Mane v Police

[2012] NZHC 2946

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2012-419-60 [2012] NZHC 2946

TUMATAUENGA MANE

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         7 November 2012

Counsel:         J Keung for Appellant

J Tarrant for Respondent

Judgment:      7 November 2012

(ORAL) JUDGMENT OF LANG J [on appeal against sentence]

TUMATAUENGA MANE V NEW ZEALAND POLICE HC HAM CRI-2012-419-60 [7 November 2012]

[1]      Mr Mane pleaded guilty in the District Court to two charges of assault with intent to injure, and two charges of breaching his parole conditions.  On 28 August

2012, Judge Tompkins sentenced him to nine months home detention.1    Mr Mane

now  appeals  to  this  Court  against  sentence  on  the  basis  that  the  length  of  the sentence the Judge imposed was manifestly excessive having regard to the sentence imposed on his co-offender.

The facts

[2]      At approximately 11.50 pm on 17 March 2012, Mr Mane and his co-offender, Mr Brown, were walking along Ulster Street in Hamilton.  Both had been drinking and were heavily intoxicated.

[3]      The victims pulled into the driveway of an address in Ulster Street in a motor vehicle.  As they got out of the vehicle, Mr Mane and Mr Brown confronted them and challenged them to fight.   The victims responded by repeatedly asking Mr Brown and Mr Mane to leave, and threatening to call the police if they refused to do so.  Mr Brown then walked up to one of the victims and punched him on the left side of the face.  Mr Mane joined in and began pulling at the first victim, thereby causing his clothing to be ripped.

[4]      The second victim then tried to intervene to stop the attack, and both Mr Brown and Mr Mane turned their  attentions to him.   Mr Brown and Mr Mane ultimately began to leave, but threatened to bring more people around if the complainants called the police. After beginning to leave the property, Mr Brown and Mr Mane then turned around and charged back down the driveway, where they continued the assault on both victims.  During this part of the incident, Mr Brown grabbed a broom that one of the victims had obtained to defend himself, and struck that victim in the forehead.

[5]      The  police  were  called,  and  located  Mr  Brown  walking  away  from  the property. They found Mr Mane still inside the property beside the victims’ vehicle.

[6]      As a result of this series of assaults, one of the complainants received a blood nose, swelling to his face and bloodshot and sore eyes.  The second victim received injuries comprising swelling to the forehead, and swelling and bruising to his ear.

[7]      When the police spoke to Mr Mane, he denied assaulting the victims and declined to comment on what had happened whilst he was at the property.

The Judge’s sentencing indication

[8]      The recorded notes of the Judge’s sentencing indication are as follows:2

[1]       Mr Mane, if there were to be a guilty plea today there would be a remand on bail for preparation of a pre-sentence report with appendices, with a view to either home detention or community detention but with a preference to home detention as long as that can be accommodated with your employment.

[2]       It  will  be  a  reasonably  lengthy  period  of  electronic  monitoring, together  with  judicial  monitoring  which  means  I  get  a  report  from community probation as to your progress during the sentence and with a very clear indication at sentence that if there are any breaches of the conditions then a return to custody and imprisonment is likely.

[9]      When the Judge came to sentence Mr Brown, he concluded that a sentence of nine months imprisonment was appropriate.3   Mr Brown did not contend that a non- custodial sentence should be imposed.

[10]     So far as Mr Mane was concerned, the Judge had by that stage become aware that a sentence of home detention would not permit Mr Mane to continue his employment.  He accepted advice contained in the pre-sentence report, however, to the effect that a sentence of community detention would not properly reflect the gravity of the offending.   For that reason he imposed a sentence of nine months

home detention.

2 New Zealand Police v Mane DC Hamilton CRI-2012-019-1773, 15 June 2012.

Decision

[11]     On appeal, the Court is handicapped to some extent because the Judge did not identify what he considered to be an appropriate starting point in respect of the offending.  It was common ground at sentencing, however, that Mr Brown was the principal offender, and that Mr Mane played a somewhat lesser role in the assaults on the complainants.

[12]     Mr Brown received an end sentence of nine months imprisonment.   It is therefore likely that the Judge adopted a starting point of around 12 months imprisonment in respect of his offending.  Given that Mr Mane played a lesser role, a starting point of around ten months imprisonment was appropriate to reflect his culpability in the incident giving rise to the charge.

[13]     Two factors aggravate the seriousness of Mr Mane’s offending.  First, he has a number of previous convictions for offending involving violence.   More importantly, at the time of the offending he was subject to parole conditions prohibiting  him  from  consuming  alcohol  and  from  being  away  from  his  home address at night.   Mr Mane was in breach of both conditions at the time of the offending, and this is reflected in the charges that he faced for breaching his parole conditions. These factors warrant an uplift of at least four months, thereby leading to an end starting point of 14 months imprisonment.

[14]     The Judge applied a discount of 25 per cent to reflect guilty pleas when sentencing Mr Brown.  The Crown accepts that the two men pleaded guilty about the same time, and accordingly a similar discount is appropriate in respect of Mr Mane. This would reduce the starting point by approximately four months, leaving an end sentence of ten months imprisonment.

[15]     Assuming, as I do for present purposes, that a sentence of home detention was appropriate, the issue becomes the appropriate length of that sentence.

[16]     As a rule of thumb, a sentence of home detention will be around one-half of the end sentence of imprisonment.   This reflects the fact that an offender who is

sentenced to two years imprisonment or less will be automatically released after serving one-half of his or her sentence.  That does not apply in the case of sentences of home detention, where the offender must serve the entire sentence.  This is not an immutable rule, and circumstances relating to an offender or offending may prompt a sentencing court to impose a sentence either greater or less than one-half of the comparable prison sentence.

[17]     In  the  present  case,  however,  there  is  nothing  to  suggest  that  the  usual principles should not apply.  For that reason I have concluded that a sentence of nine months home detention is manifestly excessive.

Result

[18]     The appeal is allowed, and the sentence of nine months home detention is quashed.   In its place I impose a sentence of five months home detention.   That

sentence is on the same conditions as were imposed by the Judge.

Lang J

Solicitors:

Crown Solicitor, Hamilton

Public Defence Service, Hamilton