R v Mohi

Case [2007] NZCA 139 19 April 2007

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IN THE COURT OF APPEAL OF NEW ZEALAND
CA37/07
[2007] NZCA 139
THE QUEEN
v
BRENDON SHANE MOHI
Hearing:13 March 2007

Court:Wilson, Baragwanath and Venning JJ
Counsel:Appellant in person

K Raftery for Crown

Judgment:19 April 2007 at 10.30 am

JUDGMENT OF THE COURT

A        The appeal is allowed.
B        The term of imprisonment is reduced to two years.
C        Leave to apply for home detention is declined.
D        The sentence is otherwise confirmed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Baragwanath J)
[1]       Mr Mohi appeals against a sentence of two years and four months imprisonment imposed together with an order to pay reparation of $6000 following his conviction by a jury in the District Court at Invercargill on one count of arson and another of attempted arson of motor vehicles.
Background facts
[2]       Mr Mohi was employed by Superior Firewood Ltd of Queenstown as a contract cutter. On 27 June 2006 he told the proprietor that he was resigning his job, complaining that he was unable to make money because a truck he thought he should have access to was unavailable. He drank a good deal of vodka and then took a taxi to Superior Firewood’s premises and set alight a Toyota vehicle, the subject of the count of attempted arson, and a Nissan Terano owned by a Mr de Koning. The owner of the Toyota managed to put out the fire but the Nissan was totally destroyed.
[3]       In his sentencing remarks Judge Phillips found that the appellant wrongly attributed the termination of his work to his employer rather than to himself and that if his plan had succeeded a number of vehicles would have been set alight and that would have placed people at risk. He was satisfied that to collect, spread and light the diesel would have taken concentrated effort, which was evidence of clear pre‑meditation. He recognised some degree of remorse and saw reparation as of importance.
[4]       The Judge found that the appellant had an alcohol problem. It was not that he drank every day, because the Judge found without hesitation that when employed he is a hard worker. But when he decides to drink he does so to excess. The Judge considered that the appellant fails to recognise that any problem exists and that until he gets treatment for his alcohol problem and issues of anger management he is at high risk of re-offending.
The first ground of appeal
[5]       At a hearing on 11 July 2006 Chisholm J considered and dismissed an appeal by Mr Mohi against the District Court’s refusal of bail. Having found no error in the District Court’s decision the Judge concluded:
[7]       It should be added, however, that the appellant’s trial needs priority. If the trial cannot be heard before Christmas it is difficult to see how continued refusal of bail could be sustained. Beyond that point any remand in custody is likely to exceed the sentence that he would have to serve if convicted. If the trial…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Mohi

Details

AGLC: R v Mohi [2007] NZCA 139
Case: [2007] NZCA 139
Decision Date: 19 April 2007

CaseChat Overview and Summary

The appeal heard by the Court of Appeal of New Zealand involves the case of Brendon Shane Mohi, who was convicted in the District Court at Invercargill on one count of arson and another of attempted arson of motor vehicles. Mohi was sentenced to two years and four months imprisonment and ordered to pay reparation of $6000. Mohi appeals against his sentence, arguing that the District Court Judge erred in imposing a sentence that would render him ineligible for parole until 8 April 2007 and prevent his release until 25 October 2008. Mohi further argues that the sentence imposed was unduly severe. The Crown maintains that the sentence was appropriate and that Mohi's appeal should be dismissed.

The Court examines two main issues in this appeal. Firstly, whether the District Court Judge's remarks on the priority of Mohi's trial amounted to a sentence indication that Mohi relied upon when entering a plea of not guilty. Secondly, whether the sentence imposed was unduly severe.

The Court finds that there was no sentence indication made by the District Court Judge, as his remarks were only expressing the need for a prompt trial. Mohi did not rely on these remarks and pleaded not guilty, requiring his case to go to trial. Therefore, there is no basis for an allegation of unfairness in the District Court Judge's opinion on the appropriate sentence.

Regarding the severity of the sentence, the Court considers the starting point for the sentence to be 30 months with a deduction of six months for the reparation, resulting in a net sentence of 24 months (two years) imprisonment. The Court reduces the term of imprisonment to two years and sets aside the original sentence of two years and four months. However, the Court declines leave to apply for home detention due to the character of the offending and Mohi's past record. The District Court sentence is otherwise confirmed.

In summary, the Court of Appeal of New Zealand allows the appeal, reduces the term of imprisonment to two years, declines leave to apply for home detention, and confirms the District Court sentence otherwise.

Orders