Manuel v Police - [2015] NZHC 133

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 Respondent

Judgment:

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…

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 [2015] NZHC 133
Case: [2015] NZHC 133
Decision Date: 11 February 2015

CaseChat Overview and Summary

The appellant, Destiny Manuel, appealed against a sentence of 11 months imprisonment imposed by the District Court. The sentence was imposed in respect of seven charges, including theft, driving while suspended, and failing to appear in court while on bail. Ms Manuel argued that the sentence was manifestly excessive, particularly because the Judge uplifted her sentence by six months for her previous convictions. The appeal was heard in the High Court of New Zealand, Auckland Registry.

The legal issues in the case were whether the uplift for previous convictions was proportionate to the starting point and the prior offending, and whether the sentence was manifestly excessive. The Court of Appeal’s decisions in Brown v R, Julian v R, and Coulson v R were cited to assist in determining the appropriate uplift for prior offending. The Court also considered the Sentencing Act 2002 and the purposes and principles of sentencing.

The Court found that while a substantial uplift was warranted for Ms Manuel’s extensive criminal history, the uplift of six months was excessive. The Court considered the maximum terms of imprisonment that could have been imposed for each offence, the timing of the offending, the value of the theft, and the appellant’s prior offending. The Court concluded that a sentence of nine months imprisonment, with a four-month uplift for prior offending, was proportionate to the offending and the offender. The Court quashed the original sentence of 11 months imprisonment and substituted a sentence of nine months and 22 days imprisonment.

The Court emphasised that each case must be assessed on its own merits and there is no formula for determining the significance of prior offending. The uplift must be proportionate to the starting point and the prior offending, and the sentence must be proportionate to the offending and the offender. The Court also noted that 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. The Court found that a sentence of nine months and 22 days imprisonment better met the sentencing principles in this case.

Orders