Rickus v The Queen
[2017] NZHC 2757
•10 November 2017
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE
CRI-2017-419-067 [2017] NZHC 2757
BETWEEN EDDALYN KAHU RICKUS
Appellant
AND
REGINA Respondent
Hearing: 10 November 2017 Appearances:
R B Quin for Appellant
M L Dillon for RespondentJudgment:
10 November 2017
ORAL JUDGMENT OF PALMER J
Counsel/Solicitors:
RICKUS v R [2017] NZHC 2757 [10 November 2017]
R B Quin, Barrister, Hamilton
Crown Solicitor, Hamilton
Facts
[1] Mr Rickus, aged 47, was convicted of three violent offences against his then
25-year-old partner: injuring with intent to injure, assault with intent with to injure, and male assaults female, with maximum penalties of five, three and two years’ imprisonment respectively.
[2] The offences were committed on three different occasions in March 2016 and
March 2017:
(a) The first involved Mr Rickus punching his partner in the face, knocking out her teeth.
(b)The second involved him grabbing her by the hair, slapping her in the face, dragging her across a bed, biting her arm, dragging her down a hallway and throwing her out the back door.
(c) The third involved him pulling her blankets off while she was sleeping, pulling her onto the floor, throwing a lighter at her head and slapping her on the face with his wallet.
[3] Mr Rickus has a previous conviction for indecent assault in 2010 and historical convictions for kidnapping, assault and low-level drug and dishonesty offences, as well as convictions for breaching various conditions.
[4] Mr Rickus initially pleaded not guilty at his first appearance on 29 March 2017. After a change of counsel he pleaded guilty on 29 June 2017.
Victim
[5] Mr Rickus’s first attack left his victim with fewer teeth, the second with a bruise on her arm and leg and a sore head. In her Victim Impact Statement she said
she is at the end of her tether having put up with abuse for so long. She said she needed
Mr Rickus to know that his behaviour was not OK. It is not.
Pre-sentence report
[6] In its pre-sentence report the Department of Corrections noted Mr Rickus, of Ngāi Tahu, said he had lived on the streets from the age of 13. He has 15 children by two of his previous partners. He has recently been unemployed. The Department assessed Mr Rickus as being at high risk of harm to other people and at medium-high risk of re-offending. It recommended imprisonment.
District Court Decision
[7] On 19 June 2017 Judge P R Connell in the District Court in Hamilton sentenced Mr Rickus to 24 months’ imprisonment.1 He took a starting point of 12 months for injuring with intent to injure, uplifted that by six months for assault with intent to injure and uplifted it by another six months for male assaults female.
Submissions
[8] Mr Quin, for Mr Rickus, submits the Judge failed to take into account his guilty pleas, and the uplifts should have been lower – nine months in total. Mr Quin says an appreciably lower end sentence would have been appropriate.
[9] Mr Dillon, for the Crown, accepts Mr Rickus would reasonably have expected some credit for his guilty plea but none was given or expressly considered. He
submits, at most, Mr Rickus would have been entitled to a 20 per cent discount for the guilty plea which would have resulted in an end sentence of 19 months. However, he also submits the end sentence of two years is not manifestly excessive
Law
[10] Under s 250 of the Criminal Procedure Act 2011 I am required to allow the appeal if I am satisfied that, for any reason, there is an error in the sentence imposed
1 New Zealand Police v Rickus [2017] NZDC 18110.
and a different sentence should be imposed. Otherwise, I must dismiss the appeal. The High Court does not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles.
[11] Because there were sentences for multiple charges, I must consider whether the total sentence was appropriate.2 Sections 7 and 8 of the Act set out the purposes and principles of sentencing.
Decision
[12] I have considered all of Mr Quin’s, and the Crown’s, submissions. I agree there was an error in the sentence imposed by the District Court. The Judge did not explicitly consider any discount for the guilty pleas. That is required to be considered by s 9(2) of the Act, as recognised by the Supreme Court in Hessell v R.3 There are good reasons of public policy to encourage offenders to plead guilty in taking responsibility for their offending and in not putting the victim, the Police and the Courts through the time and hassle of a trial. Since the pleas were not mentioned in the Judge’s reasoning, I must presume they were not considered.
[13] I consider the Judge’s starting point of 12 months for injuring with intent was reasonable. I consider an uplift of six months for either of the other two offences, which doubles the sanction on him, results in a reasonable overall reflection of
Mr Rickus’s culpability.
[14] Like the Judge, I would not make any uplift for previous convictions which are not similar to this offending. I would not make any discount for remorse. However, I would discount the resulting sentence of 24 months by around 20 per cent, or five months, resulting in an end sentence of 19 months’ imprisonment.
[15] I would place that on the injuring with intent charge, with a concurrent six- month sentence for each of the other two offences. I consider that appropriately
reflects the overall totality of offending in comparison with similar cases.
2 R v Hassan [1999] 1 NZLR 14 (CA) at 16; R v MacCulloch [2005] 2 NZLR 665 (CA) at [67] and
[68].
3 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.
[16] Five months in a sentence of two years is not tinkering. Mr Rickus is entitled to the reduction.
[17] I uphold the appeal and quash the District Court’s sentence. I impose a sentence of 19 months’ imprisonment with the same release conditions and post- detention conditions as those imposed by the District Court. I do not disturb the District Court’s protection order imposed under s 123(b) of the Act.
………………………….
Palmer J
0