Rattigan v Police [2013] NZHC 1113 (15 May 2013)

Last Updated: 18 June 2013

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI 2013-485-21 [2013] NZHC 1113

DANIEL JAMES RATTIGAN

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing: 14 May 2013

Counsel: B Crowley for the Appellant

S McClean for the Respondent

Judgment: 15 May 2013

_{JUDGMENT OF MALLON J}

Introduction

[1] Mr Rattigan is homeless. He is 23 years old. He has many convictions and Youth Court appearances. The matters before me relate to his latest set of offending. He appeals against a sentence of imprisonment of two years one month imposed by the District Court for this offending. The Crown agrees that this sentence is manifestly excessive. The only issue is what the proper sentence should have been. The defence says that the overall end sentence should have been 12 months’ imprisonment, whereas the Crown says it should have been 18 months’

_{imprisonment.}

RATTIGAN v NEW ZEALAND POLICE HC WN CRI 2013-485-21 [15 May 2013]

[2] I am allowing the appeal. The effective overall sentence will be a term of

14 months’ imprisonment. The sentences that make up that overall term are those set out at the end of this judgment.

The offending

[3] The sentences that are the subject of this appeal fall into three groups of offending as follows:

(a) Breach of release conditions (x 3): On 8 October 2012 Mr Rattigan was released from prison on conditions following his convictions for threatening to kill, presenting a firearm, burglary, theft, possessing instruments for conversion and breach of release conditions. The three charges of breach of release conditions arose from Mr Rattigan failing to report to probation as directed (19 October 2012), failing to attend alcohol and drug treatment as per his special condition (30 October 2012) and failing to notify probation of a change in his address (24 December 2012).

(b) Unlawfully interfering with a vehicle: This charge arose in the following circumstances. A car was stolen on 3 November 2013. Entry to the car was initially gained by the smashing of a window. The car was parked in a car park. Mr Rattigan entered the car, took the key from the ignition and slept in it overnight. He was found by the police the next morning sleeping in the back seat.

(c) Incident on 16 February 2013: The other charges arose from an incident on 16 February 2013. The police were called to a disturbance at another address. The police spoke to Mr Rattigan as part of their inquiries. They realised that there was a warrant out for his arrest and advised him that he was under arrest. Mr Rattigan swore at a police officer and struggled with the police as they attempted to restrain him. He also spat in the face of a female officer (but missed). He was also searched and several items were located on him:

(i) a large knife about 20 cm long and an air pistol were located down Mr Rattigan’s trousers;

(ii) a further air pistol was located in his backpack;

(iii) a PlayStation console and eight PlayStation games, which had been stolen during the burglary of a Brooklyn house on

12 February 2013, were located in his backpack;

(iv) a small tinfoil package of cannabis (sufficient for about two cannabis cigarettes) was located in his trouser pocket.

The District Court sentence

[4] Mr Rattigan was sentenced in the District Court on 10 April 2013. The Judge indicated that cumulative sentences on the three groups of offending were appropriate. He adopted starting points of six months’ imprisonment, four months’ imprisonment and one year and six months’ imprisonment for each group respectively. This gave an overall starting point of two years and four months’ imprisonment. He uplifted this by six months because of Mr Rattigan’s previous convictions. He declined to make an adjustment for totality taking the view that each of his three starting points had been generous to Mr Rattigan. He then applied a

25 per cent discount for Mr Rattigan’s early guilty pleas. That meant an end sentence of two years and one month imprisonment.

Approach

[5] Counsel do not disagree with the Judge’s indicated approach of cumulative sentences on the three groups of charges. The respondent suggests that the receiving charge (relating to the PlayStation console and games) could perhaps have been grouped with the unlawful interference with a motor vehicle, but accepts that it was not wrong to group it with the other February offending as being connected in time with that offending. I agree that the offending was properly approached in the way the Judge indicated.

[6] As to a starting point for the first group of offending, Mr Rattigan’s counsel explains in relation to one of the three breaches that Mr Rattigan had been directed to live at the Wellington Night Shelter. The night shelter has very high noise levels and Mr Rattigan found that he could not sleep. He was also invited by three people to commit burglaries on his first night there. He left the next day. I accept that Mr Rattigan may have found it difficult to comply with this and the other conditions imposed on him. Nevertheless he needs to understand that contact must be made with a probation officer about such difficulties rather than him simply not complying with the conditions imposed on him.

[7] Mr Rattigan has six previous convictions for breach of release conditions (2012, 2011 and 2010) and for that reason a short discrete cumulative sentence of imprisonment is appropriate.

[8] I agree with counsel for Mr Rattigan, however, that the starting point of six months’ imprisonment for this first group of offending was too high. Up until now the highest penalty imposed for breach of release conditions (x 3) was a concurrent sentence of one month’s imprisonment. A cumulative sentence of six months’ imprisonment represented too severe an uplift from that in view of the nature of the breaches and the circumstances giving rise to them. In my view Forsyth v New

Zealand Police1 (referred to by the respondent) is not comparable because in that

case the condition was that the offender not contact the victim of significant previous offending by the offender. I agree with counsel for Mr Rattigan that a starting point of three months’ imprisonment was appropriate.

[9] In relation to interference with the car, counsel for Mr Rattigan submits that no imprisonment sentence should have been imposed when the purpose of sleeping in the vehicle was that Mr Rattigan had nowhere else to go. The respondent submits that a small sentence of imprisonment was appropriate. Mr Rattigan’s circumstances mitigate the culpability to some degree. The offending was also very minor given that Mr Rattigan was not charged with stealing the car or smashing the window. A

_{sentence of no more than one month’s imprisonment was appropriate.}

1 Forsyth v New Zealand Police [2013] NZHC 139.

[10] In relation to the third group of charges, Mr Rattigan’s counsel submits that the appropriate starting point was nine months’ imprisonment whereas the respondent submits that the starting point of around 15 months’ imprisonment was appropriate (12 months for the all the offending in February 2013 except the receiving, and an additional period for the receiving). I agree with the respondent that the appropriate starting point is 15 months’ imprisonment. I consider that two of the three charges of possession of offensive weapons were less serious in that the two air pistols were not loaded. The knife was potentially more dangerous. The three charges together warranted a sentence of around 10 months (being similar in

their seriousness to Mataa v Police2 and Grafton v Police,3 and considerably less

serious than Solicitor-General v Lyon),4 but there would then need to be a small uplift for resisting arrest and the related assault, and an uplift for receiving the stolen property. The small amount of cannabis would not warrant any further uplift.

[11] The three sentences would then give rise to an overall sentence of 19 months’ imprisonment. Any uplift for previous convictions would need to be small because to some extent the existence of relevant previous convictions is taken into account in the three starting points adopted. Any uplift also needs to retain some proportion to

the overall sentence.5 An adjustment for totality would then need to be considered

bearing in mind that the offending is connected in time and Mr Rattigan’s personal circumstances. The respondent had sought to support the six months’ uplift for previous convictions but submitted that a four month adjustment for totality would be appropriate. In my view an uplift of at most three months could have been imposed for previous convictions but then that would be cancelled out by an adjustment for totality.

[12] Counsel for Mr Rattigan submitted that an adjustment for youth could be made. I do not agree. Mr Rattigan is now 23 years old. He has had a difficult

_{upbringing but he cannot fall back on that every time he offends.}

2 _{Mataa v Police HC Wellington AP77/98, 29 April 1998.}

3 _{Grafton v Police HC Christchurch CRI-2009-409-56, 25 June 2009.}

4 _{Solicitor-General v Lyon HC Auckland CRI-2004-404-77-A, 11 July 2006.}

5 Julian v R [2012] NZCA 453 at [17].

[13] That leaves Mr Rattigan’s early guilty pleas. Counsel are agreed that the Judge was correct to allow the full 25 per cent discount for those. That brings the overall end sentence down to around 14 months’ imprisonment.

Result

[14] The appeal is allowed. The sentences are quashed and replaced with the following sentences. I will allocate that overall sentence as follows:

(a) possession of an offensive weapon – 14 months’ imprisonment;

(b) unlawful possession of a firearm (x 2) – each 14 months (concurrent); (c) dishonestly and without claim of right getting into a motor vehicle –

one month (concurrent);

(d) possession of a class C controlled drug, namely cannabis – convicted and discharged;

(e) resisting the police – one month (concurrent);

(f) common assault (of a police officer) – one month (concurrent); (g) receiving stolen property – three months (concurrent);

(h) breach of release conditions (x 3) – each three months (concurrent).

[15] In addition the following conditions will apply for six months after the sentence expiry date:

(a) To attend and complete an alcohol and other drug assessment, and any further treatment/programme/intervention as recommended by that assessment, to the satisfaction of the Probation Officer and service provider.

(b) To attend and complete a psychological assessment, and any further treatment/programme/intervention as recommended by that assessment, to the satisfaction of the Probation Officer and service provider.

[16] For completeness I note that there was no appeal from the orders for destruction of the knife and the pistols. Those orders remain.

Mallon J

Solicitors:

Crown Solicitors Office, Wellington