Manga v Police

[2025] NZHC 432

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE

CRI-2024-425-000058

[2025] NZHC 432

BETWEEN

SHANE MICHAEL MANGA

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	10 February 2025
Appearances:	J K Fraser and H R Jack for Appellant M B Brownlie for the Respondent
Judgment:	7 March 2025

JUDGMENT OF PRESTON J

This judgment was delivered by me on 7 March 2025 at 12.30 pm, pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

MANGA v NEW ZEALAND POLICE [2025] NZHC 432 [7 March 2025]

Introduction

[1]    Mr Shane Manga appeals his sentence of 14 months imprisonment imposed in the District Court on one charge of breaching a protection order,1 three charges of breaching release conditions,2 and one charge of resisting arrest.3

[2]    Mr Manga contends that the Judge failed to give proper weight to Mr Manga’s personal circumstances, in particular his severe addiction issues and his desire to return to the North Island, near family/whanau.

Facts

[3]    Mr Manga is subject to a protection order in favour of the victim (his previous partner), Ms L, and the son they share.4 Mr Manga has convictions  for assaulting  Ms L (a person in a family relationship) in September 2021, and again for physically assaulting her in February 2024 while the protection order was in place.

[4]    On 2 October 2023, Mr Manga was released from Invercargill prison with release conditions which included not to contact Ms L without prior written approval, not to enter Riverton township (where Ms L resides with their son) and not to possess or consume alcohol.

[5]    At around lunchtime that day, Mr Manga contacted Ms L by phone, informing her he was coming to her Riverton home. On this occasion, and other times throughout the day when Mr Manga contacted her, Ms L told Mr Manga that he was not allowed at her address.

[6]    At about 8.30 pm that night, Mr Manga arrived at Ms L’s home with a box of alcoholic beverages which he had been consuming. Their son let Mr Manga inside and he did not leave until the following day. Throughout the evening, the appellant verbally insulted Ms L. Ms L said she felt intimidated and therefore did not go to bed

1      Family Violence Act 2018, ss 90(a), 9 and 112(1)(a); maximum penalty three years imprisonment.

2      Sentencing Act 2002, s 96(1); maximum penalty one year imprisonment.

3      Summary Offences Act 1981, s 23(a); maximum penalty three months imprisonment or $2,000 fine.

4      Issued and served on Mr Manga in November 2021.

nor ask Mr Manga to leave, however she did reiterate multiple times that Mr Manga was not allowed at the house.

[7]    Early the next morning, 3 October, Mr Manga verbally insulted Ms L then left the property.

[8]    At around 3.00 am on 5 October 2024, Mr Manga presented at the Invercargill Police station to report he was in breach of his release conditions. He was drinking Fireball liquor at the time. Police advised Mr Manga they would inform probations and told him to go home. Outside the police station, Mr Manga threw a glass bottle at an unmarked police vehicle. Police approached Mr Manga and advised him he was under arrest. Mr Manga refused to turn away or place his hands behind his back when the police attempted to place him in handcuffs.

District Court Decision

[9]Sentencing took place on 10 December 2024, the day Mr Manga entered pleas.5

[10]   At outset, Judge Ruth observed that on its face Mr Manga’s offending might be said to be not particularly serious and that Mr Manga had been sentenced on previous similar charges to six months imprisonment.

[11]   Mr Manga’s counsel, Mr Fraser, argued for a similar outcome. But the Judge took a different view, based on Mr Manga’s relevant previous history of breaching conditions of release and of family violence. He explained: 6

I must firstly reach a starting point and I propose to do so by bringing to bear all of the previous matters rather than setting a sentence commensurate with this particular offending and adding the aggravating factors pertaining to your previous history.

[12]   On the lead offence of the protection order breach involving psychological abuse the Judge set a starting point of 12 months’ imprisonment. He uplifted this by six months  on  the  charges  of  breaching  release  conditions,  having  regard  to  Mr Manga’s 12 previous convictions of same kind.

5      Police v Manga [2023] NZDC 29887.

6      Police v Manga, above n 3, at [4].

[13]This resulted in an adjusted starting point of 18 months’ imprisonment.

[14]   The Judge accepted Mr Manga had intimated guilty pleas for some time prior and gave a four-month discount (approximately 22.2 per cent) on that basis.

[15]   The Judge declined any further reduction for personal circumstances. Noting Mr Manga’s “deep-seated untreated addiction problem,” and that Mr Manga had expressed a willingness to change and take treatment in two drug and alcohol reports in 2022, the Judge observed:7

… today, 2024, the same characteristics keep being raised … you tend to talk about residential treatment but only on your terms. Part of this is because you are using and you know full well that you could not meet the detox requirements … The Court cannot make you take treatment and it is likely that treatment would only be offered to you when you are in the right space to take it. I think you are a wee way off that yet.

[16]The end sentence, therefore, was 14 months’ imprisonment.8

Home detention

[17]   The Judge did not expressly address the issue whether to commute the term to home detention and did not grant leave to apply, although I note counsel for Mr Manga confirms no submission was made to the Judge on either basis.9

[18]I return to this issue as it was developed on the appeal, below.

Principles on appeal

[19]   A sentence appeal must be allowed only if the appellate court is satisfied there has been an error in the imposition of the sentence and that a different sentence should be imposed.10

7      Police v Manga, above n 4, at [7].

8      Concurrent sentences were imposed for the remaining offences: one month’s imprisonment for resisting police and four months’ imprisonment for each breach of release conditions.

9      On the appeal, senior counsel frankly accepted he did not anticipate the length of term imposed given Mr Manga’s previous sentence for similar offending. It is unclear if a suitable address was available.

10 Criminal Procedure Act 2011, ss 250(2) and 250(3).

[20]   The court will not intervene where the sentence is within the range that can properly be justified when applying accepted sentencing principles. Only if the sentence is “manifestly excessive” is it appropriate for the court to intervene and substitute its own views.11

Submissions

[21]   Mr Jack, who argued the principal aspects of the appeal for Mr Manga, submitted the appellant’s personal circumstances justified further recognition to reduce the end sentence close to that imposed for his most recent similar convictions: six months imprisonment.12 Counsel submitted Mr Manga’s severe alcoholism and need for treatment should have reduced the starting point, along with the fact (as initially submitted) that Mr Manga intends to move back to his family in Levin. This latter would provide for the best interests of Ms L and “facilitating [the move] as quickly as possible would be a positive outcome for all parties.”

[22]   For the respondent Mr Brownlie submitted neither of these factors warranted further discounts at sentencing and therefore the Judge did not err in imposing a sentence of 14 months’ imprisonment. Acknowledging that addiction is a mitigating factor where offending was driven by it, Mr Brownlie argued the breach of protection order had no connection with Mr Manga’s alcohol addiction.13 Further, the voluntary consumption of alcohol cannot be taken into account by way of mitigation in sentencing.14

11  Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36]; and Ripia v R [2011] NZCA  101 at [15].

12 Police v Manga [2024] NZDC 12286 (The end sentence was 10 months’ imprisonment for unlawfully taking a motor vehicle and six months’ imprisonment each for two charges of breach of release conditions to be served concurrently).

13 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [148].

14 Sentencing Act 2002, s 9(3).

Analysis

Mr Manga’s previous history informing sentence

[23]   The appellant does not challenge the starting point the Judge adopted, which was informed by the Judge’s view of the seriousness of the protection order breach given Mr Manga’s relevant previous history.

[24]   At age 51 Mr Manga has 97 previous convictions. The majority of these are driving  related  or  for  burglary  and   shoplifting,  however  since  2012  he  has   12 convictions for breaching prison release conditions or conditions of home detention. Since 2013 he has committed nine family violence offences. He has continued to offend against his ex-partner by breaching the protection order in favour of her and their son.

Personal circumstances of the appellant

[25]   The Court of Appeal in Zhang v R encouraged sentencing judges to explore rehabilitative options in sentencing addicted offenders.15

[26]   Before Judge Ruth, Mr Manga waived his right to a pre-sentence report but relied on two alcohol and drug assessments which had been prepared in December 2022, by drug and alcohol specialist assessor and clinician Mr Pleasance, and registered clinical psychologist Mr Shirley.16 It is evident from his sentencing remarks the Judge recognised the clear need for treatment of Mr Manga’s alcohol addiction identified in the 2022 reports.

[27]   I accept, as counsel put it, on one view Mr Manga’s offending within the three days after his release could be seen as “a cry for help”. However, as the Judge observed, Mr Manga’s attitude noted in the 2022 reports and maintained in December 2024 did not support rehabilitative options as a realistic avenue in response to this offending.

15 Zhang v R, above n 13, at [150].

16 The reports had been prepared to inform Mr Manga’s sentencing in December 2022 on charges of burglary (x 2) and shoplifting (x 3) after he accepted a sentence indication. Mr Pleasance’s report was prepared at the Court’s request, Mr Shirley’s for the defence.

[28]   Regrettably, Mr Manga maintains minimal interest in attending residential rehabilitation, as was noted in Mr Pleasance’s report, despite the clinician’s persuasion and the fact that he  has  never  previously  attended  such  a  programme.  Rather, Mr Manga expressed at that time (2022) that he considered the time he had spent in jail had been a useful “rehab”. This attitude is consistent with his immediate breach of the release conditions not to use alcohol (and not to contact or go near his ex- partner) on the day he left prison. This in turn informed the Judge’s view that no reduction was warranted having regard to Mr Manga’s addiction.

[29]   As the Court also explained in Zhang, the underlying rationale for a sentencing reduction for addiction is insofar as it “mitigates the moral culpability of the offending”.17 Mr Manga deliberately and persistently breached the protection order as soon as he was discharged from prison. Further I accept, as Mr Brownlie submits, that while there is an overarching causal connection between his addiction and the offending (albeit he had had an enforced period of sobriety up to the point of his release from prison), it cannot be said the addiction drove the breach of the protection order in the way that drug addiction may be said to have driven drug-related offending.

[30]   Ultimately, albeit regretfully, I agree with the Judge’s view that Mr Manga does not yet appear ready to undertake the repeated opportunities that have been offered to him including through release conditions to obtain assistance to address his alcohol addiction.

Intention to relocate to the North Island

[31]   Regarding Mr Manga’s proposed move to Levin to be with family, I am unable to accept Mr Jack’s submission this is properly considered a mitigating factor.

[32]   It is true it would place the appellant far from the victim which I accept would be a positive outcome given Mr Manga’s offending history against her. However, in the absence of some concrete proposal to address Mr Manga’s needs, such as a residential rehabilitative proposal, there was no proper basis on which the Judge could consider the desire to relocate merited a reduction.

17     Zhang v R, above n 13, at [149].

[33]   For similar reasons, although counsel invited me in oral argument on the appeal to consider granting leave to apply for home detention, after careful consideration I conclude there is insufficient information to indicate this is warranted. Mr Fraser confirmed he had contact with Mr Manga’s family when Mr Manga sought compassionate bail to attend a funeral for a family member in the North Island. However, counsel did not specifically address the prospect of any suitable home detention residence or other support. He submitted his impression is Mr Manga would have strong family support in the lower North Island should he relocate there.

[34]   I consider the principal issue is Mr Manga’s resistance to therapeutic interventions which have previously been offered by the Courts. He did not wish to undertake residential rehabilitation in 2022 when offered the opportunity by the independent assessor for the Court, he did not demonstrate any further inclination in December 2024 when he appeared before Judge Ruth for sentence. In the interim he had continued to disregard special conditions of his release designed to address his reintegration and rehabilitation in the community following sentence for similar offending. It cannot be said the Judge underweighted the rehabilitative aspect of sentencing, rather, he considered this repeated offending, notwithstanding rehabilitative measures of release conditions, required a condign response.

[35]   In those circumstances, and although it would have been preferable that the Judge expressly addressed this conclusion, I do not accept the Judge erred in declining to commute the term or to grant leave to apply, as denunciation and deterrence were the paramount considerations in sentencing.

Conclusion

[36]   Informed by Mr Manga’s history of breach of release conditions and family violence, and the lack of proactive action to address his addiction issues, Judge Ruth acted within discretion in imposing a sentence of 14 months’ imprisonment.

[37]The sentence was not manifestly excessive in all the circumstances.

Result

[38]The appeal is dismissed.

………………………………………

Preston J

Solicitors:

Crown Solicitor, Invercargill

John K Fraser Law Limited, Invercargill