BETWEEN LUKE RAYMOND MANHIRE Appellant AND NEW ZEALAND POLICE Respondent

[2023] NZHC 2728

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI-2023-419-000057

[2023] NZHC 2728

BETWEEN

LUKE RAYMOND MANHIRE

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	27 September 2023
Appearances:	R G Scott and M G Dixon for Appellant K R L Guthrie for Respondent
Judgment:	29 September 2023

JUDGMENT OF VAN BOHEMEN J

[appeal against sentence]

This judgment was delivered by me on 29 September 2023 at 11 am Registrar/Deputy Registrar

……………………………..

Solicitors:

Public Defence Service, Hamilton Crown Solicitor, Hamilton

MANHIRE v NEW ZEALAND POLICE [2023] NZHC 2728 [29 September 2023]

[1]                 Luke Manhire was sentenced to one year and six months’ imprisonment by Judge A A Couch after pleading guilty to burglary, escaping custody, breaching bail, breaching community work and assaulting police.1

[2]                 Mr Manhire appeals his sentence. He says the Judge adopted a manifestly excessive starting point for the lead charge of burglary, erred in imposing an uplift for causing unreasonable delay to the proceedings and erred by failing to consider totality properly.

The offending

[3]The Judge described Mr Manhire’s offending as follows:

[2]        The starting point is that on 16 September 2021 you were sentenced to 80 hours’ community work. You failed to report within 72 hours as required and you totally ignored that sentence. Nothing has been done.  That has led to a charge of breach of community work.

[3]        Late in the evening of 23 January last year you were on a street in Hamilton outside a shop. For some considerable time, you used a screwdriver to try and pry open a closed door. Unable to do that, you then kicked in a window and entered the shop. You took about $200 worth of goods and left. That has led to a charge of burglary.

[4]        In the early hours of the morning of 19 January this year, you were on a street in Hamilton in breach of a curfew condition of your bail. You were arrested by the police. After being arrested, you ran away. When police caught up with you, you tried to punch the police officer but missed. You then remained aggressive until confined in a police car. That led to charges of escaping custody and assaulting police.

[5]        While these matters were before the Court, you were on bail. You failed to turn up as required on 23 September last year. That has led to a charge of failing to answer District Court bail.

Sentencing decision

[4]                 The Judge took burglary as the lead charge and adopted a starting point of   12 months’ imprisonment. The Judge considered that the gravity of the offending was substantial because of the considerable damage caused and the property taken, and the offending was premeditated in that Mr Manhire had brought a screwdriver to the

1      Police v Manhire [2023] NZDC 9544.

scene.2 However, the Judge also acknowledged that the burglary took place at a commercial premises at night so there was little chance of confrontation.3

[5]                 The Judge then considered separate starting points for the charges of escaping custody, assaulting police and breaching bail.   The Judge observed that although   Mr Manhire did not get far in his effort to escape custody, the offending was aggravated because of the assault on police. The breaching bail charge was also substantial, given that Mr Manhire remained at large for four months until he was arrested. The Judge adopted starting points of four months’ imprisonment for the escaping custody and assaulting police charges and three months’ imprisonment for the failure to answer bail.4

[6]                 Because the offences were unrelated “in time, in their nature or causation”, the Judge considered that the starting points were properly cumulative with regard to totality. Accordingly, the Judge made no reduction for totality and adopted a final starting point of 19 months’ imprisonment.5

[7]                 With regard to aggravating features, the Judge applied uplifts of 10 per cent, because Mr Manhire’s offending occurred while on bail, and five per cent because of Mr Manhire’s criminal history, which included convictions for burglary.6 The Judge applied a further five per cent uplift because of Mr Manhire’s failure to appear on five different occasions (10 December 2021, 28 January 2022, 13 April 2022, 14 April 2022 and 7 September 2022) and the delay this had caused the proceedings.7

[8]                 The Judge applied a 20 per cent discount for Mr Manhire’s guilty pleas because most of the pleas were prompt except that on the burglary charge, which had been considerably delayed. The Judge  adopted  a  further  five  per  cent  reduction  for Mr Manhire’s drug addiction, which the Judge acknowledged may have motivated commission of the burglary.8 However, the Judge declined to give a discount for

2      Although not stated by the Judge, the Police summary of facts said that Mr Manhire caused approximately $900 in damage.

3 At [6].

4      At [7]–[8].

5 At [9].

6 At [10].

7 At [11].

8      At [12]–[13].

remorse and did not accept that a letter written by Mr Manhire reflected genuine remorse.9 The Judge accordingly arrived at an end sentence of one year and six months imprisonment (18 months).10

[9]                 Given Mr Manhire’s history and repeated failures to comply with bail, the Judge considered that any sentence less than imprisonment would not achieve the purposes of the Sentencing Act. The Judge concluded by sentencing Mr Manhire to concurrent terms of one year and six months’ imprisonment for burglary, four months’ imprisonment for escaping custody, three months’ imprisonment for breaching bail, three months’ imprisonment for breaching community work and one month’s imprisonment for assaulting police. He also made an order cancelling Mr Manhire’s community work.11

Approach on appeal

[10]              Under s 250(2) of the Criminal Procedure Act 2011, the Court must allow an appeal against sentence if satisfied that, for any reason, there was an error in the sentence imposed on conviction or that a different sentence should be imposed. Otherwise, it must dismiss the appeal.12 The focus on appeal is with whether the overall sentence is manifestly excessive, rather than the method by which the sentence was reached.13 The Court on appeal will not intervene where the sentence is within range and can be properly justified by accepted sentencing principles.14

Submissions for Mr Manhire

[11]              Ms Scott, counsel for Mr Manhire, submits that the starting point for the lead charge of burglary should have been nine months’ imprisonment. She refers to Vale v Police and Milne v Police, which both involved a burglary of commercial premises at night and in which starting points of nine months and 10 months were imposed (in Vale) or accepted (in Milne).15 Ms Scott says that Mr Manhire’s offending was similar

9 At [14].

10 At [14].

11     At [15]–[18].

12     Criminal Procedure Act 2011, s 250(3).

13     Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].

14 At [36].

15     Vale v Police [2020] NZHC 3520 at [26] and Milne v Police [2022] NZHC 1227 at [6]–[9].

to that in Vale, which was a low-level burglary of a commercial premises with no occupants present. Ms Scott notes that Mr Manhire had gained entry only to the front display area of the shop which was separated from the rest of the store.

[12]              Ms Scott says it is accepted that failures by an offender that have caused delay to proceedings can be considered an aggravating factor. However, she submits that this was an inappropriate occasion for such an uplift. She says that two of the failures to attend were not Mr Manhire’s fault and, at sentencing, Mr Manhire’s counsel was unable to get instructions about whether he disputed being responsible for not appearing on those dates.

[13]              Ms Scott says that Mr Manhire would not have been aware of the 10 December 2021 date because it was an application for a warrant in lieu of summons to be considered. Ms Scott also says that a Public Defence Services lawyer appeared for Mr Manhire on 7 September 2022. In addition, Ms Scott says that Mr Manhire was incorrectly advised about this date and had been told only about 9 September 2022, which related to the burglary charge. Ms Scott submits that there was a paucity of information about whether Mr Manhire’s non-appearance was personally his fault and that the Judge was in breach of natural justice in failing to ascertain further information. Ms Scott also says there was an element of double counting in imposing an uplift for delay, given that the Judge had separately imposed a three months uplift for the breach of bail charge.

[14]              Finally, Ms Scott submits that the cumulative uplift of seven months for the charges of assaulting police, escaping custody and failing to appear, with no adjustment for totality, was excessive and failed to reflect the relative level of seriousness of Mr Manhire’s offending. She says that these charges, and the breach of community work, could not have justified an uplift of more than three months imprisonment, and that a failure to adjust resulted in a manifestly excessive sentence.

Submissions for Police

[15]              Ms Guthrie, counsel for the Police, submits that Vale and Milne can be distinguished; Mr Manhire’s offending was premeditated given he had a screwdriver with him, and given he waited for an opportunity to use it to access the store.

Ms Guthrie refers to Waenga v Police, where the appellant committed two burglaries in the early morning, first by using a pickaxe to smash open a window to gain access to a dairy where the appellant unsuccessfully attempted to open a cash register before leaving with a packet of cigarettes and a lighter, and secondly by using the same technique to enter a bank, where the appellant took a phone with which he alerted the police, so he could be returned to custody.16 Ms Guthrie submits that Mr Manhire’s offending is similar to the first of the two burglaries in Waenga, where a one year starting point was adopted on appeal.17

[16]              Ms Guthrie says that even if there was an administrative error on Mr Manhire’s counsel’s part in relation to his failure to appear on 7 September 2022, the delay was still caused as a result of Mr Manhire’s own actions. She says there was no double counting by the Judge because the five instances that Mr Manhire failed to appear were separate from his bail breach for which a warrant to arrest was issued on        23 September 2022.

[17]              With regard to totality, Ms Guthrie says that the Judge did not err in declining to reduce the final starting point. She says that the Judge did as was required and stood back and considered totality and reached a decision on the final starting point which was not wholly out of proportion to the gravity of Mr Manhire’s overall offending. In addition, Ms Guthrie says that, when the sentence as a whole is considered, including the reasonably generous discount that was given for Mr Manhire’s guilty pleas given the lateness of the plea on the main charge of burglary, it could not be said that the sentence was manifestly excessive.

Analysis

[18]              As noted at [10], the focus on appeal is whether the overall sentence is manifestly excessive, rather than the method by which the sentence was reached. When, as in this case, the appeal is based on alleged minor errors in the sentencing process that may have made a difference of a month or two in the end sentence, there is a risk of that focus being lost. I agree with Ms Guthrie that, taken as a whole, a

16     Waenga v Police [2019] NZHC 2922.

17 At [22].

sentence of 18 months’ imprisonment for Mr Manhire’s offending does not seem manifestly excessive. However, because the sentence is one of short duration, small differences in the sentencing steps can be proportionally significant.

Starting point

[19]              There is no tariff case for burglary because of the wide range of circumstances in which the offence can be committed.18 As the Court of Appeal explained in R v Nguyen, the sentencing Judge must,19

… consider the combination of factors surrounding the offending conduct. In burglary cases, these include the degree of planning and sophistication in the offending, the nature of the premises entered, the kind and value of property stolen, damage done, the impact and potential impact upon occupants or owners of property, and the extent of the offending where multiple burglaries are involved.

[20]              In the summary of facts to which Mr Manhire pleaded guilty, Mr Manhire is described as having approached the Vapo store which he stole from at 11:10 pm and checking for anyone in the area before using a screwdriver to pry away the sealant on the large front shop window. The summary of facts explains that Mr Manhire continued to pry at this window for over an hour before checking around the corner of the entry door alcove that he was in and kicking a large hole in the window twice, and then breaking in and stealing approximately $200 worth of Vape products, consisting of a “Vape Unit” and “Vape Juice”.

[21]              It is apparent that there was some planning and premeditation, as shown by Mr Manhire’s efforts to check that he was not being monitored, his use of a screwdriver and his persistence in trying to pry at the window for over an hour. It is also apparent that the damage caused was considerable – approximately $900 in value. It is also likely that there was a commercial element. As Ms Guthrie said at the hearing, theft of vape juice and vape products is usually for the purposes of on-sale rather than personal use.

18     Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189 at [78].

19     R v Nguyen CA110/01, 2 July 2001 at [17].

[22]              In these various respects Mr Manhire’s offending was significantly different from and more serious than that in Vale, which Duffy J held to be opportunistic and spontaneous, rather than calculated offending carried out for commercial gain.20 Accordingly, I do not accept that Vale is a useful comparator in terms of setting the starting point. To the contrary, Vale suggests a higher starting point was warranted for Mr Manhire’s offending.

[23]              I agree with Mr Guthrie that Mr Manhire’s burglary is more similar to the first of two burglaries of commercial premises for which the defendant was sentenced in Waenga. Mander J considered that burglary, where entry was achieved by smashing windows with a pickaxe, clearly tended towards the lower end of the spectrum of seriousness for burglary offending and adopted a one year starting point.21 I do not think the fact a pickaxe was used rather than a screwdriver makes any material difference, when neither was used as a weapon against another person and, in the end, Mr Manhire gained entry by kicking in a window. Nor do I consider the seriousness of the offending was diminished by Mr Manhire being unable to enter other parts of the premises.

[24]              For these reasons, I consider that the 12 months’ starting point was both open to the Judge and was appropriate to the gravity of the offending.

Totality

[25]Section 85 of the Sentencing Act relevantly provides:

(2)If cumulative sentences of imprisonment are imposed, whether individually or in combination with concurrent sentences, they must not result in a total period of imprisonment wholly out of proportion to the gravity of the overall offending.

(3)If, because of the need to ensure that the total term of cumulative sentences is not disproportionately long, the imposition of cumulative sentences would result in a series of short sentences that individually fail to reflect the seriousness of each offence, then longer concurrent sentences, or a combination of concurrent and cumulative sentences, must be preferred.

20     Vale v Police, above n 15, at [22].

21     Waenga v Police, above n 16, at [14] and [22].

[26]As the Court of Appeal explained in Rihari v R:22

[35] The total end sentence should not normally be determined by sequentially adjusting the appropriate end sentence for each individual offence in order to accommodate the totality principle (even though the sentence may be articulated in this way); rather, the analysis should be guided from the outset by an appreciation that the total period of imprisonment should be in proportion to the gravity of the overall offending… How a total sentence for multiple offending is constructed is a matter for individual judicial discretion and assessment.

[27]              Although the Judge said he was not making an adjustment for totality after calculating separate starting points for burglary, escaping custody and assault on Police and failure to answer bail, in fact he had already made an effective adjustment for totality by combining the starting points for escaping custody and assault on Police and by not making any uplift for Mr Manhire’s failure to comply with his sentence of community work – for which a sentence of up to three months’ imprisonment could have been imposed.23

[28]              In accordance with the guidance in Rihari, the question for the Judge was whether a starting point of 19 months was appropriate for the gravity of the offending represented in the five charges on which Mr Manhire was being sentenced: burglary, escaping custody, assault on Police, breach of bail and failure to report for community work. None of the offending was trivial. As the Judge said, escaping custody is a serious offence, even if Mr Manhire did not get very far. So is assaulting a Police officer. The breach of bail led to Mr Manhire not being apprehended for four months. The failure to comply with the community work sentence was substantial; Mr Manhire never showed up even to begin the sentence.

[29]              Given the nature of that offending which, as the Judge said, was unrelated in time, nature or causation, I am satisfied that the Judge did, as required by Rihari, consider whether the overall period of imprisonment calculated accorded with the gravity of the overall offending, and concluded that the overall sentence was appropriate. I am satisfied the Judge’s conclusion was open to him and was itself appropriate.

22     Rihari v R [2022] NZCA 437.

23     Sentencing Act 2002, s 71(1).

Uplift for delay

[30]              It is apparent that the Judge may have had incomplete and incorrect information as to the reasons for Mr Manhire’s various failures to appear. I do not accept that the Judge breached natural justice by not delaying the sentence to enable counsel to make further enquiries. Nonetheless, it appears that Mr Manhire’s contribution to the delay may not have been as extensive as the Judge had understood. For that reason, I am satisfied that the uplift for delay was made in error and was not appropriate, particularly given the approach taken on totality and the separate and significant uplift for Mr Manhire’s substantial criminal history.

[31]              While the uplift was only five percent and added just a month to the overall sentence, that is not insignificant in the context of an 18 month sentence.

Result

[32]Mr Manhire’s appeal is upheld in part:

(a)The appeal against the starting point is dismissed;

(b)The appeal against the refusal to make a separate discount for totality is dismissed;

(c)The appeal against the uplift for delay is allowed.

[33]On the charge of burglary:

(a)I quash the sentence of one year and six months’ imprisonment imposed in the District Court.

(b)In substitution, I impose a sentence of one year and five months’ imprisonment.

G J van Bohemen J