Manning v The Queen

[2020] NZHC 626

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2020-404-000020

[2020] NZHC 626

BETWEEN

HOLLYMAE CAROL MANNING

Appellant

AND

THE QUEEN

Respondent

Hearing:	23 March 2020 (via telephone link)
Appearances:	J Grainger for the Appellant D Becker for the Respondent
Judgment:	24 March 2020

JUDGMENT OF WYLIE J

This judgment was delivered by me on 24 March 2020 at 2.15 pm

Registrar/Deputy Registrar

Date……………

Solicitors:           Public Defence Service, Auckland

Meredith Connell, Auckland

Introduction

[1]    On 13 December 2019 Ms Manning was sentenced by Judge D Sharp in the District Court at Auckland to three years, nine months’ imprisonment in relation to the following offences:1

(a)one charge of aggravated robbery;

(b)one charge of theft over $1,000;

(c)one charge of theft between $500 and $1,000;

(d)one charge of theft less than $500; and

(e)one charge of possession of methamphetamine.

[2]    Ms Manning appeals her sentence. She challenges only one component of the sentence – namely an uplift she received for the offences, other than the charge of aggravated robbery. She argues that a significant starting point was adopted by the Judge for the lead charge, and that a lesser uplift should have been imposed – in the order of two to three months – taking into account totality considerations.

[3]    The appeal is not opposed by the respondent. Further counsel for the respondent accepts that a reduction in the sentence of two to three months’ imprisonment would not amount to “tinkering”.

Relevant facts

[4]    On 27 September 2018 Ms Manning went to a service station and filled her vehicle with petrol. She then drove off without paying. Approximately three weeks later, she returned to the petrol station and paid for the petrol which she had taken.

[5]    Approximately a week later, Ms Manning committed an aggravated robbery. She was working as a sex worker, and she arranged with the victim to return to his

1      R v Manning [2019] NZDC 25363.

apartment. When she was there, she assisted two co-defendants to enter the victim’s apartment. The victim was restrained by one of Ms Manning’s co-defendants, and subjected to violence and threats. He was stabbed with a screwdriver through his bicep, punched multiple times in the face, and threatened with a knife. His possessions were taken by Ms Manning and another co-defendant. When the victim saw that his work-related property was being taken, he proposed withdrawing money from an ATM, if the offenders would leave his work-related property behind. He was taken under duress to multiple ATMs, where money was withdrawn, and given to Ms Manning’s co-offenders.

[6]    Ms Manning took no part in the physical violence. She did however assist in gathering the victim’s property. She was also present in the car when the victim was taken to withdraw the money from the ATMs, albeit that she did not physically accompany the victim to any ATM machines.

[7]    Ms Manning was released on bail in relation to the aggravated robbery. Whilst on bail she committed further offences. On 7 January 2019 she stole six pairs of underwear, valued at $840. These goods were not recovered. Three days later, on 10 January 2019, she was arrested for a bail breach. When she was arrested, 0.26 grams of methamphetamine was found in a bag belonging to her. On 17 January 2019, Ms Manning went to a supermarket, and attempted to take $1,424 worth of goods without paying for them. She was stopped, and the goods were recovered.

[8]    Ms Manning pleaded guilty to all charges that she faced. The guilty plea in relation to the aggravated robbery charge came at a later stage, but Ms Manning had earlier signalled her intention to resolve the matter, and the guilty plea came when a number of other more serious charges were withdrawn.

[9]    When the matter was before Judge Sharp, Ms Manning made available to the Court the following:

(a)two affidavits from her, providing her explanation for the offending. She said that she participated in the aggravated robbery after being compelled to do so by her co-defendants. She said that she was

threatened by them, and that she was stabbed in the knee by one of them;

(b)a psychological risk assessment report completed by a clinical psychologist, Mr van Rensburg;

(c)a Community Alcohol and Drug Assessment report completed in 2016; and

(d)a psychological report completed by a psychologist, Dr Allan.

[10]   It is apparent that Ms Manning has had a tragic personal background, involving historic trauma and intense and long-lasting methamphetamine addiction. I do not set this out in further detail. It is personal, and Ms Manning has a reasonable expectation of privacy in relation to the same.

[11]   It is noteworthy that Ms Manning actively sought a sentence of imprisonment, recognising that outside the confines of the custodial environment, she is unlikely to be able to rehabilitate, or to become a suitable mother for her children.

District Court decision

[12]   Judge Sharp recorded that the lead offence was the aggravated robbery. He discussed the circumstances of that offending in some detail, and the principles and purposes of sentencing. He noted that Ms Manning admitted her part in the offending, and that she had entered guilty pleas to the charges. The Judge referred to the victim’s impact statement. He referred to rehabilitation and reintegration, and to the need to treat Ms Manning in a way that is broadly consistent with similar cases. He noted that the offending involved planning and premeditation, and would not have occurred but for Ms Manning’s role. He was prepared to accept that Ms Manning may not have wanted the level of violence that was ultimately used, and that she acted under pressure.

[13]   The Judge was prepared to take into account as a mitigating factor the pressure that Ms Manning was subject to. He referred to relevant authorities, and took six years as his starting point sentence.

[14]   He then turned to consider Ms Manning’s personal circumstances. He noted the other offending, and considered that it required an uplift of six months. He also noted that the further offending occurred while Ms Manning was on bail, and that this justified a further three month uplift, taking the starting point sentence to one of six years and nine months’ imprisonment.

[15]   The Judge then considered personal mitigating factors. He noted that there was a direct link between Ms Manning’s methamphetamine addiction and her offending, and that there was clear evidence that Ms Manning was endeavouring to rid herself of her addiction to methamphetamine. He referred to the psychological reports, and noted that Ms Manning was suffering from post-traumatic stress disorder at the time. He commented that Ms Manning’s background was “the most severely deprived background that I have had the misfortune to have to consider for the purposes of reaching an appropriate sentence”. He accepted that Ms Manning was genuinely committed to recovery and rehabilitation, and that she has a family she wants to support. He also accepted that she was genuinely remorseful.

[16]   Taking these various matters into consideration, he reduced the starting point sentence by two years to one of four years and nine months’ imprisonment. He then allowed a further discount of 12 months for the guilty pleas, and adopted an end sentence of three years and nine months in relation to the aggravated robbery offending. He recorded that such sentence was consistent with the least restrictive outcome. He imposed concurrent sentences for the additional offending. He declined to make an order for reparation.

The appeal

[17]   The appeal is brought pursuant to s 244 of the Criminal Procedure Act 2011. The appeal must be allowed if the Court is satisfied that there has been an error in the

sentence imposed for any reason, and that a different sentence should be imposed. In any other instance, the Court must dismiss the appeal.2

[18]   An error will be established if the sentence is manifestly excessive or wrong in principle, or if there are exceptional circumstances. A sentence will be considered manifestly excessive if it is substantially or significantly more severe than it ought to have been, having regard to the seriousness of the offending and the culpability of the offender.3

[19]   The focus is on the end sentence rather than the process adopted to reach the end sentence.4 The Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles.

Analysis

[20]   As noted, Ms Manning disputes only the six month uplift that she was given for the lesser offences. She does not challenge the starting point on the lead charge of aggravated robbery, or the uplift that was given for the fact that she offended whilst on bail.

[21]   It was argued that all of Ms Manning’s offending is borne out of her longstanding addiction to methamphetamine. It was submitted that the theft of the underwear was to facilitate Ms Manning’s work as a sex worker, which she does to pay for her addiction to methamphetamine, and that the theft of groceries was also to pay for her methamphetamine addiction. It was noted that she ultimately paid for the petrol that she took, and that the goods stolen from the supermarket were recovered. It was emphasised that the total value of her offending was the theft of the underwear, resulting in an $840 loss.

[22]   The Sentencing Act 2002 requires the Court to consider the totality principle in sentencing for multiple offences. The Court is required to consider whether current or cumulative sentences should be imposed. The essence of the principle is that, in

2      Criminal Procedure Act 2011, s 250.

3      Tutakangahu v R [2014] NZCA 279, [2014] 3 NZLR 482.

4      Ripia v R [2011] NZCA 101.

arriving at the appropriate sentence for several offences, the sentencing Judge must not only consider each offence individually, but also assess the offender’s overall culpability and determine what effective sentence is appropriate for the totality of his or her conduct. The total end sentence should not be determined by sequentially adjusting the appropriate end sentence for each individual offence in order to fit the totality principle. Rather the analysis should be guided from the outset by an appreciation that the total period of imprisonment should be in proportion to the gravity of the overall offending.5

[23]   Here, Judge Sharp does not expressly mention totality, but nothing turns on that. He considered that the additional offending, over and above the aggravated robbery, required some uplift, which he fixed at six months. He did not however offer any explanation as to why he considered that this was appropriate.

[24]   I am not however persuaded that the uplift imposed by Judge Sharp has resulted in a sentence which was manifestly excessive. While the additional offending was modest, so was the uplift. I have considered the additional offending. In itself it would likely have attracted a sentence of six to nine months’ imprisonment.6

[25]   Further, I am not persuaded that even if I were to reduce the uplift to, say, three months, it would be appropriate to alter the sentence imposed. Notwithstanding the Crown’s concession, it seems to me that, in the context of an overall sentence of three years and nine months’ imprisonment, to reduce the sentence by three months, is tinkering.

[26]Accordingly, the appeal is dismissed.

Wylie J

5      R v Bradley [1979] 2 NZLR 262 at 263; Haywood v R [2015] NZCA 551; Ogden v R [2016] NZCA 214 at [64].

6      Samuels v Police [2019] NZHC 694.