Solicitor-General v Manson
[2016] NZHC 1224
•8 June 2016
NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS OR IDENTIFYING PARTICULARS, OF ANY COMPLAINANTS UNDER THE AGE OF 18 YEARS PROHIBITED BY S 204 OF THE CRIMINAL PROCEDURE ACT 2011.
IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY
CRI 2016-442-9 [2016] NZHC 1224
BETWEEN SOLICITOR-GENERAL
Appellant
AND
LESLIE KEVIN MANSON Respondent
Hearing: 7 June 2016 Appearances:
C Brook and J Slankard for the Appellant
T Bamford for the RespondentJudgment:
8 June 2016
JUDGMENT OF MALLON J
Introduction
[1] Mr Manson pleaded guilty to and was convicted on charges of offering to supply and supplying cannabis to a person under 18 years and supplying alcohol to a minor.1 He was sentenced to 11 months home detention.2 The Crown appeals on the basis that the sentence was wrong in law and manifestly inadequate. As advised orally at the conclusion of the hearing, the appeal is dismissed. My reasons are set
out below.
1 The charges were: one count of offering to supply a class C controlled drug to a person under 18 years old (representative), Misuse of Drugs Act 1975, s 6(1)(d) (maximum penalty 8 years imprisonment); two counts of supplying a class C controlled drug to a person under 18 years old (one representative), Misuse of Drugs Act 1975, s 6(1)(d) (maximum penalty 8 years imprisonment); and three counts of supplying alcohol to a minor (two representative), Sale and Supply of Alcohol Act 2012, s 241(1) (maximum penalty $2,000 fine). Mr Manson was discharged on one count of indecent assault, Crimes Act 1961, s 135.
2 R v Manson [2016] NZDC 7039 [second decision].
SOLICITOR-GENERAL v MANSON [2016] NZHC 1224 [8 June 2016]
Circumstances of offending
[2] The cannabis charges relate to two sisters, aged 15 and 16 years, who Mr Manson met through a boarder who lived with him. The alcohol charges relate to the sisters and a friend. Between 20 March 2013 and 31 October 2013 Mr Manson, via text messages, invited the sisters to his house and let them know he had alcohol and cannabis. When they visited him he would give them cannabis and alcohol which they would consume at his house. This occurred on numerous occasions. On one occasion one of the girls drank so much that she had to sleep at the address. On another occasion they brought a friend, to whom Mr Manson also supplied alcohol.
Personal circumstances
[3] Mr Manson was 31 years old at the time of this offending.
[4] During the initial period of the offending he was on bail on charges of driving with excess breath alcohol, driving while disqualified and dangerous driving, in relation to offending in November 2012. He was then subject to a sentence of home detention, having been sentenced on 29 July 2013 to nine months home detention.
[5] Mr Manson is a recidivist drink driver. The November 2012 offending was his sixth conviction for driving with excess breath or blood alcohol, his fourth and fifth conviction for driving while disqualified and his third conviction for dangerous driving. He has no previous convictions for drug offending.
[6] He had breached community work sentences on three occasions in the past and much earlier had breached periodic detention sentences. More recently he had complied with community work orders and a sentence of home detention imposed in
2011. He had also complied with his home detention sentence in July 2013. This was subject to a number of conditions including counselling and a short rehabilitation programme. Mr Manson complied with these conditions and had received positive reports from the providers of the counselling and rehabilitation services.
[7] By the time of sentencing on the present matters in February 2016 Mr Manson had not reoffended. Mr Manson had obtained an offer of employment in an orchard over the period from February to June 2016. He had also married and he and his wife were living with his parents. His sister also lived at the address. His family were supportive of him. His parents’ address was assessed as suitable for home detention. However this address was some distance from the orchard and so Mr Manson hoped to find another address which might enable him to work if he were sentenced to home detention.
[8] The pre-sentence report writer’s recommendation was for intensive
supervision and community work, or alternatively home or community detention.
The District Court sentencing
[9] Mr Manson first came before the District Court for sentencing on 17
February 2016. Mr Manson sought an adjournment of the sentencing so that an alternative address could be found because of Mr Manson’s hope that he might take up the employment opportunity. The Judge appears to have understood that Mr Manson’s parents’ address was no longer available. The Judge declined to grant the adjournment and proceeded with the sentencing.
[10] The Judge decided on a starting point of two years imprisonment for the totality of the offending. He declined to uplift that sentence for previous convictions since they were unrelated in kind. He applied a 15 per cent discount for Mr Manson’s guilty plea. This meant an end sentence of 20 months imprisonment. The Judge then said:3
[18]… That is a time period that is within the bounds of the Court having to then consider whether this sentence of imprisonment should be remitted to one of home detention. I very much rely on the matters raised in R v Martin to which I have already referred. I also have regard to the case of Dellaway v R CA 743/2009, 25 March 2010, page 100 and from that I think that I am justified in taking the view that the sentence here must be one of imprisonment.
…
3 R v Manson [2016] NZDC 2388 [first decision].
[20] Now, I am not going to close the door on your (sic) entirely, Mr Manson, and what I am going to do is give you leave pursuant to [s 80I] Sentencing Act 2002 to apply, should there be a suitable property found, to have this sentence replaced by home detention. I must make it clear to you that even if a suitable home is found, you will need to convince the Court that in the circumstances there is justification for ameliorating the sentence I have imposed to one that allows you to serve your balance of sentence on home detention.
[11] On 24 February 2016 Mr Manson applied to have his sentence of imprisonment cancelled and substituted with a sentence of home detention at his parents’ address. In support of this application a letter from a doctor was provided explaining that Mr Manson suffered from non-Hodgkin’s lymphoma, which was currently in remission but which required on-going medical supervision, and he also suffered from depression. The doctor further advised that Mr Manson last received treatment for depression on 26 February 2016. The doctor considered that stress and anxiety from being held in custody could well contribute to a decline in his health.
[12] On 15 April 2016 the Crown applied for an order removing the grant of leave to apply for home detention. That application was made pursuant to s 180 of the Criminal Procedure Act 2011. The application was on the basis that there was no jurisdiction for the Judge to grant leave to apply for home detention unless the Court “would have sentenced the offender to a sentence of home detention if a suitable residence had been available.”4 The Crown submitted this was not the basis on which the Judge had granted leave.
[13] These two applications came before the District Court Judge on 22 April
2016. The Judge commented that he had made “a pig’s ear” of the sentencing.5 He said:
[4] What I was intending to do on that day was to indicate to Mr Manson as clearly as I could that what he had done was certainly a matter where prison was a proper sentence of the Court and that indeed in all of the circumstances imprisonment would have to be regarded as the starting point and I did so impose that imprisonment having thought about the usual sentencing processes that follow in this sort of case and I can well understand the Crown now being somewhat perplexed by me having done that then adding paragraph [20] in my judgment.
4 Sentencing Act 2002, s 80I(1)(b).
5 R v Manson (second decision), above n 2, at [3].
[5] I had intended, however, to allow an opportunity for home detention and I think that in that sense I must have been seduced somewhat by firstly the fact that I knew there was no property available at that time and so perhaps took a false sense of comfort from that and, secondly, having recently become aware of Katz J’s recent decision, knew that simply giving leave as a result of the authority contained in that judgment meant that it was by no means a fait accompli just because a property was located.
…
[7] I return to a more basic principle and that is that as a matter of fairness I have given this man the hope that home detention might be granted. Whether I was able to do so at the time is not a matter that I can judge with any precision. The Crown might be perfectly right. But I think having given this man that opportunity I would be remiss and unfair, if in fact I simply acknowledge the problem that I have created but then dismiss his application for the sake of saving face, as it were. I do not think that justice requires me to do that. I think that justice requires me to consider his application in a full and proper way.
[8] So regardless of what jurisdictionally I might or might not have done, I emphasise that my intention had been to impose imprisonment but to leave the option of home detention as a real possibility subject to a further decision of the Court being involved.
Assessment of appeal
[14] The Crown submits that the sentencing Judge erred in the original sentencing because there was no jurisdiction to grant leave to apply for home detention if he had determined that imprisonment was the appropriate sentence at that time. Leave could only be granted if “at the time of sentencing, the Court would have sentenced the offender to a sentence of home detention if a suitable residence had been available”.6 The Crown submits the Judge had determined imprisonment was the appropriate sentence at that time. Accordingly the Crown submits there was no jurisdiction to re-sentence Mr Manson on the second occasion, other than to correct the earlier error. Correcting the earlier error would involve only cancelling the leave
which had been granted.
[15] I do not agree that the Judge determined at the time of the original sentencing that imprisonment was the only appropriate sentence. As he clarified at the re- sentencing, he intended to sentence Mr Manson to something which jurisdictionally
was not available to him. That is, he intended a sentence of imprisonment which he
6 Sentencing Act 2002, s 80I(1)(b).
regarded as “the starting point” but with the possibility of home detention if
considered appropriate at a later time when a suitable address became available.7
However leave is only to be granted if the assessment as to the appropriateness of a sentence of home detention has already been made.8 Because the sentence the Judge imposed was not available to him, the sentence was “one that could not by law be imposed” and it was open to him to “impose a new sentence” pursuant to the s 180 application that was before him. The Judge decided the application for home detention “in a full and proper way” and determined that a sentence of home
detention should be imposed.
[16] The Crown submits this sentence was manifestly inadequate. The Crown does not say that home detention could never be appropriate when cannabis is supplied to young people. Rather the Crown says home detention was wholly inappropriate in this case because the offending was committed when Mr Manson was on bail (for part of the period of the offending) and serving a sentence of home detention (for the remainder of the period). I do not agree with this submission.
[17] The offending was serious because it involved supplying cannabis to young women over a period of several months. It was aggravating that Mr Manson was on bail and subject to a sentence of home detention when the offending occurred. However, by the time of sentencing over two years later, Mr Manson had shown that he could comply both with a reasonably lengthy period of home detention and with the post-detention conditions. He had also shown a willingness to engage in the rehabilitative aspects of that sentence. Some rehabilitative success was demonstrated in that he had not reoffended for a period of around two years following the end of the home detention sentence. He had accepted responsibility for the offending, he had recently married, he had the support of his family and he
had an offer of employment. These were all factors supporting a rehabilitative
7 R v Manson (second decision), above n 2, at [4]-[5].
8 Consistent with this assessment having already been made, when, pursuant to that leave, an application is made to substitute a sentence of home detention, the Court’s focus is on matters in s 80A(2) which all relate to whether the address is suitable.
approach to sentencing.9 Home detention was therefore an option that was well open to the Judge.10
[18] Finally, I agree with Mr Manson’s counsel that there would be some unfairness to Mr Manson in now sending him back to prison.11 He was told home detention was a possibility when first sentenced, he had that sentenced imposed at the re-sentencing, and he has been compliant with that sentence since receiving it. Mr Manson should have the opportunity to continue his rehabilitative efforts.
Conclusion
[19] The appeal is dismissed.
Mallon J
9 R v Hill [2008] 2 NZLR 381, [2008] NZCA 41, at [39].
10 See for example, R v Paul HC Dunedin CRI-2010-002-267, 24 November 2010; R v Kamizona
[2012] NZHC 2868; and R v Findley [2013] NZHC 2015 for cases involving supplying drugs to young persons where home detention or community based sentences have been imposed. Examples of more serious offending that can be distinguished are Dellaway v R [2010] NZCA
100 where home detention was not available as the sentence of imprisonment was two years and nine months; R v Martin HC Rotorua CRI-2010-063-5229, 25 February 2011 where the
defendant had previous drug convictions and the current offending was committed while serving
a sentence of supervision and community work; Wallace v Police [2016] NZHC 338 where the offending involved a breach of trust by a part-time teacher and hostel manager, and where the decision not to impose home detention was regarded as “finely balanced”; and R v Greer [2013] NZHC 3025 where the offending was more of a commercial nature.
11 R v Honan [2015] NZCA 54; R v Donaldson (1997) 14 CRNZ 537 (CA).
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