Mahanga v Police - [2020] NZHC 2532

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2020-409-96

[2020] NZHC 2532

BETWEEN
LEVI MAHANGA

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 17 September 2020

Appearances:

B P A Shamy and M Bruce for Appellant S J Mallett for Respondent

Judgment:

28 September 2020

JUDGMENT OF OSBORNE J

(appeal against conviction)

This judgment was delivered by me on 28 September 2020 at 3.45 pm

Registrar/Deputy Registrar Date:

Introduction

[1] Levi Mahanga was tried and convicted on a charge of receiving a stolen moped valued at $1,300 in Linwood on 12 October 2019 from persons unknown under s 246 Crimes Act 1961 (the Act).1 Judge Mark Callaghan sentenced Mr Mahanga to 120 hours’ community work and ordered reparation.2

[2] Mr Mahanga appeals his conviction on the basis that there was no evidence before the Judge to support an inference drawn that the moped was worth $1,300 at

1 Police v Mahanga [2020] NZDC 13350 [Conviction judgment].
2 Police v Mahanga [2020] NZDC 13352.

MAHANGA v NEW ZEALAND POLICE [2020] NZHC 2532 [28 September 2020]

the time it was received. It is said that the Judge was thereby led into error in his assessment of the evidence to such an extent that a miscarriage of justice occurred.3

[3] The significance of the value of over $1,000 is that under s 247(a) of the Act, the offence is subject to up to seven years’ imprisonment, as contrasted with a term not exceeding three months if the value is less than $500.

Background

[4] In the early hours of 12 October 2019 a 2017 TGB Tapo 50 cc moped was stolen from outside a residential property in Addington by persons unknown. On the morning of 14 October, police observed Mr Mahanga riding the moped in Linwood. He was signalled to stop. He accelerated away and attempted to evade police, driving through a cemetery, along footpaths and through a mall carpark, at times travelling at speeds of up to 80 km/h, before being apprehended at Eastgate Mall.

Evidence

[5] At trial the complainant, the owner of the moped, said he purchased it in January 2019 for $1,300. He said he thought that was a very good bargain because when new they were worth between $2,500 and $2,600. Since it had travelled only about 4,000 km he believed it was still worth $1,300 when it was parked outside his house on the evening of 11 October 2019. He said at the time it was in perfect condition, free from scratches, dents and marks, and the seating was perfectly fine. The complainant had reported on 12 October to the police that the moped was stolen.

[6] He was subsequently called by police informing him that his moped had been found and was at a towing yard. When he arrived at the towing yard he found the moped had been completely stripped down. The seat and panelling had been removed. He was told by the towing yard that the…

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: [2020] NZHC 2532
Decision Date: 28 September 2020

CaseChat Overview and Summary

Levi Mahanga appeals against his conviction for receiving a stolen moped valued at $1,300. Mahanga contends that there was no evidence to support the Judge's finding that the moped was worth $1,300 at the time it was received. This contention is critical as the value of the moped determines the severity of the offence and corresponding penalty. Under the Crimes Act 1961, receiving property valued at over $1,000 carries a maximum penalty of seven years' imprisonment, while receiving property valued at less than $500 carries a maximum penalty of three months' imprisonment.

The legal issues before the Court were whether the Judge erred in his assessment of the evidence to such an extent that a miscarriage of justice occurred, and whether the Court should allow the appeal against conviction. The Court noted that if it came to a different view on the evidence than the trial judge, it would find the trial judge had erred and that there had been a miscarriage of justice, thus allowing the appeal.

The Court found that the Judge did not err in his assessment of the evidence. The Court considered the evidence that the moped was stolen in near-perfect condition and found that the inference drawn by the Judge was legitimate and not mere speculation. The Court applied the doctrine of recent possession, which allows proof of theft or receiving by circumstantial evidence where a person is found in possession of stolen property reasonably soon after a theft. The Court found the inference drawn by the Judge was legitimate and not mere speculation, and any doubt that could remain would not be a reasonable doubt.

The Court dismissed the appeal, finding no miscarriage of justice had occurred.

Orders