Manuel v Police - [2019] NZHC 816

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2019-404-59

[2019] NZHC 816

BETWEEN
MASEON JAI MANUEL

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 8 April 2019

Appearances:

K J Moyer and C Ross for the Appellant

C M Hallaway and B Charmley for the Respondent

Judgment:

12 April 2019

JUDGMENT OF GAULT J

This judgment was delivered by me on 12 April 2019 at 4:00 p.m. pursuant to r 11.5 of the High Court Rules 2016.
Registrar/Deputy Registrar

……………………………………

Solicitors:
Ms K J Moyer, Public Defence Service, Manukau
Ms C M Hallaway, Kayes Fletcher Walker, Office of the Crown Solicitor, Manukau

MANUEL v POLICE [2019] NZHC 816 [12 April 2019]

[1] Mr Manuel pleaded guilty in the District Court to three charges of breaching release conditions. On 21 February 2019 Judge A M Wharepouri sentenced Mr Manuel to three months’ imprisonment and imposed the following special conditions for six months:1

(a)to reside at a particular Mangere address and not to move to any new residential address without prior written approval of a probation officer;

(b)to submit to electronic monitoring by GPS as directed by a probation officer;

(c)not to enter Mangere East or any other identified area as defined on maps by a probation officer;

(d)not to associate with or contact his partner without the written prior approval of a probation officer; and

(e)to attend a psychological assessment as directed by a probation officer and completing any treatment and/or counselling as recommended by the assessment to the satisfaction of the probation officer.

[2] Mr Manuel appeals on the grounds the period of imprisonment was manifestly excessive and the imposition of the GPS monitoring and non-association conditions was not justified.

The facts

[3] On 28 November 2018 Mr Manuel was released from a term of imprisonment imposed for injuring with intent to injure. On 30 November 2018 he was inducted into his release-on-conditions order requirements and was made aware of his release conditions. He was issued with a direction not to reside at a particular address in Mangere East. This was because Community Corrections and Police had safety concerns for Mr Manuel’s partner. Mr Manuel stated he would continue to reside at

1 NZ Police v Manuel [2019] NZDC 3303.

this address. Mr Manuel was consequently issued a direction for daily reporting, weekdays at 12:30 pm until advised otherwise.

[4] On 4 December 2018 Mr Manuel failed to report as directed (first charge). His partner texted the probation officer stating he could not attend without further explanation. Between 5 and 7 December 2018 he also failed to report (second charge). He made no contact and no further explanation was provided. Between 11 and 13 December 2018 he also failed to report (third charge). He stated that he had appointments but failed to provide any verification despite numerous reminders.

The sentence

[5] The Judge considered that the appropriate starting point should be three months’ imprisonment, reflecting the offending and Mr Manuel’s clear…

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 Manuel v Police

Details

AGLC: Manuel v Police [2019] NZHC 816
Case: [2019] NZHC 816
Decision Date: 12 April 2019

CaseChat Overview and Summary

The appeal in Manuel v Police concerns the conditions imposed on Mr Manuel’s release after he served a three-month sentence for breaching release conditions. Mr Manuel appealed the District Court Judge’s decision to impose special conditions on his release, arguing that the period of imprisonment was excessive and the conditions were unjustified. The appeal court was required to determine whether the District Court erred in imposing the sentence and the special conditions, and if so, whether a different sentence should be imposed.

The court considered the arguments of both parties, focusing on the nexus between the special conditions and the purpose of reducing the risk of reoffending as outlined in section 93(3) of the Sentencing Act 2002. The appellant argued that the non-association and GPS monitoring conditions did not have a rational nexus to the purposes under section 93(3) as they were not related to the victim of the index offending. The respondent argued that the conditions were necessary and proportionate to reduce the risk of reoffending and were justified limits on Mr Manuel’s rights. The court found that the non-association condition lacked a rational nexus to the risk of reoffending against Mr Manuel’s partner, as the index offence did not involve her. The court also found that the GPS monitoring condition was justified to monitor compliance and mitigate the risk of reoffending.

In conclusion, the appeal court allowed the appeal to the extent that the non-association and GPS monitoring conditions were set aside. The sentence of three months’ imprisonment was upheld as it was not manifestly excessive. The family violence programme condition was considered warranted and Mr Manuel had recently been referred to such a programme.

Orders