ROTA V POLICE HC GIS CRI 2009-416-20 [2009] NZHC 1248 (14 September 2009)

IN THE HIGH COURT OF NEW ZEALAND
GISBORNE REGISTRY
                                                         CRI 2009-416-20
    
                                                    CRI 2009-416-21



                                 TU TE MAPU ROTA
        
                             Appellant



                                             v



                              NEW ZEALAND
POLICE
                                   Respondent



Hearing:        14 September 2009

Appearances: L J L Hemi for Appellant
             S B Manning for Respondent

Judgment:       14 September 2009


                              JUDGMENT OF KEANE J




Solicitors:

Rishworth Wall & Mathieson
Crown Solicitor, Napier


ROTA V POLICE HC GIS CRI 2009-416-20 14 September 2009

[1]
   On 24 July 2009 Tu Te Mapu Rota was sentenced to 21 months
imprisonment for offences on two occasions. On 4 December 2008 he took
a vehicle
dishonestly. On that and the next day he got dishonestly into three cars. He was
sentenced concurrently to 12 months imprisonment
for each of those four offences.


[2]    On 10 February 2009 Mr Rota committed an aggravated assault. He was
sentenced cumulatively
to nine months imprisonment for that offence. Two other
offences, not the subject of this appeal, were also the subject of sentence.
He was
sentenced to one month's imprisonment, concurrently, for resisting and assaulting
police on 18 April 2009.


[3]    On this
appeal Mr Rota contends that the sentence discretely and in its
totality was manifestly excessive. The sentences imposed, it is his
essential point on
this appeal, may conceivably have been within the range of sentence open to the
Judge but only as starting points.
The Judge did not identify any explicit starting
point. Nor did he give any explicit account for plea or age. Mr Rota was then 17
or
18.


[4]    That the sentence was excessive as to the December 2008 offences, Mr Rota
contends, is brought home by the fact that
for those offences his co-offender was
sentenced concurrently to one month's imprisonment on each.


Offences


[5]    The December
2008 offending commenced on 2 December when Mr Rota
and his co-offender, Mr McRoberts, some ten years older, travelled from Wairoa
to
Gisborne in a Subaru Legacy that the co-offender had broken into.


[6]    On 5 December in Valley Road, Gisborne, Mr Rota, emulating
his
co-offender, `popped' the door lock of another Subaru Legacy with a screw driver
and smashed the ignition barrel. Then in Roebuck
Road his co-offender stole the
next Subaru Legacy. They later abandoned both. With a third person his co-offender
broke into a fourth
Subaru Legacy in Gladstone Road. This trail of offending ceased
when that last car broke down. The police found Mr Rota hiding in
a nearby ditch.

[7]    Mr Rota was co-operative. He admitted that Subaru Legacies had been
targeted because they were easy to steal.
He was allowed bail. He then became party
to a yet more troubling form of offence.


[8]    On 10 February 2009, at 4 pm, he and
his alleged co-offender, Mr Waiwai,
who denies his part and is to go to trial, and three others, were in a white station
wagon on
Midway Beach. At 4 pm the complainant, a 20 year old, rode his Honda
trail bike along the beach to check the surf. He noticed the
white station wagon
parked on the beach ahead near the low waterline. As he approached, on the facts
before the Judge, Mr Waiwai,
the driver, got out and waved him down.


[9]    The complainant, believing the station wagon to be stuck, offered to help, but
left
his engine running. Mr Waiwai took hold of the handle bars, demanded a ride,
challenged the complainant to a fight for the ownership
and tried to remove his crash
helmet. Fearful, the complainant turned the bike, intent on riding off; and that was
when Mr Rota intervened.


[10]   Mr Rota got out of the station wagon and, demanding a ride, ran towards the
complainant. He swung a punch, connecting with
the side of the complainant's
helmet, knocking him sideways off his bike. The complainant retained control,
righted the bike and accelerated away.


[11]   All
five in the station wagon gave chase. They pursued the complainant along
the Centennial Marine Drive. He managed to lose them and
contacted the police.


Pre-sentence report


[12]   Mr Rota's pre-sentence report described him, at age 18, as a forestry student
living with his mother. It went on to say that he had grown up in a gang culture, his
extended family were gang affiliates, and by
age 16 he had committed a number of
offences including one serious violent offence.


[13]   Mr Rota was described as having a borderline
to harmful drinking pattern. He
had admitted to using illicit drugs. That pattern was seen to be key to his offending.

He was assessed
to have a propensity to violence, and to lack insight, and was rated
as at medium risk of re-offending. But, because he was unlikely
to engage in any
program, he was considered to be at possibly higher risk.


[14]   The present offences for sentence, the report
said, were instances of
offending attributable to peer pressure. It concluded on the unpromising note that Mr
Rota was so embedded
in gang culture that any sentence in the community would be
futile. Imprisonment was recommended.


Sentence under appeal


[15]
  The Judge characterised the incident on the beach as `significant banditry'; as
close to an attempted aggravated robbery. It was
fortunate, the Judge said, that after
Mr Rota's punch the victim did manage to recover control and decamp. It knocked
him sideways
off his bike.


[16]   As to the vehicle related offending, the Judge said, Mr Rota was party to
every offence, even if he was simply
waiting nearby. By that I understand the Judge
to mean that Mr Rota was implicated to the extent alleged.


[17]   The Judge took
account of Mr Rota's age. He accepted that he might have
suffered disadvantage in his early life, but considered that regrettably
common place.
Mr Rota had become, he said, embedded in gang culture and had in these two
passages of offending acted out of bravado.
That called for a firm response.


[18]   The Judge accepted that at age 18 there were strictures on a sentence of
imprisonment.
But, he considered, nothing less was called for. Indeed, he decided,
cumulative sentences ought to be imposed. Plainly he had it
in mind to hold Mr Rota
accountable and to impose a sentence that was both personally and generally
deterrent.


Formal omissions


[19]   The Judge's omission to adopt an explicit starting point for either of the

principal passages of offending or to say to
what extent, if at all, he gave Mr Rota
any credit for his plea, and his youth, means that I must revisit the sentence imposed.


[20]   As the Court of Appeal has said, most recently in R v Fanguna  [2009] NZCA
316, sentences must be explicit from starting to end point. And where a factor, like
plea, does not figure, as Ronald Young J said in
Taylor v Police (HC WN, CRI
2005-485-182, 28 February 2006), the only safe inference often has to be that it was
never considered,
even if that is not true.


Vehicle offences


[21]   As to the car offending, I do not regard the fact that the co-offender received
one month's imprisonment for his more serious part in that offending raises acutely
the question of disparity. The two were not charged
as co-offenders. Neither
sentencing Judge was asked to rate the part each played relative to the other.


[22]   More significantly,
the co-offender was sentenced to two and a half years
imprisonment for his lead offences, burglaries. Those imposed for the vehicle
offending were concurrent. The primary focus of the sentencing Judge must clearly
have been on the principal offending.


[23]  
Because, however, the sentence imposed on the co-offender, who played the
principal part, was so very much less than that imposed
on Mr Rota, that is a further
reason to revisit Mr Rota's sentence if only to allay any perception of injustice he
might have.


[24]   The vehicle offending, a series of offences over two days, was offending of
some seriousness, as the Judge said. It was not
so serious, as to warrant the sentence
the Judge imposed, 12 months. Whether the Judge took that as his starting point
without reference
to Mr Rota's plea and age, or took an even higher starting point, it
cannot be supported.


[25]   However serious that offending
was, as the Judge said also, Mr Rota's part,
with one exception, was confined to being present while others, Mr McRoberts

especially,
played the principal part. Mr Rota, in the main, got into vehicles others
had broken into.


[26]   The part Mr Rota played, I consider,
at most justifies a starting point of nine
months imprisonment, and with credit for plea, a six month term on each
concurrently.


Aggravated assault


[27]   The aggravated assault on the beach was potentially serious. The Judge was
right to describe it as
`significant banditry'. It did not end on the beach. It resulted in
a pursuit. Conceivably, as the Judge said, it amounted to an
attempted aggravated
robbery. That cannot be determinative. What must be is Mr Rota's relative part.


[28]   On the facts before
the Judge, Mr Waiwai, even though he is to go to trial,
was the principal player. It was he who took hold of the complainant's bike.
It was
he who challenged the complainant. It was he who attempted to remove the
complainant's crash helmet. Mr Rota's part was confined
to one single impulsive act.


[29]   The Judge was right to say that Mr Rota's punch must have had some force.
It knocked the complainant
sideways off his bike. But that was the matter of a
moment. The complainant did retain control and did not suffer any injury.


[30]
  For this offence, if the Judge took a starting point, it must have been in excess
of 12 months. Despite the context no greater
starting point than nine months could be
justified. A credit of three months for plea leaves as a proper sentence six months
imprisonment.


Conclusion


[31]   I allow the appeal. I quash the sentence imposed. I substitute for the 12
month term for the vehicle offences
six months imprisonment, imposed
concurrently. I impose cumulatively, in place of the nine month term for the

aggravated assault,
six months. The result on this appeal is a sentence of 12 months
imprisonment.


                                               
           _____________
                                                           P.J. Keane J