Ruru v Police

[2012] NZHC 3491

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI 2012-412-000056 [2012] NZHC 3491

TIMOTHY MARK RURU

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         17 December 2012

Counsel:         B Kilkelly for Appellant

R Smith for Respondent

Judgment:      17 December 2012

JUDGMENT OF PANCKHURST J

[1]      Timothy   Ruru   appeals   against   an   effective   sentence   of   16   months imprisonment imposed in relation to separate offending, comprising an assault, and some related matters, and the breach of a protection order.

[2]      On 25 May last, the appellant assaulted his partner.  He punched her to the face, causing bruising and swelling centred upon an eye.  Police were called to the house.   The appellant was out of control.   This gave rise to a further charge of resisting arrest.   In the end result, Mr Ruru was pepper sprayed, hand-cuffed and

subdued in that manner.

RURU V NEW ZEALAND POLICE HC DUN CRI 2012-412-000056 [17 December 2012]

[3]      This incident brought to light a further charge being an offence of breach of community work.  That sentence had been imposed at the beginning of the year with reference to an unrelated assault, being a street assault on a young male.

[4]      The appellant was sentenced to undertake 75 hours of community work, but had failed to meet the obligation.  With regard to the assault, the Judge set a sentence of seven months imprisonment, and also imposed one month for the resisting charge, and one month for the breach of community work, but made those sentences concurrent.  Mr Kilkelly, does not challenge the make-up or end sentence in relation to this cluster of three offences.  Rather, his client’s appeal is directed to a further sentence of nine months imprisonment, imposed on a breach of a protection order. That order was made towards the end of 2006.

[5]      On 23 June last, at about 9.00 pm in the evening, the appellant called the woman protected by the order, indicated that he proposed to visit her at 10.00 am the next day, and that he wanted to obtain a photograph of his son.  She was perturbed at the content and fact of the telephone call, the more so because within a period of about 15 minutes there were nine further calls from the appellant, which she did not answer.

[6]      I note that this woman was not the same person as was involved in the house assault in May, albeit, she had the same surname - the two complainants were sisters. In relation to the protection order, that had been in force for almost six years at the time of this breach.  There had been one previous breach of its terms on Boxing Day

2010, that resulted in a community work sentence.

[7]      In relation to this charge, the focus of the appeal, the Judge fixed a starting point of nine months imprisonment and uplifted that sentence by three months for the previous conviction. This meant that a total sentence of 19 months imprisonment was indicated, but a reduction of three months imprisonment was allowed with reference  to  the  guilty  pleas,  and  applied  it  seems,  against  the  breach  of  the protection order to reduce that sentence back to nine months imprisonment.   Mr Kilkelly advances two arguments:

(a)       That the starting point was too high; and

(b)      That any uplift to that starting point was inappropriate.

[8]      The appellant, I note is 43 years of age.   He has an extensive offending history.  It is evident from that history that alcohol poses a problem for him and that violence is a place of resort when he is affected by alcohol.  In the result he has any number of previous convictions for that offence.  Nonetheless, Mr Smith responsibly accepted that the starting point advanced by the Judge for the breach of protection order, was out of the available range, two years being the statutory maximum.  He also accepted that the three month uplift was not available, noting that the Judge may have fallen into error in firstly thinking that a previous assault, a few months earlier, was against the holder of the protection order, and, possibly in also understanding that the complainant in the assault that he was imposing sentence for was the same as the woman in the protection order charge, when they were in fact sisters.  Mr Smith submitted however, that the sentence imposed for the assault was unduly lenient, because Mr Ruru, on account of his past, could well have received a higher starting point and potentially an uplift in relation to that matter.  I think there is some merit in that argument, but I am not inclined to revisit the sentencing exercise on that charge, in the context of an appeal, where the appellant’s focus has been on the breach of the protection order alone.

[9]      In  my  view,  the  appropriate  sentence  for  the  protection  breach  was  six months imprisonment.   An uplift was not indicated.   The fact of a previous like conviction does not in itself justify an uplift.  An evaluation is required.  The focus should  be  on  whether  an  appellant,  by  virtue  of  previous  convictions,  has  a propensity to offend in that particular way, or whether those previous convictions have  become  an  obvious  part  of  his  character,  to  the  point,  where  an  uplift  is required, in the interests of deterrence and protection.

[10]     Given a protection order that had been in place for six years, one previous lapse of a completely different kind, and which was not viewed very seriously, it does not seem to me, that this was a situation for any uplift, as Mr Smith accepted.

[11]     I therefore substitute a starting point of six months imprisonment, allow a reduction of one and half months for the guilty plea, so that the end sentences remain at  seven  months  on  the  assault,  four  and  a  half  months  on  the  breach  of  the protection order and the effective term becomes 11½ months imprisonment.

Solicitors:

B Kilkelly, Dunedin

Wilkinson Adams, Dunedin