The Queen v Manson

[2009] NZCA 158

IN THE COURT OF APPEAL OF NEW ZEALAND

CA82/2009
[2009] NZCA 158

THE QUEEN

v

DAVID PAUL MANSON

Hearing:27 April 2009

Court:Robertson, Chisholm and Gendall JJ

Counsel:E J Forster for Appellant

S B Edwards for Crown

Judgment:30 April 2009 at 11.30 am

JUDGMENT OF THE COURT

THE APPEAL AGAINST SENTENCE IS DISMISSED.

____________________________________________________________________

REASONS OF THE COURT

(Given by Robertson J)

[1]        Mr Manson appeals against a sentence of 18 months’ imprisonment imposed upon him by Judge Adeane in the District Court at Napier on 30 January 2009, after he had been found guilty by a jury on a charge of intentionally (without claim of right) damaging by fire a motor vehicle in which he had no interest, contrary to ss 267 and 66 of the Crimes Act 1961.

[2]        The nub of the appeal is that the sentence was manifestly excessive given that a sentence of two years and ten months’ imprisonment had been imposed upon him in the same Court by Judge Rea on 29 September 2008 in respect of other offences, some of which were closely related.

[3]        Mr Manson contends that the total effective sentence of four years and four months’ imprisonment for all the offending was not in conformity with the decisions of this Court which are submitted to be relevant and that it was wrong in principle.

The September 2008 sentencing

[4]        Judge Rea described the offending for which he sentenced Mr Manson thus:

[2]       Mr Manson, you have been something of a one-man crime wave for a while.  The saga that I am dealing with today, effectively starts back on the 10^th of October last year when you appeared in the Hastings District Court for driving with excess breath alcohol and refusing to accompany.  You were disqualified from driving for a period of six months from that date.

[3]       At 11.15pm on the 29^th of February this year, you were driving a Mitsubishi motor vehicle in Frederick Street, Hastings.  You were stopped due to carrying passengers in the back of the Ute that you were driving.  You gave false details.  You underwent breath testing and you were found to have a breath level of 593 which is close to one and a half times the legal limit.  Obviously you were also driving whilst disqualified.  According to my reading of your record this is your fifth drink driving offence in the last eight years and your third driving whilst disqualified in the last eight years. While you were on bail for those, you then embarked upon other criminal activity that has to be dealt with.

[4]       On the 28^th of June, you were with two associates in St George’s Road South in Hastings. You and your associates approached the residential address of 625 St George’s Road with the intention of breaking into the house. You established that no one was home.  One of the group smashed the front door allowing entry to the address.  You and your associates entered the address and removed a large amount of property.  This included a computer, two video cameras, several cell phones, food, clothing and other miscellaneous items.  You and your associates left soon afterwards with the stolen property.

[5]       During the evening of the 29^th of July, you were with a group of friends and you tried to break into the Angus Inn bottle store in Railway Road, Hastings.  You and your associates approached the garage roller door that leads to a storage area of the Tavern and you attempted to jemmy that open.  You were able to lift the door partway up but due to an alarm being activated, you left and departed in a waiting vehicle.  No entry was gained and no reparation is sought.  You were spoken to later on and you admitted most of the facts.

[6]       Again, you were back burgling on the 17^th of July.  On that occasion you were with your 16-year-old brother.  You broke into Jack Coddington house which is a building used by Police staff in Hastings.  You had come to the address armed with several tools and a clear intention of stealing a Police vehicle from the secured yard.  You were able to enter the secured yard by squeezing through a small gap between the rear gate and the fence.  Once inside you went to a van belonging to the New Zealand Police.  Your brother passed you a number of tools and you attempted to force the ignition, trying to get the van started.  You were not successful in doing that. You have caused damage to that vehicle by attempting to start it.  You have then gone to an unmarked Holden Commodore.  You have broken the back window, you have obtained a Police stab proof vest. In addition, you obtained a belt that included an extendable baton and a baton clip and several pouches.  You then went on to another vehicle.  There was a smashing of the windscreen or the window of another Holden Commodore and at that point you got your finger cut which is probably what brought all of this to an end.  You were able to obtain a stab proof vest during the course of this as well.   There were other matters that occurred that are not part of the sentencing here today but you brazenly went to the Police yard with the intention of stealing and taking a car.

[5]        Having noted what was described as his appalling record and the credits to which he was entitled, the Judge concluded:

[11]     Bearing in mind the number of events that I am dealing with, two burglaries and an attempted burglary as well as what went on in the police yard, I consider that the appropriate starting point for the burglaries and the attempted burglary, is three years imprisonment.  You are entitled to a credit for the fact that you have pleaded guilty and on the charges of burglary and attempted burglary you will be convicted and you will be sentenced to two years and three months imprisonment.  That will be concurrent over those offences but added to the seven months for the drink driving and driving whilst disqualified, making a total sentence of two years and ten months.

The January 2009 sentencing

[6]        The arson offending occurred at the same time as the burglary on 17 July 2008.

[7]        Judge Adeane, who presided at the jury trial, described the events as follows:

[1]       Mr Manson … and his much younger brother had agreed to go out for a night’s stealing and one of their targets was a yard adjacent to the Hastings police station where police vehicles were stored.  They broke into the yard.  They then proceeded to break into the vehicles and in the course of smashing a window Mr Manson had the misfortune to cut his hand.  He apparently bled profusely onto both the subject vehicles and the ground nearby.  His younger brother responded in a most expedient way by setting fire to the vehicle.  His evidence was that he had at some earlier stage heard from the prisoner that this was a convenient means of destroying evidence and evading forensic detection at a later time.

[8]        The Judge’s assessment was encapsulated when he said:

[8]       Mr Manson’s previous history shows that he has been a recidivist burglar and thief for more than a decade now. He has been imprisoned on many occasions.  He has a previous conviction for arson, although we do not know the circumstances.  The present offending in which first of all a police yard was chosen as a burglary target and then a police vehicle was chosen for a deliberate attempt to conceal evidence of criminal offending shows a sophistication and cynicism on the part of Mr Manson which the Court is entitled to recognise at sentencing.  This is the work of a professional criminal, aggravated, made more serious, by the fact that his apprentice was under training at the same time and by the fact that he is a member of his own family.

[9]       The offending strikes very much at the heart of the law-abiding community and therefore at the heart of the responsible community that depends on its law enforcement agencies.  It was grossly disrespectful and provocative, as well as being dishonest, calculated and criminal and in these circumstances, in my view, had the initial Sentencing Judge been seized of all matters he would have considered that a further 18 months imprisonment was required to recognise the various features of the arson to which I have referred. That is the sentence today, imposed cumulatively.

[9]        It is common ground that this Court must determine an appropriate sentence for all the offending.  In other words, had all matters been dealt with at the same time, what would the total effective sentence have been?

The appellant’s case

[10]     Two issues were raised.  First, the overall sentence was submitted to be manifestly excessive.  Secondly, Mr Forster submitted that, in considering the prospective 18 month sentence, in January 2009, in light of the other seven month sentence, Judge Adeane said that Mr Manson “has had a cumulative sentence which is of rather less interest to me today”.  Counsel argued that meant the Judge failed to take proper account of the seven month sentence when assessing the total picture.

[11]     The unusual bifurcating of sentencing from one night’s offending  arose because Mr Manson denied any culpability and argued that the arson was entirely the responsibility of his young brother, a position which the jury not surprisingly rejected in the total circumstances of the case.

[12]     Mr Manson’s counsel before us sought support from R v Mohi [2007] NZCA 139, and the earlier decision of R v Gilchrist CA429/90 15 April 1991 in both of which lesser terms of imprisonment were imposed for arson.  As is usually the case, those decisions are very much dependant on their own particular circumstances. 

[13]     In this case, as the Crown submitted, the totality of four years and four months’ imprisonment has to be viewed in light of all Mr Manson’s offending.  There were the two driving charges. Mr Manson had six previous drink/driving-related charges, a conviction for refusing to accompany an enforcement officer and now three charges of driving while disqualified.  He had received final warnings about the inevitability of imprisonment.  The driving offences occurred in February 2008 and he was awaiting their processing in the Court when the other offending occurred.

[14]     Mr Manson has literally dozens of previous convictions, many involving dishonesty and, relevantly, a previous conviction for arson which was associated with a crime of dishonesty.

[15]     For the offending other than driving charges, Judge Rea took a starting point of three years and allowed a discount of 25 per cent for guilty pleas.  If a Judge had been sentencing on everything at the same time, any discount may have been problematic.  Whatever the outcome, a judge considering the theft and burglary offences, together with the arson (which was a calculated and arrogant endeavour to cover up some dishonesty offending) a starting point of four and a half years could not have been outside the available range.  Even allowing for some discount to reflect some guilty pleas, a sentence of at least three and a half years’ imprisonment would be justified.

[16]     In light of the quite separate nature of the driving charges, a cumulative sentence was inevitable.

[17]     We accept, as the Crown acknowledged, that the overall response was stern, but nothing less could have been appropriate in light of the ongoing serious offending by this 29 year-old stretching over so many years.  Although there had been some glimmers of hope, the totality and nature of his offending in six months meant that a substantial term of imprisonment was inevitable.  By his actions he had forfeited the right to be in the community for a significant time.

[18]     Standing back and viewing all the offending, a total effective sentence of four years and four months’ imprisonment could not be described as being outside the properly available range.  We do not accept that the Judge ignored or overlooked the seven month sentence but in any event we have taken it into account in our assessment of overall culpability and responsibility.

[19]     The appeal is accordingly is dismissed.

Solicitors:
Crown Law Office, Wellington