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R v Mahoni (1998) 15 CRNZ 428 (CA)

Case summary provided by BROOKERS

Name: R v Mahoni
Reported: (1998) 15 CRNZ 428
File number: CA405-407/97; CA433/97
Date: 25 February 1998
Court: Court of Appeal
Location: Wellington
Judge: Eichelbaum CJ, Richardson P, Gault, Keith, Tipping JJ
Charge: Aggravated Robbery; Sexual Violation - Rape/Oral Sex/Digital Penetration
CYPFA:
Key Title: Sentencing in the Adult Courts - Application of Youth Court principles; Sentencing in the adult Courts - Aggravated Robbery; Sentencing in the adult Courts - Sexual Violation - Rape; Sentencing in the adult Courts - Sexual Violation - Digital Penetration; General Principles of Sentencing eg parity/jurisdiction

BROOKERS Summary:

Sentence - Sexual offences - Whether sentences manifestly excessive - Multiple defendants and multiple offences - Weight to be given to mitigating factors such as guilty plea and age of defendants.

Sentence - Youth offenders - Sexual offences - Whether sentences manifestly excessive - Multiple defendants and multiple offences - Weight to be given to mitigating factors such as guilty plea and age of defendants.

The four appellants were members of "The Central Soldiers", a street gang with a stated objective of obtaining recognition and notoriety through committing crimes. The appellants appealed against sentences imposed for offences committed in a series of incidents. The gang targeted cars occupied by couples in vehicles parked at One Tree Hill, Bastion Point, and Mount Roskill in Auckland. Having selected their victims, they parked their own vehicle, and approached the target car simultaneously from both sides. Attacks were carried out with a wheel brace, a steering lock bar, or a tyre lever. They forced their way into the car and assaulted the male, robbing him of valuables. Simultaneously, in three of the four cases, the female was sexually harassed or assaulted. In the third (and the most serious case), the female victim was subjected to a brutal gang rape.

In the end, all appellants pleaded guilty to two counts of aggravated robbery, and three of sexual violation, by rape, oral sex, and digital anal penetration respectively. Tangitau and Tongotongo also pleaded guilty to two further charges of aggravated robbery, which took place at Mount Roskill.

The appellants Tangitau, Tongotongo, and Mahoni were 16 at the date of the offending and 17 when sentenced. The appellant Sinamoni was just over 15 at the date of the offending.

The sentencing Judge held that the only mitigating aspects were the age factor and some allowance for the pleas of guilty.

The appeal was based on the ground that the Judge's starting point was too high. It was not specified precisely, but if some of the Judge's remarks suggested it was 20 years, in the appellant's submission this was excessive. If on the other hand, as another passage might have suggested, the starting point was 15 years in the case of the three older offenders, and 13 years for Sinamoni, no sufficient allowance was made for mitigating factors.

Held, (1) because of the endless variety of circumstances that come before the Courts on sentencing, an absolute rule cannot be laid down relating to whether a [(1998) 15 CRNZ 428,429] cumulative or concurrent approach should be adopted, or how, as a matter of mechanics, the starting point is to be approached. In this case, the Judge did not have any real option but to fix sentences for the sexual offending which reflected the totality of each offender's culpability, and impose concurrent sentences for the lesser (although still serious) offending. (p 435, line 18)

(2) As to the assessment of the head sentence, in situations akin to the present, the preferred mode is likely to be the familiar process of fixing a starting point and making deductions from it for the factors in mitigation. Here, although in the end result the longest sentences would be imposed in respect of the sexual violation counts, clearly the starting point would have to be influenced by the totality of the offending of the particular accused. Commencing with the sexual offending accompanying the third incident, this was a very bad case. It comes into the "very severe and exceptional" group referred to in R v Morris. (p 435, line 25)

R v Morris [1991] 3 NZLR 641; (1991) 7 CRNZ 26 (CA) referred to

R v Pira unreported, 9 December 1992, CA328/92

(3) In the "ordinary" case, where conviction for sexual violation by rape follows a trial where guilt has been contested, the conventional starting point is 8 years. In cases as the present, in the highest category, the figure does not have much more relevance than to remind the sentencer that that is the benchmark for cases of much lesser gravity. If here, as seems probable, the Judge took 20 years as the starting point, then this is not criticisable. (p 436, line 23)

R v A [1994] 2 NZLR 129 (CA) referred to

(4) In relation to matters of mitigation, the Judge's remarks on sentencing appear to understate the weight to be given to a plea of guilty in the circumstances which occurred. Although on the face of things the pleas were delayed, there was still substantial benefit to the victims in not having to give evidence, and the avoidance of public time and expenditure on a lengthy trial. Although in the circumstances of this case the appellants could not expect to receive the most liberal allowance, nevertheless their pleas merited substantial recognition. (p 436, line 30)

(5) In relation to the issue of allowance for youth, the principle that for a variety of reasons, youth may lead to a reduction in an otherwise appropriate sentence is not an absolute principle and there are situations where it must yield to public interest. Also, an allowance would be made more readily in a case having features encouraging leniency. No such circumstances are present here. The attacks were planned, repeated, and in conformity with the creed of the gang from the outset. The sentencing Judge was not therefore required to make a large reduction on account of age. (p 436, line 44; p 437, line 3)

R v Wilson [1989] 2 NZLR 308; (1989) 5 CRNZ 165 (CA) referred to

(6) In relation to Tangitau and Tongotongo, an effective reduction of 6 years made sufficient allowance for the totality of the factors discussed. It can be seen as including a 4-year allowance for the plea of guilty, and therefore the sentences were not manifestly excessive. (p 437, line 29)

(7) Had Mahoni's offending stood alone, the 14-year sentence imposed on him might have been sustainable. The difficulty with the sentence is that when standing alongside those imposed on Tangitau and Tongotongo, there was no differentiation for the three additional incidents in which they were involved. Each was serious offending meriting a substantial prison sentence. Applying the conventional [(1998) 15 CRNZ 428,430] principle in disparity cases the objective observer, aware of all the facts, would have to conclude that justice had miscarried. In this case, the sentence of 14 years was quashed and 11 years' imprisonment substituted. That difference reflects the serious nature of offending to which he was not a party. (p 437, line 33)

R v Lawson [1982] 2 NZLR 219 (CA) applied

(8) Sinamoni received substantial additional allowance for the fact that by a margin of some 18 months, he was the youngest of the offenders. Leaving his 12-year sentence to stand would create unjustifiable disparity between Mahoni and himself. His sentence of 12 years was replaced with a sentence of 11 years to reflect his youth and non-involvement in two of the four incidents. (p 437, line 44)

Statutes and regulations referred to

Criminal Justice Act 1985, ss 7, 81

United Nations Convention on the Rights of the Child, art 37(b)

Cases referred to

R v A [1994] 2 NZLR 129 (CA)
R v Bradley [1979] 2 NZLR 262
R v Crime Appeal unreported, 28 February 1992, CA375/91
R v Gonidis (1980) 57 CCC (2d) 90 (Ont CA)
R v Hiha [1987] 2 NZLR 119 (CA)
R v Hovell [1987] 1 NZLR 610; (1987) 3 CRNZ 106 (CA)
R v Lawson [1982] 2 NZLR 219 (CA)
R v Misitea [1987] 2 NZLR 257 (CA)
R v Morris [1991] 3 NZLR 641; (1991) 7 CRNZ 26 (CA)
R v Pira unreported, 9 December 1992, CA328/92
R v Serra (1997) 92 A Crim R 511
R v Titoko unreported, 11 August 1996, CA114/96
R v Wilson [1989] 2 NZLR 308; (1989) 5 CRNZ 165 (CA)

Appeal

Appeal against sentence.