Manga v Police - [2021] NZHC 46

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CRI-2020-463-000111

[2021] NZHC 46

BETWEEN
DANIEL MANGI

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 2 February 2021

Appearances:

A MacTavish for Appellant G Banuelos for Defendant

Judgment:

2 February 2021

ORAL JUDGMENT OF VENNING J

Solicitors: Crown Solicitor, Rotorua
Lance Lawson, Rotorua

MANGI v NEW ZEALAND POLICE [2021] NZHC 46 [2 February 2021]

[1] Daniel Mangi pleaded guilty to one charge of common assault. On 11 September 2020 Judge G C Hollister-Jones sentenced him to 80 hours’ community work.1

[2]Mr Mangi appeals against that sentence on the basis it is manifestly excessive.

[3] The facts of the offending can be stated shortly. On 26 March 2020 during the time New Zealand was in Level 4 lockdown, the victim of the assault was inside a dairy on Bridge Street. The victim worked for a milk delivery company and was delivering milk to the dairy. Mr Mangi came into the store. The victim told Mr Mangi to wait because there was a limit on the number of people allowed in the store at any one time.

[4] Mr Mangi apparently took offence at being told to wait. He went up to the victim as the victim was leaving in his vehicle and struck him twice in the face with a closed fist.

[5]As a result of the assault the victim sustained minor bruising to his face.

[6] In imposing a sentence of 80 hours’ community work the Judge noted that Mr Mangi had two previous convictions for common assault. He said he regarded the assault as a reasonably serious unprovoked incident.

[7] In support of the appeal Ms MacTavish has submitted the sentence was excessive because:

(a)the Judge referred to evidence not in the agreed amended summary of facts;

(b)the Judge was wrong to rely on Mr Mangi’s two previous convictions given their historical nature; and

(c)the Judge did not consider a discount for the guilty plea.

1 New Zealand Police v Mangi [2020] NZDC 19826.

Counsel argues that a fine or a lesser amount of community work hours was the appropriate sentence.

[8] The Court of Appeal have confirmed in Tutakangahau v R 2 that while s 250(2) of the Criminal Procedure Act 2011 makes no express referred to the concept of a manifestly excessive sentence, the concept is longstanding, consistent with statutory language and should continue to be utilised.

[9] The practical effect is that an appellant, such as Mr Mangi, must show that there is an error, whether intrinsically or as a result of any further material submitted and if there is, then the Court must form its own view of the appropriate sentence.

[10] As discussed with counsel during the hearing I do not consider the amendments to the summary of facts relied on by the appellant to make any practical difference to Mr Mangi’s culpability. The point is that he struck the victim twice in the face with a…

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.

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Details

Case: [2021] NZHC 46
Decision Date: 2 February 2021

CaseChat Overview and Summary

Daniel Mangi has appealed against the sentence of 80 hours' community work imposed by Judge G C Hollister-Jones, following a guilty plea to a charge of common assault. The appeal argues that the sentence was manifestly excessive. The assault occurred on 26 March 2020, during New Zealand's Level 4 lockdown, when Mangi struck the victim twice in the face with a closed fist, causing minor bruising. The Judge had considered the assault as reasonably serious and unprovoked, noting Mangi's two previous convictions for common assault.

The legal issues in the appeal included whether the Judge referred to evidence not in the agreed amended summary of facts, the appropriateness of relying on Mangi's historical previous convictions, and the failure to consider a discount for the guilty plea. Counsel for Mangi argued that a fine or a lesser amount of community work hours would have been appropriate. The Court of Appeal's approach to manifestly excessive sentences was noted, requiring the appellant to demonstrate an error in the sentencing process and for the Court to determine the appropriate sentence.

The court found that the amendments to the summary of facts did not alter Mangi's culpability, as the assault was unprovoked and unjustified. The maximum penalty for common assault is six months' imprisonment or a $4,000 fine. Community work ranks lower in the hierarchy of sentences compared to fines and reparation. The court also noted the lack of participation in a restorative justice conference. Given Mangi's history of violent behavior, the sentence of 80 hours of community work was considered appropriate, falling within the range of 100 hours as a starting point. The court dismissed the appeal, upholding the sentence imposed by the Judge.

Orders