Ratima v R [2024] NZCA 254 (21 June 2024)

Last Updated: 24 June 2024

IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA

CA71/2023 [2024] NZCA 254

	BETWEEN	KINGI RATIMA Applicant
	AND	THE KING Respondent

Hearing:	12 March 2024
Court:	Katz, Dunningham and Gault JJ
Counsel:	S J Gray for Applicant P D Marshall for Respondent
Judgment:	21 June 2024 at 10.00 am

JUDGMENT OF THE COURT

The application for an extension of time to appeal is declined.
____________________________________________________________________

REASONS OF THE COURT

(Given by Gault J)

• [1] Mr Ratima seeks an extension of time to appeal against his sentence of 10 years’ imprisonment with a minimum period of imprisonment (MPI) of five years, imposed by the High Court on 23 February 2017,^[1] following his guilty plea on one charge of robbery.^[2]
• [2] For Mr Ratima, this was a stage-three offence under the three strikes regime that was then in force,^[3] and he was accordingly sentenced to the maximum 10-year term of imprisonment for the offence. However, given the circumstances of the offence and the offender, the Judge considered it would be manifestly unjust to order Mr Ratima to serve the entire 10-year sentence without parole.^[4] A five-year MPI was imposed instead.
• [3] Mr Ratima seeks to appeal on the ground that the sentence amounted to disproportionately severe treatment, in breach of s 9 of the New Zealand Bill of Rights Act 1990 (NZBORA), given his mental illnesses and the sentence he would have received but for the three strikes regime. He does so on the basis of the Supreme Court’s October 2021 decision in Fitzgerald v R,^[5] where it was held that the courts were not required to impose the maximum penalty to a third strike offender where doing so would breach s 9 of NZBORA. In such instances, ordinary sentencing principles were to be applied instead.^[6]
• [4] This appeal was filed on 7 February 2023. As sentence appeals must be brought within 20 days after the date of the sentence appealed against,^[7] the appeal was almost six years out of time. It was also filed 16 months after the decision in Fitzgerald. The Crown opposes an extension of time.
• [5] On 9 May 2023, Katz J directed in a minute that the application for extension of time to appeal was to be dealt with at the hearing, together with the appeal.

The offending

• [6] The facts of the offending were summarised by the High Court Judge as follows:

[6] ... In the early hours of the morning on 15 May 2016, you spoke with the victim and asked for money. When the victim turned around and walked away, you struck him in the back with your elbow and threw him to the ground. You then proceeded to strike him multiple times in the head with a closed fist. Then, still standing over the victim, you stomped directly on his head. His head smashed into the concrete, causing him to lose consciousness. You then stomped on his head a second time, before searching through his pockets and removing a cellphone and charging cable. You fled the scene but were arrested a short time later. In explanation you told the police that you had punched and kicked the victim but did not steal his phone as you were going to give it back to him. As well as losing consciousness the victim sustained a small laceration above his right eye and a cut to his lip. In a victim impact statement the victim states that, as a result of the robbery “I had a sore face and bruising and swelling but was discharged from hospital a few hours after arriving there.”

• [7] The Judge also summarised the first and second strike offences, which were dealt with in the District Court, as follows:^[8]

[4] On 4 August 2014, you were convicted of one charge of robbery. The offending in question occurred on 14 May 2014. On that occasion, you approached a victim who was seated in a stationary vehicle and demanded his car and phone. When he refused, you forcefully dragged the victim out of the car and onto the road. You got into the car and the victim tried to pull you out. He was unsuccessful and you drove off with the vehicle. The victim did not receive any injuries. You were 25 years old at that time. You received a first warning under the “three strikes” regime and were sentenced to one year’s imprisonment.

[5] On 10 June 2015, you were again convicted of robbery. The offending occurred on 25 November 2014. On that occasion, you attempted to take the victim’s cellphone after the victim declined to give you money. You punched the victim in the chest with a closed fist, causing him to fall backwards onto a park bench and under fear of harm the victim handed over money. The victim did not receive any injuries. You were 25 years old at the time. You received a final warning and were required to serve your entire sentence of one year and four months’ imprisonment without parole. You also received concurrent sentences of one month’s imprisonment each for two charges of theft.

The High Court’s 2017 sentencing decision

• [8] After referring to the offending on each of the three strike offences, the Judge referred to Mr Ratima’s personal circumstances, noting he was 28 years old and of Ngāti Raukawa descent. He was single, had no children, and had been unemployed for most of his adult life. He had a history of significant alcohol and drug abuse and had spent most of his adult life living on the streets, in prison, or in psychiatric institutions. He had 105 previous convictions, the majority of which stemmed from driving-related or dishonesty offending. A number of those convictions were sufficiently serious to warrant a sentence of imprisonment.^[9]
• [9] The Judge said that the pre-sentence report writer assessed Mr Ratima as being at a very high risk of reoffending and considered that he posed a high risk of harm to others. The report described him as a recidivist offender and noted that he had reached his third strike warning in the space of only two years, which the Judge said was particularly concerning given that he was in prison for the vast majority of that time. His most recent offence occurred only three weeks after he was released from prison. The report writer was also concerned that Mr Ratima had, in some instances, rejected assistance from Mental Health Services.^[10]
• [10] The Judge referred to two psychiatric assessments provided by Dr Kumar. The Judge said the assessment dated 23 November 2016 noted that Mr Ratima had a history of mental health issues that had been present since he was about 17 or 18 years old. Dr Kumar had said that Mr Ratima had received a variety of diagnoses, including paranoid schizophrenia, psychotic illness, and schizoaffective disorder, though bipolar affective disorder with psychotic symptoms appeared to be the most consistent diagnosis. Dr Kumar also noted that Mr Ratima had alcohol and drug dependence issues, as well as possible ADHD during childhood which also needed to be considered.^[11]
• [11] The Judge also referred to the further assessment prepared prior to sentencing, which had a particular focus on whether Mr Ratima’s mental health difficulties were in any way causative of his offending, whether they affected his behaviour in relation to accepting responsibility for his actions or whether they should influence the sentencing process so as to justify applying the manifestly unjust exception. The Judge summarised the report of that assessment, which contrasted Mr Ratima’s mental health in prison with the way he presented following arrest, when he had consumed large quantities of illegal drugs, and concluded that Mr Ratima’s offending was independent of his mental health condition.^[12]
• [12] When deciding whether the sentence was “manifestly unjust”, the Judge said this meant that the sentence should not be grossly disproportionate to the circumstances of the offending and the offender, contrary to s 9 of NZBORA, which prohibits “disproportionately severe treatment or punishment”.^[13] The Judge said that disproportionately severe punishment has been described as conduct which amounts to “inhuman treatment”,^[14] or as “conduct which is so severe as to shock the national conscience.”^[15] The case for a finding of manifest injustice must be clear and convincing, but such cases will not necessarily be rare or exceptional.^[16]
• [13] After referring to the aggravating features of the offending, the Judge said that, “in the absence of the ‘three strikes’ regime”, four years’ imprisonment would have been an appropriate starting point.^[17]
• [14] In relation to personal aggravating and mitigating features, the Judge noted Mr Ratima’s lengthy criminal history, which would warrant an uplift of up to a year. In relation to mental health and remorse, the Judge considered that Mr Ratima would be entitled to a discount of no more than four months’ imprisonment.^[18] A discount of 15 per cent would also be warranted to reflect the guilty plea. This would result in a final sentence of around three years and 11 months’ imprisonment, which was just over a third of the sentence. The Judge noted that Mr Ratima would have been eligible for parole after approximately one year and three months, as opposed to being released after 10 years, which she said pointed strongly towards a finding of manifest injustice.^[19]
• [15] The Judge then said:^[20]

[26] A finding of manifest injustice would also be consistent with the directions in the Sentencing Act 2002 that a sentencing court should seek to assist in the offender’s rehabilitation and reintegration and that the court must impose a sentence that reflects the gravity of the offending in the particular case. Other relevant factors which point towards a finding of manifest injustice include your relative youth and the fact that you have not yet had an opportunity to engage in rehabilitation in any meaningful way. In this respect I note your counsel’s submission that on release from prison in 2016, you sought admission to a methamphetamine rehabilitation programme, but were declined. It is important that you have the opportunity to engage in genuine rehabilitation opportunities. The absence of any previous such opportunities may indicate that the present case is one for which the deterrence rationale, that offenders can understand and can respond to the warning, may be wrong.

[27] On the other hand, this court is also required to impose a sentence which holds you accountable for the harm caused by the offending and which promotes in you a sense of responsibility for that harm. There is a need to denounce your conduct and to deter others from committing the same or similar offences in future. That is the purpose of the “three strikes” regime.

[28] Your offending in this case was very similar to that which led to your two previous convictions for robbery. The degree of violence which you have used has escalated over the course of the three offences. The speed with which you have accumulated your three convictions is also troubling, particularly given that this most recent offence occurred only three weeks after your release from prison. On the other hand, the culpability of the two earlier offences is not high, which is reflected in the relatively short sentences of imprisonment imposed.

[29] This is a difficult case. There are factors which point towards and against a finding of manifest injustice. Ultimately, however, I am satisfied that the gravity of the offending is sufficiently low that to impose a sentence of 10 years’ imprisonment without parole would be manifestly unjust, particularly given the mental health difficulties you have experienced and the lack of any real rehabilitative opportunities up until this point.

• [16] Finally, the Judge considered that an MPI of five years’ imprisonment was appropriate.^[21]

Extension of time — applicable principles

• [17] For an application for an extension of time to appeal to be granted, it must be in the interests of justice to do so.^[22] As this Court said in R v Slavich, extension of time applications will routinely reduce to two questions.^[23] First, why the appeal was filed late. Second, what merit, if any, the prospective appeal point appears to have.
• [18] As Mr Marshall submitted for the Crown, a change in (restatement of) the law is not generally sufficient to justify an extension of time to bring an appeal. “Special circumstances”, demonstrating that an extension is in the interests of justice, are required. As this Court explained in R v Knight (in the context of an application for leave to appeal against conviction under the repealed s 388 of the Crimes Act 1961 after a restatement of the law):^[24]

Reflecting the policy underlying s 388, the starting point must be the principle that a conviction obtained according to law as it was then understood and applied should stand. Leave to appeal out of time on the ground that there has been a restatement of the applicable law should be granted only where special circumstances can be shown to justify a departure from the principle of finality. The applicant must demonstrate some special feature or features particular to the case that lead to the conclusion that in all the circumstances justice requires that leave be given. Amongst the considerations which will also be relevant in that overall assessment are the strength of the proposed appeal and the practical utility of the remedy sought, the length of the delay and the reasons for delay, the extent of the impact on others similarly affected and on the administration of justice, that is floodgates considerations, and the absence of prejudice to the Crown.

• [19] This Court recently endorsed this approach in Kriel v R.^[25] As Mr Marshall submitted, this approach applies equally, if not more, in relation to sentence appeals.
• [20] Before addressing the other factors, we note that Mr Marshall accepted that if Mr Ratima could demonstrate that his sentence was inconsistent with s 9 of NZBORA, this would weigh heavily in favour of extending time. That is principally because of the nature of the right in issue. As Winkelmann CJ observed in Fitzgerald, a sentence imposed in breach of s 9:^[26]

[E]ntails not only a breach of one of the fundamental rights running through the common law, and now embodied in the Bill of Rights, but also a breach of New Zealand’s international obligations[.]

Arnold and O’Regan JJ similarly emphasised the illimitable nature of the right.^[27]

Length of and reasons for delay

• [21] As indicated, the appeal is brought almost six years out of time, and 16 months after the Supreme Court’s October 2021 decision in Fitzgerald.
• [22] Mr Ratima’s affidavit sought to explain his delay. He said that he only appreciated what the three strikes law was when he received the 10-year sentence. Then, in prison, he saw that Parliament was talking about repealing the three strikes law. After it was repealed, he asked his parole lawyer if he could appeal his sentence. She said it was not possible. He started talking to the officers around the prison who recommended his current lawyer, Ms Gray, and, around the end of 2022, gave him a legal aid form to fill out. Ms Gray came back to him in February 2023 and said he could appeal. He was not aware of Fitzgerald until he spoke with her.
• [23] As Mr Marshall noted, this Court has not previously considered such a long extension of time in an appeal against a sentence under the three strikes regime. An almost six-year delay before appealing is a very long delay. Mr Ratima’s MPI was five years. The essential nature of a sentence appeal is to consider whether the sentence imposed was manifestly excessive. Ordinarily, changes of circumstances after sentencing are not relevant and allowing long delays is not in the interests of justice. However, we accept that, until the Supreme Court’s decision in Fitzgerald, a sentence appeal against the maximum 10-year sentence based on breach of s 9 of NZBORA was not available. Mr Ratima said he was not immediately aware of Fitzgerald, and he was advised after the repeal of the three strikes law (which occurred in August 2022) that an appeal was not possible. Such advice was presumably based on Parliament’s decision not to make the repeal retrospective, without considering Fitzgerald. In this sense, Mr Ratima’s delay has been explained.

Administration of justice and prejudice to the Crown

• [24] Mr Ratima’s case has a further complication. As the Crown noted, since the offending in issue, Mr Ratima has received two cumulative terms of imprisonment for violent offending in prison:

(a) On 16 May 2018, Mr Ratima seriously assaulted another prisoner. Without any warning, he ran at the prisoner, jumped into the air, and kicked him in the back of the head. The blow was delivered with “considerable force”, causing the victim’s head to smash violently against a grille, before he fell to the ground. The prisoner suffered a fractured cheek bone and jaw, and a laceration to one of his eyebrows. Lang J sentenced Mr Ratima to 17 months’ imprisonment, cumulative on his third strike sentence.^[28]

(b) On 20 March 2021, Mr Ratima carried out a further unprovoked assault, this time on a Corrections Officer. While the officer was moving Mr Ratima from his cell to the yard, Mr Ratima suddenly turned and punched him twice in the face, fracturing his nose and causing a black eye. The officer required specialist treatment for both his nose and the psychological effects of the attack. In the District Court, Judge P Winter sentenced Mr Ratima to nine months’ imprisonment, cumulative on his existing sentence.^[29]

• [25] As the Crown submitted, these prosecutions were conducted, and sentences imposed, in the context of Mr Ratima already being subject to a 10-year sentence of imprisonment, with a five-year MPI. Lang J noted, for example, when sentencing Mr Ratima for the 2018 assault that he was “fortunate ... that the Crown was prepared to reduce the charge to one of injuring with intent to injure” — a non-strike offence.^[30] Similarly, when sentencing for the 2021 assault, the sternness of Mr Ratima’s strike sentence may well have led Judge Winter to adopt “the minimum starting point”.^[31]
• [26] The Crown submitted that these developments also point against an extension of time as the risk of departing from the principle of finality and reopening Mr Ratima’s earlier sentence many years later may put him in a better position than he otherwise would have been in. Such a result would, the Crown submitted, tend to undermine the administration of justice. We accept this is a relevant consideration weighing against an extension of time, albeit one that, as the Crown accepted, may ultimately yield to the merits of the prospective appeal.
• [27] We turn to the merits of the appeal, noting that there is no suggestion that an appeal against Mr Ratima’s 10-year sentence lacks practical utility.

Sentencing for third strike offences

• [28] At the time Mr Ratima was sentenced, sentencing for his stage-three offence was governed by s 86D of the Sentencing Act, which relevantly provided:

86D Stage-3 offences other than murder: offender sentenced to maximum term of imprisonment

...

(2) Despite any other enactment, if, on any occasion, an offender is convicted of 1 or more stage-3 offences other than murder, the High Court must sentence the offender to the maximum term of imprisonment prescribed for each offence.

(3) When the court sentences the offender under subsection (2), the court must order that the offender serve the sentence without parole unless the court is satisfied that, given the circumstances of the offence and the offender, it would be manifestly unjust to make the order.

Interpreting the three strikes regime to ensure consistency with NZBORA

• [29] Section 9 of NZBORA provides that:

Everyone has the right not to be subjected to torture or to cruel, degrading, or disproportionately severe treatment or punishment.

• [30] As this Court recently summarised in Pearce v R:^[32]

[49] In Fitzgerald v R the Supreme Court considered the implications of NZBORA for sentencing on conviction for a third strike offence under s 86D of the Sentencing Act. Mr Fitzgerald had been convicted of indecent assault. The offending was at the bottom end of the range for an indecent assault: the sentencing Judge considered that standing alone, and leaving aside any aggravating features of the offender, the offending would not attract a term of imprisonment. But because it was a third strike offence, Mr Fitzgerald was sentenced to the maximum sentence for indecent assault of seven years’ imprisonment.

[50] The Supreme Court held that this sentence was so disproportionately severe that it breached s 9 of NZBORA. Parliament did not intend, in enacting the three strikes regime, to require judges to impose sentences that breach s 9 of NZBORA and New Zealand’s international obligations. It was possible, and thus necessary, to interpret s 86D(2) so that it did not require the imposition of sentences that would breach s 9.

[51] The four Judges in the majority concluded that s 86D(2) of the Sentencing Act must be read as subject to an unexpressed qualification to ensure consistency with s 9 of NZBORA.

Disproportionately severe

• [31] As to what amounts to a disproportionately severe sentence that breaches s 9, we note the unanimous statement of the Supreme Court in Fitzgerald:^[33]

Winkelmann CJ, Glazebrook, O’Regan and Arnold JJ agree that the appellant’s sentence of seven years’ imprisonment went well beyond excessive punishment and would shock the conscience of properly informed New Zealanders, and was therefore so disproportionately severe as to breach s 9 of the Bill of Rights.

• [32] This is a high threshold, taking its colour from s 9’s prohibition on “torture” and “cruel” or “degrading” treatment or punishment.^[34] The majority Judges observed that the cases where the maximum sentence produced by s 86D(2) would breach s 9 are likely to be rare.^[35] Despite the high threshold, as this Court said in Matara v R, experience since Fitzgerald suggests that, in practice, such cases are not rare.^[36] Third strike sentencing is capable of producing grossly disproportionate outcomes whenever the otherwise appropriate sentence for the index offending is a fraction of the maximum penalty. By the time this Court decided Matara, the Crown had conceded that s 9 was breached in the two third strike appeals brought since Fitzgerald.^[37] We add that, since then, in Love v R, the Crown accepted that the sentence in that case “may” be grossly disproportionate, given the differences in the respective lengths of the sentences, the relatively low level nature of the offending, and the appellant’s personal circumstances, but with the caveat that there were two cases currently before the Court awaiting judgment.^[38]
• [33] Further, in Waitokia v R, this Court noted that, in the five cases where third strike offenders have been sentenced in the High Court after the Supreme Court’s decision in Fitzgerald was released, it was found in four of them that imposition of the maximum penalty would infringe s 9 of NZBORA.^[39] The maximum penalty which would otherwise be required in these cases exceeded the “but for” sentence by two to three times (and, in one case, by seven times), and the disparity in each case exceeded eight years. This Court then addressed the five cases in this Court where offenders who were sentenced prior to Fitzgerald have since had their appeals determined. Four of those appeals were allowed and one was dismissed.^[40]
• [34] In Phillips v R, this Court referred to three factors that will likely play a significant role in determining whether or not a sentence imposed under s 86D(2) reaches the s 9 threshold:^[41]

(a) Any difference in the nature of the sentence that would otherwise have been imposed and the fact that a prison sentence must be imposed under s 86D(2). This consideration is illustrated by Fitzgerald where, in all likelihood, a non-custodial sentence would have been imposed, compared to the prison sentence that was imposed pursuant to s 86D(2).

(b) The difference between any prison sentence that would have been imposed but for the three strikes regime and the prison sentence imposed pursuant to s 86D(2). This may involve more than the multiplicative difference between the two sentences. It may also be necessary to take into account the actual difference in years between the sentence imposed and that which would otherwise have been adopted but for the three strikes regime.

(c) The nature of the offending. This requires an assessment of whether or not the defendant is plainly an inadvertent and unforeseen casualty of the three strikes regime.

• [35] In relation to the second consideration, in Sheers v R, this Court added that the multiplicative difference may be a useful pointer to whether a sentence is manifestly excessive and disproportionately harsh.^[42] In Allen v R, this Court also considered the multiplicative difference in terms of parole eligibility date.^[43]

The merits of Mr Ratima’s disproportionately severe appeal point

Appellant’s submissions

• [36] In light of Fitzgerald, Ms Gray for Mr Ratima submitted that the sentence was disproportionately severe, surpassing the threshold in s 9 of NZBORA. She submitted that Mr Ratima has a long and complex mental health history involving several diagnoses of schizoaffective disorder, paranoid schizophrenia, psychotic illness, and bipolar affective disorder. This is further complicated by his polysubstance abuse and antisocial personality disorder. At the time of the offending, he had just been released from prison and had not had access to his medication for a period of three weeks. She submitted that his mental illness significantly reduced his culpability. Coupled with the sentence of imprisonment that he would have received (but for s 86D), and the relatively low gravity of his first and second strike offences, she submitted that a sentence of 10 years’ imprisonment was disproportionately severe in the circumstances. A more appropriate sentence would have been in the realm of just under four years. As Mr Ratima has been in custody since his arrest in May 2016, he is consequently a time-served prisoner.

Discussion

• [37] We accept, as Mr Marshall for the Crown accepted, that Mr Ratima’s 10-year sentence was disproportionate to the seriousness of his offending. While his offending was serious, involving striking and stomping to the head, in the absence of s 86D it would not have warranted a sentence of 10 years’ imprisonment. This was recognised in the High Court Judge’s finding of manifest injustice at sentencing — applying a grossly disproportionate test, akin to Fitzgerald — albeit that she considered there were factors pointing towards and against that finding.
• [38] We also accept that an offender’s mental health is a relevant consideration when determining whether a sentence breaches s 9 of NZBORA.^[44] Mental health that is linked to the offending is relevant to the sentence that would have been imposed but for the three strikes regime and may also be relevant insofar as it indicates that the premise underpinning the deterrence rationale, that offenders can understand and respond to the strike warning, is wrong, which this Court has indicated is a relevant factor.^[45]
• [39] It is not disputed that Mr Ratima has a complex and long-standing history of mental illness. As Ms Gray submitted, Mr Ratima’s psychiatric history was succinctly canvassed by Dr Kumar in his first assessment report, dated 23 November 2016:

Mr Ratima was first admitted to Rotorua Hospital between 21.5.07 - 28.5.07 when he received the diagnosis of acute and transient psychosis. He was transferred to Tauranga Hospital on 28.5.07 as he was from the Bay of Plenty region. He remained in the acute psychiatric unit until 9.6.07 and was transferred to the Henry Rongomau Bennett Centre (HRBC), Waikato Hospital, Hamilton on 9.6.07 as his parents lived in Tokoroa. Mr Ratima’s diagnosis was changed to that of bipolar affective disorder currently manic with psychotic symptoms and he remained an inpatient until 25.6.07. Since then Mr Ratima has had 10 further hospital admissions. He has received a variety of diagnoses including paranoid schizophrenia, psychotic illness, and schizoaffective disorder, though bipolar affective disorder with psychotic symptoms appears to be the most consistent diagnosis. He has often presented with grandiose delusions, elevated mood and irritable mood. He was made subject to an indefinite compulsory treatment order on 30.11.10. His treatment order has invariably lapsed in the past following sentencing. He has often been treated with depot antipsychotic injections, even then his adherence has remained poor. While in prison, however, Mr Ratima exercises his right to refuse medication on a regular basis while demanding addictive medication.

Mr Ratima’s last hospital admission was between 4.4.14 - 7.4.14 when he was admitted to the HRBC. He has mostly remained in prison since 2014 when he was followed up by Puawai: Midland Regional Forensic Psychiatric Service, prison liaison team, while he was serving a prison sentence for two counts of shoplifting, two counts of theft, two counts of robbery by assault. He was still subject to one year of standard release conditions when he is alleged to have committed the index offences. The majority of his hospital admissions have been associated with treatment non-adherence, illicit drug use and psychosocial difficulties including homelessness.

• [40] Mr Ratima’s mental health was accepted to have had a causal role with both his first and second strike offences. However, there was a dispute as to whether he was affected by his mental illness at the time of the most recent offending.
• [41] Ms Gray emphasised that Dr Kumar’s second assessment, dated 8 February 2017, indicated that, following release from prison in April 2016, Mr Ratima had been unable to get access to his prescribed medications. In the three weeks between release and the offending, he was unmedicated and under the influence of drugs and alcohol. He admitted to Dr Kumar that, following his release from prison, he immediately started binging on large quantities of drugs. Following his arrest, Mr Ratima presented as “expansive, excitable, pressured and slightly disinhibited until June 2016”.^[46]
• [42] As Ms Gray acknowledged, in Dr Kumar’s second assessment, he formed the view that Mr Ratima’s offending was independent of his mental health condition:

It is my considered opinion, that Mr Ratima’s offending on 15.5.16 was independent of his mental health condition. As reported by Mr Ratima, and based on the information contained in his psychiatric notes, he was treatment non-adherent and had been using large quantities of illicit drugs during the time he committed the index offence. There is no evidence to suggest that Mr Ratima displayed florid signs or symptoms of mental illness during this period. Despite no change in his medication regime following the index incarceration, his presentation appears to have improved as the effects of illicit drugs cleared from his system. Such improvement suggests that his initial expansive irritable and pressured presentation was due to intoxication, as opposed to any florid signs or symptoms of relapse of his mental illness.

It is, however, not uncommon for psychoactive drugs like methamphetamine, synthetic cannabis and cannabis to trigger relapse of mental illness and it can often be difficult to make a distinction between relapse and intoxication. In the case of Mr Ratima, because he settled without any changes in his psychotropic medication over a period of a few weeks, it is likely that his presentation was due to intoxication and not due to a relapse of mental illness. Had the latter been the case, it would have required changes in his medication regime with either addition or other medication or increase in dosage.

• [43] The Crown relies on this psychiatric assessment and submits that Mr Ratima’s history of mental illness does not point towards a breach of s 9. We add that the High Court Judge appropriately considered Mr Ratima’s mental health based on Dr Kumar’s two assessment reports and took Mr Ratima’s mental health into account in her assessment of the sentence that would have been imposed but for the three strikes regime.
• [44] On appeal, Mr Ratima sought leave to adduce a psychological report from Dr Kettner, a clinical psychologist, dated 12 October 2023. The report is, in substance, a review of Dr Kumar’s February 2017 report, supplemented by an interview with Mr Ratima, conducted on 13 September 2023. In it, Dr Kettner recorded his opinion that it was likely that Mr Ratima’s symptoms following the offending were “largely a result of his medication noncompliance and rapid onset of symptoms of his schizoaffective disorder.” Dr Kettner noted that Mr Ratima’s particular severe mental illness, schizoaffective disorder, typically shows a rapid deterioration and onset of symptoms when medication is ceased. In the circumstances, Dr Kettner concluded it is likely that Mr Ratima was experiencing a relapse of his mental illness up to and during his index offending:

[I]t is likely that Mr Ratima’s symptoms on presentation to jail following his offending were largely a result of his medication noncompliance and rapid onset of symptoms of his schizoaffective disorder. This suggests Mr Ratima was experiencing a relapse of his mental illness leading up to and during his index offending.

• [45] The Crown obtained a response from Dr Kumar. In his further letter, dated 16 November 2023, and as Mr Marshall submitted, Dr Kumar confirmed his original opinion that Mr Ratima’s offending was independent of his mental health condition. Dr Kumar agreed that Mr Ratima was experiencing a relapse of his mental illness at the time of the offending, but said:

Neither Dr Kettner’s report nor mine offers any suggestion that Mr Ratima’s offending was due to relapse of his mental illness. Dr Kettner concludes in his report “this suggests Mr Ratima was experiencing a relapse of his mental illness leading up to and during his index offending”. Just because a person is experiencing a relapse of his mental illness, it does not necessarily mean that their offending is due to relapse of their mental illness. In a psychiatric context association between relapse of mental illness and offending does not mean that there is a causal link between the two. A person can display florid signs and symptoms of mental illness and may commit an offence. This would not necessarily mean that their offending is caused by their mental illness.

• [46] The Crown opposed admission of Dr Kettner’s report on the basis it is not fresh in a material sense (despite his recent interview with Mr Ratima) and is of limited cogency. Ultimately, however, counsel agreed by joint memorandum that, to avoid the need for Dr Kumar to give further evidence, one supplementary question would be put to Dr Kumar in writing for a response, and that the Court may have regard to the question and answer in determining the issues before it in this proceeding:

The appellant asked:

Can Dr Kumar exclude the possibility that Mr Ratima’s illness had some correlation to the offending?

Dr Kumar’s written response was:

I can confirm in my opinion there is a possibility that Mr Ratima’s illness had some correlation to the offending. His illness may have contributed to impulsive actions and impaired judgement.

• [47] Ms Gray did not suggest that either expert draws a causative link but, based on this further material, we accept there is a possibility that Mr Ratima’s mental health had some correlation to his offending.
• [48] Even so, this possibility does not appear to render Mr Ratima’s sentence in breach of s 9, having regard to the three factors in Phillips referred to above at [34], for the following reasons.
• [49] As to the first factor, irrespective of the possible correlation between Mr Ratima’s mental health and his offending that Dr Kumar has now acknowledged, and its mitigating effect on the seriousness of the offending, there is no difference in the nature of the sentence that would otherwise have been imposed and the fact that a prison sentence must be imposed under s 86D(2). Ms Gray did not suggest that a sentence of imprisonment should not have been imposed. As Mr Marshall submitted, this case is some way away from Fitzgerald, where a non-custodial sentence was possible.
• [50] Turning to the second factor, irrespective of the possible correlation between mental health and offending and its mitigating effect, Ms Gray further accepted the Judge’s conclusion that a sentence of three years and 11 months’ imprisonment would have been appropriate absent the three strikes legislation in place at the time. At sentencing, counsel for Mr Ratima submitted that, but for the three strikes regime, a sentence of between four and five years’ imprisonment would have been available. Mr Marshall submitted that three years and 11 months’ imprisonment would have been towards the bottom end of the available range. Taking into account the possible correlation between Mr Ratima’s mental illness and his offending as a factor relevant to Mr Ratima’s culpability, together with the other relevant sentencing purposes and principles, we also consider that a sentence of at least three years and 11 months’ imprisonment would have been appropriate but for the three strikes regime. Further, there was no suggestion that, absent the three strikes regime, a 50 per cent MPI (just under two years’ imprisonment) was not warranted in the circumstances. Three of the relevant purposes were engaged here: denouncing and deterring unprovoked violent offending; and protecting the community.^[47]
• [51] This means that the 10-year third strike sentence imposed under s 86D extended Mr Ratima’s sentence by a multiple of approximately 2.55 — that is, the sentence was 2.55 times longer than the sentence that would have been imposed absent the three strikes law. We accept that, in the case of more serious offences with higher maximum penalties, the same multiple reflects a higher disparity in terms of the actual additional period. As this Court said in Phillips, it may also be necessary to take into account the actual difference in years.^[48] In Sheers, this Court said that, when considering the ultimate issue of whether the national conscience is appropriately shocked, the absolute differential is more instructive.^[49] Here, the disparity in end sentence is just over six years. That additional period is significant, as the Crown accepted, and is not justified by, or rationally connected to, the purposes or principles of sentencing set out in the Sentencing Act. The same can be said of the longer MPI, which was 2.55 times, and just over three years, longer.^[50]
• [52] However, as this Court said in Pearce, this disconnect from sentencing principles was an inherent feature of the three strikes regime.^[51] Further, Parliament chose, when it repealed the three strikes legislation, not to extend the benefit of repeal to those who had already been sentenced, like Mr Ratima. This Court has upheld sentences that have involved similar, or greater, disparities: Allen (2.3 times); Waitokia (3.5 times); Liai (non-parole period: between 1.67 and 2 times); and Pearce (non‑parole period: 2 times).^[52] The allowed appeals generally involved significantly greater disparities: Phillips (5.6 times); Mitai‑Ngatai (3.5 times — and said to be close to not offending against s 9); Love (6.7 times); and Sheers (4.6 times).^[53]
• [53] The exception, not cited to us, is the s 86C case of Crowley-Lewis v R,^[54] where the multiple was between 2 and 2.3. In that case, as this Court noted in Liai, the Court held that removing the opportunity for parole was disproportionate and engaged the principles of Fitzgerald and Matara.^[55] However, a critical distinguishing factor between that case and Liai — and this case — is that the conduct which led to the first strike warning in Crowley-Lewis could have been appropriately charged as a less serious offence which would not have attracted any warning.
• [54] We accept that the multiple is only one factor, but it is helpful in the absence of other compelling factors. We also accept that here the actual difference in years — just over six years — is higher than in the other s 86D cases where the sentence has been upheld — Allen and Waitokia — but those cases involved charges with shorter maximum penalties of seven years. Even so, in Waitokia, the difference was five years. Two of the allowed appeals, Phillips and Mitai-Ngatai, also involved charges with maximum penalties of seven years, with differences of five years and nine months and five years respectively. Love involved a maximum penalty of 10 years and a “but for” sentence of 18 months, so the disparity was eight and a half years. Sheers involved a maximum penalty of 14 years and a “but for” sentence of three years, so the disparity was 11 years. The previous cases do not indicate a brightline in terms of the actual difference in years. We do not consider an actual difference of six years automatically indicates a breach of s 9.
• [55] Mr Ratima’s offending was more serious than the offending in all of these cases, even taking into account the possible correlation between his mental health and the offending, as is evident from their “but for” sentences (Allen and Sheers being the next most serious with “but for” sentences of three years’ imprisonment). Mr Ratima’s offending was a violent and unprovoked robbery which included stomping on the victim’s head twice before stealing his cell phone. It involved high risk and gratuitous violence.
• [56] As the Crown submitted, public protection is a core purpose for which a sentence may be imposed, as reflected in s 7(1)(g) of the Sentencing Act. Indeed, the three strikes regime itself was directed at protecting the community “by incapacitating ... offenders for longer periods”,^[56] as Winkelman CJ confirmed in Fitzgerald.^[57]
• [57] Accepting that Mr Ratima has complex needs, given his mental health and substance abuse history, this Court has confirmed that “the interface of public safety and diminished responsibility flowing from psychiatric or behavioural disorders requires caution” and “in some cases reduced moral responsibility might have to be countered by proper considerations of public safety.”^[58] Thus, a mental illness or disorder that “manifest[s] in violence may require a deterrent and protective, rather than a mitigated, response”.^[59] Those observations apply with some force to Mr Ratima, given his rapid accumulation of convictions for serious violent offending against randomly selected members of the public. In Love and Sheers, the appellants’ mental health issues weighed in favour of a breach of s 9 but, in both cases, there was a closer causal connection between those issues and the offending, and the disparity was much greater, as indicated.
• [58] We do not accept Ms Gray’s submission that limited weight should be placed on the fact that Mr Ratima was not required to serve the entirety of his 10-year sentence without parole. In Matara, where the offender was ordered to serve his full sentence without parole under s 86C, this Court said it proceeded on the basis that it was not in a position to assess the prospect of parole being granted by the Parole Board.^[60] It made no assumptions that he would be granted parole, but nor did it assume that the opportunity of parole was of no practical significance. Here, the position is the reverse. Mr Ratima was not ordered to serve his 10-year sentence without parole. We also make no assumption about when (or if) Mr Ratima will be granted parole. However, the five-year MPI cannot be ignored as part of the sentence. Other things being equal, a sentence without a non-parole order is less likely to breach s 9 than one with such an order.
• [59] Mr Ratima has been eligible for parole since 3 February 2022.^[61] Under the Parole Act 2002, Mr Ratima “must not be detained any longer than is consistent with the safety of the community”.^[62] Thus, as the Crown submitted, Mr Ratima’s sentence does not permit his continued incarceration beyond the point at which he no longer poses a risk to the community, unlike in Matara.^[63]
• [60] In relation to the third factor in Phillips, we do not consider it can be said that Mr Ratima is plainly an inadvertent and unforeseen casualty of the three strikes regime. We make three points in this regard.

(a) We do not accept Ms Gray’s submission that the purpose of the previous three strikes regime was limited to addressing persistent, repeat perpetrators of serious violence. The definition of “serious violence offence” in the three strikes legislation included any offence against prescribed provisions of the Crimes Act.^[64] Some of the prescribed offence provisions involved less serious violence than others, but s 86D applied to them all (except murder, which was addressed in s 86E).

(b) Mr Ratima is a repeat violent offender. His first and second strike offending involved moderately serious, unprovoked violence on members of the public. This level of seriousness was reflected in his sentences of imprisonment of one year and 16 months respectively. As the Crown noted, Mr Ratima had also previously been imprisoned for aggravated assault in 2011. Further, as Ms Gray accepted, Mr Ratima’s third strike offending was markedly more serious, as described.

(c) While we accept that Mr Ratima’s mental health had a role in his first and second strike offending,^[65] his mental health appears stable when he takes his medication in prison and there is no evidence that, at the time of sentencing for his first and second strike offending, his mental health was such that he failed to understand the consequences of his previous strike warnings.^[66]

• [61] For these reasons, we consider that Mr Ratima’s sentence of 10 years’ imprisonment with a five-year MPI does not appear so severely disproportionate that it shocks the national conscience. Considering all of the relevant factors, the appeal based on the high s 9 threshold does not appear sufficiently meritorious to weigh in favour of granting such a long extension of time to appeal.

Conclusion

• [62] Having regard to Mr Ratima’s explanation for the long delay in appealing and the doubtful merits of the appeal, which we have assessed in some detail, we do not consider that an extension of time should be granted.
• [63] As a final factor, while Mr Ratima’s subsequent sentences cannot be used to justify the 2017 sentence, we also accept the Crown’s submission that they add weight against granting an extension of time. Those subsequent charges and sentences arose after the appeal period in this case, and their outcome might well have been different in the absence of the existing sentence that reduced the need for community protection. Those sentences could not be revisited on this appeal. In these circumstances, departing from the principle of finality and reopening Mr Ratima’s earlier sentence many years later may put him in a better position than he otherwise would have been in. This would tend to undermine the administration of justice.

Result

• [64] The application for an extension of time to appeal is declined.

Solicitors:
Augusta Chambers, Auckland for Applicant
Crown Law Office | Te Tari Ture o te Karauna, Wellington for Respondent

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^[1] R v Ratima [2017] NZHC 252 [High Court judgment].

^[2] Crimes Act 1961, s 234; maximum penalty of 10 years’ imprisonment.

^[3] Sentencing Act 2002, s 86D(2). The three strikes regime, ss 86A–86I, was repealed by s 5 of the Three Strikes Legislation Repeal Act 2022, with effect from 16 August 2022.

^[4] High Court judgment, above n 1, at [29]–[31]; and Sentencing Act, s 86D(3).

^[5] Fitzgerald v R [2021] NZSC 131, [2021] 1 NZLR 551.

^[6] At [3]–[4].

^[7] Criminal Procedure Act 2011, s 248(2).

^[8] For the first strike offending see: Police v Ratima CRI-2014-019-002404, 23 September 2014 [sentencing notes of Judge R G Marshall]; and for the second strike offending see: Police v Ratima [2015] NZDC 10787 [sentencing notes of Judge N D Cocurullo] (footnotes omitted).

^[9] High Court judgment, above n 1, at [7].

^[10] At [8].

^[11] At [10].

^[12] At [14].

^[13] At [19], citing R v Harrison [2016] NZCA 381, [2016] 3 NZLR 602 at [83].

^[14] Taunoa v Attorney-General [2007] NZSC 70, [2008] 1 NZLR 429 at [91] per Elias CJ and [176] per Blanchard J.

^[15] At [289] per Tipping J.

^[16] R v Harrison, above n 11, at [39] and [108(b)].

^[17] High Court judgment, above n 1, at [23].

^[18] At [24].

^[19] At [25].

^[20] Footnotes omitted.

^[21] At [31].

^[22] R v Knight [1998] 1 NZLR 583 (CA) at 587; and R v Lee [2006] NZCA 60; [2006] 3 NZLR 42 (CA) at [96].

^[23] R v Slavich [2008] NZCA 116 at [14]. See also Mikus v R [2011] NZCA 298 at [26].

^[24] R v Knight, above n 22, at 588–589.

^[25] Kriel v R [2024] NZCA 45 at [81]–[82].

^[26] Fitzgerald v R, above n 5, at [116].

^[27] At [160].

^[28] R v Ratima [2019] NZHC 1586 [sentencing notes of Lang J].

^[29] R v Ratima [2022] NZDC 8037 [sentencing notes of Judge P J B Winter]. We infer this meant cumulative on the previous sentence, which was cumulative on the 2017 sentence.

^[30] Sentencing notes of Lang J, above n 28, at [12]. The Crown sentencing submissions similarly sought only a “relatively modest uplift of two months” for Mr Ratima’s previous convictions, given he was “already serving a 10-year sentence and will therefore be subject to a sentence for a number of years to come”.

^[31] Sentencing notes of Judge P J B Winter, above n 29, at [27].

^[32] Pearce v R [2024] NZCA 60. That case concerned the no parole requirement for second strike offences under s 86C (footnotes omitted).

^[33] Fitzgerald v R, above n 5, at [3] (footnote omitted).

^[34] At [76] per Winkelmann CJ, at [161] per O’Regan and Arnold JJ, and at [240] per Glazebrook J.

^[35] At [4], [6], [106], [219], [231], [236], and [245].

^[36] Matara v R [2021] NZCA 692 at [73].

^[37] Phillips v R [2021] NZCA 651, [2022] 2 NZLR 661 at [4] and [34]; and Mitai-Ngatai v R [2021] NZCA 679 (result), [2021] NZCA 695 (reasons).

^[38] Love v R [2022] NZCA 614 at [17].

^[39] Waitokia v R [2023] NZCA 224 at [38], referring to: R v Morgan [2022] NZHC 790; R v Lloyd [2022] NZHC 1044; R v Tikena-Stuchbery [2022] NZHC 1266; and R v Kawhe [2022] NZHC 1852. The exception is R v Walford [2022] NZHC 69 which makes no reference to the Supreme Court’s decision in Fitzgerald v R and the question as to whether s 9 of NZBORA was breached was not considered.

^[40] Phillips v R, above n 37; Mitai-Ngatai v R, above n 37; Love v R, above n 38; Sheers v R [2022] NZCA 618; and Allen v R [2022] NZCA 630.

^[41] Phillips v R, above n 40, at [28].

^[42] Sheers v R, above n 43, at [22].

^[43] Allen v R, above n 40, at [36]–[37].

^[44] Fitzgerald v R, above n 5 at [80]–[82], [141], [231], and [252]; Matara v R, above n 36, at [74]; and Liai v R [2023] NZCA 326 at [39].

^[45] R v Harrison, above 13, at [96].

^[46] Corrections records show that Mr Ratima was put back on his prescription medication around this time. He has remained on the same medication in prison.

^[47] Sentencing Act, s 86(2)(b), (c), and (d).

^[48] Phillips v R, above n 40, at [28].

^[49] Sheers v R, above n 40, at [23].

^[50] Comparing a 50 per cent MPI of just under two years’ imprisonment (on a sentence of three years and 11 months’ imprisonment) with the five-year MPI.

^[51] Pearce v R, above n 32, at [85].

^[52] Allen v R, above n 40; Waitokia v R, above n 39; Liai v R, above n 44; and Pearce v R, above n 32.

^[53] Phillips v R, above n 37; Mitai-Ngatai v R, above n 37; Love v R, above n 38; and Sheers v R, above n 40.

^[54] Crowley-Lewis v R [2022] NZCA 235.

^[55] At [33]; and Liai v R, above n 44, at [43].

^[56] Sentencing and Parole Reform Bill 2009 (17-7) (explanatory note).

^[57] Fitzgerald v R, above n 5, at [186].

^[58] R v Lucas-Edmonds [2009] NZCA 193, [2009] 3 NZLR 493 at [36].

^[59] R v Taueki [2005] NZCA 174, [2005] 3 NZLR 327 (CA) at [45]. See also E (CA689/10) v R [2011] NZCA 13, (2011) 25 CRNZ 411 at [69]; Abdille v R [2012] NZCA 119 at [25]; and Orchard v R [2019] NZCA 529, [2020] 2 NZLR 37 at [47].

^[60] Matara v R, above n 36, at [69].

^[61] This was not in dispute. We apprehend the Crown calculated Mr Ratima’s parole eligibility by reference to s 84(4) of the Parole Act 2002 and this Court’s decision in Opetaia v R [2013] NZCA 434 at [27]: that is, adding his MPI of five years plus one-third of each of his subsequent cumulative sentences of 17 months and nine months, totalling five years and eight and two-third months.

^[62] Parole Act, s 7(1) and (2)(a).

^[63] Matara v R, above n 36, at [68].

^[64] Sentencing Act, s 86A.

^[65] Sentencing notes of Judge R G Marshall, above n 8, at [3]; and sentencing notes of Judge N D Cocurullo, above n 8, at [5].

^[66] Although initially disputed, it was accepted that Mr Ratima received his strike warnings.