Manoah v Police

[2023] NZHC 3279

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI 2023-404-379

[2023] NZHC 3279

BETWEEN

KANE JOSEPH NORMAN MANOAH

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

Further submissions:

16 October 2023

30 October and 2 November 2023

Appearances:

M Hamlin for the appellant

M Mortimer-Wang for the respondent

Judgment:

20 November 2023

JUDGMENT OF CAMPBELL J

[Appeal against Sentence]

This judgment was delivered by me on 20 November 2023 at 2.00 pm

Registrar/Deputy Registrar

MANOAH v NEW ZEALAND POLICE [2023] NZHC 3279 [20 November 2023]

[1]    Mr Manoah pleaded guilty to charges of burglary (x2), unlawfully interfering with a motor vehicle, receiving over $1,000, unlawfully being in an enclosed yard, driving with excess breath alcohol, dangerous driving, and failing to stop. On 21 July 2023, Judge K Glubb sentenced Mr Manoah to 26 months’ imprisonment. Mr Manoah appeals. He says that the end sentence should have been less than 24 months’ imprisonment and that a non-custodial sentence would have been appropriate.

The offending

[2]    At about 8 am on 8 August 2021, Mr Manoah entered a dwelling on Kitenui Avenue, Mt Albert. He entered through an open door on the side of the property. He went into a bedroom and living area. He searched for valuables, taking a handbag and wallet which contained bank cards.

[3]    At about 6.14 am  on 17 November 2021, Mr Manoah drove to  a property  on Norman Road, Titirangi. He entered a carport at that property, took three boxes  of glass fittings and put them in his car. They were valued at $500.

[4]    At about 8 am on 21 November 2021, Mr Manoah went to a property on Awaroa Road, Sunnyvale. He entered the property by a long right of way. At the property he tried to open the front driver’s door of a car that was parked there. He left on foot after being observed by a neighbour.

[5]    Later that morning, Mr Manoah went to a property on Simpsons Road, Henderson Valley. He walked onto the property looking into cars that were parked there. He picked up scrap metal stored in the carport of the property but was disturbed by the homeowners and left on foot.

[6]    On 3 May 2022, some  equipment valued at  about $1,300 was stolen from    a residential property in West Auckland. That same day, Mr Manoah exchanged that equipment at a Cash Converters for $250.

[7]    At about 7.30 pm on 28 May 2022, Mr Manoah was driving a car on State Highway 1 at Takanini. Police signalled the car to stop as it passed. Mr Manoah failed to stop for red and blue lights and a siren. Police abandoned the pursuit in Manurewa.

Mr Manoah continued onto State Highway 20 and increased his speed to approximately 165 kilometres per hour. He made multiple lane changes. He left the motorway at Queenstown Road, where he overtook other motorists on the wrong side of the road. He continued to Hillsborough Road, where he overtook and undertook other motorists using the entire road. His car was spiked by Police on White Swan Road. After the car came to a stop, Mr Manoah was found hiding on a nearby property and arrested. Breath test procedures returned a reading of 530 micrograms of alcohol per litre of breath.

District Court Judgment

[8]    Judge Glubb outlined Mr Manoah’s offending and the impact it had had on his victims.  The  Judge  said  that  the  aggravating  factors  of  the  offending  were   Mr Manoah’s planning and premeditation, the repeat nature of the offending, and that he had entered a dwelling.

[9]    Judge Glubb noted Mr Manoah’s conviction history. Mr Manoah had no less than 19 previous convictions for burglary, 11 for dishonesty, eight for violence, four for receiving, four for either unlawfully being in a building or an enclosed back yard, and three for dangerous  or reckless driving.   Mr Manoah had shown an inability    to comply with community-based sentences. He had four convictions for breaching release conditions, one for breaching home detention, three for failing to stop, two for failing to answer bail, and one for driving whilst disqualified.

[10]   His Honour also recorded that throughout Mr Manoah’s current offending he was subject to a sentence of intensive supervision that had been imposed upon him  in the District Court for very similar offending. The Judge who had imposed the sentence of intensive supervision, Judge Bennett, had observed in her sentencing notes that  Mr Manoah  had  turned  a corner.  Judge Glubb  said  that  he recalled  making a similar comment to Mr Manoah when he had sentenced him on 23 March 2020. Judge Glubb observed: “yet here we are again”.

[11]   The Judge noted that Mr Manoah was 38 years of age. The pre-sentence report said that Mr Manoah had never fully engaged with a community-based sentence and

had lacked motivation to change his lifestyle, but that he had a strong desire to change his pathway and address his offending factors.

[12]   The pre-sentence report writer observed that Mr Manoah was now in a healthy relationship with his partner. The Judge noted that, for the first time, Mr Manoah had his own home and that he was now in a stable environment with employment and was actively addressing his offending-related factors. The Judge noted various rehabilitative activities in which Mr Manoah had recently been engaged. The Judge also referred to Mr Manoah’s difficult upbringing, as set out in a report prepared under s 27 of the Sentencing Act 2002.

[13]   In reaching a starting point for Mr Manoah’s offending, Judge Glubb referred to the Court of Appeal’s judgment in Arahanga v R.1 That case, the Judge said, talked about starting points in the range of 18 to 30 months for domestic burglaries. The Judge said that Arahanga was looking at first offending, whereas Mr Manoah was not a first offender.

[14]   The Judge began with the burglary at Kitenui Avenue,  Mt Albert.  Noting  Mr Manoah’s “very significant history of  burglary offending”, his Honour adopted  a starting point of 30 months’ imprisonment. He imposed an uplift of 10 months for the balance of Mr Manoah’s dishonesty offending and three months for the driving- related offending (dealing with it in totality). This gave an overall starting point of  43 months’ imprisonment.

[15]   The Judge then gave a further uplift of two months for Mr Manoah’s previous conviction history (excluding the burglary-related convictions), being satisfied they were recent and relevant convictions. He said this took him to 45 months’ imprisonment.

[16]   The Judge allowed 20 per cent credit for Mr Manoah’s guilty plea and 15 per cent for Mr Manoah’s background. He applied these credits to his running total of 45 months’ imprisonment.2 The Judge also allowed credit for the time that Mr Manoah

1      Arahanga v R [2012] NZCA 480.

2      These credits should have been applied to the overall starting point of 43 months’ imprisonment:

Moses v R [2020] NZCA 296, [2020] 3 NZLR 583.

had spent on bail. Mr Manoah had spent six weeks on electronically monitored (EM) bail, followed by nine months on ordinary bail, much of which was subject to a 24- hour curfew. Judge Glubb allowed an overall credit of three months.

[17]   These various credits took the Judge to an end sentence of 26 months’ imprisonment.

Grounds of appeal

[18]    Mr Hamlin, counsel for Mr Manoah, says the end sentence was manifestly excessive. In particular, Mr Hamlin submits:

(a)The starting point for the Kitenui  Avenue  burglary  was  too  high. Mr Hamlin submitted that Judge Glubb erred in taking into account Mr Manoah’s conviction history when fixing that starting point.

(b)Judge Glubb failed to have adequate regard to all the defendant’s personal factors. A discount ought to have been awarded for his rehabilitation efforts and remorse.

(c)The discount for time on restrictive bail conditions allowed by the Judge was inadequate. Mr Manoah ought to have been afforded four to five months’ credit.

(d)Taking these matters into account, the Judge did not impose the least restrictive outcome in the circumstances. A non-custodial sentence would have been appropriate.

Principles governing sentence appeals

[19]   For a sentencing appeal to succeed the sentence generally must be shown to be manifestly excessive or wrong in principle.3 The Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing

3      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27] and [31]–[35].

principles. Whether a sentence is manifestly excessive generally depends on the end sentence imposed, rather than the process by which it is reached.4

Was the starting point for the Kitenui Avenue burglary too high?

[20]   Mr Hamlin submitted that the Judge erred in taking into account Mr Manoah’s previous burglary convictions when setting the starting point for the Kitenui Avenue burglary. He  submitted  that  the  Judge’s  approach  reflected  an  approach  shown in a High Court decision Senior v Police for recidivist burglary offenders.5 Mr Hamlin said that the Court of Appeal had said that it was “abundantly clear” that previous convictions constitute an aggravating factor personal to the offender, not an aggravating feature of the instant offending.6

[21]   Mr Mortimer-Wang, counsel for the Police, agreed with Mr Hamlin’s submissions. He accepted that the correct starting point for the Kitenui Avenue burglary should have been 18 months’ imprisonment.

[22]   I accept both sets of these submissions. A starting point of 18 months’ imprisonment would be consistent, as Mr Mortimer-Wang submitted, with the guidance in Arahanga of starting points of burglaries of dwellings of between 18 and 30 months’ imprisonment, given the absence of aggravating factors in the Kitenui Avenue burglary.

[23]   Both Mr Manoah and the Police accepted the 13-month uplift that Judge Glubb gave for the balance of Mr Manoah’s offending. Given that the starting point for the Kitenui Avenue burglary has been reduced from 30 to 18 months, the totality assessment is different. A 13-month uplift is generous to Mr Manaoh, as the driving offending was particularly serious. However, it is within range, and I will not disturb it.

[24]Accordingly, I will adopt an overall starting point of 31 months’ imprisonment.

4 At [36].

5      Senior v Police (2000) 18 CRNZ 340 (HC).

6      Stuart v R [2021] NZCA 539 at [15].

What uplift was appropriate for Mr Manoah’s previous convictions?

[25]   Mr Hamlin accepted that the Judge’s two-month uplift for Mr Manoah’s previous conviction history (other than burglary convictions) was in range. He accepted that, once the starting point for the Kitenui Avenue burglary was corrected by removing any consideration of prior burglary convictions, there needed to be an uplift for those convictions. He submitted the appropriate uplift was two months. Thus, he proposed a total four-month uplift for prior convictions.

[26]   Mr Mortimer-Wang submitted the uplift for all prior convictions should be in the order of 10 per cent of the adjusted starting point. That would be in the region of three months’ imprisonment.

[27]   At the hearing, I raised with counsel that in the case of recidivist burglars, uplifts for prior convictions were often in the region of 30 to 50 per cent, sometimes higher.7 I ventured that an uplift in the region of 30 per cent appeared to be justified in Mr Manoah’s case. Mr Hamlin asked for leave to file further submissions on the point. I granted leave to both counsel to do so.

[28]   Mr Hamlin’s further submissions referred in considerable detail to several cases. These tended to confirm my impression that uplifts for prior convictions were often in a range of 30 to 50 per cent.8 Of course, the appropriate uplift will depend  on matters such as the number of prior burglary or other relevant convictions. Here, Mr Manoah has 19 previous convictions for burglary, 11 for dishonesty, eight for violence, four for receiving, four for either unlawfully being in a building or an enclosed back yard, and three for dangerous or reckless driving. I consider that these are so extensive and relevant to the current offending that an uplift of 30 per cent     is necessary, as the prior convictions indicate the culpability of Mr Manoah for the current offending, reflect the need for deterrence, and show a heightened risk of reoffending.

7      R v Columbus [2008] NZCA 192 (66 per cent); Jones v R [2012] NZCA 273 (50 per cent); Moeroa v Police [2015] NZHC 2226 (80 per cent); and Heriwini v Police [2015] NZHC 2807 (25 per cent).

8      As well as the cases set out in the previous footnote, Mr Hamlin’s cases included: Vale v Police [2020] NZHC 3520 (33 per cent); Matika v Police [2013] NZHC 2806 (30 per cent); and Baller v Police [2018] NZHC 2709 (33 per cent).

Did the Judge fail to have adequate regard to all of Mr Manoah’s personal factors?

[29]   Mr Hamlin submitted that the Judge should have given modest credit of five per cent to recognise Mr Manoah’s remorse and efforts at rehabilitation.

[30]   I accept that there is some evidence of remorse and even more evidence that Mr Manoah is finally taking some concrete steps towards rehabilitation. I consider that a credit of five per cent against the overall starting point was warranted for these matters.

[31]   However, any such credit is cancelled out by two matters that Judge Glubb did not take into account. First, all of Mr Manoah’s offending occurred whilst he was on a sentence of intensive supervision. Secondly, his receiving offending and his driving offending occurred whilst he was on bail on his earlier charges. I consider that these factors would have warranted an uplift of five per cent against the overall starting point.

Was the credit for time on restrictive bail conditions allowed by the Judge inadequate?

[32]   On 24 November 2021, when the burglary charges were laid, Mr Manoah was granted ordinary bail on a 24-hour curfew. He remained on that bail for six months, until further charges were laid on 30 May 2022 and he was taken into custody.

[33]   Mr Manoah was then granted EM bail to a Salvation Army facility on 19 July 2022. About six weeks later, on 5 September 2022, Mr Manoah was granted the removal of the electronic monitoring to be able to relocate to Tauranga to a property that was unable to allow EM bail owing to signal issues. His bail was replaced with ordinary bail subject to a 24-hour curfew with exceptions for rehabilitation, appointments and employment. He was subject to that 24-hour curfew for three months. On 8 December 2022, the curfew was relaxed to a night-time curfew to allow Mr Manoah to work. On 9 March 2023, the overnight curfew was deleted as it interfered with Mr Manoah’s employment.

[34]   In summary, Mr Manoah spent six weeks on electronically monitored (EM) bail, nine months on ordinary bail subject to a 24-hour curfew, three months on ordinary bail subject to an overnight curfew, and four months on bail with no curfew.

[35]   Judge Glubb allowed an overall credit of three months. Mr Hamlin submitted that a credit of four to five months was appropriate.

[36]   Mr Manoah’s brief time on EM bail justified a credit of no more than three weeks. The Judge effectively gave Mr Manoah credit of just over two months for the nine months he had spent on ordinary bail subject to a 24-hour curfew. Given that credit for EM bail subject to tight curfews is generally around 50 per cent, I see no error in allowing about 25 per cent for the time spent on ordinary bail. I therefore see no error in the Judge’s overall allowance.

Was the sentence manifestly excessive?

[37]   That I consider that Judge Glubb made some errors in constructing the sentence does not mean that the appeal should be allowed. The ultimate question is whether the sentence is manifestly excessive.

[38]   I consider the overall starting point should have been 31 months’ imprisonment. Against that I consider the following adjustments should have been made:

(a)Uplift for previous convictions: 30 per cent.

(b)Uplift for offending while subject to a sentence of intensive supervision and while on bail: five per cent.

(c)Credit for guilty plea: 20 per cent.

(d)Credit for rehabilitation prospects: five per cent.

(e)Credit for personal background: 15 per cent.

(f)Credit for time on bail: three months.

[39]   This gives an end sentence of 26 and a half months’ imprisonment. It follows that the Judge’s end sentence of 26 months’ imprisonment was not manifestly excessive. This also means that the possibility of a non-custodial sentence does not have to be considered.

Result

[40]The appeal is dismissed.

Campbell J