The Queen v Nathan Rangi Te Rupe
[2002] NZCA 219
•25 September 2002
| IN THE COURT OF APPEAL OF NEW ZEALAND | CA124/02 |
THE QUEEN
V
NATHAN RANGI TE RUPE
| Coram: | Tipping J McGrath J Glazebrook J |
| Appearances: | J Aickin for Appellant A Markham for Crown |
| Judgment (on the papers): | 25 September 2002 |
| JUDGMENT OF THE COURT DELIVERED BY GLAZEBROOK J |
The appellant, Mr Te Rupe, was found guilty by a jury in the District Court at Christchurch on 6 March 2002 on one charge of aggravated wounding, one charge of aggravated robbery and one charge of aggravated burglary. For these offences the sentencing Judge imposed concurrent sentences of imprisonment of six years, six years and nine years respectively.
This appeal against sentence has been heard on the papers under the Crimes (Criminal Appeals) Amendment Act 2001. The relevant materials, including written submissions which have been received in accordance with r29 of the Court of Appeal (Criminal) Rules 2001, have been considered by the members of the Court who have conferred and agreed upon this judgment.
Facts
On 26 June 2001 Mr Te Rupe and his co-offender, Mr Percival, went to the home of the complainant, intending to obtain the drug Ritalin. The offenders entered the complainant’s home through a closed but unlocked door, locking it behind them. They entered the lounge, in which they found the complainant, and closed and locked the ranchslider, the only other means of egress. The offenders threatened the complainant while searching through his personal effects and demanded drugs and money. Mr Te Rupe at one point threatened to cut off the complainant’s ears. When the complainant produced his wallet, Mr Percival seized the wallet from him, while Mr Te Rupe punched him in the face, causing cuts and bruising and breaking his glasses. The complainant was instructed to sit down in the lounge.
Mr Te Rupe again threatened to cut off his ears, having now obtained a knife from the kitchen. Mr Te Rupe then held the knife against the complainant’s leg and threatened to push it through his leg unless he revealed where more money could be found. The complainant pushed Mr Te Rupe away, only to have Mr Te Rupe grab his hand and deliberately use the knife to saw into one of his knuckles. The Judge described the wound inflicted as not insubstantial. The complainant now became enraged. He grabbed Mr Percival and demanded the return of his wallet. Mr Percival returned the wallet once he had removed the cash from it, and the two offenders then departed. They were apprehended by the police a short distance from the complainant’s home. They had taken about $500 and a guitar effects pedal from the complainant.
Mr Percival pleaded guilty to a charge of aggravated robbery and was sentenced to five years imprisonment. This was imposed cumulatively upon an activated suspended sentence of one year for burglary. Mr Te Rupe pleaded not guilty to all three of the charges which he faced.
The Judge’s sentencing notes
The Judge said that he had no doubt that Mr Te Rupe was the prime mover in the offending and that it was he, not his co-offender Mr Percival, who committed the acts of violence against the complainant. The Judge observed that Mr Te Rupe had not responded to the probation service’s attempts to rehabilitate him. He noted further that Mr Te Rupe did not express any remorse and continued to deny that he had been involved in the offending to the extent indicated by the guilty verdicts.
As aggravating features the Judge identified the fact that the complainant was targeted for drugs and cash, the fact that the offending occurred in the complainant’s home, the fact that the complainant was imprisoned in his home, and Mr Te Rupe’s recent violence-related convictions (several for assault, threatening to injure or kill and possession of offensive weapons and one for contravening a protection order). He identified the fact that Mr Te Rupe had not been in possession of a knife from the outset as a possible mitigating factor. He noted further that Mr Te Rupe appears to have a propensity to resort to violence for his own ends and that Mr Te Rupe had used a weapon in a calculated and deliberate fashion to reinforce his threats.
The Judge considered that the use of actual violence combined with threats of violence placed this case into the upper range of the second category of offending identified by this Court in R v Mako [2000] 2 NZLR 170 for aggravated robbery. He arrived at a starting point of seven years imprisonment and then added three years imprisonment on account of the home invasion element, the imprisonment of the complainant and the fact that the offending occurred in broad daylight.
As regards parity with Mr Percival’s sentence, the Judge noted that the Judge sentencing Mr Percival, having taken into account the home invasion element, had arrived at a starting point of seven years imprisonment. The Judge held that a starting point of seven years, before taking into account the home invasion element, was appropriate in Mr Te Rupe’s case because it was Mr Te Rupe who resorted to the use of physical violence and the knife.
For the aggravated burglary and aggravated wounding counts the Judge used a starting point of four years and arrived at a sentence of six years imprisonment for each, after making an adjustment for home invasion. The Judge concluded that the sentences should be served concurrently.
Looking at the overall justice of the case, he then reduced the sentence for aggravated robbery to nine years imprisonment, citing the fact that Mr Te Rupe had not set out with a weapon, the relatively low value of the goods taken, Mr Te Rupe’s age and the five year sentence imposed on Mr Percival.
The submissions on appeal
Ms Aickin in her written submissions for Mr Te Rupe argued that the Judge erred in taking a starting point of seven years. In this regard she pointed out that the offending in this case did not occur at night and that offenders did not cause property damage in securing entry to the complainant’s home. Ms Aickin also submitted that the three year increment for home invasion was excessive by reference to R v Palmer [2000] 1 NZLR 546 and the fact that Mr Te Rupe’s criminal record revealed only a limited propensity for violence.
Turning to the other offences, Mr Aickin submitted that various factors weighing in Mr Te Rupe’s favour made the Judge’s four year starting point for aggravated burglary inappropriate. With reference to R v Hereora [1986] 2 NZLR 164 she also submitted that the four year starting point for aggravated wounding was too high. She went on to challenge the two year increment for home invasion in relation to both offences.
Finally she suggested that the totality principle indicates that the nine year sentence was disproportionate to the gravity of the offences committed and that Mr Te Rupe’s sentence of nine years imprisonment is excessive in the light of the fact that his accomplice Mr Percival was sentenced to a term of only five years.
Ms Markham for the Crown rejected Mr Te Rupe’s attempt to distinguish R v Mako, arguing that the absence of forced entry and the fact that the knife was found in the kitchen were not significant. She submitted the contention that Mr Te Rupe had only a limited propensity for violence could not be justified in the light of Mr Te Rupe’s criminal record and the probation officer’s report, which noted that he had not responded well to attempts at rehabilitation. With regard to the alleged disparity she argued that difference between the sentences is justified by Mr Percival’s early guilty plea, the fact that his five year sentence was imposed cumulatively upon an activated one year suspended sentence of imprisonment for prior offending, the fact that the appellant was the primary offender and the lack of recent violence-related convictions on Mr Percival’s record.
Discussion - Result
We consider that the sentence imposed for the charge of aggravated burglary was within the range open to the Judge. When sentencing on this charge the Judge referred to the example given by this Court in Mako at para [58] as follows:
Forced entry to premises at night by a number of offenders seeking money, drugs or other property, violence against victims, where weapons are brandished even if no serious injuries are inflicted would require a starting point of seven years or more. Where a private house is entered the starting point would be increased under the home invasion provisions to around ten years.
Ms Aickin attempted to distinguish the present case from the example given in that paragraph and to justify a starting point lower than seven years on the basis that entry was not forced and that the robbery occurred by day. We note first that the examples given in Mako are only examples. Setting an appropriate starting point requires an assessment of the seriousness of the combination of features of the offending in the particular case. Matters generally to be taken into account were listed in paras [36] to [51] of Mako with examples in relation to combinations of those features in paras [54] to [59]. At para [60] this Court emphasised that the examples and the indicated starting points were to be used flexibly.
In this case, taking the example in para [58] used by the sentencing Judge, we note first that this Court in that paragraph referred to a starting point of “seven years or more”. Secondly, the Court at para [45] indicated that the detention of victims would increase the starting point, and in this case the complainant was imprisoned in his home. It was open to the Judge to see this as counter-acting any reduction in the starting point that may have been called for by the absence of the two features identified by Ms Aickin. For the same reason we reject the contention that the three year increment for the home invasion element was not available to the Judge in this case. We note in any event that the Judge stood back to review the “overall effect” of the sentences and on this account reduced the lead sentence for the aggravated robbery by one year.
We also find Ms Aickin’s submission to the effect that Mr Te Rupe’s propensity towards violence is limited unpersuasive. While he clearly does not fall into the most serious category of violent offenders, his criminal record nevertheless lists at least 13 offences involving physical assault, threats and possession of offensive weapons and several convictions for breach of protection orders.
With regard to the sentences for aggravated burglary and aggravated wounding, these sentences could be seen as stern. In our view they are nevertheless within the range available to the Judge and are, in any event, to be served concurrently.
Finally we reject the submission as to disparity between the sentences imposed on Mr Percival and Mr Te Rupe. In our view the disparity is justified by Mr Percival’s guilty plea and the fact that, unlike Mr Te Rupe, Mr Percival was not the “prime mover” in relation to the offending.
Decision
For the reasons given the appeal against sentence is dismissed.
Solicitors:
Crown Law Office, Wellington
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