Mason v The Queen - [2020] NZHC 2465

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,…

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.

Continue reading Mason v The Queen

Details

AGLC: Mason v The Queen [2020] NZHC 2465
Case: [2020] NZHC 2465
Decision Date: 22 September 2020

CaseChat Overview and Summary

The case of Mason v The Queen involves an appeal against the sentence imposed on Kaharoa Mason, who pleaded guilty to one charge of wounding with intent to cause grievous bodily harm. The District Court had sentenced Mason to four years and five months' imprisonment, a sentence which he now appeals on the basis that the sentencing judge failed to give any discount for cultural factors. The appeal was filed out of time but was granted leave due to its merit and the short delay, which was explained by a mistake in the filing process. The Crown did not object to the late filing.

The primary issue before the court was whether the sentencing judge should have given a cultural background discount. The court held that the judge was incorrect in viewing the factors discussed in the cultural background report as having no causal connection to Mason's offending. The evidence showed that Mason was exposed to violence and heavy alcohol use from a young age, which he saw as normalised behaviour. The systemic deprivation in Mason's case, while not as stark as in other cases, still pointed to a contributing factor in his offending.

The court found that the sentence was too high and decided to start the sentencing process afresh. It identified the relevant aggravating factors and applied an appropriate discount for the cultural factors, resulting in a sentence of three years and ten months’ imprisonment. The appeal was allowed, and the original sentence was quashed and replaced with the new sentence.

Orders