Manzone v The Queen

[2020] NZHC 948

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2020-409-000018 CRI-2020-409-000019

CRI-2020-409-000020 [2020] NZHC 948

BETWEEN

BEN DAVID MANZONE

Appellant

AND

THE QUEEN

Respondent

Hearing:	5 May 2020
Appearances:	J D Lucas and J M Campbell for the Appellant K A Courteney for the Respondent
Judgment:	8 May 2020

JUDGMENT OF NATION J

Introduction

[1]        Ben Manzone had a history of criminal offending in Australia. Australia had been his home for virtually his whole life. At the age of 41, he was deported to New Zealand. Some months after that, he committed criminal offences here. The issue on this appeal is whether his sentence for that New Zealand offending was too severe given the challenges he faced with his deportation.

[2]        Mr Manzone appeals his sentence of four years’ imprisonment, imposed by Judge Kellar on a range of charges, on the basis the end sentence is manifestly excessive. He appeared for sentence on one charge of robbery, eight of theft, two of receiving, four of theft of a motor vehicle, possession of amphetamine, breach of bail, escaping custody, resisting police and being found unlawfully in an enclosed yard.

MANZONE v R [2020] NZHC 948 [8 May 2020]

There were also a number of “trailer charges” which consisted of non-compliance with returning offender conditions, dangerous driving, driving while forbidden, failing to stop and receiving.

Facts

[3]        Mr Manzone was deported from Australia after serving a term of imprisonment. He arrived in New Zealand in June 2018.

[4]        On 20 November 2018, Mr Manzone opened the passenger door of a vehicle parked in a supermarket carpark, grabbed the driver’s handbag while she was inside the vehicle, and then fled. The property stolen was worth over $10,000.

[5]        Later that day, he also stole luggage belonging to five overseas tourists worth a little over $13,000 from inside a parked van. He did this by smashing the rear window of the van to gain access while the tourists were not there.

[6]        On 29 November 2018, Mr Manzone stole a New Zealand Post courier van from a driveway while the engine was still running and the driver had got out to deliver parcels. The van was recovered but a number of the packages were missing.

[7]On 1 December 2018, he stole a van from a residential address.

[8]        Later, on 1 December 2018, Mr Manzone broke into another parked van and stole five suitcases belonging to another tourist containing property valued at approximately $4,000.

[9]        Mr Manzone targeted another New Zealand Post courier van on 7 December 2018 that was parked in a driveway with its engine running. He got into the vehicle and began to drive off. When the driver approached and attempted to remove the keys from the ignition through an open window, Mr Manzone punched him in the chest and drove away. The van was later recovered with a number of packages missing. The value of the missing packages was a little over $4,000, reflected by the claims made by the intended recipients of those packages. This incident, involving theft accompanied by violence, forms the basis for the robbery charge.

[10]      On 14 December 2018, Mr Manzone stole a Ford Ranger utility vehicle. Police found him in the vehicle and attempted to prevent him from driving away. He resisted and struggled. After being told he was under arrest, he moved to the passenger side and escaped from the vehicle.

[11]      On 18 December 2018, he went onto a residential property, broke into a secured shed and stole a motorbike.

[12]      There were additional charges of receiving, theft of number plates, theft of petrol, possession of amphetamine and failing to answer bail.

District Court decision

[13]       Judge Kellar did not consider it necessary to detail the additional charges just referred to. He identified the robbery of the courier van as the lead offence. As to that, he noted the serious aspect of the robbery was the “relatively violent” confrontation with the courier van driver.

[14]      The Judge referred to Affleck v R, where the offender stole a courier van containing various packages, prompting a starting point of two years, which was left undisturbed on appeal by Gendall J in the High Court.1 He highlighted Gendall J’s noting of the aggravating features of the offending, including the targeting of a commercial vehicle with an expectation of a large gain from the theft of its contents, and the real risk of confrontation with the driver given the vehicle was left running as the driver delivered a parcel. Judge Kellar then found the present offending to be somewhat more serious because two courier vans and three other vehicles were also stolen as part of “what can only be described as a spree”. In addition, there was a confrontation with the driver in the present offending ending in Mr Manzone punching the driver. The Judge adopted a starting point of three years and six months for the robbery and the four thefts of motor vehicles.

[15]      The Judge adopted an effective uplift of two years for the further dishonesty offending. He applied an uplift of six months for the charges of escaping custody,

1      Affleck v R [2015] NZHC 1741.

resisting arrest, possession of amphetamine and failure to answer bail. The Judge imposed concurrent sentences in respect of the trailer charges. Thus, the Judge arrived at an overall starting point of six years.

[16]      The Judge then made an uplift of three months to reflect Mr Manzone’s Australian criminal history and the fact he offended on bail. The adjusted sentence was six years and three months. He discounted that by one year and six months, just under 25 per cent, to reflect Mr Manzone’s guilty pleas, indicating a final sentence of four years and nine months. Finally, he made a downwards adjustment of nine months for totality to arrive at the ultimate sentence of four years’ imprisonment.

Principles on appeal

[17]      Appeals against sentence are allowed as of right by s 244 of the Criminal Procedure Act 2011, and must be determined in accordance with s 250 of that Act. An appeal against sentence may only be allowed by this Court if it is satisfied there has been an error in the imposition of the sentence and that a different sentence should be imposed.2 As the Court of Appeal mentioned in Tutakangahau v R quoting the lower court’s decision, “…[an appellate] court ‘will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles’”.3 It is only appropriate for this Court to intervene and substitute its own views if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.4 The focus of an appeal court must “primarily be on the appropriateness of the end sentence, not the means by which that end sentence has been reached”.5

Submissions

Appellant’s submissions

[18]      Mr Lucas for Mr Manzone first applied under s 335 Criminal Procedure Act for the Court to receive new evidence in the form of an affidavit of Aimee Reardon, a

2      Criminal Procedure Act 2011, ss 250(2) and 250(3).

3      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].

4      Ripia v R [2011] NZCA 101 at [15].

5      Skipper v R [2011] NZCA 250 at [28].

Manager of the Prisoners’ Aid and Rehabilitation Society of Canterbury Inc (PARS). Her affidavit provides general information on the process and statistics of Australian deportees being deported as “returning offenders” to New Zealand, as well as information about her personal knowledge of Mr Manzone’s case. She thus qualifies herself both as a witness of fact and an expert witness. Mr Lucas submits the evidence is credible and cogent, and thus should be admitted on appeal.6

[19]      As to the substantive appeal, Mr Lucas submitted the Judge erred in not taking into account Mr Manzone’s personal circumstances as a returning offender under the visa cancellation policy of the Australian Federal Government.7 In particular, he submitted the Judge did not recognise as a mitigating factor the hardship suffered by Mr Manzone as a result of his deportation and lack of support on his arrival. Mr Lucas said the circumstances of Mr Manzone’s arrival in New Zealand, without social support, provided him with no other alternative than to revert to offending. He noted the Judge referred to the deportation in his sentencing remarks and said “it is little wonder that you have offended in the way that you have.” Mr Lucas said that, although the Judge had referred to Mr Manzone’s deportation at the outset of his sentencing remarks, he failed to take those personal circumstances into account when arriving at the ultimate end sentence. He submitted the Judge had thus failed to take into account Mr Manzone’s personal ground as he was required to do by s 8(i) or other provisions of the Sentencing Act.

[20]      Mr Lucas sought support for this approach in the recent judgment of the Court of Appeal in Zhang v R, in particular where Kós P and French J said:8

…social, cultural or economic deprivation that has a demonstrative nexus with the offending may be presented in mitigation regardless of the specific ethnicity of the offender. Likewise, the tools available in ss 25 and 27 are there for use by any relevant offender.

[21]      Mr Lucas submitted Mr Manzone’s family and social support network existed only in Australia, not in New Zealand. Mr Manzone was born in New Zealand in 1977 and he and his family left for Australia immediately after that. Mr Manzone never

6      Bain v R [2007] UKPC 33, (2007) 23 CRNZ 71.

7      See Migration Act 1958 (Cth), s 5C(1)(a) and (2)

8      Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [162] (footnote omitted).

came back to New Zealand until his deportation. Mr Lucas said “it is of no surprise due to the stress, strain and trauma of being deported from Australia that he fell back into ‘unaddressed drug use’ as noted by the District Court”. He submitted there was a direct causal link between Mr Manzone’s personal circumstances and the offending. Mr Lucas submitted the Judge ought to have applied a further discount on the end sentence of 12 months to recognise this, so the appropriate end sentence should have been three years’ imprisonment.

Respondent’s submissions

[22]      Ms Courteney said the Crown, in the interests of justice, did not oppose Mr Lucas’ application to admit Ms Reardon’s affidavit into evidence, although doubted the evidence was fresh, as it was available and could have been obtained prior to sentencing.9 Despite not opposing the affidavit’s admission, Ms Courteney submitted it contradicted statements Mr Manzone’s made in his letter to the sentencing Judge, where he complained he had not known how to access support and agencies who could assist him when he arrived in New Zealand.

[23]      Ms Courteney submitted Mr Manzone had been unable to demonstrate the Judge made an error in sentencing him by not providing for a separate discount for his personal circumstances. She submitted Mr Manzone was not someone who had suffered systemic social and economic deprivation through no fault of his own, as the Court of Appeal in Zhang said might require some recognition on sentencing.

[24]      Ms Courteney submitted the Judge had referred to Mr Manzone’s deportation from Australia so must have taken that into account. She submitted Mr Manzone had not been able to demonstrate the end sentence was manifestly excessive, taking his personal circumstances into account.

9      Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273 at [117] citing R v Bain [2004] 1 NZLR 638

(CA) per Tipping J.

Analysis

Fresh evidence

[25]      Ms Reardon’s evidence was not “fresh” as it was obtainable at the time of sentencing, so would not normally be admissible on appeal.10

[26]      Moreover, the affidavit is akin to a cultural report receivable by the sentencing Judge under s 27 Sentencing Act. The Court of Appeal has said such a report should not be produced for the first time on appeal and the matter should be remitted back to the sentencing Judge if it appears the report might make a difference.11

[27]      In this instance, I have allowed the affidavit to be before the Court. I have considered it. The evidence in that affidavit would not, in my view, have made any difference to the way the Judge sentenced Mr Manzone.

Starting points, personal aggravating features, guilty pleas and totality

[28]      Mr Lucas helpfully confirmed, but for the submission that the end sentence did not make any adjustment for Mr Manzone’s personal circumstances arising out of his deportation, he was raising no issue as to these matters on appeal. I thus deal with them briefly. There was nothing put forward by the appellant that would suggest the starting point of three years and six months for the charges of robbery and thefts of motor vehicles properly described as a spree12 or the uplift of six months for the further dishonestly offending were inappropriate in the circumstances. A three month uplift for Mr Manzone’s criminal history in Australia and the fact he offended on bail in New Zealand was modest in proportion to the starting points. A discount of just under 25 per cent for guilty pleas was appropriate. Finally, a downwards adjustment of nine months for totality brought the end sentence to four months, well within range for the totality of the offending.

10     See above at n 9.

11     Carroll v R [2019] NZCA 172 at [8]; and see Simon France (ed) Adams on Criminal Law – Sentencing (online ed, Thomson Reuters) at [SA27.01].

12     See Affleck, above n 1.

[29]      Mr Manzone arrived in Auckland on 11 June 2018 after his removal from Australia and came to Christchurch soon after.

[30]      In a letter to the Court for his sentencing, Mr Manzone told the Judge how he had never lived in New Zealand and of all he had to leave behind with his deportation. He said he arrived in New Zealand “with nothing other than the clothes on my back”. He said that, after obtaining casual work for some two months, he was in need of accommodation, food, clothing and support. He said “I didn’t know how to access agencies such as ‘Work and Income, Out of Gate” or PARS who he says were helping him with these issues at the time of his sentencing.

[31]      Mr Manzone had basically spent his whole life, some 41 years, in Australia so he was forced to leave behind the family and social network he had there. He was not able to continue living in the same country as his children. He had been forced to remove himself from much that he was familiar with in terms of all he knew of the places where he had lived, and the business, employment and social environment he understood and was confident in. He thus no longer had the security that comes with such familiarity. Judge Kellar also referred to the way Mr Manzone had been able to work as a boilermaker in Australia and had been in employment there, presumably before his visa was withdrawn and he was placed in Australian detention facilities.

[32]      Mr Manzone’s deportation to New Zealand did not however inevitably have to result in his offending in New Zealand in the way that happened. Australia and New Zealand, in terms of language, culture and work opportunities, are not too dissimilar. Immigration between both countries is common.

[33]      In her affidavit of 25 March 2020, Ms Reardon said that when deportees arrive in New Zealand at the airport, they are greeted by Police who interview them before taking their fingerprints and DNA. If they are subject to a returning offenders order, as Mr Manzone was, Community Corrections also meet them to advise them of their probation conditions. She said that, as far as she is aware, Corrections are there to impose conditions to reduce the risk of deportees offending in New Zealand. She also said “Corrections are there to ensure the deportees comply with their conditions but also to support them to access services in the community to help with reintegration

and connection”. Ms Reardon said PARS societies in New Zealand assist such people to integrate into New Zealand communities. She said such people are assisted to “obtain an IRD number, bank account, financial assistance from Work and Income, accommodation, healthcare, employment and to find social connections”.

[34]      Ms Reardon said Mr Manzone arrived in the PARS office on 27 June 2018 saying he had flown down from Auckland the night before and needed help. She said PARS assisted him with finding “healthcare, employment, probation services, household items and also assisted with emotional support when he was missing his family”.

[35]      As Mr Manzone said in his letter to the Judge, he was able to obtain casual employment for two months. He also should have benefitted from being subject to conditions imposed under the Returning Offenders (Management and Information) Act 2015. On his arrival in New Zealand, he was served with an order which remained in force until 23 July 2018. That order was extended on several occasions and was to remain in force until 10 June 2019. It was a condition of those orders that he not possess illicit drugs. On 1 December 2018, in breach of those conditions, Mr Manzone was found in possession of controlled drugs.

[36]      It also cannot be said that Mr Manzone’s criminal offending in New Zealand was caused by the way he had been separated from his friends and family in Australia. Such support, as he had from these people in Australia, had not deterred him from offending there.

[37]      The Department of Corrections provision of advice to Courts identified the factors underpinning Mr Manzone’s offending as “lack of consequential thought, his associates, anti-social attitudes and financial gain” together with “an apparent lackadaisical approach to court orders thus far”.

[38]      The report said Mr Manzone maintained he still had a supportive family in Australia. He told the probation officer there were no unusual domestic issues with his upbringing.

[39]      Unfortunately, the availability of family support in Australia did not deter him from criminal offending there. Mr Manzone had a number of convictions from a children’s court in Victoria between 1990 and 1995 for a variety of offences including burglary, theft of a motor vehicle and theft. His criminal history from Victoria included in 2004 a sentence of seven months’ imprisonment for theft, obtaining property by deception, being unlawfully on premises, theft of a motor vehicle and possession of equipment for theft. In 2011, he was sentenced to four years and six months’ imprisonment for armed robbery and theft. His New South Wales criminal history included convictions and sentences for shop-lifting and offences involving dishonesty in 1991 and 2001 as well as drug offending. Mr Manzone was sentenced to three years and 10 months’ imprisonment in Perth in May 1997 for armed robbery, stealing with violence and “deprivation of liberty”. He was released on parole on 25 November 1998 but that parole was cancelled in 1999 due to his absconding from Western Australia. He was returned to custody on 23 June 2016 after being arrested and extradited from Victoria.

[40]      Mr Manzone therefore had a pattern of offending, consistent with the way he offended in New Zealand, well before he came here.

[41]      I also do not accept that the undoubted challenges which Mr Manzone would have faced through having to move to New Zealand were the sort of social deprivation that the Court of Appeal in Zhang said could warrant a discount on sentencing.

[42]      As Ms Courteney submitted, the social and economic deprivation the Court of Appeal referred to in Zhang is that which is “ingrained and systemic”,13 not which is temporal or recent in time. The passage cited by Mr Lucas falls under the heading “Social, cultural and economic deprivation”. In the paragraphs below that heading, the Court of Appeal, in the first instance, referred to deprivation in the form of “systemic poverty” resulting from “loss of land, language, culture, rangatiratanga, mana and dignity”.14 This was thus a discussion of personal mitigating features specifically relevant to Māori. The Court’s later reference, to “social…or economic deprivation that has a demonstrative nexus with the offending may be presented in

13 At [159].

14 At [159].

mitigation regardless of the specific ethnicity of the offender”, must be seen in the context of the sort of deprivation the Court had just referred to.

[43]      Thus, for a non-Māori offender, it would need to be shown that their particular background and upbringing has led them to be in the position of systemic and ingrained deprivation. This is not the case here. The pre-sentence advice noted Mr Manzone reported no unusual domestic issues with his upbringing and maintained he had a supportive family “even now”.

[44]      I also do not accept that the Judge failed to consider Mr Manzone’s personal circumstances as to the deportation. He referred to that deportation and what Mr Manzone had to say about that in his letter to the Court at the forefront of his sentencing remarks. In doing so, he said he would return to that matter. Towards the end of his sentencing remarks, the Judge returned to the circumstances which he said had led to Mr Manzone being in Court for sentencing. It was then he said “in some ways, given the circumstances of your removal from Australia and upon arrival in New Zealand, it is little wonder that you have offended in the way that you have”. Immediately after that, Judge Kellar revisited the various starting points for the different offences, the particular uplifts and discount for guilty pleas, to arrive at an end sentence of four years and nine months’ imprisonment. The Judge then stood back to consider the overall sentence to ensure it was not wholly disproportionate to the overall seriousness of the offending. There was thus a discount of nine months, resulting in the end sentence of four years. In doing that, he said that, although he had not articulated it, he had “taken into account all of the relevant sentencing purposes and principles”.

[45]      I do not accept there was an error in the Judge not referring to s 8(i) Sentencing Act or Mr Manzone’s personal circumstances when ultimately fixing the end sentence. Section 8(i) requires the sentencing Judge to take into account:

… the offender’s personal, family, whanau, community, and cultural background in imposing a sentence or other means of dealing with the offender with a partly or wholly rehabilitative purpose.

[46]      The obvious purposes of Mr Manzone’s sentencing here were to hold him accountable for the harm he had done, to denounce his offending, to try and deter him

from further such offending and to protect the public from similar offending. It is when the Court is considering the imposition of a sentence having a rehabilitative purpose that it must take into account the offender’s wider background.15 The Judge was not considering imposing a sentence for rehabilitative purposes.

[47]      The fact that the Judge does not mention a particular sentencing principle is not, in itself, a ground for an appeal against the sentence imposed or order made.16

[48]      The Sentencing Act does, in various respects, require the sentencing Judge to have regard to the personal circumstances of an offender. The weight to be attached to those circumstances or to a particular principle in s 8 will be largely determined by the purpose or purposes of the sentencing decision and the facts of the case.

[49]      Even if the personal circumstances of an offender have caused him some hardship which has led to the offending, there does not inevitably have to be some reduction in an otherwise appropriate sentence of imprisonment. That was the case here.

Conclusion

[50]      Although Mr Manzone’s offending occurred after he faced inevitable challenges in being deported to New Zealand, there was no error in the way he was sentenced. The end sentence imposed was not manifestly excessive.

[51]The appeal is dismissed.

Solicitors:

J D Lucas, Barrister, Christchurch Raymond Donnelly & Co., Christchurch.

15     Adams, above n 11, at [SA8.15].

16     Sentencing Act, s 31(4).