Rua v The Queen

[2019] NZHC 1730

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CRI-2019-485-025

[2019] NZHC 1730

BETWEEN

AROHA ARAMOANNA RUA

Appellant

AND

THE QUEEN

Respondent

Hearing:

17 July 2019

Counsel:

L A Caris for appellant

C T Hislop for respondent

Judgment:

22 July 2019

RESERVED JUDGMENT OF DOBSON J

[1]    On 12 April 2019, the appellant (Ms Rua) was sentenced by Judge Thompson in the Wellington District Court to three months’ community detention and six months’ supervision on one conviction of common assault.1

[2]    Ms Rua has appealed against that sentence, contending that it is manifestly unjust. The grounds for the appeal were cited as error by the Judge in taking into account incorrect matters in assessing the gravity of the offending, that the Judge adopted too high a starting point, and that insufficient credit was given for time spent on restrictive bail conditions with inadequate discount for prior good behaviour and the entry of a guilty plea. The essential thrust of argument on behalf of Ms Rua was that the Judge had ranked the offending as relatively more serious than was justified.

1      R v Rua [2019] NZDC 7406.

RUA v R [2019] NZHC 1730 [22 July 2019]

The factual background

[3]    On the evening of 26 December 2017, Ms Rua posted a Facebook message threatening violence against the victim. The Facebook message indicated that Ms Rua was aware of the victim’s location. The apparent source of antagonism towards the victim was a liaison between the victim and Ms Rua’s partner (or her recent ex- partner) who is in any event the father of one of her children.

[4]    One of Ms Rua’s co-defendants in the charges that followed, Ms Vincent, also used the same Facebook account to warn the victim that they would be seeing her in 15 minutes. With two companions, they drove to a residential address in Porirua where they knew the victim was staying.

[5]    At least three of the four women entered the property and an assault on the victim occurred. Although all four were charged as either principals or parties to the assault, only Ms Vincent was convicted. Ms Rua’s evidence was that she did not enter the property.

[6]    A short time after the altercation at the Porirua house, Ms Rua and her companions were in their vehicle in the Johnsonville area when they observed the victim getting out of a vehicle in front of them. Ms Rua recognised the driver as her then or recently ex-partner. The victim was in the front passenger seat. Ms Rua and her co-defendants claim that they had not followed the victim from the Porirua address at which the first assault had occurred, but rather just happened upon the vehicle by chance. The prosecution questioned the credibility of that statement, given the relatively unlikely route that Ms Rua and her companions would need to have taken to leave Porirua and end up at the location of the second altercation in Johnsonville.

[7]    Ms Rua approached the passenger side of the vehicle. The passenger side window was up but she smashed the window with her fist and then assaulted the victim with blows about the head. Her co-defendant, Ms Vincent, accompanied her but apparently did not take part.

[8]    The victim suffered scratches, marks and bruises on her face, for which Ms Rua acknowledges she was responsible.

[9]Following the assault, Ms Rua sent a further message to the victim:

Ready for another hiding aye koz I’m gona fk you up again n again n again.

[10]Consistently with that message, Ms Rua has shown no remorse subsequently.

[11]   On the morning of the trial of Ms Rua and the three co-defendants on various violence charges arising out of these two incidents, Ms Rua pleaded guilty to a charge of common assault in relation to her attack on the victim in Johnsonville. The other three were acquitted of charges in relation to the Johnsonville incident and only     Ms Vincent was convicted of assault with intent to injure in relation to the first incident in the house in Porirua.

The sentencing

[12]The Judge characterised the offending as having arisen:2

… out of a joint undertaking with your friends, (three other young women) to go and effectively extract vengeance on the female …

[13]   The Judge considered that, at its lightest, the offending was mid-range in terms of seriousness.3 The Judge acknowledged that Ms Rua came before the Court with a good record but he was troubled by her lack of remorse. The Judge acknowledged that could not be treated as an aggravating factor and he recognised that the guilty plea on the day of trial deserved a considerable discount. He also considered credit should be given for time spent on electronically monitored bail. The Judge was in fact mistaken as to the status of Ms Rua’s bail. She had not been electronically monitored, but had been subject to a night time curfew for some five and a half months as a condition of conventional bail.

[14]The Judge observed:

[7] If I had been considering a sentence of imprisonment, I would have thought that somewhere in the range of three to six months’ imprisonment was probably the least that could be expected.

2      R v Rua, above n 1, at [2].

3 At [4].

[15]   The Judge then resisted the invitation of Ms Caris, counsel for Ms Rua, to rank the relative seriousness against comparative cases that had been put to him. The Judge agreed with the pre-sentence report, which cautioned against community work, and adopted instead the recommendation in the report for an electronically monitored sentence plus supervision. Hence the end sentence of three months’ community detention and six months’ supervision.

Arguments on appeal

[16]   Ms Caris sought to rank the assault as less serious than Judge Thompson had. She submitted that the threatening Facebook message before the confrontations began should be dismissed as hollow bravado given that Ms Rua took no part in the assault on the victim at the Porirua house. She submitted that conclusion had to be drawn by virtue of Ms Rua having been found not guilty of being a party to any assault at that location.

[17]   Next, Ms Caris characterised the immediate circumstances of the assault at the car in Johnsonville as a result of Ms Rua irrationally “losing it” when she saw the victim in the company of her partner. She argued that continuation of the obvious enmity reflected in the subsequent message threatening further violence, and Ms Rua’s lack of remorse, should not be treated as circumstances that required the single instance of violence to be rated any more seriously.

[18]   Ms Caris criticised the Judge’s characterisation of this as “a joint undertaking with your friends … to go and effectively extract vengeance on the female”. Ms Caris treated this as ranking the assault more seriously because Ms Rua had the support or participation of some or all of her colleagues, when it was instead a solo effort on her part.

[19]   I am not persuaded that the Judge did treat this assault as any more serious because of the presence of Ms Rua’s colleagues. The reality is that all four of them had travelled to the Porirua address, the outcome of which was an assault with intent to injure by one of them on the victim. That altercation was followed relatively shortly thereafter by an angry confrontation arising out of all four of them being in a car behind the car containing the victim and Ms Rua’s then or ex-partner. Ms Rua

smashed the car window immediately adjacent to the victim and assaulted her, which constitute circumstances of a moderately serious common assault. A balanced assessment of the circumstances should include an acknowledgement of the cumulative impact of both confrontations on the victim. That does not  mean that  Ms Rua’s offending is incorrectly ranked more seriously because of the earlier assault where she has been acquitted of involvement. It is simply the reality of the broader circumstances in which the assault that she committed had occurred.

[20]   The Judge had a thorough appreciation of the context in which the offending had occurred, having presided at the trial of charges in relation to both occurrences. I am not persuaded that he erred in ranking the relative seriousness of Ms Rua’s assault at the car in Johnsonville. I doubt that the Judge did intend that his observation of an appropriate range of prison sentence being between three and six months was to be treated as a starting point. However, on an arithmetical basis that would represent a ranking between 25 and 50 per cent of the more serious types of assault appropriately charged as common assault under the Crimes Act 1961, where the maximum penalty is one year’s imprisonment.

[21]   It is not possible to discern from the sentencing notes the extent of discount allowed by the Judge for Ms Rua’s guilty plea, or for the constraint of a night time curfew whilst on bail. However, in the context of this sentencing, I am not persuaded that constitutes an error on the Judge’s part. Stepping down from possible imprisonment to less restrictive forms of sentence, the Judge agreed with an observation in the pre-sentence report that a sentence of community work should preferably be avoided. That led the report writer to recommend a sentence of community detention plus supervision.

[22]   This was offending that did justify a short sentence of imprisonment as a starting point, before consideration of mitigating circumstances. As Ms Rua’s remand was on conventional bail, she was not entitled to credit which would have been the case had she been on electronically monitored bail. Nonetheless, it was appropriate to allow a meaningful credit for the extent of restraint she was subjected to by the curfew imposed. In tempering the extent of that credit, Ms Hislop for the Crown advised that Ms Rua had not been compliant with her bail conditions. She was arrested

for breach of the curfew on three occasions and failed to appear in court on four occasions.

[23]   As to credit for the guilty plea, the Judge acknowledged that Ms Rua would be entitled to “some discount” where the plea was entered after the jury had been empanelled on the morning of trial. Ms Rua was vindicated in going to trial on the remaining charges she faced. The Crown case against her on the charge of common assault in relation to the Johnsonville altercation appears to have been a strong one. Relative to the maximum discount of 25 per cent contemplated by the Supreme Court in Hessell v R,4 the appropriate extent in this case would be near the bottom end, and I would put it at approximately seven per cent.

[24]   Ms Caris also submitted that the Judge should have afforded a discrete credit for Ms Rua’s previous good character. Ms Rua has previous convictions in 2010 and 2017 for obstructing or hindering the Police and resisting Police. On the first occasion, she was convicted and discharged and on the second occasion she was convicted and required to come up for sentence if called upon within nine months. Those are not relevant as an aggravating factor but substantially reduce the prospects of obtaining a credit for previous good character as a mitigating circumstance. Separately, her complete lack of remorse maintained throughout cannot be treated as an aggravating factor. However, an unapologetic preparedness to resort to violence in the circumstances Ms Rua has does her no credit at all, so could be taken into account as a factor further reducing the extent to which she should be entitled to credit for good character.

[25]   In contrasting a less restrictive alternative sentence than home detention with a possible starting point of imprisonment, the same arithmetic calculation is not available in making the comparison. Within the same form of sentence, I would consider it appropriate to allow a discount of, say, 10 to 15 per cent for the restrictive bail conditions, and seven per cent for the late guilty plea. Having given credit to those extents, I would not be persuaded that any residual previous good character that might be recognised would warrant a further reduction.

4      Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.

[26]   The remaining ground of challenge was that the end sentence was more severe than comparable cases. Ms Caris cited three appeals in cases of common assault which she submitted ought to require a more lenient sentence in the present case.5 Ms Hislop pointed to features of each of those cases that she submitted justified a starting point for the present offending of three to six months’ imprisonment. After debating points of comparison and difference, counsel were inclined to agree with me (and the sentencing judge) that such comparisons did not assist. I do not treat the outcomes in each of those appeals as inconsistent with the final sentence imposed in the present case.

[27]   A further concern on comparability that Ms Caris raised was that the co- defendant, Ms Vincent, was sentenced to supervision for the more serious conviction of assault with intent to injure and where, on Ms Caris’s analysis, Ms Vincent had more previous convictions. Although it was originally intended that they be sentenced together, Ms Vincent’s sentencing was adjourned and occurred sometime later.

[28]   Ms Hislop did not accept that there was any material inconsistency. I did not have the details of Ms Vincent’s circumstances  or  terms  of  the  sentencing,  but Ms Hislop suggested that she was dealt with more leniently than might otherwise have been the case because there was not a suitable address at which to serve an electronically monitored sentence.

[29]   I am not left with a concern that there is any lack of relativity which would justify revisiting the sentence imposed on Ms Rua.

[30]   In the end, on sentencing for this offending and dealing with the circumstances of this offender, and given the range of alternatives available to the sentencing Judge, I can find no error in the outcome of three months’ community detention as well as six months’ intensive supervision (this latter aspect of the sentence was not under challenge).

5      Gilbert v Police [2013] NZHC 1562; Mareraki v Police [2015] NZHC 161 and Fakava v Police

[2016] NZHC 753.

[31]   Ms Caris was concerned at the delay between the filing of the appeal, and Corrections’ agreement to suspend Ms Rua’s sentence of community detention. In the end, as I have not found any error in the sentence imposed, the extent to which the period of community detention has already been served does not assume relevance.

[32]The appeal is dismissed.

Dobson J

Solicitors/Counsel:

L Caris, Wellington for appellant

Crown Solicitor, Wellington for respondent