Mau v Police

[2021] NZHC 1290

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CRI-2021-488-000013

[2021] NZHC 1290

IN THE MATTER OF

an appeal against sentence

BETWEEN

KEITH MAU

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

2 June 2021

Counsel:

M Taylor-Cyphers for Appellant

J M M Johnson-Aufai for Respondent

Judgment:

2 June 2021

(ORAL) JUDGMENT OF EDWARDS J

Counsel:     M Taylor-Cyphers, Auckland

Solicitors:    Marsden Woods Inskip Smith (Office of the Crown Solicitor), Whangarei

MAU v POLICE [2021] NZHC 1290 [2 June 2021]

[1]                 Mr Mau was sentenced on 20 November 2020 to two years’ imprisonment for one charge of robbery, and two months’ imprisonment for one charge of unlawfully being in an enclosed yard without reasonable excuse.1 The latter sentence is to be served cumulatively on the first. The sentence follows guilty pleas to both charges.

[2]                 Mr Mau appeals these sentences on the grounds that the discount for personal mitigating features was inadequate, the Judge failed to make a totality adjustment, and the sentence was not calculated in accordance with the Court of Appeal’s decision in Moses v R.2

[3]                 The appeal is filed out of time. The delay is due to difficulties in accessing legal advice and legal aid from prison. The period of delay is moderate, and the Crown does not oppose. I grant an extension of time to bring the appeal accordingly.3

The offending

[4]                 The robbery charge arose out of events on 29 June 2019. Mr Mau had arranged a test drive of a Holden Commodore SS utility which was advertised for private sale. Mr Mau contacted the owner via an associate and arrived at the owner’s home address. He offered him $12,000 for the car and asked for a test drive. The owner refused to allow Mr Mau to drive the car on his own and accompanied him as Mr Mau drove the car through the back streets of Kaikohe and on to the main road.

[5]                 On the pretence of a closer inspection, Mr Mau stopped the car, released the bonnet and got out of the car. Having walked to the back of the car, he then shut the bonnet, got back into the car, and told the complainant he was taking the car. When the complainant protested, Mr Mau responded by grabbing him, pulling his clothing over his head, and punching him several times to the head and body.

[6]                 An unknown male, believed to be an associate of Mr Mau, got out of a car parked on the other side of the road and joined the assault. The unknown male held the complainant down while both he and Mr Mau assaulted him. The complainant

1      R v Mau [2020] NZDC 24313.

2      Moses v R [2020] NZCA 296, (2020) 29 CRNZ 381.

3      Criminal Procedure Act 2011, s 248(4)(a).

then escaped from the two men and ran away. He sustained minor cuts and bruises to his face, head and body.

[7]                 The car was later recovered in Auckland on 1 July 2019 without the ignition key. In explanation to police, Mr Mau stated that the car owner was a drug dealer who agreed to give Mr Mau the vehicle to ensure Mr Mau kept quiet about his drug activities.

[8]                 There is little information about the charge of being unlawfully in an enclosed yard. What follows is taken from the sentencing notes of Judge McDonald. Approximately one week after the robbery, on 7 July 2019, Mr Mau was found in the back yard of a residential address in Auckland. The owner of this address was a single female with two children under 10 years of age.

District Court sentencing

[9]                 The Judge took the robbery as the lead charge. He identified three aggravating features, namely: a high level of planning and premeditation; multiple people involved; and the use of actual violence. A starting point of two years and six months’ imprisonment was adopted.4

[10]              The Judge applied a two-month uplift for the separate offending of being unlawfully in an enclosed yard which the Judge regarded as serious offending.

[11]              A further uplift of two months was applied for Mr Mau’s long criminal history, which did not include robberies or aggravated robberies, but did include convictions for dishonesty offences.

[12]              As to personal mitigating features, a 15 per cent discount was applied for the guilty plea. The Judge also had regard to a cultural report which outlined a very poor upbringing characterised by violence and abuse. The Judge noted that he could not take into account the fact that Mr Mau was using methamphetamine at the time of the offending, but nevertheless considered that some discount for Mr Mau’s upbringing

4      R v Mau [2020] NZDC 24313, at [10].

and factors raised in the report was appropriate. That included the rehabilitative work Mr Mau had  completed  in  prison  and  expressions  of  remorse.  A  discount  of  10 per cent for these factors was applied.

[13]              The Judge turned his mind to a non-custodial sentence but noted that the proposed residential programme was not appropriate given the nature of Mr Mau’s offending. In any event, the end sentence was greater than two years and so the option of home detention was not available.

[14]              An end sentence of two years’ imprisonment was imposed for the charge of robbery with a cumulative sentence of two months’ imprisonment for unlawfully being in an enclosed yard.

Is the sentence manifestly excessive?

[15]              Mr Mau does not challenge the starting point of two years and six months’ imprisonment on the lead charge. Nor does he challenge the two-month uplift for unlawfully being in an enclosed yard, and the two-month uplift for criminal history. The focus of the appeal is on the failure to consider totality, the quantum of discounts applied for personal mitigating factors, and the construction of the sentence in accordance with Moses v R.

[16]              As to totality, it is accepted that the Judge did not expressly refer to the principle of totality, but that does not mean the end sentence was manifestly excessive. There is no basis to suggest that the accumulated starting point was out of range or that a totality adjustment was required. In any event, there is no challenge to those starting points and no support offered for a suggested reduction of one or two months’ imprisonment for totality reasons.

[17]              The key plank of challenge concerns the available discounts. First, counsel for Mr Mau submits that a discount of 20 per cent should have been applied for the guilty plea rather than the 15 per cent applied by the Judge. Mr Mau pleaded guilty to the charge of robbery on 7 September 2020, which was the same day the charge was amended from aggravated robbery to robbery and an assault with a weapon charge was discharged under s 147. Counsel submits that Mr Mau pleaded guilty at the

earliest opportunity once resolution had been reached and a higher discount should therefore have been applied.

[18]              Mr Mau first appeared on 10 July 2019 and back-up trial dates of 6 July 2020 and 7 September 2020 were allocated on 27 February 2020. The charges originally faced by Mr Mau were for aggravated robbery and assault with a weapon. These charges were amended on the morning of the trial on 7 September 2020. The Judge’s sentencing notes record that the other charge, assault with a weapon, was discharged without conviction at the same time. Counsel for the Crown submits that the resolution whereby Mr Mau would plead guilty to a single charge of robbery was offered in February 2020, prior to callover and the allocation of back-up trial dates. In those circumstances, I am satisfied that the discount of 15 per cent applied by the Judge strikes a balance between the entry of guilty pleas to the amended charges, and the fact that a plea to the lead charge could have been entered at an earlier date.

[19]              Next, Mr Mau challenges the discount applied for his personal background, and for rehabilitation and remorse. Mr Mau’s personal background was outlined in a cultural report prepared under s 27 of the Sentencing Act 2002. That report outlined a background of physical abuse from a young age, family dysfunction, gang affiliation, and poverty. The report writer noted that “the harrowing details of [Mr Mau’s]  exposure to social, cultural and economic deprivation highlight the drivers to his prison pipeline”. The report also captured Mr Mau’s expressions of remorse recorded in a letter of apology dated 12 August 2020, and his intention to seek psychological counselling and drug rehabilitation.

[20]              The causative link between Mr Mau’s violent and deprived background and his offending was indirect in this case. There was no suggestion that Mr Mau suffers from a methamphetamine addiction or that the offending was addiction-driven. The Judge was correct to note that no discount could be applied for the fact that Mr Mau was high at the time of the robbery. Nevertheless, Mr Mau’s severely disadvantaged background no doubt impaired his ability to make pro-social choices and, in that sense at least, indirectly mitigated his culpability. Another Judge may have applied a higher discount for this factor, and Mr Mau’s positive rehabilitative prospects, but I do not

consider the discount applied to be in error. It was a well-reasoned and within range discount, which should not be disturbed on appeal.

[21]              For completeness, and to address the oral submissions made this morning, I note that the discount applied by the Judge covered Mr Mau’s expression of remorse and rehabilitative prospects.

[22]              Finally, counsel for Mr Mau challenges the sentence on the basis of the Court of Appeal’s decision in Moses v R. To the extent that this challenge is to the Judge’s methodology in setting the end sentence, then it must fail. The Judge clearly applied the two-step methodology in reaching the end sentence of two years, two months’ imprisonment (the 25 per cent discount comprising the 15 per cent discount for guilty plea and 10 per cent for personal mitigating factors) was applied to the adjusted starting point of 34 months’ imprisonment (that is, 30 months starting point, two months uplift for additional charge, and two months uplift for criminal history) to reach the end sentence of 26 months’ imprisonment.

[23]              It appears that the Judge may have rounded the sentence up from 25 months, two weeks’ imprisonment, to 26 months, but that is not an error and nor does it require correction. The 26 months’ imprisonment imposed by the Judge was within range and there is no reason to suggest it was manifestly excessive in all the circumstances.

[24]              Ms Taylor-Cyphers submits that the two months’ sentence for being unlawfully in a yard without an excuse was imposed in error as the discounts for personal mitigating circumstances and the guilty plea discount were not applied to that sentence. I do not agree. The confusion appears to arise because the end sentence imposed for this charge was the same as the uplift applied by the Judge. However, it is clear, from the Judge’s sentencing notes and the way in which that sentence was constructed, that the discounts for guilty plea and personal mitigating factors were applied to the adjusted starting point for the totality of the offending, that is, for both charges.

[25]              In sum, I am satisfied that there is no error in the sentences that requires correction on appeal. The end sentences are within range and there is nothing to suggest that they were manifestly excessive in all the circumstances.

Result

[26]An extension of time to bring the appeal is granted.

[27]The appeal is dismissed.

Edwards J