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 by s 54C of the Sentencing Act 2002:

54C      Guidance on use of sentence of intensive supervision

A court may impose a sentence of intensive supervision only if it is satisfied that –

(a)       A sentence of intensive supervision would reduce the likelihood of further offending by the offender through the rehabilitation and reintegration of the offender; and

(b)       The nature of the offender’s rehabilitative or other needs requires the

imposition of conditions –

(i)       for a period longer than 12 months; or

(ii)      that are not available through the sentence of supervision.

[8]       No  special  condition  requiring  judicial  monitoring  was  imposed.     No assessment had been made that Mr Mahu’s rehabilitative or other needs required him to  attend  a  residential  programme.    Therefore,  the  Court  could  only  impose  a sentence of intensive supervision if it was satisfied that Mr Mahu’s rehabilitative or other needs required the imposition of conditions for a period longer than 12 months.

I have a probation report on you which says, at the age of 17, the best sentence for you will be a sentence of intensive supervision, because you need to see a departmental psychologist and to go on an appropriate rehabilitative programme.  I could not agree more.

[10]     The Judge did not explain why it would take longer than 12 months for Mr Mahu to see the departmental psychologist or attend an appropriate rehabilitative programme.   Unless he was satisfied of this, he had no jurisdiction to impose a sentence of intensive supervision.

[11]     The  probation  report  does  not  assist.    The  probation  officer  addresses

Mr Mahu’s rehabilitative needs in the following passage of his report:

The offence   related factors are identified as relationship issues and a propensity to use violence.  Unfortunately given his high risk, he does not meet the criteria to attend a living without violence programme    However, he  may  be  a  suitable  candidate  to  undertake  assessment  and  possible treatment with a departmental psychologist.  He may also meet the criteria to attend a departmental rehabilitative programme with a violence component. Although Mr Mahu’s genuine motivation is lacking he may benefit from attending a short motivational programme prior to undertaking the above mentioned targeted interventions.  As such, I recommend a term of intensive supervision which may afford him the opportunity to step through the available  programmes  and  treatment  without  having to juggle  too  many expectations at once.

[12]     Although the probation officer recommended intensive supervision, she did not  explain  why  Mr  Mahu’s  needs  could  not  be  met  through  a  sentence  of supervision for a period of 12 months.  In these circumstances, there was insufficient evidence available to the Judge to satisfy the requirements of s 54C of the Act.

[13]     It follows that the appeal must be allowed.   There was no jurisdiction to impose a sentence of intensive supervision. That sentence must be set aside.

Result

[14]     The sentence of intensive supervision is quashed.

[15]     The matter is remitted to the District Court for reconsideration.  I direct that a

PAC report be prepared for this purpose.

[16]     I record that I was advised from the bar, and this was confirmed by the probation officers present, that although Mr Mahu has been assessed by a psychologist, he has not been referred for any treatment, counselling or other programme to meet his rehabilitative or other needs.  The result is that for the past four months, all that has happened is that he has been obliged to walk for one and a half hours each way to report to the probation officer.  That is plainly unsatisfactory,

to say the least.

M A Gilbert J