R v Mane
[2021] NZHC 2511
•21 September 2021
IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE
CRI-2020-027-000859
[2021] NZHC 2511
THE QUEEN v
DAVID MANE
Hearing: 21 September 2021 Appearances:
RB Annandale for the Crown WD McKean for Mr Mane
Sentencing:
21 September 2021
SENTENCING NOTES OF JUSTICE ROBINSON
Solicitors:Marsden Woods Inskip Smith, Whangarei Webb Ross McNabb Kilpatrick, Whangarei
R v MANE [2021] NZHC 2511 [21 September 2021]
[1] Kia Ora Mr Mane. As you know you are before the Court today to be sentenced after pleading guilty on the following eight charges which I have to read out:
(a)The first, receiving stolen property which has a maximum sentence of one year’s imprisonment;
(b)Unlawful possession of a firearm which has a maximum sentence of four years’ imprisonment;
(c)Unlawful possession of explosives being ammunition also having a maximum sentence of four years’ imprisonment;
(d)Presenting a firearm at another person which has a maximum sentence of 6 months imprisonment;
(e)Driving a motor vehicle while disqualified which has a maximum sentence of three months’ imprisonment and six months’ disqualification;
(f)Failing to stop;
(g)Wounding with reckless disregard for the safety of others which has a maximum sentence of seven years’ imprisonment; and
(h)Male assaults female which has a maximum sentence of two years’ imprisonment.
[2] I am going to begin by saying Mr Mane that my sentencing decision today has not been an easy one. The offences that you have responsibly pleaded guilty to are serious and as the Crown has said and as your lawyer has accepted, and as you have accepted you need to be held accountable for that offending, and the community needs to be sure that it is being kept safe. On the other hand, as your lawyer Mr McKean has done a very good job of pointing out to me, you are still a young man, you were only 19 when the offences occurred. You do come from a very troubled and, if you do not mind me saying, a sad and unfortunate background. There is no question that you
have had a difficult start to your life and none of that is your fault. We all need to do all that we reasonably can to help your rehabilitation. My job today, and as I say it has not been an easy one, is to impose a sentence that balances all of those things.
[3] What I will do now Mr Mane is just briefly set out the facts that are relevant to your sentence. I will then fix a starting point for your sentence, taking into account aggravating or mitigating factors of the offending, and then we will look at the overall totality of your offending to set the starting point for the sentence. Then I will take into account your personal circumstances or any personal circumstances that might increase or decrease the sentence that you should receive.
[4] I take the following background facts from the summary of facts that you, as I say, quite responsibly have accepted. I know that you are aware of the facts but part of what I am doing now is recording them for others.
The offending
[5] On 24 May 2020, firearms, ammunition and firearm accessories were stolen from a gun safe at a home in Whangārei. At some time after the burglary but before 13 June 2020, you received some of those stolen items. Those items included: a Mossberg Maverick 88 Pump action Shotgun (“the stolen shotgun”), a camouflage bum bag, ammunition found in the camouflage bum bag, ammunition in the stolen shotgun and gun safe keys that match the gun safe in the house. Those items were worth approximately $768.
[6] You have never held a New Zealand Firearms licence and therefore, your possession of the stolen shotgun and the ammunition was unlawful.
[7] On 13 June 2020, at approximately 1.40 pm, you were driving in Moerewa with the stolen shotgun. At that time, you were disqualified from driving or holding a driver’s licence.
[8] You drove past a tyre shop where Mr K was standing with some of his associates. You took issue with Mr K. You slowed down the vehicle that you were driving and you yelled out to him and he responded.
[9] You pulled up next to Mr K, you got out of the car and you pointed the stolen shotgun at him. Mr K put his hands up and turned to walk away. You then lowered the stolen shotgun and returned to the vehicle.
[10] You drove to a relative’s address, where you concealed the stolen shotgun and you left. Later that day the Police searched the address and found the stolen shotgun and the other items that you had received which had been stolen from the house in Whangārei.
[11] A short time later the Police identified you driving in Moerewa. The Police pulled up next to you and told you that you were under arrest for presenting a firearm. You asked what the arrest was for before and you reversed the vehicle and drove away. The Police pursued you. You drove along some railway tracks. You then abandoned the vehicle and you ran off on foot.
[12]The Police did not locate you.
[13] One week later on 20 June 2020, Mr A and his partner noticed that his motorbike had been stolen from his shed overnight. Mr A and his partner, their baby, Mr A’s younger brother and a friend went to visit local addresses where they suspected the motorbike might have been taken.
[14] At approximately 7.20 am, the group drove to an address occupied by one of your associates. They parked the car in the driveway. Mr A together with his brother and his friend went to the garage and located his motorbike. You were asleep in the garage or in a room in the garage at that time. Mr A tried to remove the motorbike.
[15] As Mr A was leaving the garage you approached him holding a pump action shotgun. You struck Mr A on the back of his head with the end of the gun. An argument started between you and your associate, and Mr A, his brother and his friend.
[16] Mr A and his associates started to move backwards down the driveway. At some point they were seen holding bats next to the car.
[17] At this point Mr A was standing on the driveway about six metres away from you. You were still holding the shotgun. You pointed the shotgun in the general direction of Mr A’s legs, and you fired it. A number of the pellets lodged themselves in Mr A’s legs and in his stomach muscles. He fell to the ground. With assistance, he got into the car and was driven to the Bay of Islands Hospital.
[18]Mr A suffered:
(a)Bruising over his right shoulder;
(b)Had multiple shotgun pellets in his abdominal wall which fortunately did not penetrate beyond the muscles of his abdominal wall; and
(c)Had two shotgun pellets in his left leg and seven shotgun pellets in his right leg.
[19] Mr A did not require surgery for the wounds and he was discharged that day with pain relief and antibiotics.
[20] Later that day, at 12.40 pm, you and associates drove to another house in Moerewa. You all remained in the car. The occupants of the house were Mr O and Ms C. Mr O came out to speak with the occupants of the car. One of the people that you were in the car with you got out of the car and punched Mr O multiple times to the face and the body.
[21] Mr O’s partner Ms C ran out of the house to try to help him break free. You then got out of the car, came around and kicked Ms C hard to the upper body/head area. You also tried to punch her, but you missed.
[22] That altercation stopped when a neighbour yelled out and you and your associate got back in the car and you drove away.
Victim’s views
[23] I have been provided with some statements from the victims Mr Mane. First from Mr T, who owned the firearms that were taken from the gun safe, he said that they were stolen from his grandmother’s place and that as a result she no longer feels safe in her home. Mr T said he was angry that somebody would use his firearms to hurt other people.
[24] Mr K and his partner, Ms A, wrote about how having the shotgun pointed at them by you made them feel scared and vulnerable. They say they didn’t know “how it was going to end up” and that they “don’t ever want to have to go through anything like that again”.
[25] Mr A said that he was unable to walk properly for a time after he was shot at. He said he was really scared afterwards for the safety of his partner and their baby. He said his partner was scared that you or your associates might come back. Mr A says that he is “just so glad that [he] survived” and that “what happened has had a big impact on [his] family”.
[26] I accept Mr Mane that you have reached out to these victims in order to explore the possibility or the opportunity for restorative justice. However none of the victims wanted to meet with you for that purpose and that of course is their right.
Purposes and principles of sentencing
[27] Mr Mane the relevant purposes of the sentencing in your case that I need to take into account are these: to hold you accountable for the harm that you have caused by your offending; the need to promote in you an acknowledgement of and a sense of responsibility for that harm; the need to denounce and deter your conduct; the need to protect the community; and also of course the need as much as we can to assist in your rehabilitation.
[28] The particularly relevant principles to be taken into account are the gravity of the offending and the seriousness of the offending when compared with other types of
offending. There is also the general desirability of having consistent sentences between similar offenders committing similar offences, and the need to impose the least restrictive outcome that is appropriate in the circumstances.
Grouping
[29] In some respects, the offences for which you are to be sentenced are similar and are a connected series of offences. Mr Annandale and Mr McKean have spoken to me about that this morning. Mr McKean on your behalf says that all eight of the offences really amounted to a connected series of offences and that you should receive concurrent sentences for all eight offences.
[30] However, I agree with Mr Annandale that in some respects the eight offences are different and disconnected and that they can be divided into three groups.
[31] The first group of offences relate to the stolen firearm and ammunition. The six offences in this group include: receiving stolen property; unlawful possession of a firearm; unlawful possession of ammunition; presenting the weapon at Mr K; driving while disqualified; and failing to stop.
[32] All of these offences took place on or before 13 June 2020. In my view you should receive concurrent sentences for each of them.
[33] The next two charges relate to the events of 20 June 2020. First there is the discharge of the shotgun which wounded Mr A. That took place at around 7 o’clock in the morning. Then there is the assault on Ms C which occurred when you kicked her in the upper body. That took place at a different location at 12.30 in the afternoon. I agree with Mr Annandale that these two offences are not sufficiently connected in time or otherwise to be part of a connected series of offending.1 However, I also agree with your lawyer Mr McKean that in order to ensure that the total term of your sentence is not disproportionally long the sentences for these two offences should be served concurrently.2
1 See Sentencing Act 2002, s 84(3).
2 Sentencing Act, s 85(3); R v Xie [2007] 2 NZLR 240 (CA) at [18].
Group one starting point
[34] The lead offence in the first group of offending is that of unlawful possession of a firearm. This carries a maximum penalty of four years’ imprisonment. The other five offences are aggravating features.
[35] Mr Annandale for the Crown has referred me to four earlier cases which I will list in my sentencing notes but do not need to go into too much detail here.3 I have though read these cases carefully. In R v Richardson the Court of Appeal upheld a two year starting point and in the other three cases the relevant starting point was two years and six months imprisonment.
[36] Comparing your offending with that that occurred in the cases I have referred to I consider that a two year starting point is appropriate for this offence. I accept the Crown’s submission that aggravating features of this offending include that the firearm was stolen; that you unlawfully possessed ammunition that could have been used in the firearm; that you presented the firearm at a member of the public; and that you drove dangerously while disqualified to avoid being apprehended by the Police. I also accept the Crown’s submission that it is likely that the firearm was loaded given that it was loaded when the Police found it. I add six months to the sentence to reflect these factors.
[37] Taking all these factors into account I adopt a starting point for this group of offending of two years and six months imprisonment.
Wounding with reckless disregard
[38]This offence carries a maximum penalty of seven years’ imprisonment.
[39] The Crown says that the following features are aggravating: the presence, use and nature of the firearm; the fact that it occurred in a residential setting; and the impact on Mr A. The Crown submit that the offending is similar to R v Yates where
3 R v Richardson CA 450/02, 25 March 2003; Torea v R [2011] NZCA 96; Herewina v Police [2014] NZHC 2396; and Dewes v Police HC Christchurch A60/03, 12 June 2003.
Mr Yates received a starting point of five years and six months.4 In your case the Crown submits the starting point of between four years and three months or four years and nine months is appropriate.
[40] Mr McKean relies on a case called R v Nuku.5 That case concerned injuring with intent to injure, so different considerations apply. Mr McKean said that there is only really one aggravating feature here which is that you used a firearm.6 He points out that you were asleep when the three men arrived at the property. He also points out that you acted impulsively and says that you fired a warning shot at a time when Mr A and his associates were holding bats. He points out that although Mr A was hurt, injuries were not serious.
[41] I agree with Mr McKean that the offending in Yates was considerably more serious than your offending. This was an aggressive gang response with no provocation. Mr Yates had an AK-47 and he fired multiple shots at the victim and at his house with the victim receiving life threatening injuries. I agree with Mr McKean that this offending is quite different and that the starting point of five years’ six months that was used in that case would be quite excessive here.
[42] Taking into account the previous cases to which I have been referred, and the relevant purposes and principles of sentencing, I fix a starting point of three years and six months’ imprisonment for this offence.
Group three starting point
Male assaults female
[43] The third offence was the male assaults female charge in relation to the assault on Ms C. As I have said that offence occurred later on the same day. You and your associates had driven to Mr O and Ms C’s address and when a fight broke out between Mr O and one of your associates you assaulted Ms C. I fix a starting point of six month’s imprisonment for that offending.
4 R v Yates [2017] NZHC 2236.
5 Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39.
6 R v Taueki [2005] 3 NZLR 371 (CA), at [32].
Starting point conclusion
[44] So where does that all get us. I agree with Mr McKean that the starting point adopted by the Crown of between seven years and nine months and eight years and nine months is obviously excessive. in my view the suggested reduction to six to seven years is still too high. In my view the sentences for the group offending and for recklessly wounding Mr A should be served cumulatively but looking at the totality of the offending I adopt a starting point of five years. The sentence for assaulting Ms C should be served concurrently. Taking these sentences in combination in this way I adopt a total starting point of five years’ imprisonment. I think standing back this properly addresses the totality of the offending.
Personal circumstances
[45] Mr Mane I turn now to consider your personal circumstances and how they are relevant to the sentence that you should receive.
[46] First, you are entitled to a discount for having pleaded guilty to these charges. This shows that you have taken responsibility for your offending. The guilty plea came about one year after the proceedings started, but it followed on from resolution discussions that I understand were started by your lawyer fairly early on. It is also the case that the Crown has amended its position significantly and that at that point you pleaded guilty.
[47] I accept Mr McKean’s submission that you pleaded guilty to these reduced charges pretty much as soon as they were brought and I will allow a 15 percent discount to reflect this guilty plea.
Youth
[48] Secondly Mr Mane there is your age which I touched on at the beginning. You are still a very young man having just turned 21 last week. You were only 19 years
old at the time of offending. Your youth is a mitigating factor, it is a reason why I will reduce your sentence.7
[49] Mr Mane your young age is relevant because the Courts accept that there can be neurological differences, differences in people’s brains between young people and adults.8 In particular, the parts of our brains that control our impulses and our reasoning, and our ability to assess risk and to think about consequences, are not fully developed at 19, or even sometimes into our twenties. I accept Mr McKean’s submission that a lot of the offending that brings you here today does involve impulsivity, recklessness, and just not thinking about the consequences of what you do. I accept that this is partly due to your youth.
[50] The Courts also accept that youth is relevant because of the negative effects that imprisonment can have on young people like you in particular.9 From what I can tell Mr Mane that certainly seems to be the case for you. I note from the reports that I have received and from my discussions with your counsel this morning that during your time on remand you have renewed gang affiliations with the Killer Beez that you had previously indicated you were trying to end.
[51] Taking all of this into account I will allow a discount of 10 percent on account of your age at the time of the offending.
Pre-Sentence Report
[52] Mr Mane I have received a pre-sentence report. I have also received a specialist Maori cultural report and a s 27 report. As I said at the beginning these all show that you have had a very difficult start to life, and that in some ways that is what has led you here.
[53] The pre-sentencing report was prepared by the Department of Corrections on 20 July 2021. It assesses your likelihood of re-offending as high due to your poor impulse control and antisocial lifestyle. It says that the risk of harm to others is high
7 Sentencing Act 2002, s 9(2)(a).
8 Churchward v R [2011] NZCA 531 at [76]; R v Tarawa [2018] NZHC 3205.
9 Churchward v R, above n 8, at [77].
due to your use of firearms. The report recommended that the Court impose a sentence of imprisonment due to the gravity of your offending and what the author of that report thought was the high risk of your re-offending.
[54] However, the PAC report also notes that you have expressed a willingness to engage in rehabilitation. I do hope that is right Mr Mane. The report writer has contacted Dr Young, a psychologist who you have been attending counselling with since 2018. In the report Dr Young indicates that she has seen what she says is a massive shift in Mr Mane’s behaviour, and a huge improvement in his attitude over the last six months. She feels that you have started to take rehabilitation seriously. As I say Mr Mane, I hope very much that Dr Young is right.
[55] The specialist Maori culture assessment was prepared in September 2020 and a s 27 report was prepared just this Saturday on 18 September 2021, I think due to difficulties with the COVID restrictions, and it was filed with the Court yesterday. Both counsel made oral submissions about it this morning.
[56] The s 27 report records as background that you are the youngest of five siblings and you also have other half siblings. You grew up constantly exposed to violence - domestic violence, gang violence - witnessing your father abuse your mother and sometimes being the victim of his abuse yourself. You should not have had to have gone through that Mr Mane and it is not your fault, as I said, that you did.
[57] You told the report writer that violence is all that you have known and that is why you use it to resolve your issues. You said that you grew up surrounded by gangs and that many of your whanau were involved in the gangs.
[58] The author of that s 27 report Mr Mane speaks of your background of adversity, disadvantage, deprivation and trauma. It refers to you having had an upbringing marred with emotional and physical abuse, and have been brought up in an environment where substance abuse was also rife. It records and concludes that violence and drug problems were transmitted intergenerationally down to you from generations above. The authors have concluded that all of this has had a causative impact on your offending and I accept that.
[59] You were excluded from school at a very young age. You were first on bail and ultimately detained in a Youth Justice residential facility at 13 or 14 years of age. You were in and out of these residential facilities until you were 17 and then you reported that you pretty much went straight to prison.
[60] Drugs have been a big part of your life. You say that you have always smoked cannabis and that you have regularly used methamphetamine. The s 27 report says that this reflects at least in part cultural deprivation, the loss of your connection with Tikanga Māori, your Whakapapa and Te Reo.
[61] Mr Annandale says that this part of the report is inconsistent with the earlier reports which show that you were close to your grandfather who did introduce you to Te Reo, to your Whakapapa and to life on the marae. I accept Mr Annandale’s point, however it is clear that unfortunately those things have not regularly been part of your life or your family’s life. I also note that your grandfather who passed these things onto you passed away sadly not very long before your recent offending.
[62] For these reasons Mr Mane I am prepared to allow a further 10 percent discount on account of the matters that are raised in the s 27 report.
[63] Finally Mr Mane, Mr McKean on your behalf says that you are remorseful, that your remorse is genuine and that it entitles you to a further discount. He points out, as I have said, that you tried to initiate restorative justice and I accept that. He also read to me the letter that you have recently written to your victim, Mr A.
[64] Mr Annandale says I should be careful about any suggestion that you are remorseful given that you keep re-offending. There is something in that. I agree with Mr Annandale that you have displayed a pattern of repeated offending and that it is time for it to stop. However I do accept that you genuinely regret your actions and that you are not just saying that because you are sitting here today.
[65] I am prepared to a give a further discount of 5 percent on your sentence Mr Mane to reflect your remorse for the offending.
[66] This gives a total discount of 40 percent. Applying that to a starting point of five years results in a total sentence of three years’ imprisonment.
[67] Mr Mane before I sentence you, I want to reiterate something that Mr McKean has said in his written submissions to me. He says that you are at something of a crossroads. He says you can choose to better yourself or you can continue down a path of criminal offending. Mr McKean says that it is still worth us all investing in you, and investing in your rehabilitation in the hope that you will make the changes necessary. I agree with Mr McKean.
[68] Ultimately of course it is up to you and I really do hope that you take the opportunity to rehabilitate. You are at the very beginning of your adult life and it would be a tragedy if you were to keep coming back here. As I have said Mr Mane you have had a much harder start in life than many people, you have had a much harder start in life than anyone deserves. You have probably had a much harder start in life than anybody else sitting in this hearing and that is not your fault, but looking ahead Mr Mane it is up to you.
[69] If we were in a normal courtroom Mr Mane I would ask you to stand but I am not going to do that, but I am now going to sentence you:
(a)On the charge of unlawful possession of a firearm I sentence you to one year and three months’ imprisonment.
(b)On the charge of unlawful possession of explosives being ammunition I sentence you to one year and three months’ imprisonment.
(c)On the charge of receiving stolen property I sentence you the three months’ imprisonment.
(d)On the charge of presenting a firearm at another person I sentence you to two months’ imprisonment.
(e)On the charge of driving while disqualified I sentence you to one month’s imprisonment and you are also disqualified from driving for six months.
(f)On the charge of failing to stop you are convicted and disqualified from driving for one year.
(g)On the charge of wounding with reckless disregard for the safety of other I sentence you to one year and nine months’ imprisonment.
(h)On the charge of male assaults female, I sentence you to six months’ imprisonment.
[70] The sentences for unlawful possession of explosives, receiving stolen property, presenting a firearm, driving while disqualified and failing to stop are to be served concurrently with the sentence of unlawful possession of a firearm.10
[71] The sentence for wounding with reckless disregard is to be served cumulatively with those first offences.
[72] For totality the sentence of male assaults female is to be served concurrently to the sentence for wounding with disregard.
[73]The total sentence will be three years’ imprisonment.
[74] Thank you Mr Mane, you may stand down and I really do wish you all the very best.
Post-script
[75] After Mr Mane had been stood down Mr Annandale quite correctly pointed out that the two periods of disqualification from driving must be served cumulatively and not concurrently. That is pursuant to s 52A(6) of the Land Transport Act 1998 (“Act”).
10 But see the post-script at paragraphs [75] and [76] below.
That subsection applies because this is Mr Mane’s second conviction of an offence under s 52A(1) of the Act (failing to stop), as a result of which he has been disqualified for one year (pursuant to s 52A(4) of the Act).
[76] I therefore confirm for the avoidance of doubt that the disqualification periods of six months for dangerous driving and 12 months for failing to stop are to apply cumulatively.
Robinson J