Ruri v The King
[2024] NZHC 1563
•14 June 2024
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2024-404-000210
CRI-2024-404-000211 [2024] NZHC 1563
BETWEEN SELENA RURI
Appellant
AND
THE KING
Respondent
Hearing: 10 June 2024 Appearances:
M J Taylor-Cyphers for Appellant J A E Tausi for Respondent
Judgment:
14 June 2024
JUDGMENT OF ANDREW J
This judgment was delivered by Justice Andrew on 14 June 2024 at 12 noon
pursuant to r 11.5 of the High Court Rules 2016 Registrar / Deputy Registrar
Date ………………………..
RURI v R [2024] NZHC 1563 [14 June 2024]
Introduction
[1]This is an appeal against sentence in relation to the following four charges:
(a)Disfiguring with intent to injure;1
(b)Driving with excess breath alcohol (third or subsequent);2
(c)Failing to answer District Court bail;3 and
(d)Refusing to permit a blood specimen (third or subsequent).4
[2] In the District Court, the appellant, Ms Ruri, pleaded guilty to the four charges. She was sentenced to two years five months’ imprisonment. The District Court Judge also ordered an alcohol interlock sentence.5
[3] Ms Ruri contends that the Judge erred by adopting too high a starting point (three years’ imprisonment) for the lead charge of disfiguring and/or an excessive uplift for the remaining charges. It is argued that he was in error in not adjusting the starting point for totality. Ms Ruri further contends that the 35 per cent discount applied for personal mitigating factors was inadequate and that, had greater discounts properly been offered to her, the end sentence would have fallen within range where a sentence of home detention would have been available. She submits that a sentence of home detention ought to have been imposed as the least restrictive outcome.
[4] The Crown opposes the appeal and says there was no error in the sentencing decision. It says the end sentence reached was not manifestly excessive.
1 Crimes Act 1961, s 188(2): maximum penalty of seven years’ imprisonment.
2 Land Transport Act 1998, s 56(1) and (4): maximum penalty of two years’ imprisonment or a fine not exceeding $6,000 and a minimum mandatory disqualification for more than one year.
3 Bail Act 2000, s 38(a): maximum penalty of one year’s imprisonment or a fine not exceeding
$2,000.
4 Land Transport Act 1998, ss 60(1)(a), 60(3) and 72(1)(a): maximum penalty of two years’ imprisonment or a fine not exceeding $6,000 and a minimum mandatory disqualification for more than one year.
5 Land Transport Act 1998, s 65AC.
Factual background
Charge 1 – Disfiguring with intent to injure
[5] The victim is the biological daughter of the appellant. At the time of the offending the victim was six years old. The victim had been raised by her great-aunt since birth and had limited contact with the appellant.
[6] In September 2022, and as arranged with Oranga Tamariki, the victim flew to Auckland to stay with the appellant during the school holidays. She was to be returned to her great-aunt’s care just over a week later. One evening in early October 2022, the appellant told the victim to stand in a corner of the wash-house with her eyes open. She told the victim she had a night-time camera on. When the rest of the household went to sleep the appellant told the victim to stand outside. She then poured two cups of hot water on to the victim’s back. This caused superficial burns to her back that were sufficient to cause blistering. The victim said it hurt, and she “screamed it in [her] mouth” so no one could hear.
[7] The appellant did not provide any first-aid, or seek medical treatment for the victim following the burns.
[8] On 11 October 2022, the victim was picked up with the assistance of Oranga Tamariki because she had not been returned to her caregiver in time. The injuries were then discovered and medical assistance was sought.
[9] The victim sustained “V” shaped burns to her back. These were approximately 20 centimetres in length and seven centimetres at their widest.
Charge 2 – Driving with excess breath alcohol (third or subsequent)
[10] The appellant has two previous convictions for driving with excess breath alcohol (2008 and 2020).
[11] In March 2023, the appellant was the driver of a vehicle on Ōrākei Road, Remuera. The Police conducted a traffic stop and an evidential breath test procedure
on the appellant. Her breath was found to contain 791 micrograms of alcohol per litre of breath.
Charge 3 – Failing to answer District Court bail on 18 October 2023
[12] On 18 October 2023, the appellant, having been released on bail (22 August 2023), failed without reasonable excuse to attend personally at the Auckland District Court as specified in a notice of bail.
[13] Following her arrest on charge 2 (driving with excess breath alcohol) on 29 March 2023, the appellant was released on Police bail to appear in the Auckland District on 12 April 2023. She attended that day and was remanded without plea to appear on 3 May 2023. However, she failed to do so. She voluntarily attended two days later and the warrant for arrest (issued on 3 May 2023) was withdrawn.
[14] A sentence indication hearing had been scheduled for 6 October 2023 in the Manukau District Court. However, on that date the appellant failed to appear and a warrant was issued for her arrest.
Charge 4 – Refusing to permit a blood specimen (third or subsequent)
[15] At about 1.27 am on 22 January 2024, the appellant was the driver of a motor vehicle on Buckland Road, Māngere. Police conducted a vehicle stop to speak to her. The appellant failed to provide a breath screening test, and evidential breath test procedures were carried out. The appellant refused to provide a breath sample. Police then required her to provide a blood sample, but she refused.
Decision under appeal
[16] On 2 February 2024, the District Court Judge gave the following sentence indication on charge 1:6
(a)A starting point of three years’ imprisonment;
(b)The full 25 per cent discount for the guilty plea, if the indication was accepted; and
6 R v Ruri DC Manukau, CRI-2023-092-000317, 2 February 2024.
(c)Indicated there may be further discounts available at sentencing.
[17] His Honour recorded that if the sentence indication was accepted, he would call for electronically-monitored options to be canvassed. However, that was no indication of the likely end sentence.
[18] At the sentencing on 17 April 2024, his Honour imposed an end sentence of two years and five months’ imprisonment. That sentence was calculated as follows:
(a)A starting point of three years’ imprisonment for charge 1 (and consistent with the earlier indication);
(b)An uplift of eight months’ imprisonment for the remaining charges taking the overall starting point to 44 months’ imprisonment (three years and eight months); and
(c)A discount of 35 per cent for personal mitigating factors comprising the following:
(i)the maximum 25 per cent for guilty pleas; and
(ii)a 10 per cent discount to reflect the appellant’s issues with drug and alcohol abuse and remorse.
[19] Given that the end sentence was above two years’ imprisonment, his Honour noted that there was no issue of leave being granted for home detention.
[20] The Judge also ordered an alcohol interlock sentence in respect of charges 2 and 4.
[21]The Judge had the following materials before him:
(a)A screening report (dated 3 April 2024) opining that the appellant was fit to stand trial and did not appear to have a defence of insanity. In
addition, it recorded the following background information about the appellant:
33-year-old woman of Māori descent with a prior diagnosis of psychotic disorder due to substance abuse (methamphetamine), anxiety and extensive alcohol and other drug use since the age of 15. She has engaged with Community Alcohol and Services in the past and appears motivated to engage with again.
(b)An updated pre-sentence report recommending imprisonment;
(c)A Victim Impact Statement from the victim’s caregiver; and
(d)A letter of apology.
Relevant legal principles
[22] Section 250 of the Criminal Procedure Act 2011 sets out how a court is to determine a sentence appeal. An appeal must be allowed if the Court is satisfied that there is an error in the imposed sentence and that a different sentence should be imposed.7
[23] The Court of Appeal in Palmer v R outlined the position with respect to sentence appeals, stating that:8
[17] … the standard of appellate review in sentence appeals ... requires that the appellant show a material error was made and satisfy the appellate court that a different sentence ought to be imposed. Sentencing is not a science and an appellate court will not ordinarily interfere unless the end sentence was outside the range available to the sentencing judge. For that reason it is not an error to describe sentencing decisions as discretionary, so long as it is clear that “discretion” means only that the sentencer enjoys an appropriate margin of appreciation.
[24] In Tutakangahau v R, the Court of Appeal said that the concept of “manifestly excessive” continues to apply to appeals against sentence.9 The Court held that the appellate court’s focus is on the sentence imposed rather than the process by which it was reached.10 A Judge on appeal should not intervene where the sentence imposed
7 Criminal Procedure Act 2011, s 250(2).
8 Palmer v R [2016] NZCA 541 at [17] (footnotes omitted).
9 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [35].
10 Tutakangahau v R, above n 9, at [36].
was within the range that could be properly justified by accepted sentencing principles.11
Analysis and decision
Issue (a) – Starting point
[25] Ms Ruri contends that a global adjusted starting point of 39 months’ imprisonment (not 44) would fairly reflect the gravity of the offending. She contends that in adopting 44 months, the Judge failed to step back and consider totality. In particular, she says that the eight months’ uplift for the discrete and unrelated driving offending was excessive.
[26] I agree with the consensus of the parties that the eight months uplift applied by the Judge was for the three charges of refusing to permit a blood specimen, driving with excess breath alcohol, and the breach of District Court bail.12
[27] In principle, Ms Taylor-Cyphers is correct that in setting a global adjusted starting point (i.e. stage one of Moses), the Judge was required to consider totality.13 However, I find that there was no error in the approach taken by the Judge; he did have regard to the principle of totality and the adjusted starting point of 44 months was, in my view, within the available range.
[28] In relation to the lead charge of disfiguring, the offending falls squarely within band three of Nuku v R.14 Band three involves a starting point of two years’ imprisonment up to the statutory maximum (either five or seven years, depending on the offence) where three or more of the aggravating features set out in Taueki are present and a combination of those features is particularly serious.15
11 Tutakangahau v R, above n 9, at [36], citing Tutakangahau v R [2014] NZHC 556 at [10].
12 See updating memorandum of the appellant dated 6 June 2024, acknowledging that a different position had initially been taken in the appellant’s submission positing that the eight-month uplift applied solely to the failure to answer District Court bail.
13 Polaapau v R [2020] NZCA 227 at [44].
14 Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39 at [38].15 Nuku v R, above n 14, at [38].
[29] There were three or more aggravating features here and the combination of them was particularly serious. They include:
(a)The victim was vulnerable by virtue of her young age (six years old) and the fact that she was in the appellant’s care at the time of the offending;
(b)The offending involved a significant breach of trust given the relationship between the appellant and the victim. The victim was entitled to feel safe in her care;
(c)The extent of violence committed by the appellant was extreme. She poured hot water on the victim;
(d)There was a degree of cruelty involved given that the appellant did not provide any first-aid or seek medical treatment for the victim following the burns; and
(e)The impact upon the victim was significant, taking into account the injury sustained. There was also a significant psychological impact, as outlined in the Victim Impact Statement.
[30] I reject the contention that the eight month uplift for the additional charges was excessive. In relation to the driving offences there were aggravating features,16 including (on charge 2) a reading of 791 micrograms per litre of breath, and two driving offences (charges 2 and 4) within a ten-month period. Furthermore, it was just over three years since the appellant’s previous conviction in 2020 for driving with excess breath alcohol (a reading then of 771 micrograms per litre of breath). In relation to charge 4, the appellant was driving at a time when she had an active charge for driving with excess breath alcohol (i.e. charge 2). It is highly likely that she was intoxicated when driving in relation to charge 4.
16 Samson v Police [2015] NZHC 748 at [13]–[14].
[31] The maximum total penalty for charges 2, 3 and 4 (for which there was an eight-month uplift) is five years’ imprisonment. Given the aggravating features of the driving charges in particular, the uplift was not excessive.
Issue (b) – Discounts
[32] Ms Ruri contends that the discount of 10 per cent (applied by the Judge at stage two of Moses),17 which encompassed addiction and remorse, was inadequate. She contends that the Judge should have allowed for a 45 per cent discount: 25 per cent for guilty plea (unchallenged), 10 per cent for addiction, five per cent for rehabilitation and five per cent for remorse.
[33] It may be, as Ms Taylor-Cyphers submitted, that the only plausible explanation for the disfiguring offence was a methamphetamine-induced psychosis. There is some support for that in the report of the forensic court liaison nurse dated 3 April 2024. However, I find that there was no error by the Judge in the discounts that he adopted. The focus is, of course, ultimately on the end sentence and whether or not that was manifestly excessive.
[34] In my view, the discount of 10 per cent for addiction and remorse was within the available range. There was of course limited information before the Judge as to the issue of substance abuse and the prior diagnosis of psychotic disorder. Given the comments made by the appellant in the first pre-sentence report, the Judge was entitled to give a small discount for remorse. There was also very little information before the Judge on the issue of rehabilitation. I do not doubt the appellant’s commitment to rehabilitation, but it appears that most of the steps taken have been as part of a court- imposed sentence.
[35] In focusing on the end sentence, I agree with the submission of the Crown that the full discount given by the Judge for guilty pleas, namely 25 per cent, can be considered generous given the appellant’s numerous warrants for her arrest for failing
17 Moses v R [2020] NZCA 296, [2020] 3 NZLR 583. At the second step, the court incorporates all aggravating and mitigating factors personal to the offender, together with any guilty plea discount (which should be quantified as a percentage of the adjusted starting point and does not exceed the maximum of 25 per cent of the adjusted starting point).
to appear throughout these proceedings. That does call into question whether the guilty pleas were entered at the earliest possible opportunity.
[36] I conclude that the end sentence was not manifestly excessive. Accordingly, the appeal must be dismissed.
Result
[37]The appeal is dismissed.
Andrew J
0
7
0