Manuel v Police - [2015] NZHC 66

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI-2014-488-50 [2015] NZHC 66

BETWEEN
ERNEST PAUL MANUEL

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 4 February 2015

Counsel:

A Dooney for Appellant
M B Smith and J Scott for Respondent

Judgment:

4 February 2015

ORAL JUDGMENT OF FOGARTY J

Solicitors: Marsden Woods Inskip & Smith, Whangarei.

MANUEL v POLICE [2015] NZHC 66 [4 February 2015]

[1] This is a judgment in the case of Manuel v The Queen, which is an appeal against sentence. The appeal against conviction was not pursued. It is an appeal against the judgment of Judge DJ McDonald in the District Court at Whangarei on
25 September 2014.

[2] The Judge had, at an earlier hearing on 15 August, found the appellant guilty of two charges of breaching a protection order, one of male assaults female, and one of intentional damage. The Judge had found that he had punched Ms Nathan on the arm, causing a large bruise. She then left the house. When she returned from the pub, after the two of them had been down at the rugby ground, she saw he was smashing up her place.

[3] The issue at trial had been one of disputed facts. The appellant was arguing that it was his partner who had smashed up the house, not himself.

[4] In the course of his reasoning, the Judge took a starting point for the offending of 19 months. It would appear from [8] of his decision that he was looking at all the offending. It reads:

[8] The Crown submit that the starting point for the offending should be somewhere between 18 months and two years. Mr Puriri, on your behalf, submits that the starting point should be somewhat lower than that. In my view a starting point of 19 months for your offending is appropriate.

[5] The Judge then went on:

[9] … In aggravation is your appalling list of previous convictions particularly in relation to violence. I really only have regard for the convictions from 2009 onwards, the others are of some history. January
2009 male assaults female, 2011 male assaults female, threatened to kill. Again, in 2011, injuring with intent to cause grievous bodily harm. 25
October 2013 contravening a protection order and injuring with intent to
injure. You were sentenced to an effective term of one year and two months’ imprisonment and released on conditions, being on the conditions when you committed these offences. That, in my view, calls for an uplift of six months making a starting point of 25 months.

[6] The Judge then moved on, at the end of the judgment, to build the sentence in this way and said:

[15] Taking all those matters into account I deal with you in this way Mr Manuel. For the breach of the protection and male assaults female you will be sentenced to 12 months’ imprisonment. For the breach of the protection and damage to the property, eight months’ imprisonment cumulative. For the…

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 66
Case: [2015] NZHC 66
Decision Date: 4 February 2015

CaseChat Overview and Summary

In the case of Manuel v Police, the appellant, Ernest Paul Manuel, appealed against his sentence following a conviction in the District Court at Whangarei for breaching a protection order, male assaults female, and intentional damage. The District Court judge, Judge DJ McDonald, sentenced Manuel to two years and one month imprisonment. Manuel argued that the uplift of six months to the starting point of 19 months was manifestly excessive and disproportionate. Manuel's counsel relied on the case of Kushell v Police, where the uplift was considered to be 100 per cent of the starting point, which the High Court found to be unusual. However, in this case, the uplift was 31.5 per cent, and the High Court found no error of principle or manifest excessiveness in the sentence. The appeal was dismissed.

The primary legal issue in this case was whether the uplift of six months to the starting point of 19 months was manifestly excessive and disproportionate. The appellant argued that the uplift was excessive based on the case of Kushell v Police, which involved an uplift of 100 per cent of the starting point. However, the High Court found that the uplift in this case was 31.5 per cent, which was significantly lower than the uplift in Kushell v Police. The High Court held that there was no error of principle or manifest excessiveness in the sentence, and the appeal was dismissed.

The High Court reasoned that the District Court judge was experienced in sentencing matters and had taken into account the appellant's history of domestic violence in determining the sentence. The High Court held that the uplift of six months was proportionate to the starting point of 19 months and that there was no demonstrable error of principle or manifest excessiveness in the sentence. The High Court also noted that the appellant's counsel did not argue that there should not have been any uplift, only that it was excessive. Therefore, the appeal was dismissed, and the original sentence was upheld.

No further orders were made by the High Court. The original sentence of two years and one month imprisonment was upheld.

Orders