Mahuta v Police

[2021] NZHC 2710

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI-2021-419-57

[2021] NZHC 2710

BETWEEN

STEVIE MANIAPOTO MAHUTA

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

11 October 2021

Counsel:

C D Bean for Appellant

B B Harris for Respondent

Judgment:

11 October 2021

JUDGMENT OF BREWER J

Solicitors/Counsel:

Charles Bean (Hamilton) for Appellant Hamilton Legal (Hamilton) for Respondent

MAHUTA v POLICE [2021] NZHC 2710 [11 October 2021]

Introduction

[1]                   Mr Mahuta appeals against the sentence of 12 months’ imprisonment imposed on him on 5 August 2021 by Judge J H Lovell-Smith.1 The basis of the appeal is that the sentence was imposed in error.

[2]                   I am satisfied that there has been an error, indeed more than one error, and I cannot fix them on appeal. Accordingly, I will quash the sentences on all of the charges and remit them to the District Court for resentencing.

Background

[3]                   Mr Mahuta came before Judge J D Large for a sentence indication on 3 June 2021.

[4]The charges before Judge Large were:

Offence date	Charge	Penalty	Previous convictions
1	5 January 2021	Driving while disqualified (third or subsequent)	2 years, $6,000	5
2	28 January 2021	Theft of petrol	3 months	-
3	30 January 2021	Theft of shoes (from a shop)	3 months	2
4	31 January 2021	Theft of petrol	3 months	-
5	25 February 2021	Breach of release conditions	1 year, $2,000	6+
6	23 March 2021	Driving while disqualified (third or subsequent)	2 years, $6,000	-
7	3 April 2021	Driving while disqualified (third or subsequent)	2 years, $6,000	-
8	3 April 2021	Theft of petrol	3 months	-
9	3 April 2021	Receiving a motor vehicle	7 years	1
10	27 April 2021	Theft of clothing (from a shop)	3 months	-
11	12 May 2021	Failed to answer bail	1 year, $2,000	3

[5]                   Judge Large indicated a starting point of 14 months’ imprisonment. The Judge said he would allow a 25 per cent discount for pleas of guilty, which would bring the sentence to approximately 10½ to 11 months’ imprisonment. The Judge commented there might be other mitigating factors which could be taken into account at sentencing.

1      Police v Mahuta [2021] NZDC 16017.

[6]                   Mr Mahuta accepted the sentence indication. Judge Large was not available to sentence and so that task fell on Judge Lovell-Smith.

Errors

[7]                   The first error is that Judge Lovell-Smith did not sentence on all of the charges. The Judge thought she was sentencing Mr Mahuta on two charges of driving while disqualified (third or subsequent) when there were three such charges. Further, the Judge appears to have overlooked charge 10, theft of clothing. The Judge did not impose a sentence on those charges, although she did endorse the charging documents with sentences and those have been carried over to Mr Mahuta’s criminal history record. Section 31 of the Sentencing Act 2002 requires a court to give reasons in open court for the imposition of a sentence.

[8]                   The second error is that Judge Lovell-Smith, having adopted Judge Large’s starting point of 14 months’ imprisonment, reduced it to nine months’ imprisonment for personal factors, but did not give a discount for pleas of guilty.

[9]                   The third error, the one identified by counsel for Mr Mahuta, is that having imposed a sentence of nine months’ imprisonment on charge 9, the charge of receiving a motor vehicle, the Judge inexplicably sentenced Mr Mahuta to 12 months’ imprisonment on the two charges of driving while disqualified (third or subsequent) which the Judge thought were the only charges of that type before her.

Discussion

[10]               The appeal is not taken on the ground that the sentence of 12 months’ imprisonment on the two charges of driving while disqualified (third or subsequent) is manifestly excessive. If that was the basis of the appeal then I would dismiss the appeal.  An end sentence of 12 months’ imprisonment on this set of charges, with  Mr Mahuta’s record of previous offending, is extremely light.

[11]               However, the appeal is brought on the ground of error and manifestly there are errors. As I have said, I cannot fix them on appeal.

Decision

[12]               The appeal is allowed. The sentences on all of the charges are quashed. The charges are remitted to the District Court for resentencing.

[13]Whether Mr Mahuta is released on bail will be a matter for the District Court.

[14]               Mr Bean points out that if the correct end sentence is nine months’ imprisonment, then his client is already time-served. Mr Bean is worried that because of the current backlog in the District Court, resentencing might not take place until next year. Mr Bean asks for urgency.

[15]               At this point, all I can do is endorse Mr Bean’s request for urgency. The appeal has been allowed on the basis of errors in the District Court process. I hope that urgency can be given to ensure that the errors do not compound to create injustice for Mr Mahuta.

Brewer J