Rimene v The Queen

[2015] NZHC 2619

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI-2015-443-000005 [2015] NZHC 2619

BETWEEN

WAYNE RIMENE

Appellant

AND

THE QUEEN Respondent

Hearing:	20 October 2015
Counsel:	A J Ellis for appellant (via AVL) S J Simpkin for respondent
Judgment:	23 October 2015

RESERVED JUDGMENT OF DOBSON J

[1]      The  appellant  (Mr Rimene)  entered  guilty  pleas  to  charges  of  burglary, assault with a weapon, threatening to kill and demanding with intent to steal.  In the District Court at New Plymouth on 19 December 2014, Judge Bouchier sentenced him to four years and seven months’ imprisonment.1   Mr Rimene has now appealed against that sentence.

Background

[2]      Mr Rimene and a co-offender, Mr Parker, entered the home of the victim, Mr Barham, around 10 pm on 12 September 2013, both armed with boning knives. Mr Parker punched Mr Barham in the head, and Mr Rimene said words to the effect that Mr Barham was not going to get away with what he had done, and that he was lucky he was not dead.  Mr Rimene locked the door and shut the curtains of the room they were in.  He then jumped on Mr Barham, punched him and held his knife to him, saying “I should cut your head off right now but I want your gay mate more

than I want you”.

1      R v Rimene DC New Plymouth CRI-2013-043-1844, 19 December 2014.

[3]      Mr Rimene then made Mr Barham call the associate he had referred to, to facilitate Mr Rimene speaking to him using Mr Barham’s phone.

[4]      Mr Rimene then went through Mr Barham’s house taking a number of items, while Mr Parker stayed with Mr Barham.  Messrs Rimene and Parker then swapped roles, with Mr Rimene guarding Mr Barham and Mr Parker inspecting the house for items to take.   Mr Rimene told Mr Barham that he was to transfer ownership of a Holden Commodore vehicle to Mr Rimene the next day.  The vehicle was valued at approximately  $10,000.     Mr Barham  agreed  to  do  so  because  he  was  afraid Mr Rimene would kill him.   Mr Barham was forced to load the goods chosen by Messrs  Rimene  and  Parker  into  the  Commodore,  and  Mr Rimene  then  ordered Mr Barham to drive him back into town.   Mr Parker left the address in another vehicle.

[5]      During the journey into town, Mr Rimene told Mr Barham that he would get his car back if he did what they ordered him to do, including going to court to tell the judge that he had lied about Mr Rimene taking another of Mr Barham’s cars.  The journey ended at another house where Mr Barham was taken inside.  Mr Parker and another   defendant,   Mr Young,   were   present,   as   was   Mr Rimene’s   partner, Ms Campbell.    The  others  present  subjected  Mr Barham  to  further  assaults  and threats, and at one point Mr Rimene said “if I get locked up for this … I will be sitting in my cell smiling knowing that you and your missus will die a slow and painful death”.

[6]      After a period, Mr Rimene indicated that Mr Barham could have a sleep at the address and gave him his cell phone back.  When Mr Barham indicated that he would walk home, Mr Rimene gave Mr Barham a different vehicle to drive home. Later the same day, Mr Barham went to hospital for treatment, having suffered bruising  and  facial  injuries.    Some  weeks  later,  Mr Barham’s  Commodore  was returned to him in an undamaged state.

[7]      Mr Parker was sentenced for his part in this offending to four years, two and

a half months’ imprisonment.  He has unsuccessfully appealed against that sentence.2

2      Parker v R [2015] NZHC 811.

The sentencing

[8]      In sentencing Mr Rimene, Judge Bouchier found that previous sentencing decisions cited by counsel as comparable were not particularly helpful in identifying the appropriate starting point.   The Judge adopted a starting point of five years’ imprisonment.  That is implicitly for the offending overall, on the basis of concurrent sentences.  Mr Rimene has a substantial list of relevant prior convictions, which the Judge treated as extremely serious and warranting an uplift of nine months.   Her Honour  adopted  a  20 per cent  discount  for  the  guilty  pleas.    Rounding  up  the discount to 14 months produced the end sentence of four years and seven months’ imprisonment.

Grounds of appeal

[9]      On appeal, Mr Ellis’s written submissions focused on two claimed factual errors in the Judge’s analysis for sentencing.  First, the Judge treated both the Crown and defence as proposing a 20 per cent discount for guilty pleas, when in fact they both proposed a discount of 25 per cent.

[10]     I do not accept that there was any error in the Judge adopting a 20 per cent discount when 25 per cent had been proposed.   The guidance from  Hessell v R contemplates a maximum discount of 25 per cent, and encourages the sentencing judge to take into account a range of factors in setting the  appropriate level of

discount.3      In  Mr Rimene’s  case,  there  had  been  an  amendment  to  the  charges

relatively close to trial, following which he pleaded guilty to all counts.  Assuming Mr Barham would come up to brief, it appeared to be a relatively strong Crown case. Twenty per cent was the discount given to both Messrs Rimene and Parker, and I agree with Heath J that, if anything, a 20 per cent discount in the appeal before him was generous, and the same comment applies here.4

[11]     The second error was that the Judge referred to Mr Barham having suffered a fracture below his nose.  This appears to have come from the summary of facts relied

on at sentencing, which included reference to Mr Barham having been treated in

3      Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.

4      Parker v R, above n 2, at [25].

hospital for facial injuries including a fracture underneath his nose.  However, the medical report on Mr Barham’s condition made no reference to a fracture and, on that basis, Mr Ellis argued that there was no justification for attributing injury of that seriousness to the attacks on Mr Barham.

[12]     It is not clear from the Judge’s sentencing notes that her Honour took a facial bone fracture into account in assessing the relative severity of the assault component of the offending.   The reference is a passing one in the narrative describing the nature and extent of the offending.  Certainly the Judge made no separate reference to the level of harm inflicted as an aggravating factor.  I am not persuaded that any error in relying on the statement of facts in this respect (if there was such an error) contributed to assessing the overall offending as any more serious than was justified.

[13]     In Mr Ellis’s oral submissions, he placed primary emphasis on the Judge’s rejection of an indication of remorse on Mr Rimene’s part as a mitigating factor justifying an additional discount.

[14]     In a letter written by Mr Rimene on the day of his sentencing, he advised that a serious heart attack earlier in 2014 had caused him to reflect on the negative influences in his life to that time.  These included sexual and physical abuse inflicted on  him,  prolonged  substance  abuse  (glue,  alcohol  and  drugs)  and  additional problems with his health.  He apologised to the Court and to the victim, asking for their  forgiveness.    Judge  Bouchier  characterised  the  remorse  as  “contemplative

rather  than  extraordinary”.5      As  is  appropriate,  the  sentencing  Judge  tested  the

genuineness and value of an expression of remorse conveyed only on sentencing, and formed her own view of it in deciding that no additional discount for it was warranted.

[15]     I took Mr Ellis to accept that a sentencing judge has a judgement to make as to whether expressions of remorse are genuine and, if so, what value they have as a mitigating  factor.    However,  he  submitted  that  the  terms  of  Mr Rimene’s  letter provided a basis for belief that the expression of remorse was genuine because the

serious heart attack he has suffered is a form of epiphany in recognising the negative

5      R v Rimene, above n 1, at [13].

influences on his criminal lifestyle.  In these circumstances, Mr Ellis argued that the Judge ought to have accepted and given weight to the expression of remorse, unless there were countervailing factors identified by the Judge that justified its rejection.

[16]     I am not persuaded that there was any error by the Judge in failing to give credit for remorse as expressed in Mr Rimene’s letter.   The circumstances of the immediate offending included Mr Rimene telling the victim to recant on a previous complaint that had resulted in charges against Mr Rimene.  The nature and extent of Mr Rimene’s  prior  convictions  would  reasonably  require  something  more  than claims in a single letter written on the day of his sentencing to provide a credible basis for genuine remorse towards Mr Barham and a commitment to turn over a new leaf.   It was entirely open to the Judge not to give discrete credit for the claimed remorse.

[17]     An  additional  criticism  raised  in  Mr Ellis’s  oral  submissions  was  the difficulty in assessing the appropriateness of the starting point when the Judge did not relate it to any comparable precedents.  Although setting the starting point is an important component in a reasoned sentencing process, there can be no rigid requirement as to the grounds on which a starting point is determined.   The combination of charges, and the fact that the offending all occurred within one chronological narrative, meant that the approach adopted by the Judge was one readily open to her.

[18]     This was very serious offending of its type.  It involved a home invasion by two armed offenders late at night, the use of violence, elements of pre-meditation, and a protracted period of intimidation and coercion exerted on Mr Barham.   The seriousness  of  Mr Rimene’s  threats  was  underscored  by  his  gang  affiliations.6

Victim  impact  statements  from  Mr Barham  and  his  partner  revealed  on-going emotional harm in addition to financial loss, given that some of the items taken were not insured and some were irreplaceable due to their sentimental value.  Mr Barham

had justifiably feared for his life.  Given this combination of features, there can be no

6      The Judge acknowledged that Mr Rimene had been described as “the boss of his gang in

New Plymouth”, at [9].

serious issue that a starting point of five years was not well within the available range.

[19]     Accordingly, no error can be made out and the appeal is dismissed.

Dobson J

Solicitors:

Carole Curtis, Auckland for appellant

Crown Law, Wellington for respondent

Counsel:

A Ellis, Auckland