Rawhiti v Police [2014] NZHC 1540 (3 July 2014)

Last Updated: 10 July 2014

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI-2014-443-000010 [2014] NZHC 1540

BETWEEN	EDWARD TONY RAWHITI Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	1 July 2014
Appearances:	J Hannam for appellant B Sweetman for respondent
Judgment:	3 July 2014

_{JUDGMENT OF CLIFFORD J}

Introduction

[1] The appellant, Edward Tony Rawhiti, pleaded guilty to one charge of aggravated robbery. He was sentenced by Judge Roberts in the District Court at New Plymouth on 24 April 2014 to a term of imprisonment of two years and two months.¹ Mr Rawhiti now appeals that sentence as being manifestly excessive.

Mr Rawhiti’s offending – the facts

[2] Mr Rawhiti was charged jointly with Jason Richards and Chrystal Betteridge. At the time of this offending, Mr Rawhiti and Mr Richards flatted together and Mr Richards and Ms Betteridge were in a relationship. All three offenders were associates of the victim.

[3] On 30 December 2013 Ms Betteridge observed the victim withdrawing $740 from an ATM machine. Mr Richards, Ms Betteridge and the victim drove to New

_{Plymouth. At some point Mr Richards and Ms Betteridge formed a plan to rob the}

¹ _{R v Rawhiti DC New Plymouth CRI-2013-043-002537, 24 April 2014.}

RAWHITI v POLICE [2014] NZHC 1540 [3 July 2014]

victim. Unbeknown to Mr Rawhiti and Ms Betteridge, the victim had disposed of a large part of the $740 cash. Mr Rawhiti joined the group in New Plymouth at his and Mr Richards’ flat. He became part of the plan.

[4] Pursuant to the plan, the three plied their victim with alcohol and synthetic cannabis. Then, whilst walking in a darkened area of a park in New Plymouth, Mr Richards hit the victim from behind and knocked him to ground. Mr Richards continued to punch the victim repeatedly. Mr Richards then took the victim’s wallet and cell phone, removing $15 from the wallet and passing it to Mr Rawhiti. As matters transpired, the victim had no more money. Mr Richards returned his wallet to the victim and the group left.

[5] This offending was committed while Mr Rawhiti was serving a community- based centre for earlier offending involving theft and failure to answer bail.

The challenged sentencing decision

[6] Judge Roberts adopted a starting point of three years’ imprisonment after

having regard to the classification of street robberies in the tariff decision R v Mako.²

[7] The Judge allowed a discount of four months to reflect Mr Rawhiti’s lesser role in the offending, and a discount of six months (about 19 per cent) for his guilty plea, resulting in the end sentence of two years and two months’ imprisonment.

Case on appeal

[8] The essence of Mr Rawhiti’s challenge to the Judge’s sentencing decision is

one of parity. It has two aspects. The context of the first is as follows.

[9] Mr Rawhiti was sentenced on 24 April 2014, having pleaded guilty on

20 March 2014.

[10] On 3 April 2014 the Judge had provided a sentencing indication to

Mr Richards and Ms Betteridge. The Judge initially identified the three year starting point in that sentencing indication.

² R v Mako [2002] 2 NZLR 170 (CA).

[11] Mr Richards and Ms Betteridge were not sentenced until 15 May 2014, having pleaded guilty shortly after the 3 April sentencing indication.

[12] In allowing Mr Rawhiti a discount of four months from the three year starting point, the Judge noted that Mr Rawhiti had not been part of the plan from the outset, although he had clearly joined in later understanding that violence could well be used. He had himself, however, not inflicted actual violence on the victim.

[13] For Mr Rawhiti Mr Hannam’s first submission was that that four month discount did not sufficiently recognise Mr Rawhiti’s lesser participation, relative to that of Mr Richards.

[14] The second aspect of this appeal arises in the following way.

[15] In the Judge’s sentencing indication as regards Mr Richards, and in his actual sentence, the Judge uplifted the three year starting point by four months to take account of previous offending. At that point, in both his sentencing indication and when sentencing, he allowed Mr Richards a full discount of 25 per cent for his guilty plea. In addition, and on the basis of the pre-sentence report on Mr Richards, he allowed Mr Rawhiti a further two month discount for remorse when sentencing. In doing so the Judge observed that he had, as he always did, difficulty in assessing whether remorse was genuine or whether it was simply a convenient position adopted just prior to sentence.

[16] Mr Rawhiti had provided a letter of remorse but, based on Mr Rawhiti’s pre- sentence reports, the Judge was not persuaded that Mr Rawhiti was genuinely remorseful. No additional discount for remorse was allowed.

[17] The Judge also concluded that Mr Rawhiti had entered his guilty plea too late to warrant the full discount of 25 per cent, and allowed a 19 per cent discount.

[18] Mr Hannam’s proposition, in this context, is that parity issues also arise because of the greater guilty plea discount allowed to Mr Richards (and Ms Betteridge) compared to that allowed to Mr Rawhiti notwithstanding their later

guilty pleas, and to the recognition of remorse allowed by the Judge in Mr Richards’

case but not, in circumstances not materially different, in that of Mr Rawhiti.

Analysis

[19] I am satisfied that there can be no challenge to the Judge’s, in effect, two year and eight month starting point for Mr Rawhiti, compared to the three year starting point for Mr Richards. Mr Rawhiti joined in the joint enterprise with Mr Richards knowing that violence could well result. Whilst it is necessary to accurately identify the roles of co-offenders in a joint enterprise, fine distinctions are not to be drawn. I think the Judge’s starting point for Mr Rawhiti was within range, and dismiss Mr Rawhiti’s appeal to that extent.

[20] On the question of remorse, Mr Rawhiti’s report writer was not persuaded his remorse was genuine. Additionally, and in my view, the Judge’s assessment of Mr Rawhiti’s remorse would appear to have been adversely affected by Mr Rawhiti’s failure to comply with bail terms, after which he was remanded in custody. The Judge was better placed to assess this issue of remorse. I do not consider his approach to remorse in Mr Rawhiti’s case, as opposed to that in Mr Richards’ case, is a reason for me to interfere with the sentence he imposed.

[21] I am, as I said during the hearing of Mr Rawhiti’s appeal, troubled by the apparent disparity in the way the Judge dealt with the guilty plea discount. Ms Sweetman for the Crown was unable to identify the basis upon which the Judge had allowed Mr Richards and Ms Betteridge a full 25 per cent discount for their (later) guilty pleas, and Mr Rawhiti a 19 per cent discount for his (earlier) guilty plea. There was not, on the record, any negotiations over, or changes to, the Crown’s charging approach as regards Mr Richards and Ms Betteridge that might have explained that treatment. Ms Sweetman suggested that that approach may have originated by reference to the circumstances in which Mr Rawhiti had pleaded guilty. This had occurred after he had been declined bail, and whilst he was on remand. The Judge, she suggested, had appeared to consider the guilty plea a strategic one, influenced by Mr Rawhiti’s wish to cease being a prisoner on remand, and become a convicted prisoner. Given that that is not referred to in the Judge’s sentencing notes, that is a conclusion I am unwilling to reach.

[22] At the same time, however, the record does show that Mr Rawhiti pleaded not guilty, was initially admitted to bail, then breached his bail terms, was thereafter remanded in custody at which time he entered a not guilty plea and then, over a month later, entered his guilty plea. In those circumstances, I do not think Mr Rawhiti’s plea can be said to have come at the earliest available opportunity. By my assessment, that supports the discount given by the Judge to Mr Rawhiti for that guilty plea. I acknowledge that the full discount given to Mr Richards and Ms Betteridge is, in their circumstances, difficult to understand. But if the Judge was overly generous to them, that does not impugn his correct assessment in the case of Mr Rawhiti.

[23] I therefore decline Mr Rawhiti’s appeal.

“Clifford J”

Solicitors:

Hannam & Co Lawyers, New Plymouth

C & M Legal, New Plymouth