Manukau v R
[2013] NZCA 217
•11 June 2013 at 11.00
IN THE COURT OF APPEAL OF NEW ZEALAND
CA711/2012 [2013] NZCA 217
BETWEEN OLIVER DWAYNE MANUKAU Appellant AND
THE QUEEN Respondent
Hearing: 22 May 2013 Court:
French, Goddard and Lang JJ
Counsel:
N M Dutch for Appellant
M E Ball for RespondentJudgment:
11 June 2013 at 11.00
JUDGMENT OF THE COURT
AThe appeal against conviction is dismissed.
BThe appeal against sentence is allowed. The sentence of two years three months’ imprisonment is quashed and is replaced with a sentence of one year ten months’ imprisonment. That sentence is to be served cumulatively upon the sentence of three years two months’ imprisonment the appellant is currently serving on the charge of sexual violation.
____________________________________________________________________
REASONS OF THE COURT
(Given by Lang J)
Introduction
Mr Manukau was convicted following a trial by jury on a charge of wilfully attempting to pervert the course of justice. On 14 September 2012, Judge Rollo sentenced him to two years three months’ imprisonment.[1] That sentence was to be served cumulatively upon a sentence of three years two months’ imprisonment Mr Manukau was already serving on a charge of sexual violation.
[1]R v Manukau DC Tauranga CRI-2010-070-7959, 14 September 2012.
Mr Manukau appeals to this Court against both conviction and sentence. He contends that the trial process was flawed, and that it resulted in a miscarriage of justice. He also says the Judge imposed a sentence that was manifestly excessive in the circumstances.
Background
The events and procedural background that preceded Mr Manukau’s trial and conviction are somewhat unusual. They have their genesis in an incident that occurred on the evening of 19 September 2008. On that date, Mr Manukau and his partner stayed overnight at an address occupied by one of Mr Manukau’s relatives. Another couple also stayed at the address that night. Mr Manukau, his partner and the complainant slept on the floor on adjoining mattresses, whilst the complainant’s partner slept on a nearby couch. In the early hours of the morning, the female member of the other couple (“the complainant”) woke up to find Mr Manukau inserting his finger into her vagina.
Over the next two days, the complainant and Mr Manukau’s partner engaged in a text message exchange in which the complainant accused Mr Manukau of having sexually assaulted her. Mr Manukau’s partner responded to the effect that Mr Manukau denied the allegations. The complainant contacted the police about the incident a day or so later, however, and Mr Manukau was charged with sexual violation by unlawful sexual connection. He pleaded not guilty to the charge, and was eventually committed for trial on it.
Approximately a month before Mr Manukau was due to stand trial, his partner advised the police she had received a significant text message from the complainant during the exchange of messages on 20 and 21 September 2008. Mr Manukau’s partner told the police she had stored the message on her phone, and that it read as follows:
wel becoz u kicked us out im gonna lie an tel da copz dat olie molested me
It is common ground that the person referred to as “Olie” in the text message was Mr Manukau.
Mr Manukau’s trial was due to commence on 11 June 2009. By this stage, the police had uplifted the cellphone containing the text message from his partner. The technician engaged by the police had then discovered that the text message allegedly sent by the complainant on 21 September 2008 was not contained within the “Received items” folder within the cellphone. Rather, it had been stored in the “Unsent Items” folder. This indicated that the message had been created within the cellphone, and had not been received from another phone.
On that morning of his trial, Mr Manukau pleaded guilty to the charge of sexually violating the complainant. At or around this time, the police also told Mr Manukau and his partner that they were aware the text message had been created within the cellphone, and that it had not been sent from another cellphone. The police said that they would not be taking the matter further, however, because Mr Manukau had pleaded guilty to the sexual violation charge.
Prior to being sentenced, Mr Manukau applied to vacate his guilty plea. One of the documents he filed in support of his application was an affidavit by his partner dated 1 December 2009. This affidavit contained the following passages:
10.On the night of the party, after we finished at the party, we left and went to [O’s] parents’ house next door to where the party was held.
11.There were two mattresses that were placed on the floor and initially, myself and [O] were going to sleep on one and [the complainant] and her partner [J] were going to sleep on the other.
12.There was some sort of argument between [the complainant] and [J] which ended up with [J] getting off the mattress that he was sleeping on with [the complainant] and getting onto the couch.
13.[The complainant] was sleeping under the same blanket as me and [O].
14. I got into bed between [O] and [the complainant].
15.[O] and I had sex. I was not concerned about [the complainant] being there because I thought she was asleep.
16.After [O] and I had sex, we went to sleep with him on one side of me and [the complainant] was on the other.
17.I am a light sleeper normally and I was not awoken at all during the night.
18.When I awoke in the morning, [O] had just gotten up and [the complainant] was still asleep on the other side of me.
19. The bed was still warm where [O] had been sleeping.
20.We had decided to tell [the complainant] and [J] that they needed to leave our place.
21.I received a text message on my phone which was from [the complainant].
22.That text message said “ wel becoz u kicked us out I am gona lie an tel da copz dat olie molested me”.
23.I showed that text message to the Police when I made a statement to them on 8 May 2009. I had previously mentioned that text message to [O’s] lawyer, Mr Tuck but he did not seem interested in it. That was just the impression I got and that was what I told the Police when they interviewed me. The message had come from the phone number 021 069 7688, was dated 21 September 2008 and the time was 1.03pm.
24.I believe that this complaint was made by [the complainant] because we kicked them out and that text message that she sent to me proved that.
25.I understand that the Police consider that that text message was not sent to me by [the complainant].
26.I did not create the message, I can remember receiving it and I moved it from my received messages on my phone so that it would not get deleted.
Mr Manukau’s partner was initially prepared to attend court and be cross-examined regarding the contents of her affidavit. After taking independent legal advice, however, she decided not to.
Mr Manukau’s application to vacate his guilty plea was heard on 27 May 2010 before Judge Ingram. At the hearing, Mr Manukau continued to rely on his partner’s affidavit, even though by that stage she was not prepared to confirm its accuracy. Judge Ingram dismissed Mr Manukau’s application, in part because he was satisfied that the statements in the affidavit were incorrect.[2] Mr Manukau did not appeal against Judge Ingram’s decision, and he was subsequently sentenced to three years two months’ imprisonment on the charge of sexual violation.
[2]Manukau v R DC Tauranga CRI-2008-070-6986, 28 May 2010.
The police then charged Mr Manukau and his partner with attempting to pervert the course of justice by filing the affidavit in support of the application for leave to vacate the guilty plea. Mr Manukau’s partner pleaded guilty to that charge, and received a sentence of home detention and community work. Mr Manukau denied the charge, however, and went to trial before a jury in September 2011. The jury in that trial was unable to reach a verdict, and a retrial was directed.
The second trial commenced before Judge Rollo on 14 November 2011. After the jury was empanelled, but before the Crown opened its case, the Judge heard arguments on an application by the Crown regarding the admissibility of Mr Manukau’s conviction for sexual violation. The Judge then delivered an oral ruling, in which he permitted the Crown to adduce evidence of the conviction. He held that the conviction constituted conclusive proof that Mr Manukau had committed the offence of sexual violation.[3] The effect of the Judge’s ruling was to prevent Mr Manukau from giving or adducing evidence to the effect that he did not sexually violate the complainant during the night of 19 September 2008.
[3]R v Manukau DC Tauranga CRI-2010-070-7959, 22 December 2011.
The Judge’s ruling on this point reversed an earlier ruling given at the first trial by another Judge. At the request of counsel, Judge Rollo then discharged the second jury so that Mr Manukau could appeal to this Court against his ruling. In a judgment delivered on 1 June 2012, this Court dismissed Mr Manukau’s appeal.[4] Mr Manukau’s third trial, at which the jury found him guilty, was then held from
10–12 September 2012.[4]Manukau v R [2012] NZCA 222.
Mr Manukau’s partner gave evidence for the Crown at both trials. She confirmed that she and the complainant had engaged in an exchange of text messages on 20 and 21 September 2008. She said that during the course of 21 September Mr Manukau told her to create a text message that appeared to have come from the complainant, but not to send it. She then created a text message in accordance with Mr Manukau’s instructions, and stored it in the “Unsent items” folder of her cellphone.
She also said Mr Manukau told her she was not to reveal the existence of the text message until after he was charged. Once that occurred, Mr Manukau’s partner showed the text message to Mr Manukau’s lawyer. The lawyer did not appear to recognise the significance of the text message, so she subsequently showed it to the police.
Mr Manukau’s partner also told the jury that her affidavit contained false statements. In addition to the statements about the text message, she had said in her affidavit that she slept between Mr Manukau and the complainant on the night of 19 September 2008. She said that evidence was incorrect, and that Mr Manukau had been sleeping next to the complainant. She explained that she had made false statements in order to protect him. She said she had decided not to give evidence before Judge Ingram because her lawyer had told her that she should not give evidence if her affidavit contained untrue statements.
The only witness called for the defence was Mr Manukau. We refer to his evidence in greater detail later in this judgment.[5]
Issues on appeal
[5]At [19]–[26].
Counsel for Mr Manukau raises three issues on appeal. They are:
(a)The prosecutor failed to comply with her obligation under s 92 of the Evidence Act 2006 (the Act) to cross-examine Mr Manukau on material matters.
(b)The prosecutor misled the jury regarding a material issue in her closing address.
(c)The sentence was manifestly excessive in all the circumstances.
Failure to cross-examine
Mr Manukau gave evidence that was remarkable for its brevity. The prosecutor’s cross-examination was also succinct to say the least. Mr Manukau’s evidence was as follows:
Q.I’ll just ask you to cast your mind back to when your lawyer was Mr Nabney and you were getting him to file [your partner’s] affidavit. Can you remember that period of time?
A.Ah, yes.
Q.When that affidavit was filed, did you believe that what [your partner] said about the text message was true or untrue at that point in time?
A.Um, at the time I believed it was true.
Q.Now can you just tell us about the sleeping arrangements in your mother’s house on the night of the 19th – the 20th of September? Where did everyone sleep?
A. Um, well there was me, E, J and, um, [the complainant].
Q. So what were you sleeping on?
A. Um, two mattresses.
Q. And how were the two mattresses set out?
A. Ah, sorta parallel to each other on the ground inside the sitting room.
Q. So which side of the mattresses were you on?
A. Um, I was next to the fireplace.
Q. And who was next to you?
A. Um, that [was E].
Q. And who was next to E?
A. Um, J.
Q. And who was next to J?
A. Um, [the complainant].
Q. Did that arrangement change at all during the night?
A. Yes.
Q. How did it change?
A. Ah, J decided to get up and sleep on the big couch.
Q.And after J got on the couch, who was sleeping next to you at that point?
A. Ah, E was.
Q. And who was next to E?
A. Ah, [the complainant].
CROSS-EXAMINATION: MS CHRISTENSEN
Q.Mr Manukau, you were the only person who was ever going to really benefit from the existence of that text weren’t you?
A.Ah, yeah I was the only one (inaudible 16:05:08), yeah.
Q.And you tried to fool the Court in May 2010 by using that text didn’t you?
A.No, no.
Q.And you’re trying to fool this Court today in September 2012 as well aren’t you?
A.No.
RE-EXAMINATION: MR DUTCH
Q.In May 2010, as has just been referred to, did you believe the text message was a genuine text message or not?
A.I know it was a genuine text message.
Counsel for Mr Manukau contends the prosecutor had an obligation under s 92 of the Act to cross-examine Mr Manukau regarding all material matters that were in issue. These included in particular his belief that the text message had come from the complainant, and his evidence about the sleeping arrangements. Counsel submits that the prosecutor should also have put to Mr Manukau any other factual matters she intended to raise with the jury in her closing address. Counsel submits that the brevity of the cross-examination meant that the jury did not have the benefit of seeing Mr Manukau respond to a challenge to his overall credibility by the Crown. In addition, he had no opportunity to deny or comment upon important matters that the prosecutor later included in her closing address to the jury.
Section 92 of the Act provides as follows:
92 Cross-examination duties
(1)In any proceeding, a party must cross-examine a witness on significant matters that are relevant and in issue and that contradict the evidence of the witness, if the witness could reasonably be expected to be in a position to give admissible evidence on those matters.
(2) If a party fails to comply with this section, the Judge may—
(a)grant permission for the witness to be recalled and questioned about the contradictory evidence; or
(b)admit the contradictory evidence on the basis that the weight to be given to it may be affected by the fact that the witness, who may have been able to explain the contradiction, was not questioned about the evidence; or
(c) exclude the contradictory evidence; or
(d) make any other order that the Judge considers just.
Before considering the nature of the duty imposed by s 92, it is worthwhile observing that the approach both counsel took to Mr Manukau’s evidence was probably influenced in large part by the procedural history of the case. In particular, they would have been acutely aware of the strictures that the Judge’s ruling and the judgment of this Court placed on the scope of the evidence Mr Manukau could give regarding the events that occurred on the night of 19 September 2008.
Those decisions meant that Mr Manukau could not give evidence that directly or indirectly suggested he was not responsible for sexually violating the complainant on that night. It is not surprising, therefore that both counsel adopted a minimalist approach to the scope of Mr Manukau’s evidence. Neither would have wished to ask a question that risked Mr Manukau breaching the restrictions placed on his evidence by the earlier decisions. A very conservative approach was therefore warranted.
It is also important to remember, as this Court confirmed in R v Soutar, that the obligation under s 92 is not absolute.[6] The purpose underlying the section[7] is to ensure fairness in an adversarial system that has as one of its key components the challenging and confronting of witnesses called by the opposing party.[8] As a result, it is not necessary to “slavishly follow” the requirements of the section where the witness is well aware that his or her evidence is not accepted on a particular point.[9] In Soutar, this Court adopted the following passage from Gutierrez v R:[10]
It was argued [in R v Accused][11] that the appellant ought to have been given the opportunity of answering the allegation, and the jury the opportunity of hearing him answer it, in the adversarial context of cross-examination and not simply in what could be called the more bland context of evidence-in-chief: if the appellant had been cross-examined on both charges the appellant would have had his overall credibility properly tested. The Court said at p 8:
We cannot accept this submission. The principle to which Haslam J referred [that failure to cross-examine will amount to an acceptance of the witness’s testimony], if it be that, cannot logically apply to an accused whose evidence, consistently with earlier statements, is an outright denial of the offence. The very fact that he is on trial is sufficient demonstration that his denial is not accepted. Furthermore, we do not accept that it is any part of the prosecutor’s duty to afford the accused further opportunity to establish his credibility. That is for him to do, in giving his evidence-in-chief. The prosecutor’s approach was unusual and not to be encouraged as a general practice, but it was a cleverly calculated cross-examination which cannot be said to have been unfair.
[6]R v Soutar [2009] NZCA 227.
[7]Derived from earlier authorities such as Browne v Dunn (1893) 6 R 67 (HL); R v Accused CA273/91, 20 December 1991; and Gutierrez v R [1997] 1 NZLR 192 (CA).
[8]R v Dewar [2008] NZCA 344 and R v Soutar, above n 6, at [27].
[9]R v Soutar, above n 6, at [27].
[10]Ibid, at [28] (footnote added).
[11]R v Accused, above n 7.
The sole issue for the jury was whether the Crown had proved beyond reasonable doubt that Mr Manukau relied upon his partner’s affidavit in support of his application to vacate his guilty plea when he knew that two material aspects of it were false. The Crown case was that the evidence in the affidavit about the receipt of the text message was false, and that the statements about the sleeping arrangements were also false. The Crown contended that Mr Manukau relied upon this evidence in advancing his application to vacate his guilty plea even though he knew it was false. He did so, the Crown argued, because it cast doubt upon the version of events given by the complainant. Mr Manukau, on the other hand, asserted that he believed the evidence the complainant had given in her affidavit was true.
Mr Manukau was well aware that the Crown did not accept his explanation. The Crown had called his partner as a witness, and she had given evidence that was completely at odds with what Mr Manukau told the jury. Mr Manukau’s partner was cross-examined extensively regarding both issues, so the jury was aware from an early stage that the issue was essentially one of credibility between the two witnesses. If the jury believed the evidence given by Mr Manukau’s partner, supported as it was by the Crown’s technical evidence regarding the creation and storage of the text message, conviction was inevitable. If her evidence, or that given by Mr Manukau, left the jury in a state of reasonable doubt, acquittal would follow. In those circumstances, confronted with what was essentially a blanket denial by Mr Manukau, we do not consider s 92 required the prosecutor to cross-examine Mr Manukau on every aspect of the opposing view.
The second limb of the argument for Mr Manukau under this head arises out of comments the prosecutor made to the jury during her closing address regarding the issue of cellphone records. The prosecutor reminded the jury that Mr Manukau's partner had not shown the text message to the police until six months after she had allegedly received it. She told the jury this was significant, because the evidence established that the complainant’s network provider destroyed its records after six months. In effect, although she did not say so expressly, the prosecutor asked the jury to accept that Mr Manukau had deliberately waited six months before asking his partner to advise the police regarding the existence of the text message. He did so because he knew that the complainant’s cellphone records would by that stage have been destroyed. As a result, the police would not be able to establish whether the text message was held in the “Sent items” folder of the complainant’s cellphone.
The prosecutor reminded the jury that Mr Manukau did not know the police had obtained the complainant’s cellphone records when they were investigating her allegations in September 2008. As a result, he was unaware that the police could establish that the text message was not held within the complainant’s cellphone.
These submissions depended for their validity upon Mr Manukau knowing that the complainant’s network provider destroyed its records after six months. If he did not know that this would occur, the Crown could not properly allege that he deliberately waited for six months before disclosing the existence of the text message. The Crown did not attempt to prove Mr Manukau’s knowledge of the network provider’s practice as part of its case. As a result, Mr Manukau is unlikely to have been aware that the prosecutor would make this submission in her closing address. We consider that fairness considerations therefore required the prosecutor to put the issue squarely to Mr Manukau in cross-examination so that he could respond to it.
Had the issue been one of major importance, we may have viewed the failure to put it to Mr Manukau as potentially having a material impact on the outcome of the trial. The Crown did not, however, rely upon the issue as forming one of the main planks of its case. It was not one of the “three pegs” upon which the prosecutor based her closing submissions. Rather, she referred to the issue in passing during the course of a reasonably lengthy closing address that dealt with numerous other issues in much greater detail. We are therefore satisfied that the issue did not assume such significance that it may have had a material impact on the jury’s verdict.
Counsel for Mr Manukau also challenged the prosecutor’s remarks about the issue strongly in his closing address. He reminded the jury that the prosecutor had never put this issue to either the complainant or Mr Manukau, both of whom would have been in a position to comment on it. He also pointed out that this was not the type of information that Mr Manukau or his partner could be expected to be aware of. He observed that they were not persons with any particular technical expertise in relation to cellphones, so the jury would have no reason to infer that they would have had any knowledge of the manner in which the complainant’s network provider stored its data. The Judge also reminded the jury of the defence submissions in relation to the issue when summarising the defence case during his summing up.
We consider the risk of any potential unfairness arising out of the prosecutor’s failure to cross-examine Mr Manukau on this issue was adequately addressed by the manner in which both the Judge and counsel for Mr Manukau responded to it. We therefore do not consider this failure created the risk of a miscarriage of justice.
Misleading comments in the prosecutor’s closing address
This issue arises out of the following comments in the prosecutor’s closing address to the jury:
There are three main pegs that the Crown says you can hang your hat on here; three main pegs.
Firstly, logic. Logic has a lot to play here. The accused sexually violated [the complainant]. That is a given fact – it is not disputed – it is given. If the accused, as you know, sexually violated [the complainant], the purpose of the text was that the sexual violation never occurred. But the accused knew that it did. So he can’t turn around and say to you, “I thought it was true”. Logic doesn’t allow that to happen. He knew the sexual violation occurred, he can’t suggest to you that he thought the text was true because the text ultimately says the sexual violation never happened. So that’s the first peg, logic.
Counsel for Mr Manukau contends these comments misled the jury, because they implied that Mr Manukau had acted in a logical manner when that was not the case at all. He submits that, if the Crown case was correct, Mr Manukau had based his application to vacate the guilty plea at least in part on an affidavit that he knew to be incorrect. Mr Manukau also knew that the Crown could prove it was incorrect. His counsel submits that those were not the actions of a person acting in a logical manner, and that the prosecutor’s remarks misled the jury.
We consider this argument to be misconceived. First, the prosecutor’s closing address was no more than a submission to the jury based on the evidence. It was for the jury to decide whether, and to what extent, they accepted the submission.
More importantly, we consider that counsel for Mr Manukau has failed to appreciate the true nature of the prosecutor’s remarks to the jury. When the passage set out above is viewed as a whole, we consider the prosecutor was asking the jury to apply logic when considering the weight they should give to Mr Manukau’s explanation. She suggested that Mr Manukau had asked his partner to create the text message in order to cast doubt on the complainant’s allegation that he had sexually violated her. He did so when he knew he had committed that act. He knew he had committed it because he subsequently pleaded guilty to sexually violating the complainant, and was convicted on that charge. Given that background, the prosecutor contended that Mr Manukau could not logically have believed that the text message was true. Viewed in this way, we do not consider the prosecutor’s remarks misled the jury, or that they created the risk of a miscarriage of justice.
The appeal against sentence
Judge Rollo noted that the Judge who sentenced Mr Manukau’s partner had taken a starting point of 18 months imprisonment to reflect her lesser role in the offending. Judge Rollo considered that a higher starting point was warranted for Mr Manukau, because he was the architect of the plan to create and use the false evidence in his partner’s affidavit. He summarised Mr Manukau’s culpability as follows:[12]
[17] Therefore, I am satisfied that you were knowingly deceitful in those two regards, through the instrument of [your partner’s] misguided loyalty, her naivety and vulnerability to your will, by her swearing a false affidavit on your behalf. You, of course, then gave evidence to similar effect before His Honour Judge Ingram, which is an aggravating circumstance. You also gave evidence in front of this Court in the first trial to similar effect and, you did so again, in your defence in the trial before me. You alleged that you were not lying beside the complainant on the mattresses that night, rather [your partner] was, and that at all times you believed the false text message to be a genuine text message received by [your partner] from the complainant. Those are further aggravating circumstances to your crime of wilfully attempting to pervert the course of justice through the use of the affidavit.
[12]R v Manukau, above n 1.
These comments led the Judge to conclude that the purposes and principles of denunciation and deterrence were to be at the forefront in setting a starting point.[13] He pointed out that Mr Manukau’s offending was persistent, and therefore accepted the Crown’s submission that a starting point of two years six months imprisonment was appropriate. From this he deducted three months as a “minor concession” to reflect totality principles. This produced an end sentence of two years three months imprisonment, which the Judge imposed cumulatively on the existing sentence of three years two months imprisonment that Mr Manukau was serving on the sexual violation charge.
[13]At [19] and [29].
Counsel for Mr Manukau submits that the Judge was wrong to select a starting point that was greater than that adopted in relation to Mr Manukau’s partner, and that the Judge gave insufficient weight to totality principles when imposing the end sentence.
The only point counsel could realistically make in relation to the first submission was that Mr Manukau’s partner had been responsible for swearing the affidavit containing the false evidence. In that sense she, and not Mr Manukau, could be viewed as the principal offender. That point is answered, however, by the fact that Mr Manukau was the person who devised the idea of creating the text message. He then persuaded his partner to include the false statement about receiving the text message from the complainant in her affidavit. When his partner disavowed the contents of the affidavit, Mr Manukau continued to rely upon it. This demonstrates a degree of persistence significantly greater than that shown by his partner. In those circumstances we consider the Judge was entitled to view Mr Manukau as the principal offender, and to adopt a higher starting point than that selected in respect of his partner.
We consider the next argument has more weight. The Judge was undoubtedly influenced in his totality reasoning by the fact that Mr Manukau had shown persistence in relying upon the contents of his partner’s affidavit. We agree that the fact that Mr Manukau continued to rely upon them at the hearing before Judge Ingram was undoubtedly an aggravating factor. By that stage he knew his partner was no longer prepared to stand behind her statements, and he also knew the police could show that the text message had been created within his partner’s cellphone. In continuing to rely upon the false statements in the affidavit, Mr Manukau persisted in his attempt to pervert the course of justice.
We do not, however, regard the manner in which Mr Manukau advanced his defence at his subsequent trials as amounting to a further aggravating factor. During the hearing before Judge Ingram, Mr Manukau had maintained that the contents of his partner’s affidavit were true. He took a different stance, at least so far as the text message was concerned, when he gave evidence at his trial on the charge of wilfully attempting to pervert the course of justice. He did not tell the jury that the statements in the affidavit about the text message were true; rather, he said that he believed they were true at the time of the hearing before Judge Ingram. The distinction may be slight, but it is nevertheless important.
Its importance lies in the fact that Mr Manukau did rely upon the truth of the statements in the affidavit about the text message at his trial. The jury obviously disbelieved Mr Manukau’s explanation on this point, but the rejection of an explanation by a jury would not ordinarily be regarded as a factor aggravating the original offending. It might, however, demonstrate absence of remorse.
We are also left with a concern regarding the length of the effective end sentence. The cumulative sentence of two years three months’ imprisonment meant that Mr Manukau received an effective end sentence on both charges of five years five months’ imprisonment. Although we accept that a deterrent sentence was required, we consider an end sentence of that length was excessive having regard to totality principles. We consider that an effective end sentence on both charges of five years imprisonment adequately reflected Mr Manukau’s overall culpability.
Result
The appeal against conviction is dismissed.
The appeal against sentence is allowed. The sentence of two years three months’ imprisonment on the charge of wilfully attempting to pervert the course of justice is quashed. In its place a sentence of one year ten months’ imprisonment is imposed. That sentence is to be cumulative upon the sentence of three years’ two months’ imprisonment that Mr Manukau is currently serving on the charge of sexual violation.
Solicitors:
Crown Law Office, Wellington for Respondent
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