Mita v R
[2012] NZCA 137
•4 April 2012
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA594/2011 [2012] NZCA 137 |
| BETWEEN KEEGAN KENDRIX MITA |
| AND THE QUEEN |
| Hearing: 29 March 2012 |
| Court: Randerson, Keane and Lang JJ |
| Counsel: S Jefferson for Appellant |
| Judgment: 4 April 2012 at 9.30 a.m. |
JUDGMENT OF THE COURT
The appeal against sentence is dismissed.
REASONS OF THE COURT
(Given by Lang J)
Mr Mita pleaded guilty in the District Court at Napier to a total of ten charges arising out of four separate incidents. They included charges of demanding money with menaces, assault with a weapon, possession of an offensive weapon, burglary, assaulting a female and driving whilst disqualified on a third or subsequent occasion.
On 5 August 2011, Judge Adeane sentenced Mr Mita to an effective sentence of four years imprisonment on all charges.[1]
[1] R v Mita, DC Napier CRI-2011-041-139, 5 August 2011.
Mr Mita appeals to this Court against his sentence. He contends that the starting points the Judge adopted were too high, and that this caused him to impose an end sentence that was manifestly excessive.
The charges
The charges related to offending that occurred between 21 December 2010 and 29 January 2011.
21 December 2010
On 21 December 2010, officers in a police patrol vehicle observed Mr Mita riding a motorcycle in Napier. He rode into the driveway of a residential address, and stopped at the rear. He had been disqualified from driving for a period of six months just four days earlier, on 17 December 2010. When the police officers spoke to him, he admitted that he was disqualified from driving but said that “it didn’t count as it was only a motorbike”. This was the third occasion on which Mr Mita had been convicted of driving whilst disqualified.
26 January 2011
Just after midnight on 26 January 2011, Mr Mita and a group of associates were in a car park near a fast food outlet in central Napier. As a car containing several young persons was leaving the drive-through exit of the outlet, one of the occupants yelled out gang-related abuse to Mr Mita and his associates. Mr Mita has a strong association with the Mongrel Mob gang.
Approximately thirty minutes later, Mr Mita and a female associate were driving through the Napier central business district when they saw the vehicle they had seen earlier in the car park. They pursued the vehicle along residential streets on Napier Hill, and were eventually able to cut it off on a narrow stretch of road.
Mr Mita then left his vehicle and approached the other vehicle. He pulled out a flip knife with a three-inch blade and opened the driver’s door of the other vehicle. He then demanded to know who had been responsible for yelling the abuse in the carpark.
While making these demands, Mr Mita repeatedly jabbed his knife at the driver of the vehicle. The driver suffered several cuts and puncture wounds to his upper thigh, upper arm, and right hand as a result. The most serious of these was a cut between the second and third fingers of the right hand. The driver sustained this injury whilst fending off the knife that Mr Mita was wielding.
Mr Mita then went to the rear of the vehicle, and made threatening gestures and comments to another of the occupants. He also required the occupants of the vehicle to hand over their wallets and mobile phone batteries. They complied with this demand. One of the occupants also handed over a packet of cigarettes. Mr Mita then demanded access to the boot of the vehicle in order to look for other items to take.
When another car approached, Mr Mita got into the rear passenger seat of the vehicle. He remained there talking to the occupants of the vehicle for approximately an hour and a half. Eventually he left, and at that point he returned the mobile phone batteries and three of the wallets that he had earlier taken from the occupants of the other vehicle. He kept one wallet and $15 in cash.
This incident led to Mr Mita being charged with demanding with menaces, possession of an offensive weapon and assault with a weapon. When the police spoke to him about it, he said that he had thought that the occupants of the vehicle were associated with a rival gang. He said that when he realised they were “only kids”, he decided to scare them for upsetting him.
28 January 2011
Two days later, on 28 January 2011, Mr Mita approached his sister and her 18 month old son. She was standing outside the offices of Work and Income New Zealand in central Napier. He asked his sister for the keys to her truck, and began kicking her when she refused to hand them over. Due to Mr Mita’s kicks, the victim lost her grip on the child she was holding. Fortunately, she was able to catch the child before he landed on the ground. Mr Mita continued to attempt to kick his sister, and one of his kicks struck the young child in the head.
This led to Mr Mita being charged with assault on a female.
29 January 2011
During daylight hours the following day two houses were burgled in Bay View, near Napier. Property worth more than $5,000 was taken in one of the burglaries, whilst property having minimal value was taken in the other. An attempt had been made, however, to remove a flat screen television set from the wall of this address. Mr Mita was identified as having been involved in both burglaries because his fingerprints were found at the scene.
The Judge’s approach
The Judge took the lead charges as being those arising out of the incident that occurred in the early hours of 26 January 2011. He took a starting point of three years imprisonment on those charges, and applied a discount of 25 per cent to reflect the fact that Mr Mita had pleaded guilty to the charges at an early stage. This produced an end sentence on those charges of two years three months imprisonment.
The Judge then adopted a two year starting point in relation to the two burglary charges. He noted that Mr Mita had initially pleaded not guilty to those charges. For that reason he applied a lesser discount of ten per cent to produce an end sentence of one year and nine months. He imposed that sentence cumulatively on the end sentence he had selected in relation to the charges relating to the incident on 26 January 2011.
The Judge elected not to increase either of the starting points to reflect Mr Mita’s previous convictions. He also elected not to increase the sentence further to reflect the charges of driving whilst disqualified and assaulting the sister.
The argument on appeal
Counsel for Mr Mita contends that the Judge selected a starting point that was too high having regard to the circumstances of the offending on 26 January 2011. He points to instances where lower starting points have been imposed in other cases involving charges similar to those in the present case.[2]
[2]Opetaia v R [2011] NZCA 621; R v Winn HC Auckland CRI-2009-090-12003, 11 February 2011; R v Witute CA464/00, 21 March 2001.
Counsel also submits that a starting point of two years imprisonment on the burglary charges was too high. He contends that an appropriate starting point on those charges was a sentence of 18 months imprisonment. Applying the same discounts as the Judge, he submits that an appropriate end sentence of two years ten months imprisonment would have been appropriate to reflect Mr Mita’s culpability on all charges. He therefore contends that an end sentence of four years imprisonment was manifestly excessive.
Were the starting points too high?
The charges arising out of the incident on 26 January 2011
The most serious charges in the present case were obviously those arising out of the incident that took place in the early hours of 26 January 2011. That incident had numerous aggravating factors. First, it involved the determined pursuit and stopping of the complainants’ vehicle. That led to the detention of the occupants of the vehicle for a very considerable period, during which time they were clearly petrified.
The offending also involved the use of a weapon in the form of the flip knife. Mr Mita used that weapon to inflict actual injury on the driver of the vehicle, and to threaten all of the occupants of the vehicle. Finally, it involved the temporary removal of personal items from the occupants of the vehicle and, ultimately, the theft of a wallet and a small sum of money.
In this field the facts that make up the offending will vary widely. For that reason comparisons with other cases will be of very limited value. We consider that the facts of the present case are different in nature to those in Winn and Opetaia, which both involved extortion schemes. The sentencing Judge in Winn in any event selected starting points greater than that selected in the present case. Mr Mita’s offending is clearly more serious than that in Witute, which involved an incident of street violence in which the offenders made a drunken and opportunistic demand for money and cigarettes from two young men in a public place.
The maximum sentence on the charge of demanding with menaces was seven years imprisonment. When the aggravating features of Mr Mita’s offending are taken into account, a starting point that was less than half of the available maximum sentence cannot be viewed as excessive. We therefore consider a starting point of three years imprisonment was within the available range in relation to the charges arising out of the incident on 26 January 2011.
The burglary charges
Mr Mita has previous convictions and notations for offending involving dishonesty in both the District Court and the Youth Court. These include convictions for theft, robbery by assault, receiving stolen goods and shoplifting. He also has a notation in the Youth Court for one charge of burglary.
This Court has previously observed that previous dishonesty convictions may be treated as components of the starting point to be selected in respect of a charge of burglary.[3] This may be justified on the basis that previous convictions may be relevant to an assessment of the offender’s culpability within the gravity of the particular offending,[4] and also to the issues of deterrence and community protection.[5]
[3] R v Lowe CA62/05, 4 July 2005 at [31]; R v Columbus [2008] NZCA 192 at [14].
[4] Sentencing Act 2002, ss 8(a) and 9(1)(j).
[5] Sentencing Act 2002, s 7(f) and (g).
Even taking into account Mr Mita’s previous convictions for offences involving dishonesty, however, we consider that a starting point of two years imprisonment for the burglary charges was too high. We accept the submission for Mr Mita that a starting point of no more than 18 months imprisonment could be justified on those charges.
On the other hand, this Court has repeatedly said that the structure of a sentence is of little consequence. The important issue is whether the end sentence is manifestly excessive having regard to the circumstances of the offending and the offender.
Was the end sentence manifestly excessive?
Two factors are important in this context. First, Mr Mita now has a relatively lengthy list of previous convictions and notations in both the Youth Court and the District Court. These are for a wide variety of offences, including the driving offences and the dishonesty convictions to which we have already referred. Significantly, Mr Mita was sentenced to 14 months imprisonment on 29 March 2010 on a charge of wounding with intent to cause grievous bodily harm. He also has other convictions for common assault and assaulting a female.
Although he elected not to do so, we consider the Judge would have been entitled to apply an uplift to reflect the aggravating factor of Mr Mita’s previous convictions. This would be justified on the basis that Mr Mita continues to offend in a violent manner notwithstanding the sentences he has received in the past for that type of offending.
Secondly, the charges arising out of the incidents on 21 December 2010 and 28 January 2011 cannot be described as minor offending.
When Mr Mita rode his motorcycle around the streets of Napier on 21 December 2010 he deliberately breached orders made by the Court just a few days earlier. His did so against a background of two previous convictions for driving whilst disqualified, and several other convictions for breaching conditions imposed by the Court and the parole authorities.
The incident on 28 January 2011 involved repeated kicks to the body of a woman who was holding a young child. The young child was also struck during this incident. It is fortunate that neither was injured as a result of the attack.
Both incidents were entirely separate from those giving rise to the other charges for which Mr Mita was sentenced. The Judge did not apply any uplift to reflect that fact even though he was undoubtedly entitled to do so. Instead, he imposed sentences that were to be served concurrently with those he imposed on the other charges. In effect, Mr Mita received no additional punishment at all for these additional forms of offending.
These factors eliminate our concern regarding the starting point the Judge selected in relation to the burglary charges. We consider that an effective sentence of four years imprisonment properly reflected the totality of the offending.
Result
The appeal against sentence is dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent
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