The appellant appeals against a sentence of two years six months’ imprisonment imposed in the Manukau District Court on 14 September 2012 following his plea of guilty to one count of aggravated robbery.[1]
Facts
[1] R v Maihi DC Manukau CRI-2011-092-8282, 14 September 2012.
The facts are set out in the summary which was accepted by the appellant in entering his guilty plea. On Saturday 12 December 2010 there was a party at an address in Manurewa at which a large number of people were present. Sometime after midnight a fight broke out and a man involved in the fight was subsequently stabbed twice with a metal instrument. Later that night, shortly before 6 am, the two complainants were sitting outside a nearby address. A car pulled up near them and five males got out and walked towards them. One of the males was the appellant who was known to one of the complainants, C.
The appellant and one of his companions stood close to the complainants. His companion was holding a beer bottle. The appellant was holding a metal baseball bat. He approached C, pushed the baseball bat into the side of C’s head and said “were you the ones who gave my mate a hiding”. The appellant punched and kicked C in the side of the head, the blows causing C’s head to jerk violently. C received a swollen right side of his head and face. His injuries did not require hospital treatment. Two of the appellant’s companions approached the other victim, threatened him and took his cellphone, car keys and cigarettes.
The appellant was the only one of the five males to be identified and was the only one arrested and charged. C did not give a victim impact statement.
The sentencing
In sentencing, Judge Treston noted a submission by counsel for the Crown that the offending fell within the category described in R v Mako in these terms:[2]
At the other end of the scale would be street robbery by demanding that the victim hand over money or property such as an item of clothing, where a knife or similar weapon is produced or where offenders acting together by bullying or menacing conduct enforce the demand though no actual violence occurs. Depending upon the circumstances the starting point would be between 18 months and three years. Actual physical enforcement might well require a higher starting point.
[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.
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Details
AGLC
Maihi v R [2013] NZCA 69
Case
[2013] NZCA 69
Decision Date
CaseChat Overview and Summary
The appeal by Tane Maihi against his sentence of two years and six months imprisonment, imposed by the Manukau District Court on 14 September 2012, was heard in the Court of Appeal of New Zealand. The appeal was decided by French, MacKenzie, and Mallon JJ. The appellant pleaded guilty to one count of aggravated robbery, which occurred at a party in Manurewa on 12 December 2010. The appellant, alongside four others, assaulted two victims, using a baseball bat and causing physical harm without requiring hospital treatment.
The primary legal issues before the court were the appropriateness of the starting point for sentencing, the consideration of personal mitigating factors, and the adequacy of the discount for the appellant's guilty plea. The appellant argued that the starting point was too high, and that the sentencing judge failed to sufficiently credit his personal circumstances and the extent of the discount for his guilty plea. The Crown maintained that the starting point and the discount for the guilty plea were within the judge's discretion.
The court found that the three-year starting point was appropriate given the seriousness of the offence, which included actual physical enforcement and the use of a weapon. The court also concluded that the sentencing judge was correct in not making any deduction for personal mitigating factors, considering the need for accountability, denunciation, and deterrence. Regarding the guilty plea, the court identified an arithmetic error in the sentencing calculation, as the discount provided did not align with the judge's intention to allow slightly more than a 20% reduction. Consequently, the court allowed the appeal, quashed the original sentence, and imposed a sentence of two years and four months imprisonment.