Mahanga v The Queen
[2018] NZHC 3441
•20 December 2018
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 yelled at you and your other co-offenders in an attempt to scare you off. That did not have the desired effect because one of your co-offenders, a 15-year-old male, approached her and punched her in the cheek with a closed fist knocking her to the ground and then punched her five times while she was lying on the ground. Car keys were taken from her. Her friend tried to run for help but she was tackled to the ground by another one of your associates, a 14-year-old female, and she tried to take an iPhone from that person as the complainant in that matter was trying to phone. The phone was smashed when she would not hand it over.
The offending continued. One of the male associates told the complainants he had a knife and then produced a screwdriver from another of your co-offenders and held that screwdriver to a complainant's throat and threatened to stab her if she did not hand over the car keys. They were handed over. Her wallet was stolen but the car was unable to be started, so you and your associates forced the two complainants to go with you in the search of another car to steal. A screwdriver was held to a complainant's back and they were told that they would be stabbed if they called out for help. The complainants were walked around the city centre and Parnell for about one and a half hours covering approximately 2.7 kilometres with both complainants being held captive by you and your group.
There were continued threats to kill and stab the complainants and the summary of facts to which you pleaded guilty notes that you appeared to be helping the complainants by encouraging them to run away but, when they refused, fearing they would be stabbed, you laughed at them and slapped them across the face. You then searched the complainants, under their bras, and put your bare hands onto their breasts in an attempt to locate items to steal. This carried on until the group, including the two captives, reached Parnell where a Mazda motor vehicle was stolen. The complainants were forced into the boot of the vehicle and driven away. You and your associates were in the
3 R v Mahanga, above n 1, at [6]-[9].
vehicle as well. There were continual threats to kill them and the summary of facts to which you have pleaded guilty noted that you and your associates spoke to each other about driving to Gisborne or Tauranga and abandoning the car with the complainants' bodies in the boot. No doubt the complainants were terrified, and you heard the victim impact report and I have read the other victim impact report, and I can understand both complainants were in fear of their lives. In fact, had the vehicle not been crashed then it is very likely that far more serious charges would have been laid having regard to the way this incident was developing.
One of the complainant's suffered a swollen dislocated jaw from being punched in the face and bruising on her back from the car crash. The other complainant had a broken collarbone and bruising from the crash. That is only the physical injuries. Both complainants, the summary of facts records, as does the victim impact reports records, were extremely traumatised by the entire incident which lasted for about three hours. On any view of the matter this was an appalling incident.”
[7] Arising out of that offending Ms Mahanga was charged with and pleaded guilty to two charges of kidnapping,4 two charges of aggravated robbery,5 two charges of unlawfully taking a motor vehicle6 and unlawfully interfering with a motor vehicle (“the Crown charges”).7
[8] The remaining 14 charges covered unrelated and more minor offending committed in Whangārei and Auckland both before and after the principal offending on 3 May 2018. Much of that offending was committed while Ms Mahanga was on bail. The Judge, in my view, rightly described Ms Mahanga as being on “a mini crime wave, even before the events of 3 May 2018”. Details of the 14 charges follow:
(a)one charge of unlawfully taking a motor vehicle;8
(b)three charges of unlawfully getting into a motor vehicle;9
(c)two charges of wilful trespass;10
4 Crimes Act 1961, s 209(b). Maximum penalty 14 years’ imprisonment.
5 Section 235(b). Maximum penalty 14 years’ imprisonment.
6 Section 226(1). Maximum penalty seven years’ imprisonment.
7 Section 226(2). Maximum penalty two years’ imprisonment.
8 Section 226(1). Maximum penalty seven years’ imprisonment.
9 Section 226(2). Maximum penalty two years’ imprisonment.
10 Trespass Act 1980, s 4. Maximum penalty three months’ imprisonment or a fine not exceeding
$1,000.
(d)two charges of theft under $500;11
(e)one charge of attempting to pervert the course of justice;12
(f)one charge of demanding with menaces;13
(g)two charges of failing to answer District Court bail;14
(h)one charge of driving with excess breath alcohol;15 and
(i)one charge of dangerous driving.16
Analysis of the sentence imposed
[9] In reaching an end sentence of six years and seven months’ imprisonment the Judge adopted the following methodology:
(a)a starting point of seven years’ imprisonment on the kidnapping charges with an uplift of 12 months for totality, resulting in a total starting point of eight years’ imprisonment in respect of the Crown charges;
(b)an uplift of 18 months’ imprisonment on account of all the remaining charges;
(c)a further uplift of three months to reflect the offending was committed while Ms Mahanga was on bail, resulting in a global starting point of nine years and nine months’ imprisonment;
(d)a 20 per cent (two year) discount to reflect Ms Mahanga’s youth;
11 Crimes Act 1961, s 223(d). Maximum penalty three months’ imprisonment.
12 Section 116. Maximum penalty seven years’ imprisonment.
13 Section 239(2). Maximum penalty seven years’ imprisonment.
14 Bail Act 2000, s 38. Maximum penalty one year’s imprisonment or a fine not exceeding $2,000.
15 Land Transport Act 1998, s 56. Maximum penalty three months’ imprisonment or a fine not exceeding $4,500.
16 Section 35(1)(b). Maximum penalty three months’ imprisonment or a fine not exceeding $4,500.
(e)a 15 per cent (14 month) discount to reflect Ms Mahanga’s early guilty pleas; and
(f)an MPI of 50 per cent (equivalent to three years and three and a half months’ imprisonment).
[10]I turn now to consider the appropriate starting point.
Starting point
[11] The Judge identified kidnapping as the lead charge. He noted as aggravating factors the use of weapons, actual and threatened violence, attacks to the head of one of the victims and vulnerability (given there were five attackers and the victims were restrained).
[12] He then drew comparisons with R v Wyatt17 and R v Taikato18 where starting points of seven years and three months and six and a half years respectively were adopted. When comparing the facts of those cases with the present, the Judge concluded that the Crown’s suggested starting point of five to five and a half years was inadequate. Instead, he adopted a starting point of seven years for the kidnapping charge before uplifting for the remaining charges.
[13] As noted, Mr Johnstone accepted the Judge’s error was that the starting points he relied on in Wyatt and Taikato reflected the totality of the offending rather than the lead charge. However, both cases provide assistance in determining what the correct starting point should be.
[14] In Wyatt, the appellant and a co-offender approached the victim in the early hours of a morning. The appellant placed a knife on the victim’s throat and told him to get in a vehicle. The victim was then forced to drive them from Hamilton to Cambridge, while being threatened by the appellant. The victim was then forced to share his eftpos card PIN number with the offenders, who pushed him into the boot of the vehicle and told him they would kill him if he made a noise. The appellant then
17 R v Wyatt [2009] NZCA 464.
18 R v Taikato [2018] NZHC 77.
drove to Cambridge and withdrew money from the victim’s account. The car was then driven to Raglan. En route, the appellant pulled over, and along with his co-offender removed the victim from the boot and led him up a walkway. The victim believed he was going to be killed. Instead he was pushed down a slope into the bush, while his hands and legs were bound. The Court of Appeal endorsed a starting point of seven years’ imprisonment, which was uplifted to nine years to reflect the appellant’s previous convictions, and the fact the offending had taken place while subject to an extended supervision order.
[15] In Taikato, the appellant approached the victims carrying a firearm, who were sitting in a car outside McDonald’s. He pointed it at the driver. He told them to hand over their cash and everything they had. One passenger tried to get out, but was punched in the head by the appellant. The appellant told the driver to begin driving. One victim managed to escape, but two remained in the car. The appellant demanded money, and made the victims drive him to various ATMs. When one victim produced a receipt showing he had no money, he was punched. He said he had money at his home. During the trip to the victim’s home he was punched a number of times. Realising there might be people at the address, the appellant instructed the driver to turn around. He said they were going for their “last ride”. After being ordered to empty their pockets, the appellant told the victims to drive up a remote rural road, get out and walk away. The appellant drove the car at the victims, causing them to jump to avoid being hit. A starting point of six years and six months’ imprisonment was adopted.
[16] R v Hewitt was also referred to by the Judge. There a starting point of five years and six months’ imprisonment was adopted.19 The Court of Appeal has since allowed Mr Hewitt’s appeal against sentence.20 It found a starting point of no more than five years should have been adopted. In Hewitt the appellant opened the door to the victim’s car, got in and asked her where her money and gold was. After emptying the contents of her handbag, the appellant told her to continue driving. He held her forcefully by the hair and ran a knife up and down her arm as she drove. He then forced the victim to drive into a side street where he demanded, under threat that he
19 R v Hewitt [2017] NZHC 1220.
20 Hewitt v R [2018] NZCA 374.
would cut her fingers off, that she hand over her rings. He then punched her in the face, pushed her out of the car, and drove off.
[17] The last case referred to by the Judge was R v Geros.21 Mr Geros and four associates approached a parked car with two male occupants, and told them to hand over their money and cellphones. When they refused, they reached into the vehicle and removed the cellphone and sweatshirt belonging to one of the victims. This prompted the other victim to hand over his cash, a cellphone, jacket and shoes. Under threats of violence the group then demanded that the victims drive them to an address. They complied. At one point in the journey, Mr Geros forced a victim to get out of the driver’s seat. He was placed in the boot with a pitbull dog. They then forced the victims to withdraw cash from an ATM. After the car broke down, they directed the victims to walk in front of them. The victims eventually escaped. A starting point of four years’ imprisonment was adopted.
Analysis
[18] I agree with Mr Johnstone that Geros is readily distinguished. Unlike the present, it lacks the significantly aggravating element of actual violence. But having regard to the facts in Wyatt and Taikato Ms Mahanga’s role in the offending justifies a lower starting point than was adopted in those cases. In those cases the victims were particularly vulnerable and while there were more offenders involved with Ms Mahanga, in Wyatt one of the two assailants was armed with a knife and in Taikato the offender had a rifle.
[19] I also regard it as notable that in the present case the most serious violence was committed by Ms Mahanga’s co-offenders. While I do not trivialise the violence in the form of slaps to the face to one of the victims administered by Ms Mahanga, she was not the offender armed with the screw driver. Neither was she the one who threatened to stab the victims with a knife. That necessarily means that her culpability must sit at a lower level than that of her co-offenders, a factor which must be taken into account in assessing the appropriate starting point.
21 R v Geros HC Auckland CRI-2006-027-1485, 12 December 2006.
[20] As the Court of Appeal observed in Hewitt and Lang J noted in Taikato, the most comparable category of offending discussed in R v Mako22 is the robbery of taxi drivers. There, starting points in the region of five years’ imprisonment were considered appropriate. Given the injury caused and the number of assailants involved, a starting point of six years or more is appropriate. Had Ms Mahanga played a greater role in the offending a starting point as high as seven years’ imprisonment could have been justified.
[21] In the circumstances I am of the view that a starting point of six years’ imprisonment appropriately reflects the role Ms Mahanga played in what was, on any analysis, a most serious example of kidnapping and aggravated robbery.
Uplifts
[22] Ms Prasad, for Ms Mahanga, responsibly took no issue with the uplift of 18 months’ imprisonment for the remaining 14 charges. I agree with her description that, while stern, this uplift was within the range available. The same can be said for the three-month uplift on the basis the Crown charges relate to offending which was committed while Ms Mahanga was on bail.
Mitigating factors
[23] The Judge declined to apply a discount for remorse. While he read a letter of remorse penned by Ms Mahanga he considered that, in the light of the pre-sentence report, Ms Mahanga had not exhibited genuine or sincere remorse. He did, however, allow a 20 per cent discount on account of Ms Mahanga’s youth.
[24] Ms Prasad submitted a discrete discount for remorse was warranted. She pointed out the Judge’s comments in relation to the pre-sentence report were not, in fact, correct. The report records that Ms Mahanga expressed remorse and regret. Furthermore, she had written letters of apology to the victims and to the Court.
22 R v Mako [2000] 2 NZLR 170 (CA) at [57].
[25] On the issue of a separate and discrete discount for remorse, beyond that which may be implicit in a plea of guilty, the Supreme Court in Hessell v R observed:23
“Remorse is not necessarily shown simply by pleading guilty. Sentencing judges are very much aware that remorse may well be no more than self pity of an accused for his or her predicament and will properly be sceptical about unsubstantiated claims that an offender is genuinely remorseful. But a proper and robust evaluation of all the circumstances may demonstrate a defendant's remorse. Where remorse is shown by the defendant in such a way, sentencing credit should properly be given separately from that for the plea.”
[26] Having read Ms Mahanga’s letter, combined with the observations of the author of the pre-sentence report, I am satisfied that the expressions of remorse go beyond mere self-pity or are self-serving and insincere. In these circumstances I am willing to apply a modest discount of five per cent.
Guilty plea
[27] At sentencing the Crown submitted a 20 per cent discount was appropriate for Ms Mahanga’s guilty pleas. The Judge determined that such a discount was “too much”. Instead he applied a discount of 15 per cent.
[28] As he noted, guilty pleas were not entered until 18 July 2018, in other words over two months after Ms Mahanga first appeared on the Crown charges. She pleaded guilty on her ninth appearance. Moreover, she did not plead early to the other 14 more minor charges. For these reasons I agree that a discount of 15 per cent was within the range available to the Judge based on his assessment of the circumstances which underpinned the entry of Ms Mahanga’s pleas of guilty.
End sentence
[29] Factoring in those discounts, on a starting point of six years, I have arrived at an end sentence of four years and 11 months’ imprisonment.
23 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [64].
Victim impact statements
[30] I deal with this ground separately because it does not logically fall for consideration under any of the other issues already discussed.
[31] Ms Prasad submitted that the VIS contained extraneous, irrelevant and pejorative material contrary to the obligations on the Crown to exclude such material and the failure of the Judge to rectify the objections of defence counsel. Ms Prasad submitted that after she raised her concerns with the Judge, he indicated he would deal with the matter but did not address the question in his sentencing notes. Ms Prasad pointed to the Court of Appeal’s observations that it is important the Court corrects wrongly included material in a VIS to avoid any appearance of judicial endorsement.24
[32] Mr Johnstone accepted there was material in one of the VIS which went beyond the bounds of what should be properly included. However, as he pointed out, not only did the Judge indicate that, “he would deal with the matter”, but he also said he would not take the objectional material into account. It is plain from his sentencing notes that he put these extraneous matters to one side and considered only the relevant material, because the only reference he made to the VIS was for the legitimate purpose of setting out the impact the offending had on the victims.
[33] I agree with Mr Johnstone that there was no “judicial endorsement of irrelevant material”, as any irregularity regarding the VIS had no impact on sentencing.
[34] However, this is a timely reminder to all prosecutors of their obligations under the Victims Right Act 2002. As Hammond J set out in Sargeant v Police, VIS serve at least four purposes.25 First, in a general way they are intended to assist the Court with further information. Secondly, they provide information about the effect of a crime on a victim and thereby help to balance the information in any probation service report on the offender. Thirdly, by this means the victim is given input into the administration of justice; a form of catharsis which may aid in the healing process. And also, it assists the Court in seeing things through the victim’s eyes. Fourthly, by
24 R v H [2009] NZCA 77 at [32].
25 Sargeant v Police (1997) 15 CRNZ 454 (HC) at 456.
the means of the VIS, the offender is forced to recognise what he or she has done which may advance the rehabilitative process and prevent further offending.
[35] In R v Burns Chambers J identified a number of defects in the VIS before him.26 One contained an unqualified and emotive opinion about the defendant’s psychological state, in another a victim expressed a desire to harm the defendant, two further VIS contained opinions as to penalty, and one contained an opinion about defence counsel.27 As he found, VIS which tender emotive advice to the Court about sentencing,28 or which are otherwise not factual and relevant, will hinder and not help the sentencing Judge and risk unconsciously affecting the Judge.29 It is the duty of all prosecutors to ensure that VIS do not contain extraneous, irrelevant or inflammatory material which does not assist the Court in the difficult task of sentencing offenders.
Minimum period of imprisonment
[36] The Judge imposed an MPI of 50 per cent, noting “I would normally have set two thirds for this type of offending but having regard to the fact that you are 20 years of age, I set one half”.30 At the sentencing, the Crown did not seek an MPI. The Judge did not indicate he was considering one. The Crown and defence agreed this was an error, albeit the Crown submitted before me an MPI is nevertheless appropriate.
[37] It is not clear an MPI is warranted. Without the imposition of an MPI under s 86 of the Sentencing Act 2002, Ms Mahanga will be eligible for parole after the completion of one third of her sentence, or about 20 months’ imprisonment. I am satisfied that period will be sufficient to hold her accountable for the harm done, to denounce her conduct, to deter her and others from further offending, and to protect the community. It will be for the Parole Board to decide whether Ms Mahanga should be released after completing one third of her sentence.
26 R v Burns [2001] 2 NZLR 464 (HC).
27 At [18]-[24].
28 R v Hopkirk (1994) 12 CRNZ 216 (CA) at 219.
29 R v Haddon (1990) 6 CRNZ 508 (CA) at 511.
30 R v Mahanga, above n 1, at [22].
Result
[38] The appeal is allowed and the sentence of six years and seven months’ imprisonment is quashed.
[39]A sentence of four years and 11 months’ imprisonment is substituted.
[40]The imposition of the MPI is quashed.
Moore J
Solicitors:
Ms Prasad, Auckland
Crown Solicitor, Auckland
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