Mahanga v Police
[2018] NZHC 1446
•15 June 2018
IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
I TE KŌTI MATUA O AOTEAROA WHANGĀREI TERENGA PARĀOA ROHE
CRI-2017-488-000052
[2018] NZHC 1446
BETWEEN TRAVIS MAHANGA
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 24 April 2018 Appearances:
A Harvey for the Appellant J Scott for the Respondent
Judgment:
15 June 2018
JUDGMENT OF WOOLFORD J
This judgment was delivered by me on Friday, 15 June 2018 at 3:15 pm pursuant to r 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Solicitors: Marsden Woods Inskip Smith, Whangarei Counsel: Thomson Wilson, Whangarei
MAHANGA v NZ POLICE [2018] NZHC 1446 [15 June 2018]
[1] On 13 October 2017, following a two day judge-alone trial in the Whangarei District Court, Travis Sydney Michael Mahanga was found guilty and convicted of the following charges by Judge I G Mill:1
(a)receiving jewellery valued at $5,200 on 16 March 2017;
(b)receiving medical papers, a cell phone and a handbag valued at $100 on 16 April 2017;
(c)burglary on 19 April 2017; and
(d)attempting to pervert the course of justice between 20 April 2017 and 15 May 2017.
[2] On 3 November 2017, the Judge sentenced Mr Mahanga to three and a half years imprisonment on the above charges, as well as additional charges of obstruction, dangerous driving and failing to stop to which Mr Mahanga had earlier pleaded guilty.2 Mr Mahanga was also disqualified from driving for 12 months on the two driving charges.
[3] Mr Mahanga now appeals his conviction and sentence. Mr Mahanga’s conviction appeal relates solely to the two receiving convictions. Mr Mahanga also appeals against sentence on the basis of what he says is an arithmetical error on the part of the Judge and seeks a reduction of six months from his sentence of three and a half years imprisonment.
Factual background
[4] At trial, Mr Mahanga faced four charges of burglary, two charges of receiving and one charge of attempting to pervert the course of justice. The receiving charges were alternative charges to two of the burglary charges.
1 R v Mahanga [2017] NZDC 23317.
2 R v Mahanga [2017] NZDC 24826.
[5] The burglary charges related to four properties, which were burgled over a month long period from 16 March 2017 to 19 April 2017. In respect of the first burglary on 16 March 2017, there was an alternative receiving charge for the jewellery taken in that burglary. In respect of the third burglary, on 16 April 2017, there was also a receiving charge for medical papers, a cell phone and a handbag taken in that burglary.
[6] The items specified in the two receiving charges were found in a vehicle in which Mr Mahanga was a passenger at the time of his arrest on 19 April 2017, not long after the last burglary. Another passenger in the vehicle was Mr Mahanga’s girlfriend, Mistry Morgan.
[7] The victim of the last burglary had given the police a description of the man and his clothing who had left her property, obviously having just burgled it, and also a description and the number plate of the vehicle he left in. This led the Police to Mr Mahanga and the vehicle he was found in. Jewellery taken in the last burglary was also found in the vehicle.
[8] Then, after his arrest and between 20 April 2017 and 15 May 2017, it was alleged that Mr Mahanga arranged for an associate, James Blyth, to make a statement to the police claiming responsibility for all four burglaries. Mr Mahanga was convicted of the receiving charges, the last burglary charge and the charge of attempting to pervert the course of justice. Mr Blyth was also convicted of the last charge.
District Court decisions
The conviction decision
[9] At the outset of his decision, the Judge set out the facts of the offending and correctly referred to the onus and standard of proof on the police.
[10] The Judge then noted that there was no onus on Mr Mahanga to prove anything. He also noted that even though a lawyer, Mr Johnson, was available and ready to act
for him, Mr Mahanga elected to represent himself. The Judge made the following comment:
[9] … Mr Johnson appeared as McKenzie friend on the first day of the evidence but did not do so on the second day of the evidence which was yesterday when the evidence was concluded. In the main, Mr Mahanga’s cross-examination of the witnesses has been relevant and to the point and he has not wasted the Court’s time in any way.
[11] The Judge outlined the requirements for the offence of burglary, noting that the sole issue in this case was whether it was proved beyond reasonable doubt that Mr Mahanga was the burglar. The Judge acknowledged Mr Mahanga’s evidence:
[11] … In this respect, and of course I note there is no onus on Mr Mahanga to say or to establish anything, but he has urged on me a number of things and he has done so quite rightly. He points out that no witness has positively identified him as the burglar and further, there is no forensic evidence such as DNA evidence or fingerprints linking him either to the properties that were burgled or indeed the items that were stolen. He points out that the car he was found in was not registered in his name, that Ms Morgan claimed ownership of the property in the car but of course that was a lie as the property was stolen. I have taken all that into account when deciding whether there has been proof beyond reasonable doubt.
[12] The Judge accepted that it was a circumstantial case. He noted the prosecution evidence and its limitations, but tying all the evidence together, he found Mr Mahanga guilty of the last charge of burglary.
[13] In respect of the three earlier burglaries, the Judge noted that “[o]bviously, Mr Mahanga and Ms Morgan to various degrees must have been involved in the events surrounding these burglaries”. Items stolen from the properties were found in the vehicle. There was also a certain similarity to each of the burglaries. But the Judge concluded:
[36] … although it is likely, even very likely, that Mr Mahanga was the burglar, I cannot discount the reasonable possibility that it could have been someone else. And so on those remaining three burglary charges, I cannot be satisfied beyond reasonable doubt that he was in fact the burglar although I think it is very likely that he was.
[14] Judge Mill then concluded that Mr Mahanga was guilty of the two alternative charges of receiving:
[37] … given the finding of the property as described in the evidence in the car, Mr Mahanga’s attempts, as are seen during the various conversations, to manipulate evidence and in particular, in addressing the things that remained in the car and found by the police, I find that he was in possession or control of those, having received them knowing or being reckless as to whether they were stolen or not. He may have been in possession of them jointly with Ms Morgan given her apparent dealings in stolen goods, but the receiving charges are proved beyond reasonable doubt.
The sentencing decision
[15] The Judge adopted the burglary charge as the lead offence. Relying on Arahanga v R, he noted that the important thing when considering a burglary of this type was whether there has been any planning or sophistication in the burglary.3 The Judge concluded that there was not “a tremendous amount of planning in this burglary”, but there was some planning in the sense that the “property targeted was that of an elderly person where there was likely to be valuable property stored on the premises”.
[16] The Judge also noted the nature of the premises, namely that it was a private dwelling. He further commented that as the burglary was committed in the afternoon, there was an “obvious danger” that there could be a confrontation.
[17] Taking those matters into account, the Judge adopted a starting point of 18 months imprisonment. He then uplifted it by three months imprisonment for both the receiving charges and the obstruction charge.
[18] Taking into account Mr Mahanga’s previous convictions for burglary and dishonesty offences, the Judge uplifted the starting point by a further three months, resulting in an overall starting point of two years imprisonment.
[19] In terms of the perverting the course of justice charge, the Judge noted that it was “a serious attempt at perverting the course of justice”. He concluded that a cumulative sentence of imprisonment was appropriate because the events were separate. He decided a sentence of two years imprisonment was appropriate in respect of that charge, resulting in an end sentence of four years and six months imprisonment.
3 Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189.
[20] The Judge then took into account the totality principle and reduced the overall sentence to three years and six months imprisonment.
The law
Appeals against conviction
[21] Pursuant to s 232(2) of the Criminal Procedure Act 2011, the appeal must be allowed if the appeal court is satisfied that:
(a)the Judge erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred; or
(b)a miscarriage of justice has occurred for any reason.
[22] A miscarriage of justice means any error, irregularity, or occurrence in or in relation to or affecting the trial that:4
(a)has created a real risk that the outcome of the trial was affected; or
(b)has resulted in an unfair trial or a trial that was a nullity.
[23] The Supreme Court in R v Sungsuwan defined a “real risk” as “a reasonable possibility that a not guilty (or more favourable) verdict might have been delivered if nothing had gone wrong”.5 Furthermore, the Supreme Court in R v Condon held that not every departure from good practice renders a trial unfair.6 The departure must instead be “so gross, or so persistent, or so prejudicial, or so irremediable” that the court must quash the decision.7
[24] An appeal against conviction proceeds by way of rehearing.8 The appeal court must carefully consider all the matters that were before the Judge. But, ultimately, the court must reach its own decision.
4 Criminal Procedure Act 2011, s 232(4).
5 R v Sungsuwan [2005] NZSC 57, [2006] 1 NZLR 730 at [110].
6 R v Condon [2006] NZSC 62, [2007] 1 NZLR 300 at [78].
7 At [78]; citing Randall v R [2002] UKPC 19, [2002] 1 WLR 2237 at [28].
8 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [16].
[25] The courts have also warned of the limitations involved in not seeing or hearing directly from the witnesses.9 An appeal court should only interfere with the factual findings of the trial judge in exceptional circumstances.10
Appeals against sentence
[26] Section 250(2) of the Criminal Procedure Act provides that the court must allow an appeal against sentence if it is satisfied that:
(a)for any reason, there is an error in the sentence imposed on conviction; and
(b)a different sentence should be imposed.
[27] In any other case, the court must dismiss the appeal.11 A sentence may be set aside where it is manifestly excessive.12 Whether a sentence is manifestly excessive depends on the end sentence, not the process by which the sentence was reached. The court will not intervene where the sentence is within range. But, if the court determines the sentence is manifestly excessive, it will form its own view of the appropriate sentence.13
Mr Mahanga’s appeal against conviction
[28] As noted, Mr Mahanga appeals just against the two convictions for receiving. Counsel submits that the Judge erred in determining that his presence in the vehicle was enough to give rise to control over the property stolen in two of the earlier burglaries and, further, the Judge erred in determining that he knew or was reckless as to whether the property was stolen. Mr Mahanga was only one of three occupants in that vehicle, along with Ms Morgan and the driver, Paige Mahanga. He was located in the back of the vehicle with Ms Morgan. The property, in particular, the jewellery, was claimed by Ms Morgan as her own at the time of her arrest.
9 Sullivan v Police HC Auckland CRI-2008-404-152, 2 October 2008 at [30]-[31].
10 Rae v Police HC Hamilton CRI-2006-419-162, 3 May 2007 at [38].
11 Section 250(3).
12 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [33].
13 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482, at [30].
[29] Counsel for Mr Mahanga further submits that it was notable that Ms Morgan was sighted about a month earlier selling jewellery thought to have been stolen and was on the run and unable to be found by the police.
[30] Counsel also submits that the Judge placed too much reliance on comments made by Mr Mahanga while he was in custody. As to the recorded telephone calls, counsel acknowledged that these showed evidence of perverting the course of justice, but said they did not assist in determining whether Mr Mahanga had control of the property, nor whether he had the requisite knowledge or recklessness.
Appeal against sentence
[31] In the sentence decision the Judge sentenced Mr Mahanga to three and a half years imprisonment. That sentence was reached by adopting an 18 month starting point for the burglary, an uplift of three months for the receiving and obstruction charges, a further three months uplift for the appellant’s history and a further two years imprisonment for perverting the course of justice.
[32] The Judge calculated that to be a sentence of four and a half years imprisonment. However, it would appear the four elements of the sentence total four years imprisonment, rather than four and a half years. The Judge then discounted the sentence by a year to account for the totality principle, leaving an end sentence of three and a half years imprisonment.
[33] Counsel submits that the arithmetical error in this case is significant as the Judge had intended to discount a 54 month sentence by 12 months to account for the totality principle. In reality, a 48 month sentence was discounted by only six months. If the Judge had intended to account for the totality principle by reducing the sentence by 12 months, a proper end sentence for Mr Mahanga would have been three years imprisonment.
Discussion
[34] The prosecution case was, of course, that Mr Mahanga was the actual burglar in the three earlier burglaries as well as the last burglary. Mr Mahanga was in
possession of a white HTC mobile phone on arrest. The police obtained polling data for the phone, which indicated that the phone was active in the vicinity and at the time of the burglaries in Kiripatea Road, Whangarei on 26 March 2017, Longford Park Drive, Auckland on 16 April 2017 and Brighton Road, Whangarei on 19 April 2017 (the last burglary). There was no data available for the white HTC phone in respect of the first burglary at Old Onerahi Road, Whangarei on 16 March 2017. However, a black Samsung phone which was used by both Mr Mahanga and Ms Morgan was shown as active in the vicinity and at the time of that burglary too.
[35] There were also a number of similarities between the burglaries. The victims were all elderly, aged 64, 75, 84 and 83. They were all at home at the time. The burglaries occurred in the day time. Entry was gained through an open or insecure door. In each case jewellery, bank cards or cash were stolen, usually from a bedroom. Similarities between the burglaries pointed to the burglar being the same person following a distinctive modus operandi. Jewellery and other items from three of the burglaries were also recovered from the vehicle in which Mr Mahanga was arrested on 19 April 2017.
[36] Then, after his arrest, Mr Mahanga’s telephone calls were recorded. He obviously knew they were being recorded and spoke with Ms Morgan in coded and cautious language. He referred on a number of occasions to chocolates or lollies, which was obviously a reference to the jewellery found in the vehicle. It is also reasonably clear that he told Ms Morgan of his plan to have Mr Blyth falsely tell the Police that the jewellery found in the vehicle was his.
[37] In those circumstances, although the Judge found that the Police had not proven beyond reasonable doubt that Mr Mahanga was the burglar on the first three occasions, he was entitled to infer that Mr Mahanga must have known that the jewellery was in the vehicle and that he had possession of it, perhaps jointly with Ms Morgan, knowing that it had been stolen or being reckless whether it had been stolen. After all, he had not long before stolen jewellery from a private dwelling house and stashed it in the very same vehicle in which jewellery from two earlier burglaries was also stashed. Furthermore, Mr Mahanga tried to arrange for someone else to take
responsibility for the jewellery. This clearly showed his knowledge of the stolen jewellery and his ability to deal with it as his own.
[38] In my view, there was more than sufficient circumstantial evidence for the Judge to find Mr Mahanga guilty of receiving the jewellery stolen in two of the earlier burglaries. The appeal against conviction must be dismissed.
[39] As to the appeal against sentence, it seems that the Judge did make an arithmetical error in calculating the sentence. He adopted a starting point of 18 months imprisonment for the burglary charge, which he uplifted by three months for the receiving charges and the obstruction charge to which Mr Mahanga had pleaded guilty. Then he uplifted it by a further three months on account of Mr Mahanga’s previous conviction. This led to a starting point of two years imprisonment for the burglary charge.
[40] The Judge then considered that a cumulative sentence of two years imprisonment would be appropriate for the charge of attempting to pervert the course of justice. The Judge added the sentences together, but mistakenly said that resulted in a total sentence of four and a half years imprisonment, rather than the correct total of four years imprisonment.
[41] From the total of four and half years imprisonment, the Judge reduced Mr Mahanga’s sentence to one of three and a half years imprisonment to take account of the totality principle, that is, the principle that a cumulative sentence that outweighs the overall criminality of the offending should not be imposed.
[42] In the present case, although the Judge said that he did not think that a sentence of four and a half years imprisonment was particularly excessive, he did reduce what he expressed to be a sentence of four and a half years imprisonment by one year to reach a final sentence of three and a half years imprisonment.
[43] In those circumstances, I am of the view that the reduction of one year should be maintained, but from a starting point of four years imprisonment, which the Judge considered to be appropriate. If charged separately, the Judge thought the appropriate
starting point for the burglary charge was 18 months imprisonment and a starting point for the charge of attempting to pervert the course of justice was two years imprisonment. Added together that is three and a half years imprisonment. Looked at in that light, a total sentence of three years imprisonment gives due recognition to the totality principle.
[44] Accordingly, I am of the view that the appeal against sentence should be allowed and the two year sentence of imprisonment on the charge of attempting to pervert the course of justice should be quashed and replaced by one of 18 months imprisonment. All other sentences are to remain such that the overall sentence is reduced from three and a half years imprisonment to one of three years imprisonment.
Result
[45]The appeal against conviction is dismissed.
[46] The appeal against the sentence of two years imprisonment on the charge of attempting to pervert the course of justice is allowed. The sentence is quashed and replaced by one of 18 months imprisonment, which is cumulative on the sentence of 18 months imprisonment on the charge of burglary, making the overall sentence one of three years imprisonment. All other sentences remain the same.
Woolford J
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