R V REIHANA-RUKA [2003] NZCA 92 (5 June 2003)

IN THE COURT OF APPEAL OF NEW ZEALAND

CA449/02

THE QUEEN

v

ARTHUR ROBERT REIHANA-RUKA

Hearing: 29 May 2003

Coram: Gault P

Fisher J

O'Regan J

Appearances: A Fairley for Appellant

A Markham for Crown

Judgment: 5 June 2003

JUDGMENT OF THE COURT DELIVERED BY O’REGAN J

[1]	The appellant was convicted following a trial in the Whangarei District Court, of a number of offences, all of which related to an incident which occurred on 3 December 2001. The offences were male assaults female, possession of a firearm without lawful purpose, aggravated burglary, kidnapping and commission of a crime with a firearm.He was sentenced to a total of five years imprisonment.He appeals against that sentence.
[2]	The incident in which the offending occurred, began with a domestic dispute at the home which the appellant shared with his wife and two adult children.When the appellant went to sleep, his wife hid the magazine and ammunition for his rifle, but when he awoke he demanded that she return them, which she did.He then punched her in the mouth.
[3]	The appellant’s father in law, Mr Collyer, was summoned to assist and he came to the house and took the appellant’s wife and children to his home nearby.As they drove away, the appellant fired four or five shots from his rifle, although there was no evidence that these were aimed at the people departing the scene.A short time later the appellant drove to Mr Collyer’s address, taking the rifle with him.The District Court Judge found that the rifle was loaded and although that was disputed in this Court, we are satisfied that the Judge was entitled to reach that conclusion on the evidence before him.The appellant saw his son outside the house and chased him away, aiming the rifle at him.He then forced open the front door of the house and confronted Mr Collyer with the rifle.Two of Mr and Mrs Collyer’s younger grandchildren were present in the house, and at one point the gun was aimed at one of these children as well.
[4]	The appellant’s wife approached him.He grabbed hold of her and forced her into his vehicle and held the gun against her.He then drove off with her in the opposite direction to their home, which alarmed Mr and Mrs Collyer.They called the police.
[5]	A short time later (the Judge found the period was 10 minutes), the appellant returned with his wife to her parents’ address and dropped her off.He then left the scene.After a police chase, which involved reckless driving by the accused, he was arrested.Just before he was stopped he had thrown the rifle out of his vehicle.
[6]	In his sentencing notes, the Judge recounted the facts, noting the great terror caused to those involved in the incident and the great threat posed to their safety by the appellant.He noted the purposes of sentencing set out in s 7 of the Sentencing Act, particularly of holding the offender accountable for harm done to the victims and the community and promoting in the offender a sense of responsibility for, and acknowledgement of that harm (s 7(1)(a) and (b)).He observed that the views of the victims are relevant but also mentioned a wider responsibility to the community to ensure that there is suitable and proportionate punishment for the appellant’s actions.
[7]	The Judge referred to the principles of sentencing in s 8, particularly s 8(b), which requires a sentencing Judge to take into account the seriousness of the type of offence in comparison with other types, as indicated by the maximum penalties.The maximum penalties for both aggravated burglary and kidnapping are 14 years imprisonment,.The Judge said counsel had referred him to the decision of this Court in R v Gutsell (CA301/95, 28 August 1995), but said he did not derive much assistance from that case.
[8]	The aggravating features of the offending which the Judge mentioned were possession of the firearm, that it was loaded, and that it was pointed at both Mr Collyer and at children.Another aggravating factor was the number of people affected by the conduct (the appellant’s wife, her parents, the appellant’s two children and two other grandchildren of the Collyers who were present at their home – seven in total).The Judge accepted that the period of the kidnapping was not long and there was no additional violence.
[9]	Mitigating features outlined by the Judge were the appellant’s remorse, that he had now come to his senses in relation to the matter and his acceptance of some responsibility.He noted that the pre-sentence report referred to a medium risk of re-offending and a high motivation to change.
[10]	The Judge considered the views of the victims.He had before him victim impact statements from the appellant’s wife and both her parents.All showed a remarkable degree of forgiveness of the appellant.His wife noted the improvement in her relationship with the appellant since the incident, which she attributed to his having had proper medication for his depression, and his having discontinued using cannabis and drinking alcohol.She said both her children wanted their father to come home.Mr and Mrs Collyer indicated they would welcome the appellant back into the family, although as the Judge noted, both referred to the terror they had experienced during the incident.
[11]	The Judge determined that the appropriate sentence was five years imprisonment, and imposed four years imprisonment for the aggravated burglary offence, and one year for the kidnapping;those sentences being cumulative.The other sentences were four years imprisonment for using a firearm, six months for male assaults female, and one year for unlawful possession of a firearm, all concurrent with the earlier sentences.He also sentenced the appellant to one months imprisonment with two years disqualification for an associated driving offence.Confiscation of the rifle was ordered.
[12]	Counsel for the appellant, Mr Fairley, submitted that the sentence was manifestly excessive because:
a)	it gave insufficient weight to the circumstances of the offending and the offender;
b)	it was inconsistent with R v Gutsell;
c)	the Judge erred in imposing cumulative sentences.
[13]	In the course of argument, Mr Fairley accepted the real issue in this appeal is the term of imprisonment imposed for the totality of the appellant’s offending.For that reason, the imposition of cumulative sentences is not a concern unless the total sentence is manifestly excessive for the totality of the appellant’s offending.
[14]	Mr Fairley submitted that the Judge had not given adequate weight to the following matters:
a)	The appellant had no convictions other than four driving offences since 1980 and his previous convictions were for relatively minor matters.This was not referred to in the sentencing notes;
b)	The supportive stance taken by the principal victim, the appellant’s wife and her parents.This was evident both from the victim impact statements and that the appellant’s wife did not give evidence against him at the trial and was present in Court supporting him;
c)	The offending was out of character as evidenced by the comments of the appellant’s wife in her victim impact statement.The pre-sentence report noted that the appellant had been diagnosed with depression and had taken anti-depressant medication since the time of the offending.However, the pre-sentence report also said that the appellant had smoked cannabis on a regular basis, and there was no psychiatric or psychological reports before the Court;
d)	The short period in which the offending occurred.Mr Fairley pointed to evidence that the incident at the Collyers’ house had lasted only for a matter of moments, and the detention of the appellant’s wife had been for only 10 minutes;
e)	No-one had been injured.
[15]	Counsel for the Crown, Ms Markham, accepted that there had been no injury and the victims appeared to have forgiven the appellant, but she said this did not alter the fact that the offending was serious and there was a real risk someone could have been hurt or even killed.She emphasised particularly the degree of terror experienced by the Collyers, as exhibited by their victim impact statements.She disputed the contention that the incident was one-off, referring to the “anger management problem” which the appellant was said to have had.She also suggested that the depression may have been at least partly caused by cannabis use which meant it should not be given much weight.However, she accepted there was no expert evidence linking the appellant’s depression to his previous cannabis use.
[16]	Mr Fairley submitted the Judge should not have rejected Gutsell as a valuable precedent, given the similarity of the facts in that case with those in the present case.In Gutsell a sentence of 11 months imprisonment with 12 months supervision was upheld by this Court.As noted in R v Gurnick (CA287/02 23 October 2002), this Court expressed no view in Gutsell on the adequacy of the sentence, but merely found it was not excessive.Ms Markham said there were a number of aspects of Gutsell which meant it was less serious than the present case, particularly that the gun was not loaded and there were two victims rather than seven.Psychiatric reports were available in that case, although this Court found they did not more than indicate Mr Gutsell was suffering from stress and emotional despair.Another distinguishing feature was that Mr Gutsell pleaded guilty.
[17]	In Gurnick this Court upheld a sentence of three years six months for an incident involving kidnapping with a prolonged detention in a car during which time the car was driven in an extremely dangerous manner for a considerable distance, and breach of a protection order.Ms Markham suggested that was a more useful precedent than Gutsell.She also referred to R v W (CA352/92, 19 November 1997) where a sentence of one year nine months was reduced to 15 months imprisonment, but the circumstances differ considerably from the present case.
[18]	We accept that the sentence imposed on Gutsell would not adequately reflect the seriousness of the offending in this case, for the reasons set out in paragraph [16].Gurnick and W show the need to tailor the sentence to the circumstances of the particular offences and the offender.Cases which have only remote similarities to the case under consideration, do not assist the sentencing Judge greatly.
[19]	We are persuaded that the sentence of five years imprisonment in this case was excessive for the totality of the offending.We do not in any way minimise the seriousness of the offending, or the risk to which the victims were exposed.However, we believe that a sentence of three years imprisonment would be sufficient to meet the purposes of sentencing outlined in s 7(1)(a) and (b) of the Sentencing Act, and would adequately take account of the gravity of the offending and the degree of culpability of the appellant.We have had particular regard to the appellant’s lack of previous convictions for offending of this kind and the very supportive stance taken by the victims.
[20]	We therefore allow the appeal.The sentences for aggravated burglary, kidnapping and commission of a crime with a firearm are quashed, and concurrent sentences of three years imprisonment are imposed on each of those charges.All other sentences (including the disqualification from driving and confiscation of the firearm) remain unchanged.

Solicitors:

Crown Law, Wellington

Thomson Wilson, Whangarei