Barnes-Manuel v The King
[2025] NZHC 1603
•18 June 2025
IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE
CRI-2025-488-37
[2025] NZHC 1603
BETWEEN SAVAY BARNES-MANUEL
Appellant
AND
THE KING
Respondent
Hearing: 9 June 2025 Appearances:
G Duff as agent for S McColgan for the Appellant P Hamber for the Crown
Judgment:
18 June 2025
JUDGMENT OF ROBINSON J
[Sentence appeal]
This judgment was delivered by me on 18 June 2025 at 11:00 am
Registrar/ Deputy Registrar
Solicitors/Counsel:
S McColgan, Auckland | G Duff, Auckland MWIS, Whangārei
BARNES-MANUEL v R [2025] NZHC 1603 [18 June 2025]
Introduction
[1] Mr Savay Barnes-Manuel pleaded guilty to one charge of wounding with intent to cause grievous bodily harm.1 On 4 February 2025 Judge G Tomlinson sentenced Mr Barnes-Manuel to four years and nine months’ imprisonment.2 Mr Barnes-Manuel appeals. He says that the starting point was excessive.
The facts
[2] Mr Barnes-Manuel was charged alongside a co-defendant, Mr Lawrence Wiki-Newman. Mr Barnes-Manuel was 22 at the time of the offending, while Mr Wiki-Newman was 19. Mr Barnes-Manuel has no criminal history.
[3] A member of Mr Wiki-Newman’s family lent a motor vehicle to the victim. It had not been returned. Mr Barnes-Manuel and Mr Wiki-Newman went to the victim’s address to confront him. When they confronted him, the victim fled on foot. Messrs Barnes-Manuel and Wiki-Newman chased him in their car. Mr Barnes-Manuel was the driver.
[4] When the victim fled up a walking track the pair got out of the car and chased him. Mr Wiki-Newman was armed with a claw hammer and a glass bottle. Mr Barnes-Manuel was armed with a steel chain. Mr Wiki-Newman reached the victim first. He threw the bottle and hit the victim.
[5] The Police Summary of Facts, which Mr Barnes-Manuel accepted for the purposes of sentencing, records that when Mr Barnes-Manuel approached the victim the chain was still visible in his left hand. However, before striking the victim Mr Barnes-Manuel appears to have thrown the chain away. It is not visible in his hand during the assault.
[6] Mr Barnes-Manuel began punching the victim to the face. Both defendants punched the victim as he fell to his knees. They continued to punch him until he fell to the ground.
1 Crimes Act 1961, s 188(1). Maximum penalty of 14 years’ imprisonment.
2 R v Barnes-Manuel [2025] NZDC 1939.
[7]Once the victim fell to the ground, Mr Barnes-Manuel kicked him.
[8] While the victim was on the ground, Mr Wiki-Newman repeatedly kicked, punched, and stomped on the victim’s head, body and legs. Mr Wiki-Newman struck the victim multiple times with the hammer, including to hit his back, head and arm, until the victim was unconscious.
[9] The assault continued until Mr Barnes-Manuel pushed Mr Wiki-Newman away. Mr Wiki-Newman pushed past and kicked and stomped the victim again. Mr Barnes-Manuel then kicked the victim in the head one further time.
[10] Mr Barnes-Manuel dragged the unconscious victim to the path and placed him on his side. As he did so, Mr Wiki-Newman stomped and punched the victim. This continued until Mr Barnes-Manuel stood over the victim to prevent Mr Wiki-Newman striking him further, saying “stop you are going to kill him”.
[11] Mr Wiki-Newman removed the victim’s shorts. Once Mr Barnes-Manuel took a step back, Mr Wiki-Newman kicked the victim in the head with full force.
[12] After the assault Mr Barnes-Manuel is seen retrieving something from the ground with his right hand. CCTV footage showed him returning to his car holding the chain in his right hand.
[13] The victim was rendered unconscious at the scene. He sustained a depressed skull fracture, brain bleed, laceration to the head and a broken right arm.
District Court decision
[14] Judge Tomlinson set a starting point of ten years’ imprisonment for Mr Barnes-Manuel. His analysis in setting this was as follows:
[14] Band 3 of Taueki says that where three or more of those factors I have just listed – and I have listed seven of them – where three or more exist that puts it into band 3 with that nine to 14 year start point. […]
[15] Your lawyers in written submissions argue for a seven year start point. They do so on the basis of some cases such as Clover v R, R v Buttar and Keil
v R [sic].3 They use those cases but, as I pointed out to Mr Seaton today, I am not prepared to be led down a pathway of comparing cases when a guideline decision exists. Guideline decisions exist to prevent sentencings drifting, in particular, lines or avenues on arguably dissimilar or similar cases.
[16]I am satisfied that in a Taueki based decision I must return to Taueki
and I do. […]
[17] There are, as I have said, at least five culpability factors from paragraph [31] of Taueki present to a high degree. They are:
(a)extreme violence; premeditation; serious injury; using weapons; attacking the head; and victim vulnerability, particularly after he is rendered unconscious and the assaults continue.
(b)I find multiple attackers present to a moderate degree, this is two on one. Cowardly, yes, but this is not multiple attackers to a high degree, which would be three, four, five on one.
[18] This is clearly band 3 of Taueki, not band 2 and the exemplar at 41A of Taueki of concerted and serious street attack is spot on. I cannot take a start point at the bottom of band 3, but nor does this come to the top.
[19] I take a start point in the lower part of band 3 of Taueki of 10 years’ imprisonment.
[15]From this starting point, Judge Tomlinson applied the following reductions:4
(a)20 per cent for Mr Barnes-Manuel’s guilty plea;
(b)five per cent for factors outlined in the s 27 report, detailing Mr Barnes-Manuel’s cultural background;
(c)15 percent for youth and good character; and
(d)10 per cent for remorse and rehabilitation.
[16] The Judge also recognised that Mr Barnes-Manuel had served 10 months on restrictive bail and had taken opportunities for rehabilitation. This led to a further reduction of three months (30 per cent of the 10 months on bail) from the overall
3 Clover v R [2024] NZHC 919; R v Buttar, Gurnam & Ors [2008] NZCA 28; Keil v R [2017] NZCA 563.
4 Barnes-Manuel v R, above n 2, at [21]-[31].
sentence. This left a final sentence of four years, nine months’ imprisonment, which the Judge considered was fair and proportionate.5
Legal principles
Approach to appeal
[17] This Court must allow the appeal if it is satisfied that there has been an error in the sentence imposed and that a different sentence should be imposed.6 Otherwise, the appeal must be dismissed.7 When determining whether there has been an error, and assessing the significance of any error, it is useful to consider whether the sentence is manifestly excessive (or inadequate).8 Whether a sentence is manifestly excessive is to be assessed in terms of the final sentence given, rather than its component parts or the process by which it was reached.9
Grievous bodily harm
[18] The Court of Appeal’s judgment in Taueki is a guideline judgment for sentencing people convicted of wounding with intent to cause grievous bodily harm (GBH). 10 It categorises GBH offending into three bands,11 and sets out factors that contribute to the seriousness of the conduct and the criminality involved.12 It is the combination of these variables features which require assessment in sentencing in each case.13 Sentencing Judges must identify these factors and evaluate the seriousness of each.14
[19] Band 2 is appropriate for GBH offending which features two or three of the aggravating factors.15 Band 3 normally encompasses serious offending which has one or more of the aggravating factors, where the combination of aggravating factors is
5 At [32]-[34].
6 Criminal Procedure Act 2011, s 250(2).
7 Section 250(3).
8 Tutakangahau v R [2014] 279.
9 At [15].
10 R v Taueki [2005] 3 NZLR 372 (CA).
11 At [34] – [41].
12 At [31] – [32]: fourteen aggravating factors and 2 mitigating factors.
13 At [28].
14 At [30].
15 At [38].
particularly grave.16 The appropriate starting point for band 2 offending is between five to 10 years of imprisonment; for band 3 it is between nine and 14 years. 17 The range for band 2 offending overlaps with higher and lower ends of bands 1 and 3 respectively.
Appeal
[20] Mr Barnes-Manuel’s appeal is narrow. He says the starting point of 10 years’ imprisonment was too high. He accepts all other aspects of the sentencing decision.
[21] Counsel for Mr Barnes-Manuel submits the Judge applied the principles in Taueki too inflexibly when he declined to consider the comparator cases of R v Buttar, Keil v R and Clover v R.18 Counsel submits that the Court of Appeal emphasised the importance of flexibility:19
As the Court noted in Mako, these illustrations are intended for guidance only, and to minimise the need to refer to the large number of earlier sentencing decisions. But the suggestive bands and starting points should be used flexibly, and where any particular feature or combination of features has some unusual character, the starting point should be adjusted to reflect that. As indicated at [30] above, sentencing Judges will also need to exercise judgement in assessing the gravity of each aggravating feature. The features of the offending in each case must be carefully assessed in order to establish a starting point which properly reflects the culpability inherent in the offending. Where there are multiple offenders with different levels of involvement in the offending, the actual culpability of each offender will need to be assessed. However, there is no requirement to draw fine distinctions: Solicitor-General v Lam (1997) 15 CRNZ 18 at 25.
[22]Counsel also refers to the Court of Appeal’s recent judgment in Shramka v R:20
Sentencing is an evaluative exercise and guideline judgments must not be applied in a mechanistic way. It is important to judge relativity by reference to examples given in guideline judgments, whether they be theoretical or actual (as in Zhang v R). The absence of an aggravating factor may also be more significant than its presence. When present, it is the intensity of the factor, in particular of the nature of the violence deployed and the harm caused to the victim, that requires careful assessment.
16 At [40].
17 At [34].
18 Clover v R, above n 3, R v Buttar, above n 3, Keil v R, above n 3.
19 R v Taueki, above n 10, at [42].
20 Shramka v R [2022] NZCA 299, [2022] 3 NZLR 348 at [44] (footnotes omitted).
[23] Counsel submits that by declining to consider comparator cases the Judge confined himself to the aggravating factors in band 3 and limited his assessment of the appropriate starting point within that band. Counsel submits that the Judge erred in concluding that Mr Barnes-Manuel’s offending was a serious concerted street attack as described at paragraph [41](a) of Taueki, rather than just a concerted street attack as described at paragraph [39](a).
[24] Secondly, in terms of the matters contributing to the seriousness of the offending, counsel submits the Judge was wrong to find there were at least five culpability factors from paragraph [31] of Taueki present to a high degree: “extreme violence; premeditation; serious injury; using weapons; attacking the head; and victim vulnerability, particularly after he was rendered unconscious and the assault continued”.21
[25] Mr Barnes-Manuel accepts these aggravating factors were present, but he does not accept that premeditation and the use of a weapon were present to a high degree. Counsel for Mr Barnes-Manuel submits that he was under the impression that he and Mr Wiki-Newman were going to engage in a lawful activity (retrieving a vehicle), suggesting a very low level of premeditation. Their pursuit of the victim only occurred as an unplanned reaction when the victim fled instead of returning the vehicle as expected. Counsel submits there was no evidence to suggest that Mr Barnes-Manuel predicted that outcome, or knew that Mr Wiki-Newman was in possession of a hammer. Counsel says this demonstrates that Mr Barnes-Manuel’s involvement in the violence was impulsive rather than premeditated, warranting an assessment as less culpable under the Taueki guidelines. Counsel suggests Mr Barnes-Manuel’s involvement was “very low” similar to that of all but one of the appellants in R v Buttar.22
[26] Similarly, counsel submits that Mr Barnes-Manuel’s use of a weapon was not present to a high degree, and in any event was significantly less than that of Mr Wiki-Newman. Counsel submits that Mr Barnes-Manuel did not bring any weapons to the scene, but opportunistically took the chain from his aunt’s vehicle.
21 R v Barnes-Manuel, above n 2, at [17].
22 R v Buttar, above n 3, at [14].
Counsel emphasises that an agreement was made for the summary of facts to be amended to make clear that Mr Barnes-Manuel did not use the chain as a weapon. Counsel says this falls within the definition of a concerted street attack under Taueki band 2, where weapons are “found at the scene” rather than “brought to the scene for the purpose”, as required for a serious concerted street attack under band 3. Again, counsel refers to R v Buttar and R v Keil to distinguish Mr Barnes-Manuel’s culpability from that of his co-defendant.
[27] Finally, counsel submits that although the Judge acknowledged that Mr Barnes-Manuel took steps to stop the assault, he erred in placing no weight on this when assessing Mr Barnes-Manuel’s culpability.
[28]In this regard the Judge had commented as follows:23
The assault continued until you pushed your mate Mr Wiki-Newman away. He then pushes past you and stomps on him again and then you kicked him in the head one further time. This is while the victim is unconscious. You then dragged the unconscious victim to the path, you placed him in the recovery position, well that is what I infer from placing him on his side, and while doing this, your co-defendant, Mr Wiki-Newman stomped and punched the victim. You then stop him saying: “Stop, you’re gonna kill him,” and that was exactly right. It was the right thing to do after all the wrong you had done. In fact, you then stand over the victim preventing Mr Wiki-Newman from striking him further. Mr Wiki-Newman then kicks him one more time. You guys return to the car and leave.
[29] Overall, counsel submits that the sentence was manifestly excessive because the Judge erred by refusing to engage with the cases cited, improperly weighed aggravating and mitigating factors, and took an inflexible approach. Counsel submits that a starting point of seven years would appropriately reflect the seriousness of Mr Barnes-Manuel’s offending and his different culpability. Applying the reductions (50 per cent plus three months) to a seven year starting would result in an end sentence of three years and three months’ imprisonment.
Discussion
[30] A ten year starting point is at the lower end of band 3 and the higher end of band 2. I do not consider it was excessive.
23 R v Barnes-Manuel, above n 2, at [7].
[31] As Mr Barnes-Manuel accepts, seven of the 14 aggravating factors identified at paragraph [31] of Taueki are present. The Judge noted that some of these factors are present to a high degree, and others to a moderate degree.24 He says that at least five are present to a high degree.25 The Judge acknowledges that Mr Barnes-Manuel did not use the steel chain he had in his hand.26 Also, that the aggravating factor of multiple attackers was not present to a high degree.27
[32] I do not accept counsel’s submission that the offending was more impulsive than premeditated. When the victim fled, Messrs Barnes-Manuel and Wiki-Newman chased him in the car, and then on foot. Mr Barnes-Manuel drove the car and took the chain with him from the car when they then chased the victim on foot. As the Judge noted, from the time the victim ran away “[a]ll the way through there [were] opportunities for you to go: “Nah””.28
[33] In any event, with seven aggravating factors present, four of which Mr Barnes-Manuel accepts were present to a high degree, the offending falls within band 3.
[34] In terms of mitigation, counsel emphasises that Mr Barnes-Manuel placed the victim in a recovery position and did eventually take steps to protect him from further assault by Mr Wiki-Newman. As the Judge noted, this was the right thing to do after all the wrong he had done.29 But by then the offending was complete. The assault by Messrs Barnes-Manual and Wiki-Newman had rendered the victim unconscious. There is merit in Mr Hamber for the Crown’s submission that Mr Barnes-Manuel’s actions afterwards might be why the defendants did not face an even more serious charge, but those actions do not mitigate Mr Barnes-Manuel’s culpability for wounding with intent to cause GBH.
[35] In terms of their relative culpability, the Judge did not compare Mr Barnes- Manuel’s offending with Mr Wiki-Newman’s. Counsel advise that the Judge also
24 At [14].
25 At [17].
26 At [5].
27 At [17](b).
28 At [4].
29 At [7].
applied a 10 year starting point when sentencing Mr Wiki-Newman. Counsel for Mr Barnes-Manuel says that was an error, noting that Mr Wiki-Newman used a weapon but Mr Barnes-Manuel did not. However, they acted in concert throughout, with Mr Barnes-Manuel also kicking the victim in the head after he was unconscious.
[36] In terms of comparator cases, as Mr Hamber points out, in Taueki the Court of Appeal notes that where a guideline decision is available, references by counsel to other decisions will generally not be of assistance. That guideline judgment is to be the primary point of reference for submissions and sentencing remarks when dealing with sentencing for a GBH offence.30
[37] In any event, I note that although the starting point in Clover v R of six years and three months’ imprisonment was three years and nine months lower than Mr Barnes-Manuel’s 10 year starting point, Mr Clover’s end sentence of five years imprisonment (reduced on appeal) was three months higher than Mr Barnes- Manuel’s.31 In Keil v R,32 the starting point of six years imprisonment (four years lower than Mr Barnes-Manuel) led to an end sentence of four years and three months’ imprisonment (six months lower than Mr Barnes-Manuel).
[38] In R v Buttar Mr Buttar’s starting point of seven years imprisonment led to an end sentence of three years and six months’ imprisonment. The Court of Appeal agreed with the sentencing judge that, although there was “very considerable violence”, it was neither extreme nor prolonged.33 Stress on this particular day had caused Mr Buttar to “snap” with the judge concluding there was a moderate level of premeditation.34 Mr Buttar had also lost his taxi driver license which he was unlikely to recover.35 Each of the four appellants had paid reparation of $10,000.36
[39] These comparisons demonstrate why sentence appeals are to be assessed in terms of the end sentence, rather than its component parts or the process by which it
30 R v Taueki, above n 10, at [11], citing Practice Note – Sentencing 2003 [2003] 2 NZLR 575 at 2.2(h) and 3.3(c).
31 Clover v R, above n 3.
32 Keil v R, above n 3.
33 R v Buttar, above n 3, at [12].
34 At [13].
35 At [17].
36 At [19].
was reached. Mr Barnes-Manuel challenges the starting point while wanting to retain the reductions of 50 per cent plus three months.
[40] In the present case, Mr Barnes-Manuel’s end sentence of four years and nine months was not excessive. The Judge was satisfied that the community did not need protecting from Mr Barnes-Manuel whose offending was out of character and unlikely to be repeated. However, the principles of deterrence and denunciation required a sentence that reflects society’s abhorrence of street thuggery of such a serious nature.37 Here, the victim was chased, rendered unconscious, left with a brain bleed, a fractured skull and a broken arm in a two-on-one assault with weapons and kicks to the head.38 I agree with the Judge that in terms of proportionality and totality, an end sentence of four years and nine months’ is a proportionate response to serious offending.
Result
[41]The appeal is dismissed.
Robinson J
37 R v Barnes-Manuel, above n 2, at [11].
38 At [33].
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