R v Mahanga HC Whangarei CRI-2011-088-2950 [2011] NZHC 2032 (12 December 2011)

Last Updated: 13 February 2012

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

_{CRI-2011-088-2950}

THE QUEEN

v

GEORGE MAHANGA

Hearing: 12 December 2011

Appearances: N J Dore for Crown

M J Scally for Prisoner

Judgment: 12 December 2011

_{SENTENCING NOTES OF PETERS J}

Solicitors: Marsden Woods Inskip & Smith, Crown Solicitor, PO Box 146, Whangarei email: [e-mail]

Thomson Wilson, P O Box 1042, Whangarei 0140 email: [e-mail]

R V MAHANGA HC WHA CRI-2011-088-2950 12 December 2011

Introduction

[1] Mr Mahanga, you were originally for sentence today on a range of charges. It has become apparent that I am not able to sentence to you today on some of those, being two charges of driving whilst disqualified, a charge of driving with excess breath alcohol, one charge of receiving property, being a Subaru motor vehicle, and a charge of failing to comply with a condition of a sentence of intensive supervision.

[2] It is for the District Court to sentence you on those matters. [3] The charges on which I am to sentence you are:

(a) Charges of possession of cannabis for supply and selling cannabis.

The maximum penalty on those charges is eight years’ imprisonment.

(b) One charge of aggravated assault punishable by up to three years’

imprisonment.

(c) One charge of receiving stolen property, valued at approximately

$500. The maximum penalty on that offending would be one year’s

imprisonment.

Facts

[4] On 7 July 2011, the Police executed a search warrant at an address at which you were staying. The Police tried to arrest you because there were warrants for your arrest. As one of the Constables tried to handcuff you, you dropped your shoulder, knocking her to the ground. You then fled until you were eventually caught in a park. This is the basis of the aggravated assault charge.

[5] When they searched the address, the Police found:

(a) 135 cannabis tinnies in various locations throughout the house; (b) 43 grams of loose cannabis;

(c) three rolls of tin foil together with two empty rolls; and

(d) a “ticklist” on your mobile phone.

[6] You admitted to Police that the cannabis was yours and that you had been selling the tinnies to make money.

[7] The Police also located a red Honda motorcycle at the same time. That is the basis for the receiving charge.

Personal circumstances

[8] You are 32 years old. Since you returned from Australia you have been in regular contact with the Courts. You have 14 previous convictions for offences committed between November 2006 and April 2010. You also have convictions for failing to answer bail and for breaching other sentences imposed upon you. I accept, however, that none of that offending is strictly relevant to the type of offending before the Court today and I do not propose to put any weight on it when I come to sentence you.

Purposes and principles of sentencing

[9] In approaching the matter of sentencing today it is necessary for me to bear in mind the purposes and principles of sentencing which apply to your offending. I need to hold you accountable for the harm done to the victims and the community by your offending.

[10] Drug taking in Northland is endemic as Crown counsel has said and for that reason the Court takes a particularly serious view of offenders who supply illicit drugs. The effect on the community from such offending is substantial. Holding you accountable for that offending, denouncing your conduct and seeking to deter you and others from this type of offending is an important factor to bear in mind.

[11] I also need to take into account the gravity of the offending, your personal circumstances and to strive to achieve consistency across sentencing levels so that you are treated as the Court has treated other offenders on similar charges.

Approach to sentencing

[12] In determining what the appropriate sentence is, I adopt a three step process. I must first establish a “starting point” for each offence by reference to the aggravating and mitigating features of the offending itself. Secondly, I must adjust the starting point to take into account any other matters – aggravating and mitigating

– relating to you personally. The final step is to take into account and give an appropriate discount for your guilty pleas.

Cannabis offending

[13] The lead offence for the selection of the starting point is the cannabis offending. Guidance has been provided by the Court of Appeal in relation to cannabis offending in a case called R v Terewi.[1] In cases of small to moderate scale commercial drug dealing, and that is the level you were at, sentences of two to four years imprisonment are imposed. You have accepted that there was a commercial element to your offending. Although the Court may go below two years’

imprisonment where sales are infrequent, that is not the position in your case.

[14] Counsel are agreed that your offending falls at the lower end of the scale and consequently on the cannabis offending a starting point in the vicinity of two years six months’ imprisonment is appropriate. Bearing in mind the quantity of cannabis that the Police found, I consider your offending to be more serious than that in the case of R v Kanuta,[2] to which I was referred. As a result I think that a starting point of two years six months’ imprisonment is appropriate on each of the cannabis

_charges.

Aggravated assault

[15] Turning now to the aggravated assault, I have been referred to various relevant cases including R v Brooking,[3] R v McClean[4] and Police v Waho.[5] The details of every assault vary and the sentence which is imposed reflects the particular circumstances of each case. I do not detract at all from the seriousness of your assault on the Constable in this case but it is not as serious as, for instance, the case of McClean where the offender hit a police officer on the head and rendered him unconscious. Having heard what your counsel has to say, I propose to adopt a starting point of nine months’ imprisonment on the aggravated assault charge.

Receiving

[16] Then there is the matter of the receiving of the motorcycle and both counsel are agreed that an uplift to the starting point of one month’s imprisonment is appropriate for that charge.

[17] All of these sentences which I see as being dealt with on a cumulative basis, because they are all different in type. On a cumulative basis, the sentences total three years four months’ imprisonment.

Totality

[18] Standing back and considering the totality of the matter I take a starting point of three years three months’ imprisonment which I think is a fair reflection of all of the offending.

Personal factors

[19] I now turn to consider any aggravating and mitigating factors that apply to you personally.

[20] There are no factors which make it appropriate to increase the starting point. As I have said, you do have a number of convictions but none relating to the type of offending with which I am concerned.

[21] The relevant personal mitigating factor is your guilty plea for which you deserve significant credit.

[22] You pleaded guilty to the offending at the earliest possible opportunity and both counsel are agreed that a discount of 25 per cent for that is appropriate.

[23] I consider that is sufficient to take into account the other matters to which your counsel has referred me, including your expressions of remorse and the references that have been provided. Given that, I arrive at a final sentence of two years five months’ imprisonment.

Sentence

[24] Mr Mahanga, would you please stand:

(a) On the charges of possessing cannabis for supply and selling cannabis you are sentenced to two years five months’ imprisonment.

(b) On the charge of aggravated assault you are sentenced to nine months’ imprisonment. This sentence is to be served concurrently with the sentence referred to in (a) above.

(c) On the charge of receiving stolen property in relation to the Honda motorcycle I sentence you to one month’s imprisonment. This sentence is to be served concurrently with the sentences referred to in (a) and (b) above.

[25] Stand down.

..................................................................

PETERS J

---

[1] _{R v Terewi [1999] 3 NZLR 62}

[2] R v Kanuta HC Auckland CRI-2005-092-12080, 8 August 2006.
[3] _{R v Brooking CA419/04, 7 March 2005.}
[4] _{R v McClean CA54/06, 30 August 2006.}
[5] Police v Waho CRI-2008-031-1699, DC Palmerston North, 30 April 2009.