Manuel v Police
[2015] NZHC 133
•11 February 2015
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI 2014-404-000429 [2015] NZHC 133
DESTINY ROSE MANUEL
v
POLICE
Hearing: 3 February 2015 Counsel:
L Wilson for Appellant
J Murdoch for RespondentJudgment:
11 February 2015
JUDGMENT OF WHATA J
Solicitors: Public Defence Service, Auckland
MANUEL v POLICE [2015] NZHC 133 [11 February 2015]
[1] The appellant, Destiny Manuel, was sentenced to 11 months imprisonment in respect of seven charges, including one charge of theft ($500-$1,000), three charges of driving while suspended, one charge of failing to answer District Court bail, one charge of failing to answer police bail, and one charge of breach of community work. Ms Manuel now appeals against that sentence on the basis that it was manifestly excessive. She claims that the Judge erred in uplifting her sentence by six months or
66 per cent on the starting point for her previous convictions.
Background
[2] The Judge’s reasons for sentence are succinct and capture the essential nature
of the offending. The notes of sentencing record:
[1] Ms Manuel, your charges fall into three main groups. Three of the charges that I have before me relate to driving without a licence or driving whilst you were suspended. On 22 July 2014, 26 June 2014 and 26 August
2014, offences involving breaches of Court orders.
[2] The second tranche of the charges relate to two charges of breach of bail and one charge of community work, and the serious charge is one of theft. And I say that it is serious because although it is a charge of involving property to a value of $797 this is not the first time that you have been before the Court in respect of this type of offending. The circumstances of the offending were not particularly unusual. It is a matter of shoplifting of that particular nature. You were at a store in Mt Maunganui. You took the cellphone, concealed it in your hand, left without paying.
[3] As I have said, this is not the first time that you have been before the Court and the offending of itself is probably not too aggravating but I have to take into account the value of the property and the fact that you will not be able to make reparation because as it is conceded by your counsel and stated in the pre-sentence report, the only realistic outcome is a sentence of imprisonment and it is really a question of how long.
[3] The Judge then dismissed home detention as an option and turned to a sentence of imprisonment. The Judge observes:
[5] Taking into account the blatant nature of your offending, and the fact that you have had plenty of warnings about this type of conduct in the past, by being careful not to factor in your previous convictions to that calculations, I consider that I must start looking at a sentence of five months imprisonment. The problem is that there are add ons that are going to take it quite high.
[4] The Judge then says further:
[6] There must be an uplift for the driving whilst disqualified charges, they are breaches of Court orders, and I set that at two months. There has got to be an uplift for the fact that there were offences committed whilst on bail and for breaches of bail as well, and in respect of that there must be another two months. And I consider that because of the vast number of charges that you have faced in the past, an uplift of six months should be imposed.
[5] In the result, the Judge concluded the final end sentence should be 11 months imprisonment after discounting the starting point by four months. One further month imprisonment to be served concurrently was imposed in relation to the other charges and the appellant was disqualified from driving for a period of six months. Sentences of intensive supervision and community work were however cancelled, and no release conditions were imposed.
Jurisdiction
[6] I have broad jurisdiction pursuant to s 250 of the Criminal Procedure Act
2011 to correct error including on the basis that the sentence was manifestly excessive sentence.1
Assessment
[7] There is no dispute that a starting point of five months imprisonment on the charge of theft ($500-$1,000) was within range. It is also accepted by the appellant that an uplift of four months imprisonment was appropriate to reflect the three charges of driving whilst suspended and the charges of failing to answer District Court bail, failing to answer police bail and breach of community work.
[8] The central challenge to the sentence, however, relates to the uplift of Ms Manuel’s sentence by six months for her previous offending. It is submitted by Mr Wilson that the Judge erred by uplifting Ms Manuel’s sentence by 66 per cent for the previous offending.
[9] My attention was drawn to the Court of Appeal’s decisions in Brown v R, and
Julian v R.2 In the former case Mr Brown had pleaded guilty to a charge of injuring
with intent to injure. He had prior convictions for violence against the complainant and the relevant offending had occurred when the appellant, Brown, was subject to supervision. The District Court Judge in that case considered that a 25 per cent uplift on starting point of two years and eight months imprisonment was appropriate. This was reversed on appeal, the Court of Appeal observing:3
In our view the uplift was excessive. An additional eight months imprisonment was disproportionate to a starting point of two years and eight months. Effectively it put the sentence for this offending outside Band 2. Mr Brown had served his sentences for his past offending. That Mr Brown was continuing to offend despite those previous sentences indicated that individual deterrence was an important sentencing purpose. Protection of the public (particularly the complainant) was also an important consideration. A stern sentence, that is a sentence higher than that which might otherwise have been imposed, was warranted. But to add eight months imprisonment to what would otherwise have been the appropriate sentence, subject to mitigating factors, because of past offending which was not of that level of seriousness was too stern.
[10] The Court of Appeal concluded that adding two months was more appropriate. Similarly, in Julian v R, the Court of Appeal concluded that an uplift for prior offending of one and a half times the original sentence could not be supported.
[11] Ms Murdoch for the respondent submitted that Brown and Julian were distinguishable, primarily on the basis that the prior offending in those cases was substantially less than the present case. She then urged me to consider the approach taken in Coulson v R where the Court endorsed an uplift of six months for extensive prior offending.4
[12] Each of the decisions cited to me provides helpful guidance. I think their general thrust is that the uplift in the sentence must be proportionate to the starting point and to the prior offending. Nevertheless, each case must be assessed on its own merits and there is no rote formula for dealing with the significance of prior offending.
[13] Turning then to the present case, the pre-sentencing report notes:
Destiny Rose Manuel is a recidivist shoplifter who has been before the Court on a regular basis since her first appearance in 2005. She has accumulated many convictions for a range of offences. These include convictions for: dishonesty such as theft, shoplifting, using a document and burglary (51); breach of bail, community work, Court release conditions and supervision (17); violence including common assault, aggravated assault (6); alcohol related and driving offences; disorderly including wilful trespass, wilful damage and possession of cannabis (10).
[14] Plainly a considerable uplift is warranted in this case. Previous sentences have had little deterrent effect. A substantial uplift for recidivist offending is to be expected. The approach taken by the Court of Appeal in R v Columbus5 is illustrative. In that case the Court applied an uplift of one year on a starting point of
1.5 years or 66 per cent to account for recidivist burglary offending.6 I also note that
Adams on Criminal Law – Sentencing observes that significant uplifts can be expected for recidivist dishonesty offending.7
[15] Having said that, an uplift for prior convictions that exceeds the starting point on the lead charge and is significantly greater than the previous sentences must give pause for thought. As Brown emphasised, while it is important to send a clear deterrence message to recidivist offenders, the uplift cannot be disproportionate to the starting point or to the sentences imposed for the prior offending.8 Furthermore in Coulson, cited by the respondent, the base sentence for multiple charges was about five years, so the uplift of six months for extensive prior offending did not stand out as excessive in that case. I have therefore found it necessary to have a
closer look at the sentence handed down to Ms Manuel in this case.
[16] In terms of my review of the sentence, I think the following factors are significant:
(a) The maximum term of imprisonment that could have been imposed for each offence was:
(i) Theft – one year;
5 R v Columbus [2008] NZCA 192 at [19].
6 At [20].
7 Bruce Robertson Adams on Criminal Law – Sentencing (online looseleaf ed, Brookers) at
[SA 9.15].
8 R v Brown, above n 2, at [13].
(ii)Driving a motor vehicle (x2) while licence suspended – three months;
(iii)Driving a motor vehicle while licence suspended – three months;
(iv) Failure to report for a terms – three months;
(v) Failing to appear while on police bail – three months; (vi) Failure to appear while on District Court bail – one year.
(b) The three driving charges occurred over a short span namely from
22 June to 26 August 2014.
(c) The failure to report to the Court occurred on 28 July 2014, to a probation officer on 12 August 2014, and the failure to answer police bail on 12 September 2014.
(d) The theft occurred on 14 October 2014. The dollar value for the theft
($797) was in the upper quartile for the charge ($500-1000). (e) The offending occurred while on bail.
(f) The appellant has a significant criminal history, including numerous instances of similar prior offending in relation to all of the charges as noted at [14]. For example there are multiple convictions for shoplifting (under $500) together with a conviction for breach of Court release conditions which were imposed as recently as 9 June
2014. This attracted a sentence of community work and intensive supervision. Similar non-custodial sentences were imposed for prior
theft offending.9
9 For example, on 9 May 2014 a sentence including one year three months intensive supervision and 40 hours community work was imposed for seven shop lifting charges (under $500).
(g)The presentencing report concludes that Ms Manuel presents a high risk of harm.
[17] In light of this combination of factors, I agree with the Judge that a substantial term of imprisonment was warranted. But with the benefit of the opportunity to reflect on the nature and scale of the prior sentences, I consider that a sentence of 11 months was excessive and a sentence of nine months imprisonment is proportionate, both to the offending and to the offender.
[18] First, it will be seen that the sentence is well below the combined maximum that could have been imposed for the charges. Second, the theft was brazen and justified a firm deterrent sentence of five months imprisonment. The three driving and other non compliance offending (including offending while on bail) are connected in time and also justified a firm uplift in sentence of four months. To clarify, while each of these charges individually assessed might not ordinarily attract a sentence of imprisonment, the connected pattern of the offending warranted a term of imprisonment. Third, when the totality of offending is properly examined, a clear picture of contumelious disregard for the law emerges. A starting point of sentence of nine months for this combination of offending is appropriate (if not generous to Ms Manuel). Fourth, a remarkably aggravating aspect personal to Ms Manuel, is that the offending is one small chapter in a novel-like litany of offending. The recent convictions for theft and non-compliance with Court orders amply illustrate the point. The reality is that Ms Manuel has demonstrated over many years to have no respect for the law. Her prior sentencing has plainly not registered with her. Even so an uplift of six months for offending that previously attracted non-custodial sentences appears harsh. While I accept there is no exact science to this, I consider a four month uplift better reflects the purposes and principles of the Sentencing Act
2002 and the proportionality mandated by Brown et al.10 Finally, I have taken into
account the fact that Ms Manuel’s recent sentence of intensive supervision and community work was set aside. But that is a natural corollary of a sentence of
imprisonment.
10 See further Taylor v R [2012] NZCA 332 at [46].
[19] Accordingly, while a 66 per cent uplift is not without authority, and in another case might be appropriate for recidivist offending of this nature, the uplift of six months was excessive having regard to the specific circumstances of this case. I have come to the view that an end sentence of nine months 22 days, comprised of a nine month starting point, four months uplift for prior offending, and a discount of
25% for guilty plea, better meets the sentencing principles.
Result
[20] Appeal allowed and the sentence of 11 months is quashed. A sentence of nine months and 22 days imprisonment is substituted.
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