Maniapoto-Grant v The Queen
[2021] NZHC 1084
•14 May 2021
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
I TE KŌTI MATUA O AOTEAROA
TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE
CRI-2020-463-133
CRI-2020-463-134 [2021] NZHC 1084
BETWEEN KAEA MANIAPOTO-GRANT
Appellant
AND
THE QUEEN
Respondent
Hearing: 14 May 2021 Appearances:
M James for the Appellant
M Davie for the Crown (via AVL link)
Judgment:
14 May 2021
JUDGMENT OF MUIR J
This judgment is delivered by me on 14 May 2021 at 3:30 pm
.....................................................
Registrar / Deputy Registrar
Counsel:
M James, Barrister, Hamilton
M Davie, Crown Law, Wellington
MANIAPOTO-GRANT v R [2021] NZHC 1084 [14 May 2021]
[1] Ms Maniapoto-Grant appeals her sentence of four years and eight months’ imprisonment imposed by Judge Snell in the Rotorua District Court on 17 July 2020 in respect of the following charges:
(a)dangerous driving causing death;1
(b)dangerous driving causing injury;2
(c)failing to answer bail;3
(d)possession of cannabis for sale;4
(e)possession of utensils;5 and
(f)unlawfully getting into a motor vehicle.6
[2] Her counsel submits that the sentence was manifestly excessive having regard to a cultural report now to hand and that an appropriate sentence is in the range of three years and six months’ to three years and nine months’ imprisonment. I note that counsel on the appeal was not counsel at the sentencing.
[3] The Notice of Appeal was filed out of time. Ms Maniapoto-Grant accordingly seeks an extension of time which the Crown does not oppose. The delay has been explained and no prejudice results. She also applies for leave to adduce further evidence on appeal, namely, the recently received cultural report. Again, the Crown does not oppose the application. I consider the report necessary to enable proper consideration of the appeal point. I grant both applications.
1 Land Transport Act 1998, s 36AA(1)(b): carrying a maximum penalty of 10 years’ imprisonment.
2 Section 36(1)(b): carrying a maximum penalty of five years’ imprisonment.
3 Bail Act 2000, s 38(a): carrying a maximum penalty of one year of imprisonment.
4 Misuse of Drugs Act 1975, s 6(1)(f): carrying a maximum penalty of eight years’ imprisonment.
5 Section 13(1)(a) and (3): carrying a maximum penalty of one year of imprisonment.
6 Crimes Act 1961, s 226(2): carrying a maximum penalty of two years’ imprisonment.
Background
[4] These charges arise out of two distinct periods of offending. By way of background, the appellant did not have a driver’s licence. On 14 December 2016 the Police stopped the appellant and forbade her from driving until she obtained a licence. Between that date and 12 July 2019 the appellant received two convictions for driving while disqualified and five convictions for being an unlicensed driver and failing to comply with relevant prohibitions.
[5] On 5 February 2019 the appellant was sentenced to three months’ imprisonment for breach of home detention conditions with standard and special release conditions. Community probation required the appellant to undertake and complete the Howard League Driver Education Programme. She failed to do so.
[6]The first tranche of offending occurred in July 2019.
[7] The appellant’s cousin’s friend owned a Ford motor vehicle. The vehicle’s warrant of fitness had expired on 20 May 2019. It was in poor condition. Its tyres were well below the minimum tread depth with the rear right-hand tyre worn to its cords. That tyre was also a different size to the other three tyres on the vehicle. Text data obtained from the appellant’s phone indicated she was aware that the tyre was worn excessively and the wrong size for the vehicle.
[8] At approximately 2.15 pm on 12 July 2019 the appellant was driving the Ford with passengers, Te Rangi-Marie Tuwhangai, a cousin, in the front passenger’s seat, and her cousin’s partner, Liam Irvine in the rear left-hand seat. All three of the occupants were at that time resident at the same address in Hamilton. The group had been travelling between Kawerau and Rotorua and back to Hamilton. They had done so twice over the last 24 hours in order to attend a tangi. They were on State Highway 5 which is a two-lane road with a 100 kilometre per hour speed limit. It links the Waikato to Rotorua and as such has a large volume of traffic, including tourist and tour coaches. The road at the time was wet with overcast conditions and light rain.
[9] The appellant approached a moderate left-hand corner at a speed excessive for the conditions and the vehicle’s standard of maintenance. She lost control. The
vehicle crossed the centreline before veering back across her lane and colliding with a large storm water culvert. This caused the vehicle to bounce back towards the opposing lane and into the path of oncoming vehicles. The driver of a Ford Focus travelling in the opposite direction was unable to avoid the appellant’s vehicle which was hit in the middle left passenger side causing it to overturn and split open.
[10] Mr Irvine, who was not wearing a seat belt, was thrown from the vehicle onto a nearby grass verge. The appellant’s vehicle ran over him. He received extensive internal injuries and died at the scene.
[11] Ms Tuwhangi, who was seated in the front passenger seat, received serious injuries and was airlifted to Waikato Hospital.
[12] The appellant was charged with dangerous driving causing death and dangerous driving causing injury.
[13] The second tranche of offending occurred between August and September 2019.
[14] On 30 August 2019 a Toyota motor vehicle was stolen in a burglary from an address in Hamilton. The following day at about 5.24 am the vehicle was stopped in Rotorua. The appellant was a passenger. She was arrested. A subsequent search of the appellant revealed a glass pipe, commonly used to consume methamphetamine, hidden in her clothing. A search of the vehicle revealed a small brown bag under the passenger’s seat where the appellant had been sitting. The bag contained 23 individually wrapped “bullets” or “tinnies” (cannabis head wrapped in tinfoil). The total weight of cannabis seized was 32.7 grams. Also in the centre console was a set of scales calibrated for fine measurements.
[15] The appellant was charged with unlawfully getting into a motor vehicle, possession of cannabis for sale and possession of utensils.
[16] On 20 August 2019 the District Court had released the appellant on bail in relation to the July 2019 offending. She was obliged to attend Court at 9 am on
3 September 2019 but failed to do so. The appellant was charged with failing to answer bail. On 31 August 2019 the Police released the appellant on bail in relation to the August 2019 offending. She was obliged to attend Court at 9 am on 5 September 2019 but again failed to do so.
District Court decision
[17] The Judge began by noting the appellant’s previous convictions of which there had been 15 since 2012. However, as his Honour pointed out, 14 of those convictions were between 2017 and late 2018. These included a significant number of convictions for driving while disqualified and being an unlicensed driver. He noted the appellant had two recent convictions for dishonesty and a previous conviction for possession of cannabis for supply. She also has convictions for breach of home detention and breach of community work, both in 2018.
[18] He then proceeded to discuss the various reports provided to him. He acknowledged the victim impact statement read by the family of the deceased. He noted that although the victim’s family was initially prepared to attend restorative justice and a restorative justice meeting had been scheduled, the appellant absconded while on compassionate bail, granted to attend her father’s tangi, and did not return. No meeting therefore took place. He noted the pre-sentence report which assessed the appellant as having a medium risk of harm in a general sense but a high risk in relation to driving related harm. The appellant’s re-offending risk was assessed as medium. The pre-sentence report also noted that the appellant was not remorseful, showed little insight and had minimised her actions.
[19] The Judge considered the key aggravating features of the offending as, first, that the appellant was driving a vehicle which she knew to be poorly maintained, second, that she was driving without a licence and in fact was a forbidden driver that had never held a driver’s licence, and third, that the offending caused the death of one person and seriously injured another. His Honour referred to a number of decisions in adopting an overall starting point of five years’ imprisonment.7 That starting point
7 See, for example, Hati v Police HC Palmerston North CRI-2009-454-35, 8 October 2009; R v Lawson [2017] NZHC 1051; R v Pora [2015] NZHC 1104; R v Stewart [2019] NZHC 1797; Richards v R [2017] NZCA 232; Scott v R [2014] NZHC 1598; and Ko v New Zealand Police [2012] NZHC 3312.
was uplifted by six months for the balance of the offending.8 A further uplift of four months was imposed to reflect the appellant’s previous driving related convictions and the fact that the offending occurred while she was subject to release conditions. One of these conditions had been to attend the Howard League Driver Education programme with a view to her obtaining a licence. She ignored that condition.
[20] A 20 per cent discount was awarded for the appellant’s guilty pleas resulting in an end sentence of four years and eight months’ imprisonment. This was imposed on the lead charge of dangerous driving causing death with shorter concurrent terms for the balance of the offending.9 Ms Maniapoto-Grant was also disqualified from driving for two and a half years.
Approach on appeal
[21] To succeed on an appeal against sentence the appellant must satisfy the appeal court that there has been an error in the imposition of the sentence and that a different sentence should be imposed.10 In all other cases, the court must dismiss the appeal.11 In this respect, the court will not simply substitute its own view for that of the original sentencing judge.12 If the sentence is within the range that can properly be justified by accepted sentencing principles, the court will typically dismiss the appeal.13 It will only intervene if the sentence is manifestly excessive or wrong in principle.14 The appeal court’s focus in this respect will be on the final sentence imposed rather than the process by which that sentence was reached.15
8 Given that the charges of possession of cannabis for supply, possession of the utensil, unlawfully getting into a motor vehicle, and two breaches of bail warranted a starting point of around 18 months to two years.
9 The charge of dangerous driving causing injury attracted a sentence of two years’ imprisonment, possession of cannabis for sale six months’ imprisonment, possession of the utensil one month imprisonment, unlawfully getting into a motor vehicle six months’ imprisonment and each breach of bail two months’ imprisonment.
10 Criminal Procedure Act 2011, s 250(2).
11 Section 250(3).
12 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30].
13 At [36].
14 At [30]–[35]. See also Te Aho v R [2013] NZCA 47 at [30].
15 Tutakangahau, above n12 at [36].
The appeal point
[22] The sole ground of appeal which Ms James advances on behalf of the appellant is that, had a cultural report been available at sentence, it would have warranted a discount in the range of 15 to 20 per cent. No issue is taken with the starting point, uplifts or discount allowed for guilty pleas.
The s 27 report and appellant’s submissions
[23] The cultural report details an unfortunately all too common background. The appellant is the fifth of 11 children. Her father was a patched and senior member of the Rogue chapter of the Mongrel Mob gang up until the time of his death which was itself the result of a culpable homicide. He was in and out of prison throughout the appellant’s life. Gang culture, drugs and alcohol were a feature of her upbringing, although Ms Maniapoto-Grant herself notes “some families are intergenerational with the gang life, mine was mild … we were not exposed heavily into my Dad’s world”. She describes “sometimes but not often” seeing “violence, drugs or alcohol in the extreme use, or even around us children”. On one occasion, she was caught up in a gun battle between gangs and was shot “straight through” her hand.
[24] However, the appellant had generally good relationships with her parents and particularly with her father who regarded her as the “apple of his eye”. She did not struggle academically at school and, as is apparent from her responses to the report writer, is clearly insightful and intelligent.
[25] The report writer identifies that Ms Maniapoto-Grant began smoking methamphetamine at the age of 25. Prior to the fatal car accident in July 2019 two of the appellant’s close friends had died. She attended their tangi. The offending occurred when the appellant was driving back from the second of these tangi. She had been smoking methamphetamine and drinking. She claims to have been in a distressed and emotional state. She was driving the vehicle because “she was not as intoxicated as the others”.
[26] Ms James submits that the s 27 report shows a clear nexus between the appellant’s upbringing/background and the offending. She submits that the following factors impaired the appellant’s choices and diminish her moral culpability:
(a)being raised in an environment where gang culture prevailed and where antisocial behaviours and attitudes were normalised;
(b)exposure to violence at a young age;
(c)exposure to heavy alcohol and drug use; and
(d)subsequent development of alcohol and methamphetamine addictions.
The respondent’s submissions
[27] For the respondent, Mr Davie submits that while social, economic or cultural deprivation may in appropriate cases be a mitigating factor there is, in the present case, insufficient linkage between the offender’s background and the offending.16 He submits that it is clear discounts are not automatically available and that “[s]ome evidence, not necessarily elaborate, [is] needed to establish the connection.”17 Moreover, he submits that while the appellant’s upbringing was challenging it was towards the lower end of the scale because:
(a)the appellant’s father was largely successful in insulating her from his lifestyle as a gang member during her childhood;
(b)although the appellant experienced some instability when she moved to Hamilton at 13, she had two parents who cared for her; and
(c)the most negative events in the appellant’s life, including being shot in the hand, developing a methamphetamine habit and the deaths of her two friends all occurred while the appellant was an adult, and “may not have” a significant connection to her upbringing.
16 Solicitor-General v Heta [2018] NZHC 2453, [2019] 2 NZLR 241 at [50].
17 Arona v R [2018] NZCA 427 at [59].
[28] Mr Davie accordingly submits that there is insufficient nexus between the appellant’s background and the July 2019 offending. At its core, the offending represented a “failure to problem-solve and to properly identify and assess risks”. There was nothing in the s 27 report to indicate that the appellant’s background prevented her from gaining problem-solving and risk identification and assessment skills. To the contrary, her intelligence, work history and ability to care for her father and manage his own addictions, indicates that she does have those skills but merely failed to use them.
Discussion
[29] I am unable to accept Mr Davie’s submission that an inadequate linkage has been demonstrated. The appellant clearly has drug and alcohol abuse problems. Although her methamphetamine habit appears to have developed relatively recently, at age 25 years, her issues with substance abuse generally long precede that. She was introduced to cannabis and alcohol at around 13 years of age. Within the home environment she was likewise exposed to excessive alcohol and drug consumption. Her father was a heavy drug user, Mongrel Mob member and criminal. In later years, she looked after her father when he was going about gang-related activities.
[30] In my view, early exposure to drugs, alcohol and gang life have sufficient causative connection to the present offending to be recognised in the sentencing process. At the time the appellant was returning from a tangi. She had been smoking methamphetamine and drinking alcohol. I accept Mr Davie’s submission that the appellant in essence should have known better and that she does not lack intelligence or the ability to assess risk. However, I consider her upbringing as partly responsible for her poor decision-making processes and that the way in which she abuses drugs and alcohol (probably the proximate cause of the crash) is likely to itself had its genesis in aspects of this upbringing. The cumulative effect of all the factors I have identified, in my view, ultimately bears on her level of culpability.
[31] The extent of any available discount must however be kept in proportion. Ms Maniapoto-Grant’s multiple past convictions for driving-related offending demonstrate a clear willingness to ignore any rules-based framework. She knows she
does not have a licence. She knows she should not drive. Yet she has chosen to do so on multiple occasions with now fatal consequences. She was aware that the vehicle she was driving was unlicensed, unwarranted and unsafe.
[32] Accordingly, I do not consider her culpability so diminished as to warrant a discount in the range of 15 to 20 per cent as proposed by Ms James. Her situation differs in this respect from the authorities referred to me such as Carr v R and Poi v R.18 The appellant is not unintelligent. She has shown some capacity in the past to rise above her upbringing, particularly in periods of paid employment. These factors necessarily limit the extent of any discount that is available under s 27.
[33] In these circumstances, I consider that an appropriate discount to reflect the matters raised in the s 27 report is in the range of 7.5 per cent to 10 per cent. I adopt 10 per cent, taking total discounts to 30 per cent on the Judge’s uplifted starting point of five years and 10 months’ imprisonment.
Result
[34] The application for an extension of time and application to adduce further evidence on appeal are granted.
[35]The appeal against sentence is allowed.
[36] In respect of the lead charge of dangerous driving causing death, I set aside the sentence of four years and eight months’ imprisonment. I substitute a sentence of four years and one month imprisonment.
[37]In all other respects I confirm the existing sentence.
[38] I urge Ms Maniapoto-Grant to now realise the potential obviously inherent in her.
Muir J
18 See Carr v R [2020] NZCA 357; and Poi v R [2020] NZCA 312.
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