Mahu v Police - [2015] NZHC 3155

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2014-470-000012 [2015] NZHC 3155

BETWEEN
CRUZ MAHU

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 10 December 2015

Appearances:

V Scott for Appellant
K E Martley for Respondent

Judgment:

10 December 2015

ORAL JUDGMENT OF GILBERT J

Solicitors:
Vicki Scott, Mt Maunganui
Hollister-Jones Lellman, Tauranga

MAHU v NEW ZEALAND POLICE [2015] NZHC 3155 [10 December 2015]

Introduction

[1] On 2 February 2015, Cruz Mahu was with his girlfriend and a female friend of hers. An argument developed between Mr Mahu and his girlfriend and he started to verbally abuse her. Her friend stepped between the two of them and told Mr Mahu to leave. Mr Mahu responded by punching the friend in the face with a closed fist, knocking her to the ground. She suffered soreness but no injuries.

[2] Mr Mahu pleaded guilty to one charge of male assaults female and one charge of failing to answer bail. On 29 April 2015, Judge T R Ingram sentenced him to intensive supervision for a period of 15 months for the assault and convicted and discharged him for the bail offence.1 The Judge imposed special conditions requiring Mr Mahu:2

(a) To attend an assessment with the departmental psychologist and complete any treatment that may be recommended.
(b) If suitable, to attend any such treatment, counselling and/or programme, including any departmental programme, that may be recommended by the probation officer.

[3] The Judge also ordered Mr Mahu to pay $100 in emotional reparation to the victim.

[4] Mr Mahu appeals against his sentence on the grounds that it was manifestly excessive given that he was 17 years of age at the time, has no history of violence and it is particularly difficult for him to serve a sentence of intensive supervision given his personal circumstances. This is because Mr Mahu had no family support, no permanent address and no means of transport. He argues that a sentence of supervision ought to have been imposed as the least restrictive outcome appropriate
in the circumstances.3

1 Police v Mahu [2015] NZDC 17698.
2 At [5].
3 Sentencing Act 2002, s 8(g).

[5] The appeal is brought out of time but the delay has been explained and there is no opposition to leave being granted. Leave to appeal out of time is accordingly granted.

[6] The Court of Appeal summarised the three essential differences between sentences of supervision and sentences of intensive supervision in Soloman v R:4

The differences between the two sentences are essentially three-fold. The first is duration. Supervision can be a period of up to one year while intensive supervision can be for any period up to two years. Secondly, a programme imposed as a special condition under supervision cannot be residential in nature. There is no such limitation for intensive supervision. Thirdly, only intensive supervision can have as a special condition a requirement for judicial monitoring.
[Footnotes omitted]

[7] A sentence of intensive supervision can only be imposed in the circumstances prescribed…

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 Mahu v Police

Details

AGLC: Mahu v Police [2015] NZHC 3155
Case: [2015] NZHC 3155
Decision Date: 10 December 2015

CaseChat Overview and Summary

In the case of Mahu v Police, Cruz Mahu, the appellant, was convicted of assaulting a female and failing to answer bail. The sentencing judge imposed a sentence of intensive supervision for 15 months for the assault charge, and convicted and discharged him for the bail offence. Additionally, the judge imposed special conditions requiring Mr Mahu to attend an assessment with the departmental psychologist, complete any recommended treatment, and attend any recommended counselling or programme. Mr Mahu appealed the sentence, arguing that it was manifestly excessive, considering his age, lack of a history of violence, and his personal circumstances. The Court of Appeal granted leave to appeal out of time, despite the delay in filing the appeal. The central issue before the court was whether the sentence of intensive supervision was justified under the Sentencing Act 2002. The court found that the judge had not provided sufficient evidence to satisfy the requirements of s 54C of the Act, which necessitates that a sentence of intensive supervision be imposed only if the offender's rehabilitative or other needs require conditions for a period longer than 12 months or conditions not available through a sentence of supervision. The court quashed the sentence of intensive supervision and remitted the matter to the District Court for reconsideration, directing that a PAC report be prepared for this purpose.

The court found that there was insufficient evidence to support the sentence of intensive supervision. The probation report did not adequately explain why Mr Mahu's needs could not be met through a sentence of supervision for a period of 12 months. Consequently, the court held that the sentence of intensive supervision was not justified under the Sentencing Act 2002. The court quashed the sentence and remitted the matter to the District Court for reconsideration, directing that a PAC report be prepared for this purpose. Furthermore, the court noted that although Mr Mahu had been assessed by a psychologist, he had not been referred for any treatment, counselling or other programme to meet his rehabilitative or other needs. The court considered this outcome unsatisfactory and emphasised the importance of ensuring that appropriate measures are taken to address the offender's needs.

Orders