Manuel v Police
[2021] NZHC 783
•12 April 2021
IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE
CRI-2021-488-000009
[2021] NZHC 783
BETWEEN SAMSON THOMAS MANUEL
Appellant
AND
NEW ZEALAND POLICE
Respondent
Appearances: S J Ross for the Appellant
S T Patia for the Respondent
Judgment:
12 April 2021
JUDGMENT OF WALKER J
This judgment was delivered by me on 13 April 2021 at 4.30 pm Registrar/Deputy Registrar
SAMSON THOMAS MANUEL v NEW ZEALAND POLICE [2021] NZHC 783 [12 April 2021]
[1] Mr Manuel pleaded guilty to a charge of injuring with intent to injure.1 He was sentenced to 20 months’ imprisonment.2 Mr Manuel appeals his sentence on the grounds that it is manifestly excessive because the starting point was too high and insufficient credit was given for his guilty plea.
Facts
[2] The facts are taken from the summary of facts to which Mr Manuel pleaded guilty.
[3] On 5 April 2020, Mr Manuel and a younger family member were celebrating Mr Manuel’s 21st birthday at Mr Manuel’s home address. This was during the nationwide Level 4, Covid-19 lockdown.
[4] The pair consumed alcohol. In the early hours of the morning they went for a walk.
[5] As they walked past a neighbour’s house, a verbal altercation took place with occupants of the address. They walked on. They passed the same house on their return home. The verbal altercation started up again.
[6] One of the occupants of the house approached them. He asked them to leave the property. Mr Manuel’s younger family member was knocked over and fell to the ground briefly. Mr Manuel, on seeing this, challenged the occupant to a fight. He struck the victim a number of times to the head, causing him to fall to the ground. The younger family member then produced a knife and wounded the victim by slashing him across his abdomen. A second occupant of the house came to assist. He restrained
1 Crimes Act 1961, s 189(2): carrying a maximum penalty of five years’ imprisonment.
2 Mr Manuel was also sentenced on the same day for two unrelated offences to which he pleaded guilty. They were possession of an offensive weapon (knife) under s 202A(4)(a) of the Crimes Act: carrying a maximum penalty of three years’ imprisonment; and resisting arrest under s 23(a) of the Summary Offences Act 1981: carrying a maximum penalty of three month’s imprisonment or a fine not exceeding $2000. There is no appeal in respect of the sentence imposed for this offending.
Mr Manuel. The younger family member then stabbed the second occupant in the buttocks with the knife. Police and ambulance were called. Mr Manuel was located at his home. He was extremely agitated and aggressive towards police. He was arrested at the scene.
[7] Materially, Mr Manuel’s assault for which he was sentenced involved only the punches to the head. His victim sustained a fractured eye socket and was treated for concussion.
[8] Mr Manuel also faced two other charges relating to different events. As stated, they are not part of the sentencing appeal.3 The sentence imposed in respect of those offences was two months, to be served concurrently. 4 However, they shed light on Mr Manuel’s state of mind. Given the dearth of information available in this appeal, for reasons I will come to, I set out these background matters also.
[9] At the time of the second set of charges, Mr Manuel was wanted by Police after a warrant for his arrest had been issued by the courts for failing to comply with bail terms. Police had been called to his home following an altercation. Mr Manuel was located at the end of the street. He had entered a cattle sales yard, climbed on top of a railing and produced a knife from his pocket. He gestured towards the Police with the knife, and yelled abuse at them. He then climbed down and started to walk back towards his home address. As he walked away, he was still yelling abuse and gesturing towards the Police with the knife. He eventually threw the knife over a fence and told Police he was going home. He remained abusive and uncooperative. Eventually, he was pepper sprayed and arrested. These events gave rise to the charges of possession of an offensive weapon and resisting arrest. Mr Manuel pleaded guilty to those charges at a very early stage.
3 See footnote 2 above.
4 There was some confusion at the hearing whether the sentence was cumulative or concurrent. Paragraph [31] of the Sentencing Notes states that the Judge “[is] going to direct that all terms are to be served concurrently. In other words, all at the same time.”
District Court decision
[10] Judge G L Davis considered that the aggravating factors relevant to the offending were the nature of the violence (blows to the head), the seriousness of the injuries sustained (a fractured eye socket and other general injuries), and the fact there were multiple (two) attackers. He rejected the Crown submission that there was any premeditation to the events which unfolded that night, describing it as spontaneous. He said that:5
I do not see this as being premeditated as such. I see it as being a spontaneous attack and it might well even have been initiated by the other side. It appears that abuse has been hurled probably at both sides and both sides have got carried away as I see it, but the most significant here is the actual violence.
[11] Weighing these factors and having regard to the offending in a comparator case, Eden v R,6 the Judge determined that the appropriate starting point was two years.
[12] The Judge gave a discount of 15 per cent for what he described as a late guilty plea. That was the equivalent of four months, reducing the term of imprisonment to 20 months.
[13] No other discounts in respect of Mr Manuel’s personal mitigating circumstances were given however the concurrency of the sentence imposed for unrelated offending could be seen as generous. The Judge was understandably frustrated by Mr Manuel’s refusal to engage with either the probation service or mental health services. That left the Judge in an invidious situation. He specifically recorded that this meant “[a]ny other sentencing option that could be available to the Court is gone.”7 By this, I understood him to mean the option of assessing suitability for a non- custodial sentence. On that score I note from the scant information Mr Manuel did provide that he was reluctant to seek home detention.
[14] The Judge recorded his concern about Mr Manuel’s significant previous criminal history in Australia as a youth offender, and the emerging pattern, but did not take these into account as aggravating factors. Details of that offending were not
5 R v Manuel [2021] NZDC 2180 at [15].
6 Eden v R [2011] NZCA 54.
7 Manuel, above n 5, at [27].
provided to the Judge other than the conviction history. No information was provided about rehabilitative steps taken, if any, in Australia.
[15] Finally, the Judge imposed six months’ standard release conditions and six months’ special release conditions as set out in the pre-sentence report. They were:
(a)No contact with any of the victims of the offending;
(b)To attend an assessment for alcohol and drug treatment as directed by the Probation Officer;
(c)To undertake an assessment for anger management as directed by the Probation Officer; and
(d)Not to purchase or possess or consume any alcohol or illicit substances for the duration of the release conditions.
Principles on appeal
[16] Appeals against sentence are allowed as of right by s 244 of the Criminal Procedure Act 2011 (“the Act”). They must be determined in accordance with s 250 of the Act. An appeal against sentence may only be allowed if this Court is satisfied there has been an error in the sentence and that a different sentence should be imposed.8
[17] As the Court of Appeal said in Tutakangahau v R, a court “will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles”.9
[18] It is the end sentence which is important from the appellate court’s perspective, and not the method by which it was reached. In short, whether a sentence is manifestly
8 Criminal Procedure Act 2011, ss 250(2).
9 Tutakangahau v R [2014] NZHC 556 at [10] as cited in Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
excessive is to be assessed in terms of the sentence given, rather than the process by which the sentence is reached.10
Submissions
Appellant’s submissions
[19] Mr Ross, on behalf of Mr Manuel, challenges the starting point of 24 months in three ways. He submits that the injury caused by Mr Manuel was not sufficiently serious to require medical intervention; there were not multiple attackers and that the Judge did not take into account the element of provocation for sentencing purposes.
[20] Mr Ross acknowledges that the blows to the victim’s face caused actual bodily harm which was more than superficial, however, the victim discharged himself from hospital within hours of admission. There is no victim statement indicating any short- or long-term impact from the injury suffered.
[21] He contends that Mr Manuel was not ultimately facing charges as a party to the offending by the younger family member but was going to the aid of that associate by challenging the attacker. This, he says, sets the circumstances apart from multiple attacker situations where more than one attacker simultaneously attacks a victim or with offending as a party. The actions of the other offender need to be set apart from Mr Manuel’s offending since his conviction does not acknowledge involvement in those actions.
[22] As to provocation, Mr Ross submits that the victims’ attack on the younger family member was an “operative cause” of the eruption of violence which ought to have been taken into account. Collectively, these factors mean this is a band 2 case based on the factors set out in Nuku v R and R v Taueki because it involved several punches with moderate injury.11 He advocates a starting point in the range of 15–18 months rather than the 24 months which the Judge determined.
10 Ripia v R [2011] NZCA 101 at [15].
11 See Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39; and R v Taueki [2005] 3 NZLR 372 (CA).
[23] Mr Ross also explained the timing of the guilty plea as dependent on the Crown’s resolution of the charges against the younger family member. This was seven days before trial, the timing of which was outside Mr Manuel’s control. It was accepted almost immediately by the appellant.
Respondent’s submissions
[24] The Crown’s written submission supported the starting point of 2 years as within the available range. At the hearing, Ms Patia acknowledged (fairly in my view) this was at the sterner end of the range which could be anywhere between 18 months and 2 years. She submitted that a fractured eye socket is a serious injury reflecting a forceful blow or blows to the face. She also relies on the younger family member’s involvement in the incident as “part of the narrative of the offending” and that the Judge’s assessment of the events as involving multiple attackers was accurate. Ms Patia characterises Mr Manuel’s response as retaliatory rather than a product of provocation.
[25] The Crown submits that a 15 per cent discount for guilty plea is appropriate in the circumstances. During the hearing Ms Patia rightly acknowledged that this is at the low end of the available range given the complexity of the procedural background.
Analysis
[26] The critical issue is whether the overall starting point of 24 months is within range for the offending involved.
[27] It was confirmed to me at the hearing that only two comparator cases were provided to the District Court Judge at sentencing. These were Eden v R and New Zealand Police v Filipo.12
[28] In Eden, the offender and victim were both teenage males who were intoxicated at the time of the offending. The assault involved a prolonged attack in which the victim was punched and kicked on the ground. According to the summary of facts,
12 See Eden, above n 6; and New Zealand Police v Filipo [2016] NZHC 2573.
the offender then jumped with two feet together on the victim’s head while he lay on the ground, leaving him bleeding and unconscious. He was hospitalised but discharged himself within hours. The Court there found elements of provocation and premeditation. The victim had been targeted by the offender in retaliation for a fight which had occurred earlier that same evening. The sentencing Court’s starting point of two years with an uplift of six months for the “huge potential for harm by stomping on someone’s head” was approved by the Court of Appeal.13
[29] In my assessment, there were features in Eden which made it a significantly more serious assault. In particular, the elements of provocation and premeditation in that case alongside the continued assault when the victim was on the ground by jumping on his head.
[30] In Filipo, the Court allowed an appeal against sentence in favour of the police. In its assessment of starting point, it was said that the offending warranted a starting point of a minimum period of 18 months’ imprisonment, with an uplift to two and a half years’ imprisonment due to his offending against other victims. The charges were injuring with reckless disregard, assault with intent to injure and two charges of male assaults female. The defendant had punched the victim, knocking him unconscious. He then stomped on his head about four times. The victim suffered bruising, scratches and a severe concussion. He had to take six months off work and stop playing rugby. The victim had fallen unconscious partway through the attack and Mr Filipo was the instigator of the attack. Again, the present case involves significantly less serious offending in my assessment.
[31] I have had the benefit of reviewing other cases which the Judge did not have. These assisted my assessment.
[32] In Te Puni v Police, the offender was a 22 year old male who attacked another young male who he had never previously met.14 The assault was a single violent punch to the head, known as a “king hit”. The victim fell unconscious to the ground. It was
13 R v Eden DC Dunedin CRI-2009-002-0610, 3 August 2010 at [16] as cited in Eden, above n 6, at [5].
14 Te Puni v New Zealand Police [2019] NZHC 762.
the offender who had engaged the victim in conversation and then punched him. The victim suffered permanent brain damage. The starting point imposed was 24 months with a final custodial sentence of 13 months and two weeks. The sentence was upheld on appeal. Not only was the injury suffered much more serious in Te Puni but there was also no provocation. The offender was the instigator of the violence.
[33] In Rewa v New Zealand Police, the offender was a 25 year old male who punched another male in the face, knocking him unconscious.15 The offender was intoxicated and responded violently when the victim, in his fifties, shouted out to him asking which bars were still open. The offender deliberately crossed the road to attack the victim. The victim sustained serious injuries and required reconstructive surgery for a fractured eye socket and 12 stitches to a laceration at the back of the head. The High Court on appeal held that the starting point of two years and six months was too high. It substituted a starting point of two years and one month.16 Although this only involved one punch, it was an unprovoked assault with the victim in no way provoking or challenging the offender.
[34] Finally, in Elizalde v New Zealand Police, the offender was an intoxicated 34 year old male.17 He assaulted another male outside a public bar. He punched the victim once on the side of the face, breaking his jaw in two places, having walked up to him while the victim was not looking at him. The injury required reconstructive surgery involving metal plates and the victim was unable to work for two weeks. On appeal, the Court found that the blow to the head was the only seriously aggravating factor and held that the assault was in the lower range of Band 2 in Nuku.18 The starting point of two years and six months set by the sentencing court was held to be out of step with comparator cases and a starting point of 21 months’ imprisonment was imposed.19
[35] Sentencing is an individual exercise but these comparator cases provide assistance in assessing the appropriate starting point. I am persuaded that the two year
15 Rewa v New Zealand Police [2015] NZHC 2459.
16 At [18].
17 Elizade v New Zealand Police [2015] NZHC 959.
18 See Nuku, above n 11.
19 Elizade, above n 17, at [21].
starting point here was too high having regard to those cases and three factors in particular: the nature and circumstances of the confrontation and the way it erupted, particularly the instigation by the victim; the moderate injury inflicted by the punches; and that the characteristics of a multiple attacker assault rather than offending by one individual were not clearly present in the way identified in Taueki. In Taueki the rationale is where victims are outnumbered by assailants or where groups of assailants coordinate an attack using strength of numbers to overpower the victim, rather than offending by one individual, a greater sentence is warranted. Here, the sequence as reported in the agreed summary of facts is that Mr Manuel challenged the victim after seeing his younger family member knocked over. The assault with the knife by that family member came afterwards.
[36] I do not minimise the seriousness of the overall injuries suffered by the victim, which, due to the actions of the other offender, were significant. However, the appropriate starting point in this case is focused on the actions of Mr Manuel, rather than the other offender.
[37] I therefore conclude that the starting point of 24 months was out of step. I consider the appropriate starting point to have been 18 months’ imprisonment.
Guilty plea discount and personal factors
[38] Mr Ross’ explanation of the procedural context and how it impacted the timing of the plea also persuades me that the guilty plea discount given was low. I too am hamstrung by the absence of information showing a causal link between personal factors and the offending. However, I have had the benefit of more time to consider all the background information on the court file. I reach the view that a composite discount for the guilty plea and a modest discount for personal factors ought to be 25% (20% for the guilty plea and 5% for other factors). I now set out these factors.
[39] Mr Manuel was 21 years old at the time of the offending. He had a criminal history in Australia and had been deported as a consequence. While this does not excuse offending in any way, people who are brought back from Australia through deportation face particular challenges. I pause to note here two positive features of
Mr Manuel’s circumstances. The first is that Mr Manuel remains supported by family members, two of whom (a brother and sister) attended the hearing. This provides some optimism that Mr Manuel will continue to be supported in his rehabilitation. Secondly, Mr Manuel managed to live in New Zealand after deportation for some 18 months without offending.
[40] Offending in Australia bears on the extent to which a discount for youth is appropriate. It tempers the extent of any discount.20 Youth should ordinarily be taken into account because incomplete cognitive development, susceptibility to impulsive actions and a lack of understanding of consequences affects culpability.21 At the age of 21, Mr Manuel may be at the upper end of the youth range for these purposes but it is still relevant and a modest discount ought to be factored in although not expressly argued for on appeal.
[41] Then there is the factor of Mr Manuel’s mental health. Youth and mental health discounts may be considered together providing that each mitigating factor is properly allowed for in the process.22
[42] A mental health disorder can be potentially relevant to sentencing in three ways:23
First, if causative of the offending, it may reduce the moral culpability (if not legal responsibility) of the offender in terms of the first stage of sentencing. This is because mental illness can impair the rational choice to offend. Second, for the same reason, it may also bear on the weight to be given to the deterrent aspect of sentencing at stage one. Third, the disorder may mean that an otherwise appropriate sentence would be disproportionately severe because of consequential impairment in coping with prison life, being a mitigating circumstance personal to the offender.
[43] The precise role of Mr Manuel’s mental health in his offending is impossible to ascertain. However, I consider that his mental health issues would have contributed to his disengagement in the sentencing process.24 The exact nature of any mental
20 Roberts v R [2020] NZCA 441 at [25].
21 See Churchward v R [2011] NZCA 531, (2011) 25 CRNZ 446.
22 Roberts, above n 20, at [23].
23 At [36] (footnotes omitted).
24 Mr Manuel’s counsel suggests there were discussions about putting off sentencing until further information could be obtained but Mr Manuel himself pressed counsel to proceed.
illness is not properly known at this point (an unsatisfactory position) and Ms Patia correctly submits that a cautionary approach is required. But my review of the court file indicates:
(a)Mr Manuel had only recently returned from a stay in a mental health unit (Tūmanako Inpatient Unit at Whangārei Hospital) before the index offending;
(b)Police Opposition to Bail documents record that Mr Manuel had absconded from the mental health unit and returned by Police and that Mr Manuel had let his supply of medication run out;
(c)A report by Dr Himadri Seth dated 24 November 2020, relying on available information but no interview due to Mr Manuel failing to attend the appointment, refers to Mr Manuel as presenting to mental health services with a six month history of low and labile mood, vague auditory hallucinations and paranoia associated with irritability and punching walls that resulted in him being admitted to the mental heath unit between 15 March and 26 March 2020. Mr Manuel was diagnosed by the unit as suffering from depression with psychotic symptoms and he was treated with medication. He was advised to continue on his antidepressant for at least a year to ensure that his depression did not return;
(d)Mr Manuel was reviewed at Ngawha Region Correction Facility and presented as being euthymic with no psychotic symptoms. It was recommended that he be followed by the Early Intervention Psychosis Team on release;
(e)On release from the remand prison Mr Manuel continued with his prescribed medication but it was noted that he was difficult to follow up in the community as a result of communication difficulties;
(f)There were problems in the community as there was no Early Intervention Psychosis Team in Dargaville.
[44] It is palpably clear from this information that Mr Manuel requires the support of mental health services although the extent of the issues and their potential relationship with his offending are unclear.
[45] In my assessment, these mental health concerns add to the weight of argument about his susceptibility to impulsive action and lack of understanding of consequences which are also typical of youth offending.25 A discount is therefore available.
[46] Finally, I have considered whether there should be credit for time spent on EM bail conditions. I conclude this would be inappropriate in circumstances where Mr Manuel breached those conditions.
Conclusion
[47] For all these reasons, I allow the appeal. I substitute an end sentence of one year and 2 months imprisonment.
[48] The concurrent sentence on the remaining charges is not affected. Neither are the standard and special release conditions imposed by the District Court. I urge Mr Manuel to ensure full compliance with those conditions and to recognise that his failure to engage with Probation Services and Mental Health Services has not aided his situation.
[49] I make an order prohibiting publication of identifying particulars of the young family member referred to in this judgment.
............................................................
Walker J
25 There is the added factor of the pressure of the Alert Level 4 lockdown on youth with mental health issues.
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