Maaka-Wanahi v Police - [2023] NZHC 3291

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] NZHC 3291
Decision Date: 21 November 2023

CaseChat Overview and Summary

Kingi Duval Maaka-Wanahi appeals against his sentence of two years and two months' imprisonment, imposed by Judge Grieg in the Hāwera District Court. Mr Maaka-Wanahi pleaded guilty to six charges, including two counts of burglary, assault with a weapon, possession of an offensive weapon, intentional damage, and assault on a police officer. He submits that his FASD and ADHD were not appropriately accounted for by the Judge in setting and adjusting the starting point, rendering the sentence manifestly excessive. The Police oppose the appeal.

The court found that the District Court Judge erred in not sufficiently considering Mr Maaka-Wanahi’s mental health when setting the starting point, and that the starting points imposed for the charges other than the burglary charges were out of range. The court also found that the uplift imposed for Mr Maaka-Wanahi’s previous convictions was disproportionate, and that the Judge’s approach to discounts for Mr Maaka-Wanahi’s youth and mental health was incorrect. The court concluded that the appropriate sentence should have been constructed with a starting point of 24 months for the burglary charges, nine months for the offensive weapon and intentional damage charges, and three months for the remaining charges, reduced by six months for totality and Mr Maaka-Wanahi’s reduced culpability, and further reduced by discounts for his guilty plea, mental health, and youth. This resulted in a sentence of 15 months' imprisonment, manifestly less than the sentence imposed by the District Court.

The appeal is allowed. The sentence of two years and two months' imprisonment is quashed, and a sentence of 15 months' imprisonment is substituted. Leave is granted for Mr Maaka-Wanahi to apply for home detention.

Orders