JAYDEN MAUGHAM AND THE KING
[2024] NZHC 2108
•10 December 2024
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2024-404-569
[2024] NZHC 2108
BETWEEN JAYDEN MAUGHAM
Appellant
AND
THE KING
Respondent
Hearing: 10 December 2024 Appearances:
C Taylor for Appellant H Bell for Crown
Judgment:
10 December 2024
(ORAL) JUDGMENT OF WILKINSON-SMITH J
Solicitors:
Meredith Connell, Auckland C Taylor, Barrister, Northland
MAUGHAM v R [2024] NZHC 2108 [10 December 2024]
Introduction
[1] Jayden Maugham appeals against a sentence imposed on him by the District Court,1 in respect of the following charges:
(a)injuring with intent to injure;2
(b)contravening protection order;3
(c)resisting police;4
(d)assaulting police;5
(e)failing to stop for red and blue flashing lights;6 and
(f)driving while disqualified.7
[2] He was sentenced on 13 September 2024 by Judge K Maxwell to an end sentence of three years and one months’ imprisonment.
[3]Mr Maugham appeals against his sentence on the following grounds:
(a)the Judge erred by adopting a manifestly excessive starting point for the lead charge of injuring with intent to injure, namely two years and nine months’ imprisonment; and
(b)allowed insufficient credit for:
1 New Zealand Police v Maugham [2024] NZDC 22263.
2 Crimes Act 1961, s 189(2). Maximum penalty: five years’ imprisonment.
3 Family Violence Act 2018, ss 90(b) and 112(1)(a) and (3). Maximum penalty: three years’ imprisonment.
4 Summary Offences Act 1981, s 23(a). Maximum penalty: three months’ imprisonment or $2,000 fine.
5 Section 10. Maximum penalty: six months’ imprisonment or $4,000 fine.
6 Land Transport Act 1998, s 52A (1)(a)(ii) and 114(2). Maximum penalty: $10,000 fine and six months’ disqualification.
7 Section 32(1)(a) 3). Maximum penalty: three months’ imprisonment or $4,500 fine; and six months’ disqualification.
(i)guilty plea; and
(ii)rehabilitative prospects.
[4] In submissions before me today, Mr Taylor responsibly acknowledges that the appellant’s position does have to be assessed against the fact that the Judge did not apply any uplift; and accepts that the matter is finely balanced, but nevertheless says that there are available discounts that should have been applied and would result in an adjustment that would be more than tinkering.
[5] The Crown opposes the appeal and says the starting point was within range. The guilty plea for the lead offending was entered on the morning of the rescheduled trial after Mr Maugham had absconded from his bail resulting in considerable delay. The Crown submits that no discount was appropriate for rehabilitative prospects in the circumstances and says that the end sentence is not manifestly excessive.
Background
[6] On 7 May 2020, Mr Maugham and the victim of the injuring with intent to injure charge both lived at a residential village in Albany. At about 7 pm on 7 May 2020, Mr Maugham went to the victim’s address and accused the victim of snooping around his place. He then struck the victim above the ear on the left-hand side of his head with a piece of greenstone attached to a necklace.
[7] Mr Maugham continued the assault, striking the victim on the other side of the head a number of times with the greenstone. The victim attempted to defend himself and managed to put Mr Maugham in a headlock. Mr Maugham agreed to leave if the victim released him. The victim did so, and Mr Maugham immediately struck the victim again on the right side of his head with the greenstone.
[8] As a result of the assault, the victim suffered five cuts to the left side of his head above his ear, the largest of which was four centimetres long and required sutures.
[9] As well as the charge of injuring with intent to injure, Mr Maugham faced police charges of contravening a protection order, driving whilst disqualified, failing
to stop for red and blue flashing lights, resisting police, and assaulting police. The contravention of the protection order involved unauthorised contact with his ex‑partner and children by dropping off presents and leaving a note at the address. The police charges, apart from the breach of protection order, arose on 6 October 2023 when Mr Maugham was arrested, having absconded from his bail in relation to the injuring with intent to injure charge.
[10] At about 10 pm on 6 October 2023, Mr Maugham was riding a motorcycle in Drury. Police activated red and blue flashing lights and a siren. Mr Maugham slowed down and performed a U-turn. The police attempted to stop him fleeing and his motorcycle collided with a police vehicle causing him to fall off the bike. Two officers advised Mr Maugham that he was under arrest. He resisted arrest and was warned that he would be sprayed if he did not comply. He continued to resist and grabbed the second constable’s leg tightly and then bit her on the shin area twice. Mr Maugham then grabbed the same officer and pulled her towards him in an attempt to pull her to the ground. Mr Maugham pulled out a full bottle of red wine from his backpack and held it by the officer’s neck in a threatening manner and continued to resist. Further police arrived and Mr Maugham was eventually subdued.
[11] Mr Maugham faced a further set of charges relating to breach of community work and breach of home detention. Mr Maugham was sentenced to 200 hours community work on 29 November 2021 and failed to complete any hours. The breach of home detention related to events on 2 March 2022 when Mr Maugham left his home detention address without permission and went missing for a number of months.
The District Court decision
[12] The Judge set out the facts and identified the lead charge for the purpose of sentencing as the charge of injuring with intent to injure. The Judge referred to R v Taueki and Nuku v R,8 and to the aggravating factors identified by the Crown being the extent of the violence, the harm and injury to the victim. The Judge recorded the Crown submission that the level of violence was significant, involving multiple strikes
8 R v Taueki [2005] 3 NZLR 372 (CA); and Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39.
to the victim’s head and a sudden and sustained attack which continued after Mr Maugham promised to leave.
[13] The Judge said that she was not sure Mr Maugham properly appreciated the effect that his offending had has on the victim who had a good job at the time and, as a result of this offending, has been unable to pursue his employment opportunities. The Judge agreed with the Crown that the offending was premeditated, saying this was not some spontaneous act because Mr Maugham went to the victim’s address deliberately. The use of a weapon and an attack to the head was also aggravating.
[14] The Judge said that there was some suggestion that Mr Maugham perceived some slight against him by the victim. The Judge said that anything which might have happened did not mitigate what Mr Maugham did, and the Judge did not find any mitigating factors to the offending.
[15] The Judge found that the offending was squarely within band 3 of Nuku and referred to the case in Tai v New Zealand Police where a starting point of three years was upheld.9 The Judge said that the case of Tai involved marginally more serious offending than Mr Maugham’s and found that a starting point of two years and nine months’ imprisonment was justified as a starting point for the charge of injuring with intent to injure.
[16] The Judge then turned to consider the uplift that should be applied for the additional offending. In respect of the breach of protection order, the Judge said that the fact that the offending did not involve violence was not the point. This was the second breach of a protection order and the reason that the protection order was in place was so that Mr Maugham stayed away from the protected person. An uplift of two months was applied.
[17] The Judge described the driving matters and the police related charges as appalling conduct. The officers were simply doing their job and to bite an officer has implications. I take that to mean health implications potentially if there is a break in the skin. An uplift of five months was applied for those matters. The breach of
9 Tai v New Zealand [2016] NZHC 874 at [16] – [17].
community-based sentence and particularly the breach of home detention attracted a further five-month uplift.
[18]The total uplift was 12 months for the police and probation matters.
[19] The Judge arrived at an overall starting point of 45 months (three years and nine months) and reduced that to take into account totality to 42 months (three years six months) as an overall starting point. The Judge then allowed a 10 per cent credit for guilty plea but said there were no other mitigating factors.
[20] The Judge recorded that Mr Maugham’s counsel raised the issue of remorse but said that the restorative justice report was dreadful. The Judge said she had never seen a report like it before and unfortunately the same sentiment came through in the pre-sentence report. The Judge said she did not see anything else in terms of Mr Maugham’s background or in terms of steps taken in prison which would allow any meaningful discount for any other factor.
[21] The end sentence on the charge of injuring with intent to injure was three years and one months’ imprisonment; on the charge of breach of protection order, four months’ imprisonment; on the charge of resisting, one month’s imprisonment; on the charge of assault, two months’ imprisonment; on the driving while disqualified, convicted and discharged and six months’ disqualification; on the charge of failing to stop, convicted and discharged and six months’ disqualification cumulative on the previous charge; and on the charge of breach of community work, one months’ imprisonment and community work hours were cancelled. On the charge of breach of home detention, four months’ imprisonment.
[22] All of the sentences were concurrent with the lead sentence of three years and one month’s imprisonment.
The approach on appeal
[23] An appellant may appeal against sentence as of right under s 244 the Criminal Procedure Act 2011.
[24] An appeal against sentence must be allowed if an appellate court is satisfied that for any reason there is an error in the sentence imposed on conviction and that a different sentence should be imposed.10 In any other case the appellate court must dismiss the appeal.11 Sentencing is not a science, and an appellate court will not intervene unless the end sentence is outside the range available to the sentencing judge.12 An appellate decision is focused on the end result rather than the process by which the end sentence was reached.13
[25] When allowing an appeal on the basis that there was an error in the sentence imposed the appellate court may: set aside the sentence and impose another sentence (whether more or less severe) that it considers appropriate; vary the sentence or any part of it or any condition of sentence; or remit the sentence to the court that imposed it.
Discussion
[26] The appellant submits that the starting point of two years and nine months for the injuring with intent to injure charge was manifestly excessive and that a starting point between two years and two years and five months was appropriate.
[27] No issue is taken with the 12-month uplift for the entirety of the remaining offending, although the appellant says it was at the upper end of the range.
[28] The appellant submits that the guilty plea discount was inadequate. It was acknowledged that the guilty plea in relation to the charge of injuring with intent to injure came at a late stage, however, there were amendments to the charges and summary of facts. While accepting that the appellant benefited from those changes, a key change was recognition that the weapon the appellant used was a greenstone he wore on his person as a necklace and not a weapon he located and brought to the address for the purpose of assaulting the victim. I am not sure how much of a mitigating factor that is. On the one hand it might show less premeditation and means
10 Criminal Procedure Act 2011, s 250(2).
11 Section 250(3).
12 Palmer v R [2016] NZCA 541 at [17] citing Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [35].
13 Kumar v R [2015] NZCA 460 at [81].
that the offending with the weapon was potentially impulsive but on the other hand it means that the appellant habitually wears an item capable of being used as a weapon which he is willing to use as a weapon.
[29] Regarding the police charges, it is said that the appellant did resolve at an early stage. The appellant submits that a global discount of 15 per cent for early guilty plea should have been applied.
[30] The Crown position is that the plea for the most serious charge was entered at a very late stage and the appellant should not get a windfall from the fact there were additional charges that he resolved at the same time.
[31] The appellant’s counsel submits that he has made a turning point in his life which is made clear because he has taken accountability for his actions and resolved the proceedings with guilty pleas. The appellant, it is said, has been committed for many months to securing residential rehabilitation and had secured that with a reputable rehabilitation provider in Northland. It is submitted that a discount of five per cent should have been applied to reflect rehabilitative efforts and prospects of rehabilitation.
[32] The appellant takes issue with the District Court’s finding that the lead offending fitted squarely within band 3 of Nuku. The appellant also takes issue with the District Court finding that the case of Tai was only marginally more serious than the appellant’s lead offending. The appellant submits that the offending in Tai was considerably more serious. The appellant refers to various other cases where a starting point of between two years, and three years and three months’ imprisonment were imposed and says that the current starting point of two years and nine months is inconsistent when compared with those cases.
[33] The appellant submits that band 3 of Nuku should be reserved for incidents involving a high level of, or prolonged violence. The appellant submits that his offending fell short of that and that the offending fell between bands 2 and 3. It is acknowledged that the offending involved the use of a weapon, attacks to the head, and had an element of home invasion. However, it is submitted that the offending was
not prolonged and was not serious violence as that is defined in the cases of Taueki and Nuku.
[34] The appellant relies on the fact that the weapon was a greenstone necklace that he wore and was not a weapon that he retrieved for the purpose of inflicting an assault on the victim. It was used in an opportunistic way following what was only ever intended to be a verbal confrontation that turned into a physical assault.
[35] The appellant draws a distinction between the case of Tai where punches to the head caused the victim to become motionless and slide down a vehicle he was leaning on after which Mr Tai struck the victim to the head with a glass spirits bottle causing a laceration. Mr Tai’s assault then continued with numerous punches to the head to the point where others had to intervene and pull Mr Tai off the victim. Mr Tai broke free and, while the victim was trying to get up, Mr Tai kicked him to the mouth and body before again being pulled away.
[36] The appellant submits that comparable cases suggest that the appropriate starting point was two years to two years and five months’ imprisonment.
[37] It is suggested that resolution discussions with the Crown in advance of trial resulted in a reduction to the charge as well as amendments and that a global discount of 15 per cent would strike the balance between the sets of offending held by the police and by the Crown in respect of timings of the plea.
[38] The appellant says that it is important for the District Court to recognise rehabilitative efforts as a means of encouragement for the appellant to continue with the efforts.
[39] The appellant submits that the end point, taking into account a reduced starting point and further discounts, should have been two years and six months’ imprisonment.
[40] Finally, the appellant referenced a drug and alcohol report which, although filed, is not relied on.
[41] The Crown position is that the level of violence employed by Mr Maugham was significant involving multiple strikes in a sudden and unprovoked attack which continued after Mr Maugham was subdued and promised to leave. It involved multiple strikes to the head with a weapon. The Crown takes issue with the submission that Mr Maugham was wearing the greenstone necklace at the time of the offending and says that there is no evidence of that. The Crown says that premeditation is apparent. I am willing to accept that Mr Maugham was wearing the greenstone necklace. There is nothing to contradict that and he should have the benefit of the doubt on that point.
[42] The Crown says that the starting point adopted by the Judge fits in the range suggested by the appellant being between band 2 and band 3 of Nuku.
[43] The Crown says that the cases cited by the appellant as warranting a comparative starting point involve less serious offending.
[44] The case of Nuku identifies three bands. Band 1 applies where there are few aggravating features, the level of violence is relatively low, and the offender’s culpability is at a level that might have been better reflected in a lesser charge. A sentence of less than imprisonment can be appropriate in such cases. It is clear that this matter does not fall within that band.
[45] Band 2 involves a starting point of up to three years’ imprisonment and is appropriate where three or fewer of the aggravating factors listed in Taueki are present.
[46] Band 3 overlaps band 2 and has a starting point of two years’ imprisonment, up to the statutory maximum of either five or seven years. It applies where three or more of the aggravating factors set out in Taueki are present and the combination of these factors are particularly serious. The presence of a high level or prolonged violence is an aggravating factor of such gravity that will require a starting point within band 3 even when there are few other aggravating features, but I note that the presence of high level or prolonged violence is not required to be present to place a matter in band 3 if there are three or more other aggravating factors.
[47] The Taueki aggravating factors that apply in this case include use of a weapon, attacking the head, an element of home invasion and some degree of premeditation because Mr Maugham went to the victim’s address clearly intending to confront him and attacked him very quickly upon arrival.
[48] This offending falls at the very top of band 2 or within band 3 depending upon an assessment of the level at which the aggravating factors are present. In Nuku it was said that a sentencing Judge needs not only to identify aggravating factors, but also evaluate the seriousness of a particular factor. One very serious aggravating factor could have the effect of lifting the offending into a higher band. Equally, if a number of aggravating factors are present but only in mild form, that may result in the offending being placed in a lower band. The level of seriousness of the aggravating factors will affect where an offence is positioned within a band.
[49] The task which a sentencing Judge must undertake is highly evaluative. In the present case, two of the aggravating factors were squarely present, being the use of a weapon and attacking the head, but a further two were present to a lesser degree — home invasion and premeditation.
[50] Further, the injury in the present case amounted to a wound and a more serious charge than injuring with intent to injure could have been justified. What that really means is that this is a serious example of injury in the context of injuring with intent to injure. Because of that, I do not consider that the Judge erred in finding the offending was within band 3. Even if it were within band 2, I consider that this offending would be at the top of band 2 and would attract a sentence of close to three years in any event.
[51] The starting point of two years and nine months, in my view, is unremarkable when the Taueki and Nuku factors are considered against the facts of this case. Comparisons with other cases other than guidelines decisions are always somewhat difficult. Each case very much turns on its own facts and given the number of sentencing decisions each year, it would be easy to find cases to support a range of sentencing approaches based only on a comparative assessment. The better approach
is to test the starting point against the guideline decisions of Nuku and Taueki. When I do that, I do not find that the starting point of two years and nine months is excessive.
[52] The appropriate discount for remorse and rehabilitation was inevitably affected by the restorative justice report and pre-sentence report which were described by the Judge as dreadful and of a nature that she had never before seen. I have read the restorative justice report and it is clear that there was an element of revictimization of the victim during the restorative justice conference. In those circumstances, a lack of a credit for rehabilitation or remorse cannot be criticised.
[53] In terms of rehabilitation, the efforts which the appellant is now making are not at such a level that a discrete discount would be required. Further, the appellant’s actions in absconding for a significant period of time and his actions when located do not support a discount for his prospects of rehabilitation going forward. He has considerable work to do to show that his prospects are positive.
[54] That leaves consideration of the guilty plea credit. The Judge allowed a credit of 10 per cent. The plea on the lead charge came very late and only after resolutions which were to the appellant’s benefit. Even if I were minded to adjust the sentence, which I am not, the adjustment sought is five per cent (effectively) which would clearly amount to tinkering in circumstances where I consider the starting point was within the range and the Judge’s decision regarding remorse and rehabilitation was not incorrect.
[55] Mr Maugham’s reaction to the victim is described as impulsive and emotionally charged. He appears to have behaved in a similar impulsive and violent way towards the police officer who attempted to stop him at a time when he was in breach of his bail.
[56] Overall, I agree with the Crown that the end sentence of three years and one month cannot be assessed as manifestly excessive. The Judge reduced the starting point by three months to account for totality and did not uplift the sentence to take into account relevant previous convictions or to account for Mr Maugham committing the later charges while on bail and subject to home detention from which he had
absconded. I have to say that if I were sentencing at first instance, I would have uplifted for both of those things and the sentence may well have been higher.
Result
[57]The appeal is dismissed.
Wilkinson-Smith J
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