MASINA v R [2022] NZHC 3280

MASINA v R [2022] NZHC 3280 [7 December 2022]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2022-404-412CRI-2022-404-413[2022] NZHC 3280BETWEEN POE MASINAAppellantAND THE KINGRespondentHearing: 7 December 2022Appearances: S Tait for appellantR J McDonald for respondentDate of judgment: 7 December 2022ORAL JUDGMENT OF JAGOSE JCounsel/Solicitors:S Tait, Barrister, AucklandKayes Fletcher Walker, Manukau[1] Poe Masina appeals against Judge S Moala's 19 October 2022 decision in theDistrict Court at Manukau,1 sentencing him to two years and four months'imprisonment on his guilty pleas to charges of aggravated burglary,2 wilful damage,3possession of a firearm (representative),4 possession of synthetic cannabis for sale orsupply5 and possession of methamphetamine.6Background[2] The charges arose from Mr Masina's participation in three events. In the lateevening of 28 December 2018, he and others entered the victim's home in Auckland'sŌtāhuhu armed with a steel scaffolding pole, with which he threatened the victim andsmashed the windows of her car parked outside, in apparent retaliation for a burglaryearlier of Mr Masina's house at which the victim's car was said to have been involved.His unlicensed possession of a rifle and shotgun was identified in the wake of hisbrother's removal and return of the shotgun for and from use in a March 2019 Māngeremurder. The drugs were found in his car on an August 2021 traffic stop, in a numberof small snap-lock bags, together with nearly $12,000 in cash.Judgment under appeal[3] Judge Moala observed Mr Masina's sentencing had been adjourned "a numberof times" to enable him to "do [the] work" necessary to get into "home detentionrange".7 Her Honour took a starting point of three and a half years' imprisonment onthe aggravated burglary and wilful damage charges, uplifted by four months eachrespectively on the firearms and drugs charges, to arrive at a starting point of50 months' imprisonment.8 Discounts totalling 25 per cent for his guilty plea (five percent), background (10 per cent) and rehabilitation (10 per cent) reduced that to1 R v Masina [2022] NZDC 20692.2 Crimes Act 1961, s 232(1)(a). Maximum penalty: 14 years' imprisonment.3 Summary Offences Act 1981, s 11(1)(a). Maximum penalty: three months' imprisonment or$2,000 fine.4 Arms Act 1983, s 45(1)(a). Maximum penalty: four years' imprisonment or a fine of $5,000.5 Psychoactive Substances Act 2013, s 70(1)(c) and (3)(a). Maximum penalty: two years'imprisonment.6 Misuse of Drugs Act 1975, s 7(1)(a) and 2(a). Maximum penalty: six months' imprisonment or a$1,000 fine.7 R v Masina, above n 1, at [13].8 At [14]–[15].38 months' imprisonment.9 The Judge applied further reductions of six months forMr Masina's time on bail,10 and four months for his reparations (including communitywork), to reach an end sentence of 28 months' imprisonment.11 She observed his drugsoffending while working toward a home detention sentence made any lesser sentenceunavailable.12[4] For Mr Masina, Shane Tait argues the Judge erred in applying discount only tothe earliest aggravated burglary offending to which Mr Masina pleaded guilty on themorning of trial, and for which offending her Honour had adopted too high a startingpoint. Mr Tait says larger discounts should have been granted for all guilty pleas,including those more timely made in relation to the later offending. And he identifiescomparable sentencing of three years' imprisonment for "strikingly similar" offendingthan the more serious offending underlying authorities relied on by the Crown.13Approach on appeal[5] I must allow the appeal only if I am satisfied both there is error in the sentence,and a different sentence should be imposed.14 In any other case, I must dismiss theappeal.15 The approach previously taken by courts on sentencing appeals continues toapply;16 the measure of error is the sentence be "manifestly excessive" – the principleis "well-engrained" in this Court's approach to sentencing appeals.17 I will notintervene where the sentence is within a range properly justified by acceptedsentencing principle. Whether 'manifestly excessive' is to be assessed in terms of thesentence given, rather than the process by which it is reached.189 At [17].10 At [18].11 At [19].12 At [20].13 Kiri v Police [ 2012] NZHC 2099; Melgren v R [2016] NZHC 2482 and R v Shirley [2009] NZCA216.14 Criminal Procedure Act 2011, s 250(2).15 Section 250(3).16 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27].17 At [33] and [35].18 Ripia v R [2011] NZCA 101 at [15].Discussion[6] I do not accept the Judge failed to allow a guilty plea discount on other thanthe initial charges. The discount plainly applied across the whole of her starting point.None of Mr Masina's guilty pleas could be considered made at the first reasonableopportunity, but only when little if anything remained to be gained from denial.19I include in that assessment any attempt to mitigate intermediate breaches of bail.[7] Nonetheless all warranted recognition, even if attracting a discount of"nothing",20 and some of the later better than if made at trial.21 The scope for materialfurther reduction from the lead offending is limited by the relatively small uplifts fortotality. Counsel of perfection may have been to segregate the discounts for application"to that component of the adjusted starting point" as related to each guilty plea.22 Anyperceived meanness of the Judge's discount for guilty pleas comprehensively isoutweighed by the generosity of her further ten months' deductions for time on bail(despite a large number of bail conditions' breaches, including the last offending) andvoluntary efforts in reparation.[8] In the end, I am to stand back to determine if Mr Masina's 28-month sentenceis manifestly excessive. The cases are relatively consistent in upholding starting pointsof between three and a half years and four years' imprisonment for aggravatedburglaries as within range.23 If the Judge's uplifts and discounts both were modest, thefurther 10-month deduction was generous. I see nothing at all excessive in the endsentence.[9] The appeal is dismissed.—Jagose J19 A 'strong Crown case' is a relevant factor in determining a guilty plea discount. See Hessell v R[2010] NZSC 135, [2011] 1 NZLR 607 at [59]; and, see for example, Mehrok v R [2017] NZCA370 at [35]–[37]; R v Harrison [2016] NZCA 381, [2016] 3 NZLR 602 at [154]; Cai v R [2012]NZCA 293 at [19]; Pokai v R [2014] NZCA 356 at [70]; and Z v R [2012] NZCA 607 at [25].20 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [45]; and Moses v R [2020] NZCA 296,[2020] 3 NZLR 583 at [23].21 McDonald v R [2021] NZCA 531 at [37].22 Agar v R [2021] NZCA 350 at [31].23 Dey v R [2021] NZCA 342 at [47]; Walker-Dahlberg v R [2020] NZCA 661 at [41]; Rangi v R[2014] NZCA 524 at [7] and [11]; and R v Patrick [2008] NZCA 115 at [25].