Rio v Police HC New Plymouth CRI-2011-443-032

[2011] NZHC 1001

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI-2011-443-032

DALLAS KARAITIANA RIO

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         16 August 2011

Appearances: J Hannam for the Appellant

A Britton for the Respondent

Judgment:      26 August 2011 at 4:30 PM

JUDGMENT OF WHITE J

This judgment was delivered by me on 26 August 2011 at 4.30 pm pursuant to Rule 11.5 of the High Court Rules. Registrar/Deputy Registrar

Date: ………………….

Solicitors:           J Hannam, New Plymouth:  [email protected]

A Britton, Crown Solicitors, New Plymouth:  [email protected]

D RIO V NZ POLICE HC NWP CRI-2011-443-032 26 August 2011

[1]     Dallas Rio appeals against his sentence of three years three months’ imprisonment imposed in the District Court at Hawera on 22 June 2011 on the following charges:

(a)      two charges of aggravated burglary under ss 232(1) and 66(2) of the Crimes Act 1961 for which the maximum penalty is 14 years’ imprisonment; and

(b)two charges of demands with intention to steal under s 239(2) of the Crimes Act 1961 for which the maximum penalty is seven  years’ imprisonment.

The offending

[2]      The  aggravated  burglary  charges  arise  out  of  incidents  that  occurred  on

10 and 11 December 2010 when Mr Rio accompanied his mother, Ms Fiona Rio, and her cousin, Ms Paula Rio, to an address in Hawera.   The visits were made at the instigation of Ms Fiona Rio who had confronted and punched a female victim in the street the previous day and who was seeking to locate a male person at the address where the victim resided.  On both occasions Mr Dallas Rio was armed with a steel pipe about a metre long and five to six centimetres in diameter.

[3]      On the first occasion Ms Fiona Rio began to punch her victim again with her closed fist to the face, punching her about the right side of her face where she was already bruised and swollen from the previous day’s encounter.  It was estimated that Ms Fiona Rio punched her half a dozen times.  The victim received a black eye, a lump on her right cheek and bruising to her lower jaw.  There was some ongoing impediment to her ability to hear.

[4]      The following day the three associates returned again.   This time a different victim was involved, namely a son of the first victim.   Ms Fiona Rio asked him where  she  could  locate  his  mother  and  he  was  then  punched  in  the  mouth  by Ms Fiona Rio when he was unable to answer where his mother’s partner was to be found.  He was punched a second time and suffered a split top lip.

[5]      On 18 December 2010 Mr Dallas Rio went to a different address and, having knocked, walked in without waiting for a reply.  One of the occupants of that address saw him standing in the hallway.  He made a demand for money and received $150. Mr Rio indicated he would be back the following Saturday to pick up money again. He threatened his victim saying that if he did not pay he would get his legs broken or other damage would be done.  He said to his victim that it did not matter where he went or what he did, he knew what his victim was up to.

[6]      On 26 December 2010 the victim opened the door and saw Mr Rio standing there.   Mr Rio asked to see another person whose whereabouts were unknown. Mr Rio’s inquiry was ultimately focused on money and he asked if he could borrow a cell phone.  His victim said no.  Mr Dallas Rio said “do you want me to smash it for you then” and picked up a wooden fence paling.  Mr Rio turned to his victim and said “this is where the real gangster shit comes in”.  When the victim sought help from  a  brother  who  was  inside  the  house  and  called  the  Police,  Mr  Rio  left threatening the victim as he did so.

Personal background

[7]      Mr Dallas Rio is a 20 year old New Zealand Maori who has most recently been living with his father.  Mr Dallas Rio advised his pre-sentence report writer that he and his partner had one child aged 12 months and that they were expecting another child in approximately six months.  Mr Rio stated that he was unemployed and was supported by his partner and his parents as he had no income at the time. His parents were patched members of the Hawera chapter of the Black Power gang.

[8]      Mr Rio’s appearances on the four charges were his first appearance before the Court.  In explanation for his offending, Mr Rio advised the report writer that he had become involved in the offending through his mother and aunt.   In regard to the burglary charges he said that he only entered the premises after he heard shouting because he thought his mother was being attacked.  He added that he had taken the steel pipe into the dwelling for his own protection.  In respect of the other charges, Mr Rio stated that he had been sent by his mother to collect some money that was owed to her.

[9]      Mr  Rio  presented  as  “very  open  and  communicative”  and  appeared  to understand the seriousness of the charges.   He also impressed the report writer as being remorseful for his role in the offending and by his offer to make amends to the victims through an apology.

[10]     Factors  assessed  as  contributing  to  Mr  Rio’s  offending  patterns  and behaviours were: offence supportive associates in that his parents and other family members were affiliated to the Black Power gang and he had been raised within that culture; unhelpful lifestyle balance in that he had never worked or maintained any form of paid employment and did not appear to be concerned that he was financially supported  by  others;  and  offence-supporting  attitudes  and  entitlements  as  he described his offending as a form of debt collection on behalf of his mother.

[11]     He denied that use of a weapon was an indication of violent propensity claiming  that  it  was  only to  protect  himself.   As  he  had  no  history  of  violent offending or any offending, he was not considered to have a rehabilitative need in that area.  There was no indication of any substance abuse problems and no alcohol or drug dependence was noted.

[12]     The report writer’s conclusion was that until Mr Rio was able to recognise the serious impact his connection with the local gang culture has on his life, his risk of re-offending was assessed at a medium level.   The report writer nonetheless recommended a sentence of community work and a final warning.

Impact on victims

[13]     It is clear from the victim impact statements, summarised by the District Court Judge in his sentencing notes, that the assaults on the two victims have had relatively serious implications for them.  The first victim has left her house which had been burgled of all possessions.  Her 17 year old student son and his younger brother now live with their grandparents and are unable to see their mother who has left Hawera.

District Court Judge’s decision

[14]     In sentencing Mr Dallas Rio and his two associates on 22 June 2011 District

Court Judge Roberts said:

[17]     You, Dallas, are 20 years of age.  You stated you only entered the premises once you heard shouting. You said that at interview, as you thought your mother was being attacked. You claim that you had taken the steel pipe for your own protection.   I am not going to engage in any discourse with you, but if you were waiting outside the need or a steel pipe may be difficult to comprehend.   In relation to the demands to steal, you said that your mother had sent you to do some money collection that was owed her.  You impressed as remorseful.  You are not in employment.  You are supported by a partner.  You have no income.  You deny that you have any propensity for violence.    The  repeated  offending,  however,  may  in  fact  counter  that assertion on your part. Again the recommendation of community work and a final warning are widely astray of the mark.

.....

[21]     Mr Hannam, on your behalf Dallas Rio, addressed me, referring initially to his submissions but also to the authorities he provided me.  He contends that you as the youngest of the three were literally caught short. Caught short in the sense that you were unaware as to exactly what was going down save and except for the fact that there was a desire on the part of your mother to seek out this male.  On the basis that Wilson was likely to be present, Mr Hannam asked me to accept that you went with that bar.

[22]      Again, I have engaged with Mr Hannam.  That may all be correct, but it is difficult to fashion a reason for you presenting on a second occasion, you being aware as to what had gone down first time around.  You are 20 years of age, I accept that, and have no previous convictions.   Essentially Mr Hannam summarises the matter that I should take into account, your lesser role in the offending, your youth, your lack of previous convictions and your early guilty plea.   Mr Hannam does not agree with the Crown submissions when they pitch for a final sentence between five and seven years submitting that that would be an over-reaction bearing in mind that you did not actually proffer violence.  His submission focused perhaps again on a start point of three years, and he again addressed me in relation to authorities he had provided me where that sentencing start point was accommodated.  I am asked also not to overlook the fact that you have spent four months in custody

[23]     In  their  written  submissions  the  Crown  refer  me  to  the  tariff decision, admittedly for aggravated robbery, a slightly different proposition to the aggravated burglary charges you three face.   The Court of Appeal decision in Mako (R v Mako (2000) 17 CRNZ 272) of course provides guidelines within fashioned to accommodate the similar potential sentence of

14 years’ imprisonment.  Within the Mako decision some reference is made to  offending  that  involves  entry  to  a  private  dwelling.    Mr  Britton  has

already referred to that.  It is detailed within his written submissions but also

taken from paragraph 58 of the Mako decision.  Forced entry – It was not forced entry in the sense that you had to break in.  To premises at night – it

was not at night, it was in the early morning.   By a number of offenders seeking money drugs, or other property- well that focus of search cannot be established either.   But, violence against victims where weapons are brandished, even if no serious injuries are inflicted, would require a start point of seven years or more.   Where a private house is entered the start point  would  be  increased  under  the  home  invasion  provisions  to  about

10 years.    Well  the  home  invasion  provisions  do  not  now  apply,  but nonetheless the entry into a home as to some other premises might be seen,

still, as a stand along aggravating factor.

[24]      That recital of course, and I repeat is not tailored to the fact here, at least has the consequences of the home entry constituting a stand alone aggravating factor which in my mind is demonstrated.   The factual recital here - it was a home entry.  It was in daylight hours.  Secondly you, Dallas Rio, had an actual weapon in your hand.  Thirdly, the effect of the weapon’s presence must impact on the victims to the point it demonstrates its availability and at a bare minimum the threat of use is thus a tangible one. Fourthly, actual violence was employed.  There were multiple punches to the head.  And fifthly, the motive is clearly to confront the male, the motive as I conclude it to be, is one of retribution.   Each of the three accused was present.   Each of the three accused was present in the same fashion and capacity the following day when the return occurred.

[25]     The other authorities provided me by the Crown involve offending perhaps on a greater level and a lesser level.  Of course I saw the Williams offending (R v Williams CA220/01 20 March 2002) as an upper ceiling.  He of course referred me to the decision of Maxwell (Maxwell v Police NPHC

1 March  2009,  Harrison  J)  one  with  which  I  have  some  familiarity. Common  denominator,  Black  Power  member  entering  a  house  with  a

weapon seeking confrontation.   It was single entry, no actual injury was

occasioned to anyone else.   Start point four years’ imprisonment although

accommodating aggravating factors, previous convictions.  Actual start point was three years’ imprisonment. That is before the aggravating factors kicked in.

[26]      The thrust of Mr Britton’s submission was that your offending was at an elevated level to that of Mr Maxwell.  The Crown submit a start point on sentence on the lead charge, aggravated burglary, must therefore sit somewhere between five and seven years.   In making my decision as to where the start point sits I have regard to the following factors that I identify as aggravating.

(a)       The presence of the weapon.  You, Dallas Rio, had with you a steel pipe.  It was a metre long and on each occasion the threat of use was real, given the actual violence metered out by Fiona on each instance.  That weapon was taken to the address twice.  On the first entry Fiona punches the female victim to the head six times and on the second the 17 year old schoolboy is punched to the head twice.

(b)       Purpose of entry.  Initially to seek out the 37 year old female victim’s partner.  Violence is implicit and reinforced both by numbers, you three, and the presence of a weapon.   I am satisfied the purpose here for entry was to assault and to intimidate.

(c)      The consequences for your victims.   They are significant.

Notwithstanding the apology you, Fiona, claim to have presented, the victim impact statement was non-reflective of

that apology.   She has had to relocate.   Her property was

entered by people unidentified and literally cleaned out.  Her family is fractured.  Her 17 year old son, again a victim who had nothing to do with the issues, the issues perhaps created by others but certainly fanned by you, Fiona, was struck for his trouble in the face.  He is separated from his mother.

(d)       You, Fiona, were subject to a sentence of come up if called upon.   That does not apply to you, Paula or Dallas.  It does, however, demonstrate perhaps a lawless aspect to your behaviour.

(e)       Entry, I focus on entry.  It is implicit.  It is entry to a private dwelling occupied by the adult victim and her children. People that should not have been subject to your violence were actually caught up and involved.  Some of those were vulnerable.   Of course multiple offenders.   This, too, is a stand alone aggravating factor.   Family members gathered for a specific purpose on two distinct occasions seek out, confront, and whatever is necessary to achieve the ultimate aim.

.....

[34]      With you Dallas, the same start point, five years’ imprisonment. You have  no  prior  convictions  but  your  on-going  offending  involves  two additional acts of discrete stand-over on 18 December and 26 December. You went into those independent activities with your eyes open.  I deal with you on the basis of concurrent sentences also,  reducing from the start point of five years the concession of one-quarter to reflect your plea of guilty, an end sentence of three years and nine months, further though to reflect the lack of previous convictions a further six months, so that you will ultimately serve a sentence of three years and three months.

[35]     Given now your convictions for aggravated burglary, Fiona Adele Rio, Paula Dee Rio, Dallas Karaitiana Rio, you are now subject to the three strikes law.  I am now going to give you a warning of the consequences of another serious violence conviction.  You will also be given written notice outlining these consequences which list the serious violent offences.  If you are convicted of any serious violent offence other than murder committed after this warning, and if a Judge imposes a sentence of imprisonment then you will serve that sentence without parole or early release.   If you are convicted  of  murder  committed  after  this  warning  then  you  must  be sentenced to life imprisonment.  That will be served without parole unless it would be manifestly unjust.  In that event the Judge must sentence you to a minimum term of imprisonment.

[36]     With each of you, Fiona and Dallas, I will tailor in sentences to accommodate those other matters that I have not thus far nominated.   In relation to you Dallas, with the demanding with menaces and the demanding with intent to steal, six months’ imprisonment on each, sentences to run concurrently with the existing sentence.

[15]     For Mr Rio, Mr Hannam submitted that:

(a)      The  purposes  of  the  Sentencing  Act  2002  could  be  satisfied  by imposing a community-based sentence on Mr Rio.

(b)The following factors were present as mitigation applicable to all the offending: lesser role in offending (aggravated burglary only); youth and provisions of s 16(2)(b) of the Sentencing Act; remorse over the offending; no previous convictions; early plea of guilty; positive probation report recommendation.

(c)      An  overall  starting  point  of  36  months  was  appropriate  with concurrent sentencing and taking account of the totality principle as it applied to this young man facing multiple charges arising from different dates.

(d)Mr Dallas Rio had now spent over six months in custody, two since his sentence. This had been a true watershed for him.

[16]     Mr Hannam referred to a number of Court of Appeal decisions involving quite serious aggravated burglary charges with starting points of three years or less: R v Shirley, R v Patrick and R v Gadiev.[1]

Submissions for the Crown

[1] R v Shirley [2009] NZCA 216; R v Patrick [2008] NZCA 115; and R v Gadiev CA194/06, 7 August

2006.

[17]     For the Crown, Mr Britton submitted that:

(a)      Taking into account the relevant case law, the aggravating factors identified by the District Court Judge and the seriousness of the offending, the starting point for sentence adopted in relation to Mr Rio

and his co-offenders was available and appropriate.

(b)The Court of Appeal decisions cited for Mr Rio could be distinguished as they were less serious than Mr Rio’s case because:

(i)they  concerned  wanton  destruction  of  property,  whereas Mr Rio  was  charged  as  a  party  to  offending  involving threatened and actual use of violence against multiple victims;

(ii)they   concerned   unitary   charges   of   aggravated   burglary whereas Mr Rio was sentenced in relation to two charges of aggravated burglary and two separate incidents of offending at the same address so premeditation was at an elevated level;

(iii)     they concerned lesser degrees of victim impact and harm;

(iv)they concerned offending which was not as elevated in terms of the combination of offending;

(v)      they concerned a lower number of offenders.

(c)      The culpability of Mr Dallas Rio sat much higher than his associate, Ms Paula Rio because he possessed the weapon on the two occasions of aggravated burglary and also on one of the occasions of the demand offending.

(d)Taking into account the mitigating factors and personal circumstances identified by the District Court Judge, all available concessions were afforded to Mr Rio and the extent to which they were afforded was appropriate.

(e)      Concurrent rather than cumulative sentences were imposed, but there was no uplift for the combination of offending.   This offset any argument as to concession for lesser culpability.

[18]     I intend to follow the appellate approach set out in my decision in Sweeney v

New Zealand Police.[2]

Sentencing for aggravated burglary

[2] Sweeney v New Zealand Police HC New Plymouth CRI-2011-443-028, 26 August 2011 at [29]-[33].

[19]     I intend to follow the approach to sentencing for aggravated burglary set out in my judgment in Paula Rio v New Zealand Police.[3]

[3] Paula Rio v New Zealand Police HC New Plymouth CRI-2011-443-033, 26 August 2011 at [17]- [21].

[20]     I agree with Mr Britton that the Court of Appeal decisions in R v Shirley, R v Patrick and R v Gadiev, relied on by Mr Hannam for Mr Rio, may all be distinguished.   In R v Gadiev the offending was being armed with a weapon with intent to commit burglary under s 232(2)  of the Crimes Act 1961  and so only attracted a maximum term of five years’ imprisonment.  R v Patrick has some similar features, but in that case there was only a single relatively brief (albeit terrifying) incident and no actual physical harm was caused to the victims. Mr Rio was involved in two prolonged incidents involving actual violence towards two victims.   R v Shirley is perhaps more serious than Patrick, but again there was no actual violence towards the victims and a continuing series of conduct rather than the two incidents that occurred here. In my decision relating to the appeal by Mr Rio’s co-offender Ms Paula Rio I have referred to additional decisions which I consider are more relevant

in the present context.[4]

Present case

[4] Paula Rio v New Zealand Police at [22]-[23].

[21]     Following the approach of the Court of Appeal in R v Mako, R v Rua and R v

Watson[5]  in Mr Dallas Rio’s case, it is clear that his aggravated burglary offending had the following aggravating features:

[5] R v Mako (2000) 17 CRNZ 272; R v Rua CA58/02, 24 October 2002; and R v Watson CA224/03, 24 October 2003.

(a)       actual violence with the threatened use of a weapon: s 9(1)(a) of the

Sentencing Act 2002;

(b)      unlawful entry into a dwelling place: s 9(1)(b);

(c)       the relatively serious harm caused to the victims from the offending:

s 9(1)(d);

(d)      the vulnerability of the second victim because of his age: s 9(1)(g);

(e)       premeditation on the part of the offender, particularly on the second occasion: s 9(1)(i);

(f)       multiple offenders; and

(g)      the repetition of offending against first victim.

[22]     As  far  as  mitigating  factors  relating  to  Mr  Dallas  Rio’s  offending  are concerned, I do not overlook that he did not instigate the offending and that he played a somewhat lesser role than his mother, but the fact remains that he was the offender with the weapon.

[23]     In these circumstances a starting point of over five years’ imprisonment for the two burglary charges would have been within the range required by the appellate decisions since the Sentencing Act 2002 to which I have referred.  The District Court Judge’s starting point of five years’ imprisonment was not outside the appropriate range.

[24]     I agree with the submission for the Crown that on the basis of concurrent sentences for all of Mr Dallas Rio’s offending, that is including the two further charges of demands with intention to steal, an uplift to the starting point would have been appropriate.   This reinforces the conclusion that the District Court Judge’s

starting point was well within the appropriate range, as it took account of the totality of the offending: R v Xie.[6]

[6] R v Xie [2007] 2 NZLR 240 (CA) at [16].

[25]     Turning then to the mitigating factors relating to Mr Dallas Rio himself, I note that there was no suggestion that the District Court Judge had not correctly identified the relevant factors in [34] of his sentencing notes, namely the absence of prior convictions and the guilty plea.

[26]     For these mitigating factors the District Court Judge gave a total discount of a little over 33%.  In my view this discount was at the correct level and did not result in a sentence that was “clearly excessive” or “inappropriate”.

[27]     As Mr Hannam submitted for Mr Rio, s 9(2)(a) of the Sentencing Act 2002 requires the Court to take into account “the age of the offender” as   a mitigating factor to the extent that it is applicable in the particular case.   Mr Dallas Rio was over  20,  in  a  relationship  and  a  father  with  family  responsibilities  when  he committed the offences in December 2010. As confirmed by his pre-sentence report, he was mature enough to understand the serious nature of his offending.  Bearing in mind that he was the one carrying the weapon during the aggravated burglaries, I do not consider that a further discount was appropriate for his age in the circumstances of this case.   Mr Rio’s  offending could not be described as reflecting  youthful indiscretion or immature mistakes.

[28]     As Mr Hannam also submitted, in terms of the decision of the Supreme Court in Hessell v R,[7]remorse may also be a further mitigating factor.   While Mr Rio apparently impressed the pre-sentence report writer with his remorse for his role in the offending and offered to make amends to the victims through an apology, I do not consider that Mr Rio’s apparent remorse justified any significant increase in the level of discount in his case.  In any event it would have been offset by the uplift

which would have been appropriate for the totality of his offending.

Result

[7] Hessell v R [2009] 450, [2010] 2 NZLR 298 at [63]-[65].

[29]     For the reasons given the appeal is dismissed and in terms of s 121(3)(a) of the Summary Proceedings Act 1957 the sentence is confirmed.

D J White J