R v RAMEKA [2005] NZCA 154 (16 June 2005)

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R v RAMEKA [2005] NZCA 154 (16 June 2005)

Last Updated: 29 June 2005

IN THE COURT OF APPEAL OF NEW ZEALAND

CA426/04

THE QUEEN



v



GEORGE RAMEKA

Hearing: 13 June 2005

Court: Hammond, Baragwanath and Potter JJ

Counsel: P T Birks for Appellant
H D M Lawry for Crown

Judgment: 16 June 2005

JUDGMENT OF THE COURT

The appeal against sentence is dismissed.

REASONS

(Given by Potter J)

Introduction

[1]

George Rameka appeals against a sentence of four and a half years imprisonment imposed on him for one conviction of arson, following trial by jury.

[2]

The stated grounds of appeal are first, that the sentence is manifestly excessive; it is submitted that the five years starting point adopted by the Judge was too high. Secondly that the sentence was wrong in principle; it is submitted that the nature and circumstances of the offending place it at the lower level of offending of this type, and that the disparity with sentences imposed on the two co-offenders, is too great.

Background

[3]

At about 1 a.m. on 13 July 2003 the appellant with two females, one of whom was his then current partner, entered the property of the complainant armed with molotov cocktails. A shipping container was situated about one metre from the house occupied by the complainant, where she was asleep with a number of young children for whom she was caring that night. The shipping container had been converted to provide living accommodation. It was fitted with a window and a ranch slider and power was connected. The evidence was that the shipping container had been occupied by a person until a few weeks prior to these events. The appellant smashed the window and the molotov cocktail was thrown in. The shipping container was set alight.

[4]

Persons at a party at a nearby property saw the fire and immediately intervened to put it out. Fortunately little damage was caused to property. There was no damage to the house or to any people. The complainant was awoken and learned what had occurred. She was extremely alarmed and upset.

Sentence under appeal

[5]	Judge Lance, who was the trial Judge, observed in sentencing the appellant and the two co-offenders, that for the first time on the day of sentencing the three offenders had acknowledged their offending. He stated that having listened to the evidence he was of the view that the appellant was the leader, the inspirer and the person responsible for the attack; that he was active in the lead up to the attack and present at the time; he was the one who smashed the window and threw the molotov cocktail.
[6]	He determined the aggravating features as being:
•	Actual violence was involved;
•	Property was smashed and in effect fire bombed;
•	The attack took place at night;
•	None of the offenders knew whether the sleep-out was occupied or not;
•	It could have been, and there could have been danger to life;
•	There was still danger to life in that the house close by was occupied, and it could have been ignited as the result of the attack;
•	The preparation and premeditation were extensive;
•	Not just one molotov cocktail was involved. Although apparently only one was used, others were prepared and lit and one was left at the back door of the house;
•	In the case of the appellant, the offending was committed while he was on bail.
[7]	He considered there were no mitigating features.
[8]	He referred to the effect on the victim, and described the attack as promoting:

... anxiety and stress on someone who was totally innocent and had done nothing to provoke this cowardly, brutal attack.

[9]	The Judge noted that the appellant had a lengthy list of previous convictions going back 28 years with something over 70 previous convictions. While none were for arson, some were for violence, and the Judge observed that arson is an offence of violence. He noted that the probation report assessed the appellant as a high risk offender with limited ability to change, and as being self centred with no sense of remorse nor empathy for his victim.
[10]	The Judge recorded that there is no tariff for the offence of arson and that the background circumstances must be considered in each case. He referred to two cases involving molotov cocktails; R v Te Kahu (HC Invercargill T9904/97 16 June 1999 Hansen J) and R v Taylor (CA88/94 17 July 1995), noting that in Kahu six years imprisonment was imposed, in Taylor four years.
[11]	The Judge took as an appropriate starting point, five years imprisonment. He made a reduction of six months because of the late acknowledgement of offending by the appellant, and sentenced him to four and a half years imprisonment.
[12]	He then turned to the sentencing of the two co-offenders. The Judge found that Ms Christie was active in the lead up to the offending and present at the time, but he did not regard her as a ring leader. He noted previous convictions, some for violence, but accepted genuine remorse and noted the apology written in a letter to the complainant. He considered a term of imprisonment was appropriate given the seriousness of the offence, the fact that this co-offender had played more than an observing role, and in the light of her background and previous convictions. He imposed 15 months imprisonment and granted leave to apply for home detention.
[13]	In the case of the second co-offender, Ms Kahukiwa, the Judge considered that her association in the events of that evening arose entirely from the fact that she was living with the appellant. He reached the clear view that she would not have been part of this offending had she not been under the influence of the appellant. He accepted her apology and her remorse as totally genuine, and noted that she had no previous convictions and had every prospect of rehabilitating and putting this offending behind her. He sentenced her to 250 hours community work.

Submissions

[14]	Mr Birks for the appellant, in support of the submission that the five year starting point adopted by the sentencing Judge was too high, referred in particular to the judgment in R v Skeens (CA341/01 26 February 2002) where following guilty pleas a sentence of three and a half years imprisonment was imposed for arson concurrent with a term of one years imprisonment for threatening to kill. The guilty plea was entered to arson charged under s 294(a) of the Crimes Act 1961 (which is the provision under which the appellant was charged and convicted). In Skeens following an argument between the appellant and his father, the appellant repeatedly threatened his father that he would burn down the house and kill him. He knew his father and two other persons were sleeping in the house that night. The appellant returned in the small hours of the morning and set fire to the house by lighting combustible materials beneath the room in which his father was sleeping. Fortunately the fire was discovered early enough to be extinguished without significant property damage and without injury to any person. From a starting point of five years the sentencing Judge imposed a sentence of three and a half years, taking into account the young age of the appellant (he was aged 22), and his plea of guilty before trial on arraignment at callover.
[15]	Mr Birks submitted that in Skeens there was "a real risk to human life", which he sought to contrast with the facts of this case, on the basis that the container into which the molotov cocktail was thrown was unoccupied. He submitted that "any opinion of the consequences was purely speculative". But Mr Birks acknowledged that there was no evidence that the appellant and his co-offenders knew the container was unoccupied, and accepted that they took the risk that there was someone in the container who could have been burnt, if not incinerated.
[16]	It was further submitted for the appellant that he has no previous convictions for arson and that his previous convictions for violent offending are of a summary nature.
[17]	Further, that the six months allowed by the Judge on account of the appellant’s acceptance of responsibility for the offending on the day of sentence, was insufficient given his previous attitude of complete denial.
[18]	Counsel’s submissions also focused on disparity with the sentences imposed on the two co-offenders.
[19]	For the Crown Mr Lawry submitted that while the sentence is stern, that is necessarily so, because of the element of premeditation, the use of molotov cocktails, the appellant’s history of violence and offending against property, and that the offending here related to a private home which was attacked at night.
[20]	While there is no tariff sentence for offending of this sort (which is common ground), it is submitted for the Crown that on the basis of comparison with other similar sentencing decisions, the starting point of five years adopted in this case was within the available range, and that neither the starting point of five years nor the final term of four and a half years imprisonment can be characterised as manifestly excessive or wrong in principle.
[21]	In relation to Skeens, Mr Lawry accepted that there was in that case a higher degree of knowledge as to the premises being occupied, but noted that there were personal circumstances relating to the offender, including his youth, which were taken into account in sentencing, as well as the guilty plea. Factors similar to those in the present case were that the offender was assessed as being of high risk of re-offending and having limited ability to change. He submitted that the issue of safety is a dominant consideration, and a sentence which provides both deterrence and a degree of protection for the public is called for.
[22]	He referred, as did the sentencing Judge, to R v Te Kahu where the use of molotov cocktails was involved. The complainant couple had made a complaint regarding two bull dogs that were important to the accused’s gang which resulted in the dogs being taken by Animal Control Officers. The accused was the instigator of an attack on the complainants’ house in the early hours of the morning when it was occupied by the complainants and their elderly mother. The Judge considered that this was an act of revenge and emphasised the deliberate intention to cause risk to life and property. The accused showed a complete lack of remorse and accepted no responsibility for the offending. He had an extensive record for offences of violence and intimidation. There were no mitigating features. A sentence of six years imprisonment was imposed.
[23]	Counsel noted that in many respects, including the use of molotov cocktails and the attitude and background of the accused, there were similarities with the present case, and although the offending may have been more serious particularly in relation to the accused’s knowledge of the occupancy of the house by the complainants and another person, the sentence of six years reflected this.
[24]	In R v Taylor where a sentence of four years was imposed for arson, and the threatened use of molotov cocktails was involved, the house attacked was known to be unoccupied.
[25]	In support of the five years starting point, Mr Lawry also cited R v Munro (CA132/02 24 July 2002). Two offenders wantonly set fire to a flat where a couple were sleeping upstairs, described by the sentencing Judge as an "infantile, alcohol-induced way of getting a kick". A sentence of three and a half years from a starting point of five years, was imposed on the principal offender following an early guilty plea and taking account of personal circumstances. The sentence subject to appeal was that of the co-offender who, following trial, was sentenced to three and a half years imprisonment which recognised his lesser culpability and better record. The Court of Appeal in upholding that sentence, stated that where there was a risk to life, a starting point of five years imprisonment was well justified. It was submitted that the offending in the present case was deliberate and premeditated, and was more serious than the somewhat random and opportunistic offending in Munro.

Discussion

[26]	There were significant aggravating features in this case identified by the sentencing Judge as set out in [6].
[27]	There was a real risk of potential harm which was identified by the sentencing Judge at [10] of his judgment:

... none of you knew whether the sleep-out was occupied or not. It could have been, and there could have been danger to life. Whether or not it was occupied, there was still danger to life in that there was a house close by which was occupied and which could have been ignited as the result of this attack.

[28]	It was fortunate that there was no-one in the sleep-out and that the fire was detected and put out promptly, thus avoiding the risk of it spreading to the house approximately one metre away, occupied by the complainant and sleeping children. The appellant and his co-offenders took the risk of endangering human life. While their knowledge of the extent of the risk, may have been less than in Skeens and the other decisions referred to above, nevertheless the real risk of danger to property and to life was present. We do not consider that this can be regarded as "low level offending", as submitted for the appellant.
[29]	As to disparity, the sentencing Judge carefully dealt separately with the situations of each of the offenders. He determined that the appellant was the leader who inspired the offending, and that the others, particularly Ms Kahukiwa, were under his control and influence. The sentencing Judge presided at trial and was well placed to assess the respective roles of the appellant and the two co-offenders in this offending. He appropriately took account of their separate roles and their particular backgrounds in imposing the sentences he considered appropriate to each of them. The sentence imposed on the appellant cannot be criticised because of the particular consideration the Judge gave to the situations of the co-offenders whose roles were significantly less than that of the appellant, and whose backgrounds were markedly different.
[30]	In written submissions Mr Birks also suggested that the sentencing Judge placed too much weight on certain inferences he drew, including an inference that the offending was motivated by the appellant being a patched member of the Black Power gang, and the complainant having employed members of the Mongrel Mob to carry out work to her property. We note that the Judge did not treat this as an aggravating factor. Rather he referred to it in an attempt to find an explanation for the motive for this crime. There is no significance in this submission.
[31]	Finally, we agree with the Crown submission that the allowance of six months from the starting point of five years to reflect the appellant’s late acknowledgement of the offending was, if anything, generous.
[32]	In summary, the starting point of five years was open to the sentencing Judge and the sentence of four and a half years imposed, while stern, was appropriately so given the seriousness of this offending and the background of the offender. We cannot categorise the sentence as manifestly excessive.

Result

[33]	The appeal is dismissed.

Solicitors:
Crown Solicitors, Auckland