Mace v Police

[2024] NZHC 1086

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2024-409-33

[2024] NZHC 1086

BETWEEN

RIKI OREWA MACE

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	2 May 2023
Appearances:	M L Brus and B P A Shamy for Appellant W J S Mohammed for Respondent
Judgment:	3 May 2024

JUDGMENT OF DUNNINGHAM J

This judgment was delivered by me on 3 May 2024 at 4 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

MACE v NEW ZEALAND POLICE [2024] NZHC 1086 [3 May 2024]

Introduction

[1]                 Riki Mace was sentenced to 25 months’ imprisonment by Judge Hunt on      1 February 2024 on charges of:1

(a)disorderly behaviour;2

(b)wilful damage;3 and

(c)robbery.4

[2]                 Mr Mace appeals on the basis the sentence was manifestly excessive as the starting point was not justified, the uplifts were excessive, insufficient credit was given for guilty plea and the two low level offences have been double counted.

Facts

[3]                 On 25 June 2023, at approximately 2.00 am, the appellant and an associate were intoxicated and standing on the road in between Royleen and Penelope Street. They began yelling and screaming, disturbing the peace within the immediate area.

[4]                 The victim, who was inside his home address, went outside and confronted the two males who began verbally abusing the victim. The victim’s wife ran outside to try de-escalate the situation, however one male mentioned a gun so both victims ran back to their address.

[5]                 Shortly after, the victims heard loud banging and saw the appellant kicking and punching their front fence. The victims confronted the two males but the appellant continued to punch and kick the fence causing damage to multiple panels.

[6]The robbery offending occurred on a subsequent date. At approximately

4.07 pm on 30 July 2023, the defendant was opposite the H&M store on Cashel Street,

1      Police v Mace [2024] NZDC 2103.

2      Summary Offences Act 1981, s 3 – maximum penalty of three months’ imprisonment, $2,000 fine.

3      Section 11(1)(a) – maximum penalty of three months’ imprisonment, $2,000 fine.

4      Crimes Act 1961, s 234 – maximum penalty of 10 years’ imprisonment.

intoxicated. The victim was walking with his school friends towards the store. The appellant yelled out to the victim and grabbed his waist band, indicating that he was carrying a weapon. He repeatedly asked the victim whether he wanted to be stabbed.

[7]                 The victim gave the appellant his school bag. He was subsequently located inside the bus exchange and arrested, still in possession of the bag.

District Court decision

[8]                 After outlining the facts of the offending Judge Hunt noted Mr Mace’s significant history of non-compliance and of offending involving dishonesty and alcohol issues. He also noted there had been times where effort had been directed toward providing Mr Mace with rehabilitative opportunities but these had been ineffective.

[9]In sentencing for the lead offence of robbery, the Judge referred to R v Mako

which provides guidance on the starting point for aggravated robbery as follows:5

[59]At the other end of the scale would be street robbery by demanding  that the victim hand over money or property such as an item of clothing, or a knife or similar weapon is produced or where offenders acting together by bullying or menacing conduct enforce the demand though no actual violence occurs. Depending upon the circumstances the starting point would be between 18 months and 3 years. Actual physical enforcement might well require a higher starting point.

[10]              The Judge acknowledged that Mako addressed “more serious” offending. However, based on this, the Judge concluded that a starting point between 18 months and three years was available. An aggravating factor of the offending was the fact  Mr Mace indicated to the victim that he had a knife by grabbing his waistband and repeatedly saying “do you want to be stabbed?” The victim had no way of knowing whether this was a genuine threat. The Judge determined the starting  point  to  be  26 months’ imprisonment.

[11]              Mr Mace’s history was deemed relevant to the extent it indicated a difficulty with alcohol and a propensity to offend whilst under the influence of such. The Judge

5      R v Mako [2000] 2 NZLR 170 (CA).

added two months to the sentence for this, as well as an additional two months for the fact the offending occurred whilst on bail.

[12]              For the charges related to the separate offending on 25 June, the Judge added a further two months, totalling 32 months’ imprisonment.

[13]              A 15 per cent discount was given for guilty plea and a two-month credit was given for time spent on bail. This brought the sentence down to 25 months. Home detention was not considered to be appropriate, even if a sentence of under two years had been imposed.

[14]Fines totalling $5,020.85 were remitted but an order to pay reparation of

$1,375 for the fence damage was imposed.

Principles on appeal

[15]              Appeals against sentence are allowed as of right by s 244 Criminal Procedure Act 2011 and must be determined in accordance with s 250. An appeal against sentence will be successful only if the appeal Court is satisfied there has been an error in the imposition of the sentence and that a different sentence should be imposed.6 A court will not intervene if the ultimate sentence imposed is within the available range and is one that can properly be justified on the application of relevant sentencing principles.7 When assessing whether the sentence being appealed is “manifestly excessive” the focus must be on whether the sentence actually imposed is within range, rather than the process by which that sentence was reached, or its constituent elements.8

6      Criminal Procedure Act 2011, s 250(2) and (3).

7      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36]; and Ripia v R [2011] NZCA 101 at [15].

8      Islam v R [2020] NZCA 140 at [32]; and Bowring v Police [2021] NZCA 325 at [12].

Submissions

Appellant’s submissions

[16]              Counsel for the appellant notes that the District Court Judge referred to R v Mako which is the guideline judgment for aggravated robbery offending, as opposed to robbery, which was charged here. While counsel accepts the Mako guidelines can be used in cases involving a charge of robbery, the Court has warned that adjustments need to be made to reflect the differing maximum penalties.9 Counsel submits that while Mako is accepted as a useful guide for robbery sentencings, there must be an adjustment to account for the lesser maximum penalty.10

[17]              In King v R¸ the Court of Appeal considered the robbery of a bank, where the defendant had disguised his identity, demanded money from two tellers and escaped with $3,000, would attract a starting point of two to two and a half years’ imprisonment.11 Counsel submits that Mr Mace’s offending, in comparison, was low-level, opportunistic offending. Counsel also cites R v Petersen & Hema where the High Court considered an appropriate reflection of the “street robbery” category in Mako for robbery charges (as opposed to aggravated robbery) would be the equivalent of 12 and a half months to two years and two months’ imprisonment.12 Therefore, counsel submits that a more appropriate starting point would have been in the range of 18 to 22 months’ imprisonment to account for the unsophisticated nature of the offending and the low value of the items stolen.

[18]              Secondly, with regards to the uplift for the appellant’s history, counsel submits that instead of attracting a punitive uplift, the appellant’s alcohol addiction which fuelled his offending, warrants a discount, citing Zhang v R and Berkland v R.13 Addiction, as manifested in the appellant’s case, can  warrant  a discount  of up to  30 per cent.

9      Heteraka v R [2013] NZCA 339 at [24], noting aggravated robbery has a maximum penalty of 14 years’ imprisonment while robbery carries a maximum penalty of 10 years’ imprisonment.

10     R v Kawhe [2022] NZHC 1852.

11     King v R [2019] NZCA 413 at [19].

12     R v Petersen & Hema [2022] NZHC 2742.

13     Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648; and Berkland v R [2022] NZSC 143, [2022] 1

NZLR 509.

[19]              Counsel then notes that aside from one conviction in 2014, the appellant has no history of violent offending and the majority of the appellant’s previous convictions relate to dishonesty and non-compliance. The appellant has completed his most recent sentence of home detention without breaching conditions and in counsel’s submission, there is clear evidence of rehabilitative potential which should have attracted a discount in the realm of 10 per cent.

[20]              In support of that submission, counsel sought to admit a copy of a referral form to He Waka Tapu for support to address alcohol-related issues, which was completed by Mr Mace three days before the second offending incident. The admission of that evidence was not opposed by the Crown and accordingly I granted leave to admit this as further relevant evidence on appeal.

[21]              In relation to the guilty plea discount, counsel submits there was no reason here to depart from the “orthodox method” of applying a 20 per cent discount for a plea entered at case review hearing. It was inappropriate for the appellant to enter a guilty plea prior to reviewing the full disclosure, particularly when he did not recall what happened on the day of the alleged robbery. Once the CCTV footage of the robbery was provided by Police, the appellant promptly entered his guilty plea.

[22]              Finally, counsel  submits  that  the  two  low  level  offences  occurring  on  25 June 2023 appear to have been double counted in that they account for a two-month uplift, as well as a one-month concurrent sentence.

[23]              Counsel accepts the appellant has received some benefit in the credit applied for time spent on bail. However, the Judge did not acknowledge the appellant’s willingness to participate in restorative justice and made no allowance for remorse.

[24]              In the appellant’s submission, with these adjustments, a short term of imprisonment, with leave to apply for home detention is the appropriate sentence.

Respondent’s submissions

[25]              In relation to the starting point, Mr Mohammed, for the respondent, acknowledges the Judge appeared to proceed on the basis of the Mako street level

robbery band that applies to charges of aggravated robbery. He also acknowledges that the decisions in R v Petersen and Bell v Police indicate the equivalent starting point range for a street level robbery is between 12 and a half months and two years two months.14 The District Court Judge therefore took a starting point at the highest end of this range.

[26]              The respondent acknowledges that this starting point could be considered stern but submits that when considering the fact that the victim was a 14-year-old, vulnerable boy and there was an accompanying repeated verbal threat of “stabbing” alongside a gesture indicative of possession of a weapon, this offending should be placed at the higher end of the scale. There are no mitigating features of the offending.

[27]              The 25 June 2023 offending occasioned an uplift of two months’ imprisonment. This, too, might be regarded as stern. However, the respondent submits the aggravating features of the offending are that there are two offenders, it was night time, the behaviour of the offenders caused the victim to leave his house, the offenders verbally abused the victim, when the victim’s wife came outside one of the offenders referred to a gun and the defendants then kicked and punched the victims’ fence. The respondent submits this offending demands denunciation, deterrence and community protection.

[28]              With regard to uplifts, the respondent submits that while the two-month uplift for offending on bail and breaching bail might appear stern, this is offset by the Judge awarding a two-month credit for time spent on bail.

[29]              The respondent submits that the two-month uplift for the appellant’s previous convictions was lenient when considering the number of relevant convictions the appellant has.

[30]              With regards to the guilty plea discount, the respondent submits this was within the available range. The appellant initially failed to appear, then pleaded not guilty and  the  case  against  him  was  strong.  Further,  the  appellant  was  referred  to  He Waka Tapu (an organisation whose services include addiction recovery and

14     R v Petersen [2022] NZHC 2742; and Bell v Police [2016] NZHC 1715.

support), but he did not respond to their calls and messages, showing an unwillingness by the appellant to address his addiction and offending-related behaviour.

[31]              The respondent also notes that the Judge did not calculate the end sentence in accordance with the two-step methodology prescribed in Moses v R.15 The correct approach would have been to take the starting point of 28 months (two years and  two months plus two months for other offending) and then apply a net  credit of  eight per cent (seven per cent uplift for history and seven per cent uplift for offending on bail, offset by a 15 per cent discount for plea and seven per cent discount for time spent on bail). The end point would then have been 25.76 months and thus the end sentence of 25 months was favourably rounded for the appellant.

[32]              The respondent concludes that the sentence was within range. However, regardless, a sentence of home detention would be inappropriate due to the appellant’s addiction issues, the high risk of reoffending, the need to protect the community, the risk that the appellant will be unable to adhere to the terms of his sentence of home detention and the need to denounce and deter his conduct. Furthermore, Mr Mace has been sentenced to home detention twice before in relation to 24 offences, but has continued to offend, suggesting the sentencing principles of denunciation and deterrence should now take priority.

Analysis

Starting point

[33]              The District Court proceeded on the basis of the Mako street level robbery band that applies to the charges of aggravated robbery. However, as counsel points out, the equivalent starting point range for a street level robbery is between 12 and a half months and two years and two months.  The issue on appeal therefore, is whether  Mr Mace should have received a starting point at the highest end of this range.

[34]              I accept that the aggravating factors of this robbery were the fact it was against a 14-year-old, vulnerable boy and there were accompanying threats to cause grievous

15     Moses v R [2020] NZCA 296, [2020] 3 NZLR 583.

bodily harm, along with a gesture indicating he had a weapon to make good the threats. However, I also accept the offending was not premeditated and Mr Mace did not touch or hurt the victim and the property taken was not of high value and was quickly recovered.

[35]              The cases are, of course, very fact specific. By way of example, in Georgeson v Police, the victim of the robbery was an 89-year-old woman.16 She was putting her groceries in the car when the appellant approached the victim and told her she had left some goods back in the supermarket. When she turned, he reached and grabbed her wallet. A struggle ensued and the victim fell to the ground. The Judge accepted the violence was at the lower end of the scale but noted that it was directed at a defenceless 89-year-old. The starting point in that case was three years. I accept that case was more serious than in the present case with the victim being physically attacked, falling to the ground and hurting herself.

[36]              In Prince v Police, Lang J allowed an appeal against sentence where the appellant and his co-defendant approached an Asian lady with the intention of robbing her of her handbag.17 The co-defendant tried to grab the handbag from the victim. When her male companion then endeavoured to help her resist those efforts, the appellant intervened and punched the victim’s companion several times. He then grabbed the handbag and ran off. On appeal, the starting point adopted for the co- defendant was two years’ imprisonment and it was accepted that Mr Prince’s starting point should be the same. Accordingly, a two year starting point was imposed on appeal.

[37]              That case was referred to in a subsequent decision, Smith v R.18 In that case, Ms Smith and two associates were in a supermarket carpark where they waited for the owner of a BMW car to return from the supermarket to her car. Ms Smith then lunged at the victim, attempting to attack her. She was assisted by her two co-defendants and the victim’s handbag taken. The trio then drove away. The charge of aggravated robbery was reduced to a charge of robbery. In the District Court, a starting point of

16     Georgeson v Police HC Christchurch CRI-2009-409-217, 18 February 2010.

17     Prince v Police CRI-2008-404-283 HC Auckland, 16 February 2009.

18     Smith v R [2022] NZHC 2782.

two years and six months’ imprisonment was adopted which on appeal, was argued to be too high having regard to the charge actually faced.   Campbell J considered     Ms Smith’s offending to be more serious than that of the defendant in Prince, as it had a greater degree of premeditation. She was one of two attackers overpowering a lone victim and the value of the property taken was reasonably significant, including $1,800 in cash. A starting point of two years and six months adopted by the District Court Judge was held to be “within the available range, albeit at the high end”.19

[38]              Having regard to these cases and the fact they all involved a level of actual violence, I have come to the view that the starting point adopted was too high. Even though the Judge acknowledged that Mako dealt with the more serious charge of aggravated robbery, he nevertheless referenced the starting point to the range given in that case. In my view, a starting point of less than two years was warranted, having regard to the starting point adopted in Prince and accepting that this was spontaneous and ill thought-out offending and did not involve actual violence. In my view, a starting point of 22 months is appropriate.

Uplifts

[39]              Counsel has submitted that instead of warranting an uplift, the appellant’s addiction-fuelled offending warrants a discount, noting that addiction which mitigates culpability can warrant a discount of up to 30 per cent.20 In the PAC report, the appellant acknowledges that his levels of intoxication had contributed significantly to his offending on both occasions. He is reluctant, however, to appropriately address this addiction, as  indicated  by  his  failure  to  respond  to  repeated  attempts  by  He Waka Tapu to get hold of him.

[40]              I accept that Mr Mace had previously made contact with this organisation after being charged with wilful damage and before the charge of robbery. However, the weight I can give this as evidence of rehabilitative potential is undermined by his subsequent failure to follow through by responding to that organisation’s multiple texts and phone calls.

19     Smith v R, above n 18, at [29].

20     Zhang v R, above n 13, at [149].

[41]              The Court of Appeal has held that where an offender’s pre-existing state of addiction to an illegal drug contributes to drug-related offending, the judge may give a discount for that personal circumstance.21 However, offenders will only qualify where the addiction mitigates moral culpability for the offending.22 This must be distinguished from voluntary consumption of alcohol which is causative of offending which, under s 9(3) Sentencing Act, can not be taken into account by way of mitigation.

[42]              Here, while there is self-reported abuse of alcohol, it is not clear that alcohol is linked to an underlying impairment that reduces Mr Mace’s moral culpability for the offending. In his referral form to He Waka Tapu, Mr Mace confirms that he holds down a job and his sister confirmed to the pre-sentence report writer, that when he was at home with her, he abided by her rules which included no excessive drinking. While I accept Mr Mace abuses alcohol and needs to address those issues, I consider there is an insufficient basis for concluding a discount should apply for addiction issues that are causative of offending, and which mitigate his moral culpability.

[43]              In terms of whether it is appropriate to uplift for prior offending, the appellant has submitted that, since his conviction for demanding with intent to steal in 2014, he has no history of similar offending to the present offending and an uplift was not required.

[44]              I accept a sentence should primarily be based on the facts of the offence for which the offender is being sentenced and it must not be increased merely because of previous convictions, because doing so would be to effectively increase the sentence imposed on that previous occasion or occasions.23 Furthermore, in considering whether the previous convictions bear upon character and culpability, an indication of reoffending and the need to protect society through a deterrent sentence, I need to consider the number, seriousness and nature of the convictions and the time since the last conviction.

21 At [144].

22 At [149].

23     Wipa v R [2018] NZCA 219 at [25]–[28].

[45]              That said, in my view, there is a sufficient link between Mr Mace’s extensive criminal history and the current offending to warrant an uplift. He has numerous convictions for unlawful taking of motor vehicles, theft of property, shoplifting, along with numerous convictions for obtaining by deception and these demonstrate that  Mr Mace repeatedly commits dishonesty and property-related offences with no regard for the impact that has on his victims. Furthermore, he has a conviction for wilful damage in 2022 along with more historic wilful damage charges, which is the same charge as he faces in relation to the June 2023 offending. He also has drink-driving offences reflecting a tendency to offend when drinking, which was the case with all the current offending. I am satisfied that there is a sufficient connection between his previous offences and the current offending to warrant the uplift which was imposed to denounce and deter this behaviour.

[46]              While the appellant submits that Mr Mace has completed his most recent sentence of home detention without breaching the conditions, and there is evidence of rehabilitative prospects which should  have  attracted  a  discount  in  the  realm  of 10 per cent, I am not satisfied such a discount is justified. There has been significant effort put into assisting Mr Mace with rehabilitative opportunities in the past and he has not appeared to engage with those. He has had numerous sentences of supervision and intensive supervision imposed and has convictions for breaching conditions of those sentences. While he professes a willingness to make amends, this is not followed through with actions. This has continued with the failure to contact He Waka Tapu following referral to that organisation by the District Court and I do not consider there is sufficient evidence of rehabilitative prospects to attract a discount.

Guilty plea

[47]              Appropriate guilty plea discounts involve a consideration of all the circumstances in which a plea was made.24 In this case, the appellant initially failed to appear on the June offending charges and then pleaded not guilty to all charges in late August. Guilty pleas were entered in October. Counsel for the appellant submit that this was because it was inappropriate for the appellant to enter a guilty plea to the

24     Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [51].

robbery charge before reviewing the full disclosure and, after viewing the CCTV evidence, the appellant promptly entered his guilty plea.

[48]              However, there is considerable discretion available to the Judge in affording discounts for guilty pleas. In deciding the level of discount, a Judge can take into account not just the timing of the plea, but the strength of the evidence. I also note the CCTV footage was not relevant to the plea on the June offending charges.

[49]              While another Judge might have given a greater discount, there is nothing to suggest the discount given was outside the available range and would render the sentence manifestly excessive.

Double counting

[50]              The  appellant  submits  that  the  two  low-level   offences  occurring   on   25 June 2023 have been double counted in that they account for a two-month uplift, as well as a one-month concurrent sentence on each charge. I do not accept there has been double counting. It is conventional to uplift a sentence on the lead charge to reflect other charges but then apply concurrent sentences, as here. It did not increase the penalty imposed in practical terms. Furthermore, a one month sentence on each charge, where a maximum sentence of three months was available, is not manifestly excessive.

Moses v R

[51]              As identified by the respondent, the sentence was not calculated in accordance with the approach mandated in Moses v R.25 Having decided the starting point on the robbery charge was too high, I need to undertake the sentencing exercise afresh. The starting point for all the offending is 24 months (being 22 months on the robbery charge and one month on each of the other two charges, imposed cumulatively).

[52]              I see no need to adjust the sentence for the fact the offending occurred while on bail, when that is cancelled out by a discount for the time spent on bail and I ignore those uplifts and discounts in my calculations.

25     Moses v R, above n 15.

[53]              The uplift for prior offending equates to a seven per cent uplift, but against that needs to be balanced the 15 per cent discount for guilty plea, leaving a net discount of eight per cent. That brings the sentence down to 22 months’ imprisonment.

Home detention

[54]              As I have reduced the end sentence to two years or less, I must consider whether to grant leave to apply for home detention. In this case, I do not consider it is appropriate to do so. The appellant’s history of failure to engage with rehabilitative sentences and non-compliance with sentences, including home detention, point against this. Imprisonment is now the appropriate sentencing response.

Conclusion

[55]              For the above reasons, the appeal is allowed. The sentence of two years and one month’s imprisonment is reduced to a sentence of 22 months’ imprisonment. Leave to apply for home detention is declined.

Solicitors:
Crown Solicitor, Christchurch

Copy to:

M L Brus, Barrister, Christchurch

B P A Shamy, Barrister, Christchurch