Rule v The Queen
[2011] NZCA 51
•7 March 2011
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA462/2010 [2011] NZCA 51 |
| BETWEEN RIKI JAMES RULE |
| AND THE QUEEN |
| Hearing: 23 February 2011 |
| Court: Arnold, Gendall and Allan JJ |
| Counsel: Q C J Hix for Appellant |
| Judgment: 7 March 2011 at 2.30 pm |
JUDGMENT OF THE COURT
A Leave to appeal out of time is granted.
BThe appeal against the order of a minimum period of imprisonment is dismissed.
REASONS OF THE COURT
(Given by Gendall J)
The appellant received an effective sentence of six years three months’ imprisonment, being five years three months for aggravated robbery and one year cumulative for multiple other offending, in the District Court at Timaru. Judge Crosbie imposed a minimum period of imprisonment of three years six months.[1] The appellant appeals only against that order.
[1] R v Rule DC Timaru CRI-2010-076-0175, 27 May 2010 at [67].
The appeal is out of time and leave is necessary. This is not contested by the Crown and leave is granted.
The appellant was sentenced on 23 charges comprising:
(a)Between 26 November 2009 and 5 January 2010
· burglary (x2);
· theft (x9);
· unlawfully interfering with a motor vehicle;
· unlawfully taking a motor vehicle (x2);
· Unlawfully taking a bicycle.
(b) On 27 January 2010
· aggravated robbery with a firearm;
· presenting a firearm at a police officer;
· unlawfully taking a motor vehicle;
· failing to stop when required by police;
· dangerous driving;
· assault using a motor vehicle as a weapon;
· dangerous driving causing injury.
(c) On 21 January 2010
· breach of parole having been released on six months’ parole on 11 November 2009.
Background
As can be seen, the appellant’s crimes can be divided into separate periods. He had just been released on parole after a sentence of three years six months’ imprisonment on a charge of wounding with intent to cause grievous bodily harm, when he engaged on a spree of burglary and other offences between November 2009 and January 2010. These occurred in or near the small seaside community of Pleasant Point in the South Island. He burgled two residential dwellings, broke into motor vehicles to steal the contents and unlawfully took three cars. After he was apprehended on 6 January 2010 he was, surprisingly, released on bail.
Thereafter, on 27 January 2010 the appellant committed the very serious second raft of crimes. Armed with an air pistol he robbed a bank in Temuka, obtaining something over $2,000. He then stole/converted a car to escape in. When pursued by the police he drove at high speed in excess of 150km/h, making dangerous passing manoeuvres. The police finally stopped him. So as to secure his further escape he presented the weapon at the officer, who was required to retreat. The appellant then again fled at high speed and a police pursuit occurred for approximately 40 kilometres. It had to be abandoned but the appellant’s escapade and offending ended when he crashed the converted vehicle into two other vehicles, being driven by members of the public. They were admitted to hospital, thankfully with only minor injuries. Their vehicles were extensively damaged.
Sentencing
The spate of offending on 27 January 2010 can only be described as appalling. This was multiple, aggravated offending. The appellant’s cumulative actions whilst he was on bail and parole required a significant term of imprisonment.
Judge Crosbie observed that the offending on 27 January 2010 fell within category two of R v Mako.[2] It involved armed robbery of a bank, put members of the public at huge risk and caused actual injury to some. There was actual violence, and the circumstances of the appellant’s flight were seriously aggravating. The Judge took a starting point of eight years’ imprisonment on the lead charge, then gave a generous discount of one-third for an early plea of guilty (although defence would have been futile), with “general remorse ... inbuilt into that”.[3] So, a lead sentence of five years three months’ imprisonment on the aggravated robbery charge was imposed.
[2] R v Mako [2000] 2 NZLR 170 (CA).
[3] At [61].
On the charges relating to the earlier spree of burglaries, thefts, unlawfully taking motor vehicles and interfering with motor vehicles, the Judge considered a starting point of 18 months was appropriate, and any sentences should be cumulative. He reduced the sentence to one year giving a one-third discount for the guilty pleas.
When imposing the minimum period of imprisonment of three years six months, which was two-thirds of the lead sentence of five years three months for aggravated robbery, Judge Crosbie observed that the Court had to be satisfied that a minimum period longer than the parole period otherwise applicable under s 84(1) of the Parole Act 2002 was necessary. He said that latter period was insufficient for the purposes of holding the appellant to account, denouncing his conduct, deterring him and protecting the community. The Judge concluded that the appellant had a significant history of dishonesty offending and a minimum term was required to protect the community.
Basis of appeal
Mr Hix on behalf of the appellant challenges the imposition of a minimum term or, if it was necessary, its length (being the maximum of two-thirds of the sentence imposed on the charge of aggravated robbery). He contended that an aggravated robbery of the type undertaken by the appellant was not out of the ordinary range of such offending, and that the Judge was over influenced by, or put improper emphasis upon, the other offences committed by the appellant. Mr Hix said that this led the Judge to err because the imposition of a minimum period of imprisonment must be fixed in relation to the sentence imposed on a particular offence. He submitted that, whilst the concurrent sentences might be relevant, they could not be used in the reasoning exercise to enable a minimum period of imprisonment to be available, in a jurisdictional sense. Alternatively, Mr Hix argued that the period of a full two-thirds of the lead sentence was excessive and should be reduced to reflect the appellant’s personal circumstances.
In summary, the argument was that the offending was not so serious as to require the imposition of a minimum period of imprisonment and undue weight was placed on an irrelevant factor, namely the appellant’s previous history of dishonesty. In addition, the minimum period of imprisonment was, in any event, manifestly excessive in the circumstances.
Discussion
Prior to 2004 the initial threshold test for the imposition of a minimum period of imprisonment under s 86(2) of the Sentencing Act 2002 was whether the Judge concluded the circumstances of the offence were sufficiently serious to justify a minimum period of imprisonment longer than would otherwise be applicable under the Parole Act 2002. That test was discussed in R v Brown:[4]
The Courts have a duty to give effect to the provision. We are not persuaded that it should be regarded merely as a reserve measure to safeguard against possible parole board misjudgments. If that were to be its limited role the statute would have said so. We consider saving victims from unnecessary concern about relatively early release and from the need to oppose parole should be seen as a consequence rather than a purpose of the section. We do not find in the Sentencing Act any clear legislative intention to effect a reduction in the sentences for serious offenders. The Parole Act, on the other hand, effects a reduction in the time to be served by serious offenders, subject to the safety of the community. But s 86 provides the mechanism to constrain that outcome where the offending is so serious that release after one-third of the sentence would plainly constitute an insufficient response in the eyes of the community, even though there may be no ongoing safety risk. It enables the Courts to give a degree of reality to the sentence and the outcome.
[4] R v Brown [2002] 3 NZLR 670 (CA) at [28].
Whilst there has been an amendment to s 86(2), and the “sufficiently serious” criterion no longer applies, these sentiments remain relevant. In R v Gordon this Court discussed the legislative developments: [5]
The legislative purpose underpinning s 86 was extensively discussed by this Court in Brown. The effect of the section is to enable sentencing Judges to over-ride those provisions in the Parole Act 2002 requiring that all offenders be eligible for parole after serving one-third of the sentence imposed; where the offending is so serious that release after one-third of the sentence would plainly constitute an insufficient response in the eyes of the community, the Court may confer a degree of reality on the sentence and the overall outcome by imposing a minimum period of imprisonment.
As originally enacted, s 86 permitted the imposition of a minimum term where the offence was “sufficiently serious”, that is, where the circumstances of the offending took the case out of the ordinary range of offending of the particular kind. But under s 86 as it now stands, a minimum period of imprisonment may be imposed even where the case does not disclose any unusual or abnormal features for offending of the kind in question, although such features may well remain relevant to the overall assessment required under s 86(2): R v Wirangi [2007] NZCA 25.
[5] R v Gordon [2009] NZCA 145 at [15] – [16].
Although Brown had held that it was the responsibility of the Parole Board to address issues of public safety when making release decisions, and the risk posed by an offender was not something to take into account to justify the imposition of a minimum term, Parliament’s intent is made clear in s 86(2)(d); the protection of the community from the offender is a matter which may be considered when imposing a minimum term.
Judge Crosbie correctly applied his mind to the statutory test in s 86. He was entitled to regard the cumulative criminal actions surrounding the armed aggravated robbery as requiring a minimum period of imprisonment for all the purposes in s 86(2). Prior significant sentences of imprisonment had not deterred the appellant from very serious criminal offending. Past serious offending, including that occurring after release on parole between November 2009 and December 2010, were matters that properly could be taken into account in assessing community safety.
The pre-sentence report observed that “until there is a paradigm [shift] in his thinking patterns Mr Rule will remain at a high risk of re-offending” and:
While Mr Rule is now saying he wants to make positive lifestyle changes it is difficult to be optimistic that he will sustain that attitude post-sentencing... [T]hroughout his previous prison term Mr Rule steadfastly refused to involve himself in rehabilitative interventions.
The appellant is described as having limited insight, remaining impulsive and lacking empathy for others. The report states that the risk of violent re-offending remains, and that it is “all too likely that only the passing of time will see a diminution of Mr Rule’s potential to re-offend”.
We turn then to the issue of the length of the minimum period of imprisonment. Mitigating factors advanced on behalf of the appellant were his youth (aged 21 at the time of the offending) and what were said to be complex mental or psychological health issues. Judge Crosbie’s view, however, was that they did not affect the appellant’s ability to distinguish right from wrong or reduce his culpability. The Judge took into account the guilty pleas by reducing the finite sentence by a significant period (in excess of three years) but did not apply any further reduction of the minimum period of imprisonment. We are not persuaded he erred in fixing the term at the maximum two-thirds.
Given the nature of the aggravated robbery and the offending that accompanied it, the poor future prognosis for the appellant, and the primary need to protect the community and to hold the appellant accountable, it was open to Judge Crosbie to impose a minimum period of imprisonment fixed at two-thirds of the sentence for the aggravated robbery.
Result
It follows that the appeal against sentence is dismissed.
Solicitors:
Quentin Hix Legal, Timaru for Appellant
Crown Law Office, Wellington for Respondent
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