MANAHI v NEW ZEALAND POLICE [2021] NZHC 2430

MANAHI v NEW ZEALAND POLICE [2021] NZHC 2430 [16 September 2021]IN THE HIGH COURT OF NEW ZEALANDNAPIER REGISTRYI TE KŌTI MATUA O AOTEAROAAHURIRI ROHECRI-2021-441-17[2021] NZHC 2430BETWEEN TE HEI TE MATATU TYLA MANAHIAppellantAND NEW ZEALAND POLICERespondentHearing: 16 September 2021 (VMR)Counsel: J Te Puke-Cowperthwaite for AppellantM J R Blaschke for RespondentJudgment: 16 September 2021JUDGMENT OF SIMON FRANCE J[1] Ms Manahi appeals an overall sentence of 18 months' imprisonment withstandard and special release conditions for six months after the sentence expiry date.1There are two issues:(a) the length of the sentence; and(b) whether it should instead have been a sentence of home detention (orleave to apply for that).[2] Subsequent to sentencing, the Court has been provided with a s 27 report whichprovides some fuller context to matters touched on in the PAC report. The respondentsupports the Court receiving the report. Further, while not accepting the challenge tothe length of the sentence of imprisonment, the respondent agrees the s 27 reportprovides a basis on which home detention should be substituted. It is noted the1 New Zealand Police v Manahi [2021] NZDC 12118.sentencing Judge expressed puzzlement at what underlay the offending and whyMs Manahi was displaying such anger and defiance. The s 27 report provides someinsight into that.[3] The outcome of the appeal will be a sentence of home detention. The issue isthe length which involves three matters:(a) whether the District Court erred in the starting points for the variousoffences;(b) whether greater mitigation was appropriate given Ms Manahi's age andcircumstances; and(c) credit for time now served.The offending[4] Ms Manahi's offending required two separate sentencing considerations:(a) a collection of offences which were for first sentencing; and(b) a collection of eight charges which had been sentenced 10 monthsearlier. The sentences of community detention and supervision had notbeen complied with and resentencing was sought.[5] Taking first the new offending, the major offences are best described as arisingfrom a serious driving incident. Ms Manahi was a disqualified driver, but neverthelessdriving. Required to stop by police, Ms Manahi drove off. In a built-up area she drovethrough multiple give way signs and intersections, neither slowing nor giving way.Eventually she lost control, crossed the centre line and collided with a power box.Undeterred by a badly damaged vehicle she continued to drive for about 5 km until aroad block was encountered. Ms Manahi drove over a footpath onto a property toavoid it. Eventually she abandoned the car and ran off. The incident was charged asfailing to stop, driving in a dangerous manner and disqualified driving (a first chargeof third or subsequent).[6] Two months later Ms Manahi was at a supermarket. She was apparently tryingto shoplift. When told to leave by a worker, Ms Manahi first threw something at theperson, hitting them, and then began striking the victim in the face. Another workerintervened and Ms Manahi pushed him to the floor.[7] Four times in the following month Ms Manahi filled her car with petrol andleft without paying. These were charged as theft. Obviously they were furtherincidents of disqualified driving.[8] Three months later Ms Manahi was again stopped while driving whiledisqualified. And then again another two months later.[9] The Judge took a starting point of 12 months' imprisonment for the incident ofdangerous driving, which included the disqualified driving and failing to stop. For thetwo subsequent driving while disqualified offences, the second on bail, there wereuplifts of three months and one month.[10] The balance of the new charges, being theft x4, the supermarket assaults and acharge of failing to answer bail, a further four months were added meaning the totalsentence starting point for the fresh offending was 20 months. Two months were thenadded for past offending.[11] The matters for resentencing need not be detailed but involved possession ofcannabis, methamphetamine, ammunition and a restricted weapon; breach ofcommunity work; and breach of lockdown. An uplift of four months was added forthese. This meant a final starting point of 26 months.[12] There were then deductions of five months (plea) and three months (youth)leaving a final sentence of 18 months.Challenge on appeal[13] The appellant submits the starting point for the driving incident was too high.The submissions focus on typical court reactions to a first occasion of disqualifieddriving, third and subsequent. Although to some extent this reflects the language ofthe Judge's sentencing comments, it is plain 12 months was a figure that captured thewhole of the incident, including the District Court's clear concern over the dangerinherent in Ms Manahi's driving.[14] The appellant's submission, in contending for a starting point of four to sixmonths, underweights the significance of the driving which was reckless and carriedvery real risks of serious injury to her passengers (an adult and two children) and tomembers of the public. To have carried on after the initial crash to drive as Ms Manahicontinued to do was a significant aggravating feature. I have not been persuaded theCourt erred in its 12-month figure.[15] The appellant next challenges the four months' uplift for the further drivingoffences, submitting that it involves double counting of the aggravating featuresinherent in the offence. I disagree. The overall offending makes plain a completedisregard for court-imposed obligations and limitations. There are numerousoccasions of further driving while disqualified, some of which must have been whileon bail and waiting for sentence on earlier offending of the same type.[16] The four months' uplift for assault, theft and failing to answer bail is challengedon the basis that an offender facing only those would not receive imprisonment.Whether that may be so, since Ms Manahi was otherwise receiving a term ofimprisonment, an uplift was the only option. The offending was relatively minor andI accept there is room to debate whether four months is too stern, but some uplift wasneeded, and the available range is small. In assessing the correctness of the overallsentence I factor in that this uplift was likely too much:(a) the assaults involved no lasting injuries, and arose from the oneincident; and(b) the thefts were Ms Manahi's first convictions for such offending.[17] I agree that the uplift of two months for past offending was not required.Ms Manahi was receiving a first sentence of imprisonment. Some of the charges inthemselves already factor in a penalty for past offending, and offending on bail hadbeen noted as an aggravating factor in the 12 months' starting point. Particularly givenher age and that this was a first sentence of imprisonment, I consider this uplift shouldnot have been added.[18] I can see no issue with the four months' resentence.[19] Overall I consider the starting point for the sentence to be excessive by theprevious offending uplift and with less conviction the size of the four months' upliftfor other new offending. I consider the correct starting point to have been 23 months'imprisonment.[20] Concerning discounts the Judge allocated five months for the guilty plea. Thisis a 20 per cent figure. No reason was given why the full 25 per cent was not allocated,and it may indeed be simply a matter of calculation. However, I agree this figureshould have been a month more. Obviously that would not normally be a matter inwhich to allow an appeal but it ought to be factored in now readjustment is alreadyoccurring.[21] On the material known to the Judge three months for youth was appropriate.New evidence[22] The s 27 report provides more information about Ms Manahi. I intend only tosummarise it. Ms Manahi's parents separated and she was with her mother. It seemsthey moved around a lot and Ms Manahi refers to things that occurred to her (not fromher immediate family). Her formal education stopped at age nine. Mr Blaschke forthe respondent accepts the report establishes a clear nexus between matters in her pastand the present offending and Ms Manahi's apparent anger at many things. I agree.[23] I consider an appropriate discount on the first occasion this material has comebefore a Court and given Ms Manahi's age and the possibility of a first sentence ofimprisonment was 20 per cent. Rounded up, I consider the overall deductions shouldhave been 12 months.[24] The final adjusted sentence of imprisonment would therefore be 11 months'imprisonment.Home detention[25] A report was ordered and the proffered address assessed as suitable. It seemsan agency then raised a flag which made the address less satisfactory. I am told thiswas resolved by the hearing2 but the District Court either did not accept that, or forsome reason declined a requested adjournment for the matter to be clarified.[26] It may be the Judge considered home detention not an option, and the refusalof an adjournment suggests that, but the sentencing remarks do not address homedetention at all. Given the offender is a 21-year-old Māori woman with the care of hertwo children and being sentenced for the first time to prison, it needs to be consideredand I do so now.[27] I have some concerns over the address which is to the same address whereMs Manahi has been living. For whatever reason Ms Manahi to date shows nowillingness to comply with any directions or restrictions. Those with whom she isliving either do not see themselves as having a role, or are unable to exercise anycontrol.[28] The reality is that compliance with this sentence will need to come fromMs Manahi. There is not a lot of cause for optimism but perhaps awareness that thealternative is imprisonment will help bring about a change. As the matters haveworked out, the term of home detention will be short. The short period will be anopportunity for her to show she can comply. The risks to the public should there be abreach are not such as to tell against the sentence.Length of sentence[29] Eleven months' imprisonment would normally produce a sentence of fivemonths and two weeks' home detention. Credit is to be given for time served in prison2 I was advised at the hearing that it concerned one of the occupants. Arrangements had been madefor him to move out.which will be three months. The calculations are not to be exact and there is merit ina term that will enable Ms Manahi to show she can comply both with the sentence andwith directions of the probation officer. There is assistance Ms Manahi needs andspecial conditions will extend beyond the sentence to ensure that occurs.Conclusion[30] The appeal is allowed and all sentences of imprisonment are quashed.[31] A sentence of home detention of three months is imposed. The standardconditions apply for the sentence and for a period of six months thereafter.[32] Two special conditions apply for the same period:(a) Undertake and complete any treatment/counselling or programme asdirected by a Probation Officer.(b) To attend an assessment for a departmental programme as directed bya Probation Officer. To attend and complete any counselling, treatmentor programme as recommended by the assessment as directed by andto the satisfaction of a Probation Officer.[33] The home detention address is that approved as part of the sentencing exercise.As soon as arrangements can be made, Ms Manahi is to be released from prison inorder to return to the approved address. She is to stay there, without leaving, until theelectronic monitoring is put in place and the sentence commences. The approvedoccupants are Ms Manahi, her mother and her two children.[34] I remit all outstanding fines._____________________Simon France JSolicitors:Crown Solicitor, Napier for Respondent