Meha v The King
[2024] NZHC 2366
•22 August 2024
IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY
I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE
CRI-2024-454-22
[2024] NZHC 2366
BETWEEN SAMUEL MEHA
Appellant
AND
THE KING
Respondent
Hearing: 14 August 2024 Appearances:
J Younger for Appellant via VMR
T Zhang and P D Marshall for Crown
Judgment:
22 August 2024
JUDGMENT OF CULL J
[1] Mr Meha was sentenced to two years and five months’ imprisonment in the District Court1 after he pleaded guilty to the charges of being party to an aggravated robbery,2 driving while disqualified (third or subsequent) (x 2),3 failing to stop (second),4 reckless driving,5 breaching community work6 and breaching release conditions.7 Mr Meha appeals the sentence on the basis that it is manifestly excessive because the starting point for Mr Meha’s aggravated robbery offending was too high given his lesser role. He submits that a short-term prison sentence was appropriate and a sentence of home detention should be substituted.
1 R v Meha [2024] NZDC 14648.
2 Crimes Act 1961, ss 235 and 66; maximum penalty 14 years’ imprisonment.
3 Land Transport Act 1998, s 32(1)(a) and (4); maximum penalty 2 years’ imprisonment or $6,000 fine.
4 Sections 52A(1)(a)(ii) and (4) and 114(2); maximum penalty $10,000 fine.
5 Section 35(1)(a); maximum penalty three months’ imprisonment or $4,500 fine.
6 Sentencing Act 2002, s 71(1)(a); maximum penalty three months’ imprisonment or $1,000 fine.
7 Section 96(1); maximum penalty one year’s imprisonment or $2,000 fine.
MEHA v R [2024] NZHC 2366 [22 August 2024]
Facts
Aggravated robbery and driving while disqualified
[2] Sentencing proceeded on the basis of an agreed summary of facts. On 8 September 2023, the co-defendant, Mr Te Amohanga, asked Mr Meha to help him pick up a BMW he had permission to borrow and showed him a key fob. At about 12.30 am, the defendants drove to the victim’s address. They approached the front door and asked another occupant of the house for some car seats which belonged to Mr Te Amohanga and were stored at the property. The occupant shut the door on the defendants.
[3] Using the key fob, which had previously been stolen by Mr Te Amohanga, Mr Meha entered the driver’s side door of the BMW vehicle. The victim ran out of the address holding a kitchen knife and entered the passenger seat of his vehicle in an attempt to stop his vehicle being stolen. At this point, Mr Meha became a party to an aggravated robbery, as he became aware that Mr Te Amohanga did not have permission to borrow the vehicle as he had said.
[4] A struggle ensued in the car, where the victim slashed the knife at Mr Meha. Mr Meha started to fight and struggle with the victim and landed a number of punches to the victim’s head and body. During the struggle, Mr Te Amohanga approached the passenger side of the vehicle and began to stab the victim in his side with a knife while the victim was fighting with Mr Meha. Mr Meha was not aware that Mr Te Amohanga had a knife. The victim begged the defendants to be let out of the vehicle. The assault lasted approximately one to two minutes before Mr Meha dragged the victim across the steering bay and out of the driver’s door. Mr Meha drove the vehicle away from the scene.
[5] As a result of the incident, the victim suffered five stab wounds to his torso and a collapsed lung requiring urgent medical attention. The victim also suffered several lacerations to his arms and legs.
Driving while disqualified, reckless driving and failing to stop
[6] At about 2.05 pm on 26 May 2023, Mr Meha was driving a motorcycle in Palmerston North despite having been disqualified from driving indefinitely on 13 June 2017. Mr Meha drove through a red light and drove on the wrong side of the road to overtake multiple vehicles. Police signalled Mr Meha to stop using flashing lights and sirens. Mr Meha failed to stop and instead accelerated away. The police did not pursue Mr Meha due to his dangerous driving.
[7] Mr Meha continued to cross multiple lanes and drive on the wrong side of the road several times. He accelerated towards multiple approaching vehicles who had to take evasive action to prevent a collision. Mr Meha drove onto several footpaths, narrowly avoiding collision with multiple members of the public who also had to take evasive action.
Breaching community work and breaching release conditions
[8] Mr Meha was sentenced to 150 hours of community work on 9 September 2021. He completed one hour of community work, being the induction on 14 July 2022, and has failed to report since. He was released from prison on 19 May 2023 and became subject to release conditions. On 25 August 2023, Mr Meha breached these conditions when he failed to report to a probation officer as directed. He has since failed to report on one other occasion.
Sentencing decision
[9] Mr Meha originally faced an additional charge of being party to wounding with intent to cause grievous bodily harm. The Judge withdrew this charge.8
[10] The Judge found that the aggravated robbery was “not amongst the top end aggravated robberies by any means but nor is it a really street level aggravated robbery”. He also accepted that Mr Meha arrived at the address under the initial understanding that Mr Te Amohanga had permission to borrow the car.9 The Judge
8 R v Meha, above n 1, at [9] and [35].
9 At [24].
set the starting point for the “robbery generally” at 48 months, and reduced this by four months to account for Mr Meha’s lesser role in the offending, arriving at 44 months’ imprisonment (three years and eight months). The Judge said that Mr Meha should have got out of the car and distanced himself after he became aware that he was participating in a robbery, rather than use violence to overcome the victim and take the vehicle. The Judge accepted that Mr Meha did not know that Mr Te Amohanga had a knife, but did not accept that Mr Meha was unaware that Mr Te Amohanga was attacking the complaint.10
[11] The Judge uplifted the 44-month starting point by two months for each of the two driving while disqualified charges (which were Mr Meha’s fifth and sixth), and three months for the breaching community work and release conditions charges, taking the sentence to 51 months.11 The Judge reduced this by nine months for totality, reaching an adjusted starting point of 42 months’ imprisonment (three years and six months).12
[12] The Judge imposed a 10 per cent uplift for Mr Meha’s previous violence and dishonesty offending, and a five per cent uplift for the fact that the offending occurred while Mr Meha was subject to release conditions.13 The Judge gave discounts of 25 per cent for Mr Meha’s guilty plea, which reflected a component of remorse, and 20 per cent for personal factors, particularly the steps Mr Meha had taken towards rehabilitation.14 This resulted in an end sentence of 29 months’ imprisonment (two years and five months).15
[13] The Judge further imposed two cumulative mandatory 12-month disqualifications from holding a driver licence for the failing to stop charge, backdated to the date of the offence (8 September 2023), and cancelled Mr Meha’s sentences of community work and release conditions.16
10 At [25].
11 At [26].
12 At [27].
13 At [28].
14 At [29]–[31].
15 At [31].
16 At [33]–[35].
Principles on appeal
[14] The appellant’s right of first appeal against sentence is under s 244 of the Criminal Procedure Act 2011. An appeal against sentence is an appeal against the Judge’s discretion.17
[15] In order to succeed, Mr Meha must show that there was an error in the sentence reached and that a different sentence should have been imposed.18 The Court will not intervene where the sentence is within the range available to the sentencing Judge.19 The Court will intervene only if the sentence is manifestly excessive.20
Analysis
[16] The focus of this appeal was confined to one issue and that was whether the reduced starting point for Mr Meha’s lesser role in the aggravated robbery offending was sufficient. Ms Younger, for Mr Meha, submits that insufficient discount was made to the starting point for the aggravated robbery generally to reflect Mr Meha’s considerably lesser role as set out in the agreed summary of facts. She contends that Mr Meha’s starting point should have been two years.
[17] The grounds of the appeal focused first on the Judge’s factual assessment of the offending and second, on the authorities in support of lower starting points for offenders who take a lesser role in the offending.
[18]I deal with each of those in turn.
Factual assessment
[19] Ms Younger submits that the Judge’s factual assessment of the offending failed to reflect Mr Meha’s belief that Mr Te Amohanga had permission to borrow the car (initially), did not have a knife, and that the victim was not wounded. Those factors, she submits, were emphasised by the Crown at sentencing, contrary to the agreed
17 Filivao v R [2024] NZCA 103 at [30].
18 Criminal Procedure Act 2011, s 250(2).
19 Tutakangahau v R [2014] NZCA 279 at [36].
20 Kumar v R [2015] NZCA 406 at [81].
statement of facts. This led to the Judge’s mistaken assessment of Mr Meha’s role in the offending.
[20] The Crown rejects that submission, submitting that the Judge sentenced consistently with the agreed summary of facts and was entitled to reject the submission that Mr Meha did not realise his co-offender was attacking the victim. Of particular concern in this hearing on appeal, Ms Younger submitted that while Mr Meha accepted that he should have run away when he realised that the victim did not want them to borrow his car rather than respond with violence, she was instructed it all just happened so fast as a reaction to a man jumping into the car with the knife.
[21] Having reviewed the Judge’s sentencing notes, I consider that he sentenced carefully on the agreed summary of facts. He accepted that Mr Meha did not know the people at the address, that Mr Meha understood he was helping the co-offender to borrow a BMW, and that he had been shown the key fob for the BMW, which supported his understanding.21 Further, the Judge accepted that Mr Meha did not know his co-offender had a knife in his possession22 and noted that Mr Meha was not for sentence on the charge of wounding with intent to cause grievous bodily harm, which the Judge withdrew.23
[22] Those facts mirror the agreed “summary of facts for resolution” which the Judge recorded, “are the facts on which I need to sentence you today.”24 The only point on which I diverge from the Judge’s assessment, is the Judge’s view that Mr Meha should have got out of the car and distanced himself when the victim “slashed his knife towards [him].” The Judge was critical of the fact that Mr Meha “started to fight him and struggled with him.” The Judge accepted Ms Younger’s submission that somebody wielding a knife in those circumstances would be enough to provoke a reaction but the Judge considered Mr Meha should have got out of the vehicle. The Judge also said “I know that you acknowledge that.”25
21 R v Meha, above n 1, at [7] and [24].
22 At [9] and [25].
23 At [9] and [35].
24 At [10].
25 At [8] and [25].
[23] I accept Ms Younger’s submission that being faced with a knife-wielding person in the confines of a car, Mr Meha’s reaction was instinctive. Instead of turning away from the knife, Mr Meha initially acted in self-defence to prevent injury. Mr Zhang for the Crown conceded that Mr Meha may have been justified in acting in self- defence, but he says the circumstances changed when the co-defendant approached the vehicle on the passenger side and began to attack the victim. I accept the Crown’s submission that the moment for self-defence had passed when the victim “begged the defendants to be let out of the vehicle” and the assault lasted approximately one to two minutes before the complainant was dragged out of the car by Mr Meha.
[24] As for Mr Meha’s acknowledgement that he should have got out of the vehicle instead of fighting the victim, Mr Meha acknowledged to the Probation Officer in the pre-sentence report that he “didn’t need to be in that situation” and expressed sympathy for the victim. I consider this was his acknowledgement that he should have withdrawn after he had stopped the knife attack by the victim, rather than his accepting that he should not have fought him, as the Judge described. However, these aspects of the Judge’s assessment are not determinative.
[25] In my view, what was critical and determinative in the Judge’s assessment was his finding that Mr Meha’s “significant and criminal lack of judgment” occurred when he continued to assault the victim after he no longer posed a threat and begged to be let out of the vehicle, “hauled” him out of the vehicle and drove away in the vehicle, completing the aggravated robbery. As the Crown submitted, the two agreed facts support the Judge’s finding of Mr Meha’s criminal culpability. They are:
[10]The complainant begged the defendants to be let out of the vehicle.
[11] The assault lased approximately 1 to 2 minutes before the complainant was dragged across the steering bay and out of the driver’s door by the defendant Meha.
[26] Plainly, the Judge was also correct to conclude that it was Mr Meha who got back into the car and drove it away, completing what was an aggravated robbery,26 to which he pleaded guilty. I consider the Judge’s assessment of the facts was not in error.
26 At [9].
[27] Although an allowance can be made for the fact that Mr Meha initially fought off the victim in self-defence, the point at which the co-defendant began attacking the victim was the point at which Mr Meha should have distanced himself from the offending. I too consider that the aggravating feature of Mr Meha’s offending is that he continued after the co-offender attacked the victim from the passenger side of the vehicle, as the Judge found, and that he would have heard the victim begging the defendants to be let out of the vehicle.
[28] The Judge expressly accepted that Mr Meha did not know at that stage that the co-offender had a knife but I agree with the Judge that it cannot be accepted that Mr Meha did not realise the victim was being attacked by both he and Mr Te Amohanga. I therefore reject the appellant’s submission that the Judge’s factual assessment was in error or over-stated Mr Meha’s culpability.
[29]I deal now with the authorities on aggravated robbery starting points.
Aggravated robbery starting points
[30] Section 8(a) of the Sentencing Act requires the Court to “take into account the gravity of the offending in the particular case, including the degree of culpability of the offender”. Although a number of authorities were provided by both the Crown and defence counsel on the sentencing of offenders that played a lesser role in robberies, the Court of Appeal has urged care in how the lesser roles are assessed.
[31] In R v Mako, the Court of Appeal provided guidance on setting starting points for robbery by identifying 15 applicable aggravating and mitigating factors and providing examples of combinations of aggravating factors and their corresponding starting points.27 The following factors are relevant to the present offending:
(a)The degree of planning and preparation – Mr Meha became aware of the robbery only when it was taking place.
(b)The number of participants – there were two offenders.
27 R v Mako [2000] 2 NZLR 184 (CA).
(c)The number and types of weapons – Mr Meha was not aware that Mr Te Amohanga had a knife.
(d)The use of violence – Mr Meha punched the victim’s head and body while he was being attacked by the other co-offender. The assault lasted one to two minutes before Mr Meha dragged the victim across the steering bay and out of the driver’s door. The Court of Appeal held that “actual violence on top of threats and intimidation takes the conduct into another dimension and must attract a considerably higher rating in overall seriousness.”28
(e)The property stolen and the extent of any recovery – a BMW vehicle was stolen. The vehicle was subsequently located and returned to the victim.
(f)The impact on the victim – the victim sustained serious injuries as a result of being stabbed. As Mr Meha was not aware that Mr Te Amohanga possessed a knife, this consideration is limited to injuries that would have been caused by an assault by two offenders involving punching to the head and body, and the distress suffered by the victim at the time.
[32] The Court identified categories of robbery with bands of applicable starting points, ranging from the robbery of commercial premises to small shop robbery, robbing taxi drivers and robbery involving forced entry to premises at night. The Court of Appeal also provided guidance for robberies of lesser severity, such as street robberies and where the offender played a secondary role in the offending. The Court said:29
[59] At the other end of the scale would be street robbery by demanding that the victim hand over money or property such as an item of clothing, where a knife or similar weapon is produced or where offenders acting together by bullying or menacing conduct enforce the demand though no actual violence occurs. Depending upon the circumstances the starting point would be
28 R v Mako, above n 27, at [43].
29 At [59]–[68].
between 18 months and three years. Actual physical enforcement might well require a higher starting point.
[…]
[68] A sentence of two years or less is available to the sentencing Judge only if the elements which convert a robbery into an aggravated robbery are present to a small degree or the offender's participation in the crime and its planning (if any) was very much in a secondary role.
[33] The Court emphasised that these indicated starting points should be applied flexibly with appropriate adjustment for the features of the particular offending.30 The appellant provided a number of authorities where the courts have taken account of offenders that play a lesser role in robberies. However, the Court must be careful when conducting this exercise as the Court of Appeal in Mako cautioned:31
[…] there is no justification for treating those assigned roles other than of confronting the victims as less culpable unless they are truly less than full participants. The lookout, the getaway driver, may in fact be the ringleader.
[34] The Judge here acknowledged that this offending was “not amongst the top end aggravated robberies by any means but nor is it a really street level aggravated robbery”.32 This clearly was a reference to R v Mako, with the Judge accepting that Mr Meha arrived at the address on the understanding that this car was to be borrowed. The Judge accepted the starting point for the robbery generally was 48 months’ or 4 years’ imprisonment and reduced the starting point for Mr Meha’s role by four months. He emphasised that Mr Meha should have distanced himself after he became aware that the car was being unlawfully taken yet Mr Meha continued after the co-offender attacked the victim from the passenger’s side of the vehicle.
[35] The Judge specifically accepted that Mr Meha did not know at that stage that he had a knife but he could not accept that Mr Meha did not realise the victim was being attacked. It was the violence used by the two defendants to overcome the victim, dragging him from the vehicle and taking the vehicle which comprised Mr Meha’s criminal culpability. While Mr Meha was not aware that a weapon would be used, the property taken is much more valuable than some cash or an item of clothing (although
30 At [60].
31 R v Mako above, n 27 at [64].
32 R v Meha, n 1 at [24].
the vehicle was recovered). I accept the Judge’s assessment that the present offending is more serious than the “street robbery” example in R v Mako.
[36] I also accept Mr Meha was less culpable than his co-offender in the present offending as he was not aware that he was participating in a robbery until the victim came to the car, armed with a knife. So did the Judge. Once Mr Meha came to the realisation that this was a robbery and had defended himself against the victim, he continued to complete the offending when he should have distanced himself as I have found at [27].
[37] I consider the sentencing Judge’s four-month reduction appropriately reflects that Mr Meha was not involved in the planning of the robbery, that he became aware that he was involved in an offence only when the victim approached him with a knife, and that he did not know his co-offender was carrying a weapon.
[38] I find the starting point for this offending of 44 months was within the available range, given the number of aggravating factors that apply to this offending, as set out above.
Remaining uplifts and totality adjustment
[39] After setting the starting point for the aggravated robbery offending, the Judge proceeded to impose uplifts of seven months for the charges of driving while disqualified, breaching community work and breaching release conditions. He did not impose uplifts for the failing to stop and reckless driving charges.
[40] The Judge then reduced the sentence for totality by nine months. As the Crown submits, the totality reduction was greater than the uplifts for Mr Meha’s other offending. This meant the adjusted starting point was lower than the starting point imposed for the robbery offending. The totality adjustment effectively gave Mr Meha a further two months’ discount. The Crown does not seek to correct this, but says the totality adjustment had the effect of Mr Meha receiving a lower sentence.
[41] I consider that the end sentence for Mr Meha cannot be described as unfair or too high, given the totality adjustment and the extent of all of the offending. I am
satisfied that the end sentence of two years and five months’ imprisonment is not manifestly excessive in the circumstances.
Result
[42]The appeal is dismissed.
Cull J
Solicitors:
Square Legal Chambers, Palmerston North, for Appellant Crown Law Office, Wellington, for Respondent
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