Mahara v Police - [2016] NZHC 2517

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2016-419-000041 [2016] NZHC 2517

BETWEEN
CHRISTOPHER HEMI MAHARA

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 20 October 2016

Appearances:

G Walsh for the Appellant
T Tran for the Respondent

Judgment:

20 October 2016

ORAL JUDGMENT OF MUIR J

Counsel/Solicitors:
G Walsh, Barrister, Hamilton
T Tran, Crown Solicitor, Hamilton

MAHARA v NEW ZEALAND POLICE [2016] NZHC 2517 [20 October 2016]

[1] Mr Christopher Mahara appeals a sentence of two years and six months’ imprisonment imposed on him by Judge MLSF Burnett in the District Court for a number of offences which were sentenced simultaneously. He had pleaded guilty to each of them. Such offences were:

(a) Driving whilst disqualified (third or subsequent) of which there were two;

(b) Possession of an offensive weapon (a ball and chain and a machete); (c) Contravention of a protection order;
(d) Threatening to kill;

(e) Possession of a methamphetamine utensil;1 and

(f) Assault with intent to injure.

[2] Although the District Court Judge did not identify a specific lead charge, that of threatening to kill was the charge which, by a considerable margin, attracted the longest maximum sentence (seven years).2

Factual background

[3] Three distinct groups of offences were before the Court. The first offence for which the appellant was sentenced related to his apprehension on 27 August 2015 while driving a motor vehicle in Ngaruawahia. He was at that time disqualified from driving to which he admitted. In the result, he was charged with an offence of driving whilst disqualified, third or subsequent. I note at this stage that prior to that
event he had 10 former convictions for driving whilst disqualified.

1 The District Court judgment refers to possession of methamphetamine for which a maximum sentence of a of six months’ imprisonment applies, however, I was referred to the relevant charging document which was in relation to possession of utensils for which a 12 month maximum period of imprisonment applies.
2 Crimes Act 1961, s 306.

[4] The most serious offending occurred on 8 February 2016 at 1.30 am. At that time the appellant and two unknown associates arrived at the victim’s home. The victim is the former partner of Mr Mahara, with whom he had an approximately
14 year relationship. She has four children.

[5] On 18 May 2011 a final protection order had issued in her favour and that of her children.

[6] The summary of facts noted that, upon arriving at the victim’s home, the defendant asked if he could come inside. When, unsurprisingly he was told “no” he became angry and yelled, “Do you want me to drive this car through the gate, smash into your car and smash your car through the house?” The victim at that stage locked the front door and tried to call the police from inside the house.

[7] The appellant then drove through the closed gate of the property before exiting his vehicle and approaching the front door. He yelled to the victim from…

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: [2016] NZHC 2517
Decision Date: 20 October 2016

CaseChat Overview and Summary

In this case, the appellant, Christopher Hemi Mahara, appealed a sentence of two years and six months’ imprisonment imposed by the District Court for various serious criminal offences. These offences included driving whilst disqualified, possession of an offensive weapon, contravention of a protection order, threatening to kill, possession of a methamphetamine utensil, and assault with intent to injure. The appellant had pleaded guilty to all charges. The High Court was required to determine whether the District Court's sentence was manifestly excessive or contained any error warranting a different sentence.

The Court examined the nature and severity of the appellant's criminal history and the specific circumstances of the offences. The Court noted the appellant's extensive criminal record, which included multiple instances of driving whilst disqualified and a history of substance abuse. The most severe incident involved the appellant threatening to kill his former partner, breaking into her home, and assaulting her. The Court considered these acts to have "terrifying features" and acknowledged the significant terror and ordeal the victim endured. The Court also considered the appellant's lack of remorse and his unwillingness to seek treatment for his substance abuse issues.

In assessing the appeal, the Court focused on the overall sentence rather than the individual uplifts and starting points. It compared the appellant's case to previous cases with similar charges and circumstances. The Court concluded that the District Court's sentence, while stern, was not manifestly excessive and appropriately reflected the seriousness of the appellant's offending. The Court found that the totality of the uplifts, cumulatively 16 months, was justified given the appellant's extensive criminal history and the severity of the offences.

The Court dismissed the appeal, confirming the original sentence imposed by the District Court. The Court emphasised the need for strong denunciation of such serious criminal behaviour, particularly in cases involving domestic violence and threats to kill.

Orders