Mahia v The Queen
[2014] NZHC 3284
•17 December 2014
IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY
CRI 2014-463-62 [2014] NZHC 3284
BETWEEN SHAUN MEKE MAHIA
Appellant
AND
THE QUEEN Respondent
CRI 2014-463-64
BETWEEN TUHUKIA TYSSON MAHIA Appellant
ANDTHE QUEEN Respondent
Hearing: 17 December 2014 Counsel:
A C Balme for S Mahia
T Bayley for T Mahia
M L Wong for RespondentJudgment:
17 December 2014
(ORAL) JUDGMENT OF HEATH J
Solicitors:
Crown Law, Wellington
Counsel:
A C Balme, TaurangaT Bayley, Tauranga
MAHIA v R [2014] NZHC 3284 [17 December 2014]
The appeal
[1] On 11 August 2014, Mr Shaun Mahia, Mr Tuhukia Mahia and Mr Matthew Kingi each appeared for sentence before Judge Cameron, in the District Court at Tauranga, on a charge of aggravated robbery.
[2] Mr Kingi was sentenced to term of imprisonment of four years five months; Mr Shaun Mahia to a period of three years two months; and Mr Tuhukia Mahia to a period of two years seven months imprisonment. In addition, orders for reparation, destruction of items of property and driver disqualification were made.
[3] While Mr Kingi has not challenged his sentence, Mr Shaun Mahia and
Mr Tuhukia Mahia each appeal against the sentences imposed on them.
Grounds of appeal
[4] Mr Shaun Mahia’s appeal is advanced on the basis that the Judge erred in
taking a starting point of six years imprisonment.
[5] Mr Tuhukia Mahia’s appeal is based on three grounds, two of which overlap:
(a) The first is that the starting point of five years imprisonment was too high.
(b)The second is that the Judge took a “mathematical” approach to sentencing which resulted in an end sentence that was clearly excessive.
(c) The third is a suggestion of unjust disparity arising out of the terms of imprisonment imposed on the Mahia brothers.
The reason I say that the second and third grounds merge to some extent, is that each requires a consideration of the personal circumstances of each offender in light of differing risk assessments being made of them in the pre-sentence materials. Essentially, Ms Bayley, for Mr Tukuhia Mahia, submits that the Judge should have
expressed more transparently how he arrived at the sentences, given those differing circumstances.
The facts
[6] On the evening of 27 May 2014, Mr Kingi, Mr Tuhukia Mahia and Mr Shaun Mahia were travelling along Levers Road, in Matua. They were in Mr Kingi’s motor vehicle. Mr Tuhukia Mahia was driving, with the others in passenger seats. At some point a plan to rob a dairy on Levers Road was hatched. That was to involve Mr Tuhukia Mahia waiting in the car, while the others entered the dairy to take money and cigarettes.
[7] Initially, some reconnaissance took place. The car was driven past the dairy. At that time they could see two people inside. At that stage, the car was taken to the address at which the Mahia brothers were living. They changed into clothing that provided a disguise. When the three drove back along Levers Road, they looked into the dairy and saw only one person remaining in it.
[8] The vehicle was parked in close proximity to the dairy, just around the corner. Mr Kingi armed himself with a heavy length of galvanised pipe; Mr Shaun Mahia with a metal car jack handle. The lower halves of their faces were covered with pieces of cloth and their hooded tops were pulled up. Mr Kingi also wore gloves.
[9] Mr Kingi and Mr Shaun Mahia approached the dairy, ran in through the front door and confronted the occupant. He was a young man of 24 years, who was working there at the time.
[10] What happened subsequently was described by Judge Cameron as follows:
[4] The defendant Kingi smashed the candy stand with his galvanised pipe to distract the occupier, who was working behind the counter in the dairy, and both defendants then made their way behind the shop counter. Shaun Mahia leapt onto the counter and confronted the worker, who was trapped behind the counter by the two defendants. Both defendants were demanding that the victim open the till and hand over the money. The defendant Kingi threatened the victim by raising the galvanised pipe in a menacing fashion. When the victim could not open the till Kingi grabbed four packets of cigarettes and, still standing on the counter, Shaun Mahia bailed the victim into the
corner of the store and struck him approximately five times with the metal carjack handle, attempting to hit him about the head. The victim raised his hands above his head in an attempt to prevent the blows from striking his head. He did receive some blows to his head as well as blows to his forearms which were held up in a defensive position. The victim then pushed past the defendant Kingi and escaped into the rear of the store. As this occurred the defendant Shaun Mahia pursued the victim by walking along the top of the shop counter, damaging and scattering chocolates and confectionary items in the process.
[5] As a result of the attack the victim was subsequently attended to by ambulance staff but did not require further medical attention. He received bruising and swelling to the right side of the top of his head as well as to both forearms.
[6] The defendant Kingi ran from the store with the packet of cigarettes.
The two defendants are said to have been inside the store for approximately 30 seconds and were captured on CCTV. They were
seen by a member of the public who notified the police.
[7] Kingi attempted to dispose of his galvanised pipe down a nearby storm water drain. Shaun Mahia and Kingi then got into the motor vehicle and Tuhu Maia drove them from where it was parked onto Levers Road. They were followed by a member of the public and stpped by police in Mount Maunganui. The stolen cigarettes were recovered with one of the cigarette packets opened.
Sentencing principles
[11] R v Mako1 is the guiding appellate authority on the imposition of sentences for aggravated robbery. One of the categories of offending discussed in Mako is that involving a robbery of a small retail shop by demanding money under threat of use of a weapon.
[12] In Mako, the Court of Appeal described the range of sentencing options for offending of that type:2
[56] A further example can be given taking another combination of features typical of many aggravated robberies. This envisages a robbery of a small retail shop by demanding money from the till under threat of the use of a weapon such as a knife after ensuring no customers are present, with or without assistance from a lookout or an accomplice waiting to facilitate getaway. The shopkeeper is confronted by one person with the face covered. There is no actual violence. A small sum of money is taken. The starting point should be around four years. Should the shopkeeper be confined or assaulted, or confronted by multiple offenders, or if more money and other
1 R v Mako [2000] 2 NZLR 170 (CA).
2 Ibid, at para [56].
property is taken five years, and in bad cases six years, should be the starting point.
(Emphasis added)
[13] In assessing the level at which a starting point should be fixed in an individual case, it is necessary to take account of the involvement of multiple offenders and the gravity of the conduct in relation to the use of the weapon. I say that because both are indicators of the degree of intimidation at play.
[14] In the context of this case, the degree to which the circumstances should be regarded as aggravating the offending is raised by the differing starting points taken. In the case of Mr Shaun Mahia the five years period identified in Mako has been taken, whereas the Judge considered that a six year starting point for which Mako
described as “bad cases” was justified.3
[15] Mr Tuhukia Mahia’s appeal also raises the question of unjust disparity. The approach to be taken in appeals of that type was explained by McMullin J, for the Court of Appeal, in R v Lawson.4 The question is “whether a reasonably minded independent observer aware of all the circumstances of the offence and of the offenders would think that something had gone wrong with the administration of justice” on the basis of the differing sentences imposed. This ground of appeal reflects the need to maintain “public confidence in the administration of justice” by ensuring that any “disparity is such as not to be consonant with the appearance of justice”.
[16] Nevertheless, a “gross and unjustifiable disparity” will not necessarily result in the reduction of a sentence imposed on a co-offender; no greater adjustment is appropriate than is necessary to protect the integrity of the criminal justice system.5
The sentence appeals
[17] The appeals are brought under s 244 of the Criminal Procedure Act 2011 (the
Act). Section 250 of that Act sets out what it is necessary for the first appellate
3 See para [12] above.
4 R v Lawson [1982] 2 NZLR 219 (CA) at 223.
5 Mau’u v R [2011] NZCA 385, at para [28].
Court to consider. Section 250(2) requires the Court to allow the appeal, if satisfied for any reason there is an error in the sentence imposed on conviction and a different sentence should be imposed.
[18] Despite the terms in which s 250 is couched, the Court of Appeal has recently reinforced the need to identify an error that justifies interference with the end sentence; namely an approach which reflects the need to determine whether a sentence is clearly excessive.6
(a) Mr Shaun Mahia
[19] I deal first with the appeal by Mr Shaun Mahia. He was one of the two men who went inside the dairy, and actively participated in the assault on the occupant.
[20] Judge Cameron took a starting point for sentence of six years imprisonment, consistent with his approach to the offending of Mr Kingi. The Judge was alive to the fact that Mr Shaun Mahia was only 17 years old at the time of the offending. The starting point was reduced by 25% for youth and otherwise good character, 5% for remorse and a full 25% for the guilty plea, ending with a sentence of three years and two months imprisonment.7
[21] The sole issue on appeal is the appropriateness of the starting point. Notwithstanding Mr Balme’s careful submissions to the contrary, I consider that the starting point, although at the top of the relevant range identified in Mako,8 was justified by the aggravating factors involved, in this particular offending. Specifically, I refer to the existence of two offenders, the actual use of weapons, the use of a weapon to strike the occupant around the head, and the use of disguises to hide the offenders’ identity.9 To a lesser extent there was also what the Judge termed a “limited” planning involved in its execution. The suffering of significant
emotional harm by the victim is also relevant.10
6 Tutakangahau v R [2014] 3 NZLR 482 (CA) at paras [26]–[29].
7 R v Kingi DC Tauranga CRI-2014-070-1955, 11 August 2014 (Judge Cameron) at para [19].
8 R v Mako [2000] 2 NZLR 170 (CA), at para [56], set out at para [9] above.
9 Ibid, at para [43].
10 R v Kingi DC Tauranga CRI-2014-070-1955, 11 August 2014, at para [14].
[22] While I think it was an overstatement to say that the starting point was “easily” one of six years,11 I do consider that the starting point was within the range available to the District Court Judge. For that reason, the appeal brought by Mr Shaun Mahia will be dismissed.
(b) Mr Tuhukia Mahia
[23] So far as Mr Tuhukia Mahia is concerned, Judge Cameron accepted that he took a lesser role, that of the “getaway driver”. For that reason, he considered that some reduction in culpability was warranted. The starting point was reduced from six years to five years imprisonment. Having taken into account relevant mitigating factors, an end sentence of two years seven months imprisonment was imposed.
[24] Ms Bayley, for Mr Tuhukia Mahia, properly accepted that if I were to uphold the starting point used by the District Court Judge in relation to Mr Shaun Mahia’s offending, that it would be difficult to challenge the use of a five year starting point for Mr Tuhukia Mahia.
[25] As to the first ground of appeal, I am satisfied that the starting point was in the appropriate range. Although Mr Tuhukia Mahia was the getaway driver, he was aware that his two co-offenders were carrying weapons and wearing disguises. The reduction the Judge made takes account of the possibility that Mr Tuhukia Mahia may not have known that the others intended to use the weapon, rather than to carry it as intimidation.
[26] The second point is whether the Judge took an overly mathematical approach to the sentencing. I am not persuaded that he did. The Judge followed the orthodox methodology employed in determining a sentence in a case such as this.
[27] As to unjust disparity, I am not persuaded that there is anything in the comparison of the end sentences that would lead a right thinking member of the community to conclude that something had gone wrong with the administration of
justice in the imposition of the sentences.
11 Ibid, at para [17].
[28] For those reasons, Mr Tuhukia Mahia’s appeal will also be dismissed.
Result
[29] For the reasons given, the appeals brought by both Mr Shaun Mahia and Mr
Tuhukia Mahia are dismissed.
P R Heath J
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