MANZONE v R [2020] NZCA 389

MANZONE v R [2020] NZCA 389 [4 September 2020]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA313/2020[2020] NZCA 389BETWEEN BENJAMIN DAVID MANZONEApplicantAND THE QUEENRespondentCourt: Goddard, Ellis and Dunningham JJCounsel: J D Lucas for ApplicantT R Simpson for RespondentJudgment:(On the papers)4 September 2020 at 10.00 amJUDGMENT OF THE COURTThe application for leave to appeal under s 253(1) of the Criminal Procedure Act2011 is declined.____________________________________________________________________REASONS OF THE COURT(Given by Goddard J)The application for leave to appeal[1] Mr Manzone was sentenced to four years' imprisonment in the District Court.1His appeal to the High Court against that sentence was dismissed.21 R v Manzone [2020] NZDC 1764 [Sentencing notes].2 Manzone v R [2020] NZHC 948 [High Court decision].[2] Mr Manzone seeks leave to bring a second appeal against sentence to this Courtunder s 253(1) of the Criminal Procedure Act 2011 (CPA). He submits leave shouldbe granted because his appeal involves a matter of general or public importance,namely the correct approach to sentencing individuals who are deported toNew Zealand and are "returning offenders" for the purposes of the ReturningOffenders (Management and Information) Act 2015. He says that determination ofhis appeal will be directly relevant to the sentencing of other returning offenders insimilar circumstances.District Court sentencing[3] Mr Manzone arrived in New Zealand in June 2018. He had been deported fromAustralia after serving a term of imprisonment. He had lived all his adult life inAustralia: his family left New Zealand when he was eight weeks old.[4] Mr Manzone pleaded guilty in the District Court to offending over a period offour weeks that included a robbery, a series of thefts and related offending:(a) 20 November 2018: theft of a handbag from a vehicle situated insupermarket carpark while the owner sat in the driver's seat, and theftof luggage from a parked van after smashing through the rear windowof the vehicle;(b) 29 November 2018: theft of a New Zealand Post courier van whena driver left the engine running to deliver parcels;(c) 1 December 2018: theft of a van from a residential address, and theft offive suitcases after breaking into another parked van;(d) 7 December 2018: theft of a second New Zealand Post courier van,including punching the driver in the chest when he attempted to stopMr Manzone from driving away (this event was the basis of the robberycharge);(e) 14 December 2018: theft of a further vehicle, escaping from the vehiclewhen police attempted to arrest him;(f) 18 December 2018: theft of a motorbike from a residential propertyafter breaking into a secured shed; and(g) related offences including receiving, theft, possession of amphetamine,escaping custody, resisting arrest, being found unlawfully in anenclosed yard, and breaching bail.[5] In addition to the 20 charges to which Mr Manzone pleaded guilty, he wassentenced for seven "trailer" charges.3[6] In the District Court Mr Manzone was sentenced to four years' imprisonmentto reflect the totality of this offending.4 Judge Kellar's sentencing notes describe atsome length Mr Manzone's personal circumstances, including the circumstances ofhis return to New Zealand.5High Court appeal[7] Mr Manzone appealed to the High Court against that sentence. He argued thatthe District Court Judge erred in not taking into account Mr Manzone's personalcircumstances as a returning offender under the visa cancellation policy of theAustralian Government.6 Counsel for Mr Manzone confirmed that there was nochallenge to the District Court Judge's approach to sentencing apart from thesubmission that the end sentence did not make any adjustment for Mr Manzone'spersonal circumstances arising out of his deportation.7[8] Nation J did not accept that the District Court Judge failed to considerMr Manzone's personal circumstances arising out of his deportation. In particular,3 Sentencing notes, above n 1, at [5]; and High Court decision, above n 2, at [2].4 Sentencing notes, above n 1, at [21].5 At [2]–[3] and [18]–[19].6 High Court decision, above n 2, at [19].7 At [28].the Judge did not accept that the District Court Judge erred in not referring expresslyto s 8(i) of the Sentencing Act 2002 in sentencing Mr Manzone. The Judge said:[46] The obvious purposes of Mr Manzone's sentencing here were to holdhim accountable for the harm he had done, to denounce his offending, to tryand deter him from further such offending and to protect the public fromsimilar offending. It is when the Court is considering the imposition ofa sentence having a rehabilitative purpose that it must take into account theoffender's wider background. The Judge was not considering imposinga sentence for rehabilitative purposes.[47] The fact that the Judge does not mention a particular sentencingprinciple is not, in itself, a ground for an appeal against the sentence imposedor order made.[48] The Sentencing Act does, in various respects, require the sentencingJudge to have regard to the personal circumstances of an offender. The weightto be attached to those circumstances or to a particular principle in s 8 will belargely determined by the purpose or purposes of the sentencing decision andthe facts of the case.[49] Even if the personal circumstances of an offender have caused himsome hardship which has led to the offending, there does not inevitably haveto be some reduction in an otherwise appropriate sentence of imprisonment.That was the case here.[50] Although Mr Manzone's offending occurred after he faced inevitablechallenges in being deported to New Zealand, there was no error in the wayhe was sentenced. The end sentence imposed was not manifestly excessive.(Footnotes omitted.)[9] The appeal was dismissed.Application for leave to appeal to this Court[10] This Court may grant leave to bring a second appeal against sentence unders 253(1) of the CPA only if the Court is satisfied that:(a) the appeal involves a matter of general or public importance; or(b) a miscarriage of justice may have occurred, or may occur unlessthe appeal is heard.[11] Mr Manzone submits that his appeal involves a matter of general or publicimportance because of the significant number of deportees returning from Australia toNew Zealand. A significant proportion of these returning offenders commit offencesin New Zealand following their return. Mr Lucas, counsel for Mr Manzone, says thisraises issues of how the courts, when it comes to sentencing those individuals for theiroffending in New Zealand, should take into account the circumstances in which theyhave returned to New Zealand. Mr Lucas emphasises issues raised by Mr Manzone'sappeal which he says will be common to the circumstances of other returningoffenders: lack of connection with New Zealand; lack of familial support inNew Zealand; lack of resources; and dependence on support from Governmentagencies. Mr Lucas refers to the decision of this Court in Zhang v R confirming thatcultural, social and economic deprivation are factors that may be relevant tosentencing, and that isolation and denial of family support for people from overseas ina New Zealand prison can also be treated as a mitigating factor.8 Mr Lucas submitsthat this appeal will address those issues in relation to people who have been deported,and have returned to New Zealand against their will. He submits there is a need forconsistency in approach to people in similar circumstances.Decision[12] We do not consider that Mr Manzone's proposed appeal raises any issue ofgeneral or public importance. In sentencing an offender a Judge must take into accountthe offender's relevant personal circumstances, not only under s 8(i) but also unders 8(h) and s 9(2). Thus the offender's background may be relevant not only in relationto the rehabilitative purpose of a sentence, but also as a factor relevant to culpability,and to the implications of different sentencing options more generally.[13] Both the sentencing notes and the High Court decision refer at some length toMr Manzone's personal circumstances. It is clear that those circumstances were takeninto account in determining an appropriate overall sentence. The absence of expressreference to s 8(i) in the sentencing notes is not in itself grounds for an appeal.98 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [162]–[163].9 Sentencing Act 2002, s 31(4).[14] We do not consider that there is any general issue in relation to the sentencingof returning offenders from Australia that requires consideration by this Court.The background and personal circumstances of returning offenders can appropriatelybe dealt with in accordance with established sentencing methodology. No special rulesare required in relation to returning offenders. It will be a matter for the sentencingjudge to determine which factors are relevant to sentencing of a particular offender fora particular offence, in accordance with that methodology. Those circumstances mayvary significantly as between different returning offenders, depending on theircircumstances in Australia, the circumstances of their return, and the position they findthemselves in New Zealand. Identifying relevant circumstances, and the nexusbetween those circumstances and the offending for which a sentence is to be imposed,will require context-specific evaluation in each case. It is neither necessary nordesirable for this Court to attempt to lay down any general principles that apply to thiscategory of offender.[15] The application for leave to appeal was not made on the basis that there is a riskof a miscarriage of justice, apart from the argument considered above. Nothing in thematerial we have seen suggests that there is a risk of a miscarriage of justice, or thatthe sentence imposed in the District Court is manifestly excessive.Result[16] In these circumstances, the test for leave to bring a second appeal unders 253(1) of the CPA is not met. The application for leave to appeal is declined.Solicitors:Crown Law Office, Wellington for Respondent