MAHUTA v POLICE [2021] NZHC 2710

MAHUTA v POLICE [2021] NZHC 2710 [11 October 2021]IN THE HIGH COURT OF NEW ZEALANDHAMILTON REGISTRYI TE KŌTI MATUA O AOTEAROAKIRIKIRIROA ROHECRI-2021-419-57[2021] NZHC 2710BETWEEN STEVIE MANIAPOTO MAHUTAAppellantAND NEW ZEALAND POLICERespondentHearing: 11 October 2021Counsel: C D Bean for AppellantB B Harris for RespondentJudgment: 11 October 2021JUDGMENT OF BREWER JSolicitors/Counsel:Charles Bean (Hamilton) for AppellantHamilton Legal (Hamilton) for RespondentIntroduction[1] Mr Mahuta appeals against the sentence of 12 months' imprisonment imposedon him on 5 August 2021 by Judge J H Lovell-Smith.1 The basis of the appeal is thatthe sentence was imposed in error.[2] I am satisfied that there has been an error, indeed more than one error, and Icannot fix them on appeal. Accordingly, I will quash the sentences on all of the chargesand remit them to the District Court for resentencing.Background[3] Mr Mahuta came before Judge J D Large for a sentence indication on 3 June2021.[4] The charges before Judge Large were:Offence date Charge Penalty Previousconvictions1 5 January 2021 Driving while disqualified (third orsubsequent)2 years, $6,000 52 28 January 2021 Theft of petrol 3 months -3 30 January 2021 Theft of shoes (from a shop) 3 months 24 31 January 2021 Theft of petrol 3 months -5 25 February 2021 Breach of release conditions 1 year, $2,000 6+6 23 March 2021 Driving while disqualified (third orsubsequent)2 years, $6,000 -7 3 April 2021 Driving while disqualified (third orsubsequent)2 years, $6,000 -8 3 April 2021 Theft of petrol 3 months -9 3 April 2021 Receiving a motor vehicle 7 years 110 27 April 2021 Theft of clothing (from a shop) 3 months -11 12 May 2021 Failed to answer bail 1 year, $2,000 3[5] Judge Large indicated a starting point of 14 months' imprisonment. The Judgesaid he would allow a 25 per cent discount for pleas of guilty, which would bring thesentence to approximately 10½ to 11 months' imprisonment. The Judge commentedthere might be other mitigating factors which could be taken into account atsentencing.1 Police v Mahuta [2021] NZDC 16017.[6] Mr Mahuta accepted the sentence indication. Judge Large was not available tosentence and so that task fell on Judge Lovell-Smith.Errors[7] The first error is that Judge Lovell-Smith did not sentence on all of the charges.The Judge thought she was sentencing Mr Mahuta on two charges of driving whiledisqualified (third or subsequent) when there were three such charges. Further, theJudge appears to have overlooked charge 10, theft of clothing. The Judge did notimpose a sentence on those charges, although she did endorse the charging documentswith sentences and those have been carried over to Mr Mahuta's criminal historyrecord. Section 31 of the Sentencing Act 2002 requires a court to give reasons in opencourt for the imposition of a sentence.[8] The second error is that Judge Lovell-Smith, having adopted Judge Large'sstarting point of 14 months' imprisonment, reduced it to nine months' imprisonmentfor personal factors, but did not give a discount for pleas of guilty.[9] The third error, the one identified by counsel for Mr Mahuta, is that havingimposed a sentence of nine months' imprisonment on charge 9, the charge of receivinga motor vehicle, the Judge inexplicably sentenced Mr Mahuta to 12 months'imprisonment on the two charges of driving while disqualified (third or subsequent)which the Judge thought were the only charges of that type before her.Discussion[10] The appeal is not taken on the ground that the sentence of 12 months'imprisonment on the two charges of driving while disqualified (third or subsequent) ismanifestly excessive. If that was the basis of the appeal then I would dismiss theappeal. An end sentence of 12 months' imprisonment on this set of charges, withMr Mahuta's record of previous offending, is extremely light.[11] However, the appeal is brought on the ground of error and manifestly there areerrors. As I have said, I cannot fix them on appeal.Decision[12] The appeal is allowed. The sentences on all of the charges are quashed. Thecharges are remitted to the District Court for resentencing.[13] Whether Mr Mahuta is released on bail will be a matter for the District Court.[14] Mr Bean points out that if the correct end sentence is nine months'imprisonment, then his client is already time-served. Mr Bean is worried that becauseof the current backlog in the District Court, resentencing might not take place untilnext year. Mr Bean asks for urgency.[15] At this point, all I can do is endorse Mr Bean's request for urgency. The appealhas been allowed on the basis of errors in the District Court process. I hope thaturgency can be given to ensure that the errors do not compound to create injustice forMr Mahuta.________________________________Brewer J