Manahi v Police
[2021] NZHC 2430
•16 September 2021
IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY
I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE
CRI-2021-441-17
[2021] NZHC 2430
BETWEEN TE HEI TE MATATU TYLA MANAHI
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 16 September 2021 (VMR) Counsel:
J Te Puke-Cowperthwaite for Appellant M J R Blaschke for Respondent
Judgment:
16 September 2021
JUDGMENT OF SIMON FRANCE J
[1] Ms Manahi appeals an overall sentence of 18 months’ imprisonment with standard and special release conditions for six months after the sentence expiry date.1 There are two issues:
(a)the length of the sentence; and
(b)whether it should instead have been a sentence of home detention (or leave to apply for that).
[2] Subsequent to sentencing, the Court has been provided with a s 27 report which provides some fuller context to matters touched on in the PAC report. The respondent supports the Court receiving the report. Further, while not accepting the challenge to the length of the sentence of imprisonment, the respondent agrees the s 27 report provides a basis on which home detention should be substituted. It is noted the
1 New Zealand Police v Manahi [2021] NZDC 12118.
MANAHI v NEW ZEALAND POLICE [2021] NZHC 2430 [16 September 2021]
sentencing Judge expressed puzzlement at what underlay the offending and why Ms Manahi was displaying such anger and defiance. The s 27 report provides some insight into that.
[3] The outcome of the appeal will be a sentence of home detention. The issue is the length which involves three matters:
(a)whether the District Court erred in the starting points for the various offences;
(b)whether greater mitigation was appropriate given Ms Manahi’s age and circumstances; and
(c)credit for time now served.
The offending
[4]Ms Manahi’s offending required two separate sentencing considerations:
(a)a collection of offences which were for first sentencing; and
(b)a collection of eight charges which had been sentenced 10 months earlier. The sentences of community detention and supervision had not been complied with and resentencing was sought.
[5] Taking first the new offending, the major offences are best described as arising from a serious driving incident. Ms Manahi was a disqualified driver, but nevertheless driving. Required to stop by police, Ms Manahi drove off. In a built-up area she drove through multiple give way signs and intersections, neither slowing nor giving way. Eventually she lost control, crossed the centre line and collided with a power box. Undeterred by a badly damaged vehicle she continued to drive for about 5 km until a road block was encountered. Ms Manahi drove over a footpath onto a property to avoid it. Eventually she abandoned the car and ran off. The incident was charged as failing to stop, driving in a dangerous manner and disqualified driving (a first charge of third or subsequent).
[6] Two months later Ms Manahi was at a supermarket. She was apparently trying to shoplift. When told to leave by a worker, Ms Manahi first threw something at the person, hitting them, and then began striking the victim in the face. Another worker intervened and Ms Manahi pushed him to the floor.
[7] Four times in the following month Ms Manahi filled her car with petrol and left without paying. These were charged as theft. Obviously they were further incidents of disqualified driving.
[8] Three months later Ms Manahi was again stopped while driving while disqualified. And then again another two months later.
[9] The Judge took a starting point of 12 months’ imprisonment for the incident of dangerous driving, which included the disqualified driving and failing to stop. For the two subsequent driving while disqualified offences, the second on bail, there were uplifts of three months and one month.
[10] The balance of the new charges, being theft x4, the supermarket assaults and a charge of failing to answer bail, a further four months were added meaning the total sentence starting point for the fresh offending was 20 months. Two months were then added for past offending.
[11] The matters for resentencing need not be detailed but involved possession of cannabis, methamphetamine, ammunition and a restricted weapon; breach of community work; and breach of lockdown. An uplift of four months was added for these. This meant a final starting point of 26 months.
[12] There were then deductions of five months (plea) and three months (youth) leaving a final sentence of 18 months.
Challenge on appeal
[13] The appellant submits the starting point for the driving incident was too high. The submissions focus on typical court reactions to a first occasion of disqualified driving, third and subsequent. Although to some extent this reflects the language of
the Judge’s sentencing comments, it is plain 12 months was a figure that captured the whole of the incident, including the District Court’s clear concern over the danger inherent in Ms Manahi’s driving.
[14] The appellant’s submission, in contending for a starting point of four to six months, underweights the significance of the driving which was reckless and carried very real risks of serious injury to her passengers (an adult and two children) and to members of the public. To have carried on after the initial crash to drive as Ms Manahi continued to do was a significant aggravating feature. I have not been persuaded the Court erred in its 12-month figure.
[15] The appellant next challenges the four months’ uplift for the further driving offences, submitting that it involves double counting of the aggravating features inherent in the offence. I disagree. The overall offending makes plain a complete disregard for court-imposed obligations and limitations. There are numerous occasions of further driving while disqualified, some of which must have been while on bail and waiting for sentence on earlier offending of the same type.
[16] The four months’ uplift for assault, theft and failing to answer bail is challenged on the basis that an offender facing only those would not receive imprisonment. Whether that may be so, since Ms Manahi was otherwise receiving a term of imprisonment, an uplift was the only option. The offending was relatively minor and I accept there is room to debate whether four months is too stern, but some uplift was needed, and the available range is small. In assessing the correctness of the overall sentence I factor in that this uplift was likely too much:
(a)the assaults involved no lasting injuries, and arose from the one incident; and
(b)the thefts were Ms Manahi’s first convictions for such offending.
[17] I agree that the uplift of two months for past offending was not required. Ms Manahi was receiving a first sentence of imprisonment. Some of the charges in themselves already factor in a penalty for past offending, and offending on bail had
been noted as an aggravating factor in the 12 months’ starting point. Particularly given her age and that this was a first sentence of imprisonment, I consider this uplift should not have been added.
[18]I can see no issue with the four months’ resentence.
[19] Overall I consider the starting point for the sentence to be excessive by the previous offending uplift and with less conviction the size of the four months’ uplift for other new offending. I consider the correct starting point to have been 23 months’ imprisonment.
[20] Concerning discounts the Judge allocated five months for the guilty plea. This is a 20 per cent figure. No reason was given why the full 25 per cent was not allocated, and it may indeed be simply a matter of calculation. However, I agree this figure should have been a month more. Obviously that would not normally be a matter in which to allow an appeal but it ought to be factored in now readjustment is already occurring.
[21]On the material known to the Judge three months for youth was appropriate.
New evidence
[22] The s 27 report provides more information about Ms Manahi. I intend only to summarise it. Ms Manahi’s parents separated and she was with her mother. It seems they moved around a lot and Ms Manahi refers to things that occurred to her (not from her immediate family). Her formal education stopped at age nine. Mr Blaschke for the respondent accepts the report establishes a clear nexus between matters in her past and the present offending and Ms Manahi’s apparent anger at many things. I agree.
[23] I consider an appropriate discount on the first occasion this material has come before a Court and given Ms Manahi’s age and the possibility of a first sentence of imprisonment was 20 per cent. Rounded up, I consider the overall deductions should have been 12 months.
[24] The final adjusted sentence of imprisonment would therefore be 11 months’ imprisonment.
Home detention
[25] A report was ordered and the proffered address assessed as suitable. It seems an agency then raised a flag which made the address less satisfactory. I am told this was resolved by the hearing2 but the District Court either did not accept that, or for some reason declined a requested adjournment for the matter to be clarified.
[26] It may be the Judge considered home detention not an option, and the refusal of an adjournment suggests that, but the sentencing remarks do not address home detention at all. Given the offender is a 21-year-old Māori woman with the care of her two children and being sentenced for the first time to prison, it needs to be considered and I do so now.
[27] I have some concerns over the address which is to the same address where Ms Manahi has been living. For whatever reason Ms Manahi to date shows no willingness to comply with any directions or restrictions. Those with whom she is living either do not see themselves as having a role, or are unable to exercise any control.
[28] The reality is that compliance with this sentence will need to come from Ms Manahi. There is not a lot of cause for optimism but perhaps awareness that the alternative is imprisonment will help bring about a change. As the matters have worked out, the term of home detention will be short. The short period will be an opportunity for her to show she can comply. The risks to the public should there be a breach are not such as to tell against the sentence.
Length of sentence
[29] Eleven months’ imprisonment would normally produce a sentence of five months and two weeks’ home detention. Credit is to be given for time served in prison
2 I was advised at the hearing that it concerned one of the occupants. Arrangements had been made for him to move out.
which will be three months. The calculations are not to be exact and there is merit in a term that will enable Ms Manahi to show she can comply both with the sentence and with directions of the probation officer. There is assistance Ms Manahi needs and special conditions will extend beyond the sentence to ensure that occurs.
Conclusion
[30]The appeal is allowed and all sentences of imprisonment are quashed.
[31] A sentence of home detention of three months is imposed. The standard conditions apply for the sentence and for a period of six months thereafter.
[32]Two special conditions apply for the same period:
(a)Undertake and complete any treatment/counselling or programme as directed by a Probation Officer.
(b)To attend an assessment for a departmental programme as directed by a Probation Officer. To attend and complete any counselling, treatment or programme as recommended by the assessment as directed by and to the satisfaction of a Probation Officer.
[33] The home detention address is that approved as part of the sentencing exercise. As soon as arrangements can be made, Ms Manahi is to be released from prison in order to return to the approved address. She is to stay there, without leaving, until the electronic monitoring is put in place and the sentence commences. The approved occupants are Ms Manahi, her mother and her two children.
[34]I remit all outstanding fines.
Simon France J
Solicitors:
Crown Solicitor, Napier for Respondent
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