Mahara v Police [2016] NZHC 2517 (20 October 2016)

Last Updated: 25 November 2016

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2016-419-000041 [2016] NZHC 2517

BETWEEN	CHRISTOPHER HEMI MAHARA Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	20 October 2016
Appearances:	G Walsh for the Appellant T Tran for the Respondent
Judgment:	20 October 2016

_{ORAL JUDGMENT OF MUIR J}

Counsel/Solicitors:

G Walsh, Barrister, Hamilton

T Tran, Crown Solicitor, Hamilton

MAHARA v NEW ZEALAND POLICE [2016] NZHC 2517 [20 October 2016]

[1] Mr Christopher Mahara appeals a sentence of two years and six months’ imprisonment imposed on him by Judge MLSF Burnett in the District Court for a number of offences which were sentenced simultaneously. He had pleaded guilty to each of them. Such offences were:

(a) Driving whilst disqualified (third or subsequent) of which there were two;

(b) Possession of an offensive weapon (a ball and chain and a machete); (c) Contravention of a protection order;

(d) Threatening to kill;

(e) Possession of a methamphetamine utensil;¹ and

(f) Assault with intent to injure.

[2] Although the District Court Judge did not identify a specific lead charge, that of threatening to kill was the charge which, by a considerable margin, attracted the longest maximum sentence (seven years).²

Factual background

[3] Three distinct groups of offences were before the Court. The first offence for which the appellant was sentenced related to his apprehension on 27 August 2015 while driving a motor vehicle in Ngaruawahia. He was at that time disqualified from driving to which he admitted. In the result, he was charged with an offence of driving whilst disqualified, third or subsequent. I note at this stage that prior to that

_{event he had 10 former convictions for driving whilst disqualified.}

¹ The District Court judgment refers to possession of methamphetamine for which a maximum sentence of a of six months’ imprisonment applies, however, I was referred to the relevant charging document which was in relation to possession of utensils for which a 12 month maximum period of imprisonment applies.

² Crimes Act 1961, s 306.

[4] The most serious offending occurred on 8 February 2016 at 1.30 am. At that time the appellant and two unknown associates arrived at the victim’s home. The victim is the former partner of Mr Mahara, with whom he had an approximately

14 year relationship. She has four children.

[5] On 18 May 2011 a final protection order had issued in her favour and that of her children.

[6] The summary of facts noted that, upon arriving at the victim’s home, the defendant asked if he could come inside. When, unsurprisingly he was told “no” he became angry and yelled, “Do you want me to drive this car through the gate, smash into your car and smash your car through the house?” The victim at that stage locked the front door and tried to call the police from inside the house.

[7] The appellant then drove through the closed gate of the property before exiting his vehicle and approaching the front door. He yelled to the victim from outside the house, “I’m going to kick your door in, smash a bottle and stab you to death with it if you call the cops”. The appellant then proceeded to kick the front door on multiple occasions ultimately causing it to break. He then entered the house where he began chasing the victim who had fled through the back door.

[8] The appellant then yelled to his front seat passenger words to the effect, “Bro get out and grab her” which this unknown associate did. He then held the victim until the appellant arrived. The appellant then placed his arm around her neck pulling her head into his chest and squeezing tightly to prevent her from escaping. He then took her phone so she was unable to call the police. Eventually she escaped to a nearby address. The learned District Court Judge described this offending as having “terrifying features”. I accept that description as accurate.

[9] The third set of offending had its genesis in events on Sunday 27 March 2016 when the appellant had an altercation outside his mother’s address. His mother told him to leave and reported seeing him carrying a machete and a ball and chain. This has resulted in the offensive weapon charge.

[10] On 2 May the police located the appellant in a bedroom at a Ngaruawahia address with a glass pipe. That resulted in the possession of methamphetamine utensils charge.

[11] The appellant has what could only be described as a very extensive criminal and traffic history dating back to 1993. That history comprises in total 10 pages of offending. Relevantly, and prior to the events in question, he was convicted (in December 2015) for contravening the same protection order. There is an earlier offence for speaking threateningly. The traffic history and history of property offences, including burglary, could only be described as desultory.

[12] The pre-sentence report painted a very unattractive picture, particularly in terms of his past efforts at rehabilitation which might be described as ‘all talk and little action’. The District Court Judge noted that, “the appellant did not believe he required assistance to deal with his addiction to methamphetamine” which his previous counsel had in the course of submissions, and I believe accurately, described as his “nemesis”. It is clear Mr Mahara has a long history of substance abuse for which he is disinclined to seek treatment and which underpins most of his offending.

The District Court’s decision

[13] The District Court Judge noted the negative pre-sentence report. She adopted a starting point of two years in respect of the breach of a protection order, assault with intent to injure and threatening to kill charges. She uplifted that by four months to reflect the second driving whilst disqualified charge for which she noted the aggravating feature that it involved driving the victim’s car, leaving her stranded at the address. Then in relation to the other charge of driving whilst disqualified and the possession of methamphetamine utensils and the offensive weapon charge, she uplifted the sentence by a further 12 months. She then undertook a totality assessment which resulted in an adjusted starting point of 40 months imprisonment from which she allowed a full deduction for guilty plea in the amount of 25 per cent, resulting in an end sentence of two years and six months’ imprisonment.

The approach on appeal

[14] Section 252 of the Criminal Procedure Act states the Court must allow the appeal if satisfied for any reason there is an error in the sentence imposed on conviction and a different sentence should be imposed. In any other case the Court must dismiss the appeal. Significantly, the High Court will not intervene when the sentence is within the range that can properly be justified by accepted sentencing principles. Whether a sentence is manifestly excessive is to be examined in terms of the sentence given rather than the process by which it is reached.

[15] It has been long established that sentence appeals focus on the end sentence rather than the methodology by which the sentence is arrived at. I accept also Mr Tran’s submission, made in reliance on the observations of Simon France J in Kohu v Police,³ that domestic violence is now recognised as a “scourge” and that sentences towards the upper end of the available range are appropriate. Mr Mahara clearly exhibits the very attitudes of possession and control which all too frequently result in violence towards women in this country and such attitudes simply have no part in contemporary New Zealand society. I simply note that when accompanied by the

level of violence and the threats exhibited in this case such behaviour will inevitably attract the strong denunciation of the Court.

Submissions

[16] In his very comprehensive submissions Mr Walsh states that the starting point for what he calls the breach of protection order offending (two years) was manifestly excessive. He submits that a term of 12 -15 months would have been more appropriate. He takes issues also with the uplifts which cumulatively constituted 16 months and which he says should have more appropriately been in the range of nine to 12 months.

[17] In support of his submission Mr Walsh draws attention to a number of cases. I will refer to each of these briefly.

³ Kohu v Police [2013] NZHC 944.

[18] Firstly he refers to Williams v Police.⁴ In that case the appellant appealed against a sentence of 12 months’ imprisonment imposed on one charge of breaching a protection order and one charge of male assaults female. The facts were that an argument developed between the parties. Mr Williams punched the victim in the mouth causing a cut to the lower lip and bruising to her jaw. She received six stitches to her lip. The appellant had previously been convicted for four breaches of protection orders, three in respect of the same victim in 2013 and 2014 and one in respect of a different victim in 2013. Such offences were therefore in very close proximity to the index offending.

[19] On appeal to the High Court, Mallon J quashed the sentence of 12 months’

imprisonment and imposed one of eight months in its place.

[20] Significantly, there was in that case no charge of threatening to kill as occurred in this case.

[21] Mr Walsh next refers to Rewita v Police.⁵ That was an appeal against a sentence of 20 months’ imprisonment imposed for four offences, including assault with intent to injure, burglary and two of breaching protection orders. The appellant in that case pulled a former partner to the ground, slapped her with an open hand and then punched and kicked her. Her injuries were not serious. On a later occasion he also went to the complainant’s home and refused to leave resulting in a further breach of the protection order. Some three months later another incident occurred when his partner voluntarily arranged to pick him up but an argument subsequently broke out and the protection order was again breached.

[22] On appeal Panckhurst J held that for the two breaches of a protection order, what he described as “a nasty assault” and a burglary which involved taking his partner’s laptop, he was, in the round, satisfied that an end of sentence of 20 months imprisonment was within the available range. The appeal was accordingly

_dismissed.

⁴ _{Williams v Police [2014] NZHC 3255.}

⁵ Rewita v Police [2013] NZHC 2175.

[23] In Lusty v R,⁶ a sentence of 18 months’ imprisonment was imposed relating to two charges of male assaults female and one charge of threatening to kill, all arising out of the same incident. An argument between the appellant and victim escalated with the appellant pushing the victim off the bed and onto the floor. As she stood up he grabbed her and forced her down onto the bed, using one of his arms to hold her there while holding the other across her throat restricting her airway. He pounded her head into the bed on numerous occasions, saying that he was going to kill her and make her life hell. She suffered some bruises and soreness to her jaw. The appellant in that case was 22 years of age. His appeal was dismissed on the grounds that the High Court could not conclude the sentence was manifestly excessive.

[24] Finally, Mr Walsh refers to Tamihana v R⁷ where a sentence of 30 months imprisonment for assault with intent to injure was imposed. I do not find this case particularly helpful. It involved an assault outside a bar where Mr Tamihana hit the victim with a closed fist and then kicked him when he was on the ground. It contains none of the features of threatening to kill or the domestic context which applies to the present case.

[25] I agree with counsel for the Police that the most useful of the authorities is Uku v Police.⁸ In that case the offender and the victim had been in a relationship for approximately seven years with a history of domestic violence and assaults. There was a final protection order in place. The judgment records that after a verbal altercation the victim had gone to bed, that the appellant came into the bedroom and continued to verbally abuse her, telling her that he “felt like killing someone” and

saying “I don’t mean you, but you never know I should suffocate you”. It further records the victim was terrified and that the appellant continued to threaten to suffocate and kill her before leaving the room. The victim eventually got out of bed and went to mollify the appellant. As she was trying to leave the bedroom, he pushed her right hand into her face to prevent her from doing so. The assault itself

_{was not therefore serious and I conclude that neither did the threats to kill have the}

⁶ _{Lusty v R [2012] NZCA 275.}

⁷ _{Tamihana v R [2012] NZCA 169.}

⁸ Uku v New Zealand Police HC Wellington CRI-2007-485-84, 26 September 2007.

intensity or specificity of those made in the present case. Nevertheless, I accept that in Uku, as is in this case, the victim was genuinely terrified.

[26] As in this case also, she made her escape to the neighbour’s house. The defendant was subsequently charged with threatening to kill, male assaults female, breach of a protection order and intimidation.

[27] On appeal Ronald Young J upheld the starting point of 2 years on those charges, observing that it was an ordeal in respect of which the complainant was “well entitled to fear for her life, given the appellant’s past conduct towards her.” That past conduct is particularly relevant given that approximately eight months earlier the appellant had been sentenced to imprisonment for one year on a charge of male assaults female, threatening to kill and assault with intent to injure in respect of the same victim. I accept Mr Walsh’s submission that the present case is not in the same category given that the appellant’s previous conviction in relation to this victim relates to breach of the protection order simpliciter.

[28] However, I regard the circumstances of this offending to be significantly more serious overall than in Uku. The particular aggravating features are the fact that the appellant arrived in the small hours of the morning, there were children in the home; he was denied entry to it; he made a series of threats from outside the property which he then carried out to the extent of breaking down the door and forcibly entering the home; that he had with him at the time associates who assisted in detaining the victim; and the very immediate and particularised threats to kill which involved smashing a bottle and stabbing her to death if she were to call the police.

[29] I consider that the Judge’s starting point of two years in relation to that group of offending was well justified. Indeed, the offending was so serious and the terror which it must have caused to the victim so significant that I would have considered a modestly higher starting point immune to challenge on appeal.

[30] I then turn to the various uplifts which Her Honour applied.

[31] The discrete uplift of four months for one of the driving whilst disqualified charges does seem unusual. The question I ask myself, however, is whether the totality of the uplifts, being 16 months for both driving whilst disqualified charges, the methamphetamine related offending and the possession of offensive weapons charges was cumulatively justified. I agree with the Crown’s description of these uplifts as stern, however I do not consider them outside the available range that the Judge could appropriately apply.

[32] As I have indicated, these were respectively the eleventh and twelfth charges of driving whilst disqualified for which a maximum penalty of two years’ imprisonment was available. The methamphetamine utensil charge likewise attracted a prison term. Ultimately however what I am required to do is to stand back from the sentence in its totality and to ask myself whether it was manifestly excessive for all of the offending for which the appellant was being sentenced. I am unable to conclude that it was. Indeed, having regard particularly to the circumstances of what can be described as a home invasion and the ordeal which the victim was required to endure, it was, in my view, a demonstrably reasonable sentence.

_{[33] I accordingly dismiss the appeal.}

Muir J