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…

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: [2023] NZHC 3279
Decision Date: 20 November 2023

CaseChat Overview and Summary

Mr Manoah appealed against his sentence of 26 months’ imprisonment for various offences, including burglary and dangerous driving. He argued that the sentence should have been less than 24 months and that a non-custodial sentence would have been appropriate. The High Court considered whether the sentence was manifestly excessive or wrong in principle. The court found that while the starting point for the burglary was set too high, the overall sentence was not manifestly excessive. The court noted that Mr Manoah had a significant history of offending, with 19 previous convictions for burglary, 11 for dishonesty, eight for violence, four for receiving, four for unlawfully being in a building or an enclosed back yard, and three for dangerous or reckless driving. Despite this, the court found that there was some evidence of remorse and efforts at rehabilitation, and that Mr Manoah was now in a stable environment with employment and was actively addressing his offending-related factors.

The court found that the appropriate uplift for Mr Manoah’s previous convictions was 30 per cent, and that the Judge should have given credit for Mr Manoah’s remorse and efforts at rehabilitation, as well as for the time he had spent on bail. However, the court found that the overall sentence of 26 months’ imprisonment was not manifestly excessive and dismissed the appeal. The court concluded that the sentence was within the range that can properly be justified by accepted sentencing principles.

Orders