THE QUEEN v BROWNIE MANE [1999] NZCA 155 (24 August 1999)

IN THE COURT OF APPEAL OF NEW ZEALAND

ca233/99

THE QUEEN

V

BROWNIE MANE

Hearing:	24 August 1999 (at Auckland)
Coram:	Blanchard J Gallen J Anderson J
Appearances:	C Edwards for Appellant K B F Hastie for Crown
Judgment:	24 August 1999

judgment of the court delivered by blanchard j

[1] This is a very belated application for leave to appeal against the imposition of a minimum term of imprisonment of 17 years following the conviction of Mr Mane for murder.The minimum term was imposed on 24 November 1997.

[2] We can deal with the circumstances briefly as they are fully set out in the judgment of this Court in R v Manihera and Luke (CA 495 and 496/97, 30 March 1998).In that judgment the appeals of two co-accused, Mr Luke and Mr Manihera, against the minimum non-parole sentences imposed upon them were dismissed.

[3] The victim was a Mr Crean and the motive for his murder was that he was to be a Crown witness in the prosecution of members of the New Plymouth chapter of Black Power including Mr Mane for offending involving an attack on a man called Stubbings.All the co-accused in the present case were Black Power members. It is quite clear that the killing of Mr Crean was, as this Court put it in the earlier judgment, a "carefully planned and cold-blooded execution."That was one reason why the sentencing Judge decided that the circumstances of the offending were exceptional in terms of s80(2) of the Criminal Justice Act 1985 so that a minimum period of imprisonment of more than 10 years was justified.

[4] The second exceptional circumstance referred to by the Judge was of course the motivation for the killing, namely to stop the giving of evidence in a criminal prosecution.There can be no doubt that the Judge was right to take the view that these circumstances were exceptional.

[5] The only question is as to the length of the non-parole period.It is also to be remembered that the section requires that the duration of the period imposed is to be the minimum period that the court considers to be justified having regard to the circumstances of the case, including those of the offender.

[6] The killing (a shooting) was actually done by Mr Maru with the assistance of the present appellant and the other co-accused.Mr Maru and Mr Mane were given 17 year non-parole periods; those for Mr Luke and Mr Manihera were 14 years.One reason why the Judge imposed the higher period in respect of Mr Mane was because, in her words, "the evidence was that Mr Mane was the driving force behind the killing.He appears to have been the organiser...."The Judge considered that there was a basis for drawing a distinction between the different and lesser roles played by Mr Luke and Mr Manihera on the one hand and Mr Maru and Mr Mane on the other.While the former pair were involved in the essential outlines of the plan, they were not "pivotal to its execution."

[7] There was also significance in the fact that Mr Mane and Mr Maru were persons charged in relation to the attack upon Mr Stubbings.It was therefore to their particular advantage that Mr Crean be silenced.The Crown had submitted that they should not evade the consequences of their sentence in respect of the Stubbings attack (they were convicted despite the absence of the Crean evidence) through what the Judge described as the "super-imposition of the sentence of life imprisonment."The Judge said that it was appropriate that some recognition be made for the sentence imposed in respect of the Stubbings attack.

[8] In his submissions for the appellant Mr Edwards said that the Judge placed too much emphasis on factors other than the punitive and denunciatory purposes of s80, having given emphasis to factors such as the capacity of the crime committed to undermine the system of law in New Zealand and the need to deter others from following suit.It was also submitted that the Judge was wrong in deciding that Mr Mane's personal circumstances could carry very little weight.

[9] Mr Edwards realistically did not try to suggest that the threshold of exceptionality required by s80(2) had not been reached.His submission was that although the Judge made some reference to personal circumstances of the offender, in reality they had not been taken into account.She had referred to an acknowledgement by counsel appearing for Mr Mane that his personal qualities could carry little weight because of the enormity of what had been done and the need to send a message to the community.

[10] It was also submitted that a minimum period of 17 years was outside the range of sentencing normally imposed for like offending.Mr Edwards suggested that the sentencing range for the type of murder was more properly in the order of 12 to 15 years.He faced, of course, the difficulty that this Court has already stated in relation to the co-offenders who played lesser roles that the Judge was well justified in imposing on them the 14 year non-parole sentences. We consider that it is our duty to look at that question afresh, but having done so can see no reason to differ from the earlier court.

[11] In view of Mr Mane's greater culpability as the organiser of the attack and as one of those intended to benefit from it, it is obvious that the Judge was right to impose a longer non-parole period for the present appellant.This Court in R v Manihera and Luke observed that the starting point was that the statute itself sets a 10 year minimum non-parole period and that the difference between the additional 7 year and 4 year minimum periods was some 43%.We think that reflected relative culpability, indeed it could be seen as lenient for those who planned or executed a killing designed to prevent justice being done to two of their number in another case.The 17 year period should not be disturbed.

[12] We grant the application for leave to appeal out of time but dismiss the appeal.

Solicitors

Crown Law Office,