Mau v R - [2021] NZCA 106

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA497/2020
[2021] NZCA 106

BETWEEN	JUNIOR MAU Appellant
AND	THE QUEEN Respondent

Hearing:	30 November 2020
Court:	Goddard, Lang and Hinton JJ
Counsel:	M J Taylor-Cyphers for the Appellant Z A Fuhr for the Respondent
Judgment:	1 April 2021 at 11.00 am

JUDGMENT OF THE COURT

AThe application for leave to appeal out of time is granted.
BThe appeal is allowed.
CThe sentence of five years and four months’ imprisonment imposed in the District Court is quashed and a sentence of three years and eight months’ imprisonment is substituted.

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REASONS OF THE COURT

(Given by Hinton J)

On 4 June 2020 in the District Court at Whangarei, following Mr Mau’s guilty plea to a single charge of aggravated robbery,[1] Judge de Ridder sentenced him to five years and four months’ imprisonment.[2] Mr Mau seeks to appeal against sentence, saying it was manifestly excessive. In particular, he says the starting point adopted was too high for his level of involvement and the Judge did not allow adequate discounts to reflect his personal circumstances and cultural background.

Leave to appeal out of time

[1]Crimes Act 1961, s 235(c). Maximum penalty 14 years’ imprisonment.

[2]R v Mau [2020] NZDC 10197.

Mr Mau’s appeal was filed 45 working days out of time. His counsel, Ms Taylor-Cyphers, says this was because former counsel had incorrectly filed the appeal in the High Court. The delay having been explained, and absent prejudice to or opposition by the Crown, we grant leave to appeal out of time.

Offending

On 22 March 2018, Mr Mau’s half-brother and an associate[3] robbed the ANZ Bank in Whangarei. Mr Mau was the get-away driver.
[3]The agreed summary of facts records that both co-offenders were half-brothers of Mr Mau, and we note the co-offenders share a last name. For whatever reason, in the District Court and on this appeal, the relationship between Mr Mau and the third offender was not described in those terms. Not being certain as to their relationship, we refer to the third offender as an “associate”.
The summary of facts, on the basis of which Mr Mau pleaded guilty, records that he was called on the morning of the robbery and asked to participate as the driver of the car that would pick up the co-offenders, drive them to a location in the Avenues, wait, then drive them away following the robbery. It is common ground on appeal that Mr Mau was not involved in planning the robbery in the preceding days.
Mr Mau dropped his half-brother and associate at Cafler Park, near the ANZ. They were both heavily disguised. Mr Mau’s two-year-old daughter was in the car. He had taken the day off work to look after her as she was sick.
The two co-offenders entered the bank, one of them opening a set of glass doors by force. Mr Mau’s half-brother removed a sawn-off rifle from his trousers and…

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 v R

Details

AGLC: Mau v R [2021] NZCA 106
Case: [2021] NZCA 106
Decision Date: 1 April 2021 at 11.00 am

CaseChat Overview and Summary

In Mau v R, Junior Mau appealed against a five years and four months’ imprisonment sentence imposed by the District Court for aggravated robbery. Mau argued that the starting point for his sentence was too high and that the Judge did not adequately discount his sentence for his personal circumstances and cultural background. The Court of Appeal granted leave to appeal out of time and allowed the appeal. The starting point was found to be too high, and the sentence imposed was manifestly excessive. The sentence was quashed and replaced with a sentence of three years and eight months’ imprisonment. The Court found that the starting point should have been five years and six months’ imprisonment, and that discounts should have been allowed for personal and cultural background circumstances. However, no discount was allowed for the impact of Mr Mau’s imprisonment on his family due to his history of family violence. The Court found no basis for any discount for remorse.

Orders