Mau'u v The Queen - [2015] NZCA 80

IN THE COURT OF APPEAL OF NEW ZEALAND

CA406/2014
[2015] NZCA 80

BETWEEN	DENNIS MAU'U Appellant
AND	THE QUEEN Respondent

Hearing:	9 March 2015
Court:	Stevens, Asher and Williams JJ
Counsel:	M N Pecotic for Appellant P D Marshall for Respondent
Judgment:	24 March 2015 at 3.00 pm

JUDGMENT OF THE COURT

The appeal against sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Williams J)

Introduction

When arraigned in the Auckland District Court on 28 April 2014, the appellant, Dennis Mau’u, faced seven charges relating to supply of drugs, robbery and violence. He pleaded guilty and on 4 July 2014 was sentenced by Judge Sharp to three years’ imprisonment.[1]
[1]R v Mau’u DC Auckland CRI-2011-090-8940, 4 July 2014 [sentencing decision].
During the entire period of his offending between August 2010 and April 2011, the appellant was an inmate at Auckland Central Remand prison. He was serving a sentence of three years and six months’ imprisonment on kidnapping, indecent assault and various firearms related charges committed in 2009. He was also on remand for other charges relating to aggravated robbery, kidnapping and unlawful possession of a firearm committed in 2010.
Mr Mau’u now appeals his sentence.

Summary of offending

The offending to which this sentence related involved the appellant and his two brothers, Tuvale and Henry. The brothers were not in prison. The evidence of offending was drawn largely from the record of telephone calls made by the appellant from Auckland Central Remand prison to the Mau’u family home in Glen Eden, where his brothers resided. For ease of identification, we refer to each.

Count 1 – conspiracy to commit common assault

The appellant and Henry spoke by telephone and, as a result of the conversation, Henry agreed he would assault a third party – Junior Leota.

Count 2 – conspiracy to commit robbery

In a telephone conversation between Dennis and Tuvale, Tuvale agreed that he would “tax” a third party by the name of Glen, by taking Glen’s black HQ Holden. It was agreed in a second call that Tuvale would use a cricket bat to enforce the vehicle theft.

Count 3 – theft

Dennis arranged with Tuvale to undertake a fake drug sale in order to obtain $20,000 from a prospective drug buyer. Tuvale later informed Dennis that they had successfully obtained $19,980 through this fake sale and discussed how the money would be divided and spent between those involved in the theft.

Count 5 – conspiracy to supply methamphetamine (representative)

This count relates to planning among Dennis and his brothers in relation to multiple transactions for or with unknown third parties, across a number of months.
Dennis spoke to Tuvale by telephone and asked him to obtain two grams of methamphetamine from an unknown associate to be delivered to Dennis via a corrupt prison guard. Tuvale duly complied. The drugs were then split into Q-bags to be on-sold.
Dennis also arranged for Tuvale to obtain first one gram and then later seven grams of cannabis…

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 Mau'u v The Queen

Details

AGLC: Mau'u v The Queen [2015] NZCA 80
Case: [2015] NZCA 80
Decision Date: 24 March 2015 at 3.00 pm

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, the case of Dennis Mau’u, an appellant, against The Queen, the respondent, was heard on 9 March 2015. The appellant, Dennis Mau’u, appealed against the sentence imposed on him by Judge Sharp in the Auckland District Court on 4 July 2014, for seven charges relating to drug supply, robbery, and violence. The appeal was dismissed by the Court of Appeal, which comprised Stevens, Asher, and Williams JJ. The appellant was represented by M N Pecotic, while the respondent was represented by P D Marshall. The judgment was delivered on 24 March 2015.

The primary legal issues before the Court were whether the starting point of the sentence was too high, whether the Judge should have granted a discount for personal mitigating factors, and whether the sentence was manifestly excessive when considering the principle of totality. The Court found that the Judge’s sentencing represented an appropriate application of the Taueki sentencing methodology and found no material error in the sentence imposed.

The Court of Appeal considered the Judge's reasoning and found it to be appropriate, with the starting point for the lead offence of conspiracy to supply methamphetamine being at the lower end of band two. The discount for conspiracy only was slightly generous, but the uplift for the prison context was consistent with established case law. The uplift for the remaining counts was deemed to be orthodox, and the reduction for totality was generous but not unprecedented. The Court concluded that the appeal against sentence should be dismissed.

In summary, the Court of Appeal upheld the sentence imposed by the Auckland District Court on Dennis Mau’u and dismissed his appeal against the sentence.

Orders