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…

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.

Continue reading Manning v The Queen

Details

AGLC: Manning v The Queen [2020] NZHC 626
Case: [2020] NZHC 626
Decision Date: 24 March 2020

CaseChat Overview and Summary

In the High Court of New Zealand, Hollymae Carol Manning appealed against her sentence imposed by Judge Sharp in the District Court at Auckland. Manning was sentenced to three years and nine months' imprisonment for multiple charges, including aggravated robbery, theft, and possession of methamphetamine. Manning challenged the six-month uplift imposed for the lesser offences, arguing that it was excessive and should have been two to three months. The Crown did not oppose the appeal and conceded that a reduction of two to three months in the sentence would not amount to "tinkering."

The legal issues before the court were whether the six-month uplift for the lesser offences was manifestly excessive or wrong in principle, and if there were exceptional circumstances to reduce the sentence. The court considered the totality principle, which requires the total end sentence to be proportionate to the gravity of the overall offending. The court also considered the Crown's concession that a reduction of two to three months in the sentence would not amount to "tinkering."

The court dismissed the appeal, holding that the six-month uplift for the lesser offences was not manifestly excessive or wrong in principle. The court found that the additional offending was modest and so was the uplift. The court also noted that even if the uplift was reduced to three months, it would still be tinkering in the context of an overall sentence of three years and nine months' imprisonment. The court held that the sentence imposed was appropriate and did not require alteration.

The court did not make any final orders as the appeal was dismissed.

Orders