Ruka v Police HC Auckland CRI 2009-404-423
[2010] NZHC 384
•12 February 2010
IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY
CRI-2009-404-000423
KELLY CRYSTAL RUKA
Appellant
v
NEW ZEALAND POLICE
Respondent
Hearing: 4 February 2010
Appearances: A Rasheed for Appellant
N J Speir for Respondent
Judgment: 12 February 2010 at 4:00 pm
RESERVED JUDGMENT OF COURTNEY J
This judgment was delivered by Justice Courtney
on 12 February 2010 at 4:00 pm pursuant to R 11.5 of the High Court Rules.
Registrar / Deputy Registrar
Date……………………….
Solicitor: Meredith Connell, P O Box 2213, Auckland
Fax: (09) 336-7629 – N A Speir
Counsel: A Rasheed, P O Box 97057, Manukau, Auckland 2241
Fax: (09) 263-6978
RUKA V NZ POLICE HC AK CRI-2009-404-000423 12 February 2010
[1] Ms Ruka pleaded guilty in the District Court at Manukau to one charge of aggravated assault and one of theft. Judge Epati imposed a sentence of two years imprisonment on the aggravated assault charge and convicted and discharged Ms Ruka on the theft charge. Ms Ruka appeals against the sentence on the aggravated assault charge.
[2] For Ms Ruka, Mr Rasheed, submitted that the Judge made three errors, namely not complying with s 24 Sentencing Act 2002, fixing the starting pont too high and failing to place appropriate weight on the aggravating and mitigating features of the case.
Disputed facts – s 24 Sentencing Act 2002
[3] Ms Ruka maintains that the summary of facts on which she pleaded guilty was incorrect. For reasons I will come to she elected not to proceed to a disputed facts hearing and the Judge sentenced on the basis of the summary of facts. Nevertheless, Mr Rasheed submitted that the Judge erred in not indicating the weight that would be given to the disputed facts in sentencing.
[4] The circumstances of the offending as they are recorded in the summary of facts are:
At about 9.30 am on Sunday 6 September 2009 the defendant RUKA, was at the Tikipunga Hotbread Shop, Whangarei.
Also at the shop was the female shop owner, the named complainant, who was the victim in this matter.
The defendant walked into the store, took two pies from the pie warmer and placed them in a plastic bag. She walked out of the store without paying for them.
The value of the pies if $6.00 and is the property of the Tikipunga Hotbread
Shop (reparation sought).
The victim asked to look in the defendant’s plastic bag. The defendant refused.
An associate of the offender attempted to punch the victim, to enable the offender to leave, but missed.
The offender then punched the victim at least three times in the head and ran off down the road.
When spoken to the police the defendant denied the facts as outlined and stated that the victim grabbed her.
[5] Mr Rasheed filed submissions in advance of sentencing which identified disputed facts. The matter should have proceeded to a disputed facts hearing and that is what the Judge strongly suggested. Mr Rasheed, however, declined that course. The transcript of the exchange between Mr Rasheed and the Judge suggests that Mr Rasheed was never really given the opportunity to explain why he did not want to proceed to a disputed facts hearing. Before me Mr Rasheed explained that he perceived the appropriate end sentence to be about 10 months and that Ms Ruka, having already spent three months in custody, risked serving a longer sentence than was appropriate if the matter was adjourned for a disputed facts hearing. Further, Mr Rasheed had a view that s 24 could still be applied to the extent of the Judge indicating the weight to be given to the disputed facts on sentencing, though this did not seem to be adequately conveyed to the Judge. In any event, it seems clear that, even if the Judge had given such an indication, Mr Rasheed would not have agreed to adjourn the sentencing.
[6] In support of her appeal Ms Ruka filed an affidavit describing the events as she maintained they had occurred. Mr Rasheed indicated that she would be available
for cross-examination. However, it appears that the indication of evidence in support
of the appeal reached the respondent too late to arrange for the complainant to be available to give evidence. Although I adjourned the matter for a day to enable the Crown to try and make the necessary arrangements, it was not possible to have the complainant (and an interpreter) available at the hearing of the appeal. I indicated to Mr Rasheed that if he wished to pursue the assertion that Ms Ruka should have been sentenced on the basis of facts different to those in the summary of facts then the best course would be to adjourn the matter for another date on which the complainant could be available to give evidence. Mr Rasheed, however, wished to proceed with the appeal; his rationale was that by the date of the appeal Ms Ruka has effectively served the equivalent of a ten-month prison sentence which is what he considered to be the appropriate term in any event. It was clear that no real progress on the disputed facts could be made without a resolution of the disputed facts
through the parties giving evidence. I therefore approach the other grounds of appeal
on the basis that the facts are as outlined in the summary of facts.
Starting point
[7] In reaching a starting point of 24 months, the Judge identified three particular factors. The first was that the attack involved actual violence towards the victim’s head. The second was “the presence of an additional offender”. The third was Ms Ruka’s previous convictions. There are obvious difficulties with the latter two factors.
[8] The Judge dealt with these factors in the following way:
[27] I recall that Ruka had pleaded guilty to punching the victim three times on the head. Second, the extent of harm caused by the offending. I have read out the situation with regard to the victim and the victim’s impact report and thirdly the presence of an additional offender. Again, defence counsel disputes that there was an associate involved in the offending and again she had pleaded guilty to the summary to which it says there was an additional person there. These are important and aggravating features which only a disputed facts hearing could have resolved, but the offer was refused…
[35] In terms then of the starting point I prefer for the reasons I have given the Crown starting point of 18-24 months within that, because of the previous convictions and uplift or rather within that range I would say this is 24 months starting point.
[9] The reference to an “additional offender” clearly came from the summary of facts which recorded that:
An associate of the offender attempted to punch the victim, to enable the offender to leave, but missed.
[10] There was no evidence before the Judge (or me) as to who the other person was though I was advised from the bar that it was Ms Ruka’s mother. However, the Crown confirmed that the other person involved was not charged with any offence. There was no suggestion, much less any evidence that Ms Ruka and the other person acted in concert as opposed to the other person simply taking it upon herself to lend assistance. As a result, there is no basis on which to view the presence of another
participant as a factor to be taken into account in setting the starting point for sentencing Ms Ruka.
[11] The second factor that the Judge wrongly took into account in setting the starting point was Ms Ruka’s previous convictions. That was an aggravating feature connected with Ms Ruka rather than to be taken into account in assessing an appropriate starting point for the offence. It is impossible to identify precisely what the effect on the starting point was of the Judge taking into account the previous convictions but it is reasonable to assume that it had a significant impact. This is because the Judge subsequently imposed an uplift of 12 months on the starting point to reflect the previous convictions. This was an obvious instance of double counting which I come to shortly.
[12] Mr Speir submitted that a starting point of 18 months was appropriate, relying in part on the comparable cases of Coombs v Police[1] and R v Te Wani.[2] In neither case was there a specific discussion of the appropriate starting point though Mr Speir submitted that an analysis of the end sentence suggests respective starting points of slightly less than 18 months imprisonment and 18 months respectively. Mr Rasheed submitted that the starting point in Coombs was more likely to have been in the vicinity of the end point, namely 11 months, given that aggravating features would have offset the early guilty plea.
[1] HC DUN CRI-2006-412-000055 13 February 2007 John Hansen J
[2] HC CHCH CRI-2008-409-000154 18 September 2008 Chisholm J
[13] Mr Rasheed submitted that in the present case the assault should be viewed as reactionary rather than unprovoked, momentary and not resulting in any serious injury, and that a starting point of 10-12 months was appropriate. Given that I am proceeding on the basis of the summary of facts and that Ms Ruka has declined the opportunity to have her dispute over those facts resolved in a proper hearing, I approach the issue of the starting point on the basis that the offending was unprovoked and did occur as it is recorded in the summary of facts. The unprovoked and violent nature of the attack is serious but I nevertheless consider that the starting point proposed by the Crown is on the high side and that a starting point to reflect the circumstances of the offending would appropriately be set at 12 months.
Weight given to aggravating and mitigating factors
[14] There were two aggravating factors attributable to Ms Ruka personally. First, the offending occurred only a week after she had been sentenced to intensive supervision on charges of assault with intent to rob and demanding with intent to steal. Secondly, Ms Ruka has some 33 previous convictions, most of which are for dishonesty in the form of shoplifting, theft, burglary and related offences such as assault with intent to rob. Although the Judge identified the first at an earlier stage, when actually applying the uplift he referred only to the previous convictions, which he considered warranted a 12-month uplift.
[15] Mr Rasheed submitted that a 6-8 month uplift for previous convictions was appropriate. However, Ms Ruka’s history is very poor and together with the fact that she was offending so soon after being sentenced on other similar charges means that a 12-month uplift is justified.
[16] Mr Rasheed also submitted that there were mitigating features in addition to the guilty plea that the Judge failed to take into account. These were Ms Ruka’s age (18 years), the fact that she had completed various courses in prison in terms of rehabilitation and her remorse. Mr Rasheed did also rely on the conduct of the victim herself as a mitigating feature but I do not accept that.
[17] Ms Ruka was entitled to, and did, receive a full discount of 33% for the guilty plea and that discount also takes into account remorse, a guilty plea being the best expression of remorse. As a result, the only two factors that might yet be taken into account are Ms Ruka’s age and her efforts at rehabilitation. The Judge did not give any weight to Ms Ruka’s age. The Judge did note defence submissions that previous offending had occurred during a 12-month period while Ms Ruka’s mother was in prison and Ms Ruka was left to fend for herself, living largely on the streets, without means of support but rejected that as a mitigating factor on the ground that these circumstances do not excuse her breaking the law in order to survive. Nor was the Judge prepared to place any weight on assertions that Ms Ruka had initiated steps towards rehabilitation through courses while on remand because he did not regard
the certificate of attendance at the 12-week CARE drug and alcohol course as adequate.
[18] Most unfortunately, the pre-sentence report was inadequate because the Probation Service had received late notice of it being required. The Judge noted this fact but did not seek to obtain a further pre-sentence report or to obtain the pre- sentence report relating to her most recent appearance. Given the matters raised in mitigation it would have been helpful to have obtained more information about Ms Ruka before sentencing.
[19] I intend to place some weight on Ms Ruka’s age and circumstances and allow credit for her completion of the CARE course by way of a reduction of six months. This brings the term of imprisonment to 18 months. Ms Ruka is then entitled to a further reduction of six months to reflect her guilty plea, resulting in a final sentence of 12 months.
Result
[20] The appeal is allowed. The sentence of two years imprisonment is quashed and a sentence of 12 months imprisonment is substituted.
P Courtney J
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