Ripia v R

[2011] NZCA 101

IN THE COURT OF APPEAL OF NEW ZEALAND

CA802/2010
[2011] NZCA 101

BETWEEN  CLAYTON PETER BOYD RIPIA
Appellant

AND  THE  QUEEN
Respondent

Hearing:         22 March 2011

Court:             Randerson, Simon France and Lang JJ

Counsel:         W D McKean for Appellant
M D Downs for Respondent

Judgment:      28 March 2011 at 11.30 a.m.

JUDGMENT OF THE COURT

The appeal against sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Simon France J)

Introduction

1. Mr Ripia appeals a sentence of imprisonment of two years and two months imposed on a charge of wounding with intent to injure.[1]  The victim was his de facto partner.  There is no challenge to a starting point of two years and three months’ imprisonment, but issue is taken with an uplift of 12 months to reflect previous offending.

Facts and sentencing

[1]      R v Ripia DC Whangarei CRI-2010-088-3297, 12 November 2010.

1. The offending occurred at the address at which the victim was living.  There was a party of sorts, and Mr Ripia was present.  He was intoxicated.  The victim had been outside on the balcony.  When she came inside to where Mr Ripia was in the kitchen, without warning or provocation, he punched her in the mouth.  This dislodged teeth, and as she fell, Mr Ripia punched her again in the mouth.  The victim was left to spit her teeth out onto the floor.

2. Judge Duncan Harvey identified several aggravating factors: the attack was to the head and one of the punches was as the victim was falling; Mr Ripia had just recently been released from prison for an earlier assault on the same victim; the victim was in a relationship with Mr Ripia and entitled to protection, not violence; and there was no provocation of any sort.  Indeed it appears that the couple had enjoyed a happy day together prior to this.

3. As noted, Judge Harvey took two years and three months’ imprisonment as the starting point.  This was expressed to include all the aggravating features of the offending.  Twelve months were then added to reflect a long list of convictions and the fact of past violence on the same victim.  A one third discount for an early plea was then applied.

4. Concerning the previous convictions, it can be noted that five of these involved assaults on the same victim.  The last occasion had led to an eight month jail term.  These assaults have persisted over a number of years and despite various sanctions.  The offending had occurred in 2006, 2007, 2008 (x2), 2009, and now the present assault in May 2010.  In total, Mr Ripia has around 90 previous convictions for a wide variety of offending.  Over the last 20 or so years he has been sentenced to imprisonment on nine separate sentencing occasions.

Appeal submissions

1. Mr McKean submits that a one year uplift, being 44 per cent of the starting point, was excessive.  He does not dispute that some uplift was justified but challenges the quantum.  It is submitted that an uplift of this size is akin to resentencing for previous convictions, for which penalties have been already imposed and served.

2. In addition to this general challenge, it is submitted that Mr Ripia’s personal circumstances did not merit an increase of that size.  The last offence on the complainant had been met with an eight month sentence, so it is not possible to justify a 12 month uplift. Such an uplift is the equivalent of half the maximum penalty available for male assaults female, a factor which again is submitted to point to it being excessive.  Finally, although Mr Ripia’s previous conviction list was substantial, the recent offending was not sufficiently serious to merit this level of increase.

3. The Crown submissions are reflected in the Court’s decision.

Decision

1. The first ground of appeal is said to involve an error of principle, namely that there is a fixed limit to the available size of an uplift for previous convictions.  No figure is suggested, but 44 per cent is said to be above it.

2. We do not agree there is a rule that should be laid down.  Section 9(1)(j) of the Sentencing Act 2002 says that previous convictions must be taken into account, having regard to their seriousness and their relevance to the present sentencing exercise.  The extent then to which such convictions are taken into account, and the manner in which they are taken into account, is a matter initially for the sentencing judge.  On appeal, an assessment of the judge’s evaluation will inevitably take place within the context of an inquiry into whether the final sentence is of an available type, and if so, whether it has been shown to be manifestly excessive.  No specific rules can or should be prescribed.

3. The present case illustrates the point.  Concerning the offending itself, one could identify these factors:

   (a)it was unprovoked;

   (b)it involved two heavy punches to the face;

   (c)one of the punches was inflicted as the victim was falling from the first blow;

   (d)it loosened teeth from her mouth, and eventually she permanently lost five;

   (e)by his plea Mr Ripia accepts he intended to injure the victim, an offence carrying a maximum term of ten years’ imprisonment;

   (f)this conviction is Mr Ripia’s sixth for assaulting this person.

4. Concerning Mr Ripia himself, the aggravating factors are:

   (a)the offending occurred just eight days after he was last sentenced to imprisonment for assaulting her;[2]

   (b)although released from custody, Mr Ripia was still subject to the recent sentence;

   (c)Mr Ripia has the bad criminal record previously described.

   [2]Eight days earlier Mr Ripia had been sentenced to eight months’ imprisonment for assault.  The time he had spent on custodial remand meant he was entitled to immediate release.

5. The sentencing Judge put all those factors into the starting point, other than the fact of previous assaults on the victim, and the criminal record.  Given that, we consider a starting point of less than quarter of the maximum for this offence was, if anything, lenient.  The charge is important.  This was not male assaults female.  Mr Ripia intended to injure his partner and he did so.

6. Against what might be seen as a low starting point, 12 further months for aggravating factors was not excessive.  The consistent pattern of assault against his partner called for a sentence involving significant individual and general deterrence.  Mr Ripia’s overall previous offending also needed to be marked out, but we suggest his conduct in relation to this particular victim is the more significant contributor.

7. Finally, in terms of the point of principle initially raised, we note that many judges might well have treated the identity of the victim, and the fact of persistent offending against the same victim, as matters to be included in the starting point.  If that were done, then obviously the size of the uplift would decrease correspondingly, and the percentage figure that troubles the appellant would be smaller.  It is for this reason that this Court has consistently observed that sentence appeals will almost always turn on a consideration of whether the final outcome is manifestly excessive.  The route by which the judge reached that outcome will be relevant to the analysis, but seldom in itself pivotal.

8. The appeal is dismissed.

Solicitors:

Webb Ross, Whangarei for Appellant
Crown Law Office, Wellington for Respondent