Ratahi v Police [2012] NZHC 2362 (13 September 2012)

Last Updated: 24 September 2012

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2010-470-30 [2012] NZHC 2362

LEON RATAHI

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing: 13 September 2012

Counsel: R Stevens for Appellant

N Belton for Respondent

Judgment: 13 September 2012

_{JUDGMENT OF TOOGOOD J}

Solicitors:

R Stevens, Public Defender Northern, Tauranga: [e-mail]

N Belton, Ronayne Hollister-Jones Lellman, Tauranga: [e-mail]

RATAHI V NEW ZEALAND POLICE HC ROT CRI-2010-470-30 [13 September 2012]

[1] Leon Ratahi is aged nearly 19 years. He has not previously been imprisoned but he now faces the prospect of 17 months and two weeks imprisonment having been sentenced to that term by Judge Geoghegan in the District Court at Rotorua on

9 August 2012, but granted bail pending the hearing of this appeal.

[2] The sentence was imposed on charges of robbery, dangerous driving, driving with excess breath alcohol and failing to stop for the Police, arising out of what the Judge rightly described as a very serious incident.

[3] The Judge considered that the probation officer’s recommendation of community detention, supervision and an order for reparation would not be an appropriate response to the seriousness of the offending. It appears that the Judge was minded, however, to impose a sentence of home detention but said that it could not be considered given the appellant’s refusal to consent. The Judge nevertheless reserved leave to the appellant to apply for home detention.

[4] Although Mr Stevens said he had drawn to the Judge’s attention the error in the pre-sentence report concerning the appellant’s attitude towards home detention, the Judge appears to have overlooked it.

[5] After the sentence was imposed, the appeal papers were filed and the appellant appeared before the Judge seeking bail pending the hearing of the appeal. At that time, the Judge was informed of the appellant’s position on home detention. Although he noted it, he concluded that since the sentencing had been completed the matter would have to be taken up on appeal.

[6] On appeal, Mr Stevens submits that even home detention would be manifestly excessive in all the circumstances and maintains a submission that the recommended sentence of community detention would have been appropriate. In the alternative, he suggests home detention as more appropriate than a term of imprisonment.

[7] I am required to determine, therefore, whether the Judge erred in concluding that the circumstances merited a term of imprisonment with home detention as an arguably appropriate alternative bearing in mind the appellant’s age and prior history, or whether Mr Stevens and the probation officer are right. In undertaking that exercise I bear in mind that the onus is on the appellant to satisfy me that the Judge’s approach was wrong.

Background

[8] The appellant was at a party from which he got a ride with the victim in this matter. When driving away from the party, the appellant asked the victim to stop so that he could relieve himself. The appellant then proceeded to punch the victim from the outside of the car through the open driver’s window, before pulling the victim from the car. The appellant continued to punch the victim in the head, causing a broken nose and bruising to the victim’s face. The appellant then drove the vehicle away and later removed some items from it.

[9] Later that evening, in Te Puke, Police signalled the appellant, driving the victim’s car, to pull over. Two of the appellant’s associates got out of the car before the appellant sped off travelling at speeds of up to 130km/h in a 100km/h zone.

[10] Having entered Te Puke township, the appellant continued to travel at speeds in excess of 100km/h in a 50km/h zone while veering across both lanes and negotiating roundabouts. The appellant continued to travel at speeds in excess of

120km/h while going in and out of the opposite lane and driving down the median. The appellant then failed to negotiate a corner, crossed the centre line and crashed over a bank and into a field.

[11] When tested, the appellant recorded a breath alcohol level of 497 micrograms of alcohol per litre of breath.

The appellant

[12] The appellant’s previous criminal offending consists of some matters in the Youth Court in 2009, which the sentencing Judge described as minor. The pre- sentence report assessed the appellant as being at a medium risk of reoffending. The report also recorded that the appellant was employed and enjoyed the support of his girlfriend and family.

Sentence in the District Court

[13] With reference to Smeed,[1] where Mako[2] was adjusted so as to apply to robbery offending, the Judge adopted a starting point of 27 months’ imprisonment. A comparison was made with the case of Nahona v Police.[3] The Judge uplifted that starting point by three months in order to reflect the additional driving charges. The Judge then reduced the sentence by seven and a half months (25 per cent) to reflect the appellant’s guilty pleas, and then by a further five months to reflect the appellant’s youth.

Appellant’s submissions

[14] The appellant alleges that the sentence imposed upon him was manifestly excessive and wrong in principle.

[15] He says that, in categorising the offending as more serious than that in Nahona and adopting a starting point of 27 months’ imprisonment, the Judge failed to recognise the different nature of this offending to that in Nahona.

[16] Counsel identifies the street robbery example in Mako[4] as being the appropriate point of comparison for this offending. Once an adjustment is made for

_{the lesser maximum penalty (in accordance with Smeed), it is submitted that starting}

points for this type of offending would range from 12 – 24 months’ imprisonment. Counsel suggests a starting point of 18 months’ imprisonment in this case.

[17] It is accepted by the appellant that an uplift is necessary to reflect the further driving charges, but Mr Stevens submits that a two month uplift would be more appropriate than the three month uplift imposed given that three months’ imprisonment is the maximum penalty on each of the driving charges.

[18] Counsel submits that the applying the five month discount for the appellant’s youth and the 25 per cent discount for guilty pleas, a sentence of 10 months’ imprisonment would result.

[19] It is also argued that the offending was not so serious so as to preclude a sentence of community detention and that the Judge was wrong to characterise the offending as more serious than that in Nahona. Counsel emphasises the appellant’s youth and the support he receives from his girlfriend and her family, with whom he lives.

[20] In the event that community detention is not considered appropriate, counsel submits that a sentence of home detention should be imposed.

Respondent’s submissions

[21] For the respondent, Mr Belton supports the Judge’s approach. While he recognises that a 27-month starting point was at the top end of the available range, he says that it is off-set by what he regards as a generous five month discount imposed on account of the appellant’s youth. He argues that this was a more serious case than Nahona.

Discussion

[22] I do not consider the Judge has been shown to have been in error in his approach. The robbery is more serious, in my view, than that contemplated by the Court of Appeal in the street robbery example they gave in Mako where actual violence was not contemplated and the value of the property taken not significant.

[23] It may be more appropriate, looking at the Mako examples, to compare this case with that of a taxi driver. The Court of Appeal said that:[5]

Another form of offending of disturbing frequency is the robbery of taxi drivers. These offences, generally at night, commonly involve violence to victims who, by their occupation are vulnerable. Other road users may also be endangered. Where a weapon is presented or physical violence is employed, though no serious injury may be caused, and money is taken, a starting point of between four and five years would be appropriate.

[24] In the present case the victim was not rendered vulnerable by his occupation but there was, in a sense, a breach of trust in that the victim was an acquaintance of the accused and was doing him a favour. With appropriate adjustments for the different maximum penalties, this category of offending would attract starting points of between two years nine months and three years six months’ imprisonment. So the starting point of 27 months chosen by Judge Geoghegan might in those terms be considered lenient.

[25] I do not think there is any merit in the appellant’s attempt to distinguish Nahona on the basis that that related to the robbery of commercial premises, given that the violence in this case and the value of property taken make it more serious.

[26] A three month uplift was applied to recognise the totality of the offending. I add here that the driving following the assault was appalling and created a major risk to other members of the community. I do not think that the uplift was outside the appropriate range and the global starting point of 30 months’ adequately reflected the gravity of the offending overall.

[27] I also consider, however, that the Judge’s recognition of the appellant’s youth was appropriate. This was impetuous offending of a kind for which the courts not uncommonly make allowances for youth which would not be considered appropriate for mature adult offenders.[6] I note also that, given the way the Judge approached the discount for youth, he reached a final end sentence which was some six weeks shorter than would have applied if he had, adopting the Court of Appeal’s approach

in Clifford,[7] given a five month discount for youth and then applied the 25 percent discount for the guilty pleas.

[28] In the circumstances, the Judge was entitled to conclude that a sentence of community detention, as a substitute for imprisonment of approximately 17 or

18 months, would not adequately reflect the seriousness of the offending, given that the maximum sentence of community detention would be for a period of six months.

[29] However, I agree with the Judge, counsel for the Crown and Mr Stevens that, in the event of my rejecting community detention as appropriate, a period of home detention would be an appropriate substitute for a term of imprisonment. I am influenced particularly by the reference from the appellant’s employer which is very positive and complimentary. I encourage the probation service to consider positively the prospect that during a sentence of home detention the appellant will be released on proper conditions to maintain his employment.

[30] If sentenced to a period of imprisonment of, say, 17 months duration, the appellant would be automatically paroled after eight-and-a-half-months. It is a rule of thumb, but by no means universal or mandatory, to impose a period of home detention of approximately half that of an otherwise appropriate finite sentence of imprisonment. I consider the appropriate period in this case to be eight months’ home detention. I come to that view in part on the basis that the appellant may be approved for release to work, and that he should be encouraged to do so, if possible, if only to be in a position to begin the reparation payments which I regard as being justified.

[31] In the circumstances I allow the appeal in part. In place of the sentence of imprisonment, the appellant is sentenced to eight months’ home detention to begin on Monday 17 September 2012. The detention will be subject to the conditions that:

(a) The appellant should reside at 15 Lee Street, Te Puke, for the duration of the sentence;

(b) He will comply with the requirements of electronic monitoring as directed by a probation officer.

[32] Special conditions are that:

(a) The appellant should attend and complete an appropriate drug and alcohol programme to the satisfaction of the probation officer and programme provider. Details of the appropriate programme are to be determined by the probation officer.

(b) The appellant is also to attend and complete such counselling programme or treatment to address identified offending behaviour as the probation officer may direct, and to the satisfaction of the probation officer and the programme provider.

[33] I confirm the order for disqualification from driving and the order directing the appellant to pay reparation in the sum of $4,306.95.

....................................

Toogood J

---

[1] _{Smeed v Police HC Whangarei AP50/00, 24 October 2000.}
[2] _{R v Mako [2000] NZCA 407; [2000] 2 NZLR 170; (2000) 17 CRNZ 272 (CA).}
[3] _{Nahona v Police HC Palmerston North CRI-2009-454-16, 10 June 2009.}
[4] Mako at [59].

[5] At [57].

[6] Churchward v R [2011] NZCA 531; (2011) 25 CRNZ 446 (CA).

[7] R v Clifford [2011] NZCA 360; [2012] 1 NZLR 23