Mita v Police
[2017] NZHC 2573
•20 October 2017
IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY
I TE KŌTI MATUA O AOTEAROA
AHURIRI ROHE
CRI-2017-441-29 [2017] NZHC 2573
BETWEEN KEEGAN KENDRIX MITA Applicant
ANDNEW ZEALAND POLICE Respondent
Hearing: 10 October 2017
Appearances: S Jefferson for the Appellant
C Stuart for the Respondent
Judgment: 20 October 2017
JUDGMENT OF CULL J
[1] Mr Mita pleaded guilty and was sentenced on 9 August 2017 in relation to two charges of male assaults female1 and one charge of attempting to pervert the course of justice.2 Judge Rea sentenced Mr Mita to two years and five months’ imprisonment.3
[2] Mr Mita appeals his sentence on the basis that it breaches the totality principle under the Sentencing Act 2002 (the Act) and is manifestly excessive.
[3] The Crown opposes the appeal on the grounds that the end sentence reflects the totality principle and is within the available range.
1 Crimes Act 1961, s 194(b). Maximum penalty is two years’ imprisonment.
2 Section 117(e). Maximum penalty is seven years’ imprisonment.
3 R v Mita [2017] NZDC 17661.
MITA v NEW ZEALAND POLICE [2017] NZHC 2573 [20 October 2017]
Factual background
[4] Mr Mita was in a relationship with the complainant from late 2015. On or about 26 May 2016, Mr Mita had a verbal argument with the complainant. Mr Mita wanted the complainant to leave with him and told her to get in the car. She was reluctant to comply with his wishes and initially refused but then got into the car as Mr Mita was being insistent. Once they left, Mr Mita punched the complainant repeatedly to her body. The complainant was 17 weeks pregnant at the time and described suffering a lot of pain because of the attack. This incident is the subject of the first male assaults female charge.
[5] Once they got to Mr Mita’s house, Mr Mita took the complainant’s cell phone and insisted she remain in his bedroom and if she wanted to use the bathroom she had to ask his permission and leave the door open while in the bathroom.
[6] The next day, Mr Mita and the complainant left the house. The complainant managed to escape from Mr Mita and, after contacting her family, was taken to Hawke’s Bay Hospital where she was admitted for treatment. While a patient at the Hospital, Mr Mita visited and was observed holding her in a bear hug from behind. Mr Mita held his hands between the complainant’s neck and chest. She was repeatedly yelling “Let me go, let me go”. The complainant indicated she wanted to use a phone in private and she wanted to go to the bathroom alone. Despite these requests, Mr Mita would not release her. Hospital staff intervened and Mr Mita reluctantly let the complainant go. This incident is the subject of the second male assaults female charge.
[7] The complainant remained in hospital for five nights and was discharged on
2 June 2016. She had extensive bruising to her body, especially to her right side and was having trouble breathing.
[8] On 8 June 2016, Mr Mita was arrested and remanded in custody in relation to this offending. While he was in custody, between 25 June and 16 August 2016, Mr Mita telephoned the complainant on 52 occasions. On some of these calls, Mr Mita was heard discussing the upcoming court proceedings and attempting to pressure the complainant into providing him with assistance, including by filing false
affidavits. On 18 August 2016, the complainant filed an affidavit with the Court, in which she attempted to retract her statement. This conduct represents the charge of attempting to pervert the course of justice.
District Court decision
[9] The Judge considered that the two male assaults female charges required a starting point of 18 months’ imprisonment. He noted that assaulting the complainant while she was 17 weeks pregnant is “serious offending in itself.”4
[10] The Judge then uplifted this by another 18 months’ to reflect the perversion of justice charge. An additional uplift of three months’ was given to reflect Mr Mita’s previous convictions. The final starting point for all charges was, therefore, three years and three months’ imprisonment.
[11] A “reasonably substantial discount” was considered appropriate for Mr Mita’s guilty plea. A discount of 8 months’ imprisonment (25 per cent) was given.5
[12] The Judge imposed a final concurrent sentence of two years and five months’ imprisonment. Two years and five months’ imprisonment was imposed for the charge of attempting to pervert the course of justice. Eighteen months’ imprisonment was imposed for each of the two charges of male assaults female.
Approach to appeal
[13] This appeal is brought under s 250 of the Criminal Procedure Act 2011. An appeal against sentence is an appeal against a discretion. An appeal against sentence must be allowed if the Court is satisfied that, for any reason, there is an error in the sentence imposed and a different sentence should be imposed.6 The focus is on the final sentence and whether that was in the available range, rather than the exact
process by which it was reached.7
4 Mita, above n 3, at [1].
5 At [4].
6 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.
7 Ripia v R [2011] NZCA 101 at [15].
Mr Mita’s position
[14] Mr Mita appeals his sentence on the basis that it breaches the totality principle and is manifestly excessive.
[15] Mr Jefferson, counsel for Mr Mita, submits s 85 of the Act requires a sentencing judge to consider each offence individually, as well as the offender’s overall culpability, to determine what the appropriate effective sentence is for the totality of the offender’s conduct. The total end sentence should not be determined by sequentially adjusting the appropriate end sentence for each individual offence in order to fit the totality principle. Relying on the Court of Appeal’s decision in Haywood v R, Mr Jefferson submits the analysis should be guided from the outset by an appreciation that the total period of imprisonment should be in proportion to the gravity of the overall offending.8
[16] Mr Jefferson further submits the sentence of three years three months’ imprisonment is out of proportion to the gravity of the overall offending. Although there were three separate incidents, these offences were part of a connected sequence of events. Mr Jefferson argues that the sentencing should have been guided by recognition of this gravity. He contents an end sentence of two years’ imprisonment would appropriately reflect the overall offending. It is accepted home detention is not a viable option.
Crown’s position
[17] The Crown opposes the appeal because the end sentence reflects the totality principle and is within the available range.
[18] The Crown acknowledges that the Judge did not approach the sentencing exercise by arriving at discrete starting points for the individual charges and then making an explicit adjustment to reflect the totality of the offending. However, the
Crown submits that the approach taken was equally available and was not in error.
8 Haywood v R [2015] NZCA 551.
[19] The Crown submits it is implicit in the use of an ‘uplift’, as opposed to a discrete starting point, that issues of totality were at the forefront of the Judge’s mind. The obstruction of justice offending was sufficiently serious that a starting point well in excess of 18 months’ imprisonment would have been justified. The fact that such a starting point was not imposed confirms that the Judge took a global approach to the offending. The Crown relies on the Court of Appeal’s comments in R v Williams, where the validity of this approach was acknowledged.9
[20] The Crown relies on two Court of Appeal decisions to demonstrate that the sentence imposed on Mr Mita was well within the available range.10
Discussion
[21] The circumstances surrounding the sentencing of Mr Mita are relevant to the challenge raised about the Judge’s approach to sentencing in this appeal. Mr Mita was due to stand trial on these charges and a further charge, which was withdrawn, on the entry of Mr Mita’s guilty pleas one week before the scheduled trial. Mr Mita personally petitioned the Judge to sentence him that day and the Judge recalled the matter in the afternoon, to sentence Mr Mita. Mr Mita had waived a pre-sentence report.
[22] The more orthodox way of approaching sentencing is to fix a starting point for the charge of attempting to pervert the course of justice first, as the more serious charge, and then apply an uplift to reflect the assaults and Mr Mita’s previous convictions. However, the Judge has adopted a starting point of 18 months’ imprisonment for the charges of male assaults female and uplifted that starting point by a further 18 months to reflect the charge of attempting to pervert the course of justice. He then applied an uplift of three months for the appellant’s previous convictions.
[23] The alternative option was to approach the sentencing exercise by arriving at discrete starting points for the individual charges and make an explicit adjustment to
reflect the totality of the offending. However, the Judge in his use of an “uplift” as
9 R v Williams CA91/00, 3 May 2000 at [11].
10 Harting v R [2016] NZCA 296; and Miller v R [2014] NZCA 382.
opposed to a discrete starting point, reached the same result, as the totality of the offending was clearly at the forefront of his mind. I reach the view that, because the assault offending was sufficiently serious a starting point in excess of 18 months’ imprisonment would have been justified, as I canvass below.
[24] There are no tariff cases for the present offending. However, comparable cases have been examined for the purposes of this appeal
[25] For the two charges of male assaults female, Mr Mita attacked a pregnant woman, using a moderate degree of force, with an element of detention and with serious injuries requiring hospitalisation. The starting point of 18 months’ imprisonment for both of these assaults is comparable with the seriousness and types of sentences imposed in relevant authorities.11
[26] The aggravating features of the assaults include:
(a) that there were two incidents, one of them at hospital while the complainant was seeking treatment for the earlier assault;
(b) there were multiple punches to the complainant’s body;
(c) the complainant was 17 weeks pregnant at the time;
(d) there were elements of detention in both incidents; and
(e) the injuries suffered by the complainant were serious (extensive bruising and difficulty breathing).
[27] This was serious domestic violence offending, which could have justified a longer sentence of imprisonment. The fact that the Judge did not impose a sentence in excess of 18 months’ imprisonment signifies that the Judge was adopting a global approach to the offending, by considering the two discrete types of charges in the
way that he did.
11 R v Richardson [2012] NZHC 1465; Dockerty v Police [2012] NZHC 2500; and R v Coker
CA421/04, 21 April 2005.
[28] The Court of appeal in R v Williams has acknowledged that a global approach to sentencing is valid.12 The Court said:
[11] We reject the argument that there is a particular way in which total sentences must be put together in respect of multiple offending. The issue is what is an appropriate total sentence for the various charges which have been admitted or proved. How that is constructed in the particular circumstances is a matter of individual discretion and assessment. Sometimes there is advantage in imposing cumulative sentences on some or all of the charges, whereas others are more appropriately dealt with by one major sentence which subsumes all matters, with concurrent sentences imposed. …
[29] I do not consider, therefore, that the Judge was in error in adopting the starting point of 18 months for the assault charges.
[30] Following the assaults, Mr Mita was placed in custody. From there, he made
52 phone calls to the complainant, threatening and pressuring her to deny the offending. The content and tone of some of these calls are extremely aggressive.
[31] I accept the Crown’s submission that the charge of attempting to pervert the course of justice alone could have received a starting point above the 18 month uplift imposed by Judge Rea. In light of the decisions in Kingi and Harting, where starting points of two years’ imprisonment were adopted, a starting point of between two and three years’ imprisonment could have been appropriate in the present case.13 In Kingi, the Court of Appeal highlighted that Mr Kingi’s attempts to dissuade the complainant from giving evidence had an undercurrent of violence as they occurred in the context of a violent relationship.14 In that case Mr Kingi wrote to the complainant on a number of occasions from prison. In Harting, Mr Harting wrote to his step-daughter encouraging her to make a false affidavit and made three phone calls, which were aggressive.
[32] Here, Mr Mita’s behaviour was of a similar nature to these two cases, if not more aggressive and persistent. Mr Mita contacted the complainant 52 times. Mr Jefferson submitted that the majority of these calls were amicable and part of the
ongoing relationship between Mr Mita and the victim. He submits that all of the
12 Williams, above n 9.
13 R v Kingi CA 360/01, 1 May 2002; and Harting v R [2016] NZCA 296.
14 Kingi, above n 13, at [18] and [28].
calls should not be considered to be aggressive or unwanted. It is correct that the victim was willing to be “an approved contact” for Mr Mita to phone her from prison. However, Mr Mita, by his persistence and threats, ultimately persuaded the complainant to file a false affidavit, retracting her allegations. The nature of those threatening calls are contained in the summary of facts.
[33] I consider an 18 month uplift for this offence was also appropriate. Given that a starting point of up to two or three years’ imprisonment was within the available range to the Judge, it is plain that the 18 month uplift was as a result of the Judge taking into account a reduction for the totality of Mr Mita’s offending.
[34] The Judge also gave a three month uplift to reflect Mr Mita’s previous convictions. Mr Mita has 54 previous convictions. Several of these are minor offences such as shoplifting, driving while disqualified and demanding to steal. However, Mr Mita also has nine convictions for various assault or violent offending charges and three convictions for threatening to kill or commit grievous bodily harm. I consider a three month uplift, given the pattern of violent offending by Mr Mita and his serious domestic violence offending, was appropriate.
[35] I do not consider the starting point of three years three months’ imprisonment is out of proportion to the gravity of the overall offending. The total period of imprisonment is in proportion to the gravity of the overall offending.
[36] The 25 per cent discount for guilty plea was appropriate as Mr Mita pleaded guilty the week before the trial was due to commence.
[37] The appeal is dismissed.
Cull J
Solicitors:
Crown Solicitor’s Office, Napier
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