Maihi v R [2013] NZCA 69 (21 March 2013)

Last Updated: 27 March 2013

IN THE COURT OF APPEAL OF NEW ZEALAND

CA626/2012 [2013] NZCA 69

BETWEEN TANE MAIHI Appellant

AND THE QUEEN Respondent

Hearing: 11 March 2013

Court: French, MacKenzie and Mallon JJ

Counsel: H E Juran for Appellant M R Davie for Respondent

Judgment: 21 March 2013 at 10.00 am

JUDGMENT OF THE COURT

1. The appeal is allowed.
2. The sentence of two years and six months is quashed and a sentence of two years and four months is substituted.

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REASONS OF THE COURT

(Given by MacKenzie J)

Introduction

[1] The appellant appeals against a sentence of two years six months’ imprisonment imposed in the Manukau District Court on 14 September 2012 following his plea of guilty to one count of aggravated robbery.[1]

Facts

[2] The facts are set out in the summary which was accepted by the appellant in entering his guilty plea. On Saturday 12 December 2010 there was a party at an address in Manurewa at which a large number of people were present. Sometime after midnight a fight broke out and a man involved in the fight was subsequently stabbed twice with a metal instrument. Later that night, shortly before 6 am, the two complainants were sitting outside a nearby address. A car pulled up near them and five males got out and walked towards them. One of the males was the appellant who was known to one of the complainants, C.
[3] The appellant and one of his companions stood close to the complainants. His companion was holding a beer bottle. The appellant was holding a metal baseball bat. He approached C, pushed the baseball bat into the side of C’s head and said “were you the ones who gave my mate a hiding”. The appellant punched and kicked C in the side of the head, the blows causing C’s head to jerk violently. C received a swollen right side of his head and face. His injuries did not require hospital treatment. Two of the appellant’s companions approached the other victim, threatened him and took his cellphone, car keys and cigarettes.
[4] The appellant was the only one of the five males to be identified and was the only one arrested and charged. C did not give a victim impact statement.

The sentencing

[5] In sentencing, Judge Treston noted a submission by counsel for the Crown that the offending fell within the category described in R v Mako in these terms:[2]

At the other end of the scale would be street robbery by demanding that the victim hand over money or property such as an item of clothing, where a knife or similar weapon is produced or where offenders acting together by bullying or menacing conduct enforce the demand though no actual violence occurs. Depending upon the circumstances the starting point would be between 18 months and three years. Actual physical enforcement might well require a higher starting point.

[6] The Judge noted that there was enforcement by actual physical violence through the punches and kicks to the victim’s head and the pushing of the baseball bat into C’s neck. The Judge noted the Crown submission that the offending fell within the upper end of the category described because there were multiple offenders acting together, weapons were present and there were threats of violence and actual violence. The Judge said that while the appellant may not have been the planner of the whole incident, it was clearly a planned incident and it was the appellant who punched and kicked the victim.
[7] Counsel for the appellant submitted at sentencing that the starting point should be two and a half years or less, and that home detention would be appropriate. The Judge accepted the Crown submission that the appropriate starting point was three years’ imprisonment. The Judge did not make any adjustment to that starting point to reflect aggravating and mitigating personal factors. He gave a discount for the guilty plea, and said: “I allow you a little more than the 20 percent reduction in the sentence that I impose”.[3] He made a deduction of six months from his starting point of three years, to give an end sentence of two years six months’ imprisonment. He noted that that sentence was outside the range in which home detention would be a possibility and said that, even if it had been within range, such a sentence would, in his view, be inappropriate.

Submissions

(a) Starting point

[8] Mr Juran for the appellant submits that the sentence was manifestly excessive and inappropriate in the circumstances. He submits that the starting point was too high, that the Judge failed to give adequate credit for the appellant’s personal circumstances, and that he failed to give full credit for the guilty plea.
[9] In submitting that the starting point was too high, Mr Juran submits that the starting point fails to recognise that: the weapon was used in a very restrained manner; the actual assaults were brief and did not cause serious injury; the appellant had no direct part in the theft which appears not to have been premeditated; the appellant was not the principal offender; and the duration of the offending was short. Mr Juran submits that the violence did not involve the use of the weapon, and that there was not more than one offender involved in the violence.
[10] Mr Davie for the Crown submits that the starting point of three years’ imprisonment was open to the Judge. Counsel observes that a three year starting point is not a ceiling for a street robbery involving weapons, multiple perpetrators and actual violence. Counsel refers to R v Salanoa.[4] Mr Davie further submits that there was no justification for treating the appellant as less culpable than if he had been charged as a principal because the appellant was a full participant, he was the only one who carried a baseball bat, and he was the first to use violence on the complainant.

(b) Personal circumstances

[11] In submitting that the Judge failed to give adequate credit for the appellant’s personal circumstances, Mr Juran submits that the appellant has a very limited criminal history, with no history of violence, and has never previously been subject to any sanction greater than a fine. The probation report was largely favourable and noted the appellant’s remorse and his offer to pay reparation. It also noted that the appellant was in a long-term relationship with three children for whom he was the provider. He was in employment and his employer held him in some regard and his partner regarded him as a good father. Mr Juran submits that the appellant might have been dealt with almost as a first offender.
[12] Mr Davie submits that while the appellant’s personal circumstances are better than some, they are not so exceptional as to have required a more lenient sentence. He submits that the appellant did not demonstrate contrition by compensating the victims or identifying his co-offenders, and he is far from being a first offender.

(c) Guilty plea

[13] Counsel for the appellant points out that the six month discount was less than the 20 per cent which the Judge had indicated. He submits that the total discount should have been such that the end sentence would have been two years or less, so that home detention could be considered.
[14] Counsel for the Crown submits that the guilty plea came 18 months after the offending and after the appellant had been committed to trial and had attended a number of callovers. The plea was entered shortly before a stand-by fixture for trial. Counsel submits that in those circumstances a discount of around 15 per cent was open to the Judge for the plea alone, and that the total discount of six months was within the available range.

Discussion

(a) Starting point

[15] We are satisfied that the three year starting point was within the available range. The circumstances here were at the more serious end of the scale of offending encompassed within [59] of Mako. They included actual physical enforcement, which this Court indicated might require a higher starting point than the 18 month to three year range described. The appellant played an active part in the offending. He was the perpetrator of the physical violence and he carried a weapon. He did not take the property which was stolen but that did not lessen his culpability. We find no basis for treating the appellant’s culpability in this offending as less than that of a full participant.

(b) Personal circumstances

[16] We are also satisfied that the Judge’s decision to make no deduction for personal mitigating factors (apart from the guilty plea) was appropriate. The need for accountability, denunciation and deterrence to which the Judge referred lessened the weight which might otherwise have been given to personal factors and to the appellant’s rehabilitative needs. The Judge referred to those matters. The appellant’s family responsibilities were not on our assessment such as to require a significant weighting in the sentencing process. At 24 years of age, the appellant was past the point where a discount for youth was called for. His criminal history, while not so serious as to be categorised as an aggravating factor, precluded any discount for previous good character.
[17] For these reasons, we consider that the mitigating factors relied on by counsel for the appellant did not require a discount from the starting point of three years and we do not think that the failure of the Judge to make an allowance for the claimed personal mitigating factors has led to a sentence which is manifestly excessive.

(c) Guilty plea

[18] In allowing for the guilty plea, the Judge indicated an intention to allow a discount of little more than 20 per cent. In fact he allowed six months from a starting point of three years, a figure of one sixth or 16.67 per cent.
[19] We consider that, but for the Judge’s expressed intention to allow a little more than a 20 per cent discount, a discount of six months would have been an adequate reflection of the guilty plea. On that basis, we would have reached the conclusion that the end sentence was not manifestly excessive.
[20] However, we think that a discount of 20 per cent to allow for the appellant’s personal circumstances and guilty plea was within the range available to the Judge. It is clear that he intended to allow a 20 per cent discount, but with a little more than that to arrive at a sentence expressed to the nearest month. That intention was not reflected in the arithmetic of the sentence calculation. Expressed in months, a deduction of “a little more than ... 20 per cent” from the three year starting point would be eight months.
[21] That is an error in the sentencing which we consider should be corrected. For these reasons, we would allow the appeal by quashing the sentence of two years and six months and imposing a sentence of two years and four months. While ordinarily that might be seen as tinkering, we consider that it is justified in this case as necessary to ensure that the appellant is not disadvantaged by the arithmetic error in the calculation.
[22] Because that end sentence is more than two years, we do not need to address the issue of home detention.

Result

[23] The appeal is allowed. The sentence of two years six months is quashed and a sentence of two years four months is substituted.

Solicitors:
Crown Law Office, Wellington for Respondent

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[1] R v Maihi DC Manukau CRI-2011-092-8282, 14 September 2012.
[2] R v Mako [2000] 2 NZLR 170 (CA) at [59].
[3] At [27].
[4] R v Salanoa [2008] NZCA 185.