R v Manutui
[2015] NZHC 2880
•19 November 2015
ORDER PROHIBITING PUBLICATION OF MEDICAL AND PSYCHOLOGICAL ILLNESSES OF THE CO-DEFENDANT
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2014-092-010726 [2015] NZHC 2880
THE QUEEN
v
FAATIGA JOE MANUTUI
Hearing: 19 November 2015 Appearances:
C Piho for the Crown
N Tupou for the DefendantSentencing:
19 November 2015
SENTENCING REMARKS OF WOOLFORD J
Solicitors/Counsel:
Crown Solicitor, Manukau
N T Tupou, Auckland
Sinisa Law Limited, Auckland
R v MANUTUI [2015] NZHC 2880 [19 November 2015]
Summary
[1] Mr Manutui, you appear for sentence as a party to one count of kidnapping.1
You are to be sentenced today on the basis of a sentence indication which I gave on
7 October this year.2
Facts
[2] As I have canvassed the facts extensively in your sentence indication, I will not go through them all today. That indication will be annexed to these notes in any event. It suffices to say that in September 2014, your partner had convinced you that she was pregnant, due in part to mental illnesses on her part. On 25 September 2014, after entering the hospital on the supposed due date, you were informed by a nurse, in front of your partner, that she was not pregnant.
[3] You left your partner at the hospital while the nurse was supposedly running a “second check” on your partner’s name. Around 20 minutes later, your partner called you to say she had given birth and you returned to collect her and the baby girl she had with her. Despite a number of warning signs and inconsistencies in your partner’s story, you took her and the baby home. You made no efforts to contact the hospital or the Police.
[4] The Police arrived at your house in the early hours of the following morning and it became evident that your partner had kidnapped the baby girl from the maternity ward. Luckily, the baby was returned unharmed.
Personal circumstances
[5] Mr Manutui, you are a 32 year old Samoan man, with one child to a previous partner. You have only one minor prior conviction for breaching the Civil Aviation Act. The pre-sentence report assesses you as being at a low risk of causing harm to
the community, and at a low-risk of reoffending.
1 Crimes Act 1961, s 209(b) and 66(1).
[6] The same report notes that you expressed deep remorse for the child’s family, recognising that they were also victims. You recognised the stress, worry and anger the family must have suffered, and expressed a desire to apologise to them and to reassure them that their child was well taken care of while she was with you. You also admit that you were gullible and that you did not act on your instincts. You have certainly, in that respect, suffered a large punishment for not doing so. A conviction for kidnapping is very serious, and you now have a first strike under our three strikes warning system. Any future offending by you will be treated very harshly indeed.
[7] However, you report being in a new, stable relationship and getting significant support from your partner’s family. You are pursuing study, and the report writer notes that you are determined that this conviction not affect your future prospects. You say that you have learnt the need for honesty in relationships and to trust your instincts.
Sentencing
[8] The sentencing process follows a standard approach under the Sentencing Act
2002 (the Act).3 I will outline the appropriate starting point, before making any appropriate allowances for personal, aggravating and mitigating factors.
[9] In doing so, I have considered the purposes and principles of sentencing as set out in the Act.4 The dominant purposes of sentencing in this case are the needs to denounce this offending, to hold you accountable for the harm done to the victim and her family, and to promote a sense of responsibility for the harm caused by your offending. The key principles to be taken into account are the gravity of the offending, your degree of culpability, as well as the need to impose the least restrictive outcome that is appropriate in the circumstances, in accordance with the hierarchy of sentences set out in the Sentencing Act.
[10] There is no tariff case for kidnapping, and the case law in the area of child kidnapping is highly varied. I have considered a range of cases in the area, and none
3 R v Clifford [2012] 1 NZLR 23 (CA).
were on all fours with the current case. Nor do any reflect the unique part you played in this crime.5 Essentially, the previous cases suggest that a large range of possible sentences are available to the Court in this area.
[11] Based on those cases, I identified the aggravating factors of the offending itself as being the vulnerability of the five day old baby, and the extent of the harm caused to the family of that child. I have today been provided with updated victim impact reports from the baby’s mother and father and the effects of the loss of their baby for a few hours still continues to have grave consequences for the family. It is clear from your pre-sentence report, however, that you have reflected on the harm and fear that you have caused the family. Although your wish to reassure them that their child was well-treated is positively motivated, this sentence must recognise that the family had no way of knowing that during the five or six hours their child was missing.
[12] You had a limited role in actively taking the baby from the hospital. But you were wilfully blind in taking that baby home despite the many clues that you had that something was wrong. In this case, as I signalled to you, a starting point of nine months imprisonment is appropriate.
[13] Your guilty plea and the strong remorse you have shown require recognition in the sentence you receive. It is best practice to treat these separately. In light of the genuine remorse you showed to the pre sentence report writer, I propose applying a discount of 10 per cent. This would reduce your sentence to eight months imprisonment.
[14] Your guilty plea was not at the earliest possible opportunity, but occurred very soon after the details of the charge against you were substantially and responsibly revised by the Crown. In my view, you are still entitled to around a
20 per cent discount to recognise your guilty plea. This would bring your sentence
to around six and a half months imprisonment.
5 See R v Bell CA268/01, 7 August 2002; R v Eketone CA151/04, 27 April 2005; R v Skelton HC Auckland CRI-2007-019-6530, 18 December 2008; R v Liu CA196/02, 18 November 2002; R v Narayan [2012] NZHC 2823; R v Harrison [2009] NZCA 162; R v Paalvast CA342/05, 17
October 2005.
[15] In my view, the comments made in my sentencing indication, that the purposes and principles of sentencing do not require a sentence of imprisonment to be imposed on you, continue to apply. As the end sentence I have reached is a short sentence of imprisonment, this entitles me to consider home detention and other community-based sentences as sentencing options if appropriate.6
[16] In this case, a community-based sentence is clearly appropriate. Although Mr Manutui, you did not suffer a mental illness, your behaviour was guided by an individual who was suffering such an illness and who went to great lengths to deceive you. Although your behaviour was unthinking and cavalier, it is not behaviour which warrants a sentence of imprisonment. In not investigating the identity of the baby your partner had with her, and deciding to get a good sleep and discuss your concerns with her in the morning, you were callous to the concern that the child’s family were feeling. However, it involved no planning and there is very little likelihood of you reoffending.
[17] Six and a half months imprisonment would give rise to a sentence of around three months home detention. However, as I signalled in your sentence indication Mr Manutui, I consider that community detention is the most appropriate sentence for you. The purposes and principles of sentencing are not best met by you being excluded from the community, as a sentence of home detention or imprisonment would do. Further, it would not adequately reflect your culpability, or assist you in gaining a sense of responsibility for the offending you facilitated.
[18] The pre-sentence report which I have received does not indicate anything which would mean a sentence of community detention would be inappropriate.
[19] I have considered the factors set out in s 55 and s 56 of the Sentencing Act. I consider that the nature of your offending also make it appropriate that you be held accountable to the community by participating in community work. Helping you continue to take responsibility for your actions will require you to engage with your community, so that you can continue to appreciate how your actions affect those around you, and those you do not know. Your pre-sentence report reflects that you
have already gained some understanding of the gravity of your actions. I intend this sentence of community work to help you continue in that regard.
[20] I therefore impose on the charge of kidnapping a sentence of three months community detention and 250 hours community work.
[21] In recognition of the need to sanction your behaviour, I signalled that a curfew attached to your community detention sentence would be appropriate.7 For the three months you are sentenced to community detention, I consequently require you to observe a curfew. This will be structured in order to allow you to continue your study, which I hope will give you a means to engage in the community in a more meaningful way following your sentence.
Conclusion
[22] Mr Manutui, I sentence you to three months community detention, with a curfew for that entire period, and 250 hours community work.
[23] You are to reside at your current address during the curfew hours for the duration of the sentence. The curfew hours I set will be between the hours of
9:00 pm and 5:30 am daily.
……………………………….
Woolford J
NOTE: PUBLICATION OF THE JUDGMENT AND OF THE REQUEST FOR A SENTENCING INDICATION IN ANY NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE IS PROHIBITED BY SECTION 63 OF THE CRIMINAL PROCEDURE ACT
2011 UNTIL THE DEFENDANT HAS BEEN SENTENCED OR THE CHARGE DISMISSED.
ORDER PROHIBITING PUBLICATION OF MEDICAL AND PSYCHOLOGICAL ILLNESSES OF THE CO-DEFENDANT.
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2014-092-010726 [2015] NZHC 2446
THE QUEEN
v
FAATIGA JOE MANUTUI
Hearing: 7 October 2015 Appearances:
N Walker for the Crown
N Tupou for the DefendantSentencing:
7 October 2015
SENTENCE INDICATION OF WOOLFORD J
Solicitors/Counsel:
Crown Solicitor, Manukau
N T Tupou, Auckland
Sinisa Law Limited, Auckland
Summary
[24] Mr Faatiga Joe Manutui is charged as a party to one count of kidnapping.8
Kidnapping has a maximum sentence of 14 years imprisonment. Mr Manutui has applied for a sentencing indication.
Facts
[25] At around 8:45 pm on 25 September 2014, Ms Marsh (the defendant’s then partner) kidnapped a five day old baby from the maternity ward at Middlemore Hospital. The offending stemmed from mental illnesses suffered by Ms Marsh, which caused her to wrongfully believe she was pregnant. Ms Marsh also suffered from a serious disease, which caused her stomach to bloat among other symptoms.
[26] She told Mr Manutui that she was pregnant with his child in January 2014, after they had been together since around December 2013. Mr Manutui told the Police that at the time, he expressed some scepticism as to the pregnancy, as in his view, it seemed unlikely that it had been “only two weeks” and she had immediately become pregnant. However, he trusted Ms Marsh.
[27] Ms Marsh later provided him with scans of her sister’s twin baby boys, which she said were hers. Due to her disease, Mr Manutui saw her stomach increase in size. He also felt movements in her stomach, and Ms Marsh complained of back pain. They bought baby equipment and obtained baby clothing. Mr Manutui did not, however, attend any midwife appointments with her.
[28] On 6 August 2014, Ms Marsh went to Middlemore Hospital’s Birthing and
Assessment Unit and was told that she was not pregnant.
[29] However, Ms Marsh told Mr Manutui and others that her due date was
24 September. She told Mr Manutui that she had an appointment at 7:00 pm that day with her midwife.
8 Crimes Act 1961, s 209(b) and 66(1).
[30] Ms Marsh and Mr Manutui arrived at Middlemore at about 8:15 pm and went to the maternity ward. About ten minutes later, a midwife approached them, and Ms Marsh told her that she was due and that she wanted to see her midwife, whom she named. When the midwife checked Ms Marsh’s details on the system, she told Ms Marsh that the file said she was not pregnant. Mr Manutui heard this. He told Police later that he was shocked, and that he had not believed the midwife. Ms Marsh asked for another check on her name to be performed.
[31] Mr Manutui left the waiting room to go home at 8:35 pm, apparently while the couple were waiting for the nurse to run this secondary check. He told Ms Marsh to contact him when she went into labour. He explained these actions to the Police later on the basis that he thought he could not stay overnight at the hospital, but that he could return for the labour.
[32] When Mr Manutui was absent, Ms Marsh took a baby girl from the room next to the waiting room. She exited the hospital at 8:56 pm and called Mr Manutui at 8:58 pm to say she had given birth to her baby. About 20 minutes passed between Mr Manutui leaving the maternity ward, and collecting Ms Marsh and the baby.
[33] At this stage, Mr Manutui confronted Ms Marsh and told her that he did not believe the baby was hers. Mr Manutui had a baby girl with a former partner, and consequently had some experience and knowledge of childbirth. He stated to Police that he had serious doubts and concerns because he recognised that the baby did not look like a newborn, that Ms Marsh had likely not given birth and left hospital within about ten minutes, that Ms Marsh did not appear to walk like a woman who had just given birth, and most problematically, that they were apparently expecting twin boys and this was a baby girl, with very white skin despite his dark skin.
[34] Despite these concerns, Mr Manutui went along with Ms Marsh’s assertion
that the baby was theirs. He said that he did this because of his trust and love of her.
[35] Ms Marsh did not want to go back to the hospital to wait to get a taxi home. They walked across the road and around the corner to get a taxi. Two strangers who
were in the neighbourhood offered the couple, and the baby, a lift home, which they accepted.
[36] The Police arrived at 4:40 am the next morning. Mr Manutui later told Police that when they knocked on the door, it gave away the fact that the baby had been stolen from the hospital. He said that he had been happy they had arrived, as he had a feeling that something was not right.
[37] The baby was returned to her parents unharmed.
Personal circumstances
[38] No pre-sentence report or other information about Mr Manutui’s personal
circumstances is available prior to this sentencing indication. However, he is a
31 year old Samoan man, with one child to a previous partner and now in another relationship. He has one previous conviction, for a breach of the Civil Aviation Act in 2010.
Submissions
Crown submissions
[39] The Crown submits that a starting point of 12 months imprisonment is appropriate, with a reduction for the defendant’s previous good behaviour and for his guilty plea. The Crown emphasises the trauma that was caused to the baby’s parents, and particularly the effect on the baby’s mother. As well, they say that the starting point should reflect that if the defendant had done the right thing, it would have significantly reduced the harm to the victims and also reduced the length that the baby was away from its family. The lower starting point to his co-offender is explained by the unique background to this offending, in which the defendant chose to ignore his serious doubts and the sheer unreality of the situation in favour of trusting his partner.
[40] The Crown acknowledges that most authorities relating to “baby snatching” are inapplicable to Mr Manutui, given his involvement solely as a secondary party and lack of premeditation. The Crown draws on a number of accessory after the fact
cases in which the offenders provided transport assistance, and were not involved in planning the offence.9 Those cases adopted starting points of between nine and
12 months imprisonment.
[41] However, the Crown submits that a non-custodial end sentence such as an electronically monitored sentence would meet the purposes and principles of sentencing.
Defence submissions
[42] Counsel for Mr Manutui submits that the starting point for this offence is in the vicinity of nine months imprisonment. Counsel also submits that the defendant has limited criminal history and has had previous good character. He further submits that he is entitled to a 20 per cent discount if guilty pleas are entered, even at this late stage.
[43] Furthermore, counsel states that he is agreeable that a non-custodial sentence is appropriate in the circumstances and would meet the purposes and principles of sentencing. This means that an electronically monitoring sentence would be appropriate. Counsel advises the Court that he has made enquiries and that there is an appropriate address for either home detention or community detention purposes for the defendant.
Cases
[44] There is no tariff case for kidnapping, and the case law in the area of child kidnapping is highly varied. None of the cases I have considered are on all fours with the current case, nor do they reflect Mr Manutui’s quite unique part in the
crime.10 However, they do give some indication of the scale available.
9 R v Afamasaga [2014] NZHC 2142; Duncan v R [2013] NZCA 354; R v Smith HC Rotorua CRI-
2007-063-4888, 3 February 2009.
10 See R v Bell CA268/01, 7 August 2002; R v Eketone CA151/04, 27 April 2005; R v Skelton HC Auckland CRI-2007-019-6530, 18 December 2008; R v Liu CA196/02, 18 November 2002; R v Narayan [2012] NZHC 2823; R v Harrison [2009] NZCA 162; R v Paalvast CA342/05, 17
October 2005.
[45] Ms Marsh has already been sentenced in the District Court.11 Judge Moses took a starting point of two and a half years imprisonment for her kidnapping charges. The overall sentence, despite uplifts for other offending, was significantly reduced due to the psychological, psychiatric and mental conditions that Ms Marsh was found to have, and her guilty plea. She was sentenced to 18 months imprisonment.
Analysis
[46] In assessing Mr Manutui’s offending, I consider the following purposes of
sentencing are dominant:12
(a) Denouncing the offending;
(b)Holding Mr Manutui accountable for the harm done to the victim and the victim’s family by the offending;
(c) Promoting in Mr Manutui a sense of responsibility for, and an acknowledgment of, the harm caused by his offending.
[47] The key principles to be taken into account are the gravity of the offending, Mr Manutui’s degree of culpability, as well as the need to impose the least restrictive outcome that is appropriate in the circumstances, in accordance with the hierarchy of sentences set out in the Sentencing Act.13
[48] Assessing the offending in the round, the major aggravating factors, in my mind, are:
(a) That the victim was a vulnerable baby, who was just five days old;
and
(b)The extent of the harm caused, and particularly to the family of the baby girl taken. Although the baby was missing only for a matter of
11 R v Marsh [2015] NZDC 1898.
12 Sentencing Act 2002, s 7.
13 Sentencing Act 2002, s 8.
about eight hours, it was indeed a very harrowing experience for a baby’s family. They had no way of knowing that Mr Manutui and Ms Marsh had no ill intent toward the baby, or that they were treating her well.
[49] Although in Ms Marsh’s sentencing, it was suggested that there was an element of premeditation to the offending in that the couple had apparently gone to Middlemore Hospital with the intention of taking a baby, the Crown do not allege that Mr Manutui had any premeditation toward the defendant’s offending. In particular, it is now conceded that Mr Manutui was truly under the belief that his partner was pregnant and was going to give birth before they arrived at the Hospital.
[50] Offenders with psychological challenges have a far lower culpability than if their offending were driven by different motivations. In relation to Mr Manutui, the same considerations evidently do not arise. Although it is only submitted that Mr Manutui was wilfully blind, he is a rational adult who should have been able to assess the likeliness and reasonableness of the situation, and evaluate the risks if his concerns were correct. There is no suggestion that he himself has any psychological concerns impeding his thinking.
[51] The comments made by Mr Manutui to the Police indicate the level of suspicion that Mr Manutui had that the baby which Ms Marsh brought home was not his. There were a large number of factors which should have, and clearly did, put Mr Manutui on some notice that something was not right with the situation. Although forming the view that the baby was stolen was perhaps not an immediate conclusion, the fact that Mr Manutui asked Ms Marsh whether the baby was theirs demonstrates that he actively considered the possibility and chose not to pursue it. Mr Manutui’s willingness to be assured by Ms Marsh despite these factors puts his wilful blindness at a high end.
[52] However, Mr Manutui’s role in the offending is also relevant. No evidence has been provided that indicates that he took any active role in the actual kidnapping. His charge is as a party. His role was limited to collecting Ms Marsh, and helping her to obtain a lift to their home. This was a minimal role in the overall events.
Section 9 of the Sentencing Act specifically recognises the offender having limited involvement in the offence as a mitigating factor for sentencing.14 Further, he had been convinced by Ms Marsh over a period of months that she was pregnant. He had no reason earlier in her apparent pregnancy for any suspicion.
[53] Considering the cases, if I were to impose a sentence of imprisonment, I would adopt a starting point of nine months imprisonment. With appropriate reductions, and assuming a guilty plea, this would result in a sentence of around six months imprisonment. Having said that, it does not appear from the current facts and information available, that the purposes and principles of sentencing require a
sentence of imprisonment to be applied.15 The purposes of sentencing identified can
be met by a less restrictive sentence than imprisonment.
[54] In this case, a community-based sentence is clearly appropriate. Although Mr Manutui himself was not suffering a mental illness, his behaviour was guided by an individual who was suffering such an illness and who had gone to great lengths to deceive him. This context is relevant in assessing his culpability.
[55] Further, this is not a case in which denunciation or deterrence can be strong factors in sentencing. Mr Manutui’s behaviour was unthinking. Any amount of critical reasoning, given the information that he had available to him, would have demonstrated that something was wrong, and that he ought to make enquiries at the hospital. His cavalier approach of waiting until the Police arrived to confirm his suspicions of his partner was callous to the family who had lost their baby for the evening. But there appears to be no likelihood of Mr Manutui repeating his behaviour. Neither was there any element of planning to Mr Manutui’s actions, or a desire to circumvent the justice system as is common in many of the cases. His behaviour appears to have been motivated by misplaced trust in his partner, rather
than any malicious motive.
14 Sentencing Act 2002, s 9(2)(d).
15 Sentencing Act 2002, s 16 provides that a court must not impose a sentence of imprisonment unless it is satisfied that the sentence is being imposed for a relevant sentence under s 7 of the Act, and that thoe purposes could not be achieved by a sentence other than imprisonment and no other sentence would be consistent with the principles of s 8 of the Act.
[56] Mr Manutui only has one other relatively minor conviction and an otherwise good record. Ms Marsh had a significant criminal history, particularly for dishonesty charges and non-compliance with community based sentences, and was assessed as likely not to comply with future sentences. These factors, and her greater role in the offending, all impacted on her receiving a sentence of imprisonment rather than a community-based sentence.
[57] The same issues do not arise with Mr Manutui. There is no information currently which indicates any risk of non-compliance with a community based sentence, although no pre-sentence report has been prepared. If there is information which becomes available after this sentence indication is issued, but before sentencing which materially affects the basis on which I have given this indication,
then this indication is not binding.16 If the pre-sentence report affects the assessment
of Mr Manutui’s suitability for community-based sentences, or the level of his involvement in the commission of the offence, this sentence indication can therefore be revised.
[58] Six months imprisonment could give rise to a sentence of three months home detention. However, I consider that in this case community detention is the most appropriate sentence. The purposes and principles of sentencing are not best met by excluding Mr Manutui from the community, as a sentence of home detention or imprisonment would be likely to do. To do so would not adequately reflect his culpability, or assist Mr Manutui in gaining a sense of responsibility for the offending which occurred. This will require a focus on engagement with the community, so that he can understand the ways in which his actions impact on that wider group. Although his offending was not against the wider community, his actions primarily indicate a lack of consideration for the victim’s family and what they would be going through, if his fears that the baby was stolen were true.
[59] Based on the current information before the Court, I consider that the Court would impose a sentence of around three months community detention and a
significant sentence of community work. Community detention can involve a
16 Criminal Procedure Act 2011, s 116.
curfew of up to 84 hours a week, for a maximum period of six months.17 It can be imposed either where it would prevent reoffending, or if it would meet the sentencing princples of accountability, responsibility, denouncement or deterrence.18
In this case, the curfew associated with the sentence of community detention means that there will be real and genuine element of punishment to the sentence, meeting the aim of holding Mr Manutui accountable for his actions, and denouncing his behaviour. Any curfew imposed would need to facilitate his ability to engage with community work sentences, and any employment obligations.
[60] I have considered the factors set out in ss 55 and 56 of the Sentencing Act. I consider that the nature of Mr Manutui’s offending makes it appropriate that he also be held accountable to the community by participating in community work.
[61] Three months community detention and a significant period of community work, with a curfew which is based around facilitating any job held by or study undertaken by Mr Manutui, and the hours of his community work, is the most appropriate punishment to both hold Mr Manutui accountable, but also to reflect his limited culpability in this instance.
[62] This is only an indication, as I say, and if the pre-sentence report disclosed different personal circumstances which would indicate a lack of suitability for a community-based sentence then the end sentence could differ to the one indicated.
[63] The sentence indication that I have given has effect until the close of a date to be specified by the Court, but in the circumstances of this case I am wondering, Mr Tupou, whether you would like the ability to take instructions now and I retire for a moment or two.
Mr Tupou obtains instructions and Mr Manutui pleads guilty to the one charge.
[64] Mr Manutui, on the basis of your plea, you are convicted and remanded for sentence at 9:00 am on Thursday, 19 November 2015 in this Court before me. I
17 Sentencing Act 2002, s 69B.
18 Sentencing Act 2002, s 69C.
order a pre-sentence report, together with appendices. The remand will be on bail on existing terms and conditions.
[65] Given your conviction for kidnapping, you are now subject to the three strikes law. 19 I am now going to give you a warning of the consequences of another serious violent conviction. You will also be given a written notice outlining these consequences, which lists the serious violence offences. If you are convicted of any serious violent offence, other than murder committed after this warning and if the Judge imposes a sentence of imprisonment, then you will serve that sentence without
parole or early release. If you are convicted of murder committed after this warning, then you must be sentenced to life imprisonment. That will be served without parole unless it would manifestly unjust. In that event, the Judge must sentence you to a minimum term of imprisonment.
[66] Finally, I make a suppression order regarding the details of the mental and physical illnesses suffered by your co-defendant, Loni Marsh, either in submissions of counsel or in my sentencing indication notes.
……………………………….
Woolford J
19 Crimes Act 1961, s 66.
4
0