Maaunga v The King
[2025] NZHC 1694
•25 June 2025
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2025-404-000126
[2025] NZHC 1694
BETWEEN FAASALALAU SIUTILA FOLASA MAAUNGA
AppellantAND
THE KING
Respondent
Hearing: 23 June 2025 Counsel:
R Jones for Appellant
N C Vaughan for respondent
Judgment:
25 June 2025
JUDGMENT OF ANDREW J
This judgment was delivered by Justice Andrew on 25 June 2025 at 2.00 pm
pursuant to r 11.5 of the High Court Rules 2016 Registrar / Deputy Registrar
Date: …………………………………
MAAUNGA v R [2025] NZHC 1694 [25 June 2025]
Introduction
[1]This is an appeal against sentence.
[2] In the District Court the appellant, Mr Faasalalau Maaunga, pleaded guilty to charges of male assaults female (representative),1 causing grievous bodily harm with intent to cause grievous bodily harm2 and common assault.3 Judge McNaughton sentenced Mr Maaunga to three years and two months’ imprisonment.4
[3] The sole ground of appeal is that the discount provided for the time Mr Maaunga spent on electronically monitored (EM) bail (33 per cent) was insufficient, which resulted in the end sentence being manifestly excessive.
[4] Mr Maaunga spent two-and-a-half years on EM bail. There were no real compliance issues. For most of the period he was subject to a 24-hour curfew.
[5]The Crown opposes the appeal.
The offending
Male assaults female (representative)
[6] In July 2022, Mr Maaunga was employed as a temporary worker at the Delmaine factory in Mount Wellington. He had been working there for approximately three months.
[7] On 6 July 2022, Mr Maaunga was working on the manufacturing line on the pasta floor. The first complainant, who was Mr Maaunga’s immediate manager, asked him to load some “rejects” through the machine and told him which bin to collect.
[8] Mr Maaunga picked up a bin full of pasta and threw it at the first complainant. He then attempted to throw another bin on a trolley but, finding it too heavy, pushed it towards the first complainant instead. He then lunged at her, grabbing her by the
1 Crimes Act 1961, s 194(b): maximum penalty: two years’ imprisonment.
2 Section 188(1): maximum penalty: 14 years’ imprisonment.
3 Section 196: maximum penalty: one year’s imprisonment.
4 R v Maaunga [2025] NZDC 2211.
throat. The first complainant moved backwards, managing to push Mr Maaunga off her and when he tried to grab her again, she pushed him away.
[9] The first complainant screamed for help and another employee ran over, pushing Mr Maaunga away. However, Mr Maaunga continued trying to reach the first complainant and picked up other items from the floor to throw at her. The first complainant ordered Mr Maaunga to leave the factory floor. Three other employees arrived to assist, and Mr Maaunga walked towards the exit.
[10]The first complainant suffered a sore and swollen neck as a result of the assault.
Causing grievous bodily harm with intent to cause grievous bodily harm
[11] The second complainant had observed the commotion from his office and followed Mr Maaunga outside. He yelled at Mr Maaunga to leave and never return. Mr Maaunga responded aggressively, saying “You need to stay the fuck away”, before starting his vehicle. The second complainant moved an orange cone from behind the vehicle to allow Mr Maaunga to leave the carpark. He could see Mr Maaunga looking and screaming at him through the front windscreen. Mr Maaunga then accelerated towards the second complainant and hit him. He continued accelerating until the second complainant was pushed into a wire fence.
[12] The second complainant’s legs were pinned between the fence and the bumper of Mr Maaunga’s vehicle. Mr Maaunga then reversed and accelerated forward a second time, again hitting the second complainant and causing him to land on the bonnet of Mr Maaunga’s vehicle.
[13] The second complainant suffered multiple fractures to his legs and significant internal bruising and tissue damage to both legs. He underwent surgery on his right leg, spent five days in hospital, and required approximately six months of rehabilitation to return to his pre-injury condition.
Common assault
[14] The third complainant was on the passenger side of the vehicle, leaning through the window and telling Mr Maaunga to stop what he was doing. Mr Maaunga told her to “fuck off”. He then swung the wheel brace in an attempt to hit her, but she was able to push him away. Mr Maaunga then tried to get out of his vehicle, still holding the wheel brace, but the third complainant pushed the door so he could not get out.
[15] A number of staff surrounded the vehicle, trying to encourage Mr Maaunga to turn the engine off. One spoke to him in Samoan, eventually convincing him to let go of the wheel brace.
[16]The third complainant did not suffer any injuries.
EM bail record
[17] Mr Maaunga was granted EM bail on 28 July 2022 and remained on EM bail until sentencing on 7 February 2025. As such, by sentencing, Mr Maaunga had spent two years, six months and 11 days on EM bail. Most of this was spent subject to a 24-hour curfew, with the remaining three months involving a 22-hour curfew on weekdays and a 24-hour curfew on weekends.
[18] Mr Maaunga has not had any breaches of bail recorded against him.5 However, he was arrested on two occasions for unapproved absences. The first arrest was made on 9 November 2023 and Mr Maaunga appeared in the Manukau District Court the following day for a number of unapproved absences on 8 and 9 November 2023. The second Court appearance was on 27 September 2024 following Mr Maaunga’s breach of EM bail to go to the doctor without first contacting the EM bail team.
Personal circumstances
[19] Mr Maaunga is 73 years old. He has cognitive impairment. He is a primary carer to five of his grandchildren and to his disabled wife.
5 Bail Act 2000, s 39(4).
Decision under appeal
[20] At sentencing, Judge McNaughton set out the facts of Mr Maaunga’s offending and the impact of that on the victims. He noted Mr Maaunga’s criminal history, which includes a number of assault-related convictions dating as far back as 1977 and observed that Mr Maaunga had been sentenced to eight months’ imprisonment in 2012 for injuring with intent and assault.
[21] Before turning to the approach to sentencing, Judge McNaughton noted that Mr Maaunga had been given, but declined, a sentence indication provided by Judge Forrest in December 2022, which involved a starting point of five-and-a-half years’ imprisonment on the main charge, with uplifts of six months for the remaining charges, three months for his criminal history, and a discount of 25 per cent for guilty plea. Despite declining the indication, Mr Maaunga pleaded guilty in August 2023.
[22] Judge McNaughton adopted the same starting point as that given in the sentencing indication, being five years and six months’ imprisonment on the charge of causing grievous bodily harm but noted that six years would have been within range. From that starting point, he applied the following uplifts and discounts:
(a)An uplift of 10 months’ imprisonment for the charges of male assaults female (representative) and common assault;
(b)An uplift of 5 per cent for the appellant’s previous assault-related convictions;
(c)An uplift of 5 per cent for offending on bail;
(d)A discount of 15 per cent for guilty pleas;
(e)A discount of 10 per cent for cognitive/cultural factors;
(f)A discount of 10 per cent to reflect the fact that a sentence of imprisonment will detrimentally affect the appellant given his age, health conditions and declining cognitive function;
(g)A discount of 10 per cent to reflect the impact on the appellant’s family, particularly his disabled wife and younger grandchildren; and
(h)A discount of 10 months’ imprisonment for time spent on EM bail (this equates to a 15 per cent discount on the sentence and approximately 33 per cent of the total time spent on EM bail).
[23] The end sentence reached was one of three years and two months’ imprisonment.
Relevant legal principles
[24] Section 250 of the Criminal Procedure Act 2011 sets out how a court is to determine a sentence appeal. An appeal must be allowed if the Court is satisfied that there is an error in the sentence imposed, for any reason, and that a different sentence should be imposed.6
[25] The Court of Appeal in Palmer v R outlined the position with respect to sentence appeals, stating that:7
… the standard of appellate review in sentence appeals … requires that the appellant show a material error was made and satisfy the appellate court that a different sentence ought to be imposed. Sentencing is not a science and an appellate court will not ordinarily interfere unless the end sentence was outside the range available to the sentencing judge. For that reason it is not an error to describe sentencing decisions as discretionary, so long as it is clear that “discretion” means only that the sentencer enjoys an appropriate margin of appreciation.
[26] In Tutakangahau v R, the Court of Appeal said that the concept of “manifestly excessive” continues to apply to appeals against sentence.8 The Court held that the appellate court’s focus is on the sentence imposed rather than the process by which it was reached.9 A judge on appeal should not intervene where the sentence imposed
6 Criminal Procedure Act 2011, s 250(2).
7 Palmer v R [2016] NZCA 541 at [17] (footnotes omitted).
8 Tutakangahau v R [2014] NZCA 279; [2014] 3 NZLR 482 at [35].
9 Tutakangahau v R, above n 8, at [36].
was within the range that could be properly justified by accepted sentencing principles.10
Analysis and decision
[27] The critical issue to address is whether allowing the 33 per cent discount provided for the time on EM bail was a material error resulting in a manifestly excessive sentence. In addressing that issue, I must focus on the end sentence rather than the process by which it was reached.
[28] There is substantial merit to the submission of Mr Jones that, in the circumstances here, the discount of 33 per cent for time spent on EM bail was insufficient. Mr Maaunga spent an extraordinarily long time on EM bail, namely two-and-a-half years, and I accept that there were no real issues with compliance. There appear to have been extenuating circumstances for the two occasions on which he was arrested. On neither occasion was a record entered against him under s 39(4) of the Bail Act 2000. I also note that for much of the EM bail period Mr Maaunga was subject to a 24-hour curfew.
[29] The Court of Appeal decision, Paora v R,11 provides substantial support for the submission that 33 per cent was very much on the light side and insufficient. In that case, Thomas J noted that an allowance of up to 50 per cent is not uncommon and that is not an upper limit.12 Her Honour also noted that courts have sometimes considered it appropriate to award a discount of more than 50 per cent of time spent on EM bail to reflect its restrictive conditions.13
[30] In Paora, the Court of Appeal held that the assessment of credit is an evaluative decision to be made having regard to the restrictiveness and duration of EM bail conditions in each case. In that case, the High Court sentencing Judge had provided a discount of 40 per cent for the two years, one month and 11 days the appellant had spent on EM bail. On appeal, the Court of Appeal split up the discount to reflect the
10 At [36], citing Tutakangahau v R [2014] NZHC 556 at [10].
11 Paora v R [2021] NZCA 559.
12 Paora v R, above n 11, at [53].
13 Paora v R, above n 11, at [53], citing Hohipa v R [2015] NZCA 485.
appellant’s compliance with EM bail at various addresses, with no credit allowed for time spent on EM bail while bailed to Tauranga (there had been a significant breach of bail recorded while at that address) and a credit of 70 per cent allowed for the 14-month period spent on EM bail in Te Atatu, given the restrictions in place.
[31] I also note the recent decision of R v Hamdi,14 where his Honour Justice Blanchard accepted that a discount of two-thirds of the time spent on EM bail (15 months) was an appropriate reduction to reflect the strict conditions imposed, including a 24-hour curfew.15
[32] Having regard to all of these cases and the circumstances here, I find that, in this case, a discount of at least 50 per cent for time spent on EM bail could well have been justified. However, I must now turn to address whether the end sentence was manifestly excessive. That issue is answered by addressing the Crown’s submissions that any error in relation to the discount for EM bail is offset by the generous starting point (on the low side) and the generous discount (15 per cent) for the guilty plea.
[33] This was a case of very serious violence. The aggravating features of the offending were carefully identified by the District Court Judge. They include the use of a weapon, the motor vehicle, “a particularly dangerous act”, and extreme violence in pinning the second complainant to the fence and then reversing and hitting him again.16 This was an assault on a vulnerable victim who was already seriously injured, and the injuries sustained were serious and long-lasting.
[34] The starting point set by the Judge of five-and-a-half years’ imprisonment fell at the lower end of band 2 of the tariff authority R v Taueki.17 That provides for a starting point of between five and ten years’ imprisonment.
14 R v Hamdi [2025] NZHC 1277.
15 See also Hohipa v R, above n 13, where the Court of Appeal held an appropriate discount was 86 per cent of the time spent on EM bail. The Court held that the discount granted in the court below was inadequate to reflect the 14 months spent on the most restrictive form of bail: bail with a 24- hour curfew.
16 R v Maaunga, above n 4, at [19].
17 R v Taueki [2005] NZCA 174, [2005] 3 NZLR 372 at [34]–[41].
[35] I agree with the submission of the Crown that the starting point adopted here was at the bottom of the available range. Indeed, the Judge himself recognised that when he expressly stated that “six years would have easily been within the available range.”18 It seems clear that the Judge was very much influenced by the starting point adopted in the sentence indication.
[36] As to the discount for the guilty plea, I note that Mr Maaunga pleaded guilty on the morning of the trial. I acknowledge that Mr Maaunga had a change of counsel and his cognitive issues would have been challenging for defence counsel. However, 15 per cent discount for a guilty plea entered 13 months after being charged, and on the day of trial, was nevertheless a generous one.
[37] In weighing all of these factors, I conclude that the end sentence of three years and two months’ imprisonment was not manifestly excessive. The sentence was within the range that could properly be justified by accepted sentencing principles.19
[38]The appeal is accordingly dismissed.
Result
[39]The appeal is dismissed.
Andrew J
18 R v Maaunga, above n 4, at [38]. There is support for that observation in the cases referred to by the Crown, R v Clark HC Auckland CRI-2010-090-001184, 7 April 2011; and R v Goyen CA285/05, 1 May 2006.
19 Tutakangahau v R, above n 8, at [36].
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