of his admitted actions. However, I do not consider that explains

4      R v Vhavha [2009] NZCA 588 at [29]; Osman v R [2010] NZCA 199 at [20]; Palmer v R [2016] NZCA 541 at [19].

the account given by Mr Rawiri to the pre-sentence report writer, parts of which, as Judge Couch commented, are not credible.

[16]   Mr Tupaea submitted that Judge Couch failed to have regard to the rest of the pre-sentence report which set out Mr Rawiri’s personal and cultural circumstances and was generally positive about the way he interacted with his family and the shame he feels as a result of leading his son into this offending. Regrettably, however, Mr Rawiri has a long history of offending and is assessed as having a medium to high likelihood of further offending. He also has numerous breaches of various Court-imposed orders, although he has successfully served sentences of home detention previously.

[17]   In support of the appeal, reference was made to Mr Rawiri’s willingness to engage in restorative justice to make amends. However, the genuineness of that offer has to be assessed in the context in which it was made, which was to the pre-sentence report writer during an interview in which Mr Rawiri took minimum responsibility for his offending, having denied any criminality, and maintained that his presence on the property was quite innocent.

[18]   In deciding whether to commute a prison term to one of home detention it can be difficult in marginal cases to articulate the reasons for preferring one approach to another and the margin of appreciation extended to judges is usually significant.5 The same standard of review applies as it does for any other sentence appeal. Mr Rawiri needs to be able to show that a material error was made and satisfy the appellate Court a different sentence should have been imposed.

[19]   I do not consider the sentencing Judge in the circumstances of the present case erred in declining to substitute a sentence of home detention. Judge Couch considered Mr Rawiri’s expressed remorse and regret for his offending, set out in his letter, to be “very largely at odds” with the statements he made to the pre-sentence report writer to whom he sought to suggest that his actions were less serious. Mr Rawiri provided an account which conflicted with the summary of facts and was not believable. Having read Mr Rawiri’s account in the pre-sentence report it is apparent he sought to

5      Palmer v R, above n 4, at [19].

minimise his actions, stating that he did not think he was doing anything wrong.    A stance he took throughout the interview.

[20]   Judge Couch specifically addressed the question of home detention as a discrete issue. His reasons for declining to commute the term of imprisonment to home detention are clear and, in the circumstances, are justifiable in the exercise of his discretion. In the absence of Mr Rawiri having demonstrated an error in Judge Couch’s approach or the sentence being manifestly excessive, the appeal must be dismissed.

Result

[21]Appeal dismissed.

Solicitors:

Joseph Tupaea, Christchurch

Raymond Donnelly & Co, Christchurch