Mahara v Police HC Christchurch CRI-2010-409-000240

[2011] NZHC 990

NOTE: PUBLICATION OF NAME(S) OR IDENTIFYING PARTICULARS OF COMPLAINANT(S) PROHIBITED BY S 139 CRIMINAL JUSTICE ACT

1985.

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2010-409-000240

STEVEN PATRICK MAHARA

Appellant

v

POLICE

Respondent

Hearing:         20 April 2011

(Heard at Gloaming Room, Riccarton Racecourse)

Appearances: G Henderson for Appellant

K Basire for Crown

Judgment:      20 April 2011

ORAL JUDGMENT OF HON JUSTICE FRENCH

[1]      This is an appeal against sentence.

[2]      The appellant was convicted in the District Court of five offences:

male assaults female;

three breaches of protection order;

possession of cannabis;

MAHARA V POLICE HC CHCH CRI-2010-409-000240 20 April 2011

receiving;

theft.

[3]      He had been found guilty of the male assaults female charge following a defended hearing but pleaded guilty to all the other charges.  He was sentenced to an effective total term of imprisonment of two and a half years.

Facts of the offending

[4]      The offending occurred over an 11-month period from November 2009 to October 2010, the first offence being the male assaults female, with the other offending occurring while on bail.

[5]      The victim of the male assaults female charge was a 39 year old female invalid beneficiary.  She is a recovering alcoholic and had known the defendant for about three months before the assault.  The appellant had been staying at the victim’s house.  At 8.45 p.m. on 19 November 2009 the appellant returned to the property, drunk and abusive.  The victim reacted by gently flicking the back of the appellant’s head with her open hand.   The appellant responded by punching her once with a closed fist to the right side of her forehead.  He then continued to slap her around the face before pinning her down on the sofa and holding her robe around her neck.

[6]      He then picked her up from the sofa and walked her into the bedroom and pushed her onto the bed.   He undid his jeans and let them drop to the floor.   He climbed on top of her and pinned her down, so that she was having trouble breathing. While on top of her, he continued to slap her about the head and chest area.  The victim was screaming and tried to make her way to the front door to escape, but the appellant dragged her back and continued to slap her about the head.  He pinned her on the floor and punched her to the face, causing her nose to bleed.

[7]      Neighbours heard the screaming and called the police.   The appellant was arrested soon after.  He denied assaulting the victim.

[8]      As  a  result  of  the  attack  the  victim  suffered  a  significant  lump  on  her forehead, a bleeding nose, tenderness around the mouth, as well as bruising to the chest and the back of her head.

[9]      In her victim impact statement she states that since the assault she has had ongoing  migraines  and  dizzy spells  and  that  the  whole  ordeal  has  had  a  huge negative effect on her rehabilitation.

[10]     When arrested on 19 November 2009 for the above matters, the appellant was found to have foil containing cannabis in his left sock.

[11]     On 29 November 2009 the appellant sold a stolen drill to a pawn shop.  He pleaded guilty to receiving.

[12]     The victim in respect of the breach of protection order on 29/30 January 2010 was the appellant’s ex-partner.  The appellant has a number of convictions relating to this  victim.    A protection  order  was  made in  respect  of the victim  against  the appellant in 2003.

[13]     On 27 January 2010 the victim allowed the appellant to stay with her for a few days.

[14]     On  29  January  2010  the  appellant  began  to  psychologically  abuse  her, criticising  her,  calling  her  a  bitch  and  demanding  she  perform  menial  and unnecessary tasks such as getting out of her own bed to put the light on in his room.

[15]     On 30 January 2010 she asked the appellant to leave, but he refused and continued  to  stay  and  verbally  abuse  her.    Fearing  for  her  safety,  she  left  the property, ran to a nearby dairy and contacted the police.

[16]     The appellant was arrested and subsequently pleaded guilty to breaching the protection order.

[17]     On 22 May 2010 the appellant stole a 21-speed Mangoose mountain bike valued at $150 from a property on Hereford Street.  The bike was recovered.  The appellant entered a guilty plea.

[18]     On 2 and 3 October 2010 the appellant committed two further breaches of the protection order in respect of his ex-partner.

[19]     In the early hours of 1 October the appellant went to the victim’s house.  He was acting erratically and shouting.  She allowed him to sleep that night in her spare room.

[20]   The next morning the appellant woke and was verbally abusive to the complainant, calling her a cunt, bitch and slut.  This continued throughout the day. She requested that he leave, but he ignored her requests.  He kicked over a heater and said “Shall I smash you in the face?”

[21]     The victim left her address.  On her return, the appellant was still there and continued to be abusive that evening and the following morning.  Eventually he left the address, but returned without her consent about three hours later, demanding that she cook for him.

[22]     The victim said she was going to take a bath and the appellant said he would defecate in it.

[23]     When the victim finished her bath she found the appellant on her laptop looking at pornographic websites.  When she requested that he turn the computer off, he dropped the computer onto the table.

[24]     The appellant pleaded guilty to breaching the order on 2 October 2010 by engaging in behaviour which was psychologically abusive, and pleaded guilty to breaching the order on 3 October by entering the victim’s property without consent.

The District Court sentencing

[25]     The information before the sentencing Judge included a pre-sentence report and some psychological assessments.  The pre-sentence report told the Judge that Mr Mahara had refused to attend an interview and had also refused to undergo a psychological assessment which had been directed by the Court.

[26]     The appellant is 45 years of age.  He has a very extensive criminal history with a total of some 150 offences dating back to when he was 14 years of age.  The records  show  that  he  has  20  previous  periods  of  imprisonment  and  numerous offences  of  violence.     The  pattern  of  offending  also  suggests  an  escalation. According to the pre-sentence report, he was considered at a very high risk of reoffending  with  there  being  acute  concerns  regarding  his  substance  abuse  and violent  behaviour.   The Judge was  also  told  the appellant  has  little respect  for authority and had not demonstrated any remorse or empathy towards his victims.

[27]     In his sentencing notes the Judge described the November 2009 assault as “quite violent, quite prolonged and frankly quite nasty”.   He took as his starting point a term of imprisonment of 15 months, which he then uplifted on account of the previous  convictions  to  18  months.    Turning  to  the  breach  of  protection  order charges, the Judge said these were quite separate.  He adopted a starting point of 12 months, which he then uplifted to 15 months, followed by a discount on account of the guilty plea.  The Judge imposed concurrent sentences in respect of all the other offences.

[28]     The total effective sentence was therefore two years and six months.

Grounds of appeal

[29]     On appeal, counsel Mr Henderson contends that the Judge failed to have regard or sufficient regard to the appellant’s rehabilitative needs.  In particular Mr Henderson contended that the Judge should have taken account of the following matters:

[i]      The appellant had referred himself to a stopping violence programme commencing in July 2010.

[ii]      That he had involved himself with an inquiry into the history of state wards.

[iii]     There was a discernible, albeit it small, shift in an October probation report as compared to an August probation report, to the point where the October writer was tentatively recommending home detention.

[30]     In Mr Henderson’s submission the history of this appellant was such that, given these changes, the Judge should have recognised that this was a time for support and not punishment, and that a lesser period of imprisonment would have been more appropriate with special conditions.

[31]     Mr Henderson also referred me to the following passage in the sentencing notes:

[5]       Your position really is that you when you get out you slip up.  That is your fault.  You have to deal with it.  Things are a bit more complicated than that and unfortunately what I discern is that until such time as you get some help we will see you reoffend.  Now the glimmer of hope of course is that you did go to the stopping violence programme and you have completed that.  that is a bit of a change for you and that is good to see.  No-one has really been able to assess yet whether that is a change for the good or whether you just went for the sake of it, but you have been and I give you credit for that.

[32]     Mr Henderson says although the Judge states in this paragraph that he would be giving credit for the self-referral to the stopping violence programme, in fact the only discount actually given was on account of the guilty pleas.

Sentencing analysis

[33]     The first point I would make is that I do not interpret the above passage in the same way as Mr Henderson.   All the Judge was stating in this paragraph was an acknowledgement of the step the appellant had taken.  The Judge was not promising or signalling that he would give a discount on the sentence.

[34]     In my view, Mr Henderson’s submissions overlook the role of an appellate Court.  Sentencing is the exercise of a discretion, and ultimately my focus must be on whether this sentence was manifestly excessive – that is to say out of range.  In my assessment it could not be said the sentence was out of range.   As Ms Basire contends, the sentence was in fact unremarkable given the gravity of the offending and this offender’s record.

[35]     Further, in my view the Judge cannot be said to have erred in failing to give a discount for the self-referral to the stopping violence programme, not least of all because the appellant actually went on to offend during his participation in that programme.  Further still, the offending that occurred during that time was actually escalating offending.

[36]     The matters raised by Mr Henderson are actually mentioned by the Judge, so to that extent the Judge clearly did take them into account but in his assessment they were not sufficient to outweigh the deterrent and denunciative aspects of sentencing.

[37]     All in all, for the reasons articulated, I am clear that there are no grounds for an appeal.  The sentence was entirely appropriate, it was within range, and there has been no error of principle.

[38]     Accordingly, the appeal is dismissed and the sentence confirmed.

Solicitors:

G Henderson, Christchurch

Crown Solicitor’s Office, Christchurch