Masina v The the King

[2022] NZHC 3280

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2022-404-412

CRI-2022-404-413 [2022] NZHC 3280

BETWEEN

POE MASINA

Appellant

AND

THE KING

Respondent

Hearing:

7 December 2022

Appearances:

S Tait for appellant

R J McDonald for respondent

Date of judgment:

7 December 2022

ORAL JUDGMENT OF JAGOSE J

Counsel/Solicitors:

S Tait, Barrister, Auckland Kayes Fletcher Walker, Manukau

MASINA v R [2022] NZHC 3280 [7 December 2022]

[1]    Poe Masina appeals against Judge S Moala’s 19 October 2022 decision in the District Court at Manukau,1 sentencing him to two years and four months’ imprisonment on his guilty pleas to charges of aggravated burglary,2 wilful damage,3 possession of a firearm (representative),4 possession of synthetic cannabis for sale or supply5 and possession of methamphetamine.6

Background

[2]    The charges arose from Mr Masina’s participation in three events. In the late evening of 28 December 2018, he and others entered the victim’s home in Auckland’s Ōtāhuhu armed with a steel scaffolding pole, with which he threatened the victim and smashed the windows of her car parked outside, in apparent retaliation for a burglary earlier of Mr Masina’s house at which the victim’s car was said to have been involved. His unlicensed possession of a rifle and shotgun was identified in the wake of his brother’s removal and return of the shotgun for and from use in a March 2019 Māngere murder. The drugs were found in his car on an August 2021 traffic stop, in a number of small snap-lock bags, together with nearly $12,000 in cash.

Judgment under appeal

[3]    Judge Moala observed Mr Masina’s sentencing had been adjourned “a number of times” to enable him to “do [the] work” necessary to get into “home detention range”.7 Her Honour took a starting point of three and a half years’ imprisonment on the aggravated burglary and wilful damage charges, uplifted by four months each respectively on the firearms and  drugs  charges,  to  arrive  at  a  starting  point  of 50 months’ imprisonment.8 Discounts totalling 25 per cent for his guilty plea (five per cent), background (10 per cent) and rehabilitation (10 per cent) reduced that to

1      R v Masina [2022] NZDC 20692.

2      Crimes Act 1961, s 232(1)(a). Maximum penalty: 14 years’ imprisonment.

3      Summary Offences Act 1981, s 11(1)(a). Maximum penalty: three months’ imprisonment or

$2,000 fine.

4      Arms Act 1983, s 45(1)(a). Maximum penalty: four years’ imprisonment or a fine of $5,000.

5      Psychoactive Substances Act 2013, s 70(1)(c) and (3)(a). Maximum penalty: two years’ imprisonment.

6      Misuse of Drugs Act 1975, s 7(1)(a) and 2(a). Maximum penalty: six months’ imprisonment or a

$1,000 fine.

7      R v Masina, above n 1, at [13].

8      At [14]–[15].

38 months’ imprisonment.9 The Judge applied further reductions of six months for Mr Masina’s time on bail,10 and four months for his reparations (including community work), to reach an end sentence of 28 months’ imprisonment.11 She observed his drugs offending while working toward a home detention sentence made any lesser sentence unavailable.12

[4]    For Mr Masina, Shane Tait argues the Judge erred in applying discount only to the earliest aggravated burglary offending to which Mr Masina pleaded guilty on the morning of trial, and for which offending her Honour had adopted too high a starting point. Mr Tait says larger discounts should have been granted for all guilty pleas, including those more timely made in relation to the later offending. And he identifies comparable sentencing of three years’ imprisonment for “strikingly similar” offending than the more serious offending underlying authorities relied on by the Crown.13

Approach on appeal

[5]    I must allow the appeal only if I am satisfied both there is error in the sentence, and a different sentence should be imposed.14 In any other case, I must dismiss the appeal.15 The approach previously taken by courts on sentencing appeals continues to apply;16 the measure of error is the sentence be “manifestly excessive” – the principle is “well-engrained” in this Court’s approach to sentencing appeals.17 I will not intervene where the sentence is within a range properly justified by accepted sentencing principle. Whether ‘manifestly excessive’ is to be assessed in terms of the sentence given, rather than the process by which it is reached.18

9 At [17].

10 At [18].

11 At [19].

12 At [20].

13     Kiri v Police [ 2012] NZHC 2099; Melgren v R [2016] NZHC 2482 and R v Shirley [2009] NZCA 216.

14     Criminal Procedure Act 2011, s 250(2).

15     Section 250(3).

16     Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27].

17     At [33] and [35].

18     Ripia v R [2011] NZCA 101 at [15].

Discussion

[6]    I do not accept the Judge failed to allow a guilty plea discount on other than the initial charges. The discount plainly applied across the whole of her starting point. None of Mr Masina’s guilty pleas could be considered made at the first reasonable opportunity, but only when little if anything remained to be gained from denial.19      I include in that assessment any attempt to mitigate intermediate breaches of bail.

[7]    Nonetheless all warranted recognition, even if attracting a discount of “nothing”,20 and some of the later better than if made at trial.21 The scope for material further reduction from the lead offending is limited by the relatively small uplifts for totality. Counsel of perfection may have been to segregate the discounts for application “to that component of the adjusted starting point” as related to each guilty plea.22 Any perceived meanness of the Judge’s discount for guilty pleas comprehensively is outweighed by the generosity of her further ten months’ deductions for time on bail (despite a large number of bail conditions’ breaches, including the last offending) and voluntary efforts in reparation.

[8]    In the end, I am to stand back to determine if Mr Masina’s 28-month sentence is manifestly excessive. The cases are relatively consistent in upholding starting points of between three and a half years and four years’ imprisonment for aggravated burglaries as within range.23 If the Judge’s uplifts and discounts both were modest, the further 10-month deduction was generous. I see nothing at all excessive in the end sentence.

[9]The appeal is dismissed.

—Jagose J

19 A ‘strong Crown case’ is a relevant factor in determining a guilty plea discount. See Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [59]; and, see for example, Mehrok v R [2017] NZCA 370 at [35]–[37]; R v Harrison [2016] NZCA 381, [2016] 3 NZLR 602 at [154]; Cai v R [2012] NZCA 293 at [19]; Pokai v R [2014] NZCA 356 at [70]; and Z v R [2012] NZCA 607 at [25].

20 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [45]; and Moses v R [2020] NZCA 296,

[2020] 3 NZLR 583 at [23].

21     McDonald v R [2021] NZCA 531 at [37].

22     Agar v R [2021] NZCA 350 at [31].

23     Dey v R [2021] NZCA 342 at [47]; Walker-Dahlberg v R [2020] NZCA 661 at [41]; Rangi v R

[2014] NZCA 524 at [7] and [11]; and R v Patrick [2008] NZCA 115 at [25].