Rule v The Queen - [2011] NZCA 51

IN THE COURT OF APPEAL OF NEW ZEALAND

CA462/2010
[2011] NZCA 51

BETWEEN RIKI JAMES RULE
Appellant

AND THE QUEEN
Respondent

Hearing: 23 February 2011

Court: Arnold, Gendall and Allan JJ

Counsel: Q C J Hix for Appellant
C A Brook for Respondent

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Rule v The Queen

Details

AGLC: Rule v The Queen [2011] NZCA 51
Case: [2011] NZCA 51
Decision Date: 7 March 2011

CaseChat Overview and Summary

The case of Rule v The Queen was heard in the Court of Appeal of New Zealand. The appellant, Riki James Rule, was appealing against the sentence imposed by the District Court at Timaru. The appellant was sentenced to six years and three months in total, with a minimum period of imprisonment of three years and six months imposed for aggravated robbery. The appeal was against the minimum period of imprisonment, and leave to appeal out of time was granted. The appellant was represented by Q C J Hix, and the respondent by C A Brook. The Court of Appeal consisted of Arnold, Gendall, and Allan JJ. The central legal issue before the Court was whether the imposition of a minimum period of imprisonment was justified in the circumstances, and if so, whether the length of the minimum period was appropriate. The appellant's counsel argued that the minimum period of imprisonment should not have been imposed, or if it was necessary, its length should be reduced. The Court found that the Judge had correctly applied the statutory test in s 86 of the Sentencing Act 2002, and that it was open to the Judge to impose a minimum period of imprisonment fixed at two-thirds of the sentence for the aggravated robbery. The Court was not persuaded that the Judge had erred in fixing the term at the maximum two-thirds. The appeal against the order of a minimum period of imprisonment was dismissed.

The Court of Appeal found that the Judge had properly considered the appellant's criminal history and the seriousness of the offending when imposing the minimum period of imprisonment. The Court held that the protection of the community from the offender was a matter which could be taken into account when imposing a minimum term. The appellant's criminal history, including his breach of parole, and the seriousness of the offending, which involved armed robbery, put members of the public at huge risk, and caused actual injury to some, were properly taken into account by the Judge. The Court held that the appellant's youth and complex mental or psychological health issues did not affect his ability to distinguish right from wrong or reduce his culpability. The Judge had also taken into account the guilty pleas by reducing the finite sentence by a significant period, but did not apply any further reduction of the minimum period of imprisonment. The Court was not persuaded that the Judge had erred in fixing the term at the maximum two-thirds. The Court found that the imposition of a minimum period of imprisonment was justified in the circumstances, and that the length of the minimum period was appropriate.

Orders