Raumati v R [2012] NZCA 571 (10 December 2012)

Last Updated: 19 December 2012

IN THE COURT OF APPEAL OF NEW ZEALAND

CA442/2012 [2012] NZCA 571

BETWEEN PATRICK RAUMATI Appellant

AND THE QUEEN Respondent

Hearing: 4 December 2012

Court: Randerson, Harrison and Stevens JJ

Counsel: R A B Barnsdale for Appellant J E Mildenhall for Respondent

Judgment: 10 December 2012 at 10.00 am

JUDGMENT OF THE COURT

1. The appeal against sentence is allowed in part.
2. The terms of imprisonment on all charges are confirmed, as well as their respective concurrent and cumulative effects. Hence the overall sentence of four years and three months imprisonment stands.

100. The appeal against the length of the minimum period of imprisonment is allowed. The minimum period of two years six months is quashed and in its place a minimum period of imprisonment of two years and four months is substituted in relation to the charge of burglary on 14 July 2011.

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REASONS OF THE COURT

(Given by Stevens J)

Introduction

[1] The appellant, Mr Raumati, was sentenced by Judge Connell in the District Court at Hamilton on five charges, including three of burglary, to an effective sentence of four years and three months imprisonment.[1] A minimum period of imprisonment (MPI) of two years and six months was also imposed. The appellant appeals against the overall sentence on the basis that it was manifestly excessive.
[2] For the appellant, Mr Barnsdale accepted that there could be no challenge to any of the base sentences or their respective concurrent and cumulative effects. The appeal focussed solely on the imposition of the MPI and its length.

Factual background

[3] The lead charge of burglary and a charge of assault with a weapon arose out of an incident that occurred very late in the evening of 13/14 July 2011, when the appellant (who was aged 46) and two much younger co-offenders went to the address of the complainant and his family in Huntly. The appellant mistakenly believed that this complainant had assaulted his sister. The appellant parked his truck in the driveway at around 11.30 pm and approached the complainant’s house. One of the co-offenders held a hammer, the other held an axe. The three men walked to the front door and started banging and kicking it.
[4] When the complainant opened the front door, the appellant and his co-offenders barged in, restraining the complainant against the wall with the handle of the hammer held against his throat. The attack stopped when the complainant persuaded the attackers that he had not harassed the appellant’s sister. The complainant’s female partner and their children were also at the address. The partner was terrified by the ordeal. Following trial by jury the appellant was found guilty of both of these charges.
[5] A few days earlier, on 11 July 2011, the appellant had committed another burglary in Hamilton. On this occasion the appellant, accompanied by two associates, drove his truck during daylight hours to the enclosed yard of a local business. They smashed the glass and wooden framing of some aluminium frames, then loaded these frames into the truck. The window frames had an approximate value of $1500. When the appellant and his associates were informed by a witness that the police were to be called, the appellant drove off in his truck. The damaged aluminium frames were recovered when his truck was later impounded. The appellant pleaded guilty to a summary charge of burglary.
[6] The offence of driving whilst disqualified, for which he had previous convictions, occurred on 13 July 2011. He entered a guilty plea to this charge.
[7] On 27 March 2012, the appellant committed a further burglary when he went to a vacant rental property which had been the subject of a fire and was thus boarded up. The appellant forced his way in and removed copper from within a hot water cylinder, which he put into his car. He was apprehended by the police when leaving the property. He pleaded guilty to a summary charge of burglary.

Sentencing

[8] The construction of the sentence is important to the disposition of the appeal. For the burglary on 14 July 2011 (the lead offence), the appellant was sentenced to three and a half years imprisonment. On the charge of assault with a weapon arising out of the same incident he was sentenced to a concurrent term of nine months imprisonment. On the unrelated charge of driving whilst disqualified he was sentenced to a concurrent term of three months imprisonment (plus a disqualification of 20 months). For the burglary that occurred in March 2012, the appellant was sentenced to a further concurrent term of imprisonment of nine months. However, on the more serious burglary that preceded the lead offence, a cumulative term of imprisonment of nine months was imposed. The MPI was not associated with a particular base sentence.
[9] The Judge accepted that the appellant did not have a lengthy list of convictions for burglary.[2] He did however have numerous convictions for violence, including assault and wounding with intent.[3] The 14 July burglary was not a conventional burglary; it involved burglary with intent to assault another person rather than an intent to take property. It also involved a number of aggravating factors resulting in the sentence of three years and six months imprisonment.

Submissions

[10] Counsel for the appellant submitted first that there was no justification for the imposition of the MPI. Alternatively, the MPI ordered in this case was too long. First, the period of two years and six months was in excess of the maximum MPI of two-thirds of the full term of the sentence of three years and six months.[4] Second the MPI in this case should not exceed one half of the full term of the sentence, namely, 21 months. Counsel also submitted that the decision to impose the MPI was not a fully reasoned one.[5]
[11] For the respondent, Ms Mildenhall accepted that the MPI imposed was not within jurisdiction, given that it did not attach to a particular sentence and exceeded the two-thirds limit. If the MPI was related to the sentence for burglary of three years and six months imprisonment it could not have exceeded two years and four months, being two-thirds of the base sentence. Counsel submitted that the imposition of a minimum term was warranted and there was no reason in principle why it ought not be at or near the maximum available under s 86(4)(a) of the Sentencing Act 2002. Finally, she submitted that the sentencing Judge gave adequate reasons for imposing a minimum term.

Discussion

[12] We agree that the MPI of two years and six months imprisonment must be quashed. However, we agree with Ms Mildenhall that the Judge was able to impose a minimum term if satisfied that it was required to meet the purposes of s 86(2) of the Sentencing Act.
[13] As was made plain by this Court in R v Taueki,[6] in determining the length of the MPI all the relevant circumstances of the offender and the offending must be considered. Thus fixing the minimum period of imprisonment is a separate, albeit similar, exercise to the fixing of the base sentence. This Court stated:

[56] Once it becomes necessary to address the second question, the length of the minimum period, the Court is required to take into account (to the extent they are relevant to the particular case) all of the purposes of sentencing in s 7 and the mandatory requirements of ss 8 and 9, just as it must take them into account in setting the finite term. The setting of the minimum period of imprisonment requires similar analysis to that required for setting the nominal sentence. The factors in ss 8 and 9 are relevant to both exercises. The fact that they are taken into account in setting the minimum period, as well as the maximum period, does not lead to double counting, but rather reflects the dual exercise which the Court must undertake.

(Citations omitted.)

[14] For the purposes of this exercise all the relevant factors, including any mitigating factors, need to be considered.[7] There is no presumption against imposing the maximum period of two-thirds of the full term of the sentence. The critical question is what period is required to achieve the purposes identified in s 86(2) of the Sentencing Act.
[15] The appellant has not shown that the Judge was in error in deciding to impose the MPI. The Judge properly referred to the need for the appellant to be held accountable, the need for denunciation and the need for deterrence.[8] The Judge also recognised that the appellant was a “danger to the community”.[9]
[16] Neither was it inappropriate, in the context of a relatively short sentence of three years and six months imprisonment for the lead offence, to impose the maximum available MPI. The following contextual factors were operating in this case:

• the appellant’s offending encompassed conduct of a violent nature, both a burglary at night that was made with the intent to harm another person, and an actual assault with a weapon;
• the appellant has a history of violent offending;
• the offending also included two burglaries involving a commercial aspect: the taking of the aluminium frames on 11 July 2011 and the burglary of 27 March 2012, which involved an attempt to obtain copper; and
• the multiple offences encompassed four separate and unrelated instances of offending, including three burglaries and a driving charge.

[17] The Judge was well aware of the mitigating factors raised by counsel at sentencing. There was no need to repeat these, and the reasons for discounting them, when dealing with the MPI.

Result

[18] The appeal is allowed in part. The minimum period of two years and six months imprisonment is quashed. In its place a minimum period of imprisonment of two years and four months is substituted in relation to the burglary charge on 14 July 2011 for which the appellant was sentenced to imprisonment for three years and six months.

Solicitors:
Crown Law Office, Wellington for Respondent

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[1] R v Raumati DC Hamilton CRI-2011-019-5277, 28 June 2012 [sentencing decision].
[2] At [19].
[3] At [20].
[4] As required by s 86(4)(a) of the Sentencing Act 2002.
[5] Citing the decision of this Court in Choi v R [2011] NZCA 237, (2011) 25 CRNZ 262 at [13].
[6] R v Taueki [2005] 3 NZLR 372 (CA).
[7] R v Gordon [2009] NZCA 145 at [46].
[8] Sentencing decision at [27].
[9] At [33].