A minimum term of imprisonment was not imposed, despite the prosecutor requesting one of 50%.
In the Court of Appeal at Auckland on Monday, Crown solicitor Ben Thompson argued that it was a case of sentencing gone wrong.
Justices Christian Whata, Andru Isac and Mathew Downs heard the appeal.
Thompson submitted that, by adding up multiple discounts for personal factors, without stepping back to look at the situation overall, Judge Mason lost sight of the gravity of the offending, which resulted in a sentence that was “manifestly unjust”.
Discounts of 30% for mitigating factors and 25% for guilty pleas were adopted.
The Crown said 15% for mitigating factors would have been more appropriate and would make a material difference of about two years to the prison term.
Thompson also raised issues about the extent to which Mellow’s methamphetamine addiction and active use of the drug were reflected in the discounts.
“It is problematic to reduce the culpability of this type of offending because someone was affected by the drug at the time.”
The judges heard that the impact of the discounts was exacerbated by a “very small” uplift of two months for previous convictions.
The Crown said Mellow had more than 90 previous convictions, many of them involving violence and weapons.
Thompson said that, although the prosecutor on the day acquiesced to an uplift of that level, the position was taken on the grounds of a higher starting point and a lower discount for mitigating factors.
The events of April 24, 2024, occurred while Mellow was subject to bail conditions for separate charges laid two months earlier. He had been freed from prison in late November 2023.
Thompson said the offending represented a step up in severity, and the discount needed to be tempered against Mellow’s risk of reoffending, especially in the context of sentencing principles such as the need to protect the community.
“For offending that is so serious and has affected a number of victims in quite profound ways, for the sentence to be cut by more than half, in circumstances that aren’t that extraordinary, I think that is something of an affront to the people who were affected by that crime and ordinary members of the public.”
The Crown argued that Mellow needed to serve more of his prison sentence than the usual one-third before becoming eligible for parole.
“It is difficult to think of a clearer case for a minimum term of imprisonment.”
It was submitted that Mellow posed a danger to public safety, based on both the crimes before the court and his history.
“It is not sufficient to say the Parole Board will make an assessment.
“That will happen in any event. The question is when that will happen.”
Mellow’s lawyer, John Howell, said the sentencing judge got it right.
An expert’s opinion was that Mellow had severe methamphetamine use disorder, ADHD, an inability to access medication for the condition, and an upbringing that saw him abandoned by those around him. He was then abused while in care.
“That’s going to have a significant effect on someone, how they behave, how they act in stressful situations, and even how they react when they are on drugs,” Howell said.
He also reinforced that Mellow had self-reported turning his back on the gang he once belonged to, members of which he likely saw as his family and friends.
“That is a significant step because somebody like him, with his background, has probably seen the gang as his support, when he has not had that in his life.
“But he has recognised being a member of and being amongst the gang is unhelpful for him. That points to somebody who has the capacity for rehabilitation.”
The appeal judges reserved their decision.
