Maaka v The Queen
[2014] NZHC 2035
•26 August 2014
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2014-404-134 [2014] NZHC 2035
BETWEEN FALCO BROUQ CELLAH MAAKA
Appellant
AND
THE QUEEN
Respondent
Hearing: 18 August 2014 Counsel:
E Davis for Appellant
S Elliott for RespondentJudgment:
26 August 2014
JUDGMENT OF KATZ J
This judgment was delivered by me on 26 August 2014 at 4:00 pm
Pursuant to Rule 11.5 High Court Rules
Registrar/Deputy Registrar
Solicitors: Meredith Connell, Auckland
Vallant Hooker & Partners, Auckland
MAAKA v THE QUEEN [2014] NZHC 2035 [26 August 2014]
Introduction
[1] Mr Maaka appeals against his sentence of one year and 10 months’ imprisonment in relation to eight charges arising out of three separate incidents. The first two incidents involved violent and aggressive behaviour towards the police. The third incident involved violence towards Mr Maaka’s partner. Mr Maaka says that the end sentence imposed on him was manifestly excessive and failed to
adequately reflect the totality of his offending.1
District Court Decision
[2] The District Court Judge considered that the aggravating features were Mr Maaka’s criminal history (including offences of violence) and that the offending occurred while Mr Maaka was on bail and also on release conditions following a period of imprisonment. A 25 per cent discount was, however, given for Mr Maaka’s guilty pleas.
[3] The Judge took the lead offence as the assault with a weapon (chips canister)
and summarised her approach as follows:
[14] So the offences will be sentenced in this way, with a starting point of two years and six months overall made up of on the more serious offence a starting point of 18 months, that is the assault with the weapon. I am going to uplift that with another six months for the assaults on a female on the same day but separate occasions, so six months for each of those. The police assault matters occurred at an earlier time and although the overall starting point is two years and six months, those sentences in relation to the police matters will be cumulative or added on, so ultimately Mr Maaka I am going to give you credit then from that starting point of two years and six months for your guilty pleas.
[15] So final sentence is, and I am going to impose this on the most serious
matter, is one year and 10 months’ imprisonment.
[4] I note that although the Judge stated at [14] that the sentences in relation to the police incidents would be cumulative, the sentences were in fact all imposed concurrently. The end sentence of one year 10 months’ imprisonment reflected the
two year six months starting point on the charge of assault with an instrument
1 This is an appeal pursuant to s 250 of the Criminal Procedure Act 2011 and the provisions of that section apply accordingly.
(which included uplifts for the two male assaults female charges) less a 25 per cent guilty plea discount.
Approach on appeal
[5] There were significant areas of common ground between Mr Maaka and the Crown on appeal. In particular, the Crown conceded that the sentencing Judge may have erred in the following respects:
(a) When compared with the authorities, the starting point adopted for the lead offence alone may be regarded as excessive.
(b) The collective uplift of 12 months’ imprisonment for the two male
assaults female charges may be regarded as excessive.
(c) On the other hand, cumulative, rather than concurrent, sentences should have been imposed for the obstructing/resisting and assault on police charges.
[6] The parties were also in broad agreement as to the appropriate sentencing approach in all the circumstances of this case. In particular:
(a) The family violence offending (comprising three closely related charges arising out of the same incident) should be seen as the lead offending and considered together. A starting point should be adopted that appropriately reflects the culpability for that set of offending.
(b)That starting point should be adjusted for any personal aggravating factors relevant to that offending, including in particular Mr Maaka’s criminal history.
(c) The two police incidents should be sentenced concurrently as between the two incidents, but cumulatively on the family violence offending (in other words, one of them should be cumulative on the family violence offending).
(d)A guilty plea discount should be applied (it was agreed that the 25 per cent guilty plea discount applied by the Judge was appropriate).
[7] I propose to follow this approach.
What is the appropriate starting point for the family violence offending?
[8] It is appropriate to consider the three family violence offences together in determining an appropriate sentencing starting point, as they all occurred as part of the same incident, which took place at a service station on the morning of 9 March
2014. The victim was Mr Maaka’s partner. He was angry. She was trying to flee from him. She ran into the service station, followed closely by Mr Maaka. What happened next was captured on the service station’s CCTV cameras.
[9] The victim tried to keep her distance from Mr Maaka by keeping shelving between them. Mr Maaka threatened her and threw a canister of chips at her, missing her. Mr Maaka then chased the victim, got hold of her and dragged her out of the service station. The victim was clearly very frightened. She desperately tried to stop herself from being dragged away. She tried to hold on to the doorway, but was no match for Mr Maaka, who was much bigger and stronger than her. He pushed and dragged her out of the service station. Once outside, Mr Maaka dropped the victim to the ground. He then pulled her to her feet by her hair. He then aggressively pulled and pushed her head backwards and forwards, using her hair to control her. Finally, Mr Maaka picked up the victim and left the scene with her. Mr Maaka was charged with assault with a blunt instrument (throwing the chips
canister), two charges of male assaults female2 and one charge of breach of release
conditions (one of Mr Maaka’s release conditions was that he not associate with the victim).3
2 An offence under s 194(b) of the Crimes Act 1961, punishable by up to two years’
imprisonment.
3 An offence under s 71 of the Parole Act 2002, punishable by up to one year’s imprisonment or a
$2,000 fine.
[10] The Crown initially submitted that the appropriate starting point for this offending was in the 12 to 18 months’ imprisonment range, but ultimately nominated an appropriate starting point as being 12 months. Mr Maaka submitted that the appropriate starting point was nine months’ imprisonment.
[11] While not at the most serious end of the spectrum, the incident was a serious one. The victim was desperate to flee Mr Maaka. It is not known what happened to her after she was dragged from the scene, as she was unwilling to co-operate with the police when later found. The incident in the service station was, however, captured on CCTV cameras and the still photographs from that footage give a clear picture of what occurred.
[12] The victim was clearly desperate and terrified. She fled into a public place, presumably hoping that this would give her some protection from Mr Maaka’s violence and aggression. It did not. Bystanders, including a burly truck driver, were clearly too scared to intervene, given Mr Maaka’s size and obvious anger. The victim was dragged from the scene.
[13] In relation to the assault with a blunt instrument charge, the instrument involved (a chips canister) was fairly benign and no harm was ultimately caused to the victim, as the canister missed her. The circumstances that gave rise to the male assaults female charges were, in my view, somewhat more serious. The offending was aggravated by the vulnerability of the victim, who was no physical match for Mr Maaka.
[14] Counsel referred to several authorities which were said to be analogous in some way to the present offending.4 Taking into account those authorities and the relevant factual context, I accept the Crown submission that a starting point of
12 months’ imprisonment would appropriately reflect Mr Maaka’s culpability for the
family violence offending.
4 Including in particular Pukepuke v Police [2014] NZHC 1194 and Tutbury v Police [2013] NZHC 2960.
Adjusting the starting point for the family violence offending
[15] There was relatively little difference between the parties regarding the appropriate uplift for the family violence offending, with the Crown advocating for a four month uplift for personal aggravating features and Mr Maaka submitting that a three month uplift would be sufficient.
[16] Mr Maaka has a fairly substantial criminal history. The pre-sentence report indicates that Mr Maaka shows no remorse. He is assessed as being at very high risk of further offending and very high risk of harm. Mr Maaka has convictions that include aggravated robbery in 2005, multiple assaults on police in 2004, 2010 and
2013, assault on a prison officer in 2006 and male assaults female in 2009. He can properly be regarded as a recidivist offender with minimal regard for court orders. His criminal history shows he has a predilection for violence, particularly in relation to police and the victim in this case.
[17] The offending occurred while Mr Maaka was on bail and subject to release conditions. Of particular note, one of those release conditions, which was added to Mr Maaka’s existing release conditions following the January 2014 offending, was for the protection of the victim, Mr Maaka’s partner. She was a previous victim of violence at his hands. He had previously received a sentence of one year and three months’ imprisonment for assaulting her.
[18] Mr Maaka’s criminal history, including his history of violent offending against the same victim is significantly aggravating. An additional release condition has been imposed on Mr Maaka only three months previously, to try and protect the victim from further violence at his hands. Mr Maaka’s total disregard for that condition is apparent in the fact that he was willing to pursue the victim into a public place and then brazenly assault her in front of a number of witnesses.
[19] In my view an uplift of four months is warranted to reflect Mr Maaka’s criminal history and the fact that the offending was in breach of Mr Maaka’s bail and release conditions.
[20] The end sentence for the family violence offending (prior to any guilty plea discount) is therefore one year and four months’ imprisonment. I note, however, that in my view the two male assaults female charges are more serious than the assault with a blunt instrument charge (given that the chips canister did not actually hit the victim).
Sentence for the two police incidents
[21] As I have noted above, it was common ground that the two police incidents should be sentenced concurrently between themselves and cumulatively on the family violence offending.
[22] The Crown submitted that the appropriate sentence for the police incidents was between three and six months’ imprisonment, whereas Mr Maaka submitted that an appropriate sentence would be three months’ imprisonment.
[23] The first incident occurred on 20 January 2014 when police were called to attend a domestic violence incident. They detained and handcuffed Mr Maaka. While walking to the patrol car Mr Maaka became violent and aggressive. Several officers tried to calm him down. Mr Maaka refused to calm down. He started swearing and trying to kick a police officer. One of his kicks connected with her leg. He also thrashed around and attempted to head butt a police officer. Mr Maaka was
charged with resisting police5 and assaulting a police officer.6 The second incident
occurred on 13 February 2014. Mr Maaka was at an address associated with the Head Hunters gang. The police were present and were attempting to execute a search warrant. Mr Maaka became agitated and verbally abusive towards the police. While a police officer was speaking to a gang member to inform him of his rights, Mr Maaka began yelling abuse and talking over the top of him, making it difficult for the officer to carry out his duties. Mr Maaka was asked to quieten down. He continued, however, with the same conduct and was then arrested. On his way to the
police car Mr Maaka refused to walk any further, thrashed backwards and unleashed
5 An offence under s 23(a) of the Summary Offences Act 1981, punishable by up to three months’
imprisonment or a $2,000 fine.
6 An offence under s 10 of the Summary Offences Act 1981, punishable by up to six months’
imprisonment or a $4,000 fine.
a barrage of verbal abuse. Mr Maaka then refused to get in the police car despite several requests. He verbally abused police officers. Only after several other officers arrived to assist did he get in the car. This behaviour resulted in a further charge of resisting police and also a charge of obstructing the police.7
[24] I propose to take a global approach to assessing the appropriate cumulative sentence for the police incidents. I found Barnes v Police8 and R v Taurere,9 to be of some assistance. Taking a global approach, Mr Maaka has assaulted a police officer, persistently shown disrespect to the law and officers completing their legal duties, and has been persistently aggressive. The first incident occurred when Mr Maaka was subject to release conditions and the second incident occurred when he was on
bail for the first incident, having been released from prison only months earlier, after serving a prison term for four convictions of assaulting a police officer. Mr Maaka has a fairly extensive criminal history of offending against the police.
[25] Taking all of these matters into account, I have concluded that a cumulative sentence of four months’ imprisonment is appropriate in relation to the two police incidents of offending. This brings Mr Maaka’s sentence to one year and eight months’ imprisonment.
Guilty plea discount
[26] It was common ground that the 25 per cent guilty plea discount applied by the Judge was warranted.
[27] This brings Mr Maaka’s end sentence to one year and three months’
imprisonment. As this is seven months lower than the sentence imposed in the
District Court, the appeal should be allowed.
7 An offence under s 23(a) of the Summary Offences Act 1981, punishable by up to three months’
imprisonment or a $2,000 fine.
8 Barnes v Police HC Palmerston North CRI-2006-454-3, 7 February 2006.
9 R v Taurere HC Whangarei CRI-2011-488-30, 7 July 2011.
Result
[28] The appeal is allowed. The sentences imposed in the District Court are quashed and the following sentences substituted:
(a) Male assaults female (two charges – CRNs 1728 and 1729):
12 months’ imprisonment (concurrent).
(b) Assault with a blunt instrument (CRN 1730): nine months’
imprisonment (concurrent).
(c) Assaulting a police officer (CRN 0419): three months’ imprisonment
(cumulative).
(d) Resisting police (CRNs 0973 and 0418): two months’ imprisonment
(concurrent).
(e) Obstructing police (CRN 0972): two months’ imprisonment
(concurrent).
(f) Breaching release conditions (CRN 0538): two months’ imprisonment
(concurrent).
Katz J
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