The Queen v Manning [2009] NZCA 510 (23 October 2009)

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The Queen v Manning [2009] NZCA 510 (23 October 2009)

Last Updated: 27 October 2009

IN THE COURT OF APPEAL OF NEW ZEALAND

CA323/2009

[2009] NZCA 510

THE QUEEN

v

ANGELA GEORGINA MANNING

Hearing: 6 October 2009

Court: William Young P, Panckhurst and MacKenzie JJ

Counsel: R G Glover for Appellant
B Hawes for Crown

Judgment: 23 October 2009 at 3.30 pm

JUDGMENT OF THE COURT

The appeal is dismissed.

REASONS OF THE COURT

(Given by MacKenzie J)

Introduction

[1] The appellant was convicted following trial in the District Court at Christchurch before Judge Farish and a jury on one count of wounding with intent to cause grievous bodily harm and one count of threatening to kill. She was sentenced in May 2009 to a total term of five years imprisonment. She appeals against the sentence, on the grounds that it was manifestly excessive.

Facts

[2] Both charges related to an incident in the early hours of Saturday 24 May 2007. The appellant and the victim, Mr Gray, were flatmates. On the Friday evening the appellant and the victim, and their respective partners, set out for an evening socialising in the city. They were socialising in a bar until the victim left. On attempting to return to the bar, he was refused entry because of his level of intoxication. He and his girlfriend, Ms Weusten, returned to the flat and went to bed. The appellant and her partner were still in the bar at that stage.
[3] About 2.30am the victim was woken by a loud noise and shouting, resulting from the appellant’s return home. The sentencing Judge’s description of the events which followed is based upon her acceptance of Ms Weusten’s evidence as to events:

[5] You [the appellant,] came into the bedroom and berated Mr Gray, for some reason you thought that he had either been lying to you or had offended you in some way. It was totally unprovoked and you wanted him to leave. At that stage the couple had been asleep in bed. They were trying to get their property together and you left the bedroom briefly, but returned into the bedroom with a large knife. At that stage Mr Gray and Ms Weusten were trying to get their clothes on and get some property together to leave. That is all they wanted to do - particularly in the light of the fact that you had a very large knife.

[6] You were threatening Mr Gray with that knife in and around the bedroom and, at one stage, you also approached Ms Weusten, also with the knife. Mr Gray was shouting at you. You were shouting at him. You threatened to kill him. He, as you were by the doorway in the bedroom, tackled you as he described, and Ms Weusten described, like a rugby tackle and pushed you into the hall. At that stage you stabbed him twice with a very large knife. One of those stab wounds going 13 centimetres into his body and nicking his kidney. At that stage your partner intervened, and I accept on Ms Weusten’s evidence, and also on Mr Gray’s evidence, that he tried to stop you from inflicting further harm on Mr Gray.

[7] Mr Gray then staggered back into the bedroom and collapsed onto the bed and Ms Weusten then rang the ambulance. That call, Ms Manning, really was very demonstrative of the situation that was occurring in the house. There was no sign at all that you were concerned for Mr Gray. Your partner was concerned for Mr Gray, but it is quite clear listening to that phone call, which the jury did on three occasions during the course of the trial, that Ms Weusten was absolutely terrified of you. She also referred during the course of that 111 call to the fact that you were wiping the knife and then you left the large knife on the bed.

[8] You left the property and were apprehended a matter of days later. Luckily, and very fortunately, Mr Gray did not suffer a serious injury although a 13 centimetre stab wound into the body is a serious matter. You managed to nick his kidney, but he did not need any extensive surgery, and he was released from the hospital after about two days.

The sentencing

[4] The Judge described this as an unusual sentencing exercise. She noted the need to put aside the ongoing issues and difficulties between the victim and the appellant, in respect of which the appellant was currently facing further serious charges. She noted the respective starting points of six years suggested by the Crown, and three and a half to four years by the appellant. She identified as aggravating features of the offending the use of a large knife as a weapon and that there were serious threats, including the threat to kill. As to the Crown submission that there was premeditation she said:

[15] ... I do not agree that there was premeditation in regard to you having come home and decided that you were going to stab Mr Gray with a knife. What I do accept, however, is that you left the room momentarily and armed yourself with the knife. I do not think, at the time, that you were thinking through that you were going to then use it. But you subsequently did.

[5] She noted that the victim was injured relatively seriously. She accepted that one of the aggravating features was that the offending occurred shortly after the victim and his partner were woken from sleep in their home. She rejected the contention that there was any form of provocation. The defence at trial had been self defence. She said at paragraph [16]: “I do not accept, and I reject, as the jury did, that you were acting in self defence.”
[6] The Judge assessed the culpability of the offending as being somewhere at the end of band one of R v Taueki [2005] 3 NZLR 372 (CA), leading into the second band of Taueki. She took a starting point of five and a half years imprisonment, to cover both offences. She noted that the Crown had sought an uplift based on previous convictions but agreed with the appellant’s counsel that this was really her first conviction for violence, though she expressed concern at the similarities between the present offending and a count of threatening behaviour in 2005.
[7] The Judge noted significant personal mitigation that in recent times the appellant had made a serious fist of trying to get her life back on track and that personal improvement had come about because of her desire to improve herself rather than any Court imposed restrictions. She also gave credit to reflect the fact that the appellant had made some serious inroads into overcoming her drug problem and her recognition that she may need some assistance in terms of anger management. Taking account of those personal aggravating and mitigating factors she reduced the sentence by six months, to a final sentence of five years imprisonment on the charge of wounding with intent to injure, with one year concurrent on the charge of threatening to kill.

The grounds of appeal

[8] The appellant raises three grounds in support of the contention that the sentence was manifestly excessive:

Failure to address the possibility of self defence with excessive force

[9] The defence at trial was self defence: that the wounding with the knife was a spur of the moment reaction to an attack by the victim on the appellant.
[10] Mr Glover for the appellant submits that the jury’s rejection of self defence did not eliminate the possibility that they felt that the victim did attack the prisoner, but that her response to that attack was disproportionate. He submits that the sentencing Judge should, at the very least, have responded to counsel’s submission to that effect. Counsel for the Crown submits that the Judge did not accept the appellant acted defensively, and this was a factual finding open to her. Counsel draws attention to the guilty verdict on the count of threatening to kill as supportive of the jury’s rejection of self defence.
[11] We do not agree that the Judge failed to address the defence submission on self defence. The Judge expressly accepted Ms Weusten’s evidence as to what occurred and described that in her sentencing notes as set out above. The Judge was entitled to take that view of the evidence. That description does not leave open the possibility that the appellant had acted in self defence but with an excessive level of force. Further, the sentencing Judge explicitly stated (at paragraph [16]) that she rejected that the appellant was acting in self defence. The Judge’s findings made it clear that she rejected the submission that the jury’s verdict might have been based on a finding of self defence but excessive force, rather than a rejection of self defence per se.

Starting point too high

[12] Mr Glover further submits that the starting point was too high. He submits that the proper starting point, taking into account the use of a knife, the potentially (but not actually) serious nature of the injury and the lack of premeditation was nearer to the bottom end, rather than the top end, of the first band in Taueki. Counsel for the Crown submits that the starting point was appropriate, particularly as the other count was brought to bear on the starting point.
[13] We agree with the Judge’s assessment of the offending as being on the margin between band one and band two. A starting point in the overlap between these bands was within the available range. The starting point of five and a half years for the totality of the offending was therefore appropriate.

Insufficient credit for mitigating factors

[14] The appellant further submits that insufficient credit was given for the personal mitigating factors, in particular the personal efforts of the appellant to rehabilitate herself. Mr Glover submits that the Judge’s recognition of these factors was not translated into a sufficient credit in relation to the end sentence. He submits that the Judge should not have considered a possible uplift for personal aggravating factors in reaching the end credit for mitigating factors. Counsel for the Crown submits that the six month credit given for personal mitigating factors was adequate having regard to the appellant’s lack of remorse.
[15] We consider that the appellant’s previous convictions should not be regarded as a personal aggravating feature justifying an uplift to the starting point. The offending other than the 2005 offending is of a different kind, and not such as to justify an uplift. The Judge said that the similarity of the 2005 offending with the present offending did give her cause for concern and cause to consider whether or not she increased the sentence. However, she expressly stated that she was not going to increase the sentence on that account.
[16] The sole question therefore, is whether the reduction of six months from the starting point was sufficient to reflect the personal mitigating factors. The reduction of six months from a starting point of five and a half years equates to nine percent. That could not be described as a generous allowance for the personal mitigating factors which the Judge found. Another Judge may have been prepared to give a slightly higher discount. The extent of credit to be given for personal mitigating factors is an area in which there is room for an exercise of judgment on the part of the sentencing Judge and this must be respected on appeal. We do not consider that the discount was outside the available range.

Totality

[17] The final exercise must be to stand back and view the end sentence in its totality. We are satisfied that, when this is done, the sentence was within the available range and was not manifestly excessive.

Result

[18] The appeal must accordingly be dismissed.

Solicitors:
Raymond Donnelly & Co, Christchurch