Manuel v The King
[2025] NZHC 895
•11 April 2025
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2025-409-60
CRI-2025-409-61 [2025] NZHC 895
BETWEEN CADE MANUEL
Appellant
AND
THE KING
Respondent
Hearing: 10 April 2025 Appearances:
O K Jarvis and H L Beaven for Appellant P J Brand for Respondent
Judgment:
11 April 2025
JUDGMENT OF EATON J
This judgment was delivered by me on …….. at ……… pursuant to Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
MANUEL v R [2025] NZHC 895 [11 April 2025]
Introduction
[1] On 25 February 2025 Cade Lee Manuel was sentenced by Judge Crosbie to two years and four months’ imprisonment following his guilty pleas to charges of possession of methamphetamine1 and a knife,2 the unlawful possession of a firearm 3 and a prohibited magazine4 and a breach of release conditions.5 On appeal he contends the end sentence was manifestly excessive.
Facts
[2] Mr Manuel is the respondent of a final protection order. A condition of that order prohibited his possession of weapons. Around 11.30 pm on 26 May 2024, Mr Manuel was stopped by police when driving. Police found a methamphetamine pipe in the driver’s door. A warrantless search for drugs revealed 3.19 grams of methamphetamine in Mr Manuel’s wallet and a flick knife in the boot of the car.
[3] The following day a search warrant was executed at Mr Manuel’s home address and police located a cut-down .22 semi-automatic in a backpack in the garage. In a box in the garage police found a 3D-printed .22 30 round magazine.
District Court Decision
[4] With reference to accountability, denunciation and deterrence, and comparison to other cases, the Judge imposed a starting point of two years’ imprisonment for the firearm and magazine offending. This was uplifted by three months for Mr Manuel’s possession of methamphetamine and a further month for the possession of a knife charge. An uplift of two months was applied for the breach of release conditions, bringing the total starting point to two years and six months.
[5] The Judge allowed a 20 per cent deduction for early guilty pleas and a further deduction of one month (3.3 per cent) to reflect Mr Manuel’s personal factors and the
1 Misuse of Drugs Act 1975, s 7(1)(a) and (2); maximum penalty six months’ imprisonment or
$1000 fine.
2 Summary Offences Act 1981, s 13A(1); maximum penalty
3 Arms Act 1983, ss 45(1) and 66; maximum penalty four years’ imprisonment or $5000 fine.
4 Sections 50B and 66; maximum penalty two years’ imprisonment.
5 Sentencing Act 2002, s 96(1); maximum penalty one year imprisonment or $2000 fine.
causal connection between his drug use and his possession of drugs. The Judge did not consider there to be a causal connection between Mr Manuel’s traumatic background and the firearms offending. The deductions allowed were offset against an uplift of three months (ten per cent) for Mr Manuel’s previous convictions, and two months (6.6 per cent) because of offending while subject to release conditions. An end sentence of two years and four months’ imprisonment was imposed.
Principles on appeal
[6] Appeals against sentence are allowed as of right by s 244 Criminal Procedure Act 2011 and must be determined in accordance with s 250. An appeal against sentence may be allowed by this Court only if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.6 As the Court of Appeal stated in Tutakangahau v R, with reference to the lower court’s decision, a “court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles”.7 It is appropriate for this Court to intervene and substitute its own views only if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.8
Submissions
Appellant’s submissions
[7] The primary submission advanced by Ms Jarvis, for Mr Manuel, is that in imposing a three-month uplift for the possession of methamphetamine charge and a further two-month uplift on the breach of release conditions charge, the Judge has engaged in double counting. Ms Jarvis submits the Judge may have mistakenly understood that the breach of release conditions charge related to a failure to attend an alcohol and drug treatment programme when the charge document particularised the breach as the possession of methamphetamine. She submits that because the same unlawful act has given rise to two discrete charges, a combined uplift of no more than three months, as opposed to the five months imposed is appropriate.
6 Criminal Procedure Act 2011, ss 250(2) and 250(3).
7 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
8 Ripia v R [2011] NZCA 101 at [15].
[8] Ms Jarvis submits, with reference to Te Hauwaho v R9 and Safi v Police,10 that the uplift of five months for Mr Manuel’s prior offending and offending while subject to release conditions was too high. She contends that uplift should be no more than three months. Again, this raises the issue of double counting.
[9] As regards personal mitigating factors, Ms Jarvis submits the one-month (3.3 per cent) deduction for what are described as Mr Manuel’s compelling and traumatic personal background and his addiction was too low. Ms Jarvis acknowledges that the Judge did not find there was a causal connection between those factors and the firearms and magazine offending but submits that assessment was stern and the separation of deductions between the offences in this case was artificial. She submits the offending must be viewed in its entirety through the lens that Mr Manuel suffers from a methamphetamine addiction and his actions cannot be separated from his past experiences or influences. Ms Jarvis highlights the cause of Mr Manuel’s relapse to drug use, being that he was reliving trauma in order to address and provide a detailed account of the abuse he suffered in state care, and his response to these challenges was to self-medicate.
[10] Finally, Ms Jarvis submits a deduction to reflect the impact of Mr Manuel’s incarceration on his daughter was available. Though Ms Jarvis acknowledges Mr Manuel is not her sole caregiver, Mr Jarvis submits his daughter is a key driver for prosocial reintegration.
Respondent’s submissions
[11] Mr Brand, for the respondent, submits the uplifts applied do not amount to double counting as the offences were discrete. He highlights that the Judge considered totality to temper the uplift for the breach, noting the starting point for the breach could have been four to six months.
[12] Mr Brand submits the deductions applied were appropriate and the end sentence was within range, not manifestly excessive.
9 Te Hauwaho v R [2022] NZHC 2519.
10 Safi v Police [2022] NZHC 1967.
Analysis
Starting point
[13] In my view the starting point of two years’ imprisonment adopted for the unlawful possession of the cutdown .22 firearm and for possessing the 3D-printed prohibited magazine could have been higher. I refer to the analysis undertaken in McLaren v R both in relation to the unlawful possession of firearms and the unlawful 3D manufacturing of firearms.11
[14] A starting point of 18 months to two years’ imprisonment was, in my view, available for the possession of a cutdown .22 rifle, notwithstanding that it was not loaded. There is only one reason a defendant might be in possession of a cutdown firearm, and that is to effect serious criminal offending. I do not accept Mr Manuel’s explanation that he had the firearm for the purpose of self-defence mitigates his offending at all. That he is a methamphetamine user, has a history of methamphetamine dealing and an extensive history of violence, dishonesty and unlawfully possessing firearms only highlights the sinister motivation for possessing the firearm.
[15] The maximum sentence for possessing a prohibited magazine is two years’ imprisonment. In my view it is a significant aggravating factor that the magazine found in Mr Manuel’s possession was 3D-printed. 3D-printed firearms and firearm parts are not traceable. 3D-printing of those items is inevitably aligned with criminal activity. Although the cutdown .22 rifle found in Mr Manuel’s garage was not loaded, the only inference to be drawn from the finding of the 3D-printed prohibited magazine is that he intended to be able to use the firearm with an operable .22 magazine. The unlawful possession of the magazine on its own would justify a starting point of between nine- and 12-months’ imprisonment. The global starting point of two years adopted by the Judge was lenient.
11 McLaren v Police [2025] NZHC 518.
Uplifts
[16] I agree with Ms Jarvis, and it was acknowledged by Mr Brand that it appears the Judge may have understood that the breach of release conditions charge related to Mr Manuel’s failure to participate in alcohol and drug counselling. When referencing that charge, the only fact referred to by the Judge was that Mr Manuel had walked out when he was directed to attend an alcohol and drug programme. If that was the breach of release conditions, it was distinct to a breach of being found in possession of methamphetamine. However, the only particular provided in the charging document was that Mr Manuel “failed to comply with a condition of his sentence, in that he was in possession of methamphetamine”. It was the fact he was found in possession of methamphetamine that sustained the Misuse of Drugs Act 1975 charge for which the Judge imposed an uplift of three months’ imprisonment.
[17] I agree with Ms Jarvis that the overall uplift of five months’ imprisonment is high given the possession of methamphetamine gave rise to two charges. That is particularly so when the Judge resolved to impose an uplift for offending whilst subject to release conditions.
[18] Ms Jarvis also contends that the combined uplift of five months (17 per cent) to reflect prior convictions and offending whilst on sentence was too high. Most relevantly Mr Manuel had been imprisoned in May 2018 on two charges of unlawfully possessing firearms and an explosive. He has a number of convictions for possessing drugs and for breaching sentences or release conditions. A 10 per cent uplift to reflect prior convictions would have been orthodox.
[19] I agree with Mr Brand that an uplift was available to reflect that Mr Manuel offended while subject to release conditions. The release conditions were intended to assist and encourage his rehabilitation. An offender who offends while subject to sentence or release conditions is demonstrating a disregard for those orders, justifying a response from the Court with a focus on deterrence. Regrettably for Mr Manuel, he has a history of disregard for court orders and for thumbing his nose at rehabilitative opportunities. Most relevantly he had been given that opportunity when he was
sentenced to home detention in May 2023. Within hours of that sentence he breached and was ultimately re-sentenced to a term of imprisonment.
[20] I agree with Ms Jarvis that the combined uplift for prior offending and offending on release conditions was stern and that another Judge might have adopted a lesser uplift. However, Mr Brand is right to remind the Court to focus on the end sentence imposed.
[21] Another challenge raised by Ms Jarvis relates to the level of credit allowed to reflect Mr Manuel’s personal background and methamphetamine addiction. The Judge allowed a one-month deduction having found that only the methamphetamine offending had any causal connection to Mr Manuel’s past.
[22] I have read the material detailing Mr Manuel’s background. I agree wholeheartedly with the Judge that it is sobering reading. Mr Manuel has a past defined by trauma and I acknowledge that at around the time of the current offending, he was confronting those events and he pursued sensitive claims relating to his time in state care. I accept Ms Jarvis’ submission that the experience of confronting his past was a significant factor leading to his relapse into methamphetamine use. However, I agree with the Judge that Mr Manuel’s past trauma and his drug addiction have little causal connection with his decision to arm himself with a cutdown .22 rifle and a 3D-manufactured .22 magazine.
[23] Ms Jarvis submits it was artificial for the Judge to delineate between the drug offending and the firearms offending. Perhaps it was, but the approach the Judge took permitted Mr Manuel to secure a one-month deduction from his sentence. The Judge could have found that given the lack of causal connection to the lead offending that no deduction was appropriate.
[24] The court will commonly extend sympathy to a long-term addict who is motivated but struggling to overcome addiction. There is little doubt that the path to recovery from entrenched addiction is challenging. Mr Manuel has made what I assess to be modest efforts to rehabilitate in the past, but I accept that having now confronted his past, he may well be in a better state of mind to seriously engage in rehabilitation.
If nothing else, he might be encouraged to do so through the opportunities that have been presented to his daughter, who is presently at a boarding school and seems focussed on achieving a high-end education.
[25] But I struggle to move past Mr Manuel’s return to serious criminal offending in the form of possessing a cutdown firearm and a 3D-printed magazine. I agree with the Judge that offenders who engage in that activity must anticipate a stern response from the court, a response that will inevitably relegate their rehabilitative motivation and desires to second place. I am satisfied that the Judge did not err in his assessment of the appropriate deduction for background factors.
Parental incarceration deduction
[26] The final issue raised by Ms Jarvis is whether a parental incarceration deduction should have been allowed. Sensibly, Ms Jarvis did not pursue that submission in oral argument. Mr Manuel has been in and out of court and prison repeatedly since his daughter was born. He is not her primary caregiver. His daughter will be well versed with her father’s absences from her daily life. The significance of Mr Manuel’s relationship with his daughter is that it will provide him with motivation to focus on his rehabilitation when he is ultimately released from prison.
Overall
[27] Whilst I have acknowledged that the uplifts imposed by the Judge could have been at a lower level and that there is an element of double counting in the manner in which the Judge imposed sentence for the breach of release conditions, any adjustment that I might be inclined to make to the sentence would be tinkering. I am also mindful of my assessment that the starting point for the lead offending was well within the available range. I am not persuaded the sentence imposed was manifestly excessive.
Result
[28]The appeal is dismissed.
...................................................
Eaton J
Solicitors:
Crown Solicitors, Christchurch
Counsel:
O K Jarvis, Barrister, Christchurch
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