Te Rangi v Police [2013] NZHC 469 (12 March 2013)

Last Updated: 20 March 2013

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

CRI 2013-416-03 [2013] NZHC 469

BETWEEN MOANA TE RANGI Appellant

AND THE POLICE Respondent

Hearing: 5 March 2013

Appearances: D Nicoloso and A Simperingham for appellant

F Cleary for respondent

Judgment: 12 March 2013

_{JUDGMENT OF ALLAN J}

In accordance with r 11.5 I direct that the Registrar endorse this judgment with the delivery time of 11.30 am Tuesday 12 March 2013.

Solicitors:

Woodward Chrisp, Gisborne [e-mail] [e-mail]

_{Crown Solicitor Gisborne [e-mail]}

TE RANGI V THE POLICE HC GIS CRI 2013-416-03 [12 March 2013]

[1] Mr Te Rangi appeals against a sentence of four and a half years imprisonment imposed upon him by Judge Adeane in the Gisborne District Court on 18 January

2013, on charges of causing grievous bodily harm and aggravated robbery.

[2] Ms Nicoloso submits that not only was the sentence manifestly excessive, but in all the circumstances the proper end sentence was a short term sentence of imprisonment, which ought to have been converted to a substituted sentence of home detention.

The offending

[3] Early on the morning of 11 December 2010, the complainant, a middle aged man who was heavily intoxicated at the time, decided to stop for a rest in the Barry’s Park Sports Ground, in Gisborne. He was lying on the ground when approached by a group of four persons, of whom the appellant was one. The appellant was aged 15 years at the time; one of his associates was a young man of about his own age; another was several years younger.

[4] The group approached the complainant and asked him his name and whether he had any cigarettes. He gave two members of the group a cigarette each and then began making a call on his cell phone. The appellant then kicked the complainant in the head with such force that it caused his head to bounce off the concrete block wall of the park changing sheds. Members of the group then went through the complainant’s pockets removing his cell phone, iPod Nano, iPod charger and cigarettes. The appellant and one associate then administered a series of kicks to the complainant’s head. Each stomped on his head a number of times and also kicked him in his chest area. They both also punched the complainant a number of times about the face and body.

[5] At that point, sirens were heard in the distance. The group left the scene for a brief period but the appellant and one associate returned to the complainant, where the appellant continued to stomp on his face. Upon his return the appellant could be

heard saying “I’m gonna kill him”. At that stage the associate pulled the appellant

away from the complainant and they left the park.

[6] A nearby neighbour witnessed the latter stages of the attack and alerted emergency services. When the police and ambulance officers arrived, the complainant was found lying face down on the concrete path in a large pool of blood. He was taken to Gisborne Hospital where it was discovered, following a CT scan, that he suffered fractured ribs to both sides of his body, facial fractures and a serious head injury involving bleeding of the brain. He spent two weeks in hospital and a further two months in a rehabilitation centre.

[7] His initial treatment involved placement on life support. He was then airlifted to Waikato Hospital for specialist treatment. Although he seems to have made a fairly satisfactory recovery, he is unable to dive for seafood, neither is he fit enough to undertake employment during the squash season, so has lost significant potential earnings.

[8] During a warranted search of the appellant’s home address, the police located the memory card for the complainant’s cell phone. When spoken to, the appellant largely admitted his part in the attack, but was unable to provide an explanation.

Sentencing history

[9] Mr Te Rangi admitted the offending at an early point. For various procedural reasons, the case was not heard in the Youth Court until 2 September 2011; none of the delay was his fault. At 15 years of age, he had no prior record, but regrettably there have been instances of shop lifting and fighting in public since the index offending.

[10] Judge Hikaka, sitting in the Youth Court, noted that Mr Te Rangi had little support at home, where he had been the subject of long term physical abuse in a household where excessive drinking was common. Even now, there is virtually no

_{parental support.}1

1 R v MTR and VGTM Youth Court Gisborne CRI-2010-216-155, 2 September 2011.

[11] In the Youth Court, counsel for the Crown had advocated a conviction and transfer to the District Court by reason of the seriousness of the offending. Judge Hikaka considered that initiatives which would enable the appellant to have the benefit of maximum rehabilitative opportunities were in the public interest. The Judge thought there was a need for intensive supervision and monitoring, together with therapeutic initiatives. He considered the penalties available in the Youth Court carried sufficient deterrent content to justify retaining the matter in that Court.

[12] Accordingly, he sentenced the appellant and a co-offender to the maximum sentence of six months residential supervision, with 12 months supervision by the Chief Executive at the expiration of the period of residential supervision. Thereafter, a mentoring order was imposed for the maximum period available until the appellant turned 18 years of age.

[13] Judge Hikaka regarded these sentences as:2

...very much a last resort attempt to try and put two young men on the right track notwithstanding the disadvantages they have had early in life and their violence, but recognising that it is up to them now to do the right thing, to make full use of the opportunities provided, and, not re-offend or breach the conditions of their orders.

[14] The Judge further directed that programmes designed to address anger management, alcohol and drug addiction issues and life skills, were to be put in place.3 This was aimed at the appellant’s acknowledged difficulties with binge drinking and cannabis.

[15] Regrettably, the appellant quickly demonstrated his complete inability to comply with the conditions laid down by the Judge. Although, when under detention and strictly controlled, he was compliant and easy to deal with, the picture changed as soon as he gained a measure of freedom. He ignored the residential conditions of his supervision, failed to attend courses organised for him, and did not comply with the mentoring programme conditions. Testing revealed on-going alcohol and drug use. He failed to keep in touch with his mentor. One particular example is typical. On the evening of 7 June 2012, he was seen by his mentor at a time when he was

curfewed to a nominated address, carrying two full boxes of alcohol up Wainui Road, Gisborne. His mentor pulled over and offered the appellant a ride to the curfew address. The appellant refused.

[16] Against that background, the Youth Court recalled the appellant, cancelled the earlier sentence and transferred him to the District Court for resentencing. By then, he was 17 years of age.

[17] In the District Court Judge Adeane reviewed the relevant offending and procedural history.4 He then listed the issues for his consideration as follows:

(a) What was the deserved starting point before personal circumstances were considered?

(b) Once the appropriate starting point was identified, what discount was due both for the guilty plea and for youth?

(c) What allowance should be made for the fact that the appellant had completed a period in residence which was the equivalent in effect, of a period in custody.

[18] The Judge accepted the submission for the prosecution that a starting point of eight years imprisonment was appropriate. He believed the case to fall within the upper part of band 2 of the classification in R v Taueki.5

[19] Turning to mitigating factors, the Judge noted that there was a wealth of material on the file, “most of it negative and justifiably pessimistic”.6 But he considered also the appellant’s satisfactory behaviour within the confines of an institution, together with reports that he was, when under strict direction, a “likeable

_{young man of whom high future expectations could be held”.}

4 _{R v Te Rangi DC Gisborne CRI-2010-216-155, 18 January 2013.}

5 R v Taueki [2005] 3 NZLR 372 (CA).

[20] The pre-sentence report was significantly negative. The writer considered the appellant to be indifferent to his offending and its consequences. An independently obtained psychologist’s report did however detect a degree of remorse.

[21] Judge Adeane considered that the cause of the appellant’s violence was a

propensity to act in a particular way when:7

... his scant resources of impulse control are broken down by alcohol and

drugs.

[22] The Judge considered that the safety of the community had to weigh heavily alongside mitigating factors.8 From a starting point of eight years imprisonment, he allowed a discount of 25% in order to take into account the admissions made in the Youth Court. He allowed a further one year on account of youth and deducted an additional six months for the period spent in residence, in effect recognising that Mr Te Rangi had completed the whole of his sentence of residential supervision, even though by reason of his good behaviour when confined he earned partial remission of that sentence.

[23] The result was a sentence of four and a half years imprisonment, which

Ms Nicoloso submits was too high.

Discussion

[24] Although submitting that a starting point of six to seven years imprisonment might well have been selected, Ms Nicoloso does not place a challenge to the Judge’s eight year starting point at the forefront of her case on appeal. In my view, that is a responsible approach. It is possible here to identify a number of the Taueki factors: extreme violence, serious injury, attacking the head, facilitation of crime (because this was an aggravated robbery), multiple attackers, and the vulnerability of the victim (who was grossly intoxicated and largely incapable of resisting).

[25] Although there were initially four young people in the appellant’s group, one dropped out at an early stage and another took no part in the attack. So there were really just two attackers.

[26] Ms Nicoloso submits that the two offenders cannot be said to fall within the description of “multiple attackers” for the purposes of the Taueki aggravating factors, but I consider that category is intended really to serve as an indication that the Court of Appeal regarded an attack by more than one person as more serious than an attack by a lone offender.

[27] Of course it is important not to double count the Taueki factors. But on any view there were sufficient aggravating features of this offending to justify Judge Adeane’s placement of the case towards the upper level of band 2, and so to justify a starting point of eight years imprisonment. In doing so, the need for deterrence and denunciation, which looms large in this case, is properly reflected.

[28] Ms Nicoloso places more emphasis on the discount allowed by the Judge for the appellant’s youth. He deducted one year or 12.5 %. Ms Nicoloso submits that it ought to have been a great deal more.

[29] It is well established that the youth of an offender may lead to a reduction in the sentence that is otherwise appropriate. The principle is based not only on notions of consideration for young people, but also on the benefit to the community in ensuring that rehabilitation prospects are not shut out.9

[30] In Churchward v R the Court of Appeal observed that:10

(a) There are age-related neurological differences between young people and adults, including that young people may be more vulnerable or susceptible to negative influences and outside pressures (including peer pressure) and may be more impulsive than adults.

(b) The effect of imprisonment on young people, including the fact that long sentences may be crushing on young people.

(c) Young people have greater capacity for rehabilitation, particularly given that the character of a juvenile is not as well formed as that of an adult.

[31] (a) In Pouwhare v R the Court of Appeal explained that11

[83] In the end, a Judge sentencing a young person under the Sentencing Act must always weigh the young person's age and the reasons why he or she offended, against the seriousness of his or her offending and prospects of rehabilitation. Sometimes the young person's age will be a mitigating factor of high, perhaps decisive, significance not to be circumscribed by any fixed outer percentage. Equally, there can be no warrant for saying that youth, of itself, must always prevail as the paramount value on sentence, or that youth alone can justify radically reducing the sentence which would otherwise be proper.

[32] As envisaged in Pouwhare, youth discounts may vary widely. For example, in R v Parata, a discount of 50% was allowed in a case of sexual offending by a 16 year old against an eight year old, where the offender maintained his innocence.12 In that case, the Court of Appeal noted that there was a likelihood that the offending involved an element of experimentation and a reduced appreciation compared with the understanding of a mature adult. The discount also recognised the success that the appellant had made of his life over the ensuing 10 years, and that he ought to enjoy the benefit of an entirely favourable pre-sentence report. So the 50% discount

appears to have recognised a number of mitigating factors.

[33] In Overton v R, a case of sexual offending by a 15 year old against a six year old, the Court of Appeal allowed a discount of about 22% for youth (including the possibility that the appellant had not understood fully the gravity of his offending), together with good rehabilitation prospects.13

[34] Ms Nicoloso referred to R v Abbott.14 There, an 18 year old male had been charged with injuring with intent to cause grievous bodily harm, and with aggravated burglary. The complainant, having answered the door in response to the offender’s knock, was punched about the head a number of times and also kicked about the

_{head. A discount of 10% was allowed for youth.}

11 _{Pouwhare v R [2011] NZCA 268; (2010) 24 CRNZ 868.}

12 _{R v Parata CA72/01 21 June 2001.}

13 Overton v R [2011] NZCA 648.

[35] Reference was also made to R v Shannon.15 There the offender, having become grossly intoxicated at his own 17th birthday party, poured petrol over a guest and set it alight. The victim suffered significant burns to his head, shoulders and back. He had been held down by several other party guests for a period of some

seconds after the petrol ignited. The offender was found guilty by a jury of a charge of injuring with intent to cause grievous bodily harm, but had indicated that he was willing to plead guilty to the alternative charge of injuring with reckless disregard. I allowed a discount of 25% for the offender’s youth, on the basis that the attack was thoughtless and indeed mindless offending.

[36] It is not in dispute that in an appropriate case (and I am satisfied that this is one), a discount may be given for the youth of an offender even where the case involves serious violence. But the observations of the Court of Appeal in R v Mako must be borne in mind:16

However, where the offender is a youth who is in relevant respects a first offender and appears genuinely motivated to reform, there may be benefit both to the offender and society in a significantly reduced sentence. Whether this is so in a particular case requires a realistic assessment which gives proper weight to the fact that aggravated robbery even when committed by an immature offender, remains serious violent offending.

[37] I consider the Judge’s allowance of 12.5% to have been too low. The Judge explained the one year discount by reference to “ ... the danger which he presents to the community...”. That suggests that the youth discount had to be limited in order to ensure that the end sentence sufficiently reflected the entitlement of the community to be protected from offenders such as the appellant; but considerations of deterrence and community safety are already reflected in the chosen starting point. I consider that a discount for youth of 25%, or two years, was warranted. That reduces the sentence to six years imprisonment. Any higher discount would be inappropriate. This was not a classic case of youthful offending which often takes

_{the form of a spontaneous or instinctive response to a particular state of affairs.}

15 _{R v Shannon [2012] NZHC 3131.}

16 R v Mako [2000] 2 NZLR 170, at [66].

[38] Here, the offender having left the scene temporarily, chose to return to the attack when the possibility of police discovery had dissipated. So a 25% discount is the limit of what is properly allowable.

[39] Ms Nicoloso next argues that the Judge ought to have allowed a discrete discount to recognise the fact that these were the appellant’s first offences. There is substance in that submission. Discounts for a clean record are routinely allowed, in order to recognise a hitherto blameless record. However, any allowance in this case must be relatively limited for two reasons. First, the appellant was so young at 15 years, that he had limited opportunities to offend at an earlier stage. Second, some of the strength for a claim to a significant discount is lost in the light of his subsequent offending committed while this present case was awaiting disposal. But I think a discount of six months ought to have been allowed.

[40] It is necessary to consider next the effect of the appellant having served the first part of his sentence, namely the six months residential supervision component. The Judge deducted six months from the starting point for that. Ms Nicoloso submits it ought to have been more. It is common ground that the allowance cannot be calculated as a matter of simple arithmetic. In that respect, the position is similar to the conversion of an appropriate term of imprisonment to an equivalent substituted period of home detention. But the home detention comparison is not direct, because there the court knows both the proportion of a short term sentence of imprisonment that would actually be served (one half), and the term of home detention that would actually be served (the whole of it).

[41] Here, unless the ultimate sentence is a short term sentence of imprisonment (two years or less), the appellant’s actual release date will be entirely in the hands of the Parole Board, I consider the calculation of an allowance for time served to have been very much within the province of the sentencing Judge, While the allowance of six months, equivalent to the term of residential supervision imposed in the Youth Court, might have been more, it cannot be said that the Judge approached the discount otherwise than on a principled basis.

[42] That leaves the discount for the guilty plea. The Judge allowed 25%, which counsel agree is appropriate.

[43] In summary, from the starting point of eight years imprisonment, I consider that there ought to have been discounts of two years for the appellant’s youth, six months for his clean record, and a further six months to recognise time served. That produces a sentence of five years imprisonment, from which 15 months, or 25%, ought to be deducted for the guilty plea. The result is an end sentence of three years nine months imprisonment.

[44] I have differed from Judge Adeane in that I consider that a more significant discount ought to have been allowed for youth, and that there ought to have been a discrete allowance for the appellant’s good record up to the time of the present offending.

[45] Ms Nicoloso submits that the sentence imposed by Judge Adeane ought to be adjusted in order to achieve the objective of qualifying the appellant for a sentence of home detention in substitution for a short term sentence of imprisonment.

[46] Although the home detention address thought to have been available just prior to the hearing of the appeal is no longer available, counsel thought that an alternative suitable address was likely to be available shortly. She asked me to invoke s 80I of the Sentencing Act 2002 and to impose a sentence of home detention subject to approval of a suitable home detention address.

[47] There is some material on the file to suggest that the appellant is likely to be amenable to direct and constant supervision. So much would depend upon the availability of suitable constant control at the home detention address. But a substantial period of home detention would be likely, in my view, to prove to be beyond the ability of the appellant to endure. He seems not to lack for support from professional and other persons who have his best interests at heart. However, the court is simply not at liberty to approach the sentencing process with the preconceived purpose of ending with a short term sentence of imprisonment which might then be converted to a sentence of home detention.

[48] This offending, as Judge Adeane recognised, was too serious to attract a sentence of two years imprisonment or less. The appellant had an opportunity to avail himself of all the advantages which a Youth Court sentence provided, but to put matters bluntly, he simply pleased himself and ignored many of the conditions laid down by Judge Hikaka. The result is that he is facing a significant term of imprisonment, but he has only himself to blame.

Result

[49] For the foregoing reasons the appeal is allowed. I quash the sentence of four years six months imprisonment imposed in the District Court, and substitute a term of imprisonment of three years nine months.

C J Allan J