Maney v Police - [2012] NZHC 2365

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2012-470-29 [2012] NZHC 2365

BETWEEN JASON REX THOMAS MANEY Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing: 13 September 2012

Counsel: JL Smylie for Appellant
N Belton for Respondent

Judgment: 13 September 2012

JUDGMENT OF TOOGOOD J

Solicitors:
JL Smylie, Barrister, Tauranga: jim@smylie.co.nz
N Belton, Ronayne Hollister-Jones Lellman, Tauranga: n.belton@rhjl.co.nz

MANEY V NEW ZEALAND POLICE HC ROT CRI-2012-470-29 [13 September 2012]

[1] Jason Rex Thomas Maney appeals against an effective sentence of two years one month’s imprisonment for assault with intent to injure and a separate charge of theft imposed by Judge Ingram in the District Court at Tauranga. He argues that the total effective sentence was manifestly excessive and that, on the basis of information obtained since the sentence of imprisonment was commenced, the sentence imposed would not allow or ensure that the appellant could complete a rehabilitation plan which he has agreed with prison administration.

[2] The victim of the assault charge was the appellant’s domestic partner. Following an argument, the appellant chased and grabbed her before punching her several times about the head. She received a severe laceration above the nose and a bruised eye. The appellant pleaded guilty to that charge at an early stage of the proceedings, and also pleaded guilty to an unrelated charge of theft of property, valued between $500 - $1,000, which included a laptop, a BlackBerry mobile phone, a passport, an MP3 player and two backpacks.

[3] There was no pre-sentence report before the Court at the time of sentencing because the appellant insisted that the sentencing should take place without one. The Judge adopted a starting point of two years’ imprisonment on the assault charge, against a maximum sentence of three years’ imprisonment. He then applied a
25 percent discount for the guilty plea before then adding a six month uplift to reflect the appellant’s previous convictions. Although aged only 32 years, the appellant has a lengthy history of offending including for assault, fighting, injuring with intent, indecent assault, assault with intent to injure, assaulting Police, assaulting with intent to rob, and the latest being assault with intent to injure committed in June 2012. On that conviction, he received seven months’ imprisonment.

[4] To the term of two years’ imprisonment for the assault charge which resulted from the Judge’s approach, a further uplift of one month’s imprisonment was added to mark the theft.

[5] It would have been more appropriate, in accordance with the Court of Appeal’s judgment in R v Clifford,[1] for the District Court Judge to have set an initial starting point related to the seriousness of the offending and then to apply an appropriate uplift to mark the need for deterrence and community protection in light of the appellant’s previous history, before applying the discount for the guilty pleas. The outcome of the approach taken by the Judge resulted in an additional period of
[1] R v Clifford [2011] NZCA 360; [2012] 1 NZLR 23.
imprisonment of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Maney v Police

Details

AGLC: Maney v Police [2012] NZHC 2365
Case: [2012] NZHC 2365
Decision Date: 13 September 2012

CaseChat Overview and Summary

Jason Rex Thomas Maney appeals against his two-year one-month imprisonment sentence for assault with intent to injure and a separate charge of theft. The District Court Judge imposed the sentence without a pre-sentence report, taking a starting point of two years' imprisonment on the assault charge, applying a 25% discount for the guilty plea, and adding a six-month uplift for the appellant's previous convictions. The appellant argues that the sentence was manifestly excessive and would not allow him to complete a rehabilitation plan agreed upon with prison administration.

The court considered the legal issues surrounding the sentencing approach and whether the sentence was manifestly excessive and would not facilitate the appellant's rehabilitation. The court found that the starting point of two years' imprisonment was not inappropriate, considering the severity of the assault and the appellant's history of violent offending. However, the court acknowledged that the sentence might not assist in achieving the Judge's intended outcome of providing the appellant with a reasonable opportunity to make genuine attempts at rehabilitation.

The court found that the Judge's approach to determining the length of the effective sentence was not consistent with the preferred approach as described by the Court of Appeal in Clifford. Adopting the Clifford methodology would have resulted in a sentence of 23 months two weeks' imprisonment, which would have enabled the Judge to ensure that an appropriate rehabilitation programme was made available to the appellant after he had completed his sentence.

In light of the findings, the court allowed the appeal in part, quashing the original sentence and replacing it with a sentence of 23 months' imprisonment. The standard release conditions shall apply, and special conditions are imposed, including attending and completing psychiatric, psychological, and/or counselling assessments, programmes, and/or treatments, drug and alcohol programmes, and rehabilitative or other programmes as directed by a probation officer. The concurrent sentence of nine months' imprisonment for the theft charge remains in place.

Orders