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 closed fist for no apparent reason other than that he was angry or frustrated at being told he had to wait. This case is more serious than the case of Sutherland relied on by the appellant.3

[11]            The maximum sentence for common assault under s 9 of the Summary Offences Act 1981 is six months’ imprisonment or a $4,000 fine.

[12]            In terms of the hierarchy of sentences and the obligation of the Court to impose the least restrictive sentence, community work ranks after a sentence of fine and reparation.

[13]            I note there was no restorative justice conference. The report in relation to that confirms neither the offender nor the victim responded to correspondence or phone calls from the relevant services trust.

[14]            In the circumstances and given Mr Mangi’s previous convictions, which while historical are still relevant as they show a tendency to act violently, community work

2      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482, (2014) 27 CRNZ 291.

3      Sutherland v New Zealand Police [2017] NZHC 1802.

was the appropriate sentence. The maximum sentence of community work is 400 hours. While the guilty plea was not expressly articulated or referred to by the Judge, as counsel has realistically conceded the Judge would have been well aware Mr Mangi had pleaded guilty. The cases of Mareraki v New Zealand Police and Sausoo v New Zealand Police4 confirm a starting point of around 100 hours’ community work could have been available. I do not consider them to be significantly different as counsel has suggested. In the end result 80 hours’ community work was well within the range available to the Judge as an end sentence, even after taking account of the guilty plea in this case.

[15]The appeal is dismissed.

Venning J

4      Mareraki v New Zealand Police [2015] NZHC 161; and Sausoo v New Zealand Police HC Auckland CRI-2009-404-000301, 10 November 2009.