Ratahi v Police [2014] NZHC 2394 (1 October 2014)

Last Updated: 22 October 2014

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2014-463-000054 [2014] NZHC 2394

ROY ROGER RATAHI Appellant

v

NEW ZEALAND POLICE Respondent

Hearing:	29 September 2014
Appearances:	Tim Barclay for the Appellant Annabel Cresswell for the Respondent
Judgment:	1 October 2014

RESERVED JUDGMENT OF MOORE J [Appeal against sentence]

This judgment was delivered by on 1 October 2014 at 2:00pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

_Date:

RATAHI v NEW ZEALAND POLICE [2014] NZHC 2394 [1 October 2014]

Introduction

[1] Early in the evening of 2 May 2014 the owner of a Nissan Sentra parked his car in a street in Rotorua and locked it.

[2] Not long afterwards Mr Ratahi broke into it and hotwired the ignition before driving off.

[3] Later that evening the Police tried to stop the car for a routine traffic breath test. Instead, Mr Ratahi accelerated away in an attempt to avoid the Police, travelling faster than 80kph in a 50kph area. With the Police in full pursuit behind him, Mr Ratahi made a left hand turn and went through a stop sign. From there he drove at speeds in excess of 100kph in zones which were covered by 60kph and

70kph speed restrictions.

[4] As he attempted to negotiate an easy bend he lost control of the car and spun out across the opposite side of the road.

[5] He immediately jumped out and ran away but was tracked by a Police dog and located in some scrub-land not far away. He struggled and was bitten before being taken into custody.

[6] At the time he was aged 18 years. He was charged with unlawfully taking a motor vehicle, reckless driving and failing to stop. The maximum penalties for these offences are seven years’ imprisonment, three months’ imprisonment and a fine respectively.

District Court decision

[7] On 21 August 2014 he was sentenced in the Rotorua District Court. The Judge noted his age and his pleas of guilty. She also considered the aggravating factors including previous offences of dishonesty, burglary and unlawful taking recorded both in the Youth Court and the District Court. She noted that he had been convicted on 12 charges in February 2013 for which he received two years’

imprisonment. He had been released only three weeks before the present offending, a factor which her Honour regarded as a significantly aggravating.

[8] For the unlawful taking the Judge took a starting point of two and a half years which she reduced by 25 per cent in recognition of the guilty plea. A further reduction of two and a half months was given in recognition of Mr Ratahi’s age leading to a sentence of 20 months’ imprisonment. In relation to the dangerous driving he was sentenced to two months’ imprisonment concurrent with the unlawful taking. He was disqualified from holding or obtaining a driver’s licence and on the charge of failing to stop he was convicted and discharged.

Appeal

[9] Mr Ratahi appeals only the sentences of imprisonment imposed on the charges of unlawful taking.

[10] Mr Barclay, for Mr Ratahi, submits that the sentence imposed was manifestly excessive relying on the authorities of Poole v R,¹ McWatt v R² and Hall v Police³ where similar sentences were imposed in cases where there were significantly more aggravating features present than in this case.

[11] For the Crown, Ms Cresswell submits that the starting point of two and a half years’ imprisonment properly recognised the consistent history of offending, the prevalence of dishonesty offences and the fact that Mr Ratahi committed the index offending while he was subject to release conditions only three weeks after he had been released from prison for offences he was sentenced on in 2013. Ms Cresswell further submits that the discount of 25 per cent for the guilty plea and the further reduction of two and a half months to reflect Mr Ratahi’s youth led to an end sentence of 20 months’ imprisonment which was within the sentencing Judge’s

_discretion.

¹ _{Poole v R [2014] NZHC 1226.}

² _{McWatt v Police [2013] NZHC 1703.}

³ Hall v Police [2012] NZHC 2641.

[12] This is an appeal against the exercise of a judicial discretion. Section 250 of the Criminal Procedure Act 2011 applies. Pursuant to that provision the Court must allow the appeal if it is satisfied that:

(a) for any reason there was an error in the sentence imposed on conviction; and

(b) a different sentence should be imposed.

[13] In any other case the Court must dismiss the appeal.⁴ This section confirms the approach taken by the Courts under the Summary Proceedings Act 1957 where the Court said: ⁵

(a) There must be an error vitiating the lower Court’s original sentencing

discretion: the appeal must proceed on an “error principle”.

(b) To establish an error in sentencing it must be shown that the Judge in the lower Court made an error whether intrinsically or as a result of additional material submitted to the appeal Court.

(c) It is only if an error of that character is involved that the appeal Court should re-exercise the sentencing discretion.

[14] This Court will not intervene where the sentence is within the range that can be properly justified.

Case law

[15] Mr Barclay places considerable reliance on the decision of this Court in Poole v R.⁶ There, a 24 year old offender committed a burglary following which he unlawfully took a car and, with an excess breath alcohol level, drove dangerously failing to stop when required to so by the Police. He was sentenced to two years and

_{seven months’ imprisonment. The Court took the burglary charge as the lead}

⁴ _{Criminal Procedure Act 2011, s 250(3).}

⁵ _{Yorston v Police HC Auckland, CRI-2010-404-164, 14 September 2010.}

⁶ Poole v R, above n 1.

sentence adopting a starting point of 18 months’ imprisonment with sentences on the other charges imposed cumulatively including two months’ imprisonment for the unlawful taking. However, given that the burglary was the lead charge for the purposes of the sentencing I find the authority of limited assistance.

[16] Mr Barclay referred me to McWatt v R involving an adult offender who was in his 40s. ⁷ I agree with Mr Barclay and Ms Cresswell that this case is also of limited assistance given the differences in the offending and the personal circumstances of the appellant in that case.

[17] Mr Barclay also referred me to Hall v Police where the Court did not disturb a sentence of 18 months’ imprisonment for unlawfully taking a motor vehicle, driving whilst disqualified (third or subsequent offence), refusing to provide a sample, dangerous driving and failing to stop. ⁸ There, a 12 month starting point was taken for unlawfully taking a motor vehicle and nine months’ imprisonment imposed for the other offending, both sentences being served concurrently. However, this

decision is barely comparable. The focus in that appeal involved the examination of the totality of the offending and particular emphasis was placed by Simon France J on the fact the appellant was being sentenced for a fifth and sixth drink driving offence. His Honour emphasised considerations of public protection and individual deterrence mandating a sentence at the top of the available range. Thus the utility of the judgment as a precedent in the present circumstances must be limited.

[18] More relevant to the present circumstances is Singh v R which involved an appeal against two years and seven months’ imprisonment for unlawfully taking a motor vehicle, three charges of unlawfully getting into a motor vehicle (two of which involved unrelated offending on different dates), two charges of theft ex-car (one of which was unrelated to the unlawful taking), one charge of theft (unrelated to the

unlawful taking) and one charge of driving while disqualified (sixth offence).⁹

[19] On the unlawful taking charge the Judge took a starting point of two and a half years which was uplifted by nine months for the previous convictions and a

⁷ _{McWatt v Police, above n 2.}

⁸ _{Hall v Police, above n 3.}

⁹ Singh v R [2011] NZCA 139.

further three months for the appellant’s sixth offence of driving whilst disqualified. This resulted in an end sentence of two years and seven months for the unlawful taking and two months’ imprisonment on the disqualification. On appeal the uplift for the prior offending was reduced by three months.

[20] While Singh was considerably more serious than the present case having regard to the range of offending unrelated to the unlawful taking, it highlights that a starting point of two and a half years was appropriate for significantly more serious offending.

[21] In my view the present offending is more similar to Edwards v Police¹⁰ which involved an unsuccessful appeal against a final sentence of 16 months’ imprisonment. The appellant was an 18 year old who unlawfully took a motor vehicle. When the Police attempted to stop him, he accelerated away thereby initiating a Police pursuit. He was charged with dangerous driving, driving while disqualified and unlawfully interfering with a motor vehicle. The District Court Judge took two years as a starting point for the total offending. This was calculated having regard to the appellant’s previous history and the fact that offending occurred while he was serving of sentence home detention. A one-third discount was given for the guilty plea resulting in a final sentence of 16 months’ imprisonment. On appeal, Venning J observed that a starting point for the theft could be 15 months’ imprisonment with an uplift for the totality of the offending but concluded that overall, the sentence imposed was within the range available to the District Court Judge.

[22] In the light of the above cases, particularly Singh and Edwards, I am of the view that a starting point of two and a half years was manifestly excessive and that a starting point of no more than 18 months should be adopted for the unlawful taking with an uplift of one month to reflect the dangerous driving and the failing to stop charges. The unlawful taking appears to have been opportunistic.

[23] In my view the aggravating feature of the previous convictions is largely balanced out by the mitigating factor of youth. I also take into account the fact that

¹⁰ Edwards v Police HC Auckland, CRI-2010-404-103, 11 May 2010.

the appellant had only recently been released from imprisonment and was still subject to post release conditions. The appellant was entitled to the full 25 per cent guilty plea discount.

[24] The result is a final sentence of 14 months’ imprisonment.

Result

[25] The appeal is allowed and the sentence of 20 months’ imprisonment is quashed. A sentence of 14 months’ imprisonment is substituted for the unlawful taking.

[26] The post-release conditions imposed by the Judge remain. [27] The sentences on the other charges remain unchanged.

[28] Leave to apply for home detention is granted in terms of s 80K of the

_{Sentencing Act 2002.}

Moore J

Solicitors:

T Barclay, Rotorua

Crown Solicitor, Rotorua