The Queen v Corey Jamie Maihi

IN THE COURT OF APPEAL OF NEW ZEALAND

CA 221/00

THE QUEEN

COREY JAMIE MAIHI

Hearing:	16 August 2000
Coram:	Gault J Robertson J Salmon J
Appearances:	M J Sharp for the Appellant
S P France for the Crown
Judgment:	16 August 2000

JUDGMENT OF THE COURT DELIVERED BY ROBERTSON J

Corey Jamie Maihi appeals against a sentence of 3 years imprisonment imposed upon him at the District Court at Hamilton on 9 June 2000. He and three others initially faced trial in the District Court at Tauranga on 15 May 2000 on an indictment which charged that on or about 7 January 1999 at Paeroa with intent to cause grievous bodily harm to Stephen Dromgool, injured him contrary to s 189(1) of the Crimes Act 1961.
At the conclusion of the Crown case, the Prosecutor made an application to amend the indictment by including an alternative count that on the same day in the same place, with intent to injure, caused injury to the same complainant contrary to s 189(2).
The maximum penalty in respect of the original count is 10 years and that in respect of the alternative count is 5 years.
The amendment having been granted all four accused were arraigned on the alternative charge and pleaded guilty. The Crown elected not to proceed on the original charge. Convictions were entered on the substituted count against all four.
The other three accused were subsequently sentenced to 18 months imprisonment. The present appellant who the Judge who had presided at the trial and who imposed the sentence, described as the “ringleader”, was sentenced to 3 years imprisonment.
The sole ground of appeal is that there is a lack of parity between the sentences imposed.
On this aspect of the case the Judge said :
There was only one leader of the four of you and that was you, Corey Maihi. You were the one who acknowledged you were affronted by the complainant giving you the fingers. You were the one that herded up the other three and took them along with you. You were the one, according to the complainant (whose evidence I accept) who led throughout this whole sorry affair. You were the leader and, without you, nothing would have happened. At any stage, if you had indicated you had reached a sufficient point where no further violence was necessary, it would have stopped. Of that I have no doubt. Your position, as against the other three is far more serious. You need to be dealt with far more severely than they will be.
The disparity is said to arise :
[a]Because the sentencing Judge has drawn inferences as to the leadership of the appellant which were not available on the evidence.
[b]To the extent that it was properly concluded by the Judge that there was a degree of leadership, the fact that the others nevertheless played a significant independent role has not been taken properly into account.
[c]That the Judge has not taken into account the appellant’s personal circumstances as being less aggravating than those of the others.
The trial Judge concluded on the basis of the evidence he heard that there had on a previous occasion been trouble between the appellant and the complainant as a result of which bad blood existed.
On the evening of 7 January 1999 all the four persons charged were at a local hotel while the complainant was there with another group. It appears that the offending had its genesis in the complainant giving the fingers to the group as a result of which this appellant decided he should be dealt to.
The Judge found that the appellant then “herded up his followers” and went round to the complainant’s house where this appellant knocked on the door and demanded that he come outside.
The Judge found that the complainant considered that he had no option but to go with the group as he was concerned about an elderly relative in the house, and what could happen if he showed any resistance.
In that frame of mind the complainant got into the car which the four were in and immediately the occupants started to beat him. He was hit on the head apparently by the driver with some kind of stick or bat. Eventually he was taken to a car park in Paeroa where it was the appellant who mainly dragged him from the car. He was set upon with punching and kicking by the group in what the Judge described as a shameful act of aggression with four fit young men attacking a weak individual. The complainant asserted, and it was not seriously challenged, that the appellant was responsible for most of it but all had been involved.
The complainant was put back into the car and driven to the home of one of the assailant’s friends where he was again dragged from the car by the appellant and set upon again.
The Judge found that there the appellant told the complainant that he might cut his throat but someone else indicated instead they could break his back. A severe blow was dealt to him on the back with a stick or bat.
The Judge found that there had been a terrifying ordeal which lasted over an hour in respect of which there was at least the possibility that his back might have been broken in the course of the beating.
The Judge noted that aggravating features included the fact that a weapon was used, four people were involved in the attack, there was essentially an abduction of the complainant from his home environment and a detaining of him while this particularly severe beating went on.
It is to be noted that all the persons charged were intoxicated, but that provides no defence or excuse.
Upon his assessment of the leadership role the Judge took the starting point for this appellant of 3½ years and for the others 2 years. In respect of all of them he reduced the sentences by 6 months for the plea of guilty. There was an argument raised as to whether there should have been more allowance on the longer sentence. As there was also a cumulative sentence imposed on an unrelated matter, it makes the issue of no practice significance in this case.
Counsel before us accept that the starting point for this appellant was within range although he submitted at the upper end, whereas those on the co-offenders while also within range were nearer the lower end. Reference was made to a decision of this Court in R v Heti (1992) 8 CRNZ 554, and R v Stubbing & Jerry (CA 292, 386/92, 11 November 1992).
We are not satisfied that the starting point of 3½ years for this appellant was outside of range. The appellant and his co-accused were perhaps fortunate that the Crown was prepared to accept the pleas of guilty to the count where the maximum term was 5 years, because there must have been the real possibility that a jury appraised of all the facts would have convicted on the more serious count.
There is no argument as to the nature of the disparity principle as enunciated in R v Lawson [1982] 2 NZLR 219. It may be that the appellant’s brother, Harley Maihi, was fortunate that a more severe sentence was not imposed upon him. But that is not a reason to reduce otherwise an appropriate sentence in respect of the offending which the Judge found the appellant to have been involved in.
There is a further aspect which relates to an argument that there was a parole disparity. As the Crown noted, this was greater than the appellant’s submissions had suggested because parole eligibility on a sentence of 18 months will arise after 6 months, whereas on a sentence of 3 years which has involved serious violence the issue will only arise after two-thirds of the sentence, namely 2 years.
Mr Sharp drew attention to a decision of Hammond J in Hall v Police (A7/00, Hamilton Registry, 2 June 2000) where by reference to comments of this Court in R v Meredith (CA 64/95, 6 July 1995) it was argued that the Court should take into account the real “outcome” of a sentence.
The learned Chief Justice in Meredith was considering the circumstances which can arise with regard to suspension and non suspension. Then it is the act of the sentencing Court which can have relevance from the point of view of perception. We are not persuaded that the issue arises in the circumstances of the present case. As Mr France submitted it is not an appropriate basis on which to consider issues of disparity for there is no guarantee that anyone of the four offenders will in fact get parole and it would be wrong for the Court to adjust sentences to reflect the potential of parole which in and of itself can create inequities if for example the parole eligible person does not actually obtain it.
Parliament has marked out 2 years as a significant sentence in respect of serious violence offences. When an absolute figure is chosen there will be situations where the consequences will impact more harshly on some sentences than others. It is not however the role of the Courts to distort a clear legislative regime and the consequences which flow from it. The task of a sentencing Court is to determine the appropriate sentence based on culpability and the circumstances of the particular offender.
An endeavour was made to argue that the Judge was wrong in his conclusion about the leadership role of this appellant in what occurred.
It is often necessary for a Judge to determine a factual scenario on sentencing. There can be no doubt in light of the evidence which he had heard that the scenario which he articulated was well available.
We are satisfied that it was open to the Judge to conclude as he did that without this appellant no offending would have occurred and that at any stage this appellant could have stopped the continuing violence.
Complaint is also made that the Judge did not take into account the prior records of violent offending of two of the co-accused, whereas this appellant and one other had nothing for violence. Nonetheless the Judge properly noted that the appellant had been a persistent offender for the last seven years.
In circumstances such as this when dealing with vigilante type cowardly stand-over tactics by bully boys, little weight will be given to the background circumstances. It is clear that the Judge treated this incident as calling for a deterrent sentence and the strongest condemnation of the attitude and approach which was manifest. The Judge specifically said :
The videotaped interview of you, Corey Maihi, indicates your arrogance and your disdain you had for the complainant. It also indicates the exhalted (sic) opinion you had of yourself. You considered that being offered the indignity of having the fingers given to you justified you taking a strong stand against this man.
We are not satisfied that there is any unjustified disparity in sentencing and the appeal is accordingly dismissed.

SOLICITORS

Crown Law Office, Wellington

[2000] NZCA 165

16 August 2000