Maaka-Wanahi v Police
[2023] NZHC 3291
•21 November 2023
IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY
I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE
CRI-2023-443-35
[2023] NZHC 3291
BETWEEN KINGI DUVAL MAAKA-WANAHI
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 9 November 2023 (via VMR) Appearances:
N P Bourke for Appellant R L Hicklin for Respondent
Judgment:
21 November 2023
JUDGMENT OF McQUEEN J
[1] On 16 October 2023, Kingi Maaka-Wanahi was sentenced by Judge Grieg in the Hāwera District Court to two years and two months’ imprisonment on six charges to which he pleaded guilty.1
[2] Mr Maaka-Wanahi now appeals that sentence. He says that his FASD and ADHD were not appropriately accounted for by the Judge in setting and adjusting the starting point, making the end sentence manifestly excessive.2 The Police oppose Mr Maaka-Wanahi’s appeal.
[3]For the reasons below, I allow Mr Maaka-Wanahi’s appeal.
1 Police v [Maaka]-Wanahi [2023] NZDC 23152 [Decision under appeal].
2 I use ‘FASD’ as an abbreviation for Foetal Alcohol Spectrum Disorder without Sentinel Facial Features. ‘ADHD’ is likewise used as an abbreviation for Attention Deficit Hyperactivity Disorder.
MAAKA-WANAHI v NEW ZEALAND POLICE [2023] NZHC 3291 [21 November 2023]
The offending
[4] There were three episodes of offending, giving rise to six charges. These episodes occurred while Mr Maaka-Wanahi was subject to a sentence of intensive supervision and electronic monitoring.
[5] The first charge of burglary occurred on 8 July 2023. Mr Maaka-Wanahi entered a garage and stole a motor-vehicle, which was left locked and alarmed. Mr Maaka-Wanahi used a spare key he found in the garage. The GPS data from his EM bail anklet indicated that he was at the victim’s address at approximately 11:10 pm. Mr Maaka-Wanahi also took a screwdriver and a tomahawk from the garage. Between 8 July 2023 and 10 July 2023, Mr Maaka-Wanahi also entered another property without authority on four occasions. From there, he took three electric scooters, three chargers, a hammer, and an electric compressor, giving rise to the second charge of burglary.
[6] Then at approximately 10:25 pm on 10 July 2023, Mr Maaka-Wanahi was sighted by the owner of the vehicle he had stolen, who, along with three others, confronted him. Mr Maaka-Wanahi became enraged and swung the tomahawk around in an intimidating manner, using it to smash the rear window of the vehicle in which the victim had arrived, who then, with the others, fled. This gave rise to the charges of intentional damage and possession of an offensive weapon.
[7] Approximately ten minutes later, Mr Maaka-Wanahi and a female associate were in the stolen vehicle. They were spotted by the Police. Mr Maaka-Wanahi’s associate was driving and drove the stolen vehicle away. Mr Maaka-Wanahi either exited the car, or was already outside of it, and stood in front of a Police car, attempting to obstruct it from pursuing the vehicle. Mr Maaka-Wanahi’s associate then drove away, with Mr Maaka-Wanahi inside the car again, speeding and driving dangerously throughout Hāwera, being chased by the Police for approximately 30 minutes. During this time Mr Maaka-Wanahi was throwing items out of the car at the pursuing Police car. This gives rise to the charge of assault with a weapon.
[8] Eventually, Mr Maaka-Wanahi’s associate lost control of the vehicle and it stopped. While being arrested, Mr Maaka-Wanahi swung his elbow back into the face
of one of the Police officers. This gives rise to the charge of assault on a Police officer. When the vehicle was searched, one of the electric scooters referred to above was found, as was the electric compressor. Part of Mr Maaka-Wanahi’s explanation to the Police was that he was trying to impress his associate, and that he did whatever she told him to.
[9]The charges to which Mr Maaka-Wanahi pleaded guilty were:
(a)two charges of burglary;3
(b)assault with a weapon;4
(c)possession of an offensive weapon;5
(d)intentional damage;6 and
(e)assaulting a police officer.7
Reports about Mr Maaka-Wanahi
Pre-sentence report
[10] A probation officer prepared a pre-sentence report about Mr Maaka-Wanahi in September 2023. Because of his previous convictions, the report-writer assessed Mr Maaka-Wanahi’s risk of harm as moderate to high, highlighting his impulsivity and inability to think beyond “in the moment”. He recorded that Mr Maaka-Wanahi had explained the reason for his offending as trying to impress his girlfriend and therefore doing whatever she told him to do. The report-writer noted that Mr Maaka- Wanahi’s IQ is “just above the cut off for an Intellectual Disability”, and that therefore he is not eligible for further support in the community. While Mr Maaka-Wanahi is supported by Community Corrections, most of his needs are “outside the scope” of the
3 Crimes Act 1961, s 231(1)(a); maximum penalty ten years’ imprisonment.
4 Section 202C; maximum penalty five years imprisonment.
5 Section 202A(4)(b); maximum penalty three years’ imprisonment.
6 Summary Offences Act 1981, s 11(1)(a); maximum penalty three months’ imprisonment or a
$2,000 fine.
7 Section 10; maximum penalty six months’ imprisonment or a $4,000 fine.
Department of Corrections. The report-writer says that Mr Maaka-Wanahi is a frequent cannabis user and requires access to treatment and programmes that are not readily accessible.
[11] Mr Maaka-Wanahi proposed an address for electronic monitoring. However, the report-writer considered that the address would not be appropriate given the other occupants, who are known to the Police and Community Corrections. The report- writer also noted that Mr Maaka-Wanahi’s ability to comply is reasonable when supported by a probation officer with an understanding of FASD. The report-writer recommended a sentence of imprisonment with release conditions, including a condition to undertake assessment, treatment, and counselling as directed by a probation officer.
Community Corrections memorandum
[12] An earlier memorandum from May 2023 was also provided by Community Corrections for the purpose of Mr Maaka-Wanahi’s sentencing. This was prepared by the same probation officer who wrote the pre-sentence report. The probation officer has worked with Mr Maaka-Wanahi since December 2022.
[13] Mr Maaka-Wanahi is 22 years’ old. The memorandum records that he was diagnosed with FASD at an early age and that it appears that once he left the care of Oranga Tamariki and returned to his maternal whānau, oversight regarding his disability dissipated.
[14] The memorandum acknowledges that the report writer is not a psychologist but that the report was provided for the purpose of reassuring the District Court that “Community Corrections understands the complexity that [Mr Maaka-Wanahi] presents”. The report-writer says:
[Mr Maaka-Wanahi] tends to struggle with day-to-day functioning, and he tends to display significant deficits in his social, communication, and comprehension skills. Consequently, [Mr Maaka-Wanahi] struggles with linking cause and effect, and emotional regulation, and appears to be highly suggestible. These factors, alongside other difficult life outcomes and high levels of co-morbidity with mental health issues, contribute to his revolving engagement with the justice system.
Abstract concepts appear to be foreign to [Mr Maaka-Wanahi]. Neurological damage makes it difficult for [Mr Maaka-Wanahi] to understand the concept of personal ownership of property, that is a prerequisite for understanding why stealing is wrong. As [Mr Maaka-Wanahi] does not appreciate what personal ownership means, he cannot understand that taking other’s possessions is stealing. Often it takes many years of direct instruction for [persons with FASD] to understand the abstract concept of rightful ownership.
…
This disconnected sense of ownership leaves [Mr Maaka-Wanahi] at risk of taking things that are not his. If we peruse his criminal pattern most of his offending is simplistic and impulsive with minimal effort to conceal his behaviour. The lack of planning is evident and the lack of concern of being caught is also identified.
Memory is a neurological function that does not work well in children with FASD. They cannot decide about “next time” based on “what happened last time” and there are limits to how well they can process information.
…
Sentencing purposes such as holding the person accountable, denouncing (for the harm done) and deterrence are problematic, when perhaps attempting to be applied to an individual who cannot adequately link cause and effect, does not understand his or her own offending, and who has memory impairments.
[15] The probation officer describes the support that is available to Mr Maaka- Wanahi in the community, such as income support, health support, Whānau Ora services, mental health services, and part-time employment. He says also that, prior to his remand in custody, the complexity of Mr Maaka-Wanahi’s disability alongside his offending obscured the significant progress that he has made. The probation officer recommended that Mr Maaka-Wanahi be kept in the community, subject to intensive supervision.
Report by Dr McGinn
[16] The Judge was also given a report about Mr Maaka-Wanahi prepared under s 38 of the Criminal Procedure (Mentally Impaired Persons) Act 2003. This report was written by Dr Valerie McGinn, a clinical neuropsychologist, and was prepared for the purpose of ascertaining whether Mr Maaka-Wanahi was fit to stand trial.
[17] Dr McGinn had assessed Mr Maaka-Wanahi previously, once when he was seven years’ old and again when he was 12 years’ old. She indicates that Mr Maaka- Wanahi was placed into state care when he was two years old because of abuse,
neglect, and family violence in his home. He was placed with his grandmother but this became unsuitable due to his aggressive behaviours and her use of physical discipline. Mr Maaka-Wanahi was then placed in Oranga Tamariki care until he was 17 years’ old, having been identified as having high and complex needs. He was diagnosed with ADHD and FASD. Dr McGinn notes that Mr Maaka-Wanahi began offending at 15 years’ old and that consequences that might deter a neurotypical offender have been ineffective for Mr Maaka-Wanahi.
[18] When first assessed by Dr McGinn, Mr Maaka-Wanahi was considered to have a “borderline level of intellectual function”. He had not started to read or write by the time he was seven years’ old. At age 12, when he was assessed again, Mr Maaka- Wanahi had significantly improved, and was participating fully at school. His intellectual function had increased, but he remained disorganised, impulsive, and unable to plan towards a goal. Dr McGinn says that although Mr Maaka-Wanahi’s IQ was above the cut-off for an intellectual disability, he functioned in life as if he had such a disability, and that FASD is equivalent in severity to an intellectual disability.
[19] When Dr McGinn interviewed Mr Maaka-Wanahi for the purpose of the s 38 report, Mr Maaka-Wanahi could not remember that he had FASD and had a poor autobiographical memory of his own life. Mr Maaka-Wanahi told Dr McGinn that she appeared to know his own life better than him. He said that he had started smoking synthetic cannabis about the time that he started offending, and that he also smoked some cannabis. He reported that ADHD medication helped him and that going off it had contributed to his offending. Mr Maaka-Wanahi said that he did not want to offend, but rather that he wanted to get a job as a butcher, work hard, and have a family, while continuing to take medication again.
[20] Dr McGinn recorded that Mr Maaka-Wanahi has a mental impairment by way of his ADHD and FASD. Dr McGinn noted that persons who have FASD face lifelong impacts which includes needing support with motor skills, physical health, learning, memory, attention, emotional regulation, and social skills. They tend to be socially immature, naive and easily led, egocentric, impulsive and do not stop to think through to the consequences of their actions. Dr McGinn says that Mr Maaka-Wanahi’s developmental, behavioural, and social history is consistent with him having FASD.
She considers that he has borderline intellectual function, and that he functions below more than 90 per cent of his age group.
[21] Dr McGinn noted also that Mr Maaka-Wanahi has very poor communication skills, and poor general knowledge. She said that he should be spoken to at approximately the level of a ten-year-old, and that he presents as significantly delayed and immature in his thinking, with poorly regulated behaviour. She says that his abstract reasoning, social understanding and judgement are impaired. This leaves him at risk of being easily led and his decision making is limited.
[22] Dr McGinn highlighted that although Mr Maaka-Wanahi was progressing well at 12 years old, his development since then had been stalled by leaving school early and going into the criminal justice system. Her view was that once he had “aged out” of Oranga Tamariki care, he could not care adequately for himself, and has been unable to abide by court imposed conditions, particularly while without medications, homeless, and under gang influences. He had no support from his whānau. She said also that Mr Maaka-Wanahi could moderate his impulsivity to a degree, but that in a complex situation that ability would decrease. She states:
While the government denies disability support services to individuals with FASD and they are left to fend for themselves in the community, they will behave inappropriately and enter the criminal justice system. Where the responsibility lies and what the consequences should be is a matter for the Court. Even those like Kingi who were diagnosed, supported, and doing well in state care as children, are not doing well as young adults. He contends with a form of brain damage not of his own making that makes him impulsive, reduces his capacity to moderate his actions and leads him into making poor decisions. His capacity to realise the implications of his actions on others is reduced. His whanau live with generations of alcohol and other harm due to colonisation and are not in a position to provide Kingi with the structure, support and supervision he requires.
Young people with FASD can do well with oversight and Kingi has previously done well at START Taranaki, gaining life and employment skills. However, once left to manage life alone, he could not. Without the medication that he had been taking all his life, he was left confused, markedly impulsive, and emotionally dysregulated. He has fallen through the gaps of a health system that is not FASD informed and willing to help a young person like Kingi. Individuals with FASD are not inherently dangerous and it is support not punishment that will keep them and the community safe.
[23] Ultimately, Dr McGinn assessed Mr Maaka-Wanahi as fit to stand trial with the support of a communications assistant. She also went on to recommend that:
Kingi’s FASD be accepted as a mitigating factor when applying sanctions should he plead or be found guilty. A long period of incarceration will be crushing for a young disabled person like Kingi who is younger than his age developmentally. If incarcerated he would be more suitably placed in a youth unit or if that is not available, he should be considered a vulnerable prisoner who should be kept away from gang influences.
Sentence under appeal
[24] The Judge began by setting out the charges, the factual background, and Mr Maaka-Wanahi’s previous convictions. The Judge discussed the views of Mr Maaka-Wanahi’s probation officer as to his offending and complex presentation. The Judge also noted the views of one of the victims. He then discussed the difficulties of FASD, and acknowledged the submissions made by Mr Bourke for Mr Maaka- Wanahi. In accepting that imprisonment was the appropriate sentence, the Judge stated:8
I need to talk for a minute about the discounts that are given for youth, mental health et cetera. In my judgement, they count for nothing if there is not some positive benefit to them. If it simply means that someone whose mental health makes it inevitable that they will re-offend, then all these discounts do is create further victims and at a quicker pace. Discounts would mean something if the facilities and programmes existed to help people such as yourself, but they do not and there comes a time when the other purpose [for which] the Court exists, to protect the community, overwhelms the desirability of rehabilitating criminally inclined and very damaged young men. Others may disagree, but today I have in mind an 80-year-old woman who was twice terrorised by you and the future victims who will be terrorised by you and very possibly seriously injured or killed.
You have got a predilection for breaking into other peoples’ property, sometimes armed with weapons that you then use when challenged. The recipe for a tragedy could not be clearer and the longer you are in custody the longer that tragedy is postponed. I am as sad as anyone else in imprisoning you today but so long as that remains the only way of protecting the community then that is what must be done and I also hope that maybe some form of sheltered accommodation can be found for you. I say that because I read in one of the reports, that I have not actually read out today, structure does help you.
8 Above n 1, at [18]–[19]. The judgment records that counsel for Mr Maaka-Wanahi, Mr Bourke, conceded that imprisonment was inevitable. Before me, Mr Bourke said that this was not the case, rather, his submissions focused on the time served by Mr Maaka-Wanahi, that there was no suitable address available, and that Mr Bourke would at some point have to accept that Mr Maaka- Wanahi’s sentence of intensive supervision could be marked on his record as imprisonment. Mr Bourke also said that his submission to the Judge was incorrectly recorded in the judgment as indicating his view was that the sentence could only just come down below two years.
[25] The Judge noted the purposes of sentencing as to denounce and deter. While acknowledging that due to Mr Maaka-Wanahi’s FASD, deterrence is limited, the Judge concluded that:9
… above all, I have to protect the community and I also need to protect you because a sentence that simply has you released in no better shape or in no better place than you were in July puts you at greater risk of serious re- offending and you will simply suffer further, along with your victims.
[26]The Judge adopted the following starting points for the offences:
(a)two years’ imprisonment for the two burglary charges;
(b)12 months’ imprisonment for the intentional damage and possession of an offensive weapon charges;
(c)18 months’ imprisonment for the charge of assault with a weapon; and
(d)one month’s concurrent imprisonment for the charge of assault on a police officer.
[27] That resulted in a starting point of four and a half years’ imprisonment, which the Judge uplifted by six months because of Mr Maaka-Wanahi’s previous convictions. The Judge then reduced that figure to three years’ and ten months’ imprisonment for totality, awarded a 25 per cent guilty plea discount and a discount for Mr Maaka-Wanahi’s mental health and age. This left a final sentence of two years and two months’ imprisonment. The Judge did not say explicitly what the percentage value of the totality or mental health and age discounts were.
Approach to appeal
[28] Sentence appeals are governed by s 250 of the Criminal Procedure Act 2011. An appeal against a sentence is an appeal against the exercise of a discretion. For Mr Maaka-Wanahi to be successful, the Court must be satisfied that there was an error in the sentence imposed upon conviction and a different sentence should be imposed.10
9 Above n 1, at [20].
10 Criminal Procedure Act 2011, s 250(2).
If these factors are not satisfied, the Court does not retain any discretion and must dismiss the appeal.11
[29] When considering whether a different sentence should be imposed, the Court will have regard to the end sentence, rather than the process by which it was reached. It is appropriate for the Court to intervene where the sentence being appealed is “manifestly excessive” and is not justified by the relevant sentencing principles.12 It must be shown that there has been an error made by the sentencing Judge.13 The Court cannot ‘tinker’ with a sentence imposed where that sentence is nevertheless in range.14
The starting point
[30] There are three issues to address in respect of the starting point adopted. First, whether the starting points adopted by the District Court Judge were within range, by reference to comparable caselaw. Second, whether Mr Maaka-Wanahi’s mental health should have been taken into account at this step, and if so, what impact that should have on setting the starting point.
Comparable cases
ABurglary charges
[31] The Judge imposed a starting point of two years’ imprisonment for the two burglary charges.
[32] Mr Bourke argued that the starting point for the burglary charges should have been between 18 months’ to two years’ imprisonment, relying on Patangata, where Doogue J considered a starting point of twelve months appropriate for a case involving entry into a garage or shed and the taking of limited items.15 In Patangata, however, there was only one charge of burglary, and the burglary involved the taking of items with little value. In the present case, Mr Maaka-Wanahi entered two properties, taking
11 Section 250(3).
12 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [32]–[35].
13 At [27].
14 R v Boyd (2004) 21 CRNZ 169 at [38].
15 Patangata v Police [2020] NZHC 407 at [32].
a vehicle and other electric items of some value. In my view, Mr Maaka-Wanahi’s offending was clearly more serious.
[33] Although there is some variation in the authorities regarding starting points for charges of burglary, the cases relied on by Ms Hicklin, counsel for Police, indicate that a starting point of 24 months’ imprisonment was within range.16 Mr Maaka-Wanahi entered two residential properties in the early hours of the morning, involving a risk of confrontation. He took items that were of some value. Although the offending was not sophisticated, it must be said that given Mr Maaka-Wanahi returned to the second address four times, there was some element of premeditation. As such, I am satisfied that the starting point for the two burglary charges was within range.
BThe remaining offending
[34] For the remaining offending, Mr Bourke sought an increase to the overall starting point of four to six months, whereas Ms Hicklin submitted that a total increase of 18 months was required.
[35] There are no tariff cases for the remaining offences. The Judge imposed 12 months’ imprisonment for the intentional damage and possession of an offensive weapon charges. Ms Hicklin relied upon Vakatini in submitting that a 14 month uplift for these charges was appropriate.17 In Vakatini, a starting point of 12 months was upheld on appeal for charges of possession of an offensive weapon, behaving threateningly, and wilful damage. The appellant had smashed a window in his mother’s house during an argument and the following month he had been to the house of another person, chased him with a spade and waved two knives around in a threatening manner.
[36] In this case Mr Maaka-Wanahi waved around the tomahawk and smashed a window in the victim’s car. His offending would appear to be of the same or lesser nature than in Vakatini, and accordingly I do not accept that an uplift of 14 months’ imprisonment would be appropriate by way of reference to that case. As submitted by
16 Knock v Police [2017] NZHC 910; Tito v Police [2018] NZHC 3370; Peita v Police [2020] NZHC 2098; Bracey v Police [2022] NZHC 476; and Olsen v R [2023] NZHC 2967.
17 Vakatini v R [2019] NZHC 3331.
Mr Bourke, while threatening, no physical harm to anyone resulted from Mr Maaka- Wanahi’s course of conduct.
[37] In circumstances where a series of minor offences are committed in a course of conduct, it may sometimes be “a little artificial to seek to rely on other cases as relevant precedents for the sentence, as it is ultimately a task of finding an appropriate sentence for the overall series of offences”.18 This difficulty is often compounded in relation to charges of intentional damage and possession of an offensive weapon, which are charges that commonly accompany more serious charges, and are dealt with by way of uplifts in relation to a lead charge or charges. This is the situation in the present case.
[38] I consider that an uplift of nine months’ imprisonment is appropriate for the offensive weapon and intentional damage charges. I accept that there are some similarities between the present case and Vakatini. However, Mr Maaka-Wanahi’s conduct was more in the nature of a single instinctive and intimidating reaction involving a threat of violence. It did not involve two episodes of threatening behaviour on separate occasions, and nor did he seek out a person for the purpose of threatening them, as in Vakatini.
[39] The Judge imposed 18 months’ imprisonment for the charge of assault with a weapon and one month’s concurrent imprisonment for the charge of assault on a police officer. Ms Hicklin submitted that a further four months for these charges would be within range. The first point to note is that Ms Hicklin appeared to at least impliedly accept that the 18 months imposed for the assault charge was excessive. The Judge provided no reasons for adopting that as the starting point. Second, there is a lack of comparable cases for the purpose of assessing the starting point.
[40] The only somewhat similar case I have considered is Police v McLeod. 19 That case involved a single charge of endangering transport, which carries a maximum penalty of 14 years’ imprisonment.20 Endangering transport is accordingly a more
18 Lambert v Police [2022] NZHC 49 at [20]; citing R v Xie [2007] 2 NZLR 240 at [17].
19 Police v McLeod DC Invercargill CRI-2008-025-3721, CRI-2009-025-1643, 16 June 2009.
20 Crimes Act 1961, s 270.
serious offence than assault with a weapon, which carries a maximum penalty of five years imprisonment.21 In McLeod, while a passenger in a vehicle travelling at approximately 130 kilometres per hour to evade the Police, Mr McLeod threw a number of items out of the vehicle at the pursuing Police vehicles. The items thrown included a large metal wheel brace, which narrowly missed a vehicle. Mr McLeod also threw “beer stubbies…along with pieces of wood and a full coke container”.22 Two of the beer stubbies and a piece of wood hit one of the Police vehicles. Mr McLeod was sentenced to 14 days’ imprisonment, with a direction that he was to serve only seven days.23
[41] In the present case, Mr Maaka-Wanahi was charged with an offence that is less serious than endangering transport (although his behaviour potentially could have supported that charge in the alternative). Further, the summary of facts do not record that any Police vehicles nor other vehicles were struck by any of the items that Mr Maaka-Wanahi threw from the vehicle. As such, I am satisfied that the starting point of 18 months’ imprisonment imposed for the assault with a weapon charge was wholly out of range. Taken in the context of the course of conduct in which Mr Maaka- Wanahi was engaged, I consider that an uplift of three months’ imprisonment is appropriate for the charge of assault with a weapon and the charge of assault on a police officer.
[42] These conclusions are all subject to the discussion that follows about the relevance of Mr Maaka-Wanahi’s mental health.
Is Mr Maaka-Wanahi’s mental health relevant to setting the starting point?
[43] Ms Hicklin submits that Mr Maaka-Wanahi’s FASD is not of a character and gravity that it has altered the offending itself such that it needs to be taken into account in relation to the starting point. She says that his offending is no different from offences committed by other young offenders acting impulsively or as a result of peer pressure.
21 Section 202C.
22 McLeod, above n 19, at [1].
23 At [12].
[44] I do not agree. In my view, Mr Maaka-Wanahi’s impairments are precisely the kind of impairments that should inform both the starting point and the adjustment of the starting point by way of discounts. Such an approach is consistent with L v R, where the Court of Appeal stated:24
It is uncontroversial that mental illness can be relevant to sentencing both retrospectively and prospectively. That is, it is a relevant factor in assessing the offender’s culpability and, separately, in assessing the future subjective impact of the starting point on the offender. An example of retrospective relevance will be where mental illness reduces the offender’s moral responsibility and thereby also reduces the need to denounce or in some cases the need for specific deterrence. A causative relationship between the disorder and the offending is required.
In addition, prospective effect may be found, for example, where a sentence might weigh more heavily due to a disorder, or where an appropriate sentencing response ought to involve a significant therapeutic element to treat the disorder so that it does not continue. The survey of cases in relation to this second stage in E (CA689/2010) v R showed discounts had ranged between 12 and 30 per cent.
We do not agree with the Crown that allowing discounts at both stages for the same mental health disorder is to double count. On the contrary, to fail to properly account for all relevant aspects of the offence and the offender is to undercount. It is not the cause of the reduced culpability or extra burden of imprisonment, but the presence of those aspects which must be provided for under ss 7–9 of the Sentencing Act 2002 (the Act) and in accordance with Taueki methodology.
[45] In other words, where there is a causative link between a lack of capacity or an impairment that reduces an offender’s moral culpability, this must be taken into account when setting the starting point for the offending. The disability or impairment must have altered the character and gravity of the offending itself.25
[46] I am satisfied, given Dr McGinn’s report, that there is a causative relationship between Mr Maaka-Wanahi’s mental health and his offending. Mr Maaka-Wanahi has FASD and ADHD. He has borderline intellectual function. Dr McGinn highlights that consequences that follow from offending that might be effective for a neurotypical offender are not effective for him. Mr Maaka-Wanahi’s explanation of his offending illustrates that he is easily led and has limited decision-making ability. He is unable to think through the consequences of his actions on others. As Mr Bourke submits, the
24 L (CA719/2017) v R [2019] NZCA 676 at [48]–[50].
25 Orchard v R [2019] NZCA 529 at [45].
fact that Mr Maaka-Wanahi was subject to GPS tracking at the time of the offending and thus destined to be discovered demonstrates the limits on his decision making and ability to comprehend consequences.
[47] In these circumstances, Mr Maaka-Wanahi’s moral responsibility for his offending is reduced.
[48] I consider that Mr Maaka-Wanahi’s mental health should have been considered by the District Court Judge at the first stage of the sentencing process. While the Judge did address briefly the authorities discussed above and Dr McGinn’s report, his Honour appeared only to do so in the context of assessing what discount could be applied at the second stage of sentencing. I accept that the Judge was cognisant of the impact of FASD on Mr Maaka-Wanahi and its relationship to his offending and that he did not need to make discrete discounts provided all of the implications of Mr Maaka-Wanahi’s unwellness were appropriately recognised.26 But I am satisfied that there was a failure to properly account for the causative connection between that condition and Mr Maaka-Wanahi’s culpability in setting the starting point for the offending.
Impact of mental health on setting the starting point
[49] I turn then to consider how Mr Maaka-Wanahi’s mental health affects his culpability in respect of setting the starting point for the offending.
[50] Ms Hicklin contends that there should be no reduction to the starting points. Mr Bourke, however, submits that the appropriate starting point for the burglary charges would be 12 to 15 months’ imprisonment. He says that the remaining charges warrant an uplift of four to six months and that overall, having regard to Mr Waaka- Manahi’s mental impairments an appropriate starting point for the totality of the offending is in the range of 18 to 20 months’ imprisonment.
[51] The issues I discussed above about the difficulties in approaching a series of offences also arise in this context. In the round, I consider that a reduction of six
26 Hall v R [2021] NZCA 314 at [30].
months overall is appropriate to acknowledge how Mr Maaka-Wanahi’s mental health affects his culpability.
Conclusion on starting point
[52] I have concluded that the Judge gave insufficient consideration to Mr Maaka- Wanahi’s mental health in assessing his culpability at the first stage of the sentencing process, and also that the starting points imposed for the charges other than the burglary charges were out of the available range. I conclude that the appropriate starting points were, without an adjustment for mental health:
(a)24 months’ imprisonment for the two burglary charges;
(b)nine months’ imprisonment for the for the offensive weapon and intentional damage charges; and
(c)three months’ imprisonment for the remaining charges of assault using a weapon and assault on a police officer.
[53] That results in a total starting point of three years imprisonment. Having regard to Mr Maaka-Wanahi’s mental health and its causative connection to his offending, and totality, I consider that the appropriate starting point for the totality of the offending is two years and six months.
Adjustments to the starting point
[54] There are two issues to address in relation to adjustments to the starting point. First, whether the uplift imposed for previous convictions was appropriate in the circumstances. Second, whether the credit given to Mr Maaka-Wanahi as a result of his personal mitigating factors was sufficient.
The uplift for previous convictions
[55] The Judge decided an uplift of six months was appropriate for Mr Maaka- Wanahi’s previous convictions.
[56] The significant issue to my mind is whether such an uplift was appropriate in circumstances where Mr Maaka-Wanahi has not previously been sentenced to imprisonment. This is an issue of proportionality, as submitted by Mr Bourke. The Court of Appeal has previously held that an uplift should bear a reasonable relationship to the sentence imposed for the previous offending.27 Otherwise, an uplift for previous convictions can constitute double punishment. An uplift is unlikely to be proportionate if it exceeds the prior sentence.28
[57] In this case, the Judge imposed a six month uplift for previous convictions in circumstances where Mr Maaka-Wanahi had previously only received a sentence of intensive supervision with special conditions. Ms Hicklin’s submission was that an uplift was still justified on a public protection basis and because Mr Maaka-Wanahi was subject to a sentence of intensive supervision and electronic monitoring at the time of the offending.
[58] While Mr Maaka-Wanahi has demonstrated a predilection for burglary, an uplift of six months’ imprisonment is disproportionate when assessed as against a sentence of intensive supervision. By way of analogy, in Irwin v R, the Court of Appeal considered that an uplift of one month’s imprisonment for a single previous conviction for which the appellant was sentenced only to community detention, was disproportionate.29 The Court considered that the uplift should not have been applied at all.30
[59] Mr Maaka-Wanahi is in a different position given his criminal history and the extent of his previous dishonesty offending. Generally, recidivist burglars are subjected to significant uplifts for their previous convictions.31 However, as this is Mr Maaka-Wanahi’s first sentence of imprisonment and accounting for the lack of a deterrence justification for him, I am satisfied that the Judge erred in imposing an uplift for his previous convictions. I consider that to do so was disproportionate.
27 Patel v R [2017] NZCA 234 at [61]; and Thomas v R [2020] NZCA 257 at [18].
28 Orchard v R, above n 25, at [14].
29 Irwin v R [2020] NZCA 181.
30 At [18].
31 See R v Columbus [2008] NZCA 192 at [14]–[15].
Youth and mental health
[60] The District Court Judge did not award distinct discounts to Mr Maaka-Wanahi for youth and mental health, preferring to award a combined and undisclosed discount which amounted to approximately eight months. The difficulty with this approach is that discounts for youth and mental health, while they are connected in this case, are more commonly justified on different bases and awarded separately.
[61] While discounts for youth and mental health concerns both speak to the ways in which the personal circumstances of an offender affect their rationality and ability to choose not to offend, they have different foundations. Discounts for youth acknowledge neurological immaturity, peer-group influence, and capacity for rehabilitation. Discounts for mental health concerns reflect that in some circumstances an offender’s choice to offend may not be entirely rational in the way that the criminal law typically assumes.
[62] First, as discussed above, discounts are available where there is an evidential basis for concluding that mental health and/or intellectual disability causatively contributed to offending. This is a matter that bears upon an offender’s culpability at the first step, and also is a personal mitigating factor under the second step. An offender’s mental health may also bear upon the weight to be placed on any of the purposes of sentencing. For example, in Mr Maaka-Wanahi’s case, as identified by Dr McGinn, a deterrent sentence is less likely to be effective for Mr Maaka-Wanahi, in isolation from services which can support him to live in the community.
[63] In E v R, the Court noted that stage two discounts for mental health issues ranging from 12 per cent to 30 per cent had been seen as appropriate.32 In the present case, I am satisfied that a 15 per cent discount for Mr Maaka-Wanahi’s mental health would be appropriate.
[64] I note also that the approach taken by the District Court Judge appeared to be an approach by which Mr Maaka-Wanahi’s mental health was considered to be an
32 E (CA689/2010) v R [2011] NZCA 13, (2011) 24 CRNZ 411 at [71]. See also Fairbrother v R [2013] NZCA 340 at [34]–[35]; Shailer v R [2017] NZCA 38, [2017] 2 NZLR 629 at [43]; Edri v R [2013] NZCA 264; and Pomare v R [2017] NZCA 155
aggravating factor, given the need to protect the community. The Judge referred to “future victims” and noted that discounts for mental health “create further victims and at a quicker pace”, in respect of persons whose “mental health makes it inevitable that they will re-offend”.33
[65] I do not consider that this was the correct way to approach discounts for mental health in order to respect and account for the purposes of sentencing, some of which ultimately pull in opposite directions. Rehabilitation is as present in s 7(1) of the Sentencing Act as is the protection of the community. In the case of Mr Maaka- Wanahi, I consider that the protection of the community should be seen as encouraging a rehabilitative approach in the longer term.
[66] In my view, the District Court Judge was also incorrect in suggesting that discounts are only available if facilities and programmes are available to respond to the matters for which the discounts are given.34 The availability of such facilities and programmes are certainly matters for the executive and not the courts—but a Judge’s proper consideration of the sentencing purposes and principles cannot in my view be affected in this way. To my mind, the Judge’s justification for imprisoning Mr Maaka- Wanahi as prioritising protection of the community over rehabilitation is misplaced given that Mr Maaka-Wanahi’s needs remain, whether he is in prison or in the community. It appears to me that the Judge’s views resulted in him not taking a correct approach to assessing Mr Maaka-Wanahi’s situation.35
[67] Second, the Court of Appeal has recently re-examined the neurological differences between young people in adults, and what effect those differences should have in sentencing young people.36 In Dickey v R, the Court acknowledged that there is no outer limit to the discount for youth, with discounts of 10–30 per cent being common.37 In previous cases discounts have been awarded to defendants older than Mr Maaka-Wanahi.38 The Court of Appeal also considered that it was no longer correct to say that “youth can carry little weight when balanced against the public interest in
33 Above n 1, at [18].
34 At [18].
35 See also the discussion in Police v Morrison [2019] NZDC 13977.
36 Dickey v R [2023] NZCA 2. See also Frost v R [2023] NZCA 294 at [99]–[109].
37 Dickey, above n 36, at [174]; citing Pouwhare v R [2010] NZCA 268, (2010) 24 CRNZ 868 at [98].
38 R v Nepia [2019] NZHC 1932 at [36]; and Woodstock v R [2020] NZCA 472 at [31]–[34].
denunciation and accountability”.39 In that case, in respect of much more serious offending, discounts were awarded to appellants whose offending “reflected the poorly developed neurological capacity of adolescents”.40
[68] Ms Hicklin submitted that the discount given by the Judge was an appropriate recognition of Mr Maaka-Wanahi’s reduced moral culpability arising out of his FASD while ensuring the principle of community protection was given effect, bearing in mind the limited rehabilitative prospects. Ms Hicklin emphasised that there have been repeated attempts by the courts to keep Mr Maaka-Wanahi out of prison while limiting reoffending but that this has been unsuccessful.
[69] I accept that counsel, probation officers and the courts have worked hard to help Mr Maaka-Wanahi and that ongoing challenges remain. But these challenges do not justify refusing to apply appropriate discounts in sentencing him. Mr Maaka- Wanahi was 21 years’ old at the time of his offending. He is well within the range of ages for which youth has been considered a mitigating factor. Further, his FASD, as described by Dr McGinn, places him intellectually as functioning similarly to a ten year old. In these circumstances, I am satisfied that his youth justifies a further discrete discount of ten per cent.
Is the end sentence manifestly excessive?
[70] The focus of an appellate court in respect of sentencing is on the end sentence and whether it is manifestly excessive. Particularly in the present case, as the District Court Judge made a substantial reduction on the basis of totality and arrived at an end sentence of two years and two months’ imprisonment, the issue is whether, given my conclusions above, the end sentence is manifestly excessive.
[71] I have concluded that Mr Maaka-Wanahi’s sentence should have been constructed in the following manner:
(a)a 24 month starting point for the burglary charges;
39 Dickey, above n 36, at [177], compare R v Rapira [2003] 3 NZLR 794 (CA) at [120].
40 At [203(a)].
(b)a nine month starting point for the offensive weapon and intentional damage charges;
(c)a three month starting point for the remaining charges of assault using a weapon and assault on a police officer;
(d)a six month reduction of the overall starting point to account for totality and his reduced culpability;
(e)a 25 per cent discount for his guilty plea (which is not in issue on appeal);
(f)a 15 per cent discount for his mental health; and
(g)a 10 per cent discount for youth.
[72] That results in an end sentence of 15 months’ imprisonment. I am satisfied accordingly that the sentence imposed in the District Court was manifestly excessive and that I must allow Mr Maaka-Wanahi’s appeal.
[73] I also grant leave for Mr Maaka-Wanahi to apply for home detention. Home detention will only be able to be granted if there is an appropriate environment in which Mr Maaka-Wanahi can complete such a sentence. This is a matter to be assessed in the District Court.
Result
[74]The appeal is allowed.
[75] The sentence of two years and two months’ imprisonment is quashed. A sentence of 15 months’ imprisonment is substituted.
[76]Leave is granted for Mr Maaka-Wanahi to apply for home detention.
McQueen J
Solicitors:
Crown Solicitor, New Plymouth for Respondent
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