Mason v The Queen
[2020] NZHC 2465
•22 September 2020
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2020-404-000289
[2020] NZHC 2465
BETWEEN KAHAROA MASON
Appellant
AND
THE QUEEN
Respondent
Hearing: 21 September 2020 Appearances:
Joanne Wickliffe on instructions from Annabel Cresswell for the Appellant
Aminiasi Kefu for the Respondent
Judgment:
22 September 2020
JUDGMENT OF MOORE J
[Appeal against sentence]
This judgment was delivered by me on 22 September 2020 at 1:00 pm
Registrar/ Deputy Registrar Date:
MASON v R [2020] NZHC 2465 [22 September 2020]
Introduction
[1] On 5 March 2020, Kaharoa Mason pleaded guilty to one charge of wounding with intent to cause grievous bodily harm.1
[2] On 29 May 2020 in the District Court at Manukau, Judge Harvey sentenced him to four years and five months’ imprisonment.2 Mr Mason appeals that sentence, primarily on the basis that the Judge failed to give any discount for cultural factors.
[3] The appeal was filed out of time.3 However, the delay is short and explained.4 Trial counsel had filed an appeal in time, but in the wrong Court. The Crown raises no objection to the appeal being filed out of time. The prospective appeal has merit. Accordingly, leave is granted.
The offending
[4] On 22 July 2019, the victim and Mr Mason were drinking with others at Mr Mason’s address in Papakura. The victim is known to Mr Mason. They had been drinking since the early afternoon. At approximately 6:00 pm, the victim and Mr Mason had an argument. The victim repeatedly punched Mr Mason in the mouth. He did not retaliate. Another person intervened and the fight was stopped. Mr Mason went inside while the victim sat in a vehicle which was parked in front of the address on the side of the road. After a short time, Mr Mason walked out of the house onto the front lawn. The victim approached and the two men started fighting again.
[5] During the altercation Mr Mason used a hammer to strike the victim twice; once on the head and once on the nose. He raised the hammer to strike the complainant a third time, but the victim grabbed the hammer and punched Mr Mason in the face. Mr Mason released the hammer. The victim walked away yelling that Mr Mason had “hammered” him in the head. He collapsed on the road opposite the house. Paramedics were required to intubate and ventilate him as he was experiencing
1 Crimes Act 1961, s 188(1). Maximum penalty is 14 years’ imprisonment.
2 R v Mason [2010] NZDC 9812.
3 See Criminal Procedure Act 2011, s 248(4).
4 See R v Lee [2006] 3 NZLR 42 (CA) at [115].
difficulty breathing. As a result of the fighting, the victim suffered a wound to the back of his head, a fracture to his nasal bone and extensive facial trauma.
[6]Mr Mason received a cut to his lip, a loose tooth and bruising to his lower back.
District Court decision
[7] In his sentencing remarks, Judge Harvey identified three aggravating features of the offending.5 First, he did not consider the offending to be spontaneous; instead, he characterised it as premeditated because after Mr Mason had disengaged following the initial fight, he had gone back inside, retrieved a weapon and then returned outside. Secondly, the Judge described the hammer as a “pretty deadly” weapon. Thirdly, the Judge considered the attack to the head was a seriously aggravating feature which could have been fatal. Connected to this, the Judge noted serious injury was caused. The Judge acknowledged that in the context of the offending there was an element of provocation. While he did not accept it justified Mr Mason’s actions, the Judge held that it entitled Mr Mason “to some sort of reduction from the starting point”.6
[8] The Judge considered that he could not overlook the fact “this was serious violent offending where injury was caused to a citizen, where that injury is going to be at least of a permanent nature” and may or may not cause some disability.7 He noted that blows to the head must be viewed as serious.
[9] The Judge commented on the “wide variety of circumstances” in cases similar to Mr Mason’s and considered this gave rise to the “gap” between the Crown’s suggested starting point and that of Mr Mason’s counsel (four to four-and-a-half years, compared to six-and-a-half to seven years).8 He indicated he had considered a starting point of six-and-a-half years. However, the Judge went on to say the following:9
“I am not unmindful of the fact that you have potential, that up until the time you moved to the city from the country you seemed set on a particular pathway that was law-abiding and where you would not get into trouble. You had a scholarship for Wesley. Ms Cowdell describes you as bright, I accept that, and
5 R v Mason, above n 2, at [3].
6 At [4].
7 At [6].
8 At [5].
9 At [7].
certainly that is suggested in the cultural report. It is not uncommon for people with potential to come to the city and to go off the rails a little it. The environment … is quite different from that in the country, the support services are not present, there certainly is a disconnect. So taking that into account, my view is that I can reduce the starting point that I was thinking of, of six and a half years, and bring it down to six years.”
[10] In light of Mr Mason’s previous convictions, the Judge uplifted the sentence by four months, to reach six years and four months’ imprisonment. He then applied a discount of six months to reflect the context of the offending and that there had been a dispute. This resulted in a sentence of five years and 10 months’ imprisonment.
[11] The Judge awarded a 25 per cent discount to reflect Mr Mason’s guilty plea and arrived at an end sentence of four years and five months’ imprisonment.
[12] The Judge acknowledged home detention would have been the best outcome from Mr Mason’s point of view but commented that he was “not going to do violence to the law just to bring you within the reign of home detention”.10 Relevant to the primary issue engaged on this appeal, the Judge explained why he had not allowed a discount for the cultural report:11
“One does not spend as much time in the practice of law or on the bench as long as I have without recognising patterns of behaviour, and the difficulties that young people have in moving from the country to the city or the city to the country and the various disconnects that occur. Is that causative of your offending? I do not think so. It provides, at least, context, but not causation and there must be a causative link between the cultural background, which, in my view, is good.”
[13] The Judge concluded that unfortunately, Mr Mason “fell among thieves” instead of associating with different people and making different choices.12 The Judge considered it was those choices which led to Mr Mason’s offending, and it was not a case where cultural deprivation had a causative role in the offending.
10 At [11].
11 At [12].
12 At [12].
Personal circumstances
[14] The PAC report of 19 May 2020 identifies Mr Mason’s problematic alcohol use as a key factor in his offending. His risk of harm towards others is assessed as moderate to high.
[15] A cultural background report, prepared in accordance with s 27 of the Sentencing Act 2002, was prepared for the Court by Anthony Jacobsen. It is comprehensive and informative. I will not descend into its detail, but I record the key factors identified by the author:
(a)first, Mr Mason has had a strong engagement with Te Ao Māori throughout his life, which was partially severed in 2017 when he moved to Auckland. He speaks te reo Māori fluently. The inter-generational trauma and disruption experienced by his iwi, Tuhoe, is set out, as well as its impact on succeeding generations;
(b)secondly, he grew up in a dysfunctional, violent home environment where abuse, gangs, violence, alcohol and drugs were a regular part of his life. During his school education, he demonstrated strong academic potential and won a scholarship to attend Wesley College as a boarder. He left after being involved in theft in Year 10 and did not continue his schooling. Tellingly, Mr Mason’s aunt told the report writer:
“… It horrifies and saddens me but it doesn’t surprise me!! I am just surprised he did so well early on at school as he went home to that environment every night. Was I surprised when I heard he used a hammer on someone’s head, No!! This was something he regularly saw as people would grab the closest thing to them or they could find, Dysfunction was normal to him.”
(c)thirdly, his mother died when he was 13 and at 15 he became a carer for his father, who had kidney failure and needed dialysis;
(d)fourth, he struggled with alcohol abuse from a young age, and struggled with anger and violence after moving to Auckland;
(e)fifth, he has nine children by four different partners. In 2016 he experienced a difficult break-up with the mother of five of his children and partner of nine-and-a-half years, and was in a “tempestuous and unhealthy” relationship in Auckland; and
(f)finally, Mr Mason takes ownership for his offending and lifestyle:
“I don’t want to blame others I need to look at myself.”
Approach on appeal
[16] I must allow the appeal against sentence if I am satisfied that there has been an error in the sentence imposed for any reason and that a different sentence should be imposed.13 The focus is on the sentence imposed, rather than the process by which it is reached.14 Although the sentence does not need to be “manifestly excessive”, this is a helpful concept when considering the seriousness of the error.15
Submissions
Appellant submissions
[17] Ms Wickliffe, for Mr Mason, submits that the Judge failed to take into account Mr Mason’s personal circumstances, as either a personal mitigating factor or a cultural factor. She submits that it appears the Judge made an allowance for Mr Mason’s personal and/or cultural factors when adjusting the starting point from six-and-a-half years to six years in light of Mr Mason’s “displacement” when he moved to Auckland. She considers this to be an “unusual approach” but does not dispute the starting point itself. Instead, the primary issue is the lack of a discrete discount to reflect Mr Mason’s personal cultural factors.
[18] Ms Wickliffe submits Mr Mason was raised in an environment of heavy drinking, gangs and violence. She refers back to relevant aspects of the cultural background report for examples including Mr Masons’s comment that “the whānau were stuck in intergenerational drinking and violence… it just became normal”.
13 Criminal Procedure Act 2011, s 250.
14 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
15 At [35].
Ms Wickliffe submits there is a “clear” nexus between Mr Mason’s background and his offending. She refers to Mr Mason falling back into the lifestyle he was used to when he moved to Papakura and his “four cornerstones of wellbeing” (physical, spiritual, mental and family) became disrupted.
[19] Ms Wickliffe refers to the 30 per cent discount awarded in Solicitor-General v Heta for cultural factors,16 but accepts the discount in that case also included a discount for willingness to engage in restorative justice processes. In oral submissions she suggested an appropriate discount for cultural factors would be 20 per cent.
[20] More broadly, Ms Wickliffe submits a discount should have been applied to recognise that a less restrictive term of imprisonment would meet the purposes underlying ss 8(i) and 27 of the Sentencing Act 2002. It would also reflect the advantages of returning Mr Mason to his community sooner.
Crown submissions
[21] Mr Kefu, for the Crown, submits that the cultural report does not show any credible account of social and cultural dislocation, poverty, alcohol and drug abuse (including by whānau members), unemployment, educational under achievement and violence as features of Mr Mason’s upbringing which have causative links to his offending. Mr Kefu submits the Judge was correct to conclude that the cultural report did not establish the necessary causative link between Mr Mason’s background and upbringing, and the offending. He says there is no error in the sentence imposed and it is not manifestly excessive.
[22] First, Mr Kefu says the report does not show any systemic deprivation. Mr Kefu describes Mr Mason growing up in a “stable family environment, but with elements of alcohol abuse and domestic violence”. He refers to Mr Mason having had the opportunity to continue his education, but he chose not to.
[23] Mr Kefu discusses Solicitor-General v Heta in some detail and refers to three Court of Appeal decisions; Arona v R, Fane v R and the Court’s more recent decision
16 Solicitor-General v Heta [2018] NZHC 2453, [2019] 2 NZLR 241.
in Carr v R.17 Discounts for cultural factors were given in both Heta and Carr. Mr Kefu distinguishes both cases and submits the factors of systemic deprivation were significantly greater in Heta and Carr than in Mr Mason’s case. Mr Kefu believes it was not inevitable that Mr Mason would end up in trouble with the Courts and that Mr Mason’s alcohol issues appear to be a relatively recent development, as there is no suggestion Mr Mason fell out of step with the law when he was drinking heavily when younger. Notably, from the time Mr Mason attended Wesley College to when he moved to Auckland in 2017, he lived a crime-free life.
[24] While Mr Kefu acknowledges Mr Mason was exposed to alcohol and drug abuse, as well as violence, from a young age, he submits Mr Mason was not “enmeshed” in a culture that caused him physical or psychological injury. Again, he distinguishes Mr Mason’s circumstances from those seen in Heta and Carr. Accordingly, Mr Kefu submits there is no causative link between the initial negative life that Mr Mason witnessed and partially participated in, and the present offending.
[25] In his oral submissions Mr Kefu suggested that in the event I determined the Judge was wrong not to find a causal link and I thus embarked on a re-sentencing exercise, a discount in the order of 10 per cent would be appropriate.
Discussion
Should the Judge have given a cultural background discount?
[26] In my view, the Judge was incorrect in viewing the factors discussed in the cultural background report as having no causal connection to Mr Mason’s offending. Mr Mason described his childhood as “normal” but there is evidence that he was exposed to violence and heavy alcohol use. The s 27 report indicates that he saw this as normalised behaviour and a “normal” way to respond to different pressures. There is some force in Ms Wickliffe’s oral submission that Mr Mason’s notion of normality has been distorted and informed by his abnormal and abusive childhood experiences. He has been drinking since he was nine years old, and on the day of the offending had been drinking for some time.
17 Arona v R [2018] NZCA 427; Fane v R [2015] NZCA 561; and Carr v R [2020] NZCA 357.
[27] Furthermore, I cannot accept the Crown’s assertion that the fact Mr Mason kept out of trouble when he was younger is somehow evidence which contradicts the assertion that his background influenced his offending. The deficits described in the s 27 report provide some explanation as to why he is a violent offender. The fact he has not offended as seriously before and seemed to show a lot of promise at a young age does not contradict the likelihood that his upbringing diminished the life choices available to him. In fact, this evidence underscores the claim as to Mr Mason’s resilience; that despite the social pathology of his upbringing he was, nonetheless, able to break out of it, albeit temporarily, and succeed. I note that his ex-partner told the author of the s 27 report that “he is a product of his environment and I don’t know why we expected any better”.
[28] I am satisfied there is a clear linkage between Mr Mason’s upbringing, particularly his exposure to violence and alcohol from childhood and the lack of normalisation of education, with his struggles with alcohol and violence in later life, and ultimately with the index offending. 18 His choices to respond to difficulties in his life through violence and alcohol abuse are in my view a response, in part, to his cultural background. The deprivation which he and his whānau have experienced is plainly a contributing factor here.
[29] Despite this, I agree that the systemic deprivation in the present case is not so stark as in Heta and Carr. However, this distinction does not point against a discount; it simply affects and informs the extent of the appropriate discount.
Was the end sentence manifestly excessive?
[30] Ultimately however, I must look at the overall sentence. The 72 month starting point (brought down to reflect the fact of the difficulties Mr Mason experienced after moving to Auckland) was reduced by six months for the context of the assault and uplifted by four months to reflect previous connections. Mr Mason received a 25 per cent guilty plea discount.
18 Whata J outlines the requirement for linkage in Solicitor-General v Heta [2018] NZHC 2453, [2019] 2 NZLR 241 at [50].
[31] Reviewing similar cases, I am satisfied that the sentence was too high.19 This requires me to start the sentencing process afresh.
[32] I agree with the Judge’s identification of the relevant aggravating factors. In terms of Taueki, I consider the relevant aggravating features here are:
(a)the use of a hammer as a weapon;
(b)the degree of premeditation (because Mr Mason had disengaged from the fight and returned to it); and
(c)that he targeted the victim’s head and the seriousness of the injury.
[33] I consider that the context of the fight and the operative degree of provocation from the victim is a mitigating factor of the offending itself.20 The offending fits into the upper end of band one of Taueki (three to six years). Looking at comparable decisions, I will set a starting point of five-and-a-half years.21
[34] I consider a 12 per cent discount for the matters set out in the s 27 report is appropriate. From that point I will follow the Judge’s approach. I will increase the sentence by four months for his previous convictions and grant a 25 per cent discount
19 R v Taueki [2005] 3 NZLR 372 (CA) at [31].
20 At [32].
21 See Xie v R [2019] NZCA 218: the offence involved wounding husband with a knife causing serious injury, where there was low level provocation hours earlier but ‘no instantaneous loss of control’ and a degree of premeditation in bringing knife to the scene and concealing it. Starting point of five years not disturbed on appeal, noted that five and a half years would be in the available range. Orchard v R [2019] NZCA 529: offender impulsively drove intentionally into lamp post (considered use of a weapon) with his wife in car, unbuckled her seatbelt so her head would sustain injury. Starting point is six years and six months' imprisonment. In R v Broughton [2019] NZHC 2141: the offence involved severe attack on head/neck with a sword following a verbal argument with the victim, where offender left scene and came back with sword, so victim’s provocative conduct had modest impact. Starting point is seven years' imprisonment. R v McGregor [2007] NZCA 435: one-on-one offending involving the use of shovel as weapon and attack to the head. Starting point is five and a half years.
for his plea of guilty.22 This results in an end sentence of three years and ten months’ imprisonment. Expressed another way, the calculation is 66 – (8 + 16 – 4) = 46.
Result
[35]The appeal is allowed.
[36] The sentence on appeal is quashed and a sentence of imprisonment of three years and ten months’ is substituted.
Moore J
Solicitors:
Ms Cresswell, Auckland Crown Solicitor, Manukau
22 Imposed according to Moses v R [2020] NZCA 296.
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