R v Maney
[2019] NZHC 2048
•20 August 2019
IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY
I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE
CRI-2016-070-4452
[2019] NZHC 2048
THE QUEEN v
JASON REX THOMAS MANEY
Counsel: A J Pollett for Crown
A F Rickard-Simms for Defendant
Sentenced:
20 August 2019
Charge:
Causing grievous bodily harm with reckless disregard
Plea:
Guilty
SENTENCING NOTES OF BREWER J
Solicitors:
Pollett Legal (Tauranga) for Crown
Pacific Coast Law (Papamoa) for Defendant
R v MANEY [2019] NZHC 2048 [20 August 2019]
Introduction
[1] Mr Maney, you have pleaded guilty to one charge of causing grievous bodily harm to a person with reckless disregard for their safety.1 The maximum term of imprisonment is seven years. This is a strike two offence and so if you are sentenced to a finite term of imprisonment you will serve the whole of the sentence without being considered for parole. However, because of your history of violent offending, I also have to consider whether preventive detention is the appropriate sentence.
[2] Mr Maney, you have sat there and been sentenced many times before by many different Judges. You know that I cannot just look at you and tell you what the sentence is. Where preventive detention is an issue, sentencing can take some time. That is because although I am talking to you, I am also talking to quite a few other people – I am talking to the whanau in the public gallery, I am talking to your supporters, I am talking to the lawyers, and I am talking to other Judges. So, I am going to be a little time. Try to listen because this is probably the most important sentencing that you will receive.
Background
[3] The person you harmed is your mother. The summary of facts is brief. I will quote it:
On Sunday 21 August 2016 the defendant was at his home address on Kaitemako, Tauranga with the complainant.
For reasons unknown, the defendant became enraged with the complainant.
He hit her with his fist or unknown object with severe force, causing fractures to her right eye socket and fractures to both sides of her nose. The complainant also had serious bruising to the right side of her face as a result of the assault.
[4] I know that your mother, and you, have tried to minimise what happened. However, the injuries your mother received are not consistent with the minimisation. Dr Drummond’s opinion is that there were at least three blows and probably four. I will sentence you in accordance with the summary of facts.
1 Crimes Act 1961, s 188(2).
Finite sentence
[5] The first decision I have to make is the appropriate finite sentence for the charge. Both your lawyer and the Crown’s lawyer submit I should take a starting point of three to three-and-a-half years’ imprisonment.
[6] The aggravating features are that all the injuries you inflicted were to the victim’s head. The injuries were serious. Your mother was vulnerable due to the differences in your sizes and ages.
[7]I will adopt a starting point of three years six months’ imprisonment.
[8] I need to look at you personally to see whether the starting point should be increased or reduced. Normally, your serious record of previous violent offending would require a significant uplift. Not only have you not been deterred by numerous previous sentences of imprisonment but the short periods between your violent offending points to a particular need to safeguard the public.
[9] The Court of Appeal has said that where sentencing is for a second strike offence, care must be taken not to double count (because the second strike non-parole period arises only because there has been a first strike offence) and because not having parole available can make an otherwise regular sentence too harsh.2
[10] I have thought about that. Given your record, I would have imposed a two- thirds minimum period of imprisonment. But, looking at your history, I would do that knowing that unless you change your attitude and your approach to being in prison, you would almost certainly not be considered a good risk for parole by the Parole Board and would likely serve your sentence until your release date. For a prisoner with your record, reducing a sentence because it is a second strike can actually lead to a lesser period of imprisonment. If this were not a second strike, I would increase your sentence by eight months to take account of your previous record. As it is, I will increase it by six months. That brings your starting point to four years’ imprisonment.
2 Wipa v R [2018] NZCA 219.
[11] I take into account you entered a plea of guilty. That did not spare your mother from giving evidence because the Crown was not going to call her as a witness. Also, the history of how you came to enter your plea means little discount can be given. I will allow a reduction of two months.
[12] I do not accept you show real remorse. I acknowledge you went to a restorative justice meeting, but you then took Court action and were successful in withdrawing your plea of guilty. Neither of the health assessors give the opinion you are truly remorseful.
Conclusion
[13] Mr Maney, what this means is that if I were to impose a finite sentence on you, it would be three years 10 months’ imprisonment.
Preventive detention
[14] The charge to which you have pleaded guilty is a qualifying violence offence for the sentence of preventive detention. The purpose of preventive detention is to protect the community from those who pose a significant and ongoing risk to the safety of its members. I can impose it if I am satisfied that you are likely to commit another qualifying violent offence if you are released at the sentence expiry date of the sentence of three years and 10 months which I would otherwise impose.
[15] There is a number of matters I must take into account. The first is whether there is any pattern of serious offending disclosed by your criminal history. I am satisfied there is.
[16] In 2001 you were sentenced to 18 months’ imprisonment on a charge of injuring with intent to injure. In 2004 you were again sentenced to 18 months’ imprisonment, this time on a charge of assault with intent to injure. On 3 March 2008 you were sentenced to one month imprisonment for assaulting a police officer. On 6 August 2008 you were sentenced to two years’ imprisonment for assault with intent to rob. That offence is a qualifying violent offence for preventive detention. In 2009 you were sentenced to six months’ imprisonment for common assault, and in 2010 to
seven months’ imprisonment for assault with intent to injure. In 2012 you were sentenced to one year and 11 months’ imprisonment on another charge of assault with intent to injure, and in 2013 you were sentenced to 18 months’ imprisonment on a charge of wounding with intent to injure. That is also a qualifying violent offence for preventive detention. In 2016 you received sentences of imprisonment for one charge of common assault and one charge of male assaults female. In 2015 you were imprisoned for assaulting a prison officer and then later in 2016 you committed the attack for which I am now sentencing you. I note that the day after you attacked your mother you assaulted and threatened to kill an elderly man for which you were also sentenced to terms of imprisonment.
[17] Your first strike offence was the wounding with intent to injure to which I have just referred.
[18] I record that in 2001 you were sentenced to four-and-a-half years’ imprisonment for indecent assault. I am not going to include that sentence in my assessment because I do not see it as being part of your pattern of serious offending.
[19] The second matter I have to take into account is the seriousness of the harm to the community caused by your offending. In a sense, all crimes of serious violence harm the community. In this case I note you are for sentence on one charge involving an assault on a single occasion. The victim was a member of your close family.
[20] The third matter I have to take into account is information indicating a tendency to commit serious offences in the future. For this I have a number of sources. First, I have two PAC reports. These assess you as having a high risk of reoffending with a high risk of harm to others. Second, I have the reports of two health assessors. One, the psychologist, Ms Young, has summarised your offending as follows:
Mr Maney has been incarcerated in 11 prisons – Waikeria, Hawkes Bay, Tongariro, Manawatu, Whanganui, SHCF, MECF, Rimutaka, Christchurch, OCF and Auckland, on 14 separate occasions.
In total Mr Maney has spent 5743 days or 15.7 years in prison since 2000.
His longest period of imprisonment was five years five months from 23.11.01 to 22.4.07. He then returned to prison within two months of his release (19.6.07 – 15.2.11) for a further three years eight months.
Apart from one 14 month stay, all other periods of imprisonment were for less than a year, prior to the current period of incarceration.
On 26.11.14 Mr Maney went to Moana House for two months on electronic bail and, after being told to leave there, he spent a further seven months in the community prior to returning to prison on 4.8.15 shortly after assaulting his partner and another man on the same day (25.7.15).
Mr Maney was again released from custody on 28.6.16, but returned to prison two months later on 25.8.16, shortly after two further assaults (mother and elderly male, both family violence offences) and a threatening to kill. He has remained in custody since that time.
Mr Maney has been released from prison 13 times since 2000, and has remained in the community for periods of between four days and seven months, averaging around nine weeks out.
He has received 13 terms of imprisonment, two of periodic detention, one of supervision, two of parole, five released on conditions, two adult electronically monitored bail, one of intensive supervision. Community based sentences have not been completed successfully.
[21] Ms Young concludes you have a high risk of further violent offending unless an intensive intervention occurs. However, no intensive intervention is possible unless you are motivated to accept it and work at it. Under this heading Ms Young said:
In order to significantly reduce Mr Maney’s risk for future violent offending he would need to participate in treatment that would enable him to modify his violent attitudes and beliefs, develop empathy for the victims of his offending, take genuine responsibility for his actions, and develop a prosocial lifestyle.
[22] The second health assessor, Dr Brunskill, having discussed your history and the risk you pose, says:
For the above reasons, it is my opinion that for risk modification to be attempted, significant resources are required, including specialist treatment programmes run by Corrections and their psychology department. Such an intervention would require a degree of planning, and may include cultural considerations.
[23] Mr Maney, you will forgive me for having no doubt, looking at your history, there is identified a strong tendency on your part to commit serious offences in the future.
[24] The next factor I have to look at is the extent to which you have addressed the causes of your offending in the past. Your view is that Corrections has failed to give you any help at all. The writers of the PAC reports say, to the contrary, you have been
offered the opportunity to participate in every appropriate rehabilitative programme offered by the Department. The reports say you have been exited from the programmes or have chosen not to continue with the courses. There are no new rehabilitative interventions that can be offered to you by Corrections. It is pointed out that while subject to intensive supervision you were accepted on a residential programme at Moana House in Dunedin but after a short time you were exited from the programme for violent and aggressive behaviour.
[25] The only programme that has not been offered to you is the special treatment unit for violent offenders. This is an intensive programme aimed at those with a history of violent offending. It is intended to provide the skills necessary for you to live without further violent offending. To qualify for this programme, you would need to receive a term of imprisonment that would see you serve two years or more and reduce your prison risk classification. I note there is a similar programme available even if your risk classification did not reduce.
[26] Finally, I have to consider the principle that a lengthy finite sentence is preferable if this provides adequate protection for society. This is really the critical factor for you, Mr Maney. Everything up until now points to the need for a sentence of preventive detention. At this point, I can consider what has been said on your behalf about why the support you now have raises good prospects that if you are released from a finite sentence you can be given support that is necessary and appropriate to break the cycle of your offending.
[27] I have listened carefully to the people who have spoken on your behalf today. I have been particularly impressed by their sincerity and their willingness to help you make change. I have read the cultural report and I have listened carefully to Mr McFarlane talking about the Puwhakamua Programme that he has been running for the past 15 months.
[28] It seems to me that the Puwhakamua Programme is one that would suit you. I say that not just because of the cultural context but because of the way the cultural context is shaped to focus on behaviour and the need to change behaviour. I think the programme is impressive. Just as importantly my judgment of Mr McFarlane is that
he is the sort of person who would understand you and would have your respect and trust. He is not alone. There are others who cluster around the programme and indeed the other people who are participating in it would have a hand. Some have been where you are now.
[29] I have also read all the letters which have been put forward on your behalf and an email from Mr Meacock who is a corrections officer at Waikeria and who attests to your apparent recent change of attitude.
[30]I can take all of that into account, Mr Maney.
[31] I also take into account, as all the reports make clear, that you are the product of an abusive childhood. You are now a man with a lifetime of using violence when you get angry, often against those who are in close relationships with you. The health assessors’ reports show that as part of this you minimise your actions, blame your victims and although you say you take full responsibility, the truth is you never have. It might be that at 38 years of age, and recognising that you need help, you are finally ready to seek it.
[32] There has been no charge of violence against you in the three years you have been on remand. I have today been made aware of a breach of bail which occurred in April 2019 and that does tend to show that you still impulsively do what you want to do.
[33] Against that, you point to changes in your behaviour in prison. I have had two incidents related to me where you have shown restraint where in the past you might very likely have restorted to extreme violence. You controlled yourself and did not resort to violence.
[34] I am influenced by Mr McFarlane who does not strike me as a person who gives trust lightly. He assesses you as being ready to change and to join his programme. Your lawyer urges me to accept that you are ready for change.
[35] Against that is your history and the very high risk you pose of reoffending. Preventive detention is there to protect the community. It is not a sentence of last resort. If a prisoner can show he is willing to change with help such as from the special treatment unit for violent offenders, then the prisoner can expect to be released on parole. That is what Ms Pollett for the Crown submits I should conclude.
[36] I have decided that the change in your attitude, although recent, plus the availability of the Puwhakamua Programme, gives me the ability to sentence you to a finite term of imprisonment and not to preventive detention. I will trust Mr McFarlane and his group to mitigate the risk you would otherwise pose.
[37] Let me say this, Mr Maney. I do not underestimate how hard it is for a 38- year-old man to make real change. But you are also an intelligent man. You know I am giving you a last chance. You commit a third strike and you will be in prison for seven years or 14 years, depending on the strike. But I would say that preventive detention would be inevitable if you commit a third strike. I think your understanding of that simple fact is likely to assist you in sticking with the programme.
Sentence
[38] Mr Maney, on the charge to which you have pleaded guilty, I sentence you to three years 10 months’ imprisonment.
[39]You may stand down.
Brewer J