Rio v Police HC New Plymouth CRI-2011-443-033

[2011] NZHC 1002

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI-2011-443-033

PAULA DEE RIO

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         16 August 2011

Appearances: P Keegan 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: ………………….

Counsel:            P Keegan, New Plymouth: [email protected]

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

P RIO V NZ POLICE HC NWP CRI-2011-443-033 26 August 2011

[1]      Paula   Rio   appeals   against   her   sentence   of   two   years   six   months’ imprisonment imposed in the District Court at Hawera on 22 June 2011 on two charges of aggravated burglary under ss 232(1)(a) and 66(2) of the Crimes Act 1961 for which the maximum penalty is 14 years’ imprisonment.

Offending

[2]      The charges arise out of incidents that occurred on 10 and 11 December 2010 when Ms Paula Rio accompanied her cousin, Ms Fiona Rio, and her cousin’s son, Mr Dallas 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 the three associates entered the dwelling at the address. Ms Paula Rio assisted with the search for the person whom Ms Fiona Rio was seeking to locate.  Ms Fiona Rio then began to punch her victim from the previous day with her closed fist, punching her about the right side of the face where she was already bruised and swollen.  It is estimated that she was punched half a dozen times. She 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 next day the three associates returned to the same address.  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.

Personal background

[5]      The pre-sentence report on Ms Paula Rio indicates that she is 42 years old and a member of the Ngati Ruanui Iwi.   She was living with her sister and her sister’s two daughters.   Ms Rio was in receipt of a domestic purposes benefit and

spent her time with her children or doing work around the home.   She had an outstanding fine of $385 from 2007.  As well as spending time at her marae, she reported she was active in the community playing netball.   She did not have an alcohol or drug or gambling problem.

[6]      As far as the offending was concerned, Ms Rio’s explanation was that she was picked up by her cousin and was not aware of her associates’ intentions.   It appears that to some extent loyalties clouded her judgment.  She reported that she had tried to stop her cousin going to the address and had tried to leave it.   She appeared genuinely remorseful and said she was “disgusted by the offending, particularly  in  regard  to  the  children”.     She  accepted  that  there  would  be consequences for her actions.

[7]      Her criminal history is minimal.  Her only previous conviction is for driving with excess breath alcohol in 2006.

[8]      No  rehabilitative  needs  were  identified  as  factors  contributing  to  the offending.  Her risk of re-offending was assessed as low.  She had been the subject of bail conditions since the offending that included a night-time curfew.  She had not appeared on breach of those conditions.

[9]      A home detention appendix was attached to the Report which recommended community detention and community work.

Impact on victims

[10]     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

[11]     The District Court Judge sentenced the three associates at the same time on

22 June 2011.  His decision insofar as it related to Ms Paula Rio is set out in the following paragraphs from his sentencing notes:

[16]     You, Paula, 42 years of age.  You have responsibilities to daughters aged 15 and 18 years and you have recently taken up occupation in Hawera with your sister.  You are currently on a domestic purposes benefit and were, until recently, employed at the local supermarket. You are active within your community playing netball.  You claim, at interview, to be unaware of your co-offenders ultimate intentions.  You claim that to the point the author has concluded that family loyalties may have clouded your judgment.  You state also you tried to calm things down and get them to leave the address.  You appear genuinely remorseful and recognise consequences will follow.  I am reminded that you have been subject to bail conditions since the offending. Those conditions included a night time curfew.  You have not appeared, on any occasion, to breach.   You are of course upset about the possibility of imprisonment – the recommendation of community work and community detention is widely astray of the mark.

.....

[20]      Mr Keegan was short and to the point.  He positioned you, Paula, at the  lowest  end  of  the  spectrum.    He  asks  me  to  have  regard  to  your positioning there  as  a possible  basis  on which to  fashion  around you  a sentence that would see you remain in the community.  The sentencing start point, he acknowledged, of about three years he submits would not preclude that.  He reminds me, as I have already noted, that you were simply there present.  You do not appear to feature largely in the recitals, and I am asked also to have regard to your adherence to bail conditions, your responsibility to your children, again, when fashioning that sentence.

.....

[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.

.....

[28]     Aside from those factors that I have identified as being peculiar to you, Fiona, the others are relative to each offender.  Taking the start point on sentence on the chronological first aggravated burglar, 9 December 2010, I intend to adopt a start point on sentence of four and a half years imprisonment.   In relation to each of you, however, you all returning the following day as a unit, where despicably the focus is now ultimately on a

17 year old boy, you Dallas again armed with the same weapon, I elevate that start point by a further six months to fashion for each of you a start on

the aggravated burglaries of five years’ imprisonment.  This was, after all, an

on-going campaign, probably orchestrated by you, Fiona, but against a back drop of Black Power associations.  It was truly a frightening experience for the victims.

.....

[32]      In relation to you, Paula, adopting the same start point of five years’ imprisonment I allow you the 25 percent concession to reflect your guilty plea.   I thus have an end sentence, theoretically, of three years and nine months allowing you that full one-quarter concession.  With you, you have no prior convictions and your part within this unsavoury activity was at a lesser level than your two co-offenders.  I will reduce that sentence to reflect the following considerations – your lack of previous convictions and the fact that you applied yourself to those restrictive bail terms with no breaches at all.

[33]     I thus fashion for you an end prison sentence on the two charges of aggravated burglary, two years and six 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.

Submissions for Ms Paula Rio

[12]     For Ms Paula Rio, Mr Keegan submitted on appeal that:

(a)      The starting point of five years’ imprisonment adopted by the District Court Judge was too high and gave insufficient credit for Ms Rio’s “comparatively minor role” in the offending.

(b)      Insufficient  credit  was  also  given  for  Ms  Paula  Rio’s  personal

circumstances, her previous good character, insight and remorse.

(c)      A sentence of two years or less ought to have been arrived at in all the circumstances and then consideration  given to  the strong case for home detention.

[13]     Mr Keegan submitted that the decisions in R v Williams, Maxwell v Police and R v Mako1  referred to by the District Court Judge should be distinguished on their facts, the decision in R v Mako was a tariff decision for aggravated robbery not aggravated burglary, and that the decision in R v Watson,2 which involved aggravated burglary, should be distinguished.

[14]     He further submitted that the aggravating features of the offending identified by the District Court Judge in [26] of his sentencing notes did not justify a starting

point of five years’ imprisonment.

1 R v Williams CA220/01, 20 March 2002; Maxwell v Police HC New Plymouth CRI-2009-443-006,

4 March 2009; and R v Mako (2000) 17 CRNZ 272 (CA).

2 R v Watson CA224/03, 24 October 2003.

Submissions for the Crown

[15]     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 the sentence adopted in relation to Ms Paula Rio was available and appropriate.

(b)Taking into account the mitigating factors and personal circumstances identified by the District Court Judge, all available concessions under the relevant law and legislation were afforded to Ms Rio and the extent to which they were afforded was appropriate.

(c)      The principles and purposes of sentencing were properly considered, weighed and factored into the sentencing exercise so that the final sentence imposed was the least restrictive available in all the circumstances of the case.

Appellate approach

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

New Zealand Police.3

Sentencing for aggravated burglary

[17]     The correct approach to sentencing on a charge of aggravated burglary is to be drawn from decisions of the Court of Appeal, in particular R v Mako, R v Rua4 and R v Watson.

[18]     In R v Mako, the guideline decision for a charge of aggravated robbery, the

Court of Appeal said:

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

4 R v Rua CA58/02, 24 October 2002.

[34]     The range of conduct that can constitute aggravated robbery is very wide. In addition to the essential elements of the offence, in each case there will be features, themselves widely variable, that will contribute to or detract from the seriousness of the conduct and the criminality involved. It is the particular combination of these variable features which requires assessment for sentencing in each case. Once the seriousness of the particular combination of features is assessed and a starting point reached, it will be necessary to consider whether overall the crime is aggravated or mitigated by the offender’s particular personal circumstances such that the sentence to be imposed should be higher or lower than the starting point. We emphasise to  dispel  any doubt that in  this  context  a starting point  is the  sentence considered appropriate for the particular offending (the combination of features) for an adult offender after a defended trial.

.....

[58]     Forced entry to premises at night by a number of offenders seeking money, drugs or other property, violence against victims, where weapons are brandished even if no serious injuries are inflicted would require a starting point of seven years or more. Where a private house is entered the starting point would be increased under the home invasion provisions to around

10 years.

[19]     In R v Rua, the Court of Appeal said:

[13]     The appellant was convicted of aggravated burglary. The burglary comprised entry and theft accompanied by violence to extort what was to be stolen (s240A Crimes Act 1961). It became aggravated because the appellant was armed with an offensive weapon. It must however be borne in mind that the seriousness of the conduct which amounts to aggravated burglary, like that of aggravated robbery, can vary considerably in the particular circumstances. In Mako the Court emphasised that in cases of aggravated robbery it was the particular combination of the variable features that had to be assessed by the sentencer in each case.

[14]     In this case there was little in the way of planning or preparation behind the offending. The agreed statement of facts does not record the intentions of the appellant as to how drugs would be acquired. The appellant and those with him did wear swan dries with hoods and used them on entry to disguise their appearance but the offending could not be categorised as a sophisticated incident of burglary. In particular, the weapon used on the victim was one available at the scene and not taken with the group into the house.

[20]     In  R  v  Watson,  where  it  was  held  that  the  Mako  principles  are  equally applicable to a charge of aggravated burglary, the Court of Appeal said:

[27]      In relation to the starting point of 10 years’ imprisonment, whilst this can  be  seen  at  the  high  end  of  the  available  sentencing  range,  it  is nevertheless within range.  In R v Rua (CA58/02, 24 October 2002), a case involving the crime of aggravated burglary, this Court referred with approval to  the  10 year  starting point identified in  Mako  for  the  offending there

identified,  and  emphasised  that  it  is  “the  particular  combination  of  the variable features” that have to be assessed by the sentencer in each case in fixing start and end points for sentence. Although Mako was concerned with cases of aggravated robbery, the principles expressed therein are equally applicable to the crime of aggravated burglary.   Both carry the same maximum penalty of  14 years  imprisonment  and  have  similar elements. Although an aggravated robbery may not necessarily involve intrusion into premises, an aggravated burglary inherently does.   Where that intrusion is into  a  private  dwelling  house,  that  is  an  aggravating  factor.    It  was  so regarded by the courts prior to enactment of the home invasion legislation and is now expressly listed as an aggravating factor in the Sentencing Act

2002.

[28]     Given the common features of crimes of aggravated burglary and aggravated robbery, the guidance in Mako is useful by analogy.   In the present case the facts in Rua also provide useful contrast with the facts in the appellant’s case.  In Rua the starting point of 10 years imprisonment adopted by the sentencing Judge was found to be too high and an appropriate starting point determined as 8 years imprisonment.  However, this was on the basis that none of the offenders had taken any weapon to the house to be used as such, and the burglary only occurred after an impulsive act of violence by the appellant which was not planned.

[21]     The Court of Appeal decisions in Watson, Rua and Williams, cited to me in written submissions and in the course of argument, contain important statements of principle, but it is necessary to recognise that those cases were decided under the regime of increased penalties for home invasion.  Under that regime the maximum penalty for such offending had been increased to 19 years’ imprisonment (rather than the current 14 years) as a result of the Crimes (Home Invasion) Amendment Act

1999. That legislation was, however, repealed by the Sentencing Act 2002. The starting points and end sentences in those cases are, therefore, not comparable to the current case.

[22]   While the fact that offending took place within a dwelling-house is an aggravating factor under s 9(1)(b) of the Sentencing Act 2002, it is unlikely to have the same effect as under the previous legislation.  For present purposes relevant recent cases include:

(a)      R v Patrick:5    a separated husband went to his wife’s home heavily

intoxicated with a metal pipe. The offender broke into the house and menaced his wife, children in the house terrified. No actual violence

5 R v Patrick [2008] NZCA 115.

was inflicted, no property taken and the attack was of a short duration. The Court of Appeal suggested a starting point of between three years six months and four years.

(b)R v Shirley:6    The offender went to an address where a number of people resided (including a young baby) with a baseball bat and attempted to hit occupant with it, the offender was disarmed and sent away. Returned with accomplice, both armed. Gained entry, destroyed property and threatened occupants, when they retreated into a room, they smashed  at  the  door before leaving because the police were called. The Court of Appeal approved a starting point of three years six months’ imprisonment.

(c)      R  v  Horrie:7      Two  charges  of  aggravated  burglary.  On  the  first occasion the offender went to the victim’s home armed with a knife. He tied the victim’s hands and feet with ties he had brought to the house and threatened the victim. On the second occasion, four days later, he forced his way into the same victim’s house and attacked the victim, severely beating him with a cricket bat.   The offences were sentenced separately but the Court of Appeal indicated that a starting point for the two charges would have been around six years’ imprisonment.

(d)R  v  Pani:8      aggravated  robbery  and  assault  with  a  weapon.  The offender and co-offender smashed their way into the victim’s home and then his bedroom with a baseball bat. Repeatedly struck victim about the head and upper body while asking about drug money. Took victim to ATM before returning to house and taking property. The

Court of Appeal upheld a starting point of seven years’ imprisonment.

6 R v Shirley [2009] NZCA 216.

7 R v Horrie [2010] NZCA 51.

8 R v Pani [2011] NZCA 45.

(e)      Kahotea v New Zealand Police:9    The offender drove to an address with  two  associates  whom  he knew to  be armed. They entered  a building through the open front door and took several items. The garage was then searched and two of the occupants of the house were found cultivating cannabis in the roof.   The occupants were pulled down and threatened with a weapon by the associates, who took some cannabis plants. The offender remained outside the garage, but took a digital camera. One of the occupants said they would call the Police and the group left. The High Court considered a starting point of three years six months was appropriate.

[23]     Mr Keegan also cited Maxwell v Police where it was held that a starting point of three years six months’ imprisonment was appropriate for offending in which Mr Maxwell, who was to some degree under the influence of alcohol, smashed his way into a residence with a crowbar and threatened male adult occupants but where no actual injury or taking of property occurred.

[24]     A starting point for a charge of aggravated burglary involving the aggravating features identified in Mako and Watson is likely to be higher than the starting point for a charge of burglary under s 231(1)(a) of the Crimes Act 1961 for which the maximum penalty is 10 years’ imprisonment: cf Guest v New Zealand Police.10

Present case

[25]     Following the approach of the Court of Appeal in Mako, Rua and Watson in Ms Paula Rio’s case, it is clear that the aggravating features of her aggravated burglary offending were:

(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);

9 Kahotea v New Zealand Police HC Tauranga CRI-2011-470-18, 15 August 2011.

10 Guest v New Zealand Police HC Whangarei CRI-2010-488-0063, 24 March 2011 at [14]-[21].

(c)       the relatively serious harm caused to the victims of 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)       the presence of multiple offenders; and

(g)      the repetition of offending against the first victim.

[26]     As far as the mitigating factors relating to Ms Paula Rio’s offending are concerned, I do not overlook that she did not instigate the offending and that she played a lesser role than either of her associates, but the fact remains  that she participated in the offending on both occasions.

[27]     In these circumstances a starting point of over five years’ imprisonment for the two charges of aggravated burglary 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 therefore not outside the appropriate range.

[28]     Turning then to the mitigating factors relating to Ms Paula Rio herself, I note first that there was no suggestion that the District Court Judge had not correctly identified the relevant factors in her case in [32] of his sentencing notes, namely:

(a)       her guilty plea;

(b)      the absence of prior convictions for offences of this nature; and

(c)       her compliance with her restrictive bail conditions.

[29]     For these factors the District Court Judge gave a total discount of 50%.  In my view this discount was generous and did not result in a sentence that could be described as “clearly excessive” or “inappropriate”.

Result

[30]     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