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 intentional damage, five months cumulative.  The end sentence therefore is one of two years, one month.

[7]      I am satisfied that what the Judge was doing in [8] and [9] was looking at the offending  overall  and  coming  to  a  conclusion  that  it  warranted  a  term  of imprisonment  of  25  months  and  then  in  [15]  was  addressing,  as  it  were,  the mechanics of building that sentence, allocating the months cumulatively across the offending rather than doing it by one lead sentence and concurrent sentencing.  The appropriate focus is therefore on [8] and [9].  This is because the point pursued on appeal essentially was that the uplift of six months was out of proportion to the starting point.

[8]      Mr Dooney relied on the decision of Kushell v Police.1   That was a decision of Collins J in the District Court.   The first ground of appeal was the uplift was manifestly excessive and disproportionate.  In [15] of the judgment, Collins J did say that an uplift needs to be proportionate to the starting point of 18 months imprisonment.  I would agree that uplifts, of their character, need to be proportionate but I am not aware that there is any particular rule.  In the case before Collins J, the

uplift was 100 per cent.  The Judge noted2, “An uplift of 100 per cent of the starting

point is very unusual”.  I agree.  I have never struck an uplift of this sort.

[9]      In this case under appeal, Judge McDonald had an uplift precisely calculated by Mr Dooney at 31.5 per cent.  Although I rounded it myself to 30 per cent, he rounded it up to 33 per cent.  But in any view of it, it is completely removed from an uplift of 100 per cent.   For this reason, I do not find the judgment of Collins J in Kushell of any particular guidance.   Rather, to the contrary, Collins J was dealing with a very unusual 100 per cent uplift.

[10]     Appeals to the High Court against sentencing can only succeed where there is a demonstrable error of principle or the appeals are manifestly excessive.  There is

no error of principle per se in an uplift of 30 or 33 per cent.  The history of domestic

1      Kushell v Police [2012] NZHC 2380.

2 At [15].

violence  of  this  man  is  a  very  relevant  factor.    There  was  no  suggestion  by Mr Dooney that there should not have been any uplift.  Judge McDonald is a very experienced judge in this area and I see no reason to intervene.   I see no error of principle nor am I persuaded that the sentence is manifestly excessive.   For these reasons, the appeal is dismissed.