Mahanga v Police
[2015] NZHC 2216
•15 September 2015
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2015-404-000157 [2015] NZHC 2216
IN THE MATTER OF an appeal against sentence BETWEEN
TRAVIS SYDNEY MICHAEL MAHANGA
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 14 September 2015 Appearances:
T S M Mahanga (Self-represented Appellant) in Person
T J McGuigan for the RespondentJudgment:
15 September 2015
JUDGMENT OF EDWARDS J
This judgment was delivered by Justice Edwards on 15 September 2015 at 12.45 pm, pursuant to
r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Date:
Solicitors: Meredith Connell, Auckland
Copy To: T S M Mahanga, Auckland
MAHANGA v POLICE [2015] NZHC 2216 [15 September 2015]
Introduction
[1] On 27 May 2015, Mr Mahanga was sentenced to two years one month imprisonment at the Auckland District Court. He had pleaded guilty to one charge of unlawfully being in an enclosed yard, and two charges each of obtaining a document, using a document, and driving while suspended.
[2] Mr Mahanga appeals against sentence on the basis that the start point adopted by the sentencing Judge was too high, and personal mitigating factors were not adequately taken into account.
[3] The Crown submits that the start point was in range (albeit stern), and the end sentence was not manifestly excessive.
Background
[4] Mr Mahanga is 34 years old. He was self-represented, having been denied legal aid. At callover he struck Woolford J as an articulate and intelligent individual and I share that view.
[5] His present charges arise out of a police sting codenamed Operation Bean. The updated summary1 says that between 16 October 2013 and 10 February 2014, Mr Mahanga with three co-offenders formed a “syndicate”, in which they agreed to obtain bank cards from the elderly and use them in fraudulent transactions. The offenders would withdraw funds from bank accounts and make purchases at various retail stores. The summary records that the group stole approximately $55,000 in
total, for the most part from elderly victims. Mr Mahanga disputes this figure saying it is closer to $25,000, and of that amount, his co-offenders benefited more than him.
[6] All the co-offenders, including Mr Mahanga, applied for and received a sentence indication on 11 November 2013. The Judge indicated a start point of three
years nine months’ imprisonment, subject to a full guilty plea discount and discounts
1 There are two caption summaries on file. Mr Mahanga pleaded guilty to an earlier version, but it was subsequently amended to clarify the circumstances relating to the charge of unlawfully being in an enclosed yard. He was sentenced on this updated summary.
for personal mitigating factors. The indication was accepted by two co-offenders. The third offender declined the sentence indication but pleaded guilty to a number of charges with other charges subsequently dropped.
[7] The end sentences imposed on the three co-offenders were two years nine months, two years eight months, and 18 months respectively. Two of the offenders received discounts for remorse of one month and two months respectively. Mr Mahanga claims he should also have received a discount for remorse.
[8] Initially the defendants were all charged with participation in an organised criminal group. That charge was subsequently dropped, but the “syndicate” description in the summary of facts remained. In his written submissions, Mr Mahanga challenged this “syndicate” description, and claims he instructed counsel to remove the reference from the summary of facts, but counsel did not do so. Mr Mahanga signed the summary of facts containing the syndicate reference. There was a subsequent amendment made to that summary by his counsel, but the syndicate reference remained. Mr Mahanga pleaded guilty on the basis of the amended summary containing the syndicate reference.
[9] The “syndicate” description has relevance because Mr Mahanga’s offending, seen independently from his co-offenders’, is relatively low in seriousness when viewed in isolation but more serious when seen in context. In oral submissions, Mr Mahanga sought to minimise his involvement with the offending further by pointing out that he was in prison in October 2013 and January 2014 when some of the offending occurred.
[10] The Crown does not specify Mr Mahanga’s role in the offending in respect to
each charge, but the following can be discerned from the summary of facts.
[11] First, Mr Mahanga was unlawfully in an enclosed yard when he was spotted on 17 January 2014 in the back garden of a home within a retirement village. Ms Morgan, a co-defendant, was eventually charged with burglary for stealing bank
cards and $200 cash on the same night from that home. The maximum penalty of
imprisonment for this offending is three months’ imprisonment.2
[12] Second, Mr Mahanga on 31 December 2013 obtained possession of a Westpac debit card belonging to an 87 year old retiree. That card had been stolen from the retiree’s home in a retirement village the night before. Mr Mahanga used the debit card to put $20 on his mobile phone. There were 13 other unauthorised transactions and in total $556 stolen using the card. Putting aside the phone top-up, Mr Mahanga was not directly tied to any of the other transactions, except being present in a car at a Z Energy petrol station where two co-offenders spent $67. The
maximum penalty for this offending is seven years’ imprisonment.3
[13] Third, Mr Mahanga on 1 January 2014 obtained possession of two BNZ bank cards that belonged to a 78 year old female. Her house had been burgled the night before and her handbag stolen. On the morning of 1 January 2014, she received a phone call from Mr Mahanga’s mobile phone. An unknown male claimed he was calling from BNZ security and required the PIN to her cards. She refused to give him her PIN. Later that morning, Mr Mahanga was sighted on CCTV footage attempting to make a $1,500 cash withdrawal using one of the cards at an ATM. Again, the maximum penalty for this offending is seven years’ imprisonment.
[14] Fourth, Mr Mahanga drove while disqualified (third or subsequent) and drove while suspended (third or subsequent). It would appear from the sentencing notes that Mr Mahanga drove once in November 2013 and once in December 2013 when he was suspended from driving. The maximum penalty for that offending is two years’ imprisonment or a fine not exceeding $6,000, and a disqualification from
driving for a term not less than one year.4
[15] Mr Mahanga has 62 previous convictions, 39 of which relate to either dishonesty or traffic offending.
2 Summary Offences Act 1981, s 29(1)(b).
3 Crimes Act 1961, s 228.
4 Land Transport Act 1998, s 32(4).
District Court sentencing
[16] Mr Mahanga appeared for sentence on 27 May 2015 in front of Judge Blackie. The Judge recalled his previous sentence indication of a start point of three years nine months’ imprisonment, but acknowledged that was in respect of more serious charges (such as one of burglary). Accordingly he heard revised submissions. The Crown submitted that the appropriate start point for the dishonesty offending was two years’ imprisonment but sought a further eight months for Mr Mahanga’s previous convictions and six months for the driving charges. Counsel for Mr Mahanga argued that a start point in the vicinity of 18 months would be appropriate, but otherwise agreed with the Crown’s assessment of uplifts for the previous convictions and driving charges.
[17] Judge Blackie settled on a start point of two years’ imprisonment. He uplifted by six months to account for previous convictions, and three months for the driving charges. The total of two years nine months was reduced by 25 per cent to reflect Mr Mahanga’s guilty plea. Mr Mahanga was also disqualified from holding a driving licence for 15 months from the date of sentence.
Approach to appeal
[18] Section 250 of the Criminal Procedure Act 2011 states that an appeal against sentence must be allowed if the Court is satisfied that there is an error in the sentence imposed on conviction and a different sentence should be imposed. In any other case, the Court must dismiss the appeal.5
[19] An appeal will be successful only if the appellant can point to an error, either intrinsic to the Judge’s reasoning or as a result of additional material submitted on appeal, which vitiates the sentencing decision of the court below.6
[20] The Court will not intervene in circumstances where the end sentence is within the acceptable range having regard to the principles and purposes of the
Sentencing Act 2002.7 The focus is on the total sentence and the overall criminality reflected in that sentence.8
[21] To ascertain whether the sentence imposed is manifestly excessive I have undertaken the sentencing afresh. I do so in light of the sentencing purposes and principles set out in the Sentencing Act 2002, of which denunciation, deterrence and the need to hold Mr Mahanga to account are key sentencing considerations in this case.
Start point
[22] Mr Mahanga submits the start point is too high and the end sentence therefore excessive compared to other cases. He refers in particular to the description of the group as a “syndicate” in the summary of facts; the claim that the amount taken was closer to $25,000 and not $55,000 as stated; and that he cannot be said to have shared in this sum in any respect having been in prison for at least some of the time when the offending occurred. In his written submissions, Mr Mahanga complained that his counsel had not removed the reference to a “syndicate” from the summary of facts as instructed. That was not pressed in oral submissions before me and there is no separate ground of appeal based on counsel incompetence. As previously stated, Mr Mahanga signed a summary containing the syndicate reference.
[23] The Crown says there is no evidence to suggest the amount taken was less than $55,000; that Mr Mahanga was only in prison for a short period of time in October 2013 and January 2014 and could still have benefited from the offending; and that the Judge was entitled to draw the inference that Mr Mahanga had benefited to a significantly greater degree than the $20 used to top up his mobile phone.
[24] The Crown has referred to three cases in support of their submission that the starting point was within range:
(a) In Turner v R, a starting point of 18 months’ imprisonment was adopted for using the bank card of a 72 year old man where the total amount taken was approximately $5,000.9
(b)In Edwards v Police, the value of the loss was $6,344.31, and a starting point of 12 months’ imprisonment was adopted. An uplift of
12 months’ imprisonment was applied to reflect criminal history. On appeal, Heath J said the starting point was too low and could easily have been 18 months’ imprisonment.10
(c) In Tiopira v Police, Lang J noted that where an offender has made multiple use of stolen credit cards or cheques, a starting point of around 12 to 18 months’ imprisonment would be appropriate where the offending results in losses of around $2,000 to $3,000.11
[25] I agree with the Crown that it was open to the Judge to infer that Mr Mahanga benefited from the overall offending by the syndicate. However, the degree to which Mr Mahanga benefitted from that offending is uncertain. In my view that uncertainty needs to be taken into account in fixing a start point. I consider a start point of 18 months’ imprisonment to be more appropriate in all the circumstances.
Personal aggravating factors
[26] The Crown records that Mr Mahanga has 62 previous convictions, 39 which relate to dishonesty or traffic offences. Judge Blackie allowed a six month uplift for Mr Mahanga’s previous convictions.
[27] I agree with the Crown that this uplift was at the lower end of the range and could have been much greater. I also note that Judge Blackie could have adopted a further uplift for the fact that Mr Mahanga’s offending occurred whilst he was on
bail for unlawfully taking a motor vehicle, but he chose not to do so.
9 Turner v R, above n 8.
10 Edwards v Police [2012] NZHC 737 at [11].
[28] I consider an uplift of 12 months for the prior convictions and three months for the driving offences would have been warranted in this case.
[29] The adoption of a lower start point, but higher uplift for aggravating features, results in the same overall sentence adopted by Judge Blackie before adjustment for personal mitigating features.
Personal mitigating factors
[30] Mr Mahanga makes the point that he did not receive a discount for remorse, unlike two of his co-offenders who received one month and two month discounts respectively. Mr Mahanga refers to two letters of remorse and certificates of rehabilitation. Unfortunately, the letters of remorse are not on the file. Mr McGuigan on behalf of the Crown confirms that they were handed up to Judge Blackie on sentencing and so were before him at the time.
[31] Mr Mahanga handed up additional correspondence at the hearing reflecting personal efforts he has made to secure a place on the Salvation Army Bridge Programme. He points out that this has been all of his own initiative as he says there is little opportunity for rehabilitation in prison. Mr Mahanga is motivated to gain custody of his son who is currently in the care of Child Youth and Family. His efforts to improve himself are commendable and are to be encouraged.
[32] The Crown submits that all relevant material was in front of the Judge, and he presumably chose not to discount Mr Mahanga’s sentence in this way. The Crown also urges against changes that may amount to mere tinkering. It refers to the full discount of 25 per cent for Mr Mahanga’s guilty plea as incorporating any possible remorse discount.
[33] This issue is a difficult one for me to assess as Judge Blackie makes no reference to remorse factors in his sentencing notes at all and I have not seen the two letters of remorse referred to by Mr Mahanga. However, given the discounts given to his co-offenders, I consider it likely that Mr Mahanga would also have received a discount for remorse and that the Judge simply overlooked it in his sentencing.
[34] However, such a discount is unlikely to have been much more than one month (being just short of a five per cent discount). Overall, I consider it would be tinkering to adjust downwards Mr Mahanga’s sentence in the vicinity of only one or at most two months. The focus remains on the end sentence imposed. Considering matters in the round, I do not think a discount for remorse would have affected the end sentence in any substantive way.
[35] In summary, I do not think the sentence was manifestly excessive. Judge Blackie did not make an error sufficient to justify correction on appeal.
Correction of prison release date
[36] Mr Mahanga also submits that his prison release date is incorrectly recorded by the prison as 12 April 2016, when it should in fact be 12 February 2016. That is because he says he was remanded in custody on 28 January 2014 in relation to the traffic offences.
[37] The Crown has made enquiries but has been unable to clarify the situation for Mr Mahanga. This is not an issue which I am able to deal with on an appeal from sentence. Mr Mahanga will need to follow up with the relevant authorities to ensure that his release date is correctly recorded.
Result
[38] The appeal is dismissed.
Edwards J
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