MAHANGA v NZ POLICE [2018] NZHC 1446

MAHANGA v NZ POLICE [2018] NZHC 1446 [15 June 2018]IN THE HIGH COURT OF NEW ZEALANDWHANGAREI REGISTRYI TE KŌTI MATUA O AOTEAROAWHANGĀREI TERENGA PARĀOA ROHECRI-2017-488-000052[2018] NZHC 1446BETWEEN TRAVIS MAHANGAAppellantAND NEW ZEALAND POLICERespondentHearing: 24 April 2018Appearances: A Harvey for the AppellantJ Scott for the RespondentJudgment: 15 June 2018JUDGMENT OF WOOLFORD JThis judgment was delivered by me on Friday, 15 June 2018 at 3:15 pmpursuant to r 11.5 of the High Court Rules.Registrar/Deputy RegistrarSolicitors: Marsden Woods Inskip Smith, WhangareiCounsel: Thomson Wilson, Whangarei[1] On 13 October 2017, following a two day judge-alone trial in the WhangareiDistrict Court, Travis Sydney Michael Mahanga was found guilty and convicted of thefollowing charges by Judge I G Mill:1(a) receiving jewellery valued at $5,200 on 16 March 2017;(b) receiving medical papers, a cell phone and a handbag valued at $100on 16 April 2017;(c) burglary on 19 April 2017; and(d) attempting to pervert the course of justice between 20 April 2017 and15 May 2017.[2] On 3 November 2017, the Judge sentenced Mr Mahanga to three and a halfyears imprisonment on the above charges, as well as additional charges of obstruction,dangerous driving and failing to stop to which Mr Mahanga had earlier pleaded guilty.2Mr Mahanga was also disqualified from driving for 12 months on the two drivingcharges.[3] Mr Mahanga now appeals his conviction and sentence. Mr Mahanga'sconviction appeal relates solely to the two receiving convictions. Mr Mahanga alsoappeals against sentence on the basis of what he says is an arithmetical error on thepart of the Judge and seeks a reduction of six months from his sentence of three and ahalf years imprisonment.Factual background[4] At trial, Mr Mahanga faced four charges of burglary, two charges of receivingand one charge of attempting to pervert the course of justice. The receiving chargeswere alternative charges to two of the burglary charges.1 R v Mahanga [2017] NZDC 23317.2 R v Mahanga [2017] NZDC 24826.[5] The burglary charges related to four properties, which were burgled over amonth long period from 16 March 2017 to 19 April 2017. In respect of the firstburglary on 16 March 2017, there was an alternative receiving charge for the jewellerytaken in that burglary. In respect of the third burglary, on 16 April 2017, there wasalso a receiving charge for medical papers, a cell phone and a handbag taken in thatburglary.[6] The items specified in the two receiving charges were found in a vehicle inwhich Mr Mahanga was a passenger at the time of his arrest on 19 April 2017, notlong after the last burglary. Another passenger in the vehicle was Mr Mahanga'sgirlfriend, Mistry Morgan.[7] The victim of the last burglary had given the police a description of the manand his clothing who had left her property, obviously having just burgled it, and alsoa description and the number plate of the vehicle he left in. This led the Police toMr Mahanga and the vehicle he was found in. Jewellery taken in the last burglary wasalso found in the vehicle.[8] Then, after his arrest and between 20 April 2017 and 15 May 2017, it wasalleged that Mr Mahanga arranged for an associate, James Blyth, to make a statementto the police claiming responsibility for all four burglaries. Mr Mahanga wasconvicted of the receiving charges, the last burglary charge and the charge ofattempting to pervert the course of justice. Mr Blyth was also convicted of the lastcharge.District Court decisionsThe conviction decision[9] At the outset of his decision, the Judge set out the facts of the offending andcorrectly referred to the onus and standard of proof on the police.[10] The Judge then noted that there was no onus on Mr Mahanga to prove anything.He also noted that even though a lawyer, Mr Johnson, was available and ready to actfor him, Mr Mahanga elected to represent himself. The Judge made the followingcomment:[9] Mr Johnson appeared as McKenzie friend on the first day of theevidence but did not do so on the second day of the evidence which wasyesterday when the evidence was concluded. In the main, Mr Mahanga'scross-examination of the witnesses has been relevant and to the point and hehas not wasted the Court's time in any way.[11] The Judge outlined the requirements for the offence of burglary, noting that thesole issue in this case was whether it was proved beyond reasonable doubt thatMr Mahanga was the burglar. The Judge acknowledged Mr Mahanga's evidence:[11] In this respect, and of course I note there is no onus on Mr Mahangato say or to establish anything, but he has urged on me a number of things andhe has done so quite rightly. He points out that no witness has positivelyidentified him as the burglar and further, there is no forensic evidence such asDNA evidence or fingerprints linking him either to the properties that wereburgled or indeed the items that were stolen. He points out that the car he wasfound in was not registered in his name, that Ms Morgan claimed ownershipof the property in the car but of course that was a lie as the property was stolen.I have taken all that into account when deciding whether there has been proofbeyond reasonable doubt.[12] The Judge accepted that it was a circumstantial case. He noted the prosecutionevidence and its limitations, but tying all the evidence together, he found Mr Mahangaguilty of the last charge of burglary.[13] In respect of the three earlier burglaries, the Judge noted that "[o]bviously,Mr Mahanga and Ms Morgan to various degrees must have been involved in the eventssurrounding these burglaries". Items stolen from the properties were found in thevehicle. There was also a certain similarity to each of the burglaries. But the Judgeconcluded:[36] although it is likely, even very likely, that Mr Mahanga was theburglar, I cannot discount the reasonable possibility that it could have beensomeone else. And so on those remaining three burglary charges, I cannot besatisfied beyond reasonable doubt that he was in fact the burglar although Ithink it is very likely that he was.[14] Judge Mill then concluded that Mr Mahanga was guilty of the two alternativecharges of receiving:[37] given the finding of the property as described in the evidence inthe car, Mr Mahanga's attempts, as are seen during the various conversations,to manipulate evidence and in particular, in addressing the things thatremained in the car and found by the police, I find that he was in possessionor control of those, having received them knowing or being reckless as towhether they were stolen or not. He may have been in possession of themjointly with Ms Morgan given her apparent dealings in stolen goods, but thereceiving charges are proved beyond reasonable doubt.The sentencing decision[15] The Judge adopted the burglary charge as the lead offence. Relying onArahanga v R, he noted that the important thing when considering a burglary of thistype was whether there has been any planning or sophistication in the burglary.3 TheJudge concluded that there was not "a tremendous amount of planning in thisburglary", but there was some planning in the sense that the "property targeted wasthat of an elderly person where there was likely to be valuable property stored on thepremises".[16] The Judge also noted the nature of the premises, namely that it was a privatedwelling. He further commented that as the burglary was committed in the afternoon,there was an "obvious danger" that there could be a confrontation.[17] Taking those matters into account, the Judge adopted a starting point of18 months imprisonment. He then uplifted it by three months imprisonment for boththe receiving charges and the obstruction charge.[18] Taking into account Mr Mahanga's previous convictions for burglary anddishonesty offences, the Judge uplifted the starting point by a further three months,resulting in an overall starting point of two years imprisonment.[19] In terms of the perverting the course of justice charge, the Judge noted that itwas "a serious attempt at perverting the course of justice". He concluded that acumulative sentence of imprisonment was appropriate because the events wereseparate. He decided a sentence of two years imprisonment was appropriate in respectof that charge, resulting in an end sentence of four years and six months imprisonment.3 Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189.[20] The Judge then took into account the totality principle and reduced the overallsentence to three years and six months imprisonment.The lawAppeals against conviction[21] Pursuant to s 232(2) of the Criminal Procedure Act 2011, the appeal must beallowed if the appeal court is satisfied that:(a) the Judge erred in his or her assessment of the evidence to such anextent that a miscarriage of justice has occurred; or(b) a miscarriage of justice has occurred for any reason.[22] A miscarriage of justice means any error, irregularity, or occurrence in or inrelation to or affecting the trial that:4(a) has created a real risk that the outcome of the trial was affected; or(b) has resulted in an unfair trial or a trial that was a nullity.[23] The Supreme Court in R v Sungsuwan defined a "real risk" as "a reasonablepossibility that a not guilty (or more favourable) verdict might have been delivered ifnothing had gone wrong".5 Furthermore, the Supreme Court in R v Condon held thatnot every departure from good practice renders a trial unfair.6 The departure mustinstead be "so gross, or so persistent, or so prejudicial, or so irremediable" that thecourt must quash the decision.7[24] An appeal against conviction proceeds by way of rehearing.8 The appeal courtmust carefully consider all the matters that were before the Judge. But, ultimately, thecourt must reach its own decision.4 Criminal Procedure Act 2011, s 232(4).5 R v Sungsuwan [2005] NZSC 57, [2006] 1 NZLR 730 at [110].6 R v Condon [2006] NZSC 62, [2007] 1 NZLR 300 at [78].7 At [78]; citing Randall v R [2002] UKPC 19, [2002] 1 WLR 2237 at [28].8 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [16].[25] The courts have also warned of the limitations involved in not seeing or hearingdirectly from the witnesses.9 An appeal court should only interfere with the factualfindings of the trial judge in exceptional circumstances.10Appeals against sentence[26] Section 250(2) of the Criminal Procedure Act provides that the court mustallow an appeal against sentence if it is satisfied that:(a) for any reason, there is an error in the sentence imposed on conviction;and(b) a different sentence should be imposed.[27] In any other case, the court must dismiss the appeal.11 A sentence may be setaside where it is manifestly excessive.12 Whether a sentence is manifestly excessivedepends on the end sentence, not the process by which the sentence was reached. Thecourt will not intervene where the sentence is within range. But, if the courtdetermines the sentence is manifestly excessive, it will form its own view of theappropriate sentence.13Mr Mahanga's appeal against conviction[28] As noted, Mr Mahanga appeals just against the two convictions for receiving.Counsel submits that the Judge erred in determining that his presence in the vehiclewas enough to give rise to control over the property stolen in two of the earlierburglaries and, further, the Judge erred in determining that he knew or was reckless asto whether the property was stolen. Mr Mahanga was only one of three occupants inthat vehicle, along with Ms Morgan and the driver, Paige Mahanga. He was locatedin the back of the vehicle with Ms Morgan. The property, in particular, the jewellery,was claimed by Ms Morgan as her own at the time of her arrest.9 Sullivan v Police HC Auckland CRI-2008-404-152, 2 October 2008 at [30]-[31].10 Rae v Police HC Hamilton CRI-2006-419-162, 3 May 2007 at [38].11 Section 250(3).12 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [33].13 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482, at [30].[29] Counsel for Mr Mahanga further submits that it was notable that Ms Morganwas sighted about a month earlier selling jewellery thought to have been stolen andwas on the run and unable to be found by the police.[30] Counsel also submits that the Judge placed too much reliance on commentsmade by Mr Mahanga while he was in custody. As to the recorded telephone calls,counsel acknowledged that these showed evidence of perverting the course of justice,but said they did not assist in determining whether Mr Mahanga had control of theproperty, nor whether he had the requisite knowledge or recklessness.Appeal against sentence[31] In the sentence decision the Judge sentenced Mr Mahanga to three and a halfyears imprisonment. That sentence was reached by adopting an 18 month startingpoint for the burglary, an uplift of three months for the receiving and obstructioncharges, a further three months uplift for the appellant's history and a further two yearsimprisonment for perverting the course of justice.[32] The Judge calculated that to be a sentence of four and a half yearsimprisonment. However, it would appear the four elements of the sentence total fouryears imprisonment, rather than four and a half years. The Judge then discounted thesentence by a year to account for the totality principle, leaving an end sentence of threeand a half years imprisonment.[33] Counsel submits that the arithmetical error in this case is significant as theJudge had intended to discount a 54 month sentence by 12 months to account for thetotality principle. In reality, a 48 month sentence was discounted by only six months.If the Judge had intended to account for the totality principle by reducing the sentenceby 12 months, a proper end sentence for Mr Mahanga would have been three yearsimprisonment.Discussion[34] The prosecution case was, of course, that Mr Mahanga was the actual burglarin the three earlier burglaries as well as the last burglary. Mr Mahanga was inpossession of a white HTC mobile phone on arrest. The police obtained polling datafor the phone, which indicated that the phone was active in the vicinity and at the timeof the burglaries in Kiripatea Road, Whangarei on 26 March 2017, Longford ParkDrive, Auckland on 16 April 2017 and Brighton Road, Whangarei on 19 April 2017(the last burglary). There was no data available for the white HTC phone in respectof the first burglary at Old Onerahi Road, Whangarei on 16 March 2017. However, ablack Samsung phone which was used by both Mr Mahanga and Ms Morgan wasshown as active in the vicinity and at the time of that burglary too.[35] There were also a number of similarities between the burglaries. The victimswere all elderly, aged 64, 75, 84 and 83. They were all at home at the time. Theburglaries occurred in the day time. Entry was gained through an open or insecuredoor. In each case jewellery, bank cards or cash were stolen, usually from a bedroom.Similarities between the burglaries pointed to the burglar being the same personfollowing a distinctive modus operandi. Jewellery and other items from three of theburglaries were also recovered from the vehicle in which Mr Mahanga was arrestedon 19 April 2017.[36] Then, after his arrest, Mr Mahanga's telephone calls were recorded. Heobviously knew they were being recorded and spoke with Ms Morgan in coded andcautious language. He referred on a number of occasions to chocolates or lollies,which was obviously a reference to the jewellery found in the vehicle. It is alsoreasonably clear that he told Ms Morgan of his plan to have Mr Blyth falsely tell thePolice that the jewellery found in the vehicle was his.[37] In those circumstances, although the Judge found that the Police had notproven beyond reasonable doubt that Mr Mahanga was the burglar on the first threeoccasions, he was entitled to infer that Mr Mahanga must have known that thejewellery was in the vehicle and that he had possession of it, perhaps jointly withMs Morgan, knowing that it had been stolen or being reckless whether it had beenstolen. After all, he had not long before stolen jewellery from a private dwelling houseand stashed it in the very same vehicle in which jewellery from two earlier burglarieswas also stashed. Furthermore, Mr Mahanga tried to arrange for someone else to takeresponsibility for the jewellery. This clearly showed his knowledge of the stolenjewellery and his ability to deal with it as his own.[38] In my view, there was more than sufficient circumstantial evidence for theJudge to find Mr Mahanga guilty of receiving the jewellery stolen in two of the earlierburglaries. The appeal against conviction must be dismissed.[39] As to the appeal against sentence, it seems that the Judge did make anarithmetical error in calculating the sentence. He adopted a starting point of 18 monthsimprisonment for the burglary charge, which he uplifted by three months for thereceiving charges and the obstruction charge to which Mr Mahanga had pleaded guilty.Then he uplifted it by a further three months on account of Mr Mahanga's previousconviction. This led to a starting point of two years imprisonment for the burglarycharge.[40] The Judge then considered that a cumulative sentence of two yearsimprisonment would be appropriate for the charge of attempting to pervert the courseof justice. The Judge added the sentences together, but mistakenly said that resultedin a total sentence of four and a half years imprisonment, rather than the correct totalof four years imprisonment.[41] From the total of four and half years imprisonment, the Judge reducedMr Mahanga's sentence to one of three and a half years imprisonment to take accountof the totality principle, that is, the principle that a cumulative sentence that outweighsthe overall criminality of the offending should not be imposed.[42] In the present case, although the Judge said that he did not think that a sentenceof four and a half years imprisonment was particularly excessive, he did reduce whathe expressed to be a sentence of four and a half years imprisonment by one year toreach a final sentence of three and a half years imprisonment.[43] In those circumstances, I am of the view that the reduction of one year shouldbe maintained, but from a starting point of four years imprisonment, which the Judgeconsidered to be appropriate. If charged separately, the Judge thought the appropriatestarting point for the burglary charge was 18 months imprisonment and a starting pointfor the charge of attempting to pervert the course of justice was two yearsimprisonment. Added together that is three and a half years imprisonment. Looked atin that light, a total sentence of three years imprisonment gives due recognition to thetotality principle.[44] Accordingly, I am of the view that the appeal against sentence should beallowed and the two year sentence of imprisonment on the charge of attempting topervert the course of justice should be quashed and replaced by one of 18 monthsimprisonment. All other sentences are to remain such that the overall sentence isreduced from three and a half years imprisonment to one of three years imprisonment.Result[45] The appeal against conviction is dismissed.[46] The appeal against the sentence of two years imprisonment on the charge ofattempting to pervert the course of justice is allowed. The sentence is quashed andreplaced by one of 18 months imprisonment, which is cumulative on the sentence of18 months imprisonment on the charge of burglary, making the overall sentence oneof three years imprisonment. All other sentences remain the same._________________________Woolford J