Taranaki burglar has sentence quashed after judge failed to properly consider his mental health

Kingi Maaka-Wanahi was jailed for two years and two months for a number of burglaries.

A young intellectually impaired man who went on a burglary spree, while on an ankle bracelet, was jailed for the protection of the community.

Kingi Maaka-Wanahi stole a car, electric scooters and tools from garages before threatening a person with a tomahawk and assaulting a police officer.

But his sentence has now been slashed by almost half after a High Court judge found the sentencing judge did not properly consider Maaka-Wanahi’s mental health when sentencing him.

The 22-year-old was jailed last month for two years and two months when he appeared before Judge Tony Greig in Hāwera District Court.

That sentence has now been reduced to 15 months following his appeal, made on the grounds that Judge Greig did not appropriately account for his fetal alcohol spectrum disorder (FASD) and attention deficit hyperactivity disorder (ADHD) in the sentence’s starting point, making the end sentence manifestly excessive.

Maaka-Wanahi had pleaded guilty to six charges which stemmed from three episodes of offending in July, while he was subject to a sentence of intensive supervision and electronic monitoring.

On July 8, he broke into a garage and stole a car and tools, and then went on to force his way into another property on four occasions. From there, he took three electric scooters and tools.

Then on July 10, he was seen by the owner of the vehicle he had stolen who, with three others, confronted him.

Maaka-Wanahi became enraged and swung a tomahawk he had with him in an intimidating manner, then used it to smash a window of the vehicle in which the victim had arrived.

About 10 minutes later, he and a woman were spotted in the stolen vehicle by police.

The woman was driving and was chased by police throughout Hāwera for around 30 minutes while Maaka-Wanahi was throwing items out of the car at the pursuing police vehicle.

Eventually, the woman lost control of the car and it stopped. While being arrested, Maaka-Wanahi swung his elbow back into the face of one of the officers.

In court, Judge Greig considered a presentence report written by a probation officer which highlighted Maaka-Wanahi’s impulsivity and inability to think beyond “in the moment”.

The report writer noted his IQ is “just above the cut-off for an intellectual disability”, and therefore he was not eligible for further support in the community.

Maaka-Wanahi successfully appealed his sentence in the High Court. Photo / NZME

But most of his needs were outside of the scope of the Department of Corrections, the report said, which added that Maaka-Wanahi is a cannabis user and required treatment that was not readily accessible.

A clinical neuropsychologist had determined Maaka-Wanahi was fit to stand trial, with the support of a communications assistant, but recommended that his FASD be accepted as a mitigating factor if he was convicted.

“He contends with a form of brain damage not of his own making that makes him impulsive, reduces his capacity to moderate his actions and leads him into making poor decisions,” the doctor’s report stated.

Maaka-Wanahi, who has no whānau support, struggles to abide by court-imposed conditions, particularly while without medications, homeless, and under gang influences, she said.

Although his IQ was above the cut-off for an intellectual disability, the doctor said he functioned in life as if he had such a disability, and that FASD is equivalent in severity to an intellectual disability.

He should be spoken to at approximately the level of a 10-year-old, she said.

In sentencing Maaka-Wanahi, Judge Greig noted the purposes of sentencing as to denounce and deter.

While acknowledging that due to his FASD, deterrence is limited, the judge concluded that “above all, I have to protect the community”.

But Judge Greig said he also needed to protect Maaka-Wanahi and stated a sentence that simply released him in “no better shape or in no better place than you were in July” put him at greater risk of serious re-offending.

“And you will simply suffer further, along with your victims.”

Speaking to the discounts that are given for youth and mental health, the judge said they count for nothing if there is not some positive benefit to them.

“If it simply means that someone whose mental health makes it inevitable that they will re-offend, then all these discounts do is create further victims and at a quicker pace.

“Discounts would mean something if the facilities and programmes existed to help people such as yourself, but they do not and there comes a time when the other purpose [for which] the court exists, to protect the community, overwhelms the desirability of rehabilitating criminally inclined and very damaged young men.”

Justice Helen McQueen heard Maaka-Wanahi’s appeal, which was opposed by police, this month in the High Court.

In her judgment, released last week, she found Judge Greig gave insufficient consideration to Maaka-Wanahi’s mental health in assessing his culpability at the first stage of the sentencing process, and also that the starting points imposed for some of the charges were out of the available range.

She further ruled that in Maaka-Wanahi’s case, an uplift applied for his previous offending was disproportionate.

Justice McQueen said Maaka-Wanahi’s mental health appeared to be considered an aggravating factor, given the need to protect the community, at sentencing.

“The judge referred to ‘future victims’ and noted that discounts for mental health ‘create further victims and at a quicker pace’, in respect of persons whose ‘mental health makes it inevitable that they will re-offend’,” she said, referring to Judge Greig’s comments.

She did not consider this was the correct way to approach discounts for mental health when accounting for the purposes of sentencing.

Rehabilitation is as present in the Sentencing Act as is the protection of the community, she said.

“To my mind, the judge’s justification for imprisoning Mr Maaka-Wanahi as prioritising protection of the community over rehabilitation is misplaced given that Mr Maaka-Wanahi’s needs remain, whether he is in prison or in the community.

“It appears to me that the judge’s views resulted in him not taking a correct approach to assessing Mr Maaka-Wanahi’s situation.”

In finding the end sentence was manifestly excessive, Justice McQueen allowed his appeal.

She quashed his sentence and substituted it with one of 15 months’ imprisonment and granted him leave to apply for home detention.

Tara Shaskey joined NZME in 2022 as a news director and Open Justice reporter. She has been a reporter since 2014 and previously worked at Stuff where she covered crime and justice, arts and entertainment, and Māori issues.