Mahutoto v Police HC Auckland CRI 2011-404-000111

[2011] NZHC 650

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2011-404-000111

BLAIR STEVEN MAHUTOTO

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         20 June 2011

Appearances: L Freyer for the Appellant

B Hawes for the Respondent

Judgment:      20 June 2011

ORAL JUDGMENT OF WYLIE J

Distribution:

Ms Louise Freyer:  [email protected]

Mr Barnaby Hawes: [email protected]

B S MAHUTOTO V POLICE HC AK CRI 2011-404-000111 20 June 2011

[1]      Mr Mahutoto appeals a sentence of two years and four months‟ imprisonment imposed in  respect  of  a charge of  kidnapping,  and  a sentence  of  nine months‟ imprisonment imposed in respect of a charge of male assaults female by Judge JM Doogue in the District Court at Auckland on 24 February 2011.

[2]      The notice of appeal is dated 29 March 2011.  It appears that it was filed out of time in this Court, although as I understand it, it was filed within time, albeit mistakenly, with the District Court.  Mr Hawes for the respondent sensibly accepts that  there  is  no  prejudice,  and  that  the  Crown  has  always  been  aware  of Mr Mahutoto‟s intention to appeal his sentence.  In the circumstances, leave is given to file the notice of appeal out of time.

[3]      Mr Mahutoto appeals his sentence on the basis that it was clearly excessive.

Relevant Facts

[4]      Mr Mahutoto and the victim were in a relationship for about a year, and they lived together.   The relationship came to an end on 1 November 2010.   On the morning of 11 November 2010, the victim was attending a course at the University of Auckland Teachers Centre in Epsom.   She was heading to a classroom when Mr Mahutoto approached her.  He demanded that she talk with him in his car which was parked adjacent to the teachers centre.  She agreed to get into the vehicle to talk to him.  As she entered the car, he grabbed her arm and pulled her into the vehicle with force, and leaned over her and shut and locked the door.  He began to reverse the vehicle.  She pleaded with him to stop, but he ignored her and continued to drive from the carpark.  She told Mr Mahutoto that she was going to call the Police on her mobile telephone, and he said that if she “called the cops, he would get her”.

[5]      The victim screamed for attention and banged on the windows of the vehicle in an attempt to attract attention for a passerby.  Mr Mahutoto then slapped her in the face on a number of occasions, and tried to quieten her down.  He also hit her with a clenched fist about the body.

[6]      Mr Mahutoto then drove the car in an erratic manner, sometimes on the wrong side of the road to his address.  He then ordered the victim inside the house. Inside the house, he assaulted her by slapping and punching her in the face.  He then went through her mobile telephone and noticed a text message from her then boyfriend, which enraged him further.   He punched her again, and grabbed the necklace she was wearing.  He pulled it to one side with such force that it caused injury to her neck.   The assault only stopped when the Police arrived at the front door. The victim sustained a black eye, and extensive bruising to her upper body.

Judge Doogue’s Decision

[7]      Her Honour Judge Doogue recorded the charges to which Mr Mahutoto had pleaded guilty.   She noted that the gravity of the offending is recognised by the maximum penalties that can be imposed, and she went on to deal with the facts.  She then referred to ss 7 and 8 of the Sentencing Act 2002, and her obligation to sentence Mr Mahutoto on the basis of the least restrictive outcome that was available.  She expressed the clear view that the purposes of deterrence and denunciation of the conduct in which Mr Mahutoto was involved required a custodial sentence, and that the nature of Mr Mahutoto‟s offending was outside the range in respect of which she could  consider some  form  of community detention.    She noted the aggravating features of the offending as follows:

(a)       the actual level of violence;

(b)      the number of times that Mr Mahutoto attacked his victim to the head; (c)     erratic driving which occurred in the course of the offending, putting

the victim and others at serious risk of injury, and

(d)      the extent of harm resulting from the offending.

[8]      Her  Honour  also  noted  that  there  were  no  mitigating  features  to  the offending.   She took a starting point of three years as being appropriate to the offending.  She noted that Mr Mahutoto had a previous conviction for male assaults

female and that that was an aggravating feature.  As a personal mitigating feature, she noted that Mr Mahutoto had pleaded guilty at an early opportunity, and she accepted that he was entitled to a significant discount as a consequence.   She considered that that discount should be in the order of eight months.  She declined to make any order for reparation on the basis that the Crown had not put before the Court appropriate evidence in that regard.  She gave the appropriate warning under the three strikes legislation.

[9]      In  respect  of  the  kidnapping  charge,  Mr  Mahutoto  was  convicted  and sentenced to imprisonment for two years and four months.  In respect of the male assaults female charge, Mr Mahutoto was convicted and sentenced to nine months‟ imprisonment.   Both sentences were to be served concurrently.   Her Honour also indicated that the standard conditions were to endure for six months after expiration of the sentence.

Submissions

[10]     I   have   received   helpful   submissions   from   Ms   Freyer   on   behalf   of

Mr Mahutoto and Mr Hawes on behalf of the Crown.

[11]     Ms Freyer made it clear that she does not dispute the starting point adopted by the Judge.  Rather, she submits that Her Honour erred in not giving Mr Mahutoto a full 25 per cent discount for his guilty plea, and further that she erred in failing to give Mr Mahutoto a further and separate discount for his expressions of remorse. She referred me specifically to two letters which Mr Mahutoto wrote to the Court, and  to  details  he  made  available  to  the  Court  of  progress  he  had  made  in endeavouring to rehabilitate himself.  In the circumstances, Ms Freyer submitted that the sentence was clearly excessive, and that a sentence of home detention would be more appropriate.

[12]     Mr Hawes for the Crown accepted that Judge Doogue did not make a discreet reduction in the sentence for the expressions of remorse.   He accepted that in the circumstances of this case, Mr Mahutoto‟s plea of guilty was entered at the first reasonably available opportunity.   He also accepted that the remorse was genuine.

He did, however, argue that a sentence of home detention was inappropriate.   He referred to Her Honour Judge Doogue‟s comments in that regard, and also to the observations made by the probation officer who prepared the pre-sentence report.

Analysis

[13]     The appeal is brought pursuant to s 121 of the Summary Proceedings Act

1957.  Relevantly, it provides as follows:

121     High Court to hear and determine appeal

…

(3)      In the case of an appeal against sentence, the High Court may—

(a)      confirm the sentence; or

(b)       if the sentence (either in whole or in part) is one which the Court imposing it had no jurisdiction to impose, or is one which is clearly excessive or inadequate or inappropriate, or if the High Court is satisfied that substantial facts relating to the offence or to the offender's character or personal history were not before the Court imposing sentence, or that those facts were not substantially as placed before or found by that Court, either—

(i)        quash  the  sentence  and  either  pass  such  other sentence warranted in law (whether more or less severe) in substitution therefore as the High Court thinks ought to have been passed or deal with the offender in any other way that the Court imposing sentence   could   have   dealt   with   him   on   the conviction; or

(ii)      quash  any  invalid  part  of  the  sentence  that  is severable from the residue; or

(iii)      vary, within the limits warranted in law, the sentence or any part of it or any condition imposed in it.

…

[14]     Here,  Ms  Freyer  criticises  the  discount  of  eight  months  allowed  by

Judge Doogue for the guilty plea.  She referred to the decision of the Supreme Court in Hessell v R,1 and argued that the discount allowed amounted to only 22.2 per cent

1      Hessell v R [2011] 1 NZLR 607.

of the starting point adopted by the Judge.  She said that Mr Mahutoto should have received the full 25 per cent discount discussed in Hessell.

[15]     The Supreme Court in Hessell accepted that when a person charged pleads guilty, the plea of is a legitimate consideration in sentencing.  The Court emphasised that a reduction for a guilty plea should not exceed 25 per cent, but otherwise left it to the discretion of the sentencing Judge to determine what discount is appropriate in any given case.

[16]     If the appeal were confined to the issue of the appropriate discount for the guilty plea, I would not quash the sentence and impose an alternative sentence. Judge  Doogue  clearly  set  out  why  she  considered  that  there  were  aggravating features to Mr Mahutoto‟s offending.  She allowed a discount for the guilty plea, and there is nothing to suggest that she made any error of principle in considering the matter.   Moreover, the difference between 22.2 per cent and 25 per cent does not make the sentence clearly excessive in terms of s 121(3)(b) of the Act.

[17]     I am however concerned that the Judge did not allow a separate and discreet discount for the remorse expressed by Mr Mahutoto.

[18]     In delivering the judgment of the Supreme Court in Hessell, McGrath J stated as follows:

This approach does not fit in well with the terms of the 2002 Act, which treats “any remorse shown by the offender” as a mitigating factor that is separate from the guilty plea.   The statutory requirement that remorse be “shown” adequately addresses the Court of Appeal„s concerns.  Remorse is not necessarily shown simply by pleading guilty.  Sentencing judges are very much aware that remorse may well be no more than self pity of an accused for   his   or   her   predicament   and   will   properly   be   sceptical   about unsubstantiated  claims  that  an  offender  is  genuinely  remorseful.    But  a proper and robust evaluation of all the circumstances may demonstrate a defendant„s remorse.  Where remorse is shown by the defendant in such a way, sentencing credit should properly be given separately from that for the plea.

[19]     Judge Doogue had before her the two letters which I have referred to above. In one of the letters, Mr Mahutoto made a full apology to the victim.  The Judge also had a document headed “starting point” which set out Mr Mahutoto‟s goals and ideas

for rehabilitating himself, as well as a schedule of steps which Mr Mahutoto had taken as at the date of sentencing in furtherance of that plan.  The pre-sentence report recorded that Mr Mahutoto had expressed significant remorse and regret for his offending and noted that he was motivated to change his behaviour to minimise the risk of further offending.

[20]     There is nothing to suggest that the remorse is anything other than genuine. There is force in Ms Freyer‟s submission that in the circumstances there was nothing else that Mr Mahutoto could have done or said.

[21]     In my view, the Judge should have made a separate and discreet discount to allow for the remorse expressed by Mr Mahutoto.

[22]     In my judgment, it is appropriate to quash the sentence of two years and four months  imposed  by  Her  Honour  Judge  Doogue,  and  to  substitute  therefore  a sentence of two years and one month.  I so order.  This allows a further discount for the remorse expressed by Mr Mahutoto.

[23]     It follows that home detention is not in issue and I do not need to take that point any further.

Wylie J