Riki v Police

[2013] NZHC 282

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI 2012-463-000077 [2013] NZHC 282

PIKI TANE RIKI

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         4 February 2013

Counsel:         R Vigor-Brown for Appellant

A Hill for Respondent

Judgment:      21 February 2013

JUDGMENT OF KEANE J

This judgment was delivered by  on  21 February 2013 at 2.15pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

Date:

Solicitors:

R Vigor-Brown, Rotorua

Crown Solicitor, Rotorua

PIKI TANE RIKI V NEW ZEALAND POLICE HC ROT CRI 2012-463-000077 [21 February 2013]

[1]      On 19 December 2012, Piki Riki, aged 21, was sentenced to four months imprisonment for two offences on 30 September 2012, alleged to have been committed in the company of five others: possessing an offensive weapon, and intentionally damaging a Mitsubishi utility. One of the other five was also charged with, and has admitted to, injuring with intent.

[2]      On sentence Judge McGuire accepted that Mr Riki's part in this offending might well have been less serious than that of others, and that he had the advantage of personal mitigating factors. But he had offended close to young and terrified children, and that aggravated his offence. Nothing less than a sentence of imprisonment would serve the purposes of denunciation and deterrence.

[3]      On this appeal Mr Riki contends that his sentence is manifestly excessive because (i) the Judge saw denunciation and deterrence as the only relevant purposes of sentence, leaving out of account the others that were relevant; and (ii) the Judge did not consider whether all the relevant purposes of sentence might have been served by a less restrictive sentence, in particular home detention.

[4]      Mr  Riki  also  contends  that  his  sentence  is  excessive  on  the  ground  of disparity. A 15 year old boy, on the other side of the fracas, who has admitted to wounding  with  intent  to  injure,  while  driving  the  Mitsubishi  utility  that  was damaged, is likely to be discharged without conviction in the Youth Court.

[5]      It is contended for the respondent that the sentence the Judge imposed, four months imprisonment from a six month starting point, was within his discretion and is not manifestly excessive. But before coming to that, the issue on this appeal, I need first to confirm that at the date of this decision Mr Riki's sentence of imprisonment remains extant.

Status of sentence

[6]      On 19 December 2012, after he had sentenced Mr Riki, the Judge signed a warrant of commitment, and that fixed that date as the start date of his sentence.1 On

1      Sentencing Act 2002, s 91; Parole Act 2002, s 77.

20 December 2012, when Mr Riki brought this appeal, he applied for bail, which the Judge granted him until the date of this appeal, 4 February 2012. He was not asked to and he did not defer the start date of Mr Riki's sentence.2 Mr Riki remains on bail at the date of this decision.

[7]      Sentenced as he was  to a short-term sentence of imprisonment, Mr Riki became entitled to be released, once he had served half his sentence.3 After that date he could not be recalled to complete his sentence. Had Mr Riki begun to serve his sentence on the date it was imposed, his release date would now have passed. He would have served his sentence. But he has not begun to do so. The two months he has been on bail pending the resolution of his appeal do not count.4

[8]      As at the date of this decision Mr Riki's sentence has some two months to run and he could be required to complete it, subject to the outcome of this appeal.

Matrix of fact

[9]      The statement of facts on the basis of which the Judge sentenced Mr Riki, which concerned the offending alleged against all six charged, was highly general and in main outline said this:

(a)      At 4.30 pm on 30 September 2012 a one year old child's birthday party at 27 Koutu Road, Rotorua, was about to end and the bouncy castle on the front lawn was being packed up.

(b)A young family member, not at the party, came to the front fence and said he was having trouble with men in a nearby Mercedes Benz car (four of the six charged, including Mr Riki), whom he took from their slang to be Black Power members.

(c)       The young family member yelled back 'Sieg' to those in the car, a

Mongrel Mob call. He and some from the party confronted the four in

2      Sentencing Act 2002, s 100; Parole Act 2002, s 78.

3      Parole Act 2002, ss 4, 86(1).

4      Section 95.

the  car  in  the  middle  of  Koutu  Road.  Abuse  and  punches  were exchanged. A rock put through the rear window of the car.

(d)The four in the car retreated to 99 Koutu Road, only to return shortly after followed by at least two others in a second car (altogether the six charged). On the way they picked up four one metre lengths of 3 x 2 timber and an iron bar.

(e)      They ran up the driveway to 27 Koutu Road, which extends up the right hand boundary of the property, past the fenced off front lawn, where the bouncy castle was or had been, and up the side of the house, to a concrete pad between the house and a garage. 'As they ran up the drive the children at the party were terrified and ran in fear'.

(f)       Near to the concrete pad a man from the house, not wearing gang regalia, who held up his arms to show he was unarmed, explained that it was a one year old child's birthday party and that those at the party did not want any trouble.

(g)One of the six charged hit this man across the head with a timber length, splitting his left ear. Others of the six ran at the adults from the party, who were in the vicinity, swinging their weapons.

(h)A 15 year old boy at the party reversed a Mitsubishi utility from the back of the property, behind the garage, down the driveway at speed, and as he passed through the six they attacked it with their weapons.

(i)The boy then drove the utility back up the driveway and one of the six, who jumped on the bonnet, was thrown off when the boy braked and was run over.

[10]     The statement records that, when Mr Riki was spoken to by the police, he accepted he was involved in the attack on the utility, and had taken on to the property a timber length from the roadside. His counsel took that further in submissions.

[11]     Mr Riki, his counsel said, consistent with his plea, ran up the driveway carrying a timber length, but stopped on the right hand side just short of the concrete pad between the house and garage. He did not hear the man attacked say it was a children's party. Nor did he see the children. Those from the party were armed with garden implements. He did not attack them. He did throw his timber length at the utility as it passed him. Then he retreated down the driveway.

[12]     At the entrance to the driveway, his counsel said, one of Mr Riki's friends pulled him back just as the young boy drove the utility back up the driveway, and first  towards  him.  Mr  Riki's  foot  was  run  over,  he  considered  deliberately.  He suffered injury.

Pre-sentence report

[13]     Mr  Riki's  offence,  his  pre-sentence  report  said,  was  explained  by  his excessive use of alcohol that day, by his 'gang association' with the Old Koutu Boys, and by his offending history. In June 2010 he was disorderly and assaulted police, in April 2009 and November 2010 he drove with excess breath alcohol, in late 2010 he committed two community work breaches and in 2011 a further breach.

[14]     Mr Riki, his report said, minimised the seriousness of his offending. He attributed it to the fact he had been drinking. He took no account of its impact on others, including innocent bystanders. He showed no remorse. He had acted as he had, he said, to protect his neighbourhood from unwelcome visitors.

[15]     The risk that Mr Riki might re-offend, and re-offend violently, his report said, was medium. Mr Riki needed, it said, to attend a drug and alcohol program, and a Tikanga Maori program, each of which was in principle open to him. He had said he was willing to comply. But that was open to question, given his attitude to his offending.

[16]     Mr Riki's report nevertheless ended by recommending a community-based sentence:

Given the serious gang related nature of the offending, Mr Riki is aware his liberty is at risk today. Taking into account Mr Riki's part in the offending, his age and the absence of any previous rehabilitative interventions, imprisonment is not recommended. A sentence of supervision is recommended to address the identified rehabilitative needs. Additionally a sentence of community detention would serve to denounce and deter further offending. Community work is also available to the Court to ensure Mr Riki is held to account and to meet the reparative aspects of sentencing.

[17]     Mr  Riki,  his  report  said,  could  serve  community  detention,  or  home detention, at 99 Koutu Road, where his mother and a sister and three children lived. He and they consented to those sentences and neither the police nor Child, Youth and Family Services raised any safety or welfare issue.

Sentence under appeal

[18]     On sentence the Judge accepted that Mr Riki had not offended as seriously as others charged with him and, in particular, had not been violent. His offence lay, the Judge held, in encouraging and assisting others in the violence that did take place.

[19]     The  Judge  noted  from  Mr  Riki's  pre-sentence  report  that  he  had  been intoxicated and given little thought to the impact of his offending. He urged Mr Riki to think twice in future. The Judge also accepted that Mr Riki had expressed remorse and that it was also mitigating that he was young, that he was not a gang member, and that he had undergone courses and played senior rugby.

[20]     The Judge did not accept the sentence recommended. He said that 'those who gratuitously expose very young children to violence can expect to go to jail for it'.5

Had those charged with Mr Riki also appeared for sentence, he said, they too would have faced imprisonment. As the Judge then said:6

...my abiding concern about this incident is the exposure that very young children had to violence and, ... to my mind it does not matter whether those who were engaged in violence, supporting it, encouraging it, were on the actual property of this party, or simply in the adjacent driveway. If their actions exposed tiny children to violence, then in my view, their actions are absolutely abhorrent.

5      R v Riki DC Rotorua CRI-2012-063-004444, 19 December 2012 at at [12].

6 At [11].

[21]     The Judge took a starting point of six months imprisonment. Then, after allowing for mitigating factors and plea, sentenced Mr Riki to four months imprisonment. He directed Mr Riki, in the six months following his  release, to undergo Tikanga Maori and drug and alcohol programs and any other counselling, treatment or program directed.

Sentence of last resort

[22]     Imprisonment is the most restrictive sentence in the hierarchy of sentences and orders prescribed in the Sentencing Act 2002.7 It is, as the Court of Appeal said in R v Rawiri, 'a measure of last resort'.8

[23]     That it is the sentence of last resort, the Court then said, had been bluntly affirmed by the 2007 amendments, most especially s 10A, which ranks sentences according to how restrictive they are, and 'community-based sentences well up the hierarchy, immediately below home detention'.9  This and related amendments, the Court said, was 'consistent with a discernible legislative policy of keeping offenders within the community wherever appropriate'.10

[24]     Before  the  2007  amendments  that  policy  was  already  inherent  in  the hierarchy of sentences the Sentencing Act 2002 created; and in the priority the Act gave to the s 8(g) principle requiring that any sentence imposed be 'the least restrictive outcome that is appropriate in the circumstances' by making adherence to that  principle  a  precondition  to  any sentence  above  a  discharge  or  a  fine  or  a reparation order.

[25]     Since 2002 a sentencing Judge has only been able to impose a community- based sentence where a fine is not  appropriate.11  Since 2007,  community-based sentences imposed in combination, must be in the least restrictive combination.12

Since 2007, when home detention became a sentencing option, that sentence has

7      Sentencing Act 2002, s 10A.

8      R v Rawiri [2011] NZCA 244 at [18]; (2011) 25 CRNZ 254 (CA).

9 At [17].

10 At [19].

11     Sentencing Act 2002, s 15(1)(a).

12     Section 20(1).

only been  able  to  be  imposed  when  the  Judge  is  'satisfied  that  the  purpose  or purposes for which the sentence is being imposed cannot be achieved by any less restrictive sentence or combination of sentences'.13

[26]     No  less  importantly,  home  detention  may  only  be  imposed  where  the sentencing   Judge   would   otherwise   have   imposed   a   short-term   period   of imprisonment, 24 months or less, and decides to commute that sentence to home detention.14 The result is that before home detention may be imposed the sentencing Judge must first face up to s 16, which closely circumscribes the power to imprison.

[27]     Section 16(1) says that when deciding whether to imprison, and to what extent,  the  sentencing  Judge  'must  have  regard  to  the  desirability  of  keeping offenders in the community as far as that is practicable and consonant with the safety of the community.' Where imprisonment is the presumptive or mandatory sentence the Judge must sentence accordingly. Where that is not so, s 16(2) then provides, the Judge is prohibited from imprisoning unless satisfied as to three things.

[28]     First, the purpose for which imprisonment is to be imposed must be to hold the offender accountable, or to induce in him or her a sense of responsibility, or to serve the interests of any victim, or to denounce the offending, or to deter or protect the community.15 Secondly, any such purpose must not be able to be achieved by any lesser sentence.16 Thirdly, there must be no other sentence that would be consistent with such of the ten s 8 principles of sentence as apply.17

[29]     Sentences   of   imprisonment   have   been   quashed   and   home   detention substituted  for  two  categories  of  error.  One  is  where  the  sentencing  Judge  has assumed that the category of offence lies beyond a sentence of home detention.18 The

other is where the sentencing Judge has imprisoned to deter and denounce without

13     Section 15A(1)(a).

14     Section 15A(1)(b); R v Vhavha [2009] NZCA 588 at [29].

15     Sentencing Act 2002, s 16(2)(a).

16     Section 16(2)(b).

17     Section 16(2)(c).

18     R v Ondra [2009] NZCA 489; Osman v R [2010] NZCA 199; Heta v R [2012] NZCA 267.

taking into account the other often countervailing purposes, which may point to a less restrictive outcome.19

[30]     By parity of reasoning, but conversely, in R v Rawiri, the Court of Appeal, on a  Crown  appeal,  upheld  two  combined  community-based  sentences,  community work and supervision, imposed for drug offending. There the Court said:20

This  Court  has  recognised  that  a  sentence  of  community  service  has  a punitive aspect. It is intended by Parliament to be and is a very real and effective alternative to imprisonment ...

[31]     Even  before  2007,  in  R  v  Norman,21   the  Court  of Appeal  endorsed  the efficacy of that combined community-based sentence, community work and supervision, where the appellant had been convicted after trial of injuring with intent to injure; a sustained assault with others that had resulted in a sentence of eight months imprisonment.

[32]     The appellant  was  aged  17,  she was  studying  at  a polytechnic, she was described as naive and as genuinely remorseful and as having good family support; and the issue on that appeal, as the Court expressed it, was this22:

Do the sentencing objectives of denunciation and deterrence outweigh the statutory directions to impose the least restrictive outcome and to assess whether the purposes of sentencing can be achieved by a sentence other than imprisonment?

[33]     In  quashing  the  sentence  of  imprisonment  imposed  and  substituting  300 hours community work and supervision for nine months, the Court there said that those penalties 'represent a very significant penalty,'23  and adequately achieved the

purposes of denunciation and deterrence.24

19     Manikpersadh v R [2011] NZCA 452 at [17].

20     R v Rawiri, above n 8, at [18].

21     R v Norman [2007] NZCA 351.

22 At [32].

23 At [35].

24 At [36].

Conclusions

[34]     Mr Riki's two offences, possession of an offensive weapon and damaging the utility, though they each carry the potential for actual violence, are not offences of that order. They would ordinarily warrant a community-based sentence. Equivocal though Mr Riki's pre-sentence report was, it also concluded that his offending and his circumstances warranted no more than a community-based sentence.

[35]     In his sentencing remarks the Judge accepted that on the day Mr Riki was a lesser player and accepted also that, equivocal though his pre-sentence report was, he had the benefit of not unpromising personal mitigating factors. In rejecting a community-based  sentence  and  in  deciding  Mr  Riki's  offence  could  only  be answered by a sentence of imprisonment, the Judge held Mr Riki's offending to be magnified in two ways.

[36]     One was that, though Mr Riki's offences involved no actual violence, the potential for violence was real. He with five others entered the Koutu Road property intent on revenge, carrying weapons, and one person was assaulted. The other was that there were children present and they were terrified. They were placed at risk of emotional harm at the least.

[37]     To imprison Mr Riki the Judge had first to identify why, under s 16 of the Sentencing Act 2002, he considered himself obliged to impose that sentence of last resort and why the community-based sentence recommended, in combination, would not suffice. Unfortunately he omitted to do so explicitly, but he was clear that it was the presence of the children that was the tipping point.

[38]     In then stating that Mr Riki and every other offender that day, regardless of their individual culpability, had to be sentenced to imprisonment for that reason alone, the Judge focused exclusively on that aggravating feature and on the purposes of denunciation and deterrence. The Judge set to one side Mr Riki's actual culpability and the mitigating factors personal to him that were relevant to sentence. He sentenced on a fixed policy inconsistent with his statutory discretion.

[39]     As a result, and leaving aside any issue of disparity, the second ground of appeal, the sentence the Judge imposed must be set aside, I must sentence afresh, and, to my mind, the sentence recommended in the pre-sentence report does strike the appropriate balance between denunciation, deterrence, rehabilitation and reintegration, at the least restrictive level.

[40]     Mr Riki's offences were not in themselves of the most serious order. They were  magnified  in  the  two  ways  the  Judge  described  but  neither  makes  those offences of such a serious order that a community-based sentence is ruled out. To the contrary. A community-based sentence is the proportionate sentence.

[41]     The factor of most concern to the Judge, understandably, was the effect on the children. They were terrified initially. There is no minimising that. But, on the eye witness accounts, women at the property swiftly shepherded them into the house and away from the windows. They were not exposed to the full incident.

[42]     Against that background Mr Riki will be sentenced to 200 hours community work, to six months community detention, and to nine months supervision; as to the two latter sentences on the terms I now set out.

[43]     Mr Riki is to serve his community detention sentence at 99 Koutu Road, Rotorua. To commence that aspect of his sentence he is to be present at that address at 10am on Friday, 22 February 2013, and to remain there to await the arrival of a probation officer and a security officer. He is to be curfewed at that address every night between 7pm and 7am and that curfew is to commence on the evening of Friday, 22 February 2013. He is to report to a probation officer as directed.

[44]     Mr Riki's sentence of supervision is to be subject, apart from the standard conditions, to the special conditions that he undertake a Tikanga Maori program and a drug and alcohol program, in each instance to the satisfaction of his supervising

officer and the program provider.

P.J. Keane J