Manga v Police - [2014] NZHC 2271

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 Respondent

Judgment:

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…

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.

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Details

Case: [2014] NZHC 2271
Decision Date: 18 September 2014

CaseChat Overview and Summary

Ryan Paul Manga appealed against his sentence and convictions in the District Court at Manukau. The appellant was sentenced on 11 December 2013 to two years and four months imprisonment for sexual connection with a person under 16 years. He was also convicted on 17 March 2014 of escaping from lawful custody and of injuring a police officer with intent to commit a crime. The appellant's sole ground of appeal was the lack of competence of counsel. The court found that the sentence was not manifestly excessive and dismissed the appeal against sentence. The court also found that the convictions were rightly made and dismissed the appeal against conviction. The court found that the appellant was in lawful custody when he was arrested and that the judge did not err in her assessment of the evidence. The court found that the appellant's convictions were rightly made and dismissed the appeal against conviction. The appeals against sentence and convictions were dismissed.

Orders