RANGINUI V NEW ZEALAND POLICE HC WN CRI-2009-483-000039 [2009] NZHC 1465 (23 October 2009)

IN THE HIGH COURT OF NEW ZEALAND
WELLINGTON REGISTRY
                                                              CRI-2009-483-000039



                          ARIANA RIANA RANGINUI
                                 Appellant



                               
          v



                            NEW ZEALAND POLICE
                                 Respondent



Hearing:      20 October
2009

Counsel:      D Goodlet for appellant
              L Rowe for respondent

Judgment:     23 October 2009



              
     RESERVED JUDGMENT OF DOBSON J



[1]    On 1 April 2009, Ms Ranginui was sentenced in the District Court at
Wanganui on the
two more serious of four convictions, in respect of which she had
earlier pleaded guilty in the Youth Court. The convictions dealt
with in the District
Court were for aggravated robbery and aggravated wounding, both offences carrying
a maximum penalty of 14 years'
imprisonment.          On each conviction, she was
sentenced to four years six months' imprisonment.


[2]    Ms Ranginui first applies
for leave to appeal out of time, in circumstances
accepted by the Police as justifying that. Subsequent to her sentencing, Ms Ranginui
was re-interviewed by the Police and provided further important information about

RANGINUI V NEW ZEALAND POLICE HC WN CRI-2009-483-000039
23 October 2009

the circumstances of the offending. At that time, her co-offender, Mr Renata, had
disputed the facts in relation
to the charges he faced arising out of the offending, but
the further information provided to the Police by Ms Ranginui, and her
preparedness
to give evidence on those matters, is treated by the Police as instrumental in the co-
offender eventually electing
not to dispute the facts of his own offending.


[3]    It is in those circumstances that the Crown wrote to Ms Ranginui's counsel,
leading to the present application to appeal her sentence out of time, which
application the Crown, quite properly, does not oppose.
Accordingly, such leave is
granted.


[4]    As to the circumstances of the offending, Ms Ranginui and Mr Renata went
to the home
of a 67 year old man in Wanganui at night. They went to the rear door
and removed the outside light bulb. Mr Renata then knocked
on the door and when
the victim answered, both offenders rushed through the door, forcing the victim
through the kitchen and into
his dining room. Mr Renata was armed with a machete,
which he held over the victim's head and gashed the victim's head with it. This
caused a profuse amount of bleeding and later required 10 stitches. Mr Renata made
demands for his EFTPOS card and its PIN. The offenders
took the victim into the
spare room in his home where Mr Renata continued to assault him. The victim
disclosed that his card was
in the glove box of his car and Ms Ranginui then
collected the card, together with the victim's wallet, cheque book and $1,300 in
cash
from the car. She then returned inside and subsequently both offenders left the
house. The victim was required to take three
weeks off work, spent a night in
hospital and had to have his home commercially cleaned to get rid of the large
amount of blood spilt
in the course of the attack. The offenders attempted to use the
EFTPOS card to extract cash, but used an incorrect PIN, meaning that
the machine
retained the card.


[5]    The notes of District Court Judge Callinicos on sentencing run to
91 paragraphs and reflect
a careful and thorough analysis of all the considerations
relevant to the sentencing, as the matter was presented to him at the time.
The Judge
was sentencing Ms Ranginui without knowing the starting point set for Mr Renata,
who was to be treated as taking a somewhat
larger role in the overall offending than

Ms Ranginui. At the time of the offending, he was aged 19, with a record of
previous
convictions, and Ms Ranginui was aged 15.


[6]      The present appeal is brought on two grounds. First, that it is appropriate
to
have regard to the post-sentencing assistance provided by Ms Ranginui. Secondly,
that the Judge settled on too high a starting point for the sentence.


[7]      It
is conceded for the Police that there is merit in the first ground of appeal
and I will return to it.


[8]      As to the second,
the sentencing Judge applied the guidelines from the
decisions in R v Mako  [2000] 2 NZLR 170 (CA) for aggravated robbery, and
R v Taueki  [2005] 3 NZLR 372 (CA) in respect of wounding. He was also guided by
the more recent Court of Appeal decision in R v Royal  [2009] NZCA 65, which he
treated as providing a concise summary of key principles arising in sentencing on
home invasion type aggravated robberies.


[9]      In Mako, the Court of Appeal observed that any list of features of aggravated
robbery offending could not be exhaustive,
and then mentioned a sequence of
factors, "if only to emphasise their variability" ([35]). Paragraphs [36] to [51]
identified the
following:


      · the degree of planning and preparation, the number of participants and the
         nature of their deployment;


      · disguises and other means of concealing identity;


      · the number, type and use of weapons;


      · target premises
or persons;


      · presence of members of the public;


      · violence (distinct from threats and intimidation);

   · the
property stolen and whether recovered;


   · associated offending such as converting vehicles or taking hostages;


   · victim
impact;


   · gang involvement (although not all criminal offending by gang members has
       a gang connection);


   · the need
for deterrence; and


   · multiple offending involving separate incidents.


[10]   With respect, I agree with the evaluation of
each of these criteria by the
sentencing Judge, and with his conclusion "that there [were] a spread of features,
most of which indicate
that this robbery was at a high level of criminality".


[11]   The Judge cited [58] from Mako as a further reference point. It observed:

       [58]    Forced entry to premises at night by a number of offenders seeking
       money, drugs or other property, violence
against victims, where weapons are
       brandished even if no serious injuries are inflicted would require a starting
       point
of seven years or more. Where a private house is entered the starting
       point would be increased under the home invasion provisions
to around
       10 years.

[12]   After consideration of further Court of Appeal decisions, the Judge
determined that a starting
point of nine years was appropriate in the present case.
Again, with respect, I agree with the analogies drawn with the decisions
in
R v Fenton  [2008] NZCA 379 and with Royal.


[13]   Ms Goodlet submits that a lower starting point was appropriate because
greater disparity ought to have been
recognised between Ms Ranginui and the
offending by Mr Renata, that she was a first offender and that the nature of her
offending
(as distinct from mitigating circumstances) ought to take into account her
naiveté and age.

[14]   I do not accept that her age
and naiveté can be a relevant factor in
determining the starting point. Whilst certainly highly material in assessing the
mitigating
factors influencing the relative movement from the starting point, there is
no scope to take into account Ms Ranginui's relative
youth, at both stages.


[15]   The Judge was sentencing Ms Ranginui without knowing the starting point to
be fixed for Mr Renata.
That was subsequently set at 12 years, although Mr Rowe
advises me that that sentence is also under appeal. Considering the comparability
of
starting points between them, Ms Ranginui's at nine years is a 25 percent discount
from Mr Renata's. If anything, that could be
characterised as generous, having
regard to the observations, most recently in Royal (see [20]) that offenders who are
not directly
involved cannot be expected to be less culpable than those more directly
involved. Here, although taking the "junior" role in most
respects, Ms Ranginui was
nonetheless directly involved.


[16]   Further, if the relative seriousness of the offending was measured
by
reference to the factors identified in Taueki in respect of the scale of grievous bodily
harm offending, there is a fair proportion
of such factors on which Ms Ranginui's
offending would have to be treated as the same as Mr Renata's.


[17]   An additional point
raised by Ms Goodlet as to the starting point was that the
further information provided by Ms Ranginui to the Police after her sentencing,
placed her offending in a less serious light, particularly in relation to the respective
parts of the offending committed by her
and by the co-offender. This point was a
twin-edged sword for the appellant. Matters revealed to the Police only after her
sentencing
included the fact that she and Mr Renata had previously burgled the same
premises, and that it was on that occasion that the machete
used in the aggravated
robbery and aggravated wounding was stolen. I agree with Mr Rowe that any lesser
seriousness possibly attributable
to the matters subsequently revealed by
Ms Ranginui is at least equally balanced by the additional seriousness reflected in
the prior
burglary at the premises, and the additional aspects of pre-meditation and
planning that that activity connotes.


[18]   Accordingly,
I am not persuaded that there was any error in the starting point.

[19]    It is also relevant to note that a very substantial
discount of 50 percent was
afforded by the sentencing Judge from that starting point, for Ms Ranginui's guilty
plea, and her age.


[20]    Returning then to the material change in circumstances subsequent to her
sentencing, it is accepted for the Police that
this assistance was material, and is
sufficient to warrant a further 10 percent discount from the starting point. That
approach on
behalf of the respondent reflects the observation in the recent guideline
decision on discounts for guilty pleas, R v Hessell  [2009] NZCA 450. At  [23] of that
decision, it was recognised that one circumstance in which a discount for a guilty
plea will be amalgamated with another
factor is where a discount is appropriate for
assistance to the Police with respect to co-offenders. The paragraph continued:

 
      In those circumstances, courts have tended to amalgamate those discounts.
        For instance, in R v Hadfield CA337/06 14
December 2006, this court
        suggested that up to a 60% discount might be appropriate in cases where a
        defendant entered
a guilty plea at the first reasonable opportunity and
        rendered or promised to render considerable assistance to the police
with
        respect to co-offenders. We confirm that approach. It should be noted,
        however, that a 60% discount will be
warranted only where the guilty plea is
        at the first reasonable opportunity and the assistance to the authorities is
   
    substantial. If the guilty plea is late, then the reduction will be
        correspondingly reduced. Similarly, if the assistance
to the authorities is not
        particularly significant, the reduction will be reduced.

[21]    I agree with the approach suggested
by the respondent, that the circumstances
here fit within those contemplated in Hessell, to the extent that the assistance
justifies
an additional 10 percent reduction from the starting point. I accordingly
grant leave for the appeal to be pursued out of time, and
allow the appeal on this
factor, which has arisen since the sentencing in the District Court. I accordingly
substitute for the original
sentence of four years and six months' imprisonment, a
term of imprisonment of three years and seven months, amounting to a 60 percent
deduction from the starting point of nine years.




                                                                          Dobson
J

Solicitors:
Debbie Goodlet, Wanganui for appellant
Armstrong Barton, Wanganui for respondent