Mahanga v The Queen - [2018] NZHC 3441

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2018-404-000305

[2018] NZHC 3441

BETWEEN
LENORA MAHANGA

Appellant

AND

THE QUEEN

Respondent

Hearing: 27 November 2018

Appearances:

Asishna Prasad for the Appellant

David Johnstone and Benjamin Mugisho for the Respondent

Judgment:

20 December 2018

JUDGMENT OF MOORE J

[Appeal against sentence]

This judgment was delivered by me on 20 December 2018 at 3:30 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar Date:

LENORA MAHANGA v R [2018] NZHC 3441 [20 December 2018]

Introduction

[1] Ms Mahanga pleaded guilty to and was sentenced on 21 charges, including charges of kidnapping and aggravated robbery. She appeals her sentence of six years and seven months’ imprisonment and the imposition of a minimum period of imprisonment (“MPI”) of 50 per cent.

[2] Ms Mahanga alleges five errors were made by Judge B A Gibson in the course of sentencing:1

(a)the starting point was manifestly excessive;

(b)the Judge failed to exclude portions of the victim impact statement (“VIS”) which went beyond its purpose;

(c)the Judge gave insufficient credit for remorse;

(d)the Judge gave insufficient credit for the guilty plea; and

(e)the Judge erred in imposing an MPI.

[3] Mr Johnstone, for the respondent, responsibly and properly accepted the Judge erred in fixing an overall starting point of nine years and nine months and that this error may have led to the setting of a manifestly excessive end sentence.2

[4] Accordingly, I shall approach this appeal by considering the sentence afresh. This means it is not necessary to address the first ground of appeal other than in the context of determining what the appropriate starting point should be. The remaining grounds will be considered as part of the re-sentencing exercise.

1 R v Mahanga [2018] NZDC 18828.
2 Criminal Procedure Act 2011, s 250(2); Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [32].

Background

[5] Ms Mahanga is 20 years old. Seven of the 21 charges she pleaded guilty to relate to the kidnapping and aggravated robbery of two complainants committed on 3 May 2018. Ms Mahanga was charged as a party to the actions of a number of younger teenagers who were dealt with in the Youth Court.

[6] The facts of the 3 May 2018 offending were helpfully set out by the Judge in his sentencing comments:3

“The lead charges for sentencing are the kidnapping charges as counsel have both accepted and those related to events that occurred in Bowen Avenue, Auckland initially on a Thursday night at about 9.55 pm, from that time onwards, when the owner of a vehicle left her vehicle and returned 20 minutes later to find you and your associates were trying to steal the vehicle. The owner of the vehicle was with another woman. She has read her victim impact report to the Court and clearly, she has been severely affected by what you did that night. In any event, she…

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.

Continue reading Mahanga v The Queen

Details

AGLC: Mahanga v The Queen [2018] NZHC 3441
Case: [2018] NZHC 3441
Decision Date: 20 December 2018

CaseChat Overview and Summary

In the High Court of New Zealand, Ms. Lenora Mahanga appealed against her sentence, which was six years and seven months’ imprisonment, including a minimum period of imprisonment (MPI) of 50 per cent, for her involvement in a kidnapping and aggravated robbery. The appeal was heard by Moore J. Ms. Mahanga argued that there were several errors in her sentencing, including the starting point being manifestly excessive, the judge failing to exclude portions of the victim impact statement (VIS) which went beyond its purpose, insufficient credit for remorse, insufficient credit for the guilty plea, and the imposition of an MPI. The Crown accepted that the starting point was erroneous. The court agreed that the starting point should have been six years’ imprisonment instead of seven years. The court also found that Ms. Mahanga's remorse was genuine and allowed a five per cent discount. The court found that the 15 per cent discount for the guilty plea was appropriate. The court also decided that an MPI was not warranted. The appeal was allowed, and the sentence was reduced to four years and 11 months’ imprisonment without an MPI.

Orders