MANOAH v NEW ZEALAND POLICE [2023] NZHC 3279

MANOAH v NEW ZEALAND POLICE [2023] NZHC 3279 [20 November 2023]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI 2023-404-379[2023] NZHC 3279BETWEEN KANE JOSEPH NORMAN MANOAHAppellantAND NEW ZEALAND POLICERespondentHearing:Furthersubmissions:16 October 202330 October and 2 November 2023Appearances: M Hamlin for the appellantM Mortimer-Wang for the respondentJudgment: 20 November 2023JUDGMENT OF CAMPBELL J[Appeal against Sentence]This judgment was delivered by me on 20 November 2023 at 2.00 pmRegistrar/Deputy Registrar[1] Mr Manoah pleaded guilty to charges of burglary (x2), unlawfully interferingwith a motor vehicle, receiving over $1,000, unlawfully being in an enclosed yard,driving with excess breath alcohol, dangerous driving, and failing to stop. On 21 July2023, Judge K Glubb sentenced Mr Manoah to 26 months' imprisonment. Mr Manoahappeals. He says that the end sentence should have been less than 24 months'imprisonment and that a non-custodial sentence would have been appropriate.The offending[2] At about 8 am on 8 August 2021, Mr Manoah entered a dwelling on KitenuiAvenue, Mt Albert. He entered through an open door on the side of the property. Hewent into a bedroom and living area. He searched for valuables, taking a handbag andwallet which contained bank cards.[3] At about 6.14 am on 17 November 2021, Mr Manoah drove to a propertyon Norman Road, Titirangi. He entered a carport at that property, took three boxesof glass fittings and put them in his car. They were valued at $500.[4] At about 8 am on 21 November 2021, Mr Manoah went to a property onAwaroa Road, Sunnyvale. He entered the property by a long right of way. At theproperty he tried to open the front driver's door of a car that was parked there. He lefton foot after being observed by a neighbour.[5] Later that morning, Mr Manoah went to a property on Simpsons Road,Henderson Valley. He walked onto the property looking into cars that were parkedthere. He picked up scrap metal stored in the carport of the property but was disturbedby the homeowners and left on foot.[6] On 3 May 2022, some equipment valued at about $1,300 was stolen froma residential property in West Auckland. That same day, Mr Manoah exchanged thatequipment at a Cash Converters for $250.[7] At about 7.30 pm on 28 May 2022, Mr Manoah was driving a car on StateHighway 1 at Takanini. Police signalled the car to stop as it passed. Mr Manoah failedto stop for red and blue lights and a siren. Police abandoned the pursuit in Manurewa.Mr Manoah continued onto State Highway 20 and increased his speed toapproximately 165 kilometres per hour. He made multiple lane changes. He left themotorway at Queenstown Road, where he overtook other motorists on the wrong sideof the road. He continued to Hillsborough Road, where he overtook and undertookother motorists using the entire road. His car was spiked by Police on White SwanRoad. After the car came to a stop, Mr Manoah was found hiding on a nearby propertyand arrested. Breath test procedures returned a reading of 530 micrograms of alcoholper litre of breath.District Court Judgment[8] Judge Glubb outlined Mr Manoah's offending and the impact it had had on hisvictims. The Judge said that the aggravating factors of the offending wereMr Manoah's planning and premeditation, the repeat nature of the offending, and thathe had entered a dwelling.[9] Judge Glubb noted Mr Manoah's conviction history. Mr Manoah had no lessthan 19 previous convictions for burglary, 11 for dishonesty, eight for violence, fourfor receiving, four for either unlawfully being in a building or an enclosed back yard,and three for dangerous or reckless driving. Mr Manoah had shown an inabilityto comply with community-based sentences. He had four convictions for breachingrelease conditions, one for breaching home detention, three for failing to stop, two forfailing to answer bail, and one for driving whilst disqualified.[10] His Honour also recorded that throughout Mr Manoah's current offending hewas subject to a sentence of intensive supervision that had been imposed upon himin the District Court for very similar offending. The Judge who had imposed thesentence of intensive supervision, Judge Bennett, had observed in her sentencing notesthat Mr Manoah had turned a corner. Judge Glubb said that he recalled makinga similar comment to Mr Manoah when he had sentenced him on 23 March 2020.Judge Glubb observed: "yet here we are again".[11] The Judge noted that Mr Manoah was 38 years of age. The pre-sentence reportsaid that Mr Manoah had never fully engaged with a community-based sentence andhad lacked motivation to change his lifestyle, but that he had a strong desire to changehis pathway and address his offending factors.[12] The pre-sentence report writer observed that Mr Manoah was now in a healthyrelationship with his partner. The Judge noted that, for the first time, Mr Manoah hadhis own home and that he was now in a stable environment with employment and wasactively addressing his offending-related factors. The Judge noted variousrehabilitative activities in which Mr Manoah had recently been engaged. The Judgealso referred to Mr Manoah's difficult upbringing, as set out in a report prepared unders 27 of the Sentencing Act 2002.[13] In reaching a starting point for Mr Manoah's offending, Judge Glubb referredto the Court of Appeal's judgment in Arahanga v R.1 That case, the Judge said, talkedabout starting points in the range of 18 to 30 months for domestic burglaries. TheJudge said that Arahanga was looking at first offending, whereas Mr Manoah was nota first offender.[14] The Judge began with the burglary at Kitenui Avenue, Mt Albert. NotingMr Manoah's "very significant history of burglary offending", his Honour adopteda starting point of 30 months' imprisonment. He imposed an uplift of 10 months forthe balance of Mr Manoah's dishonesty offending and three months for the driving-related offending (dealing with it in totality). This gave an overall starting point of43 months' imprisonment.[15] The Judge then gave a further uplift of two months for Mr Manoah's previousconviction history (excluding the burglary-related convictions), being satisfied theywere recent and relevant convictions. He said this took him to 45 months'imprisonment.[16] The Judge allowed 20 per cent credit for Mr Manoah's guilty plea and 15 percent for Mr Manoah's background. He applied these credits to his running total of 45months' imprisonment.2 The Judge also allowed credit for the time that Mr Manoah1 Arahanga v R [2012] NZCA 480.2 These credits should have been applied to the overall starting point of 43 months' imprisonment:Moses v R [2020] NZCA 296, [2020] 3 NZLR 583.had spent on bail. Mr Manoah had spent six weeks on electronically monitored (EM)bail, followed by nine months on ordinary bail, much of which was subject to a 24-hour curfew. Judge Glubb allowed an overall credit of three months.[17] These various credits took the Judge to an end sentence of 26 months'imprisonment.Grounds of appeal[18] Mr Hamlin, counsel for Mr Manoah, says the end sentence was manifestlyexcessive. In particular, Mr Hamlin submits:(a) The starting point for the Kitenui Avenue burglary was too high.Mr Hamlin submitted that Judge Glubb erred in taking into accountMr Manoah's conviction history when fixing that starting point.(b) Judge Glubb failed to have adequate regard to all the defendant'spersonal factors. A discount ought to have been awarded for hisrehabilitation efforts and remorse.(c) The discount for time on restrictive bail conditions allowed by theJudge was inadequate. Mr Manoah ought to have been afforded fourto five months' credit.(d) Taking these matters into account, the Judge did not impose the leastrestrictive outcome in the circumstances. A non-custodial sentencewould have been appropriate.Principles governing sentence appeals[19] For a sentencing appeal to succeed the sentence generally must be shown to bemanifestly excessive or wrong in principle.3 The Court will not intervene where thesentence is within the range that can properly be justified by accepted sentencing3 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27] and [31]–[35].principles. Whether a sentence is manifestly excessive generally depends on the endsentence imposed, rather than the process by which it is reached.4Was the starting point for the Kitenui Avenue burglary too high?[20] Mr Hamlin submitted that the Judge erred in taking into account Mr Manoah'sprevious burglary convictions when setting the starting point for the Kitenui Avenueburglary. He submitted that the Judge's approach reflected an approach shownin a High Court decision Senior v Police for recidivist burglary offenders.5 Mr Hamlinsaid that the Court of Appeal had said that it was "abundantly clear" that previousconvictions constitute an aggravating factor personal to the offender, not anaggravating feature of the instant offending.6[21] Mr Mortimer-Wang, counsel for the Police, agreed with Mr Hamlin'ssubmissions. He accepted that the correct starting point for the Kitenui Avenueburglary should have been 18 months' imprisonment.[22] I accept both sets of these submissions. A starting point of 18 months'imprisonment would be consistent, as Mr Mortimer-Wang submitted, with theguidance in Arahanga of starting points of burglaries of dwellings of between 18 and30 months' imprisonment, given the absence of aggravating factors in the KitenuiAvenue burglary.[23] Both Mr Manoah and the Police accepted the 13-month uplift that Judge Glubbgave for the balance of Mr Manoah's offending. Given that the starting point for theKitenui Avenue burglary has been reduced from 30 to 18 months, the totalityassessment is different. A 13-month uplift is generous to Mr Manaoh, as the drivingoffending was particularly serious. However, it is within range, and I will not disturbit.[24] Accordingly, I will adopt an overall starting point of 31 months' imprisonment.4 At [36].5 Senior v Police (2000) 18 CRNZ 340 (HC).6 Stuart v R [2021] NZCA 539 at [15].What uplift was appropriate for Mr Manoah's previous convictions?[25] Mr Hamlin accepted that the Judge's two-month uplift for Mr Manoah'sprevious conviction history (other than burglary convictions) was in range. Heaccepted that, once the starting point for the Kitenui Avenue burglary was correctedby removing any consideration of prior burglary convictions, there needed to be anuplift for those convictions. He submitted the appropriate uplift was two months.Thus, he proposed a total four-month uplift for prior convictions.[26] Mr Mortimer-Wang submitted the uplift for all prior convictions should be inthe order of 10 per cent of the adjusted starting point. That would be in the region ofthree months' imprisonment.[27] At the hearing, I raised with counsel that in the case of recidivist burglars,uplifts for prior convictions were often in the region of 30 to 50 per cent, sometimeshigher.7 I ventured that an uplift in the region of 30 per cent appeared to be justifiedin Mr Manoah's case. Mr Hamlin asked for leave to file further submissions on thepoint. I granted leave to both counsel to do so.[28] Mr Hamlin's further submissions referred in considerable detail to severalcases. These tended to confirm my impression that uplifts for prior convictions wereoften in a range of 30 to 50 per cent.8 Of course, the appropriate uplift will dependon matters such as the number of prior burglary or other relevant convictions. Here,Mr Manoah has 19 previous convictions for burglary, 11 for dishonesty, eight forviolence, four for receiving, four for either unlawfully being in a building or anenclosed back yard, and three for dangerous or reckless driving. I consider that theseare so extensive and relevant to the current offending that an uplift of 30 per centis necessary, as the prior convictions indicate the culpability of Mr Manoah for thecurrent offending, reflect the need for deterrence, and show a heightened risk ofreoffending.7 R v Columbus [2008] NZCA 192 (66 per cent); Jones v R [2012] NZCA 273 (50 per cent); Moeroav Police [2015] NZHC 2226 (80 per cent); and Heriwini v Police [2015] NZHC 2807 (25 percent).8 As well as the cases set out in the previous footnote, Mr Hamlin's cases included: Vale v Police[2020] NZHC 3520 (33 per cent); Matika v Police [2013] NZHC 2806 (30 per cent); and Baller vPolice [2018] NZHC 2709 (33 per cent).Did the Judge fail to have adequate regard to all of Mr Manoah's personalfactors?[29] Mr Hamlin submitted that the Judge should have given modest credit of fiveper cent to recognise Mr Manoah's remorse and efforts at rehabilitation.[30] I accept that there is some evidence of remorse and even more evidence thatMr Manoah is finally taking some concrete steps towards rehabilitation. I considerthat a credit of five per cent against the overall starting point was warranted for thesematters.[31] However, any such credit is cancelled out by two matters that Judge Glubb didnot take into account. First, all of Mr Manoah's offending occurred whilst he was ona sentence of intensive supervision. Secondly, his receiving offending and his drivingoffending occurred whilst he was on bail on his earlier charges. I consider that thesefactors would have warranted an uplift of five per cent against the overall startingpoint.Was the credit for time on restrictive bail conditions allowed by the Judgeinadequate?[32] On 24 November 2021, when the burglary charges were laid, Mr Manoah wasgranted ordinary bail on a 24-hour curfew. He remained on that bail for six months,until further charges were laid on 30 May 2022 and he was taken into custody.[33] Mr Manoah was then granted EM bail to a Salvation Army facility on 19 July2022. About six weeks later, on 5 September 2022, Mr Manoah was granted theremoval of the electronic monitoring to be able to relocate to Tauranga to a propertythat was unable to allow EM bail owing to signal issues. His bail was replaced withordinary bail subject to a 24-hour curfew with exceptions for rehabilitation,appointments and employment. He was subject to that 24-hour curfew for threemonths. On 8 December 2022, the curfew was relaxed to a night-time curfew to allowMr Manoah to work. On 9 March 2023, the overnight curfew was deleted as itinterfered with Mr Manoah's employment.[34] In summary, Mr Manoah spent six weeks on electronically monitored (EM)bail, nine months on ordinary bail subject to a 24-hour curfew, three months onordinary bail subject to an overnight curfew, and four months on bail with no curfew.[35] Judge Glubb allowed an overall credit of three months. Mr Hamlin submittedthat a credit of four to five months was appropriate.[36] Mr Manoah's brief time on EM bail justified a credit of no more than threeweeks. The Judge effectively gave Mr Manoah credit of just over two months for thenine months he had spent on ordinary bail subject to a 24-hour curfew. Given thatcredit for EM bail subject to tight curfews is generally around 50 per cent, I see noerror in allowing about 25 per cent for the time spent on ordinary bail. I therefore seeno error in the Judge's overall allowance.Was the sentence manifestly excessive?[37] That I consider that Judge Glubb made some errors in constructing the sentencedoes not mean that the appeal should be allowed. The ultimate question is whetherthe sentence is manifestly excessive.[38] I consider the overall starting point should have been 31 months'imprisonment. Against that I consider the following adjustments should have beenmade:(a) Uplift for previous convictions: 30 per cent.(b) Uplift for offending while subject to a sentence of intensive supervisionand while on bail: five per cent.(c) Credit for guilty plea: 20 per cent.(d) Credit for rehabilitation prospects: five per cent.(e) Credit for personal background: 15 per cent.(f) Credit for time on bail: three months.[39] This gives an end sentence of 26 and a half months' imprisonment. It followsthat the Judge's end sentence of 26 months' imprisonment was not manifestlyexcessive. This also means that the possibility of a non-custodial sentence does nothave to be considered.Result[40] The appeal is dismissed.______________________Campbell J