Ru v Police

[2013] NZHC 1456

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2013-404-75 [2013] NZHC 1456

BETWEEN  TAKU RU Appellant

ANDPOLICE Respondent

Hearing:                   17 June 2013

Appearances:           P I Pati for Appellant

E Rutherford for Respondent

Judgment:                18 June 2013

JUDGMENT OF COOPER J

This judgment was delivered by Justice Cooper on

18 June 2013 at 10.00 a.m., pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date:

Solicitors:

Public Defence Service, Manukau

Crown Solicitor, Auckland

RU v POLICE [2013] NZHC 1456 [18 June 2013]

[1]      The  appellant,  Mr  Ru,  was  charged  with  threatening  behaviour  under s 21(1)(a) of the Summary Offences Act 1981.   That offence carries a maximum potential penalty of three months’ imprisonment or a fine not exceeding $2,000.

[2]      Mr Ru had been bailed to appear in the District Court at Manukau for a defended hearing on 11 February 2013.  However, he did not appear on that date and the matter proceeded by way of a formal proof hearing.   The Judge was plainly influenced by the fact that the police witnesses (they were the complainant and a police officer) were present and the prosecution was ready to proceed, whereas there was no explanation of Mr Ru’s failure to appear.

[3]      Mr Pati appeared for the defendant in the District Court and advises that he asked the Judge to issue a warrant for the arrest of Mr Ru.   He hoped that if a warrant were issued he would be able to leave the Court, locate Mr Ru and secure his attendance there later that day when the matter could proceed.  However, the Judge directed that the matter proceed immediately.

[4]      Having  heard  the  evidence,  the  Judge  convicted  Mr  Ru  and  imposed  a sentence of 80 hours’ community work.  In this appeal, the appellant maintains that the Judge should not have proceeded by way of formal proof, that the Judge should have discharged Mr Ru without conviction, and that the sentence of 80 hours’ community work was clearly excessive.

[5]      The  prosecution  case  was  that  on  17  June  2012  Mr  Ru  had  threatened Ms Moeroa Makiatea because her son had broken his daughter’s cell phone and threatened to harm her.  The case was that Mr Ru went to the complainant’s home and demanded that her son make a payment of $300 for reparation.   When the complainant asked him to leave, he refused and made various threats.

[6]      The complainant’s evidence referred to Mr Ru having said that “he wanted to fucking smash my son up”, that he was “going to smash my company truck”, and that he was “going to get his boys to come and beat us up at home, smash our house up, and who else was in the house”.

[7]      The Judge found that the prosecution case was proved.  According to Mr Pati there was then a discussion in which the possibility of a discharge without conviction was canvassed and Mr Pati sought an adjournment of the sentencing renewing his request that Mr Ru be arrested.  However, he candidly conceded that he could not “entrirely recall the full details of the discussions”.

[8]      In his brief sentencing remarks the Judge noted his opinion that the offending

involved what had been “quite a serious and very threatening situation”.  He said:

[3]       The defendant has been convicted in his absence because he did not turn up today on a charge of threatening language.   It was extremely threatening and must have been rather a frightening situation for the complainant, who had a number of family members in the house, including three grandchildren.  There were threats to damage not only motor vehicles, but the house itself and in my view that is serious offending, which is not able to be dealt with simply by way of a fine.

[9]      He then imposed the sentence of 80 hours’ community work.

[10]     There is no doubt that the Judge was able to deal with the matter by way of a formal proof hearing under s 61 of the Summary Proceedings Act 1957.  In deciding to take that course, the Judge was obliged to have regard to whether it was in the interests of the due administration of justice to proceed in that way.[1]

[1] R v van Yzendoorn [2002] 3 NZLR 758 (CA) at [18].

[11]     According to Mr Pati he was able to locate Mr Ru after the matter had been dealt with by the Judge and Mr Ru told him that he had simply made a mistake as to the date on which he was due to appear.   However, insofar as the Judge was concerned, there had been no explanation provided for the non-appearance.  Given the presence of the prosecution witnesses as well as counsel for Mr Ru, and having regard to the fact that the offending was not such as would warrant a custodial sentence, I do not consider that the Judge’s decision to proceed under s 61 can be impeached.

[12]     I note also that there is in fact no evidence that Mr Ru failed to appear

because he had mistaken the date.   I accept Mr Pati’s assurance that that is what

Mr Ru told him after the event, but in order for that to be influential on appeal there would need to be evidence to that effect and there is none.

[13]    Mr Pati further submitted that the Judge had failed to comply with his obligations under s 11(1) of the Sentencing Act 2002 because, having found Mr Ru guilty,   the   Court   should   have   considered   whether   Mr Ru   would   be   more appropriately dealt with by a discharge without conviction under s 106, or convicting and discharging him under s 108.2    I accept that there is no written record that the Judge turned his mind to those possibilities.  However, it is clear from his decision that he thought the offending warranted formal conviction and the imposition of a sentence of community work.   I accept, as Mr Pati submitted, that Mr Ru had not

been before the courts since 2005, but there was a substantial list of offences committed prior to that date, including for assault, threatening behaviour, and breaches  of  periodic  detention.    I do  not  consider  that  it  can  be  said  in  these circumstances that a discharge, with or without a conviction, was indicated.

[14]     The final issue raised on appeal was an argument that the sentence itself was manifestly excessive.  This was advanced on the grounds that there were matters that stand to Mr  Ru’s credit, which in the circumstances of his non-appearance had not been able to be taken into account.  Mr Pati referred to the decision of the Court of Appeal in R v Monkman in which it was said that: 3

Whether a sentence can be said to be manifestly excessive turns on the maximum  sentence  prescribed  by  law  for  the  offence;     the  level  of sentencing customarily observed with respect to that offence;   the place which  the  conduct  in  question  assumes  on  the  scale  of  seriousness  of offences of that type;  and the personal circumstances of the offender (to the extent that they are relevant with respect fo the particular kind of offending).

[15]     Mr Pati contended that the Judge had “arguably” not considered s 8(g), (h) and (i) of the Sentencing Act.  These refer respectively to the imposition of the least restrictive outcome that is appropriate in the circumstances, the obligation to take into account the particular circumstances of the offender, and the obligation to take into account his personal and whanau background in imposing the sentence with a

rehabilitative purpose.  I accept that the extent to which such matters were taken into

2      Sentencing Act 2002, s 11(1)(a) and (b).

3      R v Monkman CA445/02, 3 March 2003 at [6].

account  is  likely  to  have  been  circumscribed,  having  regard  to  Mr Ru’s  non- appearance and the position in which Mr Pati was left in endeavouring to address the appropriate sentence on the day.

[16]     However, an appeal such as the present was the occasion for bringing to this Court’s attention matters that ought to have been taken into account under s 8.  The only matters advanced by Mr Pati were the comparatively lengthy period for which Mr Ru has not offended going back to 2003, the fact that he has worked to provide for his family and that he is evidently successful as a musician.  I am not persuaded that any of these matters can establish that the sentence imposed here was manifestly excessive.   I do not consider that there were in fact any personal circumstances which would make a sentence of 80 hours’ community work disproportionately severe or otherwise in breach of relevant sentencing principles.

[17]     In the circumstances the appeal is dismissed.