Rongonui v Police

[2017] NZHC 688

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2017-404-044 [2017] NZHC 688

BETWEEN

MAIA RONGONUI

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	10 April 2017
Appearances:	R E Slade for the Appellant M J Mortimer for the Respondent
Judgment:	10 April 2017

ORALJUDGMENT OF MUIR J (SENTENCE APPEAL)

Counsel/Solicitors:

R Slade, Public Defence Service, Auckland

M J Mortimer, Meredith Connell, Auckland

RONGANUI v NEW ZEALAND POLICE [2017] NZHC 688 [10 April 2017]

Introduction

[1]      On 23 January 2017, Judge Paul in the Auckland District Court sentenced Maia Rongonui  to  six  months’ imprisonment.1      Mr  Rongonui  had  pleaded  guilty  to indecently acting with intent to insult,2 and assault.3   The complainants in respect of both charges were prison officers.

[2]      Mr Rongonui now appeals his sentence on the grounds that it was manifestly excessive.

Background

[3]      At the time of both offences, Mr Rongonui was serving a sentence of three years, nine months’ imprisonment at the Hawke’s Bay Regional Prison. That sentence was for burglary, property-related offences and attempted aggravated robbery, and was imposed in the District Court on 11 February 2014.

[4]      The assault on the prison officer happened on 9 August 2016.  Mr Rongonui was in his cell while a prison officer was distributing food to other inmates.  The cell door was open so Mr Rongonui could receive some medication which had been prescribed.  Mr Rongonui wanted to pass some milk powder to another prisoner, but when told he could not, he became agitated and verbally abusive to the corrections officer.  He pushed her hard in the chest with both arms, causing her to stumble back. He then lunged at her, but made no connection.  He was then restrained and locked down. At the time, he commented, “The next time I see you I'm going to smash you over.” There were no physical injuries to the officer as a result of the assault.

[5]      The charge of doing an indecent act with intent to insult happened a few weeks later, on 29 August 2016. While being transferred to a cell that morning, Mr Rongonui

grabbed a female prison officer’s bottom, commenting “Sorry Miss, I couldn’t help

1      Police v Rongonui [2017] NZDC 1053.

2      Crimes Act 1961, s 126; maximum penalty, two years’ imprisonment.

3      Summary Offences Act 1981, s 10; maximum penalty, six months’ imprisonment or a $4,000 fine.

myself.” When spoken to shortly after, Mr Rongonui said “What do you expect? She wanted it, she led me on.”   Mr Rongonui later wrote a letter apologising for his behaviour, saying he was “stressed out” from being housed in that particular jail, and that he wanted to see his family.   It appears that his offending may have been intentional so as to effect a transfer to a prison environment closer to home.

The judgment of the District Court

[6]      The Judge rejected Mr Rongonui’s request that the sentence be concurrent on his existing one. He said that this would “send the wrong message”, and would say to prisoners on fixed-term sentences that they can assault officers with relative impunity.

[7]      Judge Paul noted that the offences were separate incidents, occurring within the same month.   He accordingly adopted a starting point of three months’ imprisonment for the assault on the prison officer and six months’ imprisonment for the indecent act. He considered that a cumulative approach to sentencing was required and reduced the total nine-month sentence by three months, in order to reflect Mr Rongonui’s early guilty plea. That was, of course, a 33 per cent discount.

[8]      The Judge therefore sentenced Mr Rongonui to six months’ imprisonment. He made that sentence cumulative on the existing sentence of three years and nine months’ imprisonment.

Submissions on appeal

Appellant

[9]      For Mr Rongonui, Mr Slade says the sentence of six months’ imprisonment was manifestly excessive because:

(a)       The Judge adopted a starting point for the indecent act charge that was too high; and

(b)The  Judge  failed  to  give  sufficient  consideration  to  the  totality principle, with reference to Mr Rongonui’s earlier sentencing in 2014.

[10]     In respect of the first point, Mr Slade submits that a four month starting point would have been appropriate on the indecent act charge. After taking into account the assault charge, and the guilty plea discount, this should have resulted in an end sentence, he says, of five months’ imprisonment.

[11]     In support of that submission Mr Slade referred me to my own decision in Jury v Police.4   There, the defendant had masturbated under his clothing while his lawyer was attempting to take instructions from him in prison (he had received a custodial sentence the previous day). On appeal against sentence, I observed that a starting point of four to five months’ imprisonment would have been appropriate (the District Court had adopted five months). Mr Slade submitted that the offending in Jury was on a par with Mr Rongonui’s: although the indecent act in Jury, he said, was more offensive, Mr Rongonui’s offending involved physical contact with the complainant.

[12]     In respect of totality, Mr Slade submits that Judge Paul erred in not referring to and adopting the relevant principles in s 85(2) of the Sentencing Act 2002.

[13]     He cited a number of cases in which the Court of Appeal has emphasised that the totality principle applies where there are successive sentences, even when those sentences are not proximate and the events are unrelated.5   Mr Slade says the proper approach would have been for the Judge to ask what the overall sentence would have been if Mr Rongonui had been sentenced on all charges at the same time.  When this is taken into account, Mr Slade says that a sentence of three months cumulative on the existing sentence of three years nine months’ imprisonment would have been appropriate.

Respondent

[14]     For the New Zealand Police Mr Mortimer submits that although the six month sentence fell towards the higher end of the permissible range, it was not manifestly

excessive. He says that the Court is not required to make a reduction for totality in the

4      Jury v Police [2015] NZHC 2587.

5      R v Skelton [2011] NZCA 35 at [33]; Faaleaga v R [2011] NZCA 495 at [22]; R v Nuku [1969] NZLR 343 (CA).

context of prison offending that goes to the maintenance of discipline.6   But even if Mr Rongonui’s previous offending was considered together with his present offending, the overall sentence (four years and three months’ imprisonment) was not manifestly excessive.

Discussion

Starting point for the indecent act charge

[15]     The maximum sentence for an indecent act with intent to insult is two years’ imprisonment.7   There is little sentencing case law in respect of the offence, and the facts of the cases that do exist are not directly comparable to the present offending.

[16]     In Walker v Police,8 the appellant was convicted of an indecent act with intent to insult after he unzipped his trousers in front of his former partner and exposed his genitals.   He repeated several times “I know you want some”, before eventually zipping up his trousers and leaving her house.  The High Court upheld a sentence of three months’ imprisonment on that charge.

[17]     In Jury v Police, as noted above, the appellant masturbated under his clothing in front of his lawyer.  I considered that act was more serious than the offending in Walker and held that a starting point of four to five months was appropriate.

[18]     The present offending is, in my view, more serious again in that it involved a direct violation of the victim’s person by way of actual assault.  Indeed it is possible that, on the facts, an indecent assault charge could have been sustained attracting a significantly higher maximum period of imprisonment9  and a strike warning.10   As Judge Paul commented, the act was very demeaning of the prison officer and Mr Rongonui’s accompanying statement, “Sorry Miss, I couldn’t help myself”, exacerbated its seriousness.   A slightly higher starting point than the four to five

months considered appropriate in Jury was in my view therefore warranted.   The

6      Relying on Tryselaar v R [2012] NZCA 353.

7      Crimes Act 1961, s 126.

8      Walker v Police HC Auckland CRI-2004-404-362, 17 August 2005.

9      Seven years under the Crimes Act 1961, s 135.

10     Sentencing Act 2002, ss 86A-86D.

Judge’s starting point of six months’ imprisonment, while stern, was, in my view, within the available range for such offending, and could not be described as manifestly excessive.

[19]     In particular, the Court was required to recognise in terms of s 9(1)(fa) of the Sentencing Act 2002 that an additional aggravating feature (not present in Jury) was the victim’s status as a Corrections Officer acting in the course of her duty.

[20]     I further note that, after combining the starting points for the indecent act and the assault charges (thus reaching an “overall” starting point of nine months’ imprisonment),  the  Judge  then  reduced  this  by  three  months  to  account  for

Mr Rongonui’s early guilty plea. The resultant sentence reduction of 33 per cent was greater than the 25 per cent limit set in Hessell v R.11

[21]     This means that even if the Judge had adopted Mr Slade’s suggested starting point of four months’ imprisonment, added three months for the assault charge, and then applied the standard 25 per cent guilty-plea discount, the end sentence would have been five months and one week of imprisonment. Again, when this is compared to the actual end sentence of six months’ imprisonment (a difference of three weeks), it could not be said that the sentence Mr Rongonui actually received was manifestly excessive. However, I do not place particular weight on this point as it is arguable that the combined sentence of nine months’ imprisonment should have itself been reduced marginally for totality before adoption of the 25 per cent discount.

Totality adjustment with respect to existing sentences

[22]     I accept the Crown submission that offences committed in prison that go to the maintenance of discipline are less likely to offend the totality principle.  That follows from the Court of Appeal’s judgment in Tryselaar v R where it said:12

Offending in the prison environment, particularly where that offending goes to the maintenance of the discipline needed to effectively manage a penal institution, demands a stern response. That would be seriously undermined if sentences for such offending required adjustment to reflect the fact that the offender is already serving a sentence of imprisonment.

[23]     Although Mr Slade is correct that the offending in Tryselaar itself was very much more serious than that which occurred in this case, the principles established by the Court of Appeal nevertheless have general application to all offending in the prison environment which challenges the maintenance of discipline.

[24]     Although, therefore, the totality principle remains relevant, and it is necessary for it to be considered in each case,13 its impact will be minimised in circumstances where it is appropriate to denounce and deter offending in the prison environment.

[25]     I consider that Mr Rongonui’s offences did go directly to prison discipline, as they were both committed against Corrections Officers acting in the execution of their day-to-day responsibilities.   The challenge to prison discipline was in this sense significantly greater than that involved in the Jury case where the conduct was directed towards the defendant’s own counsel. I agree with Judge Paul’s comments to the effect that management of prisoners is a difficult enough job at the best of times, and it is necessary to send a clear message that assaults on prison officers are unacceptable. Prisoners should not be given reason to believe that even low-level offences committed against such officers will not affect or materially affect their overall sentence.  Although Judge Paul should, as a counsel of perfection, have expressly referred to the totality principle in reaching his conclusions, and explained why on the particular facts of the case he was not making such an adjustment, I do not consider there was material error in failing to make such adjustment in the face of conduct which so directly challenged the maintenance of the discipline necessary effectively to manage a penal institution.

[26]     Further, I accept the Crown submission that the total sentence of four years and three months’ imprisonment for all relevant offending was not disproportionate to its overall gravity.  Mr Rongonui’s previous sentence was three years and nine months’ imprisonment. Given that he was sentenced on multiple charges, including attempted aggravated robbery and ten charges of burglary,14 including in circumstances where there was the very real prospect of direct confrontation with the occupants of the relevant  homes,  that  sentence  was  lenient.    Judge Adeane  said  as  much  when

sentencing him.15  The sentence of three years and nine months’ imprisonment for the earlier offending and  what could be described  as a stern response to  the index offending have a balancing effect in any totality assessment.

[27]     Mr Slade cites Faaleaga v R16 and R v Nuku17 to support his argument that the Court should reduce Mr Rongonui’s sentence on a totality analysis.  Both cases did involve prison offending and in both the Court of Appeal did reduce the second sentence on a totality assessment.   However, I consider that the cases are distinguishable.  Faaleaga v R concerned a death threat in a letter written to persons outside the prison, and thus did not directly engage the concerns later expressed in Tryselaar about offending relevant to the maintenance of prison discipline.  R v Nuku concerned a violent attack on a fellow inmate.  While this did engage institutional disciplinary concerns, there was no mention of the earlier sentence having been lenient, as in this case.

Result

[28]     Accordingly I dismiss the appeal.

Muir J

15 At [7].

16     Faaleaga v R [2011] NZCA 495.