Mauala v The King
[2025] NZHC 1588
•16 June 2025
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI 2025-404-223
CRI 2025-404-224
[2025] NZHC 1588
BETWEEN TEPANIA MAUALA
Appellant
AND
THE KING
Respondent
Hearing: 10 June 2025 Appearances:
A F McLean for the Appellant A Chan for the Respondent
Judgment:
16 June 2025
JUDGMENT OF HARVEY J
This judgment is delivered by me on 16 June 2025 at 2.00 pm.
……………………………… Deputy Registrar
Solicitors:
Kayes Fletcher Walker, Manukau
Counsel:
Q Duff & A McLean, Barristers, Auckland
MAUALA v R [2025] NZHC 1588 [16 June 2025]
Introduction
[1] On 17 February 2023, a fight occurred outside a bar in Pakuranga between several victims and a group of offenders including Tepania Mauala. The offenders outnumbered the victims and continued to punch, kick and stomp them after they had fallen unconscious (the violence offending).1 Then on 13 March 2024, while Mr Mauala was already on bail for the violence offending, Police executed a search warrant at his home. They found 23 grams of methamphetamine in several self- sealing zip lock bags, 4.66 grams of cocaine in a self-sealing zip lock bag, 54 rounds of .22 ammunition, $1,450 in cash, scales and empty zip lock bags (the drug offending). Police also identified a mobile phone belonging to Mr Mauala but he refused to provide them with the phone’s code.
[2] Mr Mauala pleaded guilty and was convicted of injuring with intent to cause grievous bodily harm,2 assault with intent to injure,3 possession of methamphetamine for supply,4 possession of cocaine,5 unlawful possession of ammunition6 and failure to carry out obligations regarding a computer search.7 On 16 April 2025, Judge Radich at the Manukau District Court sentenced Mr Mauala to three years and 10 months’ imprisonment. He now appeals this sentence on the grounds that the starting point for the drug charges was manifestly excessive and that insufficient reductions were given for his personal mitigating factors.8 The Crown opposes the appeal.
District Court decision
[3] The Judge adopted a starting point of four years and six months’ imprisonment on the violence charges. As to the drug offending, he found that the quantity of
1 R v Mauala [2025] NZDC 7971 [Decision under appeal]. A summary of the offending can be found at [8]–[28].
2 Crimes Act 1961, s 189(1). Maximum penalty: 10 years’ imprisonment.
3 Section 193. Maximum penalty: three years’ imprisonment.
4 Misuse of Drugs Act 1975, s 6(1)(f) and (2)(a). Maximum penalty: life imprisonment.
5 Section 7(1)(a) and (2)(a). Maximum penalty: six months’ imprisonment and/or a $1,000 fine.
6 Arms Act 1983, s 22B. Maximum penalty: $10,000 fine.
7 Search and Surveillance Act 2012, s 178. Maximum penalty: three months’ imprisonment.
8 Notably, counsel for Mr Mauala accepted that the starting point for the violent offending, the uplift for offending on bail and the guilty plea discount were all within range, and these are not challenged on appeal.
methamphetamine placed the offending at the low end of band two in Zhang.9 In addition, the Judge held that the cash and indicia of supply found at Mr Mauala’s address (the drugs, scales and zip lock bags) suggested that Mr Mauala was engaged in commercial drug dealing.10 His Honour also aired concern about the ammunition, although acknowledging this was a fine only offence, and referred to Mr Mauala’s comments that his drug offending was driven by a desire to have “nice things” rather than solely to fuel his own drug use. Overall, the Judge considered a starting point of three years was appropriate for the drug charges.
[4] Given the different natures of the violence and drug offending, the Judge found that cumulative sentences were appropriate. Further, he imposed an uplift of three months’ imprisonment to recognise the fact that the drug offending occurred while Mr Mauala was still on bail for the violence offending. By a narrow margin, the Judge then provided a nine-month reduction for totality. This resulted in a total global starting point of seven years’ imprisonment.
[5] Finally, the Judge provided a 20 per cent reduction for Mr Mauala’s guilty plea, and a further 25 per cent combined reduction for his youth, absence of prior convictions, efforts at rehabilitation, time spent on electronically monitored bail and personal background. This led to the end sentence of three years and 10 months’ imprisonment.
Approach on appeal
[6] The approach to sentence appeals is well-settled. The Court must allow the appeal if satisfied that there has been an error in the sentence imposed and that a different sentence should be imposed.11 The sentence must be shown to be manifestly excessive or wrong in principle.12
9 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.
10 See Manuel v R [2022] NZHC 654.
11 Criminal Procedure Act 2011, s 250(2).
12 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30]–[35].
Was the starting point for the drug offending manifestly excessive?
[7] Ms McLean for Mr Mauala accepted that the offending falls within the low end of band two in Zhang.13 However, counsel submitted that the alcohol and other drug (AOD) report dated 1 April 2025 confirmed that Mr Mauala’s addiction to methamphetamine was the key driver of his offending. Moreover, Ms McLean contended that Mr Mauala falls into the “lesser” role category outlined in Zhang, as he performed a limited function and was driven by naivety or other vulnerability.
[8] Counsel referred to the case of Tregoweth, where the Court of Appeal took no issue with the District Court’s starting point of two years and six months’ imprisonment for possession of 43.1 grams of methamphetamine for supply.14 This starting point was based on the Courts’ acceptance that Mr Tregoweth’s role in the supply of methamphetamine was limited and his dealing activities were, partly, to fund his own addiction. Ms McLean argued that because Mr Mauala was charged with roughly half the quantity of methamphetamine as in Tregoweth (23 grams as opposed to 43.1 grams), Mr Mauala should receive a starting point half as long. Accordingly, counsel submitted that an uplift of only 15 months’ imprisonment was appropriate for Mr Mauala’s drug charges.
[9] Ms Chan for the Crown submitted that the Judge was correct to conclude Mr Mauala’s commercial drug dealing was not undertaken solely to fund his own addiction. Indeed, Mr Mauala’s 11 October 2024 pre-sentence report comments show that a desire for wealth and advancement was his key motivation: “I was being greedy, I was working but wanted extra cash”. Ms Chan acknowledged that the AOD report recorded Mr Mauala’s claim that he started using methamphetamine when he was 21 years old, and that he was encouraged to deal in methamphetamine to pay for his own supply. However, counsel highlighted that Mr Mauala continued to sell drugs while moving in and out of employment, and reported being enamoured by older male youth who engaged in crime and flaunted the proceeds around the neighbourhood: he said this was the only example of wealth that he saw, and that he aspired to it.
13 Zhang v R, above n 9.
14 Tregoweth v R [2021] NZCA 311.
[10] Ms Chan argued that Mr Mauala’s role involved elements from both the “lesser” and “significant” categories set out in Zhang. While he was seemingly not involved in a broad commercial operation, counsel contended that the items found at his house indicated he was expecting financial gain and was operating a small-scale operation dealing in methamphetamine. Ms Chan also referred to cases with similar starting points for similar indicia of commerciality, albeit involving slightly greater quantities of methamphetamine.15 Counsel also sought to distinguish Tregoweth on the basis that there were no indicia of commerciality in that case.
[11] Moreover, Ms Chan submitted that the Judge did not uplift the starting point to take account of Mr Mauala’s possession of cocaine and ammunition charges, as well as his failure to carry out obligations as to a computer search. Counsel contended that, given the starkly different nature of the violence and drug offending, and their separation of one year (and many appearances), an adjustment for totality was not strictly necessary. Overall, Ms Chan submitted that the starting point was generous.
Discussion
[12] I do not consider the case of Tregoweth helpful. The starting point there was not challenged or otherwise put in issue on appeal and so it was not directly addressed by the Court of Appeal. In any case, I accept Ms Chan’s argument that, although Mr Tregoweth was convicted of possession for supply, there were fewer indicia of commerciality than in Mr Mauala’s case: for example, there were no scales or zip lock bags.
[13] The cases cited by the Crown are of more assistance as in those cases the starting points were directly put in issue.16 They involved similar, although slightly greater, indicia of commerciality and quantities of methamphetamine.17 They also involved similar, although slightly greater, starting points: three years and two months’ imprisonment in Manuel, and three years and six months’ imprisonment in Govender
15 Manuel v R [2022] NZHC 654; and Govender v R [2019] NZHC 3212.
16 Manuel v R, above n 15; and Govender v R, above n 15.
17 Mr Manuel was found carrying 26.82 grams of methamphetamine separated among zip-lock bags,
$2,015 in cash, 13 small “deal bags” and two cell phones. Mr Govender was found in possession of 29 grams of methamphetamine, 10 grams of cannabis, digital scales, zip lock bags, a notebook containing records of drug transactions, and $816.80 in cash.
— both of which were challenged but upheld on appeal. The three-year starting point adopted by Judge Radich for Mr Mauala’s drug offending is consistent with these cases given the fewer indicia of commerciality and lower quantum of methamphetamine in Mr Mauala’s case.18
[14] Similarly, it does appear from both statements and the items at his address that Mr Mauala was expecting financial gain and was operating a small-scale operation dealing in methamphetamine. In combination with the influence of his own substance use on his drug offending, Mr Mauala appears to have elements from both the “lesser” and “significant” categories. While Mr Mauala’s substance abuse may have partially motivated his drug offending, material gain appears to also have been a key driver. The AOD report supports this assessment when expressing Mr Mauala’s enamour with young male youth who displayed their criminal proceeds, and when describing his exposure to criminality as a desperate but viable means for surviving disparity.
[15] Although the AOD report recorded that Mr Mauala’s offending was fuelled by a poly-substance abuse disorder, it appears that this was primarily in relation to his violence offending, which occurred when he was heavily intoxicated by alcohol, MDMA and methamphetamine. The report does not discuss at any length how Mr Mauala’s substance abuse drove his drug offending, apart from stating that he was encouraged to sell and swap methamphetamine to pay for his own supply when he was
21 years old, and that he has dedicated much of his time to obtaining methamphetamine and MDMA. This suggests that his offending was likely partially motivated by his substance abuse, but it does not entail that this was the sole driver of his drug offending or that he did not expect to obtain a financial gain.
[16] I consider it was open to the Judge to find that Mr Mauala’s drug offending was not carried out solely to fund his own use and that Mr Mauala was engaged in commercial dealing. Taking account of the factors outlined in Zhang, and the cases of Manuel and Govender, I find that the Judge’s adopted starting point of three years’ imprisonment was appropriate and within range.
18 Mr Mauala was found in possession of 23 grams of methamphetamine in several zip lock bags,
4.66 grams of cocaine in a zip lock bag, 54 rounds of .22 ammunition, $1,450 in cash, scales and empty zip lock bags.
Were the reductions for personal mitigating factors insufficient?
Youth
[17] Mr Mauala was 23 years old during the violence offending and 24 years old during the drug offending. Ms McLean submitted that a reduction of 15 per cent was warranted to recognise Mr Mauala’s youth at the time of the offending and his associated poor judgment, greater impulsivity and demonstrated capacity for rehabilitation. Conversely, Ms Chan submitted that courts have generally been reluctant to provide reductions for youth beyond about 24 years of age.19 Any reduction for Mr Mauala’s youth would need to take into account that Mr Mauala was at the upper end of “youth” and offended twice in different ways a year apart. Counsel contended that a reduction of no higher than five per cent would have been appropriate.
Discussion
[18] The violence offending was the kind of offending to which a reduction for youth would usually apply it was impulsive, reckless and involved the influence of peers. On the other hand, Mr Mauala was 23 years old and at the upper limit of “youth”. Fundamentally, I consider that the Judge was correct to find that a reduction of less than 15 per cent was appropriate for Mr Mauala. Rather, a reduction of around five per cent was appropriate: such a reduction was made in R v Ovaleni for similar violence offending by an intoxicated 23-year-old.20
Previous good character
[19] Mr Mauala had no previous convictions. Ms McLean argued Mr Mauala’s previous good character is shown by the support letters provided at sentencing. Counsel did accept this factor is tempered by the fact the drug offending occurred while Mr Mauala was on bail for the violence offending. However, Ms McLean contended that applying both an uplift for offending while on bail and also discounting the reduction for prior good character amounted to “double punishment”. Counsel contended that a five percent reduction for prior good character was appropriate.
19 Citing, as an example, R v Ovaleni [2018] NZHC 2034.
20 Although the consequences of the violence were lethal in R v Ovaleni, the actual violence carried out by the offender was less severe than in Mr Mauala’s case.
[20] Ms Chan argued that the Judge was entitled to consider no discount for previous good character was available for the drug offending because it took place after Mr Mauala had pleaded guilty to the violence charges. Counsel submitted that without evidence of a positive contribution to the community, the credit will be limited. The letters from Mr Mauala’s family do not speak about his previous good character, but rather his actions and support since the offending. Ms Chan argued it was open to the Judge to grant no reduction or one of less than five per cent.
Discussion
[21] The Judge accepted that some reduction was appropriate to acknowledge Mr Mauala’s lack of criminal history and letters in support of his good character. A clean slate is evidence of previous good character worthy of some recognition.21 Even so, I accept the argument that any such benefit is limited without evidence of a positive contribution to the community.22 I also accept her submission that the letters in support of Mr Mauala largely speak to his good character after the offending, not before it. I consider a reduction of less than five per cent would have been open to the Judge: particularly given that Mr Mauala’s drug offending occurred after he pleaded guilty to the violence offending. This is not “double punishment” but rather recognition of the fact that, in relation to the drug offending, Mr Mauala’s character had already been tarnished by his violence offending. I consider a total reduction of approximately two per cent would have been appropriate for Mr Mauala’s prior good character.
Remorse and rehabilitative efforts
[22] Ms McLean submitted that Mr Mauala has engaged in a significant programme of rehabilitation that is “greater than most” including a 20-week Man Alive stopping violence programme, four individual treatment sessions, an eight-week programme with group sessions with Tupu Services (Community Alcohol and Drug Services), and attendance at Narcotics Anonymous meetings.23 Counsel also contended that Mr Mauala demonstrated genuine remorse in his letter to the Court and to one of the authors of the AOD report. Ms McLean highlighted that Mr Mauala was willing to
21 R v Hockley [2009] NZCA 74 at [30].
22 Manawaiti v R [2013] NZCA 88 at [19].
23 Citing R v Hill [2008] NZCA 41 at [12].
participate in restorative justice but his matters did not proceed to conference. Ms McLean argued that these efforts and genuine expressions of remorse justified greater recognition than provided in the Judge’s global 25 per cent reduction. Counsel submitted a reduction of 20 to 25 per cent would have been appropriate for rehabilitation and remorse alone.
[23] Ms Chan submitted that more rehabilitation remains to be done, such as entry into residential rehabilitation. Counsel referred to Moses v R, which noted that: remorse is a question of fact and judgment, the defendant bears the onus of showing genuine remorse, remorse need not be extraordinary but requires something beyond the bare acceptance of responsibility, and courts will look for tangible evidence of remorse.24 In addition, Ms Chan argued that courts have routinely observed that willingness to engage in restorative justice is not enough to justify a separate reduction for remorse.25 Counsel highlighted that restorative justice did not proceed in this case. Ms Chan submitted that, accordingly, a combined reduction of only 10 per cent would have been appropriate for rehabilitation and remorse.
Discussion
[24] Mr Mauala has expressed both remorse (through his letter and statements to report writers) and a willingness to participate in restorative justice. I consider this would have justified a reduction of five per cent.26 Mr Mauala’s willingness to engage in restorative justice was not uncoupled from his expressions of genuine remorse.27 In addition, it is clear that Mr Mauala has taken substantial steps towards his own rehabilitation. I consider that a combined reduction of 15 per cent would have been appropriate to recognise Mr Mauala’s remorse and rehabilitative efforts.
Time on EM bail
[25] Mr Mauala spent more than 12 months on EM bail, albeit with several relatively minor breaches. Ms McLean submitted that a reduction of roughly half the
24 Moses v R [2020] NZCA 296, [2020] 3 NZLR 583.
25 Pene v R [2023] NZHC 1234 at [27], cited in Blackbourn v Police [2023] NZHC 3271 at [24].
26 See Whitfield v New Zealand Police [2024] NZHC 2270.
27 See Pene v R, above n 25, at [27].
time spent on EM bail was appropriate, equally a five to 10 per cent reduction depending on the adjusted starting point.
[26] Ms Chan submitted that a reduction equal to less than half the time spent on EM bail has generally been held to be appropriate.28 However, counsel contended compliance with EM bail conditions is relevant to the extent of the reduction.29 Ms Chan highlighted that Mr Mauala has been arrested for five breaches between 17 April 2024 and 16 April 2025. Counsel also emphasised Mr Mauala’s concerning attitude of non-compliance, exemplified by his knowing breach of an approved absence because he was “enjoying himself”. The more restrictive EM conditions were also brought about by Mr Mauala’s drug offending while on bail simpliciter. Ms Chan argued it was thus open to the Judge to decline any reduction for time on EM bail.
Discussion
[27] Mr Mauala has spent a considerable amount of time on EM bail, and the Judge was correct to take this into account when assessing personal mitigating factors. However, given Mr Mauala’s (relatively low-level) breaches of EM bail, as well as its somewhat non-restrictive nature, I find that a reduction of four months (approximately five per cent) would have been appropriate.
Section 27 factors
[28] Ms McLean submitted that the AOD report outlined Mr Mauala’s personal, family and cultural background. Counsel contended that these factors have potential causative connections with Mr Mauala’s offending and warrant discrete recognition by a 10 to 15 per cent reduction.
[29] Ms Chan argued that the inconsistencies between the AOD report, which outlined growing up in a violent and impoverished household, and Mr Mauala’s pre-sentence reports made it difficult for the Judge to assess the causative contribution
28 Citing Wharrie v R [2019] NZHC 633 at [28]; Parata v R [2017] NZCA 48 at [12] and [15]; R (CA528/16) v R [2017] NZCA 210 at [14]; Chea v R [2016] NZCA 207 at [109] and [111]; R v Mihaka [2014] NZHC 2921 at [43]; Prattley v Police [2014] NZHC 486 at [31]; and Keown v R [2010] NZCA 492 at [15]–[16].
29 R v Laloni [2015] NZCA 55 at [8].
Mr Mauala’s personal background had to this offending. For example, in his pre-sentence report dated 22 April 2024, Mr Mauala stated he had a normal childhood, his family did not condone any violence and his mother was supportive. Similarly, in his 11 October 2024 pre-sentence report he confirmed that he had a good relationship with his father, his family was prosocial and supportive. Given these inconsistencies, Ms Chan submitted a reduction of around five per cent would be appropriate.
Discussion
[30] Mr Mauala’s background as outlined in the AOD report and by the Judge (involving poverty, abuse, normalisation of violence and substance abuse) should be taken account of as a personal mitigating factor even though a discrete reduction was not sought by defence counsel before the District Court. Although there were inconsistencies between the AOD and pre-sentence reports, this was seemingly explained by Mr Mauala’s reticence to say negative things about his family to the pre-sentence report writers. Given the clear links between the normalisation of violence and substance abuse on the one hand, and Mr Mauala’s violence and drug offending on the other, I consider a 10 per cent reduction would have been justified.
Was the end sentence manifestly excessive?
[31] As mentioned, the Judge granted a combined reduction of 25 percent for Mr Mauala’s youth, previous good character, remorse and rehabilitative efforts, time on EM bail and s 27 factors. I find that a reduction of approximately 37 per cent would have been warranted for these factors. Ms Chan submitted that this kind of error would not render the end sentence manifestly unjust because it is counterbalanced by the Judge’s generous approach to the totality adjustment. I disagree. While it was open to the Judge to not make a totality adjustment, this would still have resulted in an end sentence of three years and four months’ imprisonment if the appropriate reductions were made for Mr Mauala’s personal mitigating factors.
[32] This difference of six months (or approximately 13 per cent) goes beyond tinkering and represents a manifestly excessive end sentence.30 Overall, I consider
30 Prince v R [2019] NZHC 1402; and Deslaurier v New Zealand Police [2022] NZHC 1078.
that the Judge erred in his Honour’s assessment of the personal mitigating factors and a new sentence of three years four months’ imprisonment should be imposed.
Decision
[33]The appeal is allowed.
[34] The sentence of three years and 10 months’ imprisonment is quashed and substituted by a sentence of three years and four months’ imprisonment.
Harvey J
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