Manga v Police
[2014] NZHC 2271
•18 September 2014
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2014-404-146 [2014] NZHC 2271
BETWEEN RYAN PAUL MANGA
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 8 September 2014 Counsel:
V D Heather for the Appellant
NMH Whittington and S Jacobs for the RespondentJudgment:
18 September 2014
JUDGMENT OF BROWN J
This judgment was delivered by me on 18 September 2014 at 3 pm, pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Solicitors: Crown Solicitors, Auckland
Counsel: V D Heather, Auckland
MANGA v POLICE [2014] NZHC 2271 [18 September 2014]
Introduction
[1] The appellant pleaded guilty in the District Court at Manukau to one charge under s 134(1) of the Crimes Act 1961 of sexual connection with a person under
16 years. He was convicted and sentenced to two years and four months imprisonment on 11 December 2013.
[2] After a defended hearing in the District Court at Manukau the appellant was found guilty on 17 March 2014 of two charges: firstly, a charge under s 120(1)(c) of the Crimes Act 1961 that, being in the lawful custody of Constable Samuel Baker, the appellant escaped from such custody; secondly, a charge under s 191(2) of the Crimes Act 1961 that with intent to commit a crime, namely escaping from lawful custody, he injured Constable Samuel Baker.
[3] The original notice of appeal against conviction was filed on 22 May 2014. The sole ground advanced was the lack of competence of counsel. I record that Mr Heather did not represent the appellant in the District Court.
[4] However on 20 August 2014 the appellant sought leave of the Court to withdraw the appeal against conviction based on the grounds in the original notice and to extend the time for filing the appeal against conviction on the grounds which were advanced at the hearing before me.
[5] A notice of appeal in relation to the sentence imposed on 11 December 2013 was filed on 7 July 2014 and the appellant sought leave of the Court, pursuant to s 123(1) of the Summary Proceedings Act 1957 (“the Act”), to extend the time for filing that appeal.
[6] The respondent did not take objection to either of the applications for leave and consequently I granted leave for both the appeals against sentence and convictions to proceed. The appeals were addressed in that sequence in submissions. I will do the same.
Appeal against sentence
Approach on appeal
[7] The appeal against sentence is a general right of appeal under s 115 of the Act and is by way of rehearing. Section 121(3)(b) of the Act provides that the High Court may quash or vary a sentence where it is “clearly excessive or inadequate or inappropriate” or if the Court is “satisfied that substantial facts relating to the offence or the offender’s character or personal history were not before the Court imposing sentence”.
[8] The approach to be taken to appeals under s 121(3) is set out in Yorston v
Police1 where the Court said:
(a) there must be an error vitiating the lower Court’s original sentencing
discretion;
(b) the appeal must proceed on an “error principle”;
(c) to establish an error in sentencing it must be shown that the Judge in the lower Court made an error whether intrinsically or as a result of additional material submitted to the appeal Court; and
(d)It is only if an error of that category is involved that the appeal Court should re-exercise the sentencing discretion.
The High Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles.
The District Court Judge’s notes on sentencing
[9] The Judge adopted a starting point of three and a half years imprisonment. No challenge is made to that part of the decision. The Judge addressed the issue of mitigating factors as follows:2
[31] In terms of mitigation, you did plead guilty at an early opportunity, and having read your letter it tells me two things. One is that you are genuinely sorry for what you did, now that you have had time in custody to reflect on what your behaviour and the effect it has had on this young girl, and secondly, that letter tells me you are an intelligent young man, Mr Manga, it is a very well written letter, and it indicates that you are using your time in custody to better yourself, and not only through education but also through personal growth through your involvement with the chaplain facilities in prison.
[32] In terms of discounts for those mitigating factors, I consider that 30 percent would be warranted, that is 25 percent for your plea and five percent for what I do consider is your genuine remorse.
[10] The end sentence imposed in respect of the charge of sexual connection with a young person was two years four months imprisonment. That sentence in fact reflects a discount of one-third rather than the 30 per cent referred to by the Judge.
Counsel’s submissions
[11] The hearing commenced with Mr Heather proceeding to advance oral submissions in support of the appeal against sentence. However, after an intervention by the appellant, I took a short adjournment to enable the appellant to confer with counsel. When the hearing resumed Mr Heather advised that the appellant wished to present his own submissions on the issue of sentence. I agreed to that course.
[12] The nub of the appellant’s contention is that the Judge erred in failing to consider separately the matter of credit for rehabilitative programmes completed and an offer by the appellant to attend a restorative justice conference with the victim. He submits that he was entitled to a further discount from the starting point (in addition to the discount for remorse) or that the discount for remorse was insufficient given his expression of genuine remorse.
[13] I have considered the authorities cited by Mr Heather including R v Clifford3
and B v R.4 The former noted that the mitigating factor which the Supreme Court in
R v Hessell5 called “extraordinary” remorse is to be considered at step two of the
3 R v Clifford [2011] NZCA 360, [2012] 1 NZLR 23 at [60](b).
4 B v R [2013] NZCA 50.
5 R v Hessell [2010] NZSC 135, [2011] 1 NZLR 607 at [72].
three stage sentencing approach. In B v R at [38], the Court of Appeal observed that it is contemplated that the sentencing Judge will undertake a robust evaluation of all the circumstances which ought to enable a finding on the genuineness of a defendant’s remorse.
Decision
[14] The sentencing notes6 indicate that the Judge approached the matter in accordance with the accepted principles, addressed the issue of remorse discretely and took into account the appellant’s rehabilitative actions. I do not consider that the Judge was required to address the appellant’s rehabilitative steps as a distinct head of discount separate from the issue of remorse.
[15] I agree with Mr Whittington that a five per cent discount for remorse was well within the range available to the Judge, taking into account that any remorse must be extraordinary, the victim declined to participate in the restorative justice programme and the serious nature of the offending in this case.
[16] However, even if I had considered it appropriate to allow an increase in the discount for remorse, I would only have contemplated a small increment. In fact the appellant has had the benefit of the equivalent of an eight per cent discount for remorse having regard to the fact that the ultimate sentence reflected the deduction of a third from the initial starting point rather than 30 per cent as stated by the Judge.
[17] The focus in an appeal against sentence is on the correctness of the end result, not the process by which the sentence was reached. In Ripia v R7 the Court noted that:
… this Court has consistently observed that sentence appeals will almost always turn on a consideration of whether the final outcome is manifestly excessive. The route by which the Judge reached that outcome will be relevant to the analysis, but seldom in itself pivotal.
[18] In my view the final sentence of two years four months imprisonment was not manifestly excessive particularly having regard to the fact that the total discount from the starting point, which is not challenged, was one-third.
Appeal against conviction
Approach on appeal
[19] An appeal against conviction is by way of rehearing. Section 121(2) of the
Act allows the High Court to confirm a conviction, set it aside or amend it.
[20] The approach of the Court on a general right of appeal is as explained in
Austin Nichols:8
Those exercising general rights of appeal are entitled to judgment in accordance with the opinion of the appellate court, even where that opinion is an assessment of fact and degree and entails a value judgment. If the appellant court’s opinion is different from the conclusion of the tribunal appealed from, then the decision under appeal is wrong in the only sense that matters, even if it was a conclusion on which minds might reasonably differ. In such circumstances it is an error for the High Court to defer to the lower Court’s assessment of the acceptability and weight to be accorded to the evidence, rather than forming its own opinion.
[21] The Court noted that the appeal court must be persuaded that the decision is wrong but in reaching that view no deference is required beyond the “customary caution” appropriate when seeing the witnesses provides an advantage because credibility is important.9
Grounds of appeal
[22] Four grounds of appeal against conviction are pursued. It is contended that her Honour:
(a) Erred in her assessment of the evidence in finding that the appellant was in lawful custody;
(b) Gave undue regard to the evidence of the prosecution witnesses;
(c) Gave insufficient weight to the evidence of the defence; and
(d) Erred in her general assessment of the evidence.
It is contended that those errors, either alone or in combination, were such that a
miscarriage of justice ensued and that the appellant’s convictions should be set aside.
Was the appellant in lawful custody?
[23] The appellant was convicted under s 120(1)(c) for escaping from being in lawful custody. Section 120(2) provides that for the purposes of that section custody under an illegal warrant or other irregular process shall be deemed to be lawful. The appellant was also convicted of injury with intent to commit a crime (the crime being escaping from lawful custody) under s 191(2). The Crown’s contention was that the lawful custody in the present case followed the appellant being placed under arrest by Constable Baker.
[24] Section 315(2)(b) of the Crimes Act 1961 provides that a constable may arrest a person whom he has good cause to suspect of any offence punishable by imprisonment. “To suspect” requires a degree of satisfaction, not necessarily amounting to belief, but at least extending beyond mere speculation as to whether or
not an event has occurred.10
[25] In Arahanga v R11 the Court of Appeal considered in the context of s 120(1)(c) whether there had been an arrest. The Court said:
[53] We therefore hold that the test for whether there has been an arrest, as the basis of an escaping lawful custody charge, is:
(a) The arrester, by words or conduct, makes it clear to the person being arrested that he or she is no longer free to go where he or she pleases; and
(b) The person being arrested knows that he or she is no longer free to leave.
[54] Whether a person is arrested or not is a matter of fact. Where words are used to arrest a person, no particular form of words is required.
10 R v Thompson (1995) 13 CRNZ 546 (HC).
However, any words used must clearly bring home to a person that he or she is under compulsion and preferably the word arrest should be used.
The brief facts
[26] The relevant facts are that Constables Baker and Trotter were in a marked patrol car which was directed by Police North Communications to go to the intersection of Roscommon Road and Browns Road in Manukau City in relation to an alleged stolen vehicle. They were looking for a distinctive bright red car. Constable Trotter had been given the registration of the car but, because he was driving, he did not write the registration number down immediately and he incorrectly recorded it.
[27] On approaching the intersection of Russell Road and Browns Road the officers saw a vehicle matching the description given pulling into a Laundromat. The police car pulled in behind the bright red vehicle at which point the vehicle immediately attempted to reverse out.
[28] The evidence for the prosecution comprised Constable Baker, Constable Trotter and Dr Kim who was the medical person who dealt with the injury that Constable Baker suffered. The appellant gave evidence and, because certain matters raised by him had not been put in cross-examination, both Constable Baker and Constable Trotter were recalled.
The Judge’s conclusions
[29] With reference to the charge of escaping from lawful custody, the Judge’s
findings were as follows:
[22] In dealing with your evidence Mr Manga, that this was about 10.30 am to 10.45 am in the morning, there was nothing to suggest that there was anything particularly unusual about the weather that day. The two police constables were in a marked patrol car and were both wearing full police uniform. I cannot accept for one minute that you did not see the police car parked behind you. It was parked directly at an angle behind your motor vehicle and even with a spoiler if you had looked in your rear vision mirror the markings on the police car would have been obvious to anyone. Police car markings are distinctive for a reason, they need to be seen.
[23] I am satisfied beyond reasonable doubt that you were in a stolen car and that you knew you were in a stolen car. I do not accept your evidence
that there was a key in the motor vehicle. I accept the evidence of Constable Baker as credible and reliable, that the barrel had been pulled. I am satisfied beyond reasonable doubt that you knew the police were there and that what you were trying to do was get out of that carpark and get away from them because you knew you were in a stolen motor vehicle. I do not accept for a minute that you did not recognise Constable Baker as a police officer, he was in full police uniform including the vest which has “Police” across it, and even if your radio had been loud you would have seen that he was a police officer.
[24] It beggars belief for you to suggest to this Court that you could not see that it was a police car or that there was a police officer with his arms in your window telling you to stop. I am satisfied beyond reasonable doubt that Constable Baker did tell you to stop, did identify himself as a police officer, and did tell you you were under arrest on a number of occasions. I am satisfied beyond reasonable doubt that he did so in a manner that would have been able to have been heard by you. He did give evidence of having both hands in the car window, one to try and get the key before discovering there was not one, and one he used to protect himself from possible harm by pushing your face away.
[25] I accept that you made a number of manoeuvres to get out from behind the police car as described by Constable Trotter, and that during this period Constable Baker continued to have his arms in the vehicle as you reversed. You suggested in your evidence that once you had got out from behind the police car, stopped your motor vehicle and that when Constable Baker went to the passenger’s side you saw he was police and that you stayed stopped. Again I do not accept that evidence Mr Manga. The evidence from Constable Trotter and Constable Baker was clear, is that your motor vehicle did not stop at all. It reversed through the carpark area and then did that particularly sharp turn to get onto the road and make good your escape.
[26] So the situation is that I put your evidence completely to one side. I am satisfied on the evidence of Constable Baker firstly in relation to the information of escaping lawful custody, that you were in his lawful custody, it was a valid arrest. You were told in no uncertain terms to stop the vehicle, that it was the police and that you were under arrest. I am satisfied that at the time you reversed and continued to reverse onto either Russell or Browns Road, that your intent was to escape that lawful custody because you knew you were in a stolen motor vehicle.
[30] With reference to the second charge, the Judge’s conclusions were as follows:
[28] Turning now to the second information, having been satisfied beyond reasonable doubt that you were in lawful custody I have to consider if I am satisfied beyond reasonable doubt that you intended to escape that lawful custody which I have also been satisfied of, and that you injured Samuel Baker.
[29] An injury in law is something that is not trifling or transitory, and obviously a break of the type described by Constable Baker is an injury. I am not satisfied beyond reasonable doubt that that was your specific intent, however I am satisfied beyond reasonable doubt that the only logical
inference I can draw is that you must have been aware that what you were doing, in other words driving off at speed with a person’s arms and hands in your motor vehicle, was likely to expose him to the risk of suffering the type of injury that he did.
[30] It follows therefore that I am satisfied beyond reasonable doubt that the elements in relation to that information are also proved beyond reasonable doubt, and you are convicted in relation to each.
Counsel’s submissions
[31] The appellant drew attention to the decision of the Court of Appeal
(dismissing an appeal) in R v Moreton where the Court said:12
… There must be many instances where there is sufficient cause to suspect to justify an arrest but where such suspicion is capable of being laid to rest by investigation. Insisting strictly on the distinction contended for by counsel would have the undesirable consequence of encouraging the police to arrest first and investigate later. An intention on the part of a police officer to make some preliminary inquiries before making a final decision as to an arrest does not invalidate the prior stopping, providing there are already grounds for an arrest and at least a conditional intention to make an arrest. …
[32] The appellant accepted that preliminary inquiries were undertaken prior to Constable Baker seeking to execute the arrest of the appellant. However he submitted that the grounds for the arrest were deficient because (italicised phrases from the appellant’s submissions):
(a) The appellant’s vehicle appeared to match the description of the stolen car;
(b)It appeared that the partner of the vehicle owner had lost sight of the stolen car proceeding in the direction of Browns Road to Roscommon Road (minutes prior to the incident), approximately 1.2 km away from the location of the appellant’s vehicle;
(c) The officers had not by that stage confirmed whether the number plate
of the stolen car matched the appellant’s vehicle;
12 R v Moreton [2009] NZCA 121 at [20].
(d)Constable Trotter confirmed that he noted the registration number in his notebook, however he believes it was incorrect;
(e) Constable Baker’s evidence was that it appeared the vehicle was “barrelled” (or tampered with). This is because, it is submitted, he could not see the key. He later says, “It could have been dangling down, and I didn’t see it”. Therefore, Constable Baker accepted that the key may have been in the appellant’s vehicle. This is confirmed by his response under cross-examination where he accepts that the keys may have been in the vehicle; and
(f) Constable Baker’s evidence was that his observation of the locality of the key and assessment of the ignition was “very quick”.
[33] I agree with Mr Whittington’s submission that the evidence was clear that Constable Baker communicated to the appellant the fact of the appellant’s arrest. The Judge records her conclusion on that matter at [26] of her reasons. In my view that was plainly the correct conclusion on the evidence. However, even if that were not the case, it appears that s 120(2) provides a separate basis for the contention that the appellant was in “lawful” custody.
[34] On the question whether Constable Baker had “good cause to suspect”, Mr Whittington drew attention to [18] of Moreton which discusses the threshold of “suspicion”. He also drew attention to the fact that in the course of the cross- examination of Constable Baker no challenge was mounted to the constable’s state of mind immediately prior to the point in time when he endeavoured to arrest the appellant.
[35] In my view Constable Baker had ample grounds for suspicion that the appellant had committed an offence, namely receiving a stolen car. These grounds included that the officers sighted the vehicle matching the description of the missing vehicle, and they pulled in behind that vehicle and, as soon as they did so, the vehicle attempted to reverse out in the manner it did. I agree with Mr Whittington that that suspicion was bolstered by Constable Baker’s observation that the ignition
appeared to have been “barrelled”. It was at that point that Constable Baker
informed the appellant he was under arrest.
[36] I do not discern any error in the Judge’s conclusions on this issue. My own assessment is that Constable Baker had reasonable cause for his suspicion and that the appellant was placed in lawful custody as a consequence of his arrest by Constable Baker.
Was undue regard given to the evidence of the prosecution witnesses?
[37] The thrust of the appellant’s submission on this point was that the evidence of Constable Baker and Constable Trotter was materially inconsistent and consequently should not have been relied upon. Three matters in particular were advanced.
[38] First, Constable Baker’s evidence was that he deployed his OC spray, taking it out with his left hand and transferring it to his right hand before deploying it. However Constable Trotter did not see Constable Baker deploy his OC spray. Secondly, Constable Baker’s evidence was that he ran towards the vehicle yelling towards it to stop whereas Constable Trotter’s evidence was that Constable Baker walked towards the appellant’s vehicle and that he could not hear what was being said (although noting that things were definitely being said). Thirdly, there was a difference in the evidence of Constable Baker and Constable Trotter as to the direction of movement of the appellant’s vehicle at the point when Constable Baker was thrown onto the roadway and as to the manner in which Constable Baker fell.
[39] The Crown accepts that there were some inconsistencies in the evidence of the constables but submits that this was the expected and natural result of their different perspectives, one being inside the patrol car, the other being outside it, together with the fact that the incident occurred within a very short space of time.
[40] I accept that the Judge would have been aware of these inconsistencies as she set out their evidence in her judgment sequentially. There can be no suggestion that she blended their evidence in some way. She noted that in the course of cross- examination Constable Trotter confirmed that he did not see everything that had occurred and that he could not hear exactly what was being said.
[41] In my view the points of inconsistency between the evidence of the two constables are of the type which is not infrequently encountered with eye-witness evidence in respect of events which occur quite rapidly. The fact of inconsistencies of that nature does not sustain a complaint that undue regard was given to the prosecution evidence. I do not consider that this ground of appeal is made out.
Was insufficient weight given to the evidence of the defence?
[42] This contention appeared to be confined to the proposition that the Judge ought to have placed more weight on photographic evidence of an injury sustained by the appellant. It appears that a photograph was taken of the appellant’s face by a lawyer in the holding cells on the day following the appellant’s arrest which showed a graze to his right temple. The photograph was produced as Exhibit A by the defence during the trial.
[43] In the course of the examination of Constable Trotter on his recall, reference was made to another photograph taken of the appellant by the District Custody Unit. That photograph was admitted as Exhibit 3 at the conclusion of the evidence.
[44] The Judge referred to this matter at [14] of the judgment as follows:
Also produced was a picture taken by a lawyer at the PDS who saw you either 12 or 13 May which showed a graze to your right temple area. The photo montage that had been prepared by Constable Trotter which contained a picture of you showed no injury to you. I asked that the mug shot taken of you when you were arrested be provided and that was produced as exhibit 3. That shows some redness on your forehead and some redness on your right side of your face but does not show any particular injury in this picture that would have caused that graze that is in the photo taken by the lawyer that saw you in the cells.
[45] The Judge proceeded to refer to the further evidence given by the constables when they were recalled to address matters not put to them in cross-examination, in particular the evidence of Constable Baker that he grabbed the appellant’s face and pushed it away but denied gouging or punching the appellant. Then in her conclusions the Judge referred at [24] to Constable Baker having both hands in the car window, one to try and get the key before discovering that there was not one, and
the other which he used to protect himself from possible harm by pushing the appellant’s face away.
[46] The appellant contends that Exhibit 3 does show the injury visible in Exhibit A and submits that that injury was consistent with not only the appellant’s request to see a medical doctor but also the appellant’s account of the incident with Constable Baker. It is argued that the Judge gave insufficient weight to the photographic evidence, as part of a coherent or consistent defence case that the constable assaulted the appellant in the manner alleged in his evidence.
[47] It is apparent from [14] of the judgment that on the basis of her assessment of the photographs the Judge did not consider that the graze shown in Exhibit A was present in photograph Exhibit 3. I do not consider that there is a basis for saying that her Honour gave insufficient weight to the photographic evidence. The position is simply that the Judge’s assessment of the photographs did not support the contention advanced by the appellant. On the basis of the material before me I do not consider the Judge erred in the manner contended by the appellant. I note that the photographs were not in the materials provided to this Court, presumably because of the relatively late change in the nature of the appellant’s grounds for appeal.
Did the Judge err in her general assessment of the evidence?
[48] Two matters were relied upon in the appellant’s submissions on this ground of appeal. It was first contended that her Honour incorrectly noted at [6] of the judgment that Constable Baker went to the passenger door of the car driven by the appellant after failing to open the driver’s door as the vehicle was reversing. The point is then made that evidence to this effect was led by the appellant.
[49] The second point involved a lengthy analysis of the nature of the injuries sustained to Constable Baker’s hand, the argument apparently being that the absence of abrasions to the back of the hand was troublesome as being inconsistent with the evidence that the injury was sustained when the constable was thrown onto the asphalt roadway.
[50] While I recognise that there was a conflict of evidence on the question of whether Constable Baker ever went to the passenger side of the vehicle driven by the appellant, I do not consider that the point is relevant to the Judge’s conclusions on the two charges. In any event it is of course open to a Judge to accept some parts of a witness’s evidence and to reject others. So far as the second issue is concerned, evidence was led from Dr Kim that his medical notes showed that Constable Baker had an abrasion on the back of the ring finger of his right hand.
[51] In my view there was no error by the Judge in her general assessment of the evidence.
Result
[52] For the reasons above the appellant’s appeals against his sentence on
11 December 2013 and his convictions on 17 March 2014 are dismissed.
Postscript
[53] In the event that it may become relevant I record that, after the conclusion of the hearing of Mr Manga’s appeal, I advised that I reserved my decision. I then adjourned briefly before returning to court to commence the hearing of another matter. At that time Mr Heather rose and indicated that he had instructions that his client wished to be heard again personally on a matter. I inferred from my inquiry of Mr Heather that Mr Manga wished to raise an issue of competency of counsel.
[54] I indicated to Mr Heather that I considered that the hearing of the appeal had concluded when I reserved my decision and rose and left the courtroom. I declined to hear any further submissions from the appellant in person. However I wish to place on record, should it become relevant, that I found Mr Heather’s written and
oral presentation entirely professional and very competent.
Brown J
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