MANE v R [2017] NZCA 543

MANE v R [2017] NZCA 543 [24 November 2017]IN THE COURT OF APPEAL OF NEW ZEALANDCA509/2017[2017] NZCA 543BETWEEN DRE KANE MANEAppellantAND THE QUEENRespondentHearing: 6 November 2017Court: Gilbert, Lang and Ellis JJCounsel: Q Duff for AppellantM L Wong for RespondentJudgment: 24 November 2017 at 3 pmJUDGMENT OF THE COURTA The appeal against sentence is allowed.B The concurrent sentences of six years imprisonment on the charges ofaggravated burglary and possession of methamphetamine for supply areset aside.C A sentence of three years four months imprisonment is substituted on thecharge of aggravated burglary and a cumulative sentence of two yearseight months is substituted on the charge of possession ofmethamphetamine for supply.____________________________________________________________________REASONS OF THE COURT(Given by Lang J)[1] Mr Mane pleaded guilty in the District Court at Papakura to a charge ofaggravated burglary and a charge of being in possession of methamphetamine for thepurpose of supply. On 8 May 2017 Judge Andrée Wiltens sentenced Mr Mane toconcurrent sentences of six years imprisonment on each charge.1[2] Mr Mane appeals against sentence on the basis that the Judge adopted startingpoints that were too high on each charge and failed to provide adequate discounts formitigating factors. These errors resulted in an end sentence that was manifestlyexcessive.The charges[3] The charge of aggravated burglary was laid as a result of an incident thatoccurred at about 9 pm on the evening of 30 November 2015. The summary of factsthat Mr Mane accepted for sentencing purposes records that he and three others metup on that evening and decided to pay a visit to the victim. They were apparentlyunder the false impression that he owed them drugs. The defendants then assembledsome weapons, including a baseball bat. They then drove to the victim's home.Mr Mane was in possession of the baseball bat.[4] When the victim opened the door, one of Mr Mane's co-defendants confrontedhim and told him to step outside. The victim then retreated inside the address but MrMane and his associates followed him in. Once inside, one of Mr Mane's associatespunched the victim in the nose, causing it to bleed. Mr Mane then swung his baseballbat at another occupant of the address, striking him twice on the upper arm.[5] The confrontation caused the occupants of the address to attempt to hide fromMr Mane and his associates. The defendants then made one of the occupants take1 R v Mani [2017] NZDC 9403 at [11].them upstairs to the victim's bedroom. They searched the room seeking items to steal,and eventually left the address with the victim's wallet.[6] The charge of being in possession of methamphetamine for supply was laid asa result of a search that the police carried out of Mr Mane's address on the evening of13 July 2016. When the police entered the address, they observed a set of scales sittingon a coffee table. Sitting on the scales were two point bags containing a crystallinesubstance. The police then invoked their powers of warrantless search under theSearch and Surveillance Act 2012.[7] As a result of the ensuing search the police found a bag containing 18.45 gramsof methamphetamine. This was rolled up inside a sealable bag on a couch beside thecoffee table. The police also found three cellphones, numerous empty point bags andcash totalling $727.70. They also found what appeared to be a "tick book" containingdetails of drug-related transactions.The sentencing decision[8] Judge Andrée Wiltens sentenced Mr Mane and two of his co-defendants (inrelation to the aggravated burglary) at the same time. He began by selecting auniversal starting point of five years imprisonment in respect of the charge ofaggravated burglary.2 In doing so he adopted the starting point selected by the Judgewho had earlier sentenced the fourth member of Mr Mane's group. Judge AndréeWiltens considered that a starting point of five years imprisonment was justifiedhaving regard to the planning and premeditation involved in the offending, the factthat it involved a home invasion by four people, the presence and use of a weapon,and the threatened and actual use of violence. The offending also caused moderateinjuries to two of the occupants of the address and it resulted in the victim's walletbeing stolen.[9] The Judge reduced the starting point by five months to reflect the fact thatMr Mane was just 21 years of age at the time of the offending.3 He then reduced the2 At [4]–[5].3 At [9].sentence by a further five months to reflect that the guilty plea had spared the witnessesthe ordeal of giving evidence at trial. The Judge applied a reduction of 10 months, or20 per cent, to reflect the relatively late guilty plea. This produced an end sentence ofthree years four months imprisonment on the aggravated burglary charge.[10] The Judge then considered the sentence to be imposed on the charge of beingin possession of methamphetamine for supply. He noted that ordinarily the startingpoint for that charge would be around four years six months imprisonment, and thatan uplift of three months would be appropriate to reflect the fact that the offending hadoccurred whilst Mr Mane was on bail in respect of the aggravated burglary charge.4He then applied a reduction of approximately 15 per cent to reflect a late guilty plea,resulting in an end sentence of four years two months imprisonment on the possessioncharge.[11] Given that this sentence was to be cumulative on the other sentence, the Judgehad regard to totality principles. He considered that a sentence of seven years sixmonths imprisonment was disproportionate to the overall gravity of Mr Mane'soffending. For that reason he reduced the end sentence to six years imprisonment.5He then imposed concurrent sentences of six years imprisonment on each charge.The appeal[12] For Mr Mane, Mr Duff submitted that the Judge was correct to ultimatelyimpose concurrent end sentences, but says that he was wrong to adopt a reasoningprocess that involved the imposition of cumulative sentences in respect of the twocharges. Mr Duff also challenged the starting point selected in respect of each charge,and submitted that further discounts should have been given to reflect factors such asremorse and the time spent by Mr Mane on restrictive bail conditions prior tosentencing. Furthermore, he points out that the Judge failed to provide Mr Mane witha discount for youth on the methamphetamine charge, and that he should have applieda discount for the guilty plea of 20 per cent rather than 15 per cent on that charge. The4 At [10].5 At [11].Crown and defence had apparently agreed to a discount for guilty pleas at that levelprior to sentencing.[13] Mr Duff submitted that on the methamphetamine charge the Judge ought tohave adopted a starting point of three years six months, uplifted this by one month foroffending while on bail, and then applied discounts of five months for youth, threemonths for time spent on electronically monitored bail and seven months for the guiltyplea (20 per cent). He submits that an uplift of 12 months would then have beenappropriate to reflect the separate offending of aggravated burglary. This would resultin an end sentence of three years four months. He submits that a concurrent sentenceof one year 10 months would have been appropriate for the aggravated burglarycharge.[14] Alternatively, Mr Duff submitted that even if the court were to adopt a globalstarting point of five years and only allow a youth discount of five months (as givenby the Judge), the discount to reflect guilty pleas should have been 11 months (20 percent). This would produce an end sentence of three years eight months imprisonment.Decision[15] We begin by observing that the Judge was entirely correct to proceed on thebasis that the two charges justified the imposition of cumulative sentences. The eventsgiving rise to the charges were different in kind, and they were unconnected in time,place or circumstance. For that reason cumulative sentences were appropriate.6[16] We do not consider it necessary to deal separately with each of the points madeby Mr Duff on Mr Mane's behalf. Rather, we consider that the appeal should bedetermined by considering whether the effective end sentence of six yearsimprisonment was within the available range having regard to totality principles.[17] We also consider the global starting point suggested by Mr Duff to beinadequate to reflect the overall seriousness of Mr Mane's offending. An end sentence6 Sentencing Act 2002, s 84(1).of just three years eight months imprisonment would likewise be insufficient to reflectthat fact notwithstanding Mr Mane's relative youth and other mitigating factors.[18] Both offences were serious. We consider that a starting point of around fiveyears imprisonment was within the available range in respect of the aggravatedburglary charge having regard to all the aggravating features that the Judge identified.A starting point of around four to four and a half years imprisonment was also withinthe available range in respect of the methamphetamine charge. That offendinginvolved the possession of more than 18 grams of methamphetamine for supply. Theother items found in Mr Mane's possession also suggest that he was a reasonably busyseller of methamphetamine at street level. As a result, his offending fell within thelower end of Band 2 identified in R v Fatu, for which a starting point of three to nineyears imprisonment will generally be appropriate.7 The quantity involved and likelylevel of activity would call for a starting point greater than that appropriate foroffending at the bottom end of the range.[19] Mr Duff's remaining arguments are answered in our view by the level of thereduction applied by the Judge to reflect totality principles. A reduction of 18 monthson top of those applied earlier in respect of mitigating factors brought the end sentencedown, in our view, to a level that was within the available range to reflect theseriousness of both forms of offending. For that reason we have concluded the Judgedid not impose an effective end sentence that was manifestly excessive.Disposition[20] This conclusion would ordinarily be sufficient to dispose of the appeal. In thepresent case, however, we consider that the Judge ought to have imposed cumulativesentences to reflect his reasoning process. Concurrent sentences of six yearsimprisonment are not appropriate because neither offence justified an end sentence ofthat length. Furthermore, the sentences as they currently stand may operate unfairlyto Mr Mane's detriment if the courts are required to have regard to his criminal historyin the future. For that reason we propose to adjust the sentences so that they align withthe Judge's reasoning whilst preserving the same end result.7 R v Fatu [2006] 2 NZLR 72 (CA) at [34].Result[21] The appeal is allowed. The concurrent sentences of six years imprisonmentare set aside. In their place a sentence of three years four months imprisonment issubstituted on the charge of aggravated burglary and a cumulative sentence of twoyears eight months imprisonment is imposed on the charge of possession ofmethamphetamine for supply.Solicitors:Richmond Property & Litigation Ltd, Auckland for AppellantCrown Law Office, Wellington for Respondent