R v Mamea CA168/06

[2006] NZCA 468

IN THE COURT OF APPEAL OF NEW ZEALAND

CA168/06

THE QUEEN

v

VAIALOFA MAMEA

Hearing:         16 October 2006

Court:            Robertson, Randerson and Ronald Young JJ Counsel: C Nicholls for Appellant

K G Stone for Respondent

Judgment:      25 October 2006         at 4 pm

JUDGMENT OF THE COURT

The appeal is dismissed.

REASONS OF THE COURT

(Given by Randerson J)

R V MAMEA CA CA168/06  25 October 2006

Introduction

[1]      On 12 May 2006 the appellant was sentenced by Gendall J to an effective term of four years’ imprisonment on four counts arising from a serious assault in which he and two others were involved on 9 September 2005.  The appellant pleaded guilty.  The proceedings against his two co-accused have yet to be concluded.

[2]      The specific counts in the indictment to which the appellant pleaded guilty were injuring with intent, assault with a weapon, kidnapping and blackmail.  He was discharged on an additional count of participating in an organised criminal group.

[3]      The appellant now appeals against sentence.

The facts

[4]      The facts, as described by the Judge in his sentencing remarks, were that the appellant was residing with members of the Mongel Mob gang and associated with them.  The victim went to the home of a co-accused who is said to be the leader of a chapter of the gang.  The victim went there with the apparent purpose of repaying a debt.  However, on his arrival, the victim was struck on the back of the head with a heavy object and, after falling to the ground, the appellant and the two co-accused punched  and  kicked  him  a  number  of  times.     The  Judge  recorded  that  the photographs showed that this was a severe and savage beating resulting in injuries to the victim’s face, neck, arms and torso.

[5]      The Judge stated that the motive for the attack was the victim’s involvement in the arrest of a gang prospect.  There was some dispute before us about the Judge’s finding in that respect but we do not find it to be material.   The appellant then obtained a slasher and threatened to kill the victim but went no further.  The victim became unconscious and was detained by the appellant and the co-accused.  Upon regaining consciousness, he was assaulted by one of the appellant’s co-accused while the appellant kept watch.  The beatings continued and his wallet and car keys were

taken.  Despite his request to leave, permission was refused.  A co-accused told the victim that his car and everything he owned now belonged to the co-accused.  The Judge observed that the appellant’s active participation seemed to have stopped at that point but the co-accused continued to assault the victim.

[6]      The Judge concluded that the injuries sustained by the victim resulted from a prolonged attack by the appellant and his co-accused.

The Judge’s approach to sentencing

[7]      The  Judge  considered  the  aggravating  features  to  be:  the  actual  and threatened use of violence; the fact that it was a case of gang thuggery; the extensive harm arising to the victim; and the fact that there were three offenders involved in a group situation.  The Judge did not give particular weight to the appellant’s previous convictions of which there were five.  He noted that there were previous convictions in 1993 for assault with intent to injure and in 1998 for fighting in a public place. There had been nothing significant since then.

[8]      The Judge considered that the only mitigating features were the guilty pleas (which were entered on 20 March 2006 soon after an indictment was presented to the High Court) and some impairment in function as a result of a head injury sustained by the appellant in 1998.  In that respect there was a psychiatric report provided to the Court indicating that the appellant had suffered some cognitive damage with mild impairment in short-term memory functioning.   The psychiatrist described the appellant as having a poor ability to control his irritability and impulsivity.  These features were said to have multiple causes.

[9]      The Judge recorded that the Crown had submitted that the starting point for the totality of the offending was in the range of six to seven years.   A minimum period of imprisonment was sought to protect the public from the appellant’s propensity for violence.  The Judge rejected a submission by the appellant’s counsel that the conduct of the victim was a mitigating feature.   That submission was not advanced before us.

[10]     The  Judge  considered  that  the  appellant’s  involvement  in  the  blackmail offence was minimal and that the key aspects of the offending were the other three charges.  He considered that the charge of injuring with intent should be adopted as the lead sentence in view of what he considered to be the appellant’s greater responsibility for that matter.

[11]     The Judge adopted a starting point of four years and nine months.  He then allowed a discount of nine months for the guilty plea and the appellant’s impairment. The result was a sentence of four years’ imprisonment on the charge of injuring with intent.   Concurrent sentences of two years were imposed on the charge of assault with a weapon and 18 months on the charges of kidnapping and blackmail.   The Judge declined the Crown’s request to impose a minimum non-parole period.

Submissions

[12]     For the appellant, Mr Nicholls submitted that the starting point was too high and that it ought to have been four years.  He also submitted that the discount was too low.  There ought to have been a 25 percent discount which, with the starting point of four years, suggested an end result of three years’ imprisonment.

[13]     In developing these submissions, Mr Nicholls submitted that the Judge had wrongly adopted  a  starting point  which  was  close  to  the  maximum  five  years’ imprisonment for injuring with intent.  He submitted that the offending was not close to the most serious case because, in his submission, the injuries were not as serious as sometimes found in cases of this nature; there was no evidence of assault on the victim  while  he  was  unconscious;  the  attack  did  not  involve  the  actual  use  of weapons but only involved punches and kicks; and there was no intense or sustained attack to the head of the victim.  He submitted that the victim was not part of a gang and that the slasher was not actually used.   By analogy with R v Taueki [2005]

3 NZLR 372 (CA), Mr Nicholls submitted that the features of the case placed the offending at the lower end of band 2. Because this was not a case of causing grievous bodily harm, a further downward adjustment was required to the guidelines in Taueki.

[14]     For the Crown Mr Stone emphasised that the Judge was required to consider the totality of the offending and that the starting point of four years nine months was supportable   on   authorities   such   as   R   v   Luo   CA171/05   12   October   2005, R v Liang CA448/04 2 June 2005 and R v Rangitaawa & Ors HC CHCH CRI 2004-

009-14066 11 August 2005.

[15]     Mr Stone submitted that it mattered little which of the offences was adopted as the leading charge.  The critical factor was to assess the totality of the offending.

[16]     Mr Stone pointed to the Judge’s description of the severity of the beating which involved a sustained attack by both the appellant and the two co-accused; the victim was not able to see a doctor immediately but when he did so, the doctor confirmed the injuries including significant bruising, swelling to the left eye and the left ear and a fractured nose; and the beating had in fact involved the actual use of a weapon, the victim describing being hit from behind by a heavy instrument which he could not identify.

[17]     Mr  Stone  also  referred  to  the  Judge’s  observation  that,  but  for  the intervention of one of the co-accused, the appellant might well have carried out his threat to kill the victim.   In that respect, we observe that the appellant told the Probation Officer that he wanted to cut off the victim’s head and that he would have done so if he had not been stopped.  Even at that point, the appellant did not express any remorse  for  his  offending  and  considered  that  the  victim  had  got  what  he deserved.

[18]     Mr Stone accepted that the victim was not a member of the Mongrel Mob or any other gang.   However, he had associated with members of the gang and the Judge was right to describe the offending as involving an element of gang thuggery.

[19]     As to the analogy with Taueki, Mr Stone submitted it was not appropriate to adopt some mathematical manipulation of the starting points indicated by that decision.  Finally, Mr Stone submitted that the discount (approximately 16 percent) was appropriate and within the range open to the Judge.  While he accepted there was some evidence of psychological and emotional impairment, that factor had to be

weighed against the protection of the  community from  an offender such  as  the appellant who clearly exhibited violent tendencies.

Assessment

[20]     We are satisfied that the starting point adopted by the Judge was entirely open to him having regard to the totality of the offending.   The sentence was not close to the maximum when all the charges are considered.   We agree with the Judge’s assessment of the aggravating factors and with his conclusion that this case involved a severe and savage beating by three men in which the appellant took an active role.  It is quite clear that some sort of weapon was actually used to strike the victim on the head and that was followed by a sustained attack involving the victim being punched and kicked.  The appellant then seized a slasher and threatened to kill the victim.

[21]     We agree with the Judge that the appellant can regard himself as fortunate that he was stopped from using the slasher by one of his co-accused.  But for that intervention, he might well have been facing a much more serious charge.  Indeed, even on the facts presented, he might well have faced a charge of causing grievous bodily harm which would have attracted a maximum 14 year sentence.

[22]     When these factors are combined with a concerted attack on the victim by three men in a gang context, there could be no serious challenge to the Judge’s starting point.   This was a less serious case than Luo which involved aggravated robbery and no guilty plea.  There, the Court adopted a six year starting point with an uplift of one year and a final sentence of seven years.  But the present case is more serious than Rangitaawa where the Court adopted a starting point of four and a half years  on  two  counts  of  blackmail  and  one  of  kidnapping  where  there  was  no violence.   The final sentence after allowing for a guilty plea was three and a half years.

[23]     As to the discount, we might have been inclined to have adopted a slightly higher   figure,  but  we  cannot   regard   the   effective   sentence  of   four   years’ imprisonment  as  being  outside  the  range  available  to  the  Judge.    We  accept

Mr Stone’s submission that the guilty plea was not at the first opportunity and that the appellant’s impairment had to be weighed against the need to protect the community.

[24]     It follows that the appeal must be dismissed.

Solicitors:

C Nicholls, Lower Hutt, for Appellant

Crown Law Office, Wellington