Mane v Police
[2024] NZHC 3700
•6 December 2024
IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE
CRI-2024-488-000111
CRI-2024-488-000112 [2024] NZHC 3700
TYSON MANE v
NEW ZEALAND POLICE DEPARTMENT OF CORRECTIONS
Hearing: 5 December 2024 Appearances:
M Nicholls for the Appellant
A Goodwin for the Respondents
Judgment:
6 December 2024
JUDGMENT OF WALKER J
[Appeal against sentence]
This judgment was delivered by me on 6 December 2024 at 11 am Registrar/Deputy Registrar
Counsel/Solicitors:
M Nicholls, Barrister, Kerikeri MWIS, Crown Solicitor Whangārei
MANE v POLICE & CORRECTIONS [2024] NZHC 3700 [6 December 2024]
[1] Mr Mane is someone with a very poor history of compliance with court orders. He appeals a sentence imposed by Judge D J McDonald in the Whangārei District Court of nine months’ imprisonment for two breaches of home detention,1 a charge of theft (over $1,000)2 and a charge of theft (under $500).3 The home detention sentence which he was ostensibly serving was one of four months handed down by the Auckland District Court for receiving property over $1,000 and driving while disqualified.
[2] Mr Mane argues that the nine-month end point is manifestly excessive because the Judge erred by imposing a cumulative sentence of eight months’ imprisonment for the two breaches of home detention. He contends that an end point in totality of no more than five months is appropriate. Counsel for Mr Mane also identifies two errors by the sentencing Judge — one of process and one factual.
[3]The respondent argues that the cumulative sentence of one month for theft over
$1,000 and the concurrent sentence of one month for theft under $500 could have been significantly higher, so on that basis the end sentence is not manifestly excessive.
Background
[4] Mr Mane first pleaded guilty to the theft charges on 3 September 2024. Sentencing was set down for 21 October 2024. On 24 September 2024, Mr Mane pleaded guilty to the first breach of home detention conditions (which occurred on 18 August 2024). At that appearance an informal indication was given that home detention would be on the table. However, at sentencing, the Department of Corrections (Corrections) provided counsel with partial disclosure of another alleged breach of home detention. After the matter was stood down, Mr Mane entered a guilty plea to the new charge. Sentencing proceeded. During sentencing, Mr Mane’s supervising Probation Officer handed up a letter to the Judge. That letter had not previously been seen by counsel. It made for poor reading.
1 Sentencing Act 2002, s 80S — maximum penalty of six months’ imprisonment or a fine not exceeding $2,000.
2 Crimes Act 1961, s 219 and 223(b) — maximum penalty of seven years’ imprisonment.
3 Crimes Act 1961, s 219 and 223(d) — maximum penalty of three months’ imprisonment.
[5] The Judge identified the lead charges as the breaches of home detention. A summary of the offending is recorded in the sentencing notes as follows:4
[4] On 18 August 2024, you contacted the home detention electronically monitoring team after hours. You told them that you had severe chest pains and that you urgently needed to go to the Bay of Islands Hospital. Your request was granted under the emergency protocol process. You were directed to go from your home detention address directly to the Bay of Islands Hospital in Kawakawa. You are recorded on the GPS monitoring of leaving your home address at Horeke Road at 14.06 hours. You told the person you were speaking to, that you would go with your uncle and he would take you to hospital but that they, that is you and your uncle, needed to go and see your uncle’s son. You were told in no uncertain terms that: “No, that was not allowed that you must go direct from your home detention to the hospital.” Electronically monitoring on your monitoring device showed that you went to an address in North Road, arriving at 15.12.42 and leaving at 17.20, a total of two hours and eight minutes. You provided no explanation as to what you were doing at that residence. You are not obliged to, or not entitled to, I am not entitled to know. It remains unexplained. You then left at 17.22.36 and arrived at the hospital.
[5] Electronically monitoring records show you did not actually go into the hospital building but appeared to have driven around the carparks before leaving, attempting to convince the monitors that you had actually gone to hospital when in fact you had not.
[6] You then travelled to a residential address in Kerikeri where you remained between 18.11 and 18.48. I am told today that that 37 minutes was because you had a child or some reason for going there in relation to your child.
[7] You then went to Kerikeri Countdown to do some shopping before returning home at 19.34.
[8] On 24 September 2024, you were issued a direction allowing you to travel directly from your home detention address in Okaihau, to Station Road, here in Kaikohe. That was primarily to attend court. Between 9.45 and 2 o’clock in the afternoon, you were present at seven unapproved addresses without prior written approval. You were asked for an explanation, you said you dropped your kids off at one address but gave no explanation for another. Today you give one explanation for one other place which was to get a meal.
[6]The police matters are described as follows by the District Court Judge:
[11] The police matters occurred on 19 February 2024, you went and you drove into the BP Service Station in Kerikeri, you got the forecourt attendant to pump you $60 worth of 91 unleaded fuel while you went inside to use the toilet. When you had finished using the toilet, you walked back outside to your car. On the way you picked up the forecourt attendant’s radio valued at
$1,800 and took it with you. You got back in your car and drove off making no attempt whatsoever to pay for the petrol that had been pumped for you. The radio went with you which has not been returned.
4 Department of Corrections v Mane [2024] NZDC 25846.
[7] Mr Nicholls, counsel for Mr Mane, points out there is a discrepancy between the summary of facts to which Mr Mane pleaded guilty and the Judge’s description of the offending. This relates to the scope of permission Mr Mane had when he left home, ostensibly to visit the hospital. I accept that the summary of facts was more ambiguous than recorded in the sentencing notes however that submission does not alter the deceptive character of Mr Mane’s actual deviations from his home address that night.
[8] The Judge imposed four months’ imprisonment, cumulatively in respect of each of the breaches of home detention and one month for theft of the radio to be served concurrently with one month for theft of the petrol. It appears that some credit for the early guilty pleas was factored in because the Judge considered the “seriousness of [the home detention breaches] would warrant a start point of around six to eight months but I must impose the least restrictive [sentence], giving you credit for [your] pleas of guilty”.5 On my reading, the inference is a guilty plea discount in the region of the maximum available.
[9] It is readily apparent that it is only a term of imprisonment which can be an issue on this appeal given Mr Mane’s extremely poor history of compliance. He has failed to comply with orders of the court even when he has had the indulgence of home detention. This does not make him a good candidate for a further sentence of home detention.
[10] By way of comparison, Mr Nicholls refers the Court to cases in which sentences ranging from three to six months have been imposed for breaches of home detention. The circumstances of each vary greatly.6
[11] Mr Nicholls submits that the following factors point to a lower starting point and end sentence:
5 At [14].
6 Swinburne v R [2010] NZCA 568; Trainor v Police [2020] NZHC 322; Lomas v Police [2014] NZHC 2573; Nash v Police HC Christchurch CRI-2008-409-107 (17 July 2008); Reynolds v Police HC Christchurch CRI-2007-409-239 (18 December 2007); Murray v R [2024] NZHC 818; Department of Corrections v McKay [2015] NZHC 3269; Hunter v Police [2012] NZHC 3196.
(a)There was no other offending during the breach of home detention for which the appellant was charged.
(b)There was no removal of the electronic monitoring bracelet or decamping from the home detention address.
(c)Mr Mane has no prior convictions for breaches of home detention conditions.
[12] Mr Goodwin, for the respondent, submits that the home detention sentences were appropriate and the uplift for the two theft offences could have been significantly higher. The end result is a sentence which cannot be described as manifestly excessive. He emphasises that the home detention sentence had been relatively short, the breaches were blatant and Mr Mane has previous convictions for breaching sentences of supervision and community work, even if not home detention breaches.
Approach on appeal
[13] The Court must allow the appeal if it is satisfied that, for any reason, there is an error in the sentence and that a different sentence should have been imposed.7 The Court will intervene where the sentence is manifestly excessive but does not engage in tinkering.8 The focus is on whether the sentence is within the appropriate range, rather than the process by which the sentence was reached.9
Discussion
[14] In my view, the home detention sentences were outside the available range for an offender who did not cut off his E-bracelet and decamp. A starting point of four months for each — totalling eight months before applying a guilty plea discount represents the level of culpability at stake here. I consider a cumulative approach is proper and orthodox.
7 Criminal Procedure Act 2011, s 250(2).
8 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [13]–[35]; Maihi v R [2013] NZCA
69 at [21].
9 Tutakangahau v R, above n 8 at [36].
[15] However, the nub of this appeal is the overall impact of the benevolent approach to the theft offending on the end sentence. In isolation, the theft offending could have attracted a much longer sentence. Even after totality is taken into account, an uplift of between three and five months would have been within range given Mr Mane committed the offending while on bail for the receiving and driving while disqualified charges.
[16] Therefore, stepping back, I am satisfied that the overall sentence is not manifestly excessive.
Outcome
[17]The appeal is dismissed.
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Walker J
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