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High Court of New Zealand Decisions |
Last Updated: 13 November 2018
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IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
I TE KŌTI MATUA O AOTEAROA
TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE
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CRI-2018-463-87
[2018] NZHC 2732 |
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BETWEEN
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ANDREW MANGI
Appellant
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AND
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THE QUEEN
Respondent
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Hearing:
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3 October 2018
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Appearances:
Further submissions completed:
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S Mills for the Appellant J A Eng for the Crown
11 October 2018
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Judgment:
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23 October 2018
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JUDGMENT OF POWELL J
This judgment was delivered by me on 23 October at 3.30 pm pursuant to R 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
Solicitors:
Lance Lawson, Rotorua Crown Law, Wellington
MANGI v R [2018] NZHC 2732 [23 October 2018]
[1] Andrew Mangi has appealed a sentence of five months’ home detention imposed by Judge Hollister-Jones on 31 August 2018.1 He was sentenced on one charge of wounding with intent to injure.2
[2] I must allow Mr Mangi’s appeal if I am satisfied that there is an error in the sentence, and a different sentence should be imposed. In any other case, I must dismiss the appeal.3 I will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles. But where the sentence imposed is manifestly excessive, intervention is required.4 Whether a sentence is “manifestly excessive” is to be assessed in terms of the sentence given, rather than the process by which it is reached.5
[3] In his written submissions Mr Mills, on behalf of Mr Mangi, contended the sentence was manifestly excessive, as a result of the sentencing Judge:
(a) imposing a starting point that was excessive considering Nuku v R,6 and comparable cases;
(b) not granting a discrete discount for remorse and insight, but instead finding those personal factors were ‘set off’ by the implications of the three-strike regime, and his decision not to uplift for previous offending; and
(c) giving insufficient regard to the almost ten months Mr Mangi spent in custodial remand before his sentencing.
[4] I address each issue in turn.
2 Crimes Act 1961, s 188(2). The maximum penalty is seven years’ imprisonment.
3 Criminal Procedure Act 2011, s 250(3).
4 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [35].
5 At [36].
6 Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39.
Issue One: Starting Point
[5] Mr Mangi’s offending occurred close to midnight on 28 October 2017. Mr Mangi became involved in a street-side altercation with a relative of the complainant. When the complainant — celebrating at a function across the road — became aware of the situation he attempted to drag his relative away from the dispute and back towards the function. The complainant told Mr Mangi the matter was finished, but Mr Mangi remained aggressive.
[6] Without warning, Mr Mangi went up to the complainant and punched him to the left of his head with his right arm. The complainant immediately collapsed. The back of his head hit the road and started bleeding and he was rendered unconscious. It is not clear from the information before the Court whether the complainant was rendered unconscious from the blow received or the impact of his head hitting the road. When family members rushed to his aid, Mr Mangi continued to swear aggressively until he fled the scene in his vehicle before police arrived.
[7] The complainant is fortunate he does not appear to have suffered significant longer term consequences. He was still unconscious when he was taken to hospital. He received treatment for a 3 cm laceration to the occipito-parietal area of his head and a small haematoma around the laceration. He also suffered headaches for around a week, and required three days off work.
The District Court Decision as to Starting Point
[8] On 27 July 2018, Judge Hollister-Jones gave a sentence indication with a starting point of 21 months’ imprisonment, reduced by four months for a guilty plea. His Honour left open the question of home detention. Those numbers — and by implication the reasoning justifying them — were carried through into the sentencing decision.
[9] In determining the starting point His Honour applied Nuku v R. There is no doubt Nuku provides authority for how the guideline judgment of R v Taueki can be adjusted to less serious assault charges.7
[10] His Honour located Mr Mangi’s offending within band two of Nuku, representing a starting point of up to three years’ (or 36 months’) imprisonment. It is described as appropriate “where three or fewer” of the aggravating features listed in Taueki are present.8
The Case for Mr Mangi
[11] Mr Mills argued the Judge erred in his conclusion of the seriousness of the assault and submitted band one of Nuku was the more appropriate categorisation. That band applies:9
... where there are few aggravating features, the level of violence is relatively low and the sentencing judge considers the offender’s culpability to be at a level that might have been better reflected in a less serious charge, a sentence of less than imprisonment can be appropriate.
[12] In support of this submission Mr Mills referred me to several cases involving the lower charge of assault with intent to injure. Though that charge carries a maximum sentence of three rather than seven years as in the present case,10 the element of mental intent is the same; so these authorities can therefore still provide some assistance here.11
[13] In three of these cases, starting points of 12 months’ imprisonment were upheld or substituted on appeal.12 The offender in those respective cases:
7 At [37], citing R v Taueki [2005] NZCA 174; [2005] 3 NZLR 372 (CA).
8 At [38](b).
9 At [38](a).
10 Crimes Act 1961, s 193.
11 Tamihana v R [2015] NZCA 169 at [16].
12 The fourth case, Ransfield v Police [2014] NZHC 1046, is far less analogous. An 18-month starting point was imposed for considerably more serious and prolonged violence committed by a father against his son. Mr Ransfield grabbed his son by the throat, pulled him off a horse, kicked him with steel-capped boots, dragged him along the road, and punched him twice to the back of his head with a closed fist.
(a) attacked his de-facto mother-in-law in her bedroom, punching her in the eye causing her to fall onto her bed, then shutting the bedroom door and punching her again to the nose and mouth;13
(b) knocked the victim down with a punch to the head, followed up by a kick while the victim was on the ground;14 and
(c) ran up to a victim (who had already been punched, knocked to the ground and then kicked by the offender’s associate) and proceeded to kick him once more to the head, causing bruising and grazes to his face.15
Discussion – Issue One
[14] I begin my analysis by agreeing with Judge Hollister-Jones’ application of Nuku and his conclusion that two aggravating factors were relevant in this case: the attack to the head (present to a strong degree) and the vulnerability of the victim given the attack was unexpected (present but only to a mild degree). I also agree the level of injury is not itself aggravating as it is adequately encapsulated within the charge itself.16
[15] I likewise conclude His Honour was correct in recognising Mr Mangi’s offending involved “serious violence”, and I do not accept that the level of violence in this case was less than in the cases cited by Mr Mills. In particular it is clear that the present case involved a serious punch to the complainant’s head, at the very least sufficient to knock him to the ground and lead to a real prospect of causing significant (even fatal) harm.17 The greater harm caused to the complainant was clearly a “foreseeable consequence of the offender’s actions”,18 and is reflected in the more serious charge (“wounding” rather than “assault”) to which Mr Mangi pleaded guilty.
13 Kohu v Police [2013] NZHC 994.
14 Kojeunikov v Police [2013] NZHC 551.
15 Tamihana v R, above n 11.
16 Sentencing Decision, above n 1, at [4]; and Sentencing Indication, above n 1, at [4]-[6].
17 Sentencing Indication, above n 1, at [11].
While as His Honour noted a lesser charge could have been preferred by the prosecution in this case it was nonetheless well within the available prosecutorial discretion.
[16] The appropriateness of the starting point adopted by Judge Hollister-Jones was supported by a number of cases referred to me by Crown counsel, Mr Eng. Those cases also concerned a different, lesser, charge than the present offending— though again with the same mental element. That charge is injuring with intent to injure, carrying a lower maximum sentence of five years’ imprisonment.
[17] The most instructive is Elizalde v New Zealand, where a 21-month starting point was substituted on appeal.19 For the most part, the offending is strikingly similar: Mr Elizalde walked up to the victim and without warning, punched the victim with a closed first, causing him to stumble. The seriousness of the resulting injuries was comparable; although in that case the complainant’s jaw was broken and surgery was required to repair it, he did not lose consciousness. The only factor that potentially makes Elizalde slightly more serious than the present offending is that after the initial blow Mr Elizalde attempted to strike the victim again, but was held back by members of the public.
[18] Aside from the identical aggravating features of an attack to the head and victim vulnerability, the Court recognised the level of injury as the key, indeed the only “seriously”, aggravating factor.20
[19] Finally, I must take seriously that Parliament has seen fit to enact a higher maximum sentence to reflect the difference in the level of injury in the present charge, as compared with ‘injuring’, or ‘assault’ with intent. However, given Mr Mangi’s culpability is only slightly lower than that of Mr Elizalde, and has pleaded guilty to the more serious charge, I am not prepared to find the 21-month starting point imposed by the Judge was outside the available range.
19 Elizalde v Police [2015] NZHC 959. In the other case, Rewa v Police [2015] NZHC 2459, the Judge described the offending as analogous to (and if anything less serious than) Elizalde but set a starting point of 25 months’ imprisonment: see at [17]-[18].
20 At [17] and [21].
Issue Two: Discount for Personal Factors
[20] Judge Hollister-Jones was clearly alive to a number of personal mitigating circumstances relevant to Mr Mangi. In his decision His Honour observed Mr Mangi:21
(a) was remorseful, as is recorded in the pre-sentence report and evidenced by a letter of apology written to the victim;
(b) displayed some insight into the impact of his offending; and
(c) has significant family support.
[21] Judge Hollister-Jones did not give any discrete discount for these mitigating factors. Instead, His Honour explained:22
I did not uplift the indicated sentence for prior convictions because of the second strike regime, so I am not going to adjust the 17 month end sentence downward for your remorse, although remorse has been taken into account by me in the home detention assessment.
[22] Judge Hollister-Jones likewise appeared mindful of the possible parole consequences of a second-strike sentence when he recorded the circumstances of Mr Mangi’s first-strike offending for aggravated robbery:23
The charge laid did not involve the use of a weapon. You received a sentence of two years, 11 months. The sentencing notes of Judge Rea describe it as a gang taxing and the sentencing notes contain no reference to violence, let alone serious violence. However, this resulted in a first strike, given the legislation.
[23] I consider this aspect of His Honour’s sentencing in more detail in the next subheading. In the end, however, the only discrete discount the sentencing Judge gave for this consideration was in counterbalancing the uplift for previous convictions. Mr Mills complains that is inadequate.
21 Sentencing Decision, above n 1, at [6]-[7].
22 At [8].
23 Sentencing Indication, above n 1, at [10].
[24] It is apparent Judge Hollister-Jones reasoned the uplift he would have otherwise given for previous offending was, in the circumstances, cancelled out by Mr Mangi’s remorse and the parole consequences of a second-strike sentence. Given my conclusion on the appropriateness of an uplift for previous offending, I have not find it necessary to determinate whether the latter conclusion was appropriate.
[25] I agree with Mr Mills that it was not available to Judge Hollister-Jones to impose an uplift for Mr Mangi’s previous convictions for aggravated robbery, theft, and making demands to steal. Previous convictions must be taken into account to the extent they are applicable in the case, considering the “number, seriousness, date, relevance, and nature” of the offender's past convictions. While Mr Mangi does have a concerning history of offending, his index offending is quite different to his previous history to the extent it involves violence. As Judge Hollister-Jones noted, the sentencing notes for Mr Mangi’s sentencing for aggravated robbery contain no reference to violence, let alone serious violence. It follows that those prior convictions are not applicable, because they are not similar in nature or relevant to the offending for which Judge Hollister-Jones was sentencing Mr Mangi.
[26] For those reasons, I find the Judge erred in deciding not to allow a discrete discount for personal circumstances, in the order of two months (or slightly less than ten per cent).
[27] Mr Eng submitted that ultimately, even if such a discount had been given, the notional end sentence would have been 15 months. When 10 months is deducted for the pre-sentence detention, the final sentence remains five months, the length of the home detention sentence given to Mr Mangi. To assess whether that submission is correct, it is necessary to turn to the third issue; the deduction Judge Hollister-Jones gave for pre-sentence detention.
Issue Three: Deduction for Pre-Sentence Detention
[28] Judge Hollister-Jones gave a credit for the 10 months Mr Mangi had spent in pre-sentence custody (from 8 November 2017 to 31 August 2018).
[29] As His Honour correctly observed, the Court should not undertake an automatic or “straightforward mathematical calculation” to deducting pre-sentence detention in fixing a term of home detention.24
[30] His Honour ultimately considered five months was necessary in light of the Sentencing Act 2002 objectives, reasoning:25
In the Court’s assessment, despite your long custodial remand, it is still necessary to sentence you in accordance with the principles and purposes of the Sentencing Act, particularly accountability, the denunciation of serious street violence, deterring you and providing for the victim of the offence so that the victim also realises that there has been accountability and the victim is protected. I also need to take into account the fact that I must not give you a sentence that is disproportionately low for a charge of wounding with intent to injure.
[31] Mr Mills submitted that notwithstanding the credit given, and accepting how much credit should be given for pre-sentence detention is a matter of discretion for the sentencing Judge, when considering a short-term sentence under two years a court is able to and in most cases would deduct up to double the amount of pre-sentence detention from the notional end sentence of imprisonment and then divide the remainder by half at the point where home detention is imposed, to reflect in both cases the fact that a prisoner is released after serving half a short-term sentence of under two years’ imprisonment.
[32] On this basis, Mr Mills submitted Mr Mangi has been, in effect, sentenced to
30 months’ imprisonment (the 10 months’ pre-sentence detention served being equivalent to twenty months’ imprisonment and the five months’ home detention ultimately imposed being equivalent to a further 10 months’ imprisonment), in circumstances where he had received a sentence indication of only 17 months’ imprisonment.
[33] Mr Mills accepted that this has come about because of the effect of the three strikes regime and in particular the fact that Mr Mangi was being sentenced on a
24 Sentencing Decision, above n 1, at [9] Kidman v R [2011] NZCA 62 at [15]- [16].
25 At [10].
second-strike sentence, but in Mr Mills’ submission s 86C(4) of the Sentencing Act is clear that the consequences of the second strike should only have effect if the offender is sentenced to a “determinate sentence of imprisonment”, rather than as here, home detention.
[34] As a result, Mr Mills submitted that either the sentencing Judge should have given a “standard” discount for the pre-sentence detention and/or halved the length of any home detention ultimately imposed relative to the notional end sentence remaining at that point, or that this is the type of “exceptional case” identified by the Court of Appeal in Barnes v R26 and that Mr Mangi should therefore receive a further substantial discount, suggesting 33 per cent would be appropriate in the circumstances. As Mr Mills accepted that it would have been inappropriate from a deterrence and denunciation perspective to simply discharge Mr Mangi at sentencing (on the basis that the 10 months’ pre-detention was greater than the notional end sentence), he submitted an appropriate actual sentence would have been one month’s home detention.
[35] The Crown position was that no issue of the type raised by Mr Mills arose because, as Mr Eng submitted, a sentence of home detention is only available if the sentencing court would otherwise sentence the offender to a short-term sentence of imprisonment.27 The normal rationale for halving the amount of time to be served on home detention is that an offender serving a short-term sentence of imprisonment will be released after half the sentence, whereas home detention is served in full. That rationale vanishes where, as here, any term of imprisonment imposed is required to be served without parole. As Katz J observed in Tialata v Police:28
In this case, however, Mr Tialata will not be eligible for parole at half-way through his term of imprisonment. He must serve the full 18-month term of imprisonment, due to the operation of the three strikes regime. Logically, then, any period of home detention ... would also have to be set at 18 months, to constitute an equivalent sentence. The maximum permissible term of home detention, however, is 12 months.
26 Barnes v R [2018] NZCA 42, [2018] 3 NZLR 49.
27 Sentencing Act 2002 s 15A(1)(b).
28 Tialata v Police [2017] NZHC 3096 at [39].
[36] Applied to this case this means after deducting the 10 months’ pre-sentence detention from the notional end sentence of 17 months’ imprisonment, Mr Mangi could have been required to serve seven months’ home detention and, Mr Eng submitted, Judge Hollister-Jones was arguably generous in imposing only five months’ home detention.
Discussion – Issue Three
[37] The relevant parts of the three strikes regime applying in the present case are:
(a) When imposing a determinate sentence of imprisonment on an offender for any second-strike offence, s 86C(4) of the Sentencing Act provides that in the case of a short-term sentence the court must order that the offender serve the full term of the sentence and not be released before the expiry of the sentence.29
(b) As the Court of Appeal stated in Barnes v R, s 86C(4) applies after the sentence has been evaluated in the normal way and imposed.30 As explained in Paerau v R:31
That evaluation required the judge to undertake the usual sentencing exercise, having regard to the usual purposes of sentencing, applying the usual sentencing principles, and considering the mandatory aggravating and mitigating factors. That could, the Court said, require the Court to impose the least restrictive outcome appropriate in the circumstances.
(c) This “normal sentencing approach” necessarily involves the court avoiding manifest injustice.32 To that end, it will be lawful for a court to take parole eligibility into account in sentencing, if that is done for legitimate sentencing purposes.33 However, this must be done for a genuine purpose under the Sentencing Act, rather than to simply avoid the effect of s 86C.34
29 Sentencing Act 2002, s 86C(4).
30 Barnes v R, above n 26, at [50].
31 Paerau v R [2018] NZCA 139 at [22] (footnotes omitted).
32 Barnes v R, above n 26, at [53].
33 At [77].
34 At [78].
[38] In this case Judge Hollister-Jones gave Mr Mangi a sentence indication of 17 months’ imprisonment, leaving open home detention. His Honour considered he did not have sufficient information at that stage to determine whether an adjustment to the end sentence in view of the parole consequences of sentencing on a second-strike offence (“a Barnes adjustment”) was appropriate.35
[39] However at sentencing Judge Hollister-Jones did not explicitly analyse whether a Barnes adjustment was necessary. His Honour made it clear that home detention was appropriate, and noted the effect of s 86C(4) did not “kick in” because he was not sentencing Mr Mangi to imprisonment. His Honour did not set out a detailed calculation as to what credit was given for pre-sentence detention, but moved on to a conclusion that five months’ home detention was appropriate. The lack of calculation leaves the end sentence open to Mr Mills’ criticism that insufficient credit was given for pre-sentence detention, particularly in light of the five months’ home detention sentence, which would normally be equated with a 10 month sentence of imprisonment.
[40] Put another way, had this not been a second-strike offence and Judge Hollister- Jones followed the “normal sentencing approach”, it is likely he simply would have imposed a sentence of 17 months’ imprisonment. Ordinarily, Mr Mangi would have been released immediately on the basis of time served, having completed over half a short-term sentence of imprisonment. However, because Mr Mangi would have been sentenced to a “determinate sentence of imprisonment” for a second-strike offence, s 86C(4) would have taken effect and limited the credit available for the period pre- sentence detention to 10 months, leaving Mr Mangi with seven months’ imprisonment to serve.
[41] In my view, this would have resulted in the type of manifest injustice to which the Barnes adjustment is directed, justifying the court fixing sentence with reference to parole consequences. As the Court of Appeal said recently in Wipa v R:36
[Section 86C(4)] takes the decision out of the court's hands and excludes parole without reference to the circumstances of the offence or the offender,
35 Sentencing Indication, above n 1, at [12].
36 Wipa v R [2018] NZCA 219 at [34]- [35].
or the principle of like treatment. It must follow that inadmissibility to parole may sometimes result in an effective sentence that is harsher than it would have been had those considerations been taken into account. Indeed, it is possible that the effective sentence may be much harsher, because the circumstances of the offence and the offender are centrally important in sentencing.
This possibility could not affect the sentence calculation if the court were required to put parole considerations aside when sentencing. The court would be required to wash its hands of any resultant injustice. But as this Court explained in Barnes, the legislation does not so provide. As a matter of sentencing practice courts usually set the term of a sentence without reference to parole, but this is not an inflexible rule. In pursuit of Sentencing Act objectives a court may depart from it for good reason.
[42] The parole consequences of the sentence which would have been imposed following the normal sentencing process are much harsher than is justified, creating a distorting effect that required amelioration.
[43] In this case a Barnes adjustment would have required the sentencing judge to acknowledge that a decision had to be made as to how the remaining seven months of the sentence should be served, either by imprisonment or a less restrictive sentence appropriate in the circumstances. Ultimately this was the position that Judge Hollister- Jones in fact reached when he concluded that home detention was appropriate.
[44] Having determined that home detention was appropriate the sentence to impose on Mr Mangi, the sentence being imposed ceased to be a “determinate sentence of imprisonment” for the purposes of s 86C(4) of the Sentencing Act. Accordingly there was, contrary to Mr Eng’s submission and the comments by Katz J in Tialata, no reason that the standard discount for home detention should not apply, notwithstanding that Mr Mangi would not have been entitled to parole had he received a term of imprisonment. This would have reduced Mr Mangi’s sentence to one of three and a half months’ home detention.
[45] It is at this point that the discount for personal factors becomes relevant. Had, for the reasons noted, the sentencing Judge appropriately given a discount of two months for personal factors this would have reduced the notional end sentence to 15 months rather than 17. For the reasons set out at [40]-[43] above this would have led to His Honour having to consider what sentence to impose in relation to the remaining five months rather than seven. Mr Mangi should have therefore received
an end sentence of two and a half months’ home detention rather than the five months actually imposed. As a result, I conclude that the sentence imposed was manifestly excessive and the appeal should be allowed.
Decision
[46] The appeal is allowed.
[47] A sentence of two and a half months’ home detention is substituted for the five months’ home detention previously imposed. The other conditions remain the same.
Powell J
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